Ely v. Matesanz (983 F. Supp. 21, 1997)

ORDER ON REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

LINDSAY, District Judge.

Before the court are the petition of Arnold Ely, pursuant to 28 U.S.C. § 2254, for the issuance of a writ of habeas corpus and a motion of the respondent, James Matesanz in opposition to and to dismiss the petition. These matters were referred to Magistrate Judge Zachary R. Karol for an evidentiary hearing and for a report and recommendation to this court as to the disposition of the petition.

In September 1980, Ely was convicted in a Massachusetts state court of murder in the first degree, assault with intent to commit murder, and arson. In his petition to this court, he has articulated four grounds in support of his petition: (1) the prosecutor in his criminal trial suppressed exculpatory evidence (specifically, a plea agreement between the Commonwealth and the primary witness, co-defendant, David Gosselin); (2) the prosecutor failed to correct false testimony of Gosselin that Gosselin (who named Ely as the architect and artisan of the crimes) was not testifying pursuant to the plea agreement; (3) the prosecutor used Gosselin’s false testimony to the advantage of the Commonwealth in his closing argument; and (4) the prosecutor’s failure to disclose the plea agreement effectively denied Ely his Sixth Amendment right to confront and cross-examine witnesses against him.

Judge Karol recommended that the respondent’s motion to dismiss be denied, and that the writ issue, unless the Commonwealth grants a new trial to Ely within ninety days of the acceptance by this court of the magistrate judge’s report and recommendation. I agree with Judge Karol’s well-reasoned analysis of the issues raised by the petition and accordingly accept his report and recommendation. Therefore, the writ shall issue unless the Commonwealth grants Ely a new trial within ninety days of this order.

SO ORDERED.

(1) REPORT AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS AND OPPOSITION TO PETITION (DOCKET NO. 39) AND (2) PROPOSED FINDINGS OF FACT AND RECOMMENDATION FOR DISPOSITION PURSUANT TO RULE 8(b)(1)

KAROL, United States Magistrate Judge.

I. OVERVIEW

In September 1980, petitioner, Arnold Ely (“Ely”), was convicted by a jury in Essex County, Massachusetts of first degree murder and related offenses. Since then, he has been serving a mandatory life sentence without the possibility of parole. His primary defense at trial was that the crime had been committed by his former co-defendant (and the only other eyewitness), David Gosselin (“Gosselin”). Ely’s conviction was affirmed by the Massachusetts Supreme Judicial Court (“SJC”) in January 1983. See Commonwealth v. Ely, 388 Mass. 69, 444 N.E.2d 1276 (1983).

In October 1984, Ely filed the first of several state court'motions seeking collateral review of his conviction. His primary arguments were that: (1) newly discovered information strongly suggested that the prosecutor and Gosselin had entered into ah undisclosed plea agreement pursuant to which Gosselin had agreed to testify against Ely in exchange for a lenient juvenile sentence, and (2) assuming that a plea agreement existed, the prosecutor violated his Constitutional obligation by: (a) failing to speak up and correct the record when Gosselin, upon being cross-examined under oath at trial, falsely denied that such agreement existed, and (b) arguing to the jury, based on Gosselin’s perjured testimony, that Gosselin had no reason to he about Ely’s commission of the crime. The Superior Court denied the motion without a hearing (and, apparently, before any opposition had been filed) on the ground that Ely lacked sufficient evidence to support his belief that a plea agreement in fact existed. Ely sought reconsideration. This time the Commonwealth filed an opposition, arguing primarily that no such agreement existed and going so far as to suggest that Ely’s belief to the contrary was delusional. In June 1986, the Superior Court denied the motion for reconsideration on the ground, that Ely did not have sufficient admissible evidence of an agreement to warrant holding an evidentiary hearing on the matter.

In 1990, Ely filed another motion for reconsideration on the basis of additional newly discovered evidence. The Superior Court treated the motion as one for leave to appeal the 1986 denial of the motion for new trial and, in accordance with state law, referred the matter to a Single Justice of the SJC for consideration. Again, the Commonwealth opposed, on the ground, inter alia, that there was insufficient proof of any agreement. In June 1993, following a non-evidentiary hearing at which the Single Justice expressed doubt about the sufficiency of Ely’s hearsay and circumstantial evidence that an agreement existed, the Single Justice denied Ely’s motion for leave'to appeal.

In May 1994, Ely’s case took a dramatic turn. Ely succeeded in obtaining a copy of a hand-written plea agreement dated October 31, 1979, between Gosselin’s former counsel and the prosecutor. No doubt feeling vindicated, Ely filed another motion for new trial in Superior Court, to which he attached a copy of the newly discovered plea agreement. Despite this startling and compelling new evidence, the Commonwealth again successfully opposed on the fallacious ground that Ely was simply rehashing arguments heard and rejected numerous times before. In August 1994, a Single Justice of the SJC, without comment, denied Ely’s motion for leave to appeal the Superior Court’s denial of Ely’s latest motion for new trial.

In February 1995, Ely filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He again claimed that the prosecutor had suppressed a plea agreement with Gosselin and had relied upon, rather than exposed, Gosselin’s perjury. In its response, the Commonwealth, having virtually ridiculed in state court filings for more than a decade Ely’s unconfirmed suspicion that an agreement existed, conceded for the first time that Ely had been right all along. Not only did it concede the existence of the plea agreement, but it made the astonishing claim that the prosecutor had in fact disclosed, and all parties had always known about, it. (Def.’s Mem. Law Supp. Mot. Dismiss and in Opp. to Pet. at 17, Docket no. 44.) It moved to dismiss the petition on this basis and on the equally bizarre ground that Ely procedurally defaulted because he made a deliberate “strategic decision”: (1) not to object at trial to Gosselin’s perjured testimony, (2) not to use the plea agreement at trial to impeach Gosselin, and (3) not to raise on direct appeal the prosecutor’s suppression of. exculpatory evidence and breach of duty to disclose Gosselin’s perjury. (Id. at 31.) It also makes a strained argument that Gosselin “was not the Commonwealth’s ‘key witness’,” (id. at 41); that the plea agreement was not material; that Ely, for all his effort, failed to exhaust state law remedies; and that the prosecutor had no duty to expose Gosselin’s perjury because: (1) if there was any perjury, the defense was equally aware of it, and (2) while Gosselin’s testimony was literally false, it was not, under the prosecutor’s subjective interpretation of it, substantively false.

As set- forth in greater detail below, I conclude on the basis of the evidence presented at a lengthy evidentiary hearing that the plea agreement (the existence of which is no longer disputed) was in fact suppressed; that the prosecutor violated his constitutional obligation to expose and not rely upon Gosselin’s perjury (or at least false testimony); that the suppression of the agreement and Gosselin’s false denial of its existence were material and not harmless; and that there was no procedural default or failure by Ely to exhaust state remedies. I therefore recommend that the Commonwealth’s motion to dismiss be DENIED and that Ely’s petition be GRANTED.

