Superior Court

            On October 29, 2021, a jury convicted George T. Rhodes (“Rhodes” or “the Defendant”) of the first-degree murder of Sabrina McLean (“McLean”), a conviction resting on theories of extreme atrocity or cruelty and felony murder. Evidence at trial showed that Rhodes raped McLean and inflicted head injuries on her before leaving her unconscious in a garage bay in Brockton, where McLean was later run over by a tow truck. Rhodes now moves for a new trial based on purportedly withheld exculpatory evidence, viz., a neuropathology report omitted from McLean’s produced autopsy records, in violation of Brady v. Maryland, 373 U.S. 83 (1963). The Defendant argues that the unproduced neuropathology report would have enabled a defense expert to refute the Commonwealth’s contention that McLean’s head injuries (and not the separate injuries to her body caused by the tow truck) were the proximate cause of her death. Alternatively, the Defendant moves for a new trial based on ineffective assistance of counsel. The Defendant maintains that, if the neuropathology report had been turned over during discovery, the failure of Rhodes’ counsel to make use of that report at trial to challenge the Commonwealth’s theory of causation denied him his Sixth Amendment right to a competent defense.

            The Commonwealth counters that the subject neuropathology report was, in fact, turned over to Rhodes’ defense team during pretrial discovery. The Commonwealth further argues that, even if the neuropathology report had been withheld, there was no Brady violation in this case. It maintains that the report was cumulative of other evidence, and that its non-use by defense counsel at trial caused no prejudice to the Defendant in light of the sufficiency of other (unrelated) evidence demonstrating that Rhodes caused McLean’s death.

BACKGROUND

I. 2016 Trial

            The first jury trial in this case (before Chin, J.) took place in June, 2016. At that time, Rhodes was tried on charges of first-degree murder premised on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder based on aggravated rape. The 2016 jury convicted Rhodes of murder on the theories of deliberate premeditation and extreme atrocity or cruelty. Rhodes was sentenced to life in prison. The Supreme Judicial Court subsequently vacated that conviction, however, holding that Rhodes’ trial counsel had been ineffective in failing to request a jury instruction on voluntary manslaughter based on reasonable provocation. See Commonwealth v. Rhodes, 482 Mass. 823, 826-29 (2019). 

II. 2021 Trial

            The second jury trial in this case (before Gordon, J.) took place in October, 2021. Rhodes was once again prosecuted for first-degree murder on theories of deliberate premeditation, extreme atrocity or cruelty, and felony murder predicated on aggravated rape.

            In her opening statement for the Commonwealth, Assistant District Attorney (“ADA”) Keara Kelley stated that, sometime after 11:00 p.m. on September 8, 2014, Rhodes savagely beat McLean in a garage bay in Brockton. The prosecutor described how Rhodes inflicted severe injuries on McLean’s head, and then chose to leave this victim incapacitated on the floor of the darkened garage where a tow truck later drove over her body. ADA Kelley emphasized that Rhodes caused McLean’s death in each of two independently sufficient ways. First, she asserted that Rhodes directly caused McLean’s death by inflicting fatal blunt force trauma on her head. Second, the prosecutor contended that Rhodes indirectly (and independently) caused McLean’s death by inflicting serious injuries to her head and then leaving her to lie prostrate in a darkened parking garage, where it was foreseeable that a truck could (and, in this instance, did) run over her immobilized body. 

            In his opening statement for the defense, Attorney Liam Scully stressed that McLean died as the result of an accident. He stated that McLean and Rhodes were both intoxicated at the time they entered the Brockton garage, where they proceeded to have a consensual sexual encounter. Attorney Scully then recounted that McLean bit the Defendant’s penis during that encounter, which shocked Rhodes and caused him to react unthinkingly and strike her head. Defense counsel emphasized that Rhodes did not know how severely injured McLean was when he left her to seek medical assistance for himself. Attorney Scully continued, “it gets a little more bizarre at this point because with him gone and her there what happens next? Well this is where it becomes an unforeseen like film noir, Quentin Tarantino circumstance.” Defense counsel then described how a massive tow truck entered into the garage bay and ran over McLean, crushing her lower torso and legs. Attorney Scully asserted that it was those independent corporeal injuries, and not the survivable head wounds inflicted by Rhodes, which ultimately caused McLean’s death.

            The trial evidence presented to the jury included the following. On the evening of September 8, 2014, Rhodes and McLean were walking together on Main Street in Brockton. McLean had been drinking. Rhodes had his arm around McLean’s waist, and McLean had her elbow on his shoulder. McLean appeared to be intoxicated. Video surveillance footage showed that, just before 11:00 p.m., Rhodes and McLean entered a garage bay on L Street in Brockton. Further footage showed Rhodes emerging alone from this garage about ten minutes later. 

            Sometime shortly after Rhodes exited the garage bay, a seven-to-eight ton flatbed tow truck arrived at the garage entrance and began backing into the space between its inner and outer doorways.[1] The garage’s outer entrance lacked a door, and the inner doorway had a door that could be opened by a key-card.[2] There were two lights in the area surrounding these doorways. One light was located on the wall with the card-reader, but it was not on that night. The other was an overhead light in the area between the two doorways that was operating; but it was not an especially bright light. As it backed into the garage bay, the tow truck, driven by Chase Clem, ran over the lower portion of McLean’s body. At the time, Clem did not feel the truck run over anything. Neither the tow truck’s audible backup alarm nor the vehicle’s backup lights were functioning that evening. The backup alarm usually made a loud beeping noise when Clem drove the vehicle in reverse. Clem had seen people standing in this alcove a number of times in the past; but no one had ever previously stood there while he was trying to back his truck into the space. Clem would have been able to see someone in the garage bay (even at night) while he was backing into it if that person were standing up at the time. Clem always pulled his truck past the garage bay before backing the vehicle into it. On the night in question, Clem looked into the alcove as he drove by it, but did not see anyone on the ground. After backing into the alcove on this occasion, however, Clem exited his truck and discovered McLean on the ground. McLean was unclothed below the waist, lying face-down on the floor in a pool of blood with her head near the garage’s inner doorway. Clem was unaware that his truck had run over McLean until after he exited the vehicle and saw her in this condition. Emergency medical services were summoned and arrived promptly. McLean, who was still alive upon their arrival, died while being transported to the hospital. 

            During their ensuing investigation, police learned that, while in the garage bay, McLean had performed oral sex on Rhodes. At some point during the encounter, McLean bit Rhodes’ penis, severing a “dime-sized” portion of the penis from its tip. (DNA testing revealed that Rhodes was the source of a significant amount of the trace blood found in the garage bay.) Rhodes subsequently inflicted blunt force trauma on McLean’s head and neck. 

            At trial, Dr. Robert Welton, who was serving as a forensic pathology fellow at the Office of the Chief Medical Examiner (“OCME”), testified for the Commonwealth. Dr. Welton personally performed an autopsy on McLean. In connection with this procedure, Dr. Welton observed blunt force trauma to McLean’s head and injuries to her neck. Those injuries were not caused by the tow truck driving over her body. The injuries to McLean’s torso and lower body, by contrast, were consistent with getting run over by a truck. As a result of her head injuries, McLean would probably have been unconscious and incapacitated. According to Dr. Welton, the head injuries alone could have caused McLean’s death within minutes to hours, because the swelling and bleeding in her skull would have eventually built up and exerted pressure on her brain (causing dysfunction) if she did not receive timely medical attention. The head injuries alone, however, would not have caused instantaneous death. Dr. Welton testified that he additionally reviewed the findings of a forensic neuropathologist which were part of the autopsy records, and those findings did not change his opinion regarding the victim’s head injuries. The injuries to McLean’s torso and legs, again consistent with being run over by a truck, could alone have caused her death.

            In his closing argument, Attorney Scully told the jury that whether McLean’s head injuries caused her death “seems to be almost ground zero of this trial.”  He emphasized that Dr. Welton had testified that the head injuries could have directly caused McLean’s death if her brain continued to swell and bleed; although those injuries might not have been the direct cause of death in this instance. Attorney Scully further argued that whether McLean’s brain would have continued to swell and bleed was a matter of “pure speculation.”

            In her closing argument, ADA Kelley argued that there was no question that had McLean received only the head injuries but not the injuries to her lower body, those head injuries alone “could certainly have killed her,” as Dr. Welton testified. But ADA Kelley stressed that there were two ways that the jury could conclude that Rhodes caused McLean’s death. First, the jury could find that Rhodes caused her death directly by inflicting severe injuries upon her head. In the alternative, the jury could find that Rhodes indirectly caused McLean’s death by “setting this entire chain of events into motion;” that is, by beating McLean and leaving her incapacitated in a darkened garage, where it was foreseeable that her body would be run over by an incoming vehicle.

            The jury was instructed that the required factual finding that Rhodes was the cause of McLean’s death could be satisfied by proof (beyond a reasonable doubt) demonstrating either of these two theories of causation. Neither party challenges the correctness of the Court’s charge to the jury in this respect.    

