“The Bloody Handprint”
Prosecutorial Misconduct
In his closing argument to the jury, the prosecutor, David Capeless, said “And then he (Michael O’Laughlin) does one other thing. As you heard from that evidence, lying there curled, with her hands like this he took that pillow and with his right hand pushed it down on top of her (Annemarie Kowtoski) the final thing that was done. And when all those sounds were over, when she lay muffled underneath that pillow. . .” There’s only one thing wrong with that statement—it wasn’t true! There was absolutely NO evidence introduced during trial that showed Michael O’Laughlin took that pillow and with his right hand pushed it down on top of her. There was plenty of inference made by the prosecutor during trial that the handprint on the pillow case was Michael O’Laughlin’s but the prosecutor never came out in trial and said it was Michael’s handprint. Did the prosecutor know that handprint on the pillow was not Michael’s? If he did know the handprint was Michael’s why didn’t he state it as evidence during the trial? He certainly inferred it was Michael’s handprint. Did he want the jury to believe it was Michael’s handprint? Why did he wait until closing argument to say “he took that pillow and with his right hand pushed it down on top of her?” Why didn’t Michael’s defense lawyers ask in trial if the bloody handprint was Michael’s? Technically they didn’t have to because it was never said in trial during the time evidence was being introduced that it was Michael’s handprint. Why during the closing argument, when the prosecutor made this wrongful statement, didn’t Michael’s defense lawyer object to this statement? He didn’t object because he didn’t hear the statement. Michael’s Mother didn’t hear that statement. They didn’t hear that statement because the prosecutor was practically whispering to the jury. Only Michael heard that statement and fortunately Michael heard correctly because that statement appeared in the trial transcripts. The legal community would refer to the prosecutor’s actions as prosecutorial misconduct. In layman terms that is considered a lie.
If that statement by the prosecutor was meant to be true then the person that took that pillow and with his right hand pushed it down on top of her was the person that committed this crime. If that handprint was not Michael’s, then whose was it? Is the right handprint on that pillow the real person that committed this crime? Who is this person? Is he still walking around the streets of the Berkshires a free man, while Michael O’Laughlin is spending time in prison for a crime he didn’t commit?
Why could this one statement by the prosecutor have such an impact on the jury’s decision to convict Michael O’Laughlin? Because the prosecutor knew his case was totally circumstantial (no physical evidence tying Michael O’Laughlin to this crime) he had to make inferences based on speculation. Since there was no evidence supporting the statement that Michael O’Laughlin took that pillow and with his right hand pushed it down on top of her, the prosecutor had to make inferences to the jury that it could have been Michael O’Laughlin that took that pillow and pushed it down on top of her. Let’s review how the prosecutor put these inferences together to mislead the jury into thinking that bloody handprint was Michael O’Laughlin’s. Everything that follows comes directly from the trial transcripts (will be in the format of volume #-page #; line #’s).
On the 2nd day of trial the prosecutor called Kevin Palmer (EMT) who was the second person to arrive on the crime scene. The prosecutor asks Mr. Palmer what he saw Charles Spirydowki the first EMT who responded to the scene, doing (2-176; 19-23):
- Q. Did you see Mr. Spirydowki do anything to assist her (victim) or to start going through the process of administering to her?
- A. I believe he was moving a pillow from around her head.
Then the prosecutor asked Mr. Palmer a series of questions concerning the pillow (2-177; 3-8):
- Q. Did you take note of the pillow?
- A. I just looked at it quick when he was moving it.
- Q. Even looking at it quickly, what did you notice about it?
- A. Looked like it had a little blood and maybe a little indentation on it. Hard to tell.
The questioning to Mr. Palmer might indicate the prosecution is concerned about the pillow and considers it important.
The next witness called by the prosecution to testify is Lee Police Officer William Tierney. The prosecution wants to know from Officer Tierney what items were seized as evidence by him (2-199; 5-12):
- Q. Did you in fact collect items of evidence?
- A. I collected five pieces of evidence. A pillow, pillow case, a comforter, a blanket, and a bed sheet.
- Q. Now the pillow, did it appear to have blood on it?
The questioning of the next witness Lee Police Officer Phillip Skowron (he and EMT Charles Spirydowki were the first to respond to the crime scene) follows up on the pillow (2-249; 18-23 and 2-250; 1-2).
- A. Nope, just the spots on the comforter. I did notice the pillow was heavily saturated with blood in two distinct spots, and the center of the pillow had like a whiter line on it, like a white line down the side, and I - -).