II. BACKGROUND AND PRIOR PROCEEDINGS

In the summer of 1977, Ely, age 16, and Gosselin, age 15 were foster children living in the Newburyport home of Albert Schrempf. Schrempfs two natural children, Alan, age 17, and David, age 13, also lived in the house. On September 14, 1977, a flash fire at the Schrempf home killed Alan and left David in a coma from which he has not recovered. A neighbor testified at trial that, two weeks prior to the fire, she heard Ely, in Gosselin’s presence, arguing with David Schrempf and threatening to kill him and his brother Alan by locking them in their rooms and burning the house down.

Twelve days after the fire, Gosselin’s friend, Robert Tremblay (“Tremblay”), gave a written statement to the police. (Statement of Tremblay, E.H. Ex. 16.) Tremblay said that on the day following the fire Gosselin had told him that Gosselin and Ely had spread gasoline in the house and on the porch and that Gosselin had actually lit the match that ignited the gasoline, after Ely had unsuccessfully attempted to do so. Gosselin’s motive, according to Tremblay’s account of Gosselin’s confession, was that Gosselin believed David Schrempf had stolen $90.00 from him. Gosselin also allegedly told Tremblay that he had only intended to scare David Schrempf, not to harm him.

No one was charged with the crime until September 1979, apparently because it was not until then that the police gave up any hope that they would be able to interview the still-unconscious David Schrempf. On September 15, 1979, the police arrested Gosselin and charged him with delinquency by reason of murder and arson. On that same day, Gosselin gave a written statement to the police in the presence of Assistant District Attorney Patrick Riley (“Riley”), who would later prosecute the case against Ely. Gosselin would admit only that he was present when the fire started. He claimed that Ely and only Ely had spread the gasoline and lit the match. The next day, again in the presence of the police and Riley, Gosselin gave an expanded statement in which he again accused Ely of spreading the gasoline and lighting the fire. Even after he was confronted with Tremblay’s statement, Gosselin specifically denied that he had lit any matches himself, that he had told Tremblay that he had done so, or even that he had spoken at all to Tremblay about the fire. He also said he could not recall any incident prior to the fire at which Ely had threatened, in Gosselin’s presence, to burn down the Schrempf home with Alan and David Sehrempf locked inside. On the strength of Gosselin’s statement, Ely was arrested on September 20, 1979, and, like Gosselin, charged with delinquency by reason of murder and arson.

Separate state court hearings, sometimes referred to as transfer hearings, were scheduled for Gosselin and Ely to determine if probable cause existed and whether their cases should be transferred from Juvenile to Superior Court. Gosselin’s hearing commenced first, on October 3, 1979. (Gosselin Transfer Hearing Tr. of 10/3/79, E.H. Ex. 8.) Pursuant to state law, these transfer hearings were closed to outsiders, with the result that Ely and his counsel were excluded from Gosselin’s hearing. The first day of Gosselin’s hearing concerned the issue of probable cause. Riley stated on the record, in the presence of Gosselin and Gosselin’s counsel, that he had personally interviewed Tremblay in Maine and that Tremblay had expressed a willingness to testify against Gosselin. (Id. at 20-21.) He also elicited testimony from a police investigator to the effect that Tremblay had provided evidence that Gosselin, despite his denials, “was involved in the actual lighting of that fire on the 14th day of September, 1977.” (Id. at 40.) At the conclusion of the first day of the hearing, the court found probable cause. (Id. at 48.)

The second day of Gosselin’s transfer hearing, to determine if Gosselin should be tried as an adult in Superior Court for murder and arson, was scheduled to begin on October 26, 1979. Between the end of the first day’s hearing at which probable cause had been found and the beginning of the second day’s hearing, Riley and Gosselin’s counsel, Albert S. Previte (“Previte”), engaged in plea negotiations. The substance of their discussion was that Riley would agree to recommend juvenile treatment for Gosselin if: (1) Gosselin cooperated in the prosecution of the case against Ely; and (2) a suitable treatment program for Gosselin could be arranged through the Department of Youth Services (“DYS”). In furtherance of this objective, Previte and Riley met with DYS representatives on October 17, 1979, to discuss possible treatment options. (Letter from DYS to Riley of 11/26/79, at 1, E.H. Ex. 6; Gosselin Transfer Hearing Tr. of 10/26/79, at 33-35, E.H. Ex. 7.) There was no resolution at the time of their-meeting with DYS, but the DYS representatives agreed to continue to explore options in the hope that they would be able to devise a program satisfactory to Riley.

This is where matters stood when Gosselin’s transfer hearing resumed in state District Court on October 26,1979, again outside of the presence of Ely and Ely’s counsel. At the hearing, Riley, Previte, and DYS, in Gosselin’s presence, alerted the judge to the likelihood that there would be a plea agreement, but they also called to his attention a potential snag. The snag was that Gosselin was approximately one month from turning 18 and, once he turned 18, DYS could no longer retain him in custody pursuant to a District Court order. (Gosselin Transfer Hearing Tr. of 10/26/79, at 28-29; 31-32.) If, however, Gosselin’s case were transferred to Superior Court, the Superior Court would have authority under state law to order that Gosselin be retained in DYS -custody until he turned 21, provided that Gosselin pleaded guilty in Superior Court and were sentenced before he turned 18. This presented Previte and Gosselin with a dilemma. If they continued to resist transfer to Superior Court, they faced the risk that, by the time DYS had formulated a treatment program satisfactory to Riley, Gosselin would have turned 18 and it would be too late for the Superior Court to implement a plea agreement whereby Gosselin would remain in DYS custody until the age of 21. On the other hand, if they agreed to waive their opposition to transfer of the case to Superior Court, they faced the risk that DYS would not be able to formulate a program satisfactory to Riley in the limited time available and there would be no plea agreement, leaving Gosselin to face trial as an adult in Superior Court for murder and arson.

In Gosselin’s presence, Previte acknowledged his dilemma to the District Court judge and agreed to waive transfer to Superior Court. (Id. at 35-36.) He did so expressly based upon his “tentative agreement with the district attorney’s office” and “on assurance from the district attorney’s office and from the [DYS] staffing counsel and knowing Mr. Riley and "Ms office will keep their word they gave me.” (Id.) Riley responded by stating that he wanted to make it “quite clear” that “we are not saying that we agree to treat [Gosselin] as a juvenile in the Superior Court and send him to DYS without some definitive plan of program.” (Id. at 37.) Despite such reservation about the prospects oí juvenile treatment, however, Riley went on to say that, with respect to the prospects of lenient treatment generally, he had:

assured Mr. Previte ... and DYS that the Commonwealth will make every reasonable effort to look at that proposed treatment plan in depth, and I have assured that Mr. Previte, because of the plea negotiations and, primarily, based on the cooperation of the defendant and the expected cooperation of the defendant, that something can and will be worked out in the Superior Court.