            Rhodes was ultimately convicted of first-degree murder under theories of extreme atrocity or cruelty and felony murder. Consistent with prevailing practice in the Superior Court, however, the criminal verdict form filled out by the jury did not specify or otherwise differentiate on which particular theory of causation (direct or indirect) the conviction rested. This ambiguity lies at the center of the Defendant’s Motion for New Trial.

III. Allegedly Withheld Forensic Neuropathology Report

            Accompanying his Motion for New Trial, Rhodes has provided the Court with affidavits and supporting documents attesting to the fact that no member of his defense team ever received a neuropathology report from the Commonwealth prior to his first or second trial. The material points of those submissions are as follows.

            An affidavit from Elizabeth Laposata, M.D., a forensic pathologist, includes the following information. Prior to the first trial in 2016, Rhodes’ defense counsel, John Darrell, Esq., engaged the expert services of Dr. Laposata. In September of 2015, Attorney Darrell furnished Dr. Laposata with documents related to the case, including Dr. Welton’s autopsy report. A neuropathology report was not among those documents, although one was briefly referenced in the autopsy report. 

            In December, 2015, Dr. Laposata requested that Attorney Darrell ensure that she had in fact been provided “the entirety” of the autopsy file from the OCME. In response, on January 19, 2016, Attorney Darrell moved that the defense be provided with a complete copy of the McLean autopsy file. More specifically, Attorney Darrell requested “all reports, diagrams, notes, photographs, results of scientific test[s] and any information relied on by the Medical Examiner in the formation of his opinion as to the cause of death.” 

            The Laposata affidavit includes the following further information. On January 25, 2016, the Office of the Plymouth County District Attorney (the “PCDAO”) sent Dr. Laposata what it represented to be a complete copy of the OCME file regarding the autopsy of McLean (OCME #2014-11760). Once again, that file did not contain any report from a forensic neuropathologist. In Dr. Laposata’s experience as the former Chief Medical Examiner for the State of Rhode Island, a neuropathologist’s report might occasionally “not be dictated, drafted, reviewed, approved, and/or signed off properly.” In other words, Dr. Laposata thought that there might have been an error in creating or finalizing the neuropathology report in this case. Therefore, she “assumed that it was entirely possible that a neurologist’s report was not completed or, due to some oversight, not included in the OCME file.” Whatever the reason, Dr. Laposata asserts in her affidavit that no neuropathology report was ever provided to her at the time of Rhodes’ first trial. 

            In June, 2016, Dr. Laposata submitted to Attorney Darrell a report detailing her evaluation of McLean’s death. In that report, Dr. Laposata stated as follows:

“Ms. McLean’s head injuries were not necessarily incompatible with life: the base of the skull and calvarium were not fractured, there were no space-occupying brain injuries, and her midbrain and brainstem were intact. With timely medical care it is likely that Ms. McLean would have survived these head injuries.”

Dr. Laposata’s subsequent testimony at the 2016 trial reflected the information and opinions contained in her written report. In her affidavit, however, Dr. Laposata indicates that these conclusions were conditional and limited, because her only means of assessing the injuries to decedent’s brain was to view photos of the external surfaces of the brain taken at her autopsy. At the 2016 trial, therefore, and based on this limited information, Dr. Laposata opined that she believed McLean would have died from the injuries to her brain if she did not receive medical care within two hours or less.

            On October 16, 2019, after Rhodes’ 2016 conviction was overturned, Attorney Scully entered his appearance as counsel for the Defendant. On February 20, 2020, the Defendant was granted funds to secure the assistance of a medical examiner. Attorney Scully thereupon contacted Dr. Laposata, and re-engaged her services as a defense expert. Dr. Laposata promptly requested that Attorney Scully provide her with the complete OCME report. In his affidavit, Attorney Scully states that he informed Dr. Laposata that he had provided her with all of the documents in his possession. For its part, the Commonwealth had filed certificates of discovery compliance on August 27 and 30, 2021.  In those filings, the Commonwealth certified that it had fulfilled all of its mandatory discovery obligations, including the obligation set forth in Mass. R. Crim. P. 14(b)(l)(H) to provide “reports of physical examinations of any person or of scientific tests or experiments.” The Commonwealth’s two certificates of compliance set forth an extensive list of documents that the government asserted under oath had been provided to the defense, including the “[a]utopsy [f]ile for Sabrina McLean.”

            At a pre-trial conference held on September 9, 2021, Attorney Scully represented to the Court that he planned to call Dr. Laposata as a witness for the defense, and indicated that Dr. Laposata’s testimony would be consistent with her previous testimony at the 2016 trial. At the subsequent Final Pretrial Conference and again on the first day of trial, Attorney Scully reiterated his intent to call Dr. Laposata to testify; but this expert was ultimately not called as a witness. 

            Dr. Laposata’s affidavit provides the following additional information. On March 1, 2024, post-conviction counsel Joseph Kenneally, Esq. hired Dr. Laposata to consult in Rhodes’ case, this time for purposes of an appeal from the second trial verdict. Dr. Laposata was then provided with a copy of the 2021 trial transcript. In reviewing the transcript of Dr. Welton’s trial testimony, two statements in particular caught Dr. Laposata’s attention. First, Dr. Welton testified that “the blunt force trauma injuries inflicted on Ms. McLean’s head would have independently caused her death in what he characterized as ‘minutes to hours.’” Second, Dr. Welton testified that he reviewed the report of the neuropathologist, and nothing in that report changed anything about his findings relative to the decedent’s head injury. These statements led Dr. Laposata to conclude that the report of a forensic neuropathologist in fact existed, and should have been, and perhaps had been, included in the OCME file. Dr. Laposata relatedly concluded that “a careful review of that report and any associated photographs was necessary for . . . [her] to conduct a thorough evaluation of the injuries sustained to Ms. McLean’s head.” Accordingly, Dr. Laposata contacted Attorney Kenneally and made a specific request for production of the neuropathology report.

            In his motion-supporting affidavits, Attorney Keneally states as follows. Defense counsel conducted a search of the files provided by Rhodes’ prior trial attorneys, but could not locate the referenced neuropathology report. Attorney Kenneally then contacted both of Rhodes’ former trial attorneys, and inquired as to whether their files contained a report from the neuropathologist. Neither of Rhodes’ lawyers indicated that they had this particular report in their possession. In his affidavit, Attorney Scully states that, if he had been in possession of the neuropathology report, he would have “certainly” forwarded it to Dr. Laposata.

            According to his affidavits, Attorney Kenneally contacted the PCDAO in June of 2024 and requested the evidently missing portions of the OCME file. In July, 2024, the Commonwealth reported that its representatives had looked through their files and were not in possession of either the x-rays or the neuropathologist’s report. The Commonwealth also indicated that “the language in the autopsy report . . . makes us wonder if the consultation and a report were ever actually done (?).”

            In response, Attorney Kenneally stated to the Commonwealth that he would formally request the missing neuropathology report from the OCME, and asked if the Commonwealth would be willing to assent to such a request. The Commonwealth replied that it would take no position on whether the OCME should turn over its documents or autopsy file.

            Attorney Kenneally then contacted the Keeper of Records at the OCME, and requested the full OCME file. In or around mid-to-late September, 2024, an employee at the OCME contacted Attorney Kenneally and indicated that the OCME required a directive from the PCDAO regarding how it would like the OCME to distribute the autopsy file. This employee also indicated that, in accordance with the statutes and regulations which govern the OCME, it would need to have written permission from the DA’s office before releasing the file. The OCME further requested that Attorney Kenneally produce his own copy of the OCME file, so that it could be compared to the OCME’s office file. Upon reviewing the file submitted by counsel, the OCME conceded that the file in counsel’s possession was in fact incomplete.

            Throughout the fall of 2024, Attorney Kenneally repeatedly contacted the OCME and inquired about production of the complete McLean autopsy file. On October 29, 2024, counsel was informed that production of this file was still under consideration by the PCDAO’s First Assistant District Attorney. 

            In December, 2024, Attorney Kenneally filed a motion to produce all McLean-related records in the possession of the OCME. The Court (Gordon, J.) ordered that:

“Counsel for the Commonwealth shall have ten (10) days from the date hereof to either (a) turn over to defense counsel the entire file of the Office of the Chief Medical Examiner (OCME) pertaining to the death and autopsy of Sabrina McLean or (b) show cause why the Court should not order such production from the OCME forthwith.” (Docket Paper 139)

            By mid-February, however, the Commonwealth had not complied with the foregoing Court order. Accordingly, Attorney Kenneally filed a motion to compel the immediate production of all case-related records in the possession of the OCME. On February 21, 2025, the Court (Gordon, J.) ordered the Commonwealth to respond within seven days. (Docket Paper 140) On February 28, 2025, the Commonwealth provided defense counsel with the entirety of the OCME report, which included the report of the forensic neuropathologist.[3] Dr. Laposata’s affidavit recites that Attorney Kenneally immediately turned over the entire file, including the neuropathologist’s report, to her. According to one of his affidavits, Attorney Kenneally promptly furnished Attorney Scully with a copy of the complete OCME file to review. Attorney Scully confirms that he has no memory of ever having seen either the neuropathologist’s report or the accompanying brain section photos, and does not believe that they were ever turned over to him.

