A former Brockton man, who was allegedly armed when he was shot by State Police in 2006, was granted a new trial on an attempted murder charge after the state’s highest court ruled Tuesday that a Norfolk County prosecutor was wrong to call Joshua Lewis a “street thug’’ in his closing argument.
Lewis was convicted of assault with intent to murder and illegal gun charges in Norfolk Superior Court in 2007 and has completed his six-year sentence. In a unanimous ruling, the Supreme Judicial Court said prosecutor Robert W. Nelson “improperly disparaged the defendant and counsel and invited the jury to decide the case irrationally and on general terms.’’
Writing for the court, Justice Francis X. Spina said Nelson’s references to Lewis and two other men arrested with him as “street thugs” was “highly improper, and we cannot say that it did not influence the jury.”
“The defendant is entitled to a new trial,’’ Spina said.
Lewis was shot three times by Trooper George Demos on July 26, 2006, during a confrontation in Stoughton, which began when Demos and another trooper stopped a vehicle that Lewis and two other people were riding in because of an expired inspection sticker, according to court documents.
Demos removed the driver from the car and discovered a Beretta handgun on him; Lewis then sprinted from the car with Demos in pursuit, authorities said. Lewis allegedly pointed a Colt pistol at Demos, who shot Lewis three times, including one bullet that shattered Lewis’s left leg.
The SJC said Lewis’s defense strategy was to attack Demos and other law enforcement officials, relying in part on medical evidence that Lewis contended showed he had been shot in the back. Demos said Lewis was facing him when he fired.
“The defense theory was that [a codefendant] had possession of both guns and Demos took the Colt pistol and planted it near the defendant after the shooting,’’ Spina wrote. Lewis “contended that there was a police conspiracy to cover up Demos’s shooting of an unarmed man.’’
But Nelson, who has retired, told jurors that Lewis was a liar, that his defense attorney was a liar, and that they should dismiss the defense theory of a police conspiracy as a “sham” fabricated by “street thugs.’’
“The lies here came from there,’’ Nelson told jurors while pointing to the defendant and his lawyer. “As you look over all of this evidence, I suggest to you that it will be obvious to you that the lies came from this table. And I’m not leaving out the attorney either, the questions that were asked and the way they were posed.”
The SJC said Nelson was wrong. “A prosecutor may address a particular point in defense counsel’s closing argument as a sham, but he may not characterize the entire defense as such,’’ Spina wrote.
David Traub, spokesman for Norfolk District Attorney Michael Morrissey, said a review is underway on whether to proceed with a new trial for Lewis. Traub noted that the trial was held under Morrissey’s predecessor, US Representative William R. Keating, and that Morrissey’s office acknowledged in court papers that Nelson’s approach was flawed.
Lewis’s appellate attorney, Peter Onek of the Committee for Public Counsel Services, could not be reached.
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