(Id. at 38) (emphasis added). Riley went on to state, with respect'to the extreme time pressure everyone was facing:

I can tell the Court without any hesitation that we have been [sic] one month to accomplish all the things that the defense wants to accomplish, and as I stated before, if things are as they appear to be, visa-vis the cooperativeness of this defendant, the Commonwealth will have this case indicted and disposed of before the 18th birthday.

(Id. at 48-49) (emphasis added). Mr. Previte then responded, “I think we have reached a tentative agreement.” (Id.) (emphasis added). Discussion then turned to the logistics of obtaining an indictment in time to dispose of the case in Superior Court before Gosselin’s 18th birthday. (Id. at 49-50.) All of this colloquy transpired in Gosselin’s presence at a hearing from which Ely and his counsel were excluded. None of it was disclosed to Ely or his counsel until the evidentiary hearing was underway in this court, some sixteen years later, on the Commonwealth’s motion to dismiss Ely’s habeas petition.

Ely’s transfer hearing, which had commenced before a different District Court judge on October 24,1979, resumed on October 31, 1979, or five days after the foregoing colloquy had taken place at Gosselin’s transfer hearing. Gosselin testified as the principal witness against Ely. He was asked the following question by Riley: “Have any promises been made by myself or the Newburyport Police Department or anyone from D.Y.S. or anything; have any promises been made to you about your testimony?” to which Gosselin responded “No.” (2 Ely Transfer Hearing Tr. at 44.) Ely’s court-appointed attorney, Richard G. Shalhoub (“Shalhoub”), then asked Gosselin the following question: “Did Mr. Previte tell you that he had a deal worked out with the District Attorney if you testified?” to which Gosselin responded “No.” (Id. at 44-45.) Gosselin further responded “No,” when Shalhoub asked: “By your testifying here today do you expect that Mr. Riley here is going to help you out on disposition of this case in some way?” (id. at 135), and Gosselin went on to deny knowing “that Mr. Riley can recommend that you be treated as a juvenile,” (id. at 137). In response to the question “what do you think is going to happen to you as a result of your testifying here today?” Gosselin testified, “I don’t know.” (Id. at 141.) Also, when Shalhoub asked if he knew whether his lawyer and Riley “had worked out a deal,” or whether anyone had told him “that they had worked out a deal,” Gosselin’s response was “No.” (Id. at 174-75.)

At no time during Ely’s transfer hearing on October 31 did Riley disclose that, five days earlier, he had “assured” Previte, in Gosselin’s presence, “primarily based on the cooperation of the defendant and the expected cooperation of the defendant, that something can and will be worked out in the Superior Court.” (Gosselin Transfer Hearing Tr. of 10/26/79, at 38.) Nor did Riley disclose that, five days earlier, in Gosselin’s presence, he had told the District Court judge that “if things are as they appear to be, vis-a-vis the eooperativeness of this defendant, the Commonwealth will have this case indicted and disposed of before the 18th birthday,” to which Mr. Previte had responded, in Gosselin’s presence, “I think we have reached a tentative agreement.” (Id. at 48-49.)

Immediately following Gosseliris testimony against Ely, apparently while Previte and Riley were still at the courthouse and before there had been any further word from DYS regarding the availability of suitable treatment programs for Gosselin, Riley wrote out a plea agreement in longhand. (Gosselin Plea Agreement, E.H. Ex. 1A.) The plea agreement, which is signed by Riley and Previte and dated October 31, 1979, states in its entirety:

It is agreed that the Essex Co. D.A.’s office will recommend the following disposition for the defendant, David Gosselin in exchange for a plea of guilty to Manslaughter and Arson.

1. that he be committed to the DYS up until the age of 21 years old, if and only if the following conditions are met. .

(a) that DYS formulate and’devise a program of treatment for the defendant satisfactory to the Essex County D.A.’s office with specific concern to the security factor in said program and the protection of the public

(b) that prior to the aforementioned recommendation, DYS shall have examinations and evaluations of the defendant completed by competent professionals and the results of said examinations support the type Of programs mentioned in paragraph (A)

(e) that the defendant D.G. testify in the case of Com. vs. Arnold Ely fully and truthfully in all proceedings, as needed

(d)-3 yrs Straight Probation from & after on Arson Charge

(2.) In the event that (1A & B) is not acceptable due to the conditions. re: DYS program & evaluation are not satisfactory to E.C.D.A.’s office then the , recommendation would be M.C.I.C. [Massachusetts Correctional Institution at Concord] 20 yrs on Manslaughter & Arson.

s/ s/

Albert S. Previte Patrick J. Riley

Atty for David Gosselin Asst’ D.A.

(Gosselin Plea Agreement.)

Because of the provisions of paragraph (2.), Gosselin was assured that, -even if DYS did not timely propose a program acceptable to Riley, Riley would still recommend that Gosselin receive only a relatively lenient 20 year sentence at MCI Concord in exchange for his “full[ ] and truthful[ ]” testimony against Ely. Thus, true to the assurances that Riley had given five days earlier at Gosselin’s own transfer hearing, and before Riley had any additional reason to believe that a satisfactory DYS program would be available, Riley and Previte were able to “work something out” in reliance on Gosseliris “expected cooperation,” but 'not until Gosselin had testified under oath against Ely and locked himself into a version of the facts that was satisfactory to Riley. Under these circumstances, Gosselin would know that, if his “full and truthful” testimony at trial deviated in any material respect from the testimony he had just given at the transfer hearing, he risked, at a minimum, being prosecuted for perjury, because his testimony at either the transfer hearing or at the trial would necessarily have been false.

The third day of Ely’s transfer hearing took place on November 20, 1979. Shalhoub did not recall Gosselin to testify, although he had reserved the right to do so. Toward the conclusion of the hearing, the District Court judge found probable cause with respect to murder, assault with intent to commit murder, and burning of a dwelling house. (3 Ely Transfer Hearing Tr. at 18-19.)

On November 29, 1979, a Superior Court judge accepted Gosselin’s plea of guilty to reduced charges of manslaughter and arson. At the plea colloquy, the judge, after hearing the sentence Riley was recommending and advising Gosselin of his rights, made the following statement:

We have you in our clutches for the next five or six years. If you mess up at all during that time the system will put you away for so long that you’ll be an old man by the time you get out — if you ever get out. Do you understand that?