            In her affidavit, Dr. Laposata opines in material part as follows. After reviewing the belatedly disclosed neuropathology report and brain section photos taken during the neuropathologist’s examination, she concludes that the head injuries inflicted upon McLean neither caused nor contributed to her death. Dr. Laposata states that it is no longer her belief that the head injuries suffered by McLean were in any way incompatible with life. Instead, it is her professional assessment that the victim’s head injuries were not fatal, and would not have independently caused McLean’s death absent intervention of the tow truck. Dr. Laposata explains that having access to the neuropathologist’s report and the brain section photographs taken during the neuropathology examination was:

“critical [to] careful evaluation of the anatomy inside the brain. The photographs of the brain taken at the autopsy only showed the external outside surface of the brain. As I testified in court on June 28, 2016, the outside of the brain allowed me to determine that the brain was not swollen and that the small amount of blood on the surface of the left side of the back of the brain was clearly survivable.

The neuropathology report now shows that the inside of the brain (cut sections), in addition to the outside, was totally normal and without injury or destruction. Having this information available would have allowed me to show the jury the normal internal brain anatomy without injury, discrediting Dr. Welton’s testimony that Ms. McLean would have died from her head injuries alone.”

            Dr. Laposata additionally asserts that Dr. Welton had been incorrect in concluding that McLean’s head injuries were independently capable of causing her death, given “the neuropathology report and photographs that show the inside of the brain.” Instead, according to Dr. Laposata, “Ms. McLean would have survived but for being run over by the tractor trailer.” Dr. Laposata explains her reasoning for this conclusion as follows:

“The neuropathology report documents that the subarachnoid hemorrhage (bleeding under the arachnoid covering of the brain) measured only 1 1/2 inches by 1 3/4 inches in dimension. It was very thin and not a space-occupying amount of blood. The bruise of contusion on the back part of the brain (occipital lobe) was even smaller, measuring 1/8th inch and again was not a space-occupying lesion. The absence of a space-occupying lesion is important because significant and potentially life-threatening brain damage necessitates an injury expanding within the confines of the rigid skull. This can be caused by a space-occupying blood hematoma or bruise, brain tissue destruction, or swelling of the brain itself. None of these were present in Ms. McLean’s brain.

The photographs of Ms. McLean’s brain taken at the neuropathology examination did not show brain swelling or edema, the pathology which leads to brainstem herniation or midline shift and death. Likewise, there was no asymmetry of the brain structure, and no brain bleeds.

It is also important to reemphasize that Ms. McLean did not have any skull fractures. Dr. Welton’s notes that are part of the medical examiner file record the absence of skull fracture, although he testified otherwise. The absence of skull fracture is further documented by study of the photographs of her skull taken at autopsy. Although some of Ms. McLean’s blunt force impact injuries to her forehead and left eye area did reach to the underlying bone of the forehead, no skull fractures of the neurocranium (skull bones that surround the brain) were present.”

            Finally, Dr. Laposata explains in her affidavit how possession of the neuropathology report would have significantly altered the conclusions that she previously testified to at trial:

“Had I gained access to the neuropathy report and associated photographs at the time I authored my report and testified at trial, or had that information prior to the second trial, I could have explained to the jury that, had the tow truck not run over Ms. McLean, she would have survived her encounter with the defendant.  Her head injury caused a concussion or semi-conscious state (along with her high level of ethanol in her blood at the time of death) and rendered her unable to move from the garage floor where her body was subsequently run over and fatally crushed. A concussion is a type of traumatic brain injury that resolves and does not involve structural damage to the brain. The neuropathology report showed no evidence of any brain injury inside the brain that could cause death. In my testimony and in my report of 2016, I stated that earlier medical treatment of her brain subarachnoid hemorrhage would be needed to allow her survival; upon study of the neuropathy report I no longer hold that opinion.” (Emphasis added.)

            In his affidavit, Attorney Scully maintains that, if the neuropathology report had been produced prior to the 2021 trial, it would have substantially assisted in his ability to cross-examine the medical examiner who testified on behalf of the Commonwealth. Attorney Scully likewise believes that the withheld report would have been instrumental in furthering the defense’s position that the head injuries inflicted on McLean by Rhodes could not have independently caused her death.

IV. Evidentiary Hearing

            The Court conducted a three-day evidentiary hearing between May 4 and May 6, 2026. The hearing was addressed to the questions of whether the Commonwealth committed a Rule 14 violation in failing to disclose to defense counsel the neuropathology report from the McLean autopsy; and, if so, whether such violation was sufficiently material and prejudicial to the Defendant to warrant a new trial under Brady.

            At this hearing, the Defendant called eight witnesses and introduced 46 exhibits. The Commonwealth called two witnesses, and introduced 12 exhibits. All told, the Court received and reviewed thousands of pages of documentary and photographic exhibits, and multiple electronic drives containing autopsy records and the transcripts of two separate trials.

            As factual records go, and notwithstanding the seeming simplicity of the two questions presented, the evidence assembled at hearing in this case presents as something of a dog’s breakfast. Comprehensive though it is, the record evidence simply does not permit the construction of a clear narrative as to the inter-organizational travel of the McLean autopsy’s neuropathology report (and the 13 brain dissection photographs analyzed therein). Too much depends on human memories of events now more than a decade old, when the OCME’s systems and procedures for evidentiary management were not what they are today.[4] Thus, after reviewing the witness testimony at hearing and studying the relevant documents, the Court is unable to resolve with certainty the factual mystery that lies at the heart of the Defendant’s motion.[5] What the Court has concluded, however, is that Dr. Lindstrom’s 2014 neuropathology report and the interior brain section photographs it analyzed were never turned over to defense counsel prior to February, 2025. Indeed, the evidence for this conclusion is not merely preponderant, or even simply clear and convincing. It is nothing less than overwhelming.

            The Court rests its finding in largest part on the credible and essentially uncontroverted testimony of the lawyers who represented Rhodes at his 2016 and 2021 trials, respectively, and on the likewise credible testimony of the forensic pathologist these lawyers engaged to opine on the evidence from the McLean autopsy. The material points of the testimony and supporting exhibits so credited will be summarized briefly.

            Attorney John Darrell, who represented the Defendant at his first trial, testified that he prepared his case with a substantial emphasis on the issue of whether the Commonwealth could prove beyond a reasonable doubt that Rhodes caused McLean’s death. Acknowledging the centrality of this issue to his client’s defense, Attorney Darrell recalled that he was never provided a copy of either the neuropathology report (Def. Ex. B) or the brain dissection photographs from the McLean autopsy analyzed therein (Def. Ex. C). Attorney Darrell had specifically retained forensic pathologist Elizabeth Laposata, M.D. to render an opinion regarding McLean’s cause of death; and he then later filed a motion seeking production of the OCME’s complete autopsy file (Def. Ex. GG) when Dr. Laposata suggested to him that the materials he had originally sent her might be lacking a neuropathology report that analyzed interior sections of the decedent’s brain. (Def. Ex. J) In these circumstances, Attorney Darrell would not likely fail to recall receiving a neuropathology report that was critical to his client’s defense, expressly requested by his cause of death expert, and the subject of his only filed discovery motion.

            Attorney Darrell testified credibly that the first time he ever saw the neuropathology report and the brain dissection photographs at issue in this case was in connection with the Defendant’s Motion for New Trial, and only following the Court’s issuance of an order for production in December, 2024. Although Attorney Darrell does recall Dr. Welton making passing reference to a neuropathology report in the OCME’s official Report of Autopsy (Comm. Ex. A, at 7), Darrell testified that he believed this analysis was simply part of the McLean autopsy itself and not a separate report. Attorney Darrell explained that, particularly in light of his discovery motion (which sought from the OCME production of “all reports, diagrams, notes, photographs, results of scientific test[s] and any information relied upon by the Medical Examiner in the formulation of his opinion as to the cause of death”), he relied upon the PCDAO’s repeated assurances to the defense team and the Court that he had in fact been furnished with all of the reports and photographs included within the McLean autopsy file. These assurances included the cover letter from ADA Christine Kiggen to Dr. Laposata dated January 25, 2016 (Comm. Ex. E), as well as ADA Keary’s filed Certificate of Compliance (Def. Ex. JJ). Attorney Darrell thus testified that, at the time of the 2016 trial, he had no reason to believe that a free-standing neuropathology report had been prepared and withheld from production by the Commonwealth, and the Court credits his testimony in this regard.

