The defense suffered a major setback this week in the murder retrial of Darrell Jones.
Jones' conviction in the 1985 shooting death of Guillermo Rodriguez was overturned in 2017 after he served more than three decades in prison. Jones will be tried again next month.
Plymouth Superior Court Judge Cornelius Moriarty ruled three eyewitnesses testifying in a pretrial hearing on Monday and Tuesday were not telling the truth about what they saw 34 years ago. The judge's finding means their prior sworn testimony can be used in court when Jones is retried.
Jones' defense team wanted to exclude the eyewitnesses' 1985 grand jury and trial testimony from being presented at the new trial. Without it, prosecutors faced a weak case. They would have had to rely on new testimony from the eyewitnesses who repeatedly told Judge Moriarty they could not recall specific details of what they saw and said at the murder scene in a Brockton parking lot.
From the very start of the police investigation in 1985, the eyewitnesses' stories were confusing and contradictory.
Now, the same eyewitnesses sat before a judge on Monday and Tuesday and repeatedly said they could not recall events that happened three decades ago. Judge Moriarty determined two were feigning lack of memory and found that one — Edna Duquette — was deliberately testifying falsely.
Defense attorney Paul Rudof tried several times to show that human memories are malleable. In his cross-examination of the Brockton detective who located and interviewed the three witnesses after more than three decades, Rudof asked why the detective had to use her notes for something that happened less than two years ago.
Rudof also cited scientific evidence that memories — even those of dramatic events — are quickly forgotten. In one study of the O. J. Simpson murder trial, Rudof said scientists found after 15 months that 50% of the people sampled could not accurately recall where they were when they heard the verdict, and after 32 months, only 29% could accurately remember.
Judge Moriarty, however, rejected that argument, saying that people would remember something as dramatic as a murder.
Lisa Pina, now 55, testified in the pretrial hearing that she could not recall seeing the shooting or the specific details that she had previously testified. Pina said now-retired Brockton Detective Joseph Smith had badgered her into identifying Jones from an array of photos.
Terie Lynn Starks said she could not even recall her age when asked by the prosecutor. When prompted she calculated her age as 54. She had been high on crack cocaine and drunk the night of the murder, she said, and was being treated for depression, anxiety and post-traumatic stress disorder. Starks said she could not remember her testimony from the 1986 trial or during an evidentiary hearing in November 2018.
During the pretrial hearing Tuesday, Starks' responses to prosecutor Jessica Kenny's questions were a litany of, "I don't remember, I don't recall. Truly, honest to God, I don't know."
Starks testified Brockton police had arrested her in Methuen on outstanding prostitution warrants after the murder and held her in Brockton without bail in order to get her to identify a photo of Darrell Jones. Jones had already been arrested and his picture had been in the local newspaper.
A videotape of her interrogation by Brockton police was ruled inadmissible in Jones' new trial. Scientific evidence in 2017 found jurors in 1986 had viewed a copy that had been deliberately altered by police. Smith, the Brockton detective, was found to have lied about the tape in the original trial and at the hearing two years ago.
Prosecutors plan to call Smith, now living in Florida, to the stand during the retrial. The detective's name also came up during the questioning of eyewitness Duquette.
Duquette testified that Smith had threatened her with prison and said he'd take away her infant son if she did not identify a photo of Jones he showed her in a display.
During Monday's pretrial hearing, Duquette's memory was better than either Pina's or Starks'. But Judge Moriarty found she was "deliberately testifying falsely." He said Duquette was not telling the truth when she testified she had not seen Darrell Jones that evening of the murder in a bar near the crime scene.
Moriarty admonished all three eyewitnesses set to be called to Jones' retrial.
"Perjury in a murder case is a serious offense and something this court does not take lightly," Moriarty said.
He assigned each of the eyewitnesses court-appointed attorneys to advise them on their testimony when the retrial starts June 3.