(Gosselin Plea Tr. at 26.) Gosselin responded ‘Tes,” and reconfirmed his desire to plead guilty and his assertion that no one was putting any pressure on him to do so, at which point the court accepted his plea. (Id. at 26-27.) At no time during the course of the plea colloquy was it disclosed to the Superior Court judge (on the record, at least) that there was a plea agreement between the Commonwealth and Gosselin pursuant to which Gosselin was required to testify against Ely in exchange for the Commonwealth’s recommendation of leniency.

In early 1980, Ely was indicted and his case was transferred to Superior Court, where he was to be tried as an adult. .Ely retained private counsel, Paul F. O’Neill (“O’Neill”), to whom Shalhoub transferred the case file. (5 Evidentiary Hearing Tr. at 55-56.) The case was called for pre-trial conference on February 8, 1980. Riley and O’Neill signed a Pretrial Conference Report whereby Riley agreed to provide to O’Neill, on or before February 22,1980, “any facts of any exculpatory nature within the possession, custody or control of the prosecutor.” (Pretrial Conf. Rept. at 1,.Riley Aff. ¶ 9, E.H. Ex. 5.) It is undisputed that the Gosselin plea agreement was “exculpatory” both within the meaning of this agreement and, assuming materiality, as that term is used in the relevant case law. It is also undisputed that there is no written record confirming that Riley ever provided or disclosed the written plea agreement to O’Neill, to Shalhoub, or to Ely.

Ely’s trial commenced September 2, 1980. The Schrempfs neighbor testified that, two weeks before the fire, she had heard Ely, in Gosselin’s presence, threaten David Sehrempf that he, Ely, would bum down Schrempfs house with David and his brother Alan locked inside. (1 Ely Trial Tr. at 68-69.) She also testified that, approximately five minutes before she heard someone shout “Fire,” she saw Gosselin and Ely “jogging down the street” toward town. (3 Ely Trial Tr. at 312.) Aside from this testimony, there was no evidence linking Ely to the fire except Gosselin’s testimony. On the stand, Gosselin, among other things, refuted the neighbor’s testimony that he had been present during an argument between Ely and David Sehrempf two weeks (or at any other time) before the fire, (2 Ely Trial Tr. at 228-29), and claimed to have no recollection of any conversation with Tremblay about the fire, (id. at 233-34; 244-245). Gosselin further testified that Ely and Ely alone had spread the gasoline and ignited the fire, and that Ely had done so to retaliate against David Sehrempf because Sehrempf had stolen a letter to Ely from Ely’s girlfriend and had read the letter to Gosselin and others. (Id. at 211-215.)

Riley elicited from Gosselin the fact that he had pleaded guilty to manslaughter and arson and that he had been sentenced to detention at a juvenile facility. (Id. at 204-05.) He did not, however, elicit or otherwise disclose to the court or jury the fact that Gosselin had entered into a formal written plea agreement with the Commonwealth; that Gosselin had agreed, as a condition of receiving a lenient sentence, to testify in the case against Ely; or that, shortly before Gosselin was to testify at Ely’s transfer hearing, Riley had given his personal assurances in a closed court proceeding, in Gosselin’s presence, that a deal favorable to Gosselin could and would be worked out, assuming Gosselin provided the cooperation expected of him.

On cross examination, after eliciting the fact that Gosselin had pleaded guilty to manslaughter and arson, O’Neill attempted through various means to get Gosselin to admit that he had entered into and was testifying pursuant to a plea agreement under which he would receive a lenient juvenile sentence if he testified against Ely. First, O’Neill asked Gosselin if the Superior Court was treating him as an adult or as a juvenile. Gosselin testified, no doubt to O’Neill’s surprise, that he was being treated as an adult. (3 Ely Trial Tr. at 298-99.) O’Neill then asked: “Did you agree that if you pleaded guilty that you would go to the Department of Youth Services?” to which Gosselin falsely responded “No.” (Id. at 299.) O’Neill tried again; he asked, “Did you make these pleas of guilty on the stipulation that you would testify against Arnold Ely?” to which Gosselin first answered “No” and then immediately added, “I don’t understand.” (Id. at, 300.) O’Neill attempted to clarify by asking: “Did you as part of the agreement, did you plead guilty with the understanding that you would testify against Arnold Ely’?” (Id.) Gosselin responded, falsely, “No agreement was made.” (Id.) Then, after Gosselin testified that he had in fact told the authorities he was willing to testify against Ely, O’Neill asked, “I’m asking you now again, was that [i.e. Gosselin’s willingness to testify against Ely] part of the agreement?” and Gosselin falsely replied “No.” (Id.) O’Neill tried yet again to get Gosselin to admit that there was a plea agreement that included, as one of its conditions, that Gosselin testify against Ely. He asked, “It was not part of the agreement?” to which Gosselin again responded “No.” (Id.) Still unsatisfied with Gosselin’s responses, O’Neill tried yet another approach. He asked: “David, do you know why you were at the Department of Youth Services if you were being treated as an adult?” (Id. at 300-01.)' Riley objected and the court, having no doubt heard enough of this line of questioning, sustained the objection, stating twice, “Let’s get" off that.” (Id. at 301.) O’Neill did not confront or otherwise attempt to impeach Gosselin with the actual plea agreement, a copy of which the Common; wealth now contends was in his possession throughout this interrogation.

Riley, despite having signed a plea agreement with Gosselin less than" a year before, never spoke up to advise the court, the jury, or defense counsel that Gosselin’s testimony was false. Then, in his closing, Riley argued to the jury:

David Gosselin’s case, ladies and gentlemen, is over. Davey Gosselin has pled guilty. The trial that we’re here for. is Arnold Ely’s trial. The evidence that was presented to you by the Commonwealth through me is the evidence of'guilt against Arnold Ely, not against David Gosselin. Davey Gosselin played a role in that evidence, inasmuch as David Gosselin was a participant in that crime and an admitted participant. Hé told you what he observed Arnold Ely doing that night. If you take what counsel has suggested, that he has no axe to grind [i.e., with respect to his repudiation of the neighbor’s testimony that he was presént when Ely threatened David Sehrempf], if you take that as true, then why would he come in here after his case is over, after he’s been sentenced, why would he come in here and tell you that Arnold Ely did what he told you he did? What hats he got to gain by telling you anything but the truth?

(4 Ely Trial Tr. at 527-28) (emphasis added).