            As important, Attorney Darrell testified that he made no strategic decision not to make use of the neuropathology report at trial – either to challenge Dr. Welton’s dual cause of death opinion, or to buttress Dr. Laposata’s own opinion regarding the survivability of McLean’s head injuries. Attorney Darrell explained that he routinely relies on every piece of evidence available to support a viable defense, and that he would have had no reason to do otherwise in the Rhodes case. Attorney Darrell testified that the only reason he made no use of the neuropathology report in Rhodes’ 2016 trial was that he was unaware of the report’s existence at the time. Once again, the Court credits this largely unimpeached testimony. 

            Attorney Liam Scully, appointed by the Committee for Public Counsel Services to represent Rhodes in his 2021 retrial, also testified regarding pretrial discovery matters in the case. According to Attorney Scully, and confirmed by ADA Kelley at hearing as well, discovery from the first trial was essentially re-produced to him in the runup to the second. (Def. Ex.  X) There was no separate discovery process undertaken in connection with the retrial; but the Commonwealth filed Certificates of Compliance on August 27, 2021 (Def. Ex. S) and October 21, 2021 (Def. Ex. U), attesting to the Court in each instance that the “Autopsy File for Sabrina McLean” had been produced to defense counsel. Although each Certificate of Compliance referenced the production of some 140 different items of evidence, neither cited a neuropathology report or a disc or drive containing interior brain photographs.

            Like Attorney Darrell, Attorney Scully testified to the importance he placed on the issue of cause of death, and about his engagement of Dr. Laposata to address such issue during Rhodes’ retrial. (Def. Ex. Q) Attorney Scully and Dr. Laposata thus focused substantial attention on the question of whether McLean’s head injuries were the “proximate cause” of her death, or whether those injuries were survivable such that the subsequent tow truck rollover could be deemed a superseding cause of the death for which Rhodes was not responsible. In this connection, Attorney Scully transmitted to Dr. Laposata all of the McLean autopsy documents and photographs on disc that had been provided to him by the prosecution. Attorney Scully testified that he did not recall seeing any neuropathology report from a forensic pathologist included within these materials, but was quite certain that he would have under no circumstances withheld any portion of a decedent’s OCME file from a scientific expert retained to consult with the defense. Attorney Scully has since had occasion to review the subject neuropathology report and brain dissection photographs produced by the OCME to post-conviction defense counsel. Scully confirms (to the best of his knowledge) that he saw these materials for the first time after they were turned over by the OCME to successor counsel following the Court’s December 30, 2024 order for production. (Def. Ex. H) The Court credits this testimony.

            Attorney Scully additionally testified that, at all times during the course of his representation of Rhodes at the 2021 retrial, he was of the belief that he had been provided with the complete McLean autopsy file developed by the OCME. When reminded on cross-examination of Dr. Welton’s testimonial reference to the neuropathology report, Attorney Scully explained that he recalled that he objected to this reference as hearsay and a violation of the Confrontation Clause, but did not register protest that there was an actual report in existence as part of the McLean autopsy file that had not been produced to him.[6] Attorney Scully testified that, had he known of the neuropathology report and the substantial doubt that Dr. Laposata believed it cast on the cause of death opinion of Dr. Welton, he would surely have made use of it at trial.

            Attorney Scully further testified that there would have been no conceivable strategic reason to forego use of the neuropathology report during the retrial, and there was no such reason in this case. Indeed, lacking the neuropathology report, Attorney Scully made the decision not to call Dr. Laposata to testify at all. Attorney Scully reasoned that the opinions set forth in Dr. Laposata’s June 24, 2016 report (Def. Ex. L) – viz., that McLean’s head injuries “were not necessarily incompatible with life,” and would have been survivable “with timely medical care” – were not sufficiently different from the cause of death conclusions of Dr. Welton[7] to justify reemphasizing this gruesome aspect of the case. The Court credits Attorney Scully’s testimony, both as to the actuality and reasonableness of the real-time judgment this lawyer made at trial.

      Dr. Elizabeth Laposata testified at hearing via the Zoom platform, confirming in all pertinent respects the testimony she provided in her July, 2025 report (Def. Ex. M) and affidavit (Def. Ex. N). Dr. Laposata, herself a former Chief Medical Examiner for the State of Rhode Island and a forensic pathologist of exemplary credentials and experience (see Def. Ex. K), testified that, after being retained by Attorney Darrell in September, 2015 to assist in Rhodes’ defense, she was provided with a set of case materials. These materials included the McLean autopsy report from the OCME, but did not include the report of a neuropathologist. (Def. Ex. N) When Dr. Laposata subsequently requested Attorney Darrell to ensure that she was in fact in possession of the complete OCME file for the McLean autopsy, ADA Kiggen (evidently at Attorney Darrell’s request) transmitted a fresh set of OCME materials to her. These materials were represented by ADA Kiggen to include the following:

“1. A complete copy of the OCME file regarding the  autopsy of Sabrina McLean, OCME # 2014-11760;

                        2. Grand Jury Minutes of Dr. Robert Welton (29 pages);

3. Sabrina McLean autopsy photos – CD and copy of  each photograph (14 pages double-sided).” (Def. Ex. HH)

Once again, however, this transmittal from ADA Kiggen did not contain a neuropathology report or brain dissection photographs. (Def. Ex. N)

            At hearing, the Court examined all of the digital evidence that had been provided to Dr. Laposata from all sources (discs containing 236 autopsy photos, 151 crime scene photos, and 35 hospital photos). (Def. Exs. MM, NN, OO, PP, QQ, RR and SS). The Court then accepted an agreed proffer from counsel for the Defendant and the Commonwealth that these discs were an identical match to those maintained by the Massachusetts State Police (as testified to by Detective John Santos) and the PCDAO (as testified to by ADA Kiggen). More critically, none of these discs contained either the Lindstrom neuropathology report or the 161 brain dissection photographs at issue in this case. (Def. Ex.  TT; Comm. Ex. A)

            Based on the information provided, Dr. Laposata prepared a report (Def. Ex. L) and testified on behalf of the defense at Rhodes’ 2016 trial. The thrust of Dr. Laposata’s testimony was that, while McLean’s head injuries could have rendered her concussed, such injuries were “not necessarily incompatible with life.” Because the victim’s skull was not fractured and there were no evident “space-occupying brain injuries,” timely medical care would have allowed McLean to survive these injuries. At trial, however, Dr. Laposata’s opinion was necessarily limited by the fact that her only means of assessing the extent of McLean’s brain injury was an examination of the external photos of the brain taken at the autopsy.[8] So limited, Dr. Laposata was forced to concede at trial that, independent of the tow truck rollover that she believed actually killed the victim, McLean’s head injuries could have caused her death if left untreated more than a couple of hours.

            Following the SJC’s 2019 vacating of the Defendant’s murder conviction on unrelated grounds, Attorney Scully re-engaged Dr. Laposata in 2020 to assist the defense in Rhodes’ upcoming retrial. Dr. Laposata promptly requested that Attorney Scully provide her with the complete OCME file of the McLean autopsy, and Attorney Scully confirmed that she was in possession of the complete file. Once again, Dr. Laposata testified credibly that she had not at this point seen any neuropathology report or brain dissection photographs, and none were contained in the OCME materials in her possession from the 2016 trial. At hearing, Dr. Laposata acknowledged that she was not called to testify at Rhodes’ 2021 trial, but did supply the reasons for such decision as Attorney Scully had.

            Dr. Laposata testified that she was contacted by Attorney Kenneally in 2024 to consult in connection with a post-conviction challenge being mounted on behalf of Rhodes. In then studying the transcript of the 2021 retrial, Dr. Laposata took note that the OCME’s Dr. Welton made reference during direct examination to his review of the report of a neuropathologist, and testified that nothing in such report altered his findings relative to head injuries being the cause of McLean’s death. This prompted Dr. Laposata to confirm in her own files that she did not in fact possess the referenced neuropathology report, and to inquire of Attorney Kenneally once again as to whether a neuropathology report in fact existed but had not been transmitted to her..[9]

            The hearing record contains a batch of email communications between Attorney Kenneally and representatives of the PCDAO. (Def. Ex.  BB) These June/July, 2024 communications are to the effect that none of the parties thereto were then in possession of a neuropathology report. Indeed, ADA Burbine at one point acknowledged that a colleague in the PCDAO’s Office had personally reviewed all of the banker’s boxes comprising the Rhodes case file, and located no evidence of a neuropathology report or related x-rays.[10] ADA Burbine then stated that this led her and her colleagues to “wonder if the consultation and a report were actually done (?).” (Def. Ex. BB) In other words, as of July, 2024, lawyers from the PCDAO that had prosecuted the Rhodes case, the same office which now insists the Lindstrom neuropathology report and brain section photographs were produced to the defense team in accordance with Rule 14 ten years earlier, were themselves uncertain whether these autopsy materials even existed at all. This evidence casts a very long shadow on the Commonwealth’s present position in opposition to Rhodes’ Rule 30 motion.