- Q. And this pillow, when you saw it, where was it?
- A. That was on the floor. I believe it was placed there by the EMTs.
On the 3rd day the prosecutor begins to show Officer Skowron specific photo’s of the pillow case and gets into details of what he (Skowron) observed about the blood patterns on the pillow (3-26; 1-9).
- Q. Now Officer Skowron, in the photographs Exhibits 23, 24 and 25 (these photos are being shown to each jury member as this line of questioning is being conducted) there is a pillow shown on the bed.
- Q. Did you notice another pillow?
- Q. Where did you first see it?
- Q. What in particular did you note about the condition of the pillow, particularly the pillow case?
- A. It was heavily saturated with blood in two distinct areas, and it had like a white center line down the muddle of it.
- Q. When you say “whiter center line” what do you mean?
- A. There was no - - appeared to be less blood in that area.
- Q. I’m going to show you this photograph; do you recognize what’s shown here?
- Q. And what does that show?
- A. That is the pillow I’m referring to.
Another picture (Exhibit 26 was being shown to each jury member as this line of questioning was being conducted) is of the pillow with the blood stain (Exhibit 26) (3-27; 1-17).
- Q. In that photograph, does that photograph of the pillow display the blood pattern that you have just described to members of the jury?
- Q. And is that how the pillow looked when you saw it that morning?
Day 4 and Mass. State Police Lt. Brian O’Hara is on the stand being questioned by the prosecutor (4-263; 14-15).
- Q. Now was a particular item submitted to you, a pillow and pillow case?
After many pages of testimony regarding the pillow and pillow case, there was an objection by Mr. Skinner (one of Michael’s defense lawyers) regarding the prosecutor’s line of questioning pertaining to Lt. O’Hara’s expertise of what he saw on the pillow case. Questioning continues after a sidebar conversation with the judge (4-272; 12-23).
- Q. Now as part of your (Lt. O’Hara) analysis of the pillow and the pillow case was it primarily the pillow case that you focused on?
- Q. Did you take photographs of the case?
- Q. I’m going to show you this photograph. Do you recognize it?
- Q. Is that an enlargement (2’ X 3’) of one of the photographs that you took of the case?
The jurors are looking at a 2’ X 3’ photo and the judge says to make sure they (jury) know what Lt. O’Hara is talking about (Exhibit 54, 55) (4-276; 18-23).
- The Judge: Make sure all the jurors, can see it, please.
- Lt. O’Hara: Want me to step - -
Why wasn’t there an objection to Lt. O’Hara being able to walk back and forth in front of the jurors holding a 2’ X 3’ photo and pointing out the blood stain of the hand print? Then Lt. O’Hara starts to explain with a ruler in the picture what he believes to be the size of a man’s right hand. The prosecutor and Lt. O’Hara discuss how the hand is positioned in the picture. This whole process was very time consuming and had the jurors captivated by the hand print in the picture (4-277-1-23).
The prosecutor then introduces a “close up view” of just the hand print and asks Lt. O’Hara the following question (4-278; 1-23).
- Q. Using Exhibit 56 now the more close-up view, could you show the jury again what you are describing as the transfer of the right hand.
Lt. O’Hara continues walking back and forth in front of the jury’s bench now holding a blowup 2’ X 3’ close-up view (exhibit 56) and is told to explain in detail the entire specifics of the handprint in the picture (4-279; 1-15).
Now comes the interesting part. Instead of the jury hearing whose handprint and why it must be Michael O’Laughlin’s handprint the prosecutor completely changes the subject focusing on a fingerprint analysis and then says “No further questions your honor.” He never asks the question of Lt. O’Hara if that handprint was Michael O’Laughlin’s. Why not? What did the prosecutor know? Was he afraid of the answer? Was it enough for the prosecutor to just infer that the handprint was Michael’s?
Now let’s side step for a moment and focus on the cross examination of Chemist Edward Bernstine on Day 7 by Michael’s lawyer (7-149; 2-8 & 7-150-1-8).
- Q. Okay, let’s deal with the right hand. The right hand swab tested negative for the presence of blood.
- A. I don’t believe I tested it.
- Q. Okay, you weren’t able to visualize anything on it?
- A. I had no visual indication of stains, no.
There was no visual indication of stains on Michael’s right hand. If Michael was the person that left the handprint on the pillow how was it that the Michael’s right hand tested negative for occult blood.
