A former Brockton man who allegedly pointed a gun at State Police in a 2006 confrontation was improperly called a “street thug” in a prosecutor’s closing argument, the state’s highest court ruled today as it ordered a new trial for the defendant.
Joshua Lewis was convicted of assault with intent to murder and illegal gun charges in Norfolk Superior Court in 2007. He has now 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.’’
Lewis was shot three times by Trooper George Demos on July 26, 2006, during a confrontation in Stoughton that began when Demos and another trooper stopped a car with Lewis and two other people in it for an expired inspection sticker, according to court documents.
Demos removed the driver 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 then 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 while Demos claimed Lewis was facing him when he fired his service weapon.
“The defense theory was that [a co-defendant] 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, the defendant.’’
But Nelson, who has since 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 court said Nelson was wrong to use such a tactic.
“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 in an e-mail that the trial was held under Morrissey’s predecessor, US Representative William R. Keating, and that Morrissey’s office had acknowledged in court papers that Nelson’s approach was flawed.
If prosecutors decide not to try Lewis again, it could wipe the charges off his criminal history.
Lewis’s appellate attorney, Peter Onek of the Committee for Public Counsel Services, could not be reached for comment.