            Dr. Laposata testified that it was not until Attorney Kenneally pursued production of the neuropathology report further by way of post-conviction discovery motions directed to the OCME that a report and accompanying brain dissection photographs emerged. Dr. Laposata came into possession of these materials for the first time in March, 2025, following the OCME’s compliance with two orders of the Court.

            Upon her review of the neuropathology report and the brain section photos it analyzed, Dr. Laposata concluded that her earlier report and opinion concerning Sabrina McLean’s cause of death had been in error. Now possessed of internal brain section images she had lacked at the time of Rhodes’ 2016 and 2021 trials, Dr. Laposata opines without qualification that McLean’s head injuries were not sufficiently extensive to cause death, and that McLean could in fact have survived such injuries had she not been run over by a tow truck a short time later. (Def. Ex. M) Expressing no view as to whether Dr. Laposata’s current opinion is in fact medically correct or would necessarily establish reasonable doubt regarding whether the head injuries inflicted by Rhodes were a cause of McLean’s death, the Court credits Dr. Laposata’s testimony that the opinions reflected in her July 7, 2025 report (Def. Ex.  M) and July 28, 2025 affidavit (Def. Ex. N) are in fact her sincerely held views. The Court further credits Dr. Laposata’s testimony as supplying reasonable grounds upon which a jury could – if it credited such testimony – conclude that Rhodes did not in fact cause McLean’s death, and that such death in fact resulted from the intervening and unrelated cause of a tow truck rolling over the decedent’s lower torso.

            Reinforcing the material portions of the testimony of Attorneys Darrell and Scully and that of Dr. Laposata was the hearing testimony of former PCDAO ADA Arne Hantson. ADA Hantson was assigned to review the complete prosecutorial file in the Rhodes case in 2024, and to prepare the Commonwealth’s opposition to the Defendant’s forthcoming Motion for New Trial. At hearing, ADA Hantson testified about the comprehensive review of the seven banker’s boxes comprising the Rhodes case file that he performed in late November, 2025.[11]. In that hours-long review, conducted in the presence of defense counsel, ADA Hantson determined that the Commonwealth’s case file (at least as it existed on November 28, 2025) did not include the Lindstrom neuropathology report. This determination – viz., that the PCDAO was not in possession of the neuropathology report in issue, because its seven boxes of Rhodes case records did not contain such report – resulted in the parties entering into the following hearing stipulation:

                                    “The Commonwealth and the Defense conducted a

                                      thorough review of the physical file (consisting of 

                                      seven (7) boxes) associated with George Rhodes’

                                      case in the custody of the Plymouth County District

                                      Attorney’s Office on November 28, 2025. The parties

                                      agree that the neuropathology report authored by

                                      Katherine Linstrom [sic] was not located in the file. A

                                      picture of the file is hereby attached.”

(Def Ex. P) The fact that the Commonwealth’s own comprehensive case file[12] did not include Dr. Lindstrom’s neuropathology report constitutes powerful evidence supporting the contention of Rhodes’ lawyers and expert that such report was never turned over to them prior to February/March of 2025.

            At hearing, counsel for the Commonwealth suggested (for the first time) that the neuropathology report and the brain dissection photographs it analyzed might not have been maintained as a single evidentiary item. The notion that the Commonwealh thus advanced is that, while the neuropathology report may not have been part of the Rhodes case file assembled by the PCDAO, the internal brain dissection photographs underlying its analysis perhaps were. The Commonwealth, however, introduced no actual evidence to this effect; and the only hearing witness who addressed the suggestion that the PCDAO’s 7-box case file may have contained the subject photographs testified to the contrary. ADA Hantson thus testified that he performed a careful examination of the Rhodes case file, in search of the errant neuropathology report; that he understood that this report directly concerned brain section photographs; that he did not recall observing any such photographs present within or among the examined case materials; and that, given the nature and importance of this issue to post-conviction proceedings and his own personal familiarity with neuroscience,[13] he would recall had he seen such photographs during his review. In these circumstances, noting ADA Burbine’s admission to the same effect a year earlier, and applying a common-sense construction to the stipulation introduced at hearing as Def. Ex. P, the Court finds that the Rhodes case file maintained by the PCDAO did not (as of November 28, 2025) include either the Lindstrom neuropathology report or the brain dissection photographs analyzed therein.

            Even the Commonwealth’s hearing witnesses were unable to provide the Court with any basis upon which to conclude that the neuropathology report and related photographs were turned over to the defense team as the prosecution now claims. Indeed, the utter absence of such evidence of transmittal is itself probative of the inference that these case materials were never produced until post-conviction counsel secured them from the OCME in February, 2025.

            By way of example, Dr. Welton testified to his role in the conduct of the McLean autopsy, confirming that he ran the principal procedure that occurred on September 10, 2014 and, with Dr. Karen Lindstrom, performed the brain sectioning and photograph-taking that took place on December 11, 2014. Dr. Welton recalls that he approved and signed off on Dr. Lindstrom’s resulting neuropathology report, and the uploading of both the report and the related brain dissection photographs to OCME servers. What Dr. Welton does not recall, however, was whether these materials would have been stored within or among the main autopsy files or on a different server,[14] and has no present memory of what was done with the brain dissection photos in this case. Dr. Welton further acknowledges that he was not personally involved in the dissemination of the neuropathology report after he signed off on it, and likewise had no role in responding to requests for autopsy files received from the OCME’s Legal Department. Thus, while Dr. Welton was able to identify the cache of 161 brain dissection photographs included as a folder in the McLean autopsy file ultimately produced by the OCME in 2025 (Comm. Ex. C), he could shed no light on how or when those particular photographs made their way into the file.[15]

            Hearing testimony from the two prosecutors who served as lead counsel at the 2016 and 2021 trials prove equally unhelpful to the Commonwealth’s position. ADA Kiggen testified credibly to the role she played in assembling and then distributing discovery in the Rhodes case. It is clear to the undersigned, and the written record bears witness, that ADA Kiggen worked assiduously to assure that the Commonwealth produced all of the Rule 14 evidence to which Rhodes’ defense team was entitled. ADA Kiggen’s efforts included persistent (over several months) email communications with OCME paralegal Lisa Riccobene and Massachusetts State Police administrator Brenda Contos, communications intended to confirm that all McLean autopsy materials had been turned over. (Def. Ex. Y; Comm. Ex. D) In these communications, the OCME and Massachusetts State Police expressly assured ADA Kiggen that she was in possession of the complete McLean autopsy file, and that nothing had been withheld from her. (Id.) Reasonably relying upon these assurances, ADA Kiggen transmitted what she believed and represented to Dr. Laposata to be a “complete copy of the OCME file regarding the autopsy of Sabrina McLean (OCME # 2014-11760).” (Comm. Ex. E)

            ADA Kiggen acknowledged at hearing that she had never seen the Lindstrom neuropathology report and related brain dissection photographs; so, in the Court’s estimation, she cannot be faulted for what the record now makes clear was her misstatement to Dr. Laposata. A comparison of the contents of the McLean autopsy-related cd’s possessed by ADA Kiggen, Dr. Laposata (as received from Attorney Darrell and ADA Kiggen), and the Massachusetts State Police (per Detective John Santos) has since confirmed that those parties possessed identical autopsy files. Most critically, none of them included either the neuropathology report or the 161 brain dissection photographs which surfaced in the OCME’s production of same to the PCDAO in February, 2025. (Def. Exs. MM – TT)

            The hearing testimony of ADA Keara Kelley, who prosecuted Rhodes’ 2021 retrial, is to similar effect. ADA Kelley testified credibly that, following the reversal of Rhodes’ first conviction and after she became lead counsel for the Commonwealth, she did not reprise the discovery process that had been conducted in connection with the 2016 trial.[16] Like ADA Kiggen, ADA Kelley never saw a neuropathology report and never discussed one with Dr. Welton prior to his appearance at trial. ADA Kelley instead assumed that any neuropathology analysis and photographs had been included with the OCME’s autopsy file previously produced to Rhodes’ lawyers and pathology expert. In reasonable reliance on the same assurances from OCME and Massachusetts State Police staff that all components of the McLean autopsy file had been turned over, ADA Kelley represented to the Court in successive Certificates of Compliance that these materials had been produced to the Defendant in accordance with Rule 14. (Def. Exs. S and U) These Certificates of Compliance, like the one ADA Kelley filed prior to the 2016 trial (Def. Ex. JJ), made no express reference to an OCME neuropathology report, and the hearing evidence makes clear that neither the report itself nor the brain dissection photographs it analyzed were then in the possession of the police, the prosecutors, or the trial lawyer representing Rhodes. The Court obviously intends no criticism of ADA Kelley in calling out the misstatements contained in her filed Certificates of Compliance, for none is due. Like ADA Kiggen, ADA Kelley had no reason to believe that the McLean autopsy materials in her possession were anything but complete, and she produced to Attorney Scully everything that she in fact had. That said, it appears that ADA Kelley was laboring under a misapprehension that rendered her sworn assurance of full discovery compliance inaccurate. ADA Kelley failed to turn over the neuropathology report and related brain dissection photographs, because she never possessed them herself.