The only other witness on the issue of who started the fire was Ely himself. Ely testified, in substance, that, on the evening of the fire, Gosselin and David Sehrempf had been fighting about money; that he, Ely, had gone to the bathroom and, when he came out, he saw Gosselin spreading gasoline around the kitchen and porch; that he went outside just as Gosselin lit a match that ignited a fire that immediately engulfed the porch in flames; that he and Gosselin then ran away because they were scared; that, when they stopped running, Ely asked Gosselin why he did it, and Gosselin replied that “David owed him money and he didn’t pay him, and he was mad at him, and he lit the house on fire.” (Id. at 406-11.)

The jury, faced with the issue of whether to believe the squarely conflicting testimony of Gosselin or Ely, chose to believe Gosselin and convicted Ely on all charges. He was sentenced to a mandatory term of life imprisonment on the conviction for first degree murder and to a term of imprisonment for years on the other charges. His conviction was affirmed by the SJC on direct appeal. See Commonwealth v. Ely, 388 Mass. 69, 444 N.E.2d 1276 (1983). The appeal did not concern the question whether there had been a plea agreement or whether Gosselin had lied when he denied there was.

Ely filed a pro se motion in Superior Court for new trial pursuant to Mass. R. Cr. P. 30 in October 1984. (Mot. New Trial, Record Appendix at 21.) In it he presented all the claims he makes here with respect to the suppression of .the plea agreement and Riley’s failure to disclose and reliance upon Gosselin’s false testimony. Ely could not and did not cite any new evidence to support his belief that a plea agreement existed and had been suppressed, but he did file a memorandum in which he argued that, given the timing of Gosselin’s plea, “one would be hard-pressed to find that there was no promise and or an agreement made between David Gosselin and the.prosecutor.” .(Def.’s Mem. Law Supp. Mot. New Trial at 7, Record Appendix at 23.) He also filed an affidavit in which he stated “that the outstanding evidence that he needs to substantiate his claims in [sic] unattainable [sic] to him without an order by this court.” (Def.’s Aff. Supp. Mot. New Trial ¶ 8, Record Appendix at 24.) On December 13, 1984, before any opposition had been filed, the court denied Ely’s motion, “without prejudice,” on the ground that “the averments therein are merely conclusional in nature and do not set forth a single factual averment of any substance or consequence.” (Appendix B to Commonwealth’s Mem. Opp. Def.’s Mot. for Evid. Hearing and Mot. for Reconsideration of Mot. for New Trial, Supplemental Record Appendix, Tab C, Docket no. 88.)

On January 9, 1985, Ely, in compliance with state law, sought leave from a Single Justice of the SJC to appeal the denial of his motion for new trial. (SJC Docket in Commonwealth v. Ely, Case no. 85-10, Entry no. 1, Docket no. 38.) He also filed a motion for appointment of counsel, which motion was allowed on January 10, 1985. (Id., Entry nos. 3 and 4.) On October 7, 1985, court-appointed counsel, J. Russell Hodgdon (“Hodgdon”), filed a motion and memorandum in Superior Court for reconsideration of that court’s denial of the motion for new trial. (Mot. Reconsideration of Denial of Mot. New Trial, Record Appendix at 50; Mem. Supp. Amended Mot. New Trial, Record Appendix at 51.) The memorandum made all the pertinent arguments Ely presents here. The motion was supported by an affidavit dated May 14, 1985, of an attorney by the name of Lawrence McGuire (“McGuire”). McGuire had represented Ely on unrelated state court charges that Riley was also prosecuting at the same time that the charges that are the subject of the instant ease were proceeding. (Mem. Supp. Amended Mot. New Trial at 1; McGuire Aff. ¶ 2, Record Appendix at 186.) McGuire stated in his affidavit that he “learned that the murder charge was going to trial and that the Co-defendant, one David Gosselin, had pled to the lesser included charge of manslaughter, received a twenty year Concord sentence, on the condition that he testify against the Defendant.” (McGuire Aff. ¶ 5.) He did not specify from whom or when he had obtained this information.

By the time Hodgdon filed his motion for reconsideration, Riley had left the Essex County District Attorney’s office and had gone into private practice. Assistant District Attorney Lila Heideman (“Heideman”), who had handled the direct appeal, was assigned responsibility for dealing with the motion Hodgdon had filed on Ely’s behalf. By letter dated December 19, 1985, a copy of which was sent to Riley, Heideman advised Hodgdon that she had “informed [Riley] of the accusations the defendant is making against him.” (Letter from Heideman to Hodgdon of 12/19/85, E.H. Ex. 13.) She went on to tell Hodgdon that “the Commonwealth intends to have 'Mr. Riley testify,” if the matter reaches “the hearing stage,” and that she had been in touch with Riley regarding his availability. (Id.) That same day, Heideman sent Riley a letter in which she thanked him for his cooperation; advised him that she had informed Hodgdon regarding his schedule; and stated:

I wanted to enclose the material the defendant has filed in the above case. You should especially note the affidavit from Lawrence McGuire.

(Letter from Heideman to Riley of 12/19/85, E.H. Ex. 12.) The word “Enclosures” appeared at the bottom of the letter.

On June 19, 1986, after she had spoken to Riley about “the accusations defendant is making against him,” had forwarded to Riley defendant’s filings and specifically called to his attention McGuire’s affidavit, and had made the decision that she would call Riley as a witness if the court were inclined to schedule an evidentiary hearing, Heideman filed a memorandum in opposition to the motion for reconsideration. (Commonwealth’s Mem. Opp. Def.’s Mot. for Evid. Hearing and Mot. for Reconsideration of Mot. for New Trial, Supplemental Record Appendix, Tab C.) The memorandum correctly noted that Ely, in his .original motion, had claimed that Riley “failed to reveal the existence óf an agreement for the testimony of David Gosselin, the chief Commonwealth witness.” (Id. at 4.) It acknowledged that the motion for reconsideration included new evidence — McGuire’s affidavit — as support for that claim, (id.), but it challenged McGuire’s credibility by noting that McGuire “does not state from whom he learned ‘of the condition’ ” and that he had never represented Ely in the murder case, (id. at 6). The Commonwealth’s memorandum further acknowledged that, at trial, O’Neill had questioned Gosselin about “his denial of an agreement to being treated as a juvenile if he testified against the defendant,” and that “[cjurrent defense counsel [Hodgdon] claims that David Gosselin committed perjury when he denied the existence of a promise in exchange for his testimony and that the prosecutor allowed the perjury to stand uncorreeted.” (Id.) The following statement (for which Heideman, to her credit, expressed remorse at the evidentiary hearing) then appeared in the memorandum:

The defendant ... refuses to believe that there was no promise of juvenile treatment in exchange for [Gosselin’s] testimony.

[A]n examination of the record reveals that the issue of whether a promise had been made in exchange for David Gosselin’s testimony was fully explored____ The defendant has not put forth any evidence whatsoever to contradict the denial of an agreement. A hearing is unwarranted. .

