New Trial Order in 2011 First-Degree Murder Trial Upheld by the SJC

Boston, MA – February 24, 2023. Today, Massachusetts’ highest court, the Supreme Judicial Court (SJC), upheld a 2022 decision by an Associate Justice of the Massachusetts’ Superior Court over-turning the verdicts and granting a new trial for a Boston man convicted of 1st-degree murder after a 2011 jury trial in Suffolk County (Boston) Superior Court.

Agreeing with the Superior Court, the SJC found that the defendant, O’May Tavares, was deprived of his constitutional right to a fair trial when his trial attorney, who had never before tried a murder case, had previously been suspended from practice for “client neglect,” and took on the case for a mere $5,000 fee, despite having a mostly-district-court-based practice involving OUI and drug cases, failed to investigate/pursue a potential third-party culprit defense that was adduced during a proffer session with prosecutors from an individual who claimed knowledge of the alleged robbery/murder at issue.

Even though the proffer information was provided to defense counsel before commencement of the trial, and according to the SJC “could have raised a reasonable doubt whether the defendant murdered the victim,” defense counsel (who also did not request a trial continuance when he received the proffer information to investigate further) did not “provide a satisfactory reason for not making use of it.”

Because of this (as well as trial counsel’s failure to not also raise a Bowden defense based on the Commonwealth’s own failure to investigate whether “someone other than the defendant” could have committed the murder), the SJC ruled they “cannot say that the judge erred or abused her discretion in concluding that counsel’s assistance constitutionally was ineffective” and affirmed her prior decision granting the defendant a new trial.

The defendant, who has been incarcerated since 2010 on the underlying charges, was represented in his motion for new trial, evidentiary hearing, and opposition to the Commonwealth’s appeal by Brad Bailey Law Founder and Managing Partner, Brad Bailey, and Brad Bailey Law Outside Appellate Of-Counsel, Elizabeth Billowitz, neither of whom were involved with the original trial.

Bailey and Billowitz have already filed a motion for the defendant’s release on conditions of bail. Should the matter be re-tried, Mr. Bailey, who is a former state homicide prosecutor, as well as a former Assistant US Attorney, will represent the defendant in all related proceedings.