            Finally, the Court notes that the testimonies of Brenda Contos (the administrative assistant assigned by the PCDAO to the Massachusetts State Police) and Mercedes Robinson (an intake specialist and keeper of records employed by the OCME) do little to reveal what lapse in process caused the neuropathology report and related brain photographs to be omitted from the McLean autopsy materials until they were produced in response to the Court’s December, 2024 order. Ms. Contos was at all times relevant a human clearinghouse for case-related documents, photographs and reports submitted to the PCDAO by the police, the OCME and other internal and external organizations. Ms. Robinson, in turn, worked for the OCME, and was responsible for disseminating records both among the various departments that comprise the OCME and to other appropriate stakeholders as well. Although Ms. Contos and Ms. Robinson both testified to the administrative functions they carried out in this case, and customarily, neither possessed knowledge of the precise travel of the neuropathology report and photographs in issue. Their testimony is thus of limited usefulness to the Court’s assessment of what transpired and/or went awry during the Rhodes discovery process.

            In the final analysis, and as counsel for both sides conceded on the last day of hearing, there is simply no way for the Court to determine with anything resembling certainty what precisely happened in the handling of the neuropathology report that caused it to be omitted from the McLean autopsy materials that were transmitted to Attorneys Darrell and Scully and to Dr. Laposata. What the evidence surely does show, however, is that, in December of 2014, Drs. Welton and Lindstrom performed a neuropathology examination of the decedent, and took some 161 brain dissection photographs in connection with same. The resulting written report and digital images were then uploaded to a server, but were not identified with the OCME case number associated with the McLean autopsy. There followed a series of communications and transmittals among representatives of the OCME, the Massachusetts State Police, and the PCDAO; but what was ultimately produced to Rhodes’ trial lawyers (Attorney Darrell in 2016, and Attorney Scully in 2021) did not include the neuropathology report or the related brain dissection photographs. Wholly apart from the testimony of Attorneys Darrell and Scully and Dr. Laposata, who testified credibly and without contradiction that they never saw these particular materials until after February, 2025, the Commonwealth’s own lawyers (ADA’s Burbine and Hantson) confirmed that the PCDAO’s files in the Rhodes case did not contain this evidence when they searched for it in June, 2024 and November, 2025. In these circumstances, and without ascribing fault to any particular member of the prosecution team, the undersigned finds as fact that the neuropathology report and related brain section photographs were not produced to the Defendant as required by Rule 14.     

DISCUSSION

            The Defendant moves for a new trial on two grounds. First, he argues that the Commonwealth violated its disclosure obligations under Brady by failing to produce the forensic neuropathology report in response to a specific request for same from defense counsel prior to the 2021 trial. Alternatively, the Defendant argues that if his 2021 trial counsel were in possession of the neuropathology report, such counsel was ineffective in failing to introduce that report (and the modified opinion of Dr. Laposata) into evidence as a challenge to the Commonwealth’s theory of causation. A motion for new trial pursuant to Mass. R. Crim. P. 30(b) is addressed to the sound discretion of the trial judge, who may grant such relief if it appears that justice may not have been done. Commonwealth v. Miranda, 492 Mass. 301, 319 (2023). This is, regrettably, such a case.

            I. Violation of Brady Disclosure Obligations

            In Brady v. Maryland, 373 U.S. 83 (1963), the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”  Id. at 87. To obtain a new trial based on undisclosed exculpatory evidence, a defendant must establish (1) that the evidence was in the possession, custody, or control of the prosecutor or a person subject to the prosecutor’s control, (2) that the evidence is exculpatory, and (3) prejudice to the defendant. Commonwealth v. Caldwell, 487 Mass. 370, 375 (2021).

            Evidence is exculpatory if it provides some significant aid to the defendant’s case, whether it furnishes corroboration of the defendant’s story, calls into question a material (although not indispensable) element of the prosecution’s version of events, or challenges the credibility of a key prosecution witness. Id. “‘Favorable evidence’ [or exculpatory evidence] need not be dispositive evidence.” Commonwealth v. Daniels, 445 Mass. 392, 401 (2005). “Evidence may be favorable or exculpatory, and thus required to be disclosed, although it is not absolutely destructive of the Commonwealth’s case or highly demonstrative of the defendant’s innocence.” Id.  Where, as here, the non-disclosure of exculpatory evidence by the prosecutor follows a specific discovery request from the defense, “a defendant need only demonstrate that a substantial basis exists for claiming prejudice from the nondisclosure.” Commonwealth v. Pope, 489 Mass. 790, 801 (2022). In those cases, courts look to the record to determine whether, even if the prosecution had supplied the evidence to the defendant in a timely fashion, the evidence disclosed by it would not have influenced the jury. Id.

            Here, all the elements of a Brady violation warranting a new trial are present. First, the Court has found that the strongly preponderant evidence in this case demonstrates that the prosecution team (viz., the OCME) was in possession of the neuropathology report, but never produced such report to Rhodes’ defense team. See ante.

            Second, the undisclosed forensic neuropathology report is undeniably exculpatory, a proposition the Commonwealth does not seriously contest. The report calls into question a material element of the prosecution’s case, viz., the direct causation of the victim’s death resulting from head injuries inflicted upon her by Rhodes. If presented at trial, the neuropathology report would have permitted the jury to find that McLean could have survived her head injuries, and that she did not (and would not) necessarily die from those injuries within minutes to hours as opined by Dr. Welton. At the same time, the neuropathology report furnishes strong grounds for undermining the credibility of Dr. Welton, a key prosecution witness (viz., it would have allowed Dr. Laposata to show the jury that McLean’s internal brain anatomy was without injury, thereby discrediting Dr. Welton’s opinion that McLean would have died from her head injuries alone). No other evidence offered at trial did either of these things. See Caldwell, 487 Mass. at 375 (“evidence is exculpatory if it . . .  calls into question a material . . . element of the prosecution’s version of events, or challenges the credibility of a key prosecution witness” (citation omitted)).

            Third, the withholding of the neuropathology report (specifically requested by defense counsel) prejudiced Rhodes, because introduction of the report at trial might well have influenced the jury’s decision to convict. See Pope, 489 Mass. at 801 (“[i]n cases involving a specific request for evidence, [courts] . . . look to the record to determine whether . . . even if the prosecution had supplied the [evidence] . . .  to the defendant in timely fashion, the . . .  available evidence disclosed by it would not have influenced the jury”) (citation omitted). Had Rhodes’ trial counsel received the neuropathology report, he could have used it both to impeach Dr. Welton’s testimony and to provide the jury with evidence squarely refuting the Commonwealth’s primary theory of causation – viz., that McLean’s head injuries would, without more, have directly caused her death had she not received medical care within minutes to hours. Had the jury heard such evidence, and confronting the reasonable doubt this evidence might have engendered, they would have been far more likely to consider the much cloudier question of indirect or set-in-motion causation. That is, faced with evidence negating the Commonwealth’s direct theory of causation, the jury likely would have had to make a determination as to whether it was reasonably foreseeable that, after Rhodes left McLean lying on the ground of a parking garage late at night, a vehicle would have backed over her and thereby caused serious lower-body injuries that led to her death.

            The Commonwealth puts forward two arguments in support of its position that Rhodes was not prejudiced by the withholding of the neuropathology report. First, it argues that the report was cumulative of other evidence received by the jury, because Dr. Welton testified that he endorsed the conclusions contained in the report itself regarding McLean’s head injuries. The Court does not agree. The issue presented is surely not whether the report itself was cumulative of Dr. Welton’s interpretation of it, but whether Dr. Loposata’s analysis of the report was. Because Dr. Laposata, upon examining this report, reached the diametrically opposite conclusion from Dr. Welton regarding whether McLean’s head injuries could alone have caused her death, this un-heard expert’s opinion is plainly not cumulative of any evidence received by the jury at trial. See Commonwealth v. Rodriguez-Nieves, 487 Mass. 171, 180 (2021) (expert opinion, derived from review of late-disclosed information, that provided sole grounds for undermining major component of prosecution’s case was newly discovered evidence warranting new trial); Commonwealth v. Vaughn, 32 Mass. App. Ct. 435, 442-43 (1992) (prosecution’s failure to turn over evidence that would have led to expert testimony calling into question veracity of important government witness constituted prejudice). Compare Commonwealth v. Barry, 481 Mass. 388, 400 (2019) (no Brady violation where withheld medical records demonstrating prosecution witness’s drug use were cumulative of other trial evidence establishing such drug use). Dr. Laposata interprets the images and data addressed in the neuropathology report in a dramatically different way than Dr. Welton did. There is nothing remotely cumulative in these divergent expert opinions, notwithstanding the fact they rest upon the same underlying data.

