The pretrial maneuverings in the murder case against Daniel Bradley and Paul Moccia sprawled in yet a few more directions this week as prosecutors sought to prevent a former director of the Massachusetts State Police crime lab from serving as an expert witness.
Meanwhile, Judge Kenneth Fishman expressed his surprise that exhaustive DNA testing still has not been done, and said “the situation here really cries for the case to be tried, at the latest, on Sept. 20.”
Monday’s marathon pretrial conference was supposed to be the final one. But the trial is still at least a few months away, frustrating Kevin Reddington and Steven Boozang, the attorneys for defendants Bradley, 49, of Westwood and Moccia, 50, of Dedham.
“My guy’s been sitting in jail ever since day 1, and the government has no case on this,” Reddington said of Bradley, while Boozang said prosecutors are dragging their feet while “my client sits here day after day, week after week, month after week, behind bars.”
Bradley is being held at the Norfolk County jail in Dedham, and Moccia is at the Bristol County jail in Dartmouth. They have been in custody since June 2009, when they were arrested and charged with the murder of Angel A. Ramirez, 37, a Framingham construction worker and suspected drug dealer. Ramirez was last seen March 20, 2009.
Bradley and Moccia pleaded not guilty to first-degree murder and conspiracy to commit murder last September.
On Monday, Assistant District Attorney Pamela Alford recapped “the plan,” saying that Bradley prepared the site of the murder – 25 Merchants Drive in Walpole, where his family runs a concrete business – that Moccia lured Ramirez there promising that they would look at exercise equipment, and that the victim was shot several times.
In the concealment phase of the “joint enterprise,” “Bradley stayed with the body, cleaned the place,” and incinerated the body, Alford said, while Moccia took Ramirez’s truck, met his brother, Robert, at a parking lot by routes 128 and 9 in Wellesley, and then drove to Framingham.
Debate over DNA testing
Bradley and Moccia, both wearing dark suits as usual, took seats near the front of small courtroom 20 at Norfolk Superior Court Monday afternoon, with the judge entering moments later.
Assistant District Attorney Robert Nelson began by saying that the hearing had been scheduled to hear a severance motion from Reddington, but at the same time he’d received an inch-thick set of motions.
Nelson said in April he requested that the DNA be sent to an independent lab, Orchid Cellmark, “with the idea that I know it was going to get done.” He said Reddington requested having an expert present during the testing, and that Reddington also said it would cost a substantial amount of money to send an expert to the Orchid Cellmark labs in Texas.
At the last court hearing, Reddington indicated that testing could be done in August if it were done locally, Nelson said. But the assistant D.A. said he talked to a supervisor and now knows, “as far as having an expert present during testing procedures, that our lab is now filled up for the next four months.”
Rebutting the claim that the commonwealth is delaying the trial, Nelson said in October he sent Reddington a letter asking if he wanted an expert witness present at the testing, and that only four months later, in February, did he get a response back.
“Except with some respects, here we are five months later and nothing’s happened,” said Fishman, who was fairly incredulous that the exhaustive DNA testing has not been done.
Just before the hearing began, Alford handed Boozang and Reddington a motion to exclude expert witness Mary Kate McGilvray, who was acting director of the state police crime lab until her retirement in April 2009.
Reddington said his 2-inch thick package of motions mostly included court transcripts to give the judge a flavor of what has transpired in court. But now he is suddenly being served with a motion to exclude his expert, McGilvray, he said.
The Bradley evidence was submitted to the laboratory after she left, and “she has no fingerprints whatsoever on anything having to do with this case” connected with him, Reddington said.
Alford said evidence was submitted to the lab on April 1, 2009, and McGilvray retired April 25. She said prosecutors have two concerns – that “the acting laboratory director may have had some involvement in this case,” though they don’t know, and that as director, she would have had control of the state lab’s policies and protocols, and would have been involved to such an extent that it’s “inappropriate” for her to now comment on these matters as an expert witness.