(Id. at 6-7.)

Despite the new evidence presented by Ely, Heideman’s argument, that there was insufficient evidence even to warrant an evidentiary hearing carried the day. On June 19, 1986, the court entered the following order:

Upon argument of counsel, examination of the memoranda submitted and the affidavit of one McGuire, and whereas it appears that the grounds advanced are that of prosecutorial misconduct (known perjured testimony of one Gosselin) and the averment of the affiant that he “later learned” constitutes hearsay from an undisclosed source (for example it could have been the movant) there are no valid grounds for either reconsideration of this court’s denial nor grounds for any evidentiary hearing thereupon; consequently the within motion be and hereby is DENIED.

(Order Denying Mot. Reconsideration of Denial of Mot. New Trial, Record Appendix at 75.) It would take Ely another eight years to obtain the evidence he would need to' “contradict the [Commonwealth’s and Gosselin’s] denial of an agreement.”

On December 11, 1990, Ely filed another pro se motion for reconsideration of his motion for new trial. (Mot. Reconsideration of Denial of Mot. New Trial, In light of Subsequently Received Documents (“Second Mot. for Reconsideration”), Record Appendix at 76.) He claimed that, as the result of discovery in a civil action that had been filed against him by the Sehrempf family in 1988, he had obtained new materials, including the transcript of Gosselin’s sentencing hearing that had taken place in November 1979, which confirmed his belief that there had been a plea agreement. (Def. Aff. Supp. of Second Mot. for Reconsideration at 3, Record Appendix at 79.) Ely again filed a memorandum that made all the pertinent arguments and cited all the appropriate federal and state eases. (Def.’s Mem. Law Supp. of Second Mot. for Reconsideration, Record Appendix at 83.) The matter was referred to a Single Justice of the .SJC. (SJC Docket in Commonwealth v. Ely, Case no. SJ-91-0129, Docket no. 38.) Appellate counsel, Harold Robertson (“Robertson”), was assigned to represent Ely. (Id., Entry no. 4.) On May 12, 1993, Robertson filed a memorandum in the SJC for Suffolk County in which he requested that the Single Justice remand the matter to Superior Court for an evidentiary hearing on the issue of whether a plea agreement in fact existed and had been suppressed. (Def.’s Mem., Record Appendix at 98.) Robertson again made all the appropriate arguments and cited all the appropriate federal and state cases.

On June 22,1993, the Commonwealth, now represented by Assistant District Attorney Margaret Perry (“Perry”), filed its opposition. (Commonwealth’s Mem. Opp. Def.’s Mot. for Leave to Appeal Denial of Post-Conviction Relief, Supplemental Record Appendix, Tab D.) It acknowledged that Ely was moving for a new trial “on the ground that the prosecutor failed to disclose that an agreement was made between Gosselin and the Commonwealth to permit him to plead guilty to manslaughter and receive lenient treatment in exchange for testimony against the defendant.” (Id. at 9-10.) In response, the Commonwealth argued that, because Gosselin had denied at trial (and at Ely’s transfer hearing) that there had been a plea agreement, the matter was foreclosed unless Ely presented substantial new evidence to establish that Gosselin was lying. (Id. at 6.) The new evidence that Ely had presented, according to the Commonwealth, was nothing more than speculation and hearsay, and, therefore, was not sufficient to overcome Gosselin’s sworn statement on two separate occasions that he had not “receive[d] lenient treatment in exchange for testimony.” (Id. at 10-12.)

The Single Justice conducted a non-evidentiary hearing on-June 23, 1993. Robertson, proceeded immediately to the central issue in the case: whether “the primary eyewitness against [Ely], one David Gosselin, had lied when he indicated that there had been no agreement made between Mr. Gosselin .and the prosecution in exchange for that testimony.” (Single Justice Hearing Tr. at 1, Supplemental Record Appendix, Tab E.) The Single Justice acknowledged that Gosselin’s testimony was “very important to the Commonwealth,” (id. at 4), but -asked the central question that the Commonwealth (although a party to the agreement) had been raising in opposition to Ely’s post-trial motions since 1985: “What is the evidence that a promise had been made?” (Id. at 1.) Robertson cited the McGuire Affidavit, but the Single Justice noted, correctly, that “Larry McGuire doesn’t pretend to have heard any promise that’s made. He’s just come to a conclusion based on something or other.” (Id. 1.)

The Commonwealth did not dispute that Gosselin had denied that an agreement existed. Instead, notwithstanding that it was itself a party to the plea agreement, it argued, inter alia, that there was insufficient evidence that any agreement existed. It continued to press the point that, in order to overcome Gosselin’s unequivocal denial of an agreement, Ely had to come forward with non-hearsay, non-speeulative evidence to the contrary, and the McGuire affidavit and other circumstantial evidence that Ely had mustered did not satisfy that demanding standard. The Commonwealth, in short, continued to rely upon and take advantage of Gosselin’s perjury as the focal point of its opposition to Ely’s motion for a new trial.

At that point in the hearing, the Single Justice posed a hypothetical question that would prove to be prophetic: Would a new trial be warranted, he asked, if Gosselin’s own counsel provided an affidavit that said, “I talked with Assistant District Attorney so and so and we made an agreement. He said and I said, he said and I said, and we had a deal, that if my client testified, that the government would go easy on my client. Now, I know my client testified differently, but— (Id. at 6.) Perry interjected: “Right, so I suborned perjury, as did the Assistant,” thus showing that she well understood the significance of the hypothetical. (Id.) The Single Justice continued: “[W]e might be in trouble then, wouldn’t you think?” (Id.) Perry correctly -responded that,- if such an affidavit were produced:

[D]efense counsel [would] be saying that he essentially understood that perjury was being committed, and that the Assistant District Attorney did, ... this is such egregious conduct that the case must be reopened to examine to see what its effect, if any, it had.

(Id. at 7) (emphasis added). Perry promptly added, however, that it is one thing to talk about a hypothetical affidavit from a party to an agreement confirming that an agreement in fact existed, and quite another to argue, as Robertson was doing, that the McGuire affidavit and other circumstantial evidence was sufficient to raise the kinds of concerns that the Single Justice and she were discussing. She said, “[T]he issue for the court is ... given the evidence, is there anything here that substantially calls into question the fundamental reliance [sic] of the evidence that was presented to the jury. And it’s the Commonwealth’s position that this does not____” (Id.)

The Single Justice took the matter under advisement and denied the motion the following day. (Order Denying Leave to Appeal, Record Appendix at 105.) He also denied Ely’s motion for reconsideration on July 20, 1993. (Order, Record Appendix at 111.)