            Second, the Commonwealth argues that, inasmuch as the evidence at trial was sufficient for the jury to have found that Rhodes caused McLean’s death either directly by inflicting fatal injuries to her head or indirectly by setting in motion a series of events that foreseeably resulted in her death (viz., injuring McLean’s head and then leaving her incapacitated and unobservable in a darkened garage where she could be run over by an incoming vehicle), the failure of the Commonwealth to disclose the neuropathology report caused no prejudice. Stated otherwise, the Commonwealth maintains that the sufficiency of the evidence establishing both direct causation and an alternate, indirect cause of McLean’s death renders its Brady violation (viz., the failure to disclose exculpatory evidence regarding the direct cause of death) non-prejudicial. In support of its argument, the prosecution cites cases such as Commonwealth v. Plunkett, 422 Mass. 634 (1996), for the “the general rule in the Commonwealth . . . that there must be a new trial if . . . a jury, given two theories of guilt, returned a general verdict, and the evidence supported a guilty verdict on only one of those theories.” Plunkett, 422 Mass. at 638. It distinguishes that line of cases from the case at bar, reasoning that because there was sufficient evidence for the jury to find Rhodes guilty under either theory of causation, there is no need for a new trial. The Court does not agree. The authorities relied upon by the Commonwealth regarding the sufficiency of evidence to support a conviction simply do not apply to the case at bar. Here, Rhodes concedes that there was sufficient evidence to support his conviction under either theory of causation. What he correctly argues, however, is that he was prejudiced -- within the meaning that Brady assigns to that term -- by the Commonwealth’s failure to turn over a neuropathology report that might have exonerated him under the primary theory of causation argued by the prosecution. 

            In making the determination whether to grant a new trial due to a Brady violation, the judge’s task is to decide what effect the withheld evidence might reasonably have had on the jury. Commonwealth v. Tucceri, 412 Mass. 401, 411 (1992). In this regard, the law strives to preserve, as well as it can in the circumstances, a defendant’s right to the fair judgment of his peers. Id. The issue is not what, if any, impact the undisclosed evidence has on the judge’s personal assessment of the trial record. Id. Nor is the issue what the jury might permissibly have done in the absence of such evidence. Brady instead calls upon the Court to evaluate what might reasonably have happened had the prosecution fulfilled its duty to disclose the exculpatory evidence and the jury had received such evidence at trial. Id. “[That standard] . . .  does not mandate, as a condition of the granting of a new trial, that a judge conclude that a reasonable doubt would have been created if the undisclosed evidence had been before the jury.” Id. at 414. The Court may order a new trial due to a Brady violation “even though it is not certain that the evidence would have produced a verdict of not guilty.” Id. In deciding whether to grant a new trial based on newly discovered evidence, a review involving an analogous standard to the one at issue here,[17] the Supreme Judicial Court has held:

“Where we determine that newly discovered evidence likely would have functioned as a real factor in the jury’s deliberations, or (as in this case) that subsequently discredited evidence likely did function as a real factor, we may not then assess whether the jury still would have reached the same conclusion. Instead, the determination that the evidence likely was a real factor in the jury’s deliberations demands a new trial.”

Commonwealth v. Cowels, 470 Mass. 607, 623 (2015) (emphasis added).

            In the case at bar, had the jury received testimony from Dr. Laposata refuting the Commonwealth’s direct causation theory, they would have been much more likely to reach the alternate theory of cause of death argued by the prosecution; and, on the evidence presented, the jury could warrantably have found that the Commonwealth had not carried its burden of proof (that is, to show beyond a reasonable doubt that it was foreseeable that McLean’s death would occur in this alternate manner). Substantial evidence at trial called the matter of reasonable foreseeability into real question. Because the alcove required a key-card to open the inner door, it was not likely that a vehicle entering the garage would be driving very fast. This diminishes the likelihood (and thus the foreseeability) of the kind of rollover that occurred. An incoming vehicle would likewise have slowed in preparation for a stop to open the inner door, once again lessening the probability that the vehicle’s driver would fail to observe a person in his path in time to avoid the rollover. Such a vehicle would also presumably have had functioning headlights and taillights. The unexplained failure of the Clem tow truck to have such working equipment on the night in question might well have contributed to the rollover that killed McLean, yet another fact tending to diminish the foreseeability of such causation. The same could be said of the poor lighting conditions that prevailed in the garage bay that night. These are conditions that compromise safety in general, and may have contributed to the McLean fatality in ways that a reasonable person would not regard as foreseeable as a matter of course. Furthermore, the drivers of many vehicles backing into this garage alcove might have been able to observe McLean through a rear-end camera, which Clem lacked, or might have inspected the area more closely than Clem before backing into it. These facts, too, tend to lessen the probability, and thus the foreseeability, that McLean would have been killed in the manner she was. Finally, and perhaps most critically, the issue of reasonable foreseeability is a jury question. It is part of the causation element of the charged crime as to which the Commonwealth bears the burden of proof beyond a reasonable doubt. Foreseeability is not a question that can be commandeered by the Court consistent with a defendant’s Sixth Amendment rights, and the undersigned thus cannot dictate (as the Commonwealth urges) that the arrival of the tow truck and the particular manner of its operation in this case were reasonably foreseeable as a matter of law. See Cowels, 470 Mass. at 623; Commonwealth v. Carlson, 447 Mass. 79, 84 (2006) (whether intervening act was reasonably foreseeable, and thus followed naturally from defendant’s conduct, or was instead unforeseeable and thereby broke the chain of causation, is question of fact for jury to decide); Commonwealth v. Roberio, 428 Mass. 278, 281 (1998) (not proper for trial judge to remove issue of credibility of un-raised defense from jury).

            To deny Rhodes a new trial based on supposition that the jury might have accepted the Commonwealth’s alternate theory of indirect/set-in-motion causation, when that theory was itself open to substantial question on the record before them, would deprive the Defendant of his constitutional due process right. That is, to have an important defense to an essential element of the crime (viz., the prosecution’s primary theory of causation) considered on a fair factual record that would surely have played a part in the jury’s deliberations. See supra. It would equally deny this Defendant his constitutional right to trial by jury. See Commonwealth v. Gebo, 489 Mass. 757, 764 (2022) (criminal defendant has constitutional right to jury trial, the normal and preferable mode of disposing of issues of fact in criminal cases). A new trial is required here in accordance with the principles of Brady.

            II. Ineffective Assistance of Counsel

            A defendant has a right to competent counsel under the Sixth Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights. See Commonwealth v. Marinho, 464 Mass. 115, 124 n.11 (2013). Where a motion for new trial is based on a claimed ineffective assistance of counsel, the defendant must show that (1) the behavior of counsel fell measurably below that which might be expected from an ordinary fallible lawyer, and (2) such failing likely deprived the defendant of an otherwise available, substantial ground of defense. See Commonwealth v. Tavares, 491 Mass. 362, 365 (2023). Arguably reasoned tactical or strategic judgments do not amount to ineffective assistance of counsel unless they are manifestly unreasonable when made. Commonwealth v. Ortega, 378 Mass. 408, 413 (1979). When a defendant is convicted of murder in the first degree, Rule 30 courts determine whether trial counsel’s purportedly ineffective assistance created a substantial likelihood of a miscarriage of justice. See Commonwealth v. Ng, 491 Mass. 247, 268 (2023). To do this, the reviewing court must determine whether defense counsel committed an error during the trial and, if so, whether such error was likely to have influenced the jury’s conclusion. Id.

            Here, there appears to be little disagreement that any decision by defense counsel not to use the report from the forensic neuropathologist at trial would have been manifestly unreasonable. As stated above, this report represented the sole piece of evidence that would have enabled defense counsel to refute the Commonwealth’s primary theory of direct causation, rendering it far more likely that the jury would have considered the less clear-cut issue of indirect (or set-in-motion) causation.[18] See Commonwealth v. Hampton, 88 Mass. App. Ct. 162, 167 (2015) (when sole defense in case was not explored by defendant’s trial counsel, it was manifestly unreasonable and constituted ineffective assistance). The presentation of a forceful challenge to direct causation (which, if defense counsel possessed the critical evidence supporting same, was not pursued at trial for reasons that defy explanation)[19] would have very likely been a “real factor” in the jury’s deliberations and decision to convict.