On Day 8 Dt. Lt. Richard Smith, the lead detective on the case is being questioned by the prosecutor about the pillow.
- Q. Now, among the items that were seized as evidence in this case, did you have opportunity to examine a pillow and pillow case?
The prosecutor then reintroduces both sides of the enlarged photographs of the pillow case (exhibits 54 and 55). The prosecutor then asks Lt. Smith to hold up Exhibit 54, the 2’ X 3’ photo, and show the members of the jury the stain which is the right handprint (8-81; 10-15).
- Q. And in looking ay in particular the void in the middle of the – in between the two stains – at least as shown in the photograph, exhibit 55 on that pillow case what if anything did you note about it?
- A. I noted what I would characterize as a silhouette.
- Q. Okay what kind of silhouette?
- A. The silhouette of a human head, neck and shoulders.
What the prosecutor is trying to show by this line of questioning is that on one side of the pillow case (exhibit 54) is the bloody handprint and the other side of the pillow (exhibit 55) is a silhouette of the victim’s head, neck and shoulders. At this point Michael’s lawyer objects to this line of questioning. But is this objection too late? Has the prosecutor already got the point across he wants to make to the jury?
During a sidebar the following conversation takes place (8-83; 12-19):
- Prosecutor: I’ll also tell the court what I’m going to ask him to. If you can see on the blow-up I have a piece of clear plastic over it, to have him just take a marker and show the silhouette that he’s talking about just to show that to the members of the jury.
- Judge: What do you mean by show the silhouette to the jury? I don’t understand.
It is becoming very clear how important the pillow case and the handprint on the pillow case are to the prosecutor’s case. This was demonstrated by the blowing up of the photograph to a one to one enlargement; the lamination of the photo; and bringing in an easel to put in front of the jury while he questions Lt. Smith.
After conclusion of the sidebar conversation the prosecution continues his questioning of Lt. Smith (8-86; 6-22).
- Q. I’m going to show you this photograph and ask if you recognize it.
- A. Yes is almost a one on one photograph of the pillow.
- Q. When you say “one on one” what are you referring to?
- A. The dimensions and size of the pillow.
- Q. And it’s the same pillow as shown in exhibit 55 that I’m holding up now?
This photo the prosecutor and Lt. Smith are talking about becomes Exhibit 82. After the sidebar conferences regarding this pillow case and all the phrases that had to be stricken from the record this photo sits on an easel right in front of the jury.
Lt. Smith tries to make one last comment to remind the jury what he is tracing (8-87; 9-18).
- Q. Just for purposes of clarification, Lieutenant, would you point out to the members of the jury the area of the pattern that you saw.
- A. Well, starting with the left shoulder - -.
- Q. Just trace what it is, the pattern you’re talking.
- Defense consul: Objection.
- Judge: Yeah, The testimony about the left shoulder is stricken the jury is going to disregard it. Just trace what you see, Lieutenant, please.
At the conclusion of the Commonwealth’s case Michael’s lawyer files a motion for a required finding of not guilty. He states there is insufficient evidence on the element of a break-in. Using the Lattamore standard he states there isn’t any evidence that any rational fact-finder could beyond a reasonable doubt in the light most favorable to the Commonwealth that there was a break-in. After the Commonwealth responds to this motion the judge states: “And plus there’s evidence of the blood on the pillow and so which at least the jury could infer that the beating started when she (victim) was in bed. (8-89; 12-26 – 8-102; 1-16). The judge dismissed the motion. Sure seems like the judge felt the inference the prosecutor presented about the bloody pillow and pillow case during evidence was important to the jury.
Everything presented by the prosecution and defense during trial is considered evidence. Opening and closing statements are not considered evidence and should not be construed as evidence. It is very important for prosecutors (and defense consul) to be careful what they tell the jury in opening and closing statements because it could influence the jury’s decision for the verdict. Closing statements must be based on fact and refer to evidence that was heard during trial. That is why the following statement made by the prosecutor is considered very harmful and may have played a significant role in influencing the verdict rendered by the jury.
- Prosecutor: And then he (Michael O’Laughlin) does one other thing. As you heard from that evidence, lying there curled, with her hands like this he took that pillow and with his right hand pushed it down on top of her (Annemarie Kowtoski) the final thing that was done. And when all those sounds were over, when she lay muffled underneath that pillow. . .” (9-74; 18-23).
