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Massachusetts Supreme Judicial Court Upholds Conviction of Hitman in Newton Murder

The Massachusetts Supreme Judicial Court yesterday affirmed the murder conviction of a defendant who was paid to gun down a man in Newton.  The name of the case is Commonwealth v. Foxworth.

A man named James Brescia was having problems in his marriage and learned his wife was seeing an old boyfriend.  Brescia made vague threats regarding the boyfriend’s safety, and his wife filed for divorce.  Brescia’s coworker told him about the defendant, who had a history of violence.  Brescia hired the defendant and paid him $5,000 to beat up the wife’s boyfriend.  Some time later, Brescia decided he wanted the boyfriend dead and offered the defendant an extra $5,000 to kill the boyfriend.  The defendant conducted surveillance on the boyfriend and ultimately shot him in the head on January 13, 2006.  The boyfriend died from the gunshot wound.

The defendant was arrested and charged with murder.  He was held without bail until his trial, and was in custody at the Old Colony Correctional Center in Bridgewater.  For six to eight months, he was cellmates with another inmate who was facing serious state charges in Massachusetts and federal charges in Maine.  While still in custody, the cellmate sent a letter to the prosecutor assigned to the defendant’s case and said the defendant had told him information about his murder case.  Two state police sergeants interviewed the cellmate (with the cellmate’s attorney present) but explicitly told him he was not an agent of the police.  The cellmate told the sergeants at the end of the meeting that he wanted to be treated favorably in his pending Suffolk County case.

About seven months later the cellmate was again interviewed, this time by the assistant district attorney prosecuting the defendant’s case and a state trooper.  The assistant district attorney told the cellmate she could not make any promises to him regarding favorable treatment and reminded him he was not acting on behalf of the Commonwealth.  The prosecutor also told him not to ask the defendant any more questions about his case.  The cellmate told the prosecutor he hoped the information he provided would help him out, and the prosecutor said she would discuss the matter with the decision makers at the Middlesex District Attorney’s Office.

A few months later, the cellmate pled guilty to a case from Barnstable County and was sentenced to prison.  He also was indicted by a federal grand jury in Maine.  Meanwhile, the police were able to corroborate the information the cellmate provided about the defendant’s case.  Thereafter, the cellmate’s Massachusetts prison sentence was reduced, his bail on another Massachusetts case was wiped out, and he was sent to Maine to answer to the federal charges.

The defendant filed a pretrial motion to suppress the statements he made to the cellmate, and a superior court judge denied his motion.  The defendant was then convicted of murder and appealed.  His primary argument on appeal was that the judge erroneously denied his motion to suppress his statements.

The federal and state constitutions guarantee a criminal defendant has the right to an attorney.  The police, or any other agent of the government, may not question a defendant without the presence of defense counsel.  In this case, the defendant argued that his cellmate was acting as a government agent when he obtained information about the murder to pass along to the prosecutor.  Civilians can act as agents of the government if they question a defendant in exchange for money, or in exchange for a promise of leniency in unrelated criminal proceedings.  The Supreme Judicial Court held here that the cellmate was not an agent of the government.  The police and the prosecutor repeatedly told the cellmate that no promises were being made and no agreements were being entered into.  Further, the cellmate was informed that he had no authority to act on behalf of the Commonwealth.  Under these circumstances, the cellmate was not a government agent, and it was proper for the trial judge to allow the cellmate to testify about the defendant’s statements to him.

This case illustrates an important point about defendants talking about their cases.  Someone who is charged with a crime should never, ever talk about the facts of the case with anyone other than a criminal defense attorney.  It’s especially foolish to talk about a case in jail, where every other inmate is a potential snitch.

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