            The closest the Commonwealth has ever come to putting forward a strategic rationale for defense counsel’s non-use of the neuropathology report at trial was the suggestion that since Dr. Welton testified that the report was consistent with (and did not alter) his conclusions regarding the cause of McLean’s death, introduction of the report into evidence would have been cumulative. Not so. As the Court has previously stated, see ante at pp. 33-34, Dr. Laposata’s interpretation of the Lindstrom neuropathology report and the brain dissection photographs it analyzed diverges sharply from the causation opinion proffered by Dr. Welton at trial. Although Drs. Welton and Laposata interpret the same underlying data, they reach diametrically opposite conclusions. Dr. Welton opines that the severity of McLean’s brain injuries would likely have killed her within a matter of minutes or hours; whereas Dr. Laposata, armed with the neuropathology report she lacked at the time of her 2016 trial appearance, concludes definitively that McLean would not have died from her head injuries alone. Contrary to Dr. Welton’s dual-causation opinion, Dr. Laposata maintains that the tow truck rollover was the singular cause of McLean’s death. In no sense can an expert opinion that flatly contradicts a key element of the prosecution’s case be considered cumulative of it.[20] 

            As set forth ante, it is the Court’s conclusion that the prosecution failed to turn over the forensic neuropathology report as part of McLean’s autopsy documents, and that such failure of production violated Brady by depriving the Defendant of exculpatory evidence that would have been a real factor in the jury’s deliberations. Even if the Court were somehow persuaded that the Commonwealth did disclose the neuropathology report, however, and it is not, the failure of Rhodes’ trial lawyers to make use of such report in the manner Dr. Laposata does now (casting substantial doubt on Dr. Welton’s conclusion that McLean would likely have died from her head injuries alone even had she not been run over by a tow truck) clearly constitutes ineffective assistance of counsel. The non-use of such exculpatory evidence represents inexplicable performance falling far below that of an ordinary fallible lawyer; and, in this case, non-use of the evidence deprived Rhodes of a clearly substantial ground of defense. See Commonwealth v. Tavares, 491 Mass. 362, 368 (2023) (trial counsel’s failure to investigate potentially exculpatory proffer was ineffective assistance).

CONCLUSION

            The undersigned obviously takes no relish in ordering retrial for a man who has already twice been convicted for the same savage murder. But in the case at bar, and for the reasons set forth hereinabove, the Constitution requires nothing less. For all of these reasons, the Defendant’s Motion for New Trial shall be, and hereby is, ALLOWED.

@/s/Robert B. Gordon

Justice of the Superior Court

Dated:

May 20, 2026

 

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[1] No one entered or exited this garage between the time of the Defendant’s departure and the arrival of the tow truck. 

[2] A second entrance to the garage is located on Frederick Douglass Avenue, and this entrance provides access to the second floor of the garage.

[3] Any reference herein to “the report of the forensic neuropathologist” or the “neuropathology report” includes both the written report itself and the therein-analyzed brain dissection photographs taken during the examination by OCME neuropathologist Katherine Lindstrom, M.D. Whether the neuropathology report and related brain section photographs were physically stored on the same or different computer servers is matter of uncertainty not resolved at hearing.

[4] Compare the OCME’s currently operative policies (Def. Ex’s.  E, F and G), which evidently had no comparable antecedents in 2014.

[5] To wit, what exactly happened to the neuropathology report after its initial creation?

[6] Although Dr. Welton’s reference to the neuropathology report during his trial testimony tends to negate any inference that the report had been withheld from production intentionally (why would the prosecution introduce any evidence of a report it had deliberately sought to conceal?), this fact hardly demonstrates that Rhodes’ defense team had been provided the neuropathology report in the manner required by Rule 14 and Brady. Whatever the reason for Attorney Scully’s failure to object at trial to the non-production of this due discovery (and any number suggest themselves), the Court rejects the inference urged by the Commonwealth that it signifies that Attorney Scully was in fact in possession of the report at the time.

[7] Dr. Welton was on record in the first trial with the comprable view that the injuries to McLean’s head were severe enough to have produced death within “minutes to hours” if she did not receive timely medical attention. See ante at p. 5.

[8] Dr. Laposata did testify at trial that “there was nothing inside the brain itself that was injured” (Comm. Ex. J, at 14), a statement the Commonwealth argues suggests that Dr. Laposata had seen the brain dissection photos analyzed in the neuropathology report. At hearing, however, Dr. Laposata forthrightly conceded that this was a misstatement, and that what she had intended to say was that nothing from her examination of the skull’s interior, and nothing else contained in Dr. Welton’s autopsy report, led her to believe that McLean’s brain had been injured. In light of all of the other evidence consistent with her denial that she ever saw interior brain section photographs prior to March, 2025, together with the fact that this expert’s trial testimony contains no other references to any analysis of internal injuries to McLean’s brain, the Court credits this explanation from Dr. Laposata.

[9] Although Dr. Laposata was aware from the first trial that the McLean autopsy itself included a reference to a “pending” neuropathology examination, Dr. Laposata testified that any number of circumstances could explain the absence of a neuropathology report in the OCME’s files. These include that the report had never actually been prepared; or had never been reviewed or approved; or had never been transcribed; or had been misfiled or otherwise lost. (The Court infers that, given the repeated assurances from counsel that she in fact had everything contained in the OCME’s autopsy file in the McLean case, Dr. Laposata surmised that one of these explanations was the right one.) Drawing upon her experience as Chief Medical Examiner for the State of Rhode Island, therefore, Dr. Laposata explained that Dr. Welton’s reference to a pending neuropathology report in the written autopsy did not lead her to think that such a report in fact existed. Seeing Dr. Welton’s lengthier testimonial reference to the report in the trial transcript, however, triggered a different belief. The Court credits this explanation of Dr. Laposata’s state of mind.

[10] The Court interprets this as a misstated reference to digital photographs.

[11] The Court also infers that ADA Hantson was the unnamed PCDAO colleague to whom ADA Burbine referred in her June, 2024 email communication with Attorney Kenneally.

[12] ADA Hantson confirmed that this file included all of the prosecution’s hard copy reports and documents, crime scene and autopsy photographs, and cd’s containing a variety of other documentary and photographic evidence.  

[13] ADA Hantson testified that, prior to attending law school, he had an academic background in neuroscience and, at one point, was intending to make a career in the field.

[14] Dr. Welton testified that there was no standard OCME practice in place at the time.

[15] In what is a potentially revealing fact, the Court notes that the digital folder of 161 brain dissection photographs from which the 13 analyzed by Dr. Lindstrom were drawn is not identified with the assigned case number of the McLean autopsy as other items from this procedure are. Coupled with the fact that Dr. Welton could not recall whether or not these photographs were stored on a separate server, and further conceded that there was no standard practice in this regard at the OCME circa 2014, this might explain the Commonwealth’s inability to trace the path of the subject photographs from creation by Dr. Lidstrom to disclosure to the PCDAO.

[16] ADA Kelley had served as second-chair to ADA Kiggen during Rhodes’ first trial, and was thus familiar with the case’s discovery. In an abundance of caution, however, and to head off any possible future claim of ineffective assistance of counsel (e.g., a claimed failure of Attorney Darrell to turn over everything in his files to successor counsel), ADA Kelley produced to Attorney Scully all of the Rhodes discovery material then in the possession of her office.

[17] Indeed, the belatedly produced neuropathology report could be considered “newly discovered evidence” in the unusual circumstances of this case.

[18] The failure of defense counsel to call Dr. Laposata to testify to her interpretation of the neuropathology report (had the report been in his possession) is the more unfathomable in light of Dr. Welton’s explicit reference to the report – and his defensive insistence that it did not alter his cause of death opinion – during direct examination.

[19] It is no surprise to the undersigned that defense counsel supplies no strategic rationale for eschewing use of the neuropathology report at trial. After all, both trial counsel and his retained expert categorically deny ever laying eyes on this report until the Court ordered production of same prior to the initiation of the present Rule 30 proceedings. What is more telling, however, is that no witness for the Commonwealth at hearing, or any Assistant District Attorney in briefing, has ever so much as articulated a strategic reason why defense counsel might have elected not to challenge the prosecution’s primary theory of causation with the neuropathology report that Dr. Laposata cites as a game-changer. Far from reflecting a tactical judgment, defense counsel’s non-introduction of the neuropathology report and a modified causation opinion from Dr. Laposata constitutes compelling evidence supporting a far more obvious inference: the neuropathology report had never been turned over to them by the prosecution prior to trial. Occam’s razor.  

[20] During closing arguments on the final day of hearing, Commonwealth counsel suggested for the first time that Dr. Laposata’s opinion might be regarded as a paid-for sham, an opinion so undeserving of credence that it would have been inadmissible at trial. The undersigned rejects this suggestion out of hand. Dr. Laposata is a forensic pathologist of unimpeachable credentials. Indeed, she served for many years as the Chief Medical Examiner for the State of Rhode Island. Her expert opinion in this case, notwithstanding its divergence from that of Dr. Welton, is analytically sound and well supported by the forensic evidence. Subject to challenge though the opinion might be, it cannot be considered a sham or junk-science. See generally Mass. G. Evid. § 702 and commentary (2026 ed.).