That statement was palpable error. It was palpable error because there was absolutely NO evidence introduced during trial that stated Michael O’Laughlin was the person that took that pillow and pushed it down on top of the victim. There was NO evidence produced or stated that ever said the handprint on the pillow case was Michael O’Laughlin’s. There was much inference made that it was Michael’s handprint but NO proof or statement that it was Michael’s handprint.
So what could the jury conclude from the prosecutor’s statement? They could conclude that they didn’t remember him (prosecutor) say during trial it was Michael O’Laughlin’s handprint on the pillow case and disregard the statement. OR they could conclude to believe the District Attorney for the Commonwealth of Massachusetts is telling the truth, and that it was Michael O’Laughlin that took that pillow and pushed it down on top of the victim. For the jurors to not believe the prosecutor’s statement would mean they believed he lied. How many jurors believe prosecutors lie?
To recap let’s look at sixteen questions (16) relative to the pillow, the pillow case and the bloody handprint:
- 1. Does the prosecution usually introduce eight photo’s and exhibits and enlarge four of them to poster size and then laminate one of them if they don’t think the pillow, pillow case and handprint is an important part of their case?
- 2. If the evidence concerning the pillow is so important why didn’t the prosecutor call EMT Charles Spirydowski, the first person on the scene, to testify what he did with the pillow and how he found the victim when he arrived on the scene? Why did the prosecutor choose to call EMT Kevin Palmer and ask him what he saw Charles Spirydowski do with the pillow?
- 3. Better yet, why didn’t the prosecutor ask Jim Finn, the victim’s boyfriend and the person that discovered the victim, how she was when he found her and if he saw a pillow over her face or around her head or if it was even on the floor? When the prosecutor asked Jim Finn what he saw when he found her during trial? Mr. Finn answered very clearly that she was lying on the floor with blood everywhere. Mr. Finn never said she was curled up” nor did he mention anything about her being smothered or pillows on the floor or anything about noticing pillows for that matter (2-130; 18-23 & 2-131; 1-23).
- 4. During trial Mr. Finn said that while waiting for the EMTs to arrive he left the door open and the victim became cold so he put a blanket over her. Did he also put a pillow under her head when putting the blanket on her?
- 5. If the prosecution knew that the handprint wasn’t Michael O’Laughlin’s didn’t they care whose print it was?
- 6. If Michael had that much blood on his hand during the crime why wasn’t there any blood on the door or his clothes or his shoes or his apartment?
- 7. Why didn’t Michael test positive for blood on his right hand if he supposedly left a bloody handprint on the pillow?
- 8. How come with all the pieces of evidence being tested for DNA the police/prosecution didn’t test the blondish/brown hair found clutched in the victim’s hand? Was it because Michael’s hair is black?
- 9. Could testing the hair possibly have lead to the person who left the handprint?
- 10. There is a report by Lt. O’Hara concerning his findings about the handprint. Why is this report missing from Michael’s discovery?
- 11. How come the first EMT, Charles Spirydowski, never mentioned seeing a bloody handprint on the pillow when he moved it?
- 12. How come Lee Police Officers Tierney and Skowron, the first police officers on the scene, didn’t notice the bloody handprint?
- 13. Why didn’t the prosecutor or lead detective ask any of those people (EMTs and Lee Police Officers) if they grabbed the pillow?
- 14. Would the prosecution and lead detective of the Commonwealth of Massachusetts fabricate evidence so they could convict an innocent man? Sadly it’s been done before.
- 15. Is there that much pressure on the Commonwealth of Massachusetts to convict someone no matter what the cost?
- 16. If for some reason the prosecution thinks Michael O’Laughlin is really guilty, where is the evidence that has them so assuredly convinced?
And finally one last question. Does the following sound like a statement from someone (prosecutor) who is sure he is convicting the right man?
- “There will be no bloody fingerprint identifying the defendant as the one who committed that or other forensic evidence directly linking him to that crime. The case that the Commonwealth will present to you, ladies and gentlemen, through all of these witnesses, their testimony, the exhibits they will identify and all of the evidence in this case, will be circumstantial.”
Opening statement to the jury
(2-44; 1-6)
In conclusion Michael O’Laughlin would very much like his handprint compared to the handprint in the photos the prosecution exhibited at his trial (something that should have been done by defense consul before trial). Michael is extremely confident in what the results will show. He’s confident because he knows the bloody handprint on that pillow case is not his.