Reddington read from an affidavit from McGilvray that says she left her job in March 2009, and in early February 2010 signed on as a forensic science consultant for Bradley. Reddington said in February he gave “formal notification” that McGilvray would be their expert and that he wanted to have her present for testing, and that in February, March, April and May, “not once did anybody say they had one reservation” about her. “Sometime in the last four months, the higher-ups became concerned about an ethics violation,” a conflict of interest, he said.
But Reddington said while at the crime lab McGilvray had no knowledge of Bradley or this case, and thus has no conflict of interest. He called it a “bogus argument” that she should be knocked out: “If anything, it seems to cut to the government’s direction that she was the former director.”
On the delay in testing, Reddington remarked that “we’re talking about getting something from Texas to Massachusetts,” not from Siberia. “Here we are, a month away from the (nominal Aug. 30) trial date, and we’re not any closer to trial than we were in March.”
Fishman said he was primarily concerned about the high fees at Cellmark, and asked Nelson to add asking them about a possible concession to his “list of things to do.”
From the prosecution, Fishman asked for an affidavit that spells out McGilvray’s involvement in the case, and from the defense, he asked for an explanation to why the short time period between leaving her state position and joining Bradley’s team would not bar her from being a witness. The judge said he wanted the supplemental affidavits filed by Aug. 6.
“I don’t want to delay this. I want to get this tested. I want to get this case tried, at the latest, on September the 20th,” he said.
Bradley told the judge that he wished to waive any potential conflict of interest regarding McGilvray. The prosecution said it believes that the defendant cannot waive that right; Fishman said he would make a decision on the conflict of interest issue.
Evidence in question
During the two-hour hearing, the attorneys also sparred over other discovery issues, including cell tower triangulation – Fishman told the prosecution to disclose by Aug. 3 who will be testifying for the phone company – and materials the defense said it hasn’t received.
Boozang said he asked for the beginning of the audio tape from a state police interview with Paul Moccia; all meetings and notes with his brother Robert (a key witness for the prosecution); and all state police notes and reports on Paul Moccia, his sister, Paul Moccia’s former girlfriend, and on his girlfriend at the time of Ramirez’s disappearance.
Nelson said none of them exist, and that there is no video of the Paul Moccia interview. Troopers discovered during the interview, Nelson said, that the video equipment wasn’t working. On how Nelson said there are no notes on one of Moccia’s girlfriends, Fishman remarked, “He’s been saying what we’ve been hearing for 40 years – that when reports are created, notes are destroyed.”
He added, “I can’t order them to release that which doesn’t exist.”
When Boozang asked for another report on the old girlfriend beyond the one he already has, Nelson responded, “Everything that I have, attorney Boozang has.”
Reddington said the government was directed to provide him with a photo of Ramirez, any ID issued by the Guatemalan government, and bank and credit cards records – but all he received was a Xeroxed photo of the guy. (Reddington raised the possibility that “(Ramirez is) building a place off the coast of Guatemala somewhere.”)
Reddington said that court order after court order is given, “and it doesn’t matter, because nothing happens.”
“I like dealing with Mr. Nelson, but it’s like trying to grasp a whiff of smoke sometimes. You don’t get anything,” he said.
Nelson said he didn’t recall a court order for what Reddington mentioned, and that if there was one, he didn’t recall arguing it in court.
Casting Robert Moccia’s involvement in a somewhat different light, Alford said of the joint enterprise that “there was clearly a need to have Robert Moccia help and then not cooperate with the police,” referring to how he helped his brother with the truck. She said that in his original interview Robert Moccia lied to police, but when police came back later, he began to cooperate.
Reddington said Robert Moccia, 51, changes and embellishes his story as time goes by, and said that he is the basis for the prosecution saying there is a joint venture. He said “Bradley wouldn’t even be in this chair if it weren’t for the statements that the brother had made.”
Moccia’s credibility will be scrutinized on Aug. 18, when Fishman said he would appear in court for a “voir dire” hearing related to the admission of codefendant statements.
Fishman added that by then presumably they will know the status of the DNA expert witness and the test results, and Reddington will have his phone data.
“All of these things will put us in a better position to understand if there might be a further delay in this trial,” he said.
Dedham Transcript staff writer Edward B. Colby can be reached at 781-433-8336 or ecolby@cnc.com.
