News

State's highest court to hear Merry case

By Paul Leighton
Staff writer
Published: July 18, 2008

BEVERLY — All seven justices of the state's highest court will now decide the fate of Beverly Patrolman Stuart Merry.

Supreme Judicial Court Justice Robert Cordy, who heard Merry's appeal on Tuesday, sent a letter to lawyers on Wednesday informing them that he has referred the case to the entire Supreme Judicial Court of Massachusetts. That sets up the possibility that Merry, who was found guilty of vehicular homicide by a jury in March, could now be declared not guilty.

Merry's lawyer, Neil Rossman, said only about 5 percent of these types of appeals make it to a single justice of the Supreme Judicial Court, and getting to the full court is even rarer.

"I think it's very significant, very significant," Rossman said. "He's going to have the entire Supreme Court rule on this case."

The high court must decide if the jury had enough evidence to convict Merry, who was charged with vehicular homicide after his cruiser crashed into a parked car on Cabot Street in January 2007 and killed 61-year-old Bonney Burns.

A Peabody District Court jury found Merry guilty, and Judge Robert Brennan sentenced him to three years' probation. But Brennan later set aside the verdict and ordered a new trial, saying a key piece of evidence potentially in Merry's favor never made it to trial.

Merry asked Brennan to issue a directed finding of not guilty, which a judge can do if he thinks the evidence was insufficient to convict. Brennan denied that motion, and Merry appealed to the Supreme Judicial Court.

The high court can hear appeals with a single justice or with the full seven-member court. Cordy heard the case by himself on Tuesday in Boston but now wants the full court to decide. The Supreme Judicial Court consists of seven justices appointed by the governor, led by Chief Justice Margaret Marshall.

At the very least, Rossman said, Merry is assured a new trial.

"If we walk out of there empty-handed we still have our new trial," Rossman said. "It's a win-win situation."

At issue are three key pieces of evidence that prosecutor Nicholas Walsh did not raise during the trial until his closing argument. Walsh said a cracked windshield and blood and saliva drops on the air bag proved that Merry could not have been slumped over from a seizure at the time of the crash, as the defense claimed. That means Merry was in control of the cruiser, which was traveling 55 mph at impact in a 30 mph zone, and thus criminally negligent, Walsh said.

In a hearing before Cordy on Tuesday, Rossman said Walsh never asked any of his own experts about the windshield, blood or saliva, leaving Rossman with no chance for rebuttal. Rossman said there's no proof that someone suffering a seizure could not remain seated upright, or that the presence of blood and saliva on the air bag prove Merry was sitting up.

When Cordy asked Assistant District Attorney Paul Linn if the prosecution had medical evidence to support that a person suffering a seizure could not remain sitting up, Linn said, "It's common knowledge. You don't need any specialized medical knowledge to know that."

"I don't know about that," Cordy said. "There are all kinds of seizures."

Rossman has also accused Walsh of prosecutorial misconduct, saying he never mentioned that a state police accident reconstruction expert had told the case's former prosecutor that the cracked windshield was not caused by Merry's head.

The Suffolk County District Attorney's Office, which is handling Merry's prosecution, could not be reached for comment.

The fact that the case is going to all seven justices, Rossman said, means the full court could establish new standards for what it takes to convict someone of vehicular homicide.

Rossman said no hearing date has yet been scheduled.