Ely was undeterred by Ms latest loss. After listemng to a tape recording of the hearing, he decided to attempt to obtain an affidavit of the type that was the subject of the Single Justice’s hypothetical. (3 Evidentiary Hearing Tr. at 23-24.) By letter dated May 9,1994, he wrote to Previte and asked for Ms “acknowledgement regarding that the pleas were agreed to prior to the hearing. That is that there was an agreement made prior to Gosselin’s plea hearing for his testifying against (me) Arnold Ely.” (Aff. of Albert Previte, Jr., Esq. ¶ 13, Respondent’s Mot. Expand Record, Item (2), Docket no. 48.) By return letter dated May 17, 1994, Previte sent Ely not just an acknowledgement, but a copy of the actual, hand-written plea agreement, (E.H.Ex. 1A), that he and Riley had executed on October 31, 1979. (Id. at ¶ 14.) In reliance on tMs new and irrefutable evidence, Ely filed another pro se motion, affidavit, and memorandum in Superior Court in which he asked for a new trial and made all the appropriate arguments and cited all the proper cases. (See Mot. for New Trial, Record Appendix at 112; Aff. Supp. Mot. New Trial, Record Appendix at 116; Mem. Law Supp. Mot. New Trial, Record Appendix at 119.) He attached to Ms affidavit a copy of the actual plea agreement.

Despite the colloquy that had taken place between the Single Justice and Perry a year earlier, in which Perry had acknowledged that the situation would be different and “egregious” if there were credible evidence that perjury had been committed or suborned, the Commonwealth filed a motion for summary demal of Ely’s latest motion on the ground that all this had been heard and rejected before by both the Superior Court and the Single Justice of the SJC. (Commonwealth’s Mot. Summary Demal of Latest Mot. for New Trial, Supplemental Record Appendix, Tab F.) To underscore its false claim that this was old hat, the Commonwealth supported its motion for summary denial with a copy of the memorandum it had filed a year earlier with the Smgle Justice. There was not a hint of acknowledgement in the Commonwealth’s filings that there was anytMng new or different in Ely’s latest motion or that Ely had, in fact, now met the Commonwealth’s decade-long challenge to produce credible evidence that the Commonwealth’s key witness had lied.

Ely filed an opposition to the Commonwealth’s motion for summary demal of Ms motion for new trial. (Def.’s Mot. Opp. Commonwealth’s Mot. for Summ. Demal, Record Appendix at 129.) He attempted to correct the false impression conveyed by the Commonwealth’s motion by accurately pointing out, in the first paragraph of his opposition, that the plea agreement that he had attached to his papers “did not become available to the defendant until after the decision of the Single Justice of the Supreme Judicial Court of July 20, 1993.” (Id. at 1.) The Superior Court judge nevertheless incorporated by reference the Commonwealth’s demonstrably false claim that Ely’s papers presented nothing new and, solely on that ground, summarily demed the motion. (Order Denying Mot. New Trial, Record Appendix at 132-133.) Ely sought leave from a Single Justice to appeal this latest denial, (Mot. Leave to App. Demal Mot. New Trial, Record Appendix at 134), and, as he had done below, he attached a copy of the plea agreement to his filings, (Aff. Supp. Mot. Leave to Appeal Demal Mot. New Trial, Record Appendix at 135). He again made all the appropriate arguments and cited all the proper cases. In an Order dated August 11, 1994, the Single Justice, without hearing or comment, demed leave to appeal. (Notice of Docket Entry, Record Appendix at 144.)

Ely, acting' pro se, filed tMs, his first and only, petition for writ of habeas corpus on February 27, 1995. (Habeas Corpus Petition, Docket no. 7.) He asserted four separate grounds in support of Ms petition: (1) the prosecutor suppressed exculpatory evidence (the plea agreement); (2) the prosecutor failed to disclose Gosselin’s perjury about the nonexistence of the plea agreement and used it to his advantage; (3) the prosecutor’s closing argument was misleading because it relied upon Gosselm’s perjured testimony; and (4) suppression of the plea agreement deprived Ely of his right to confront and cross examine witnesses against him. (Id. at 4-5.) The Commonwealth filed an answer (Amended Answer, Docket no. 37) and a motion to dismiss (Respondent’s Mot. Dismiss and Opp. Petition, Docket no. 39), supported by a lengthy memorandum, (Mem. Law Supp. Mot. Dismiss, Docket no. 44). In its memorandum, the Commonwealth acknowledged, for the first time, that there was a plea agreement but, despite denying its existence for over ten years, made the claim that the agreement “was certainly not a secret.” (Mem. Law. Supp. Mot. Dismiss at 17.) It also argued that Ely had proeedurally defaulted and failed to exhaust remedies available under state law and that the agreement was not material. Counsel was appointed for Ely and a five-day evidentiary hearing was conducted over a three-month period ending in July 1996. The primary issues at the hearing were whether the plea agreement had been produced and the related questions of whether the plea agreement was material and.whether Riley had a duty to disclose Gosselin’s perjury to the trial judge. Subsequently, both sides filed lengthy post-hearing memoranda and reply memoranda, including proposed findings of fact and conclusions of law.

III. PROPOSED FINDINGS REGARDING DISPUTED ISSUES

A. Was the Plea Agreement Produced?

The overriding issue at the evidentiary hearing was whether the plea agreement had been produced by the prosecution prior to trial. For reasons set forth below, the evidence was clear and convincing — indeed, upon reflection, overwhelming — that the agreement was not produced. Before I state the basis for my proposed finding, however, I should deal with two preliminary matters.

First, when I refer to the.“plea agreement,” I am referring to the written plea agreement dated October 31, 1979, which includes the all-important quid fro quo that Gosselin must testify in the case against Ely in order to receive a lenient sentence. I emphasize this point because it is apparent from the Commonwealth’s many post-petition filings that the Commonwealth, surprisingly, is still under the mistaken impression that the agreement we are concerned about is the Commonwealth’s agreement to recommend a lenient sentence in exchange for Gosselin’s agreement to plead guilty to reduced charges. There has never been any dispute that it was known long before Ely’s trial that Gosselin had pleaded guilty to manslaughter and arson and that, in exchange, the Commonwealth had recommended a relatively lenient sentence. What was not known, however, and what the Commonwealth, until recently, consistently denied, was that the sentencing recommendation was expressly conditioned on Gosselin’s agreement to testify.

Second, when I refer to the “plea agreement,” I am not including the “assurances” that Riley gave Previte and Gosselin at Gosselin’s October 26, 1979 transfer hearing. This is not to say that I have concluded that those assurances did not constitute an inducement that should have been disclosed in the context of Ely’s trial in September 1980. To the contrary, I believe, for reasons discussed below, that they did. The reason I do not give substantive significance to them is that Ely’s habeas petition did not include the suppression of this evidence as a ground for relief, and the courts of the Commonwealth were never given an opportunity to consider it. That is not surprising, of course, since the Commonwealth did not disclose this evidence until the evidentiary hearing was underway in this case. To say that I do not attribute substantive significance to the Commonwealth’s failure to disclose those assurances, however, is not to say that such failure has no evidentiary significance for such purposes as evaluating Riley’s credibility and determining the extent of Riley’s understanding in 1979 of his constitutional obligations.

Turning, then, to the bases for my proposed finding that the Commonwealth did not disclose the plea agreement, I take the following evidence into consideration.

1. Shalhoub’s Testimony

Shalhoub was Ely’s court-appointed attorney from the time of Ely’s arrest through the probable cause and transfer hearing. He testified, credibly, that, to the best of his admittedly dim recollection, Riley never gave him a copy of the plea agreement or disclosed its existence. Shalhoub’s recollection is strongly corroborated by circumstances. When Shalhoub cross examined Gosselin at the second day of Ely’s transfer hearing, he tried repeatedly, as any competent attorney would have done, to get Gosselin to admit that the Commonwealth had provided him an inducement in exchange for his testimony against Ely. Gosselin repeatedly denied the existence of any inducement, going so far as even to deny being aware “that Mr. Riley can recommend that you be treated as a juvenile.” (2 Ely Transfer Hearing Tr. at 137.)

Shalhoub reserved the right to recall Gosselin at the third day of Ely’s transfer hearing on November 20, 1979. (2 Evidentiary Hearing Tr. at 15-17.) He elected not to do so. (Id. at 16.) Given the persistence with which Shalhoub cross examined Gosselin on this point on October 31, 1979, and given the highly suspicious circumstances of the agreement being signed immediately following Gosselin’s testimony against Ely, it is difficult to imagine that Shalhoub would not have recalled Gosselin to cross examine him further at the November 20 hearing about the agreement, if Riley had disclosed it in the interim. Indeed, Shalhoub could not think of a reason why he would not have done so. (Id. at 16-17.)

2. O’Neill’s Testimony

O’Neill has an unsavory past, including “a suspension from practice between 1972 and 1979 based on criminal convictions for forgery, uttering forged checks, and receiving stolen motor vehicles.” In re Paul F. O’Neill, 9 Mass. Att. Discipline Rep’ts 253, 253 (1993). If that were not enough, he was disbarred in 1993 for “eonvertpng] to his own use funds received from a client as advance payment of legal fees.” Id. at 255. He now lives in Maine and, for obvious reasons, is no longer practicing law.

Under persistent cross examination by the Commonwealth, O’Neill testified repeatedly that there is not the slightest doubt in his mind that the plea agreement was not produced or disclosed. (5 Evidentiary Hearing Tr. at 58-61, 75, 80-84, 92, 94.) Although one might be tempted to dismiss his testimony as self-serving, I do not. In the first place, O’Neill has no motive to lie or to risk perjuring himself — he has no stake in the outcome; he is no longer practicing law or even living in Massachusetts; he has considerable respect for Riley, (id. at 69); and he himself was the target of a complaint that Ely had filed with the Board of Bar Overseers, (id. at 117).

More important, whatever character flaws O’Neill has, I have no reason to believe that he was not a competent and tenacious attorney. In his cross examination of Gosselin at trial, he used every device at his disposal in his unsuccessful effort to get Gosselin to admit that there was a plea agreement, until, finally, the trial judge directed him to “get off that.” O’Neill is certainly not the kind of attorney who would set a witness up for impeachment, as he so effectively had done, and then not expose the witness’s lies, assuming he had irrefutable impeachment evidence such as a copy of an actual plea agreement whose existence the witness had denied. In this case, use of the agreement for impeachment would have been doubly effective, because it would have shown not only that Gosselin had lied when he denied that the agreement existed, but that he also had (and, worse, tried to conceal) a motive to lie about Ely’s guilt. The fact that a combative attorney such as O’Neill did not use the plea agreement for this purpose persuades me that O’Neill was telling the truth.

The Commonwealth responds, not surprisingly, that O’Neill is such a scoundrel that nothing he says is credible. For reasons already stated, however, it is not just O’Neill’s testimony that persuades me he is telling the truth (although, as noted, he has no obvious reason to lie), but the historical record of what occurred at the trial in September 1980. The Commonwealth replies that the historical record is ambiguous and that there was, indeed, a subtle reason for O’Neill not to attempt to use the plea agreement to impeach Gosselin. The reason was that, if O’Neill had used the plea agreement, it would have opened the door to the Commonwealth’s use, as prior consistent statements, of Gosselin’s statements to the police on September 15 and 16, 1979.

The Commonwealth’s reply is not persuasive. In the first place, Gosselin’s statements are not sufficiently damaging to Ely’s case to keep O’Neill from impeaching Gosselin with the plea agreement. By September 15, 1979, Gosselin had already been arrested on the strength of the Tremblay statement. Thus, he already had some motive to make false accusations against Ely at the time he made his prior consistent statements. Moreover, it defies common sense to suggest that O’Neill would have questioned Gosselin about the subject of a possible plea agreement at all, if he did not intend to use the plea agreement to impeach him, if necessary. After all, if Gosselin had readily admitted the existence of an agreement in response to one of O’Neill’s questions, he, O’Neill, would equally have opened the door to the use of Gosselin’s earlier statements to the police as prior consistent statements. Thus, the time for deciding whether it was worth taking the risk of opening that door was at the time the decision was made to raise the subject at all, not after Gosselin had denied that the agreement existed. Once O’Neill made the decision to open the door to the subject by questioning Gosselin about it, he had nothing to gain and everything to lose by not unpeaching Gosselin, after Gosselin had denied under oath that any agreement existed. As it was, O’Neill’s decision to question Gosselin about an agreement produced a worst case scenario. It permitted Gosselin to give unrefuted and unrefutable testimony that “no agreement was made,” and it gave Riley the opening he needed to argue in his closing that Gosselin had no reason to lie about Ely’s guilt. O’Neill was far too astute to allow that to happen, if he could have prevented it. For these reasons, I conclude that O’Neill would surely have used the agreement for impeachment, if he had it in his possession.

3. Ely’s Testimony

Ely testified that he worked closely with O’Neill in preparing the case for trial; that he reviewed O’Neill’s case file before and during trial and knew what it contained; that his first pre-trial review of the ease file took place in June 1980, several months after the February 22, 1980 deadline by which Riley had agreed to provide exculpatory evidence; that O’Neill’s ease file did not contain a copy of the plea agreement; that he sat at counsel table with O’Neill during the trial; and that he would have said something to O’Neill at trial if ther