The Massachusetts SJC unfortunately decided a case, in my opinion, the wrong way. In Commonwealth v. Kevin Keo, the Supreme Judicial Court considered whether the defendant, convicted of first-degree murder, was entitled to a new trial where his attorney failed to obtain a full transcript of a witness’s testimony from a separate trial and where the prosecutor gave two inconsistent closing argument at the two trials as to who the shooter was.
At the defendant’s murder, trial the prosecutor presented a theory of deliberate premeditation and he was convicted by a jury. HIs trial, however, came after the trial of his co-defendant, in which the prosecutor proceeded under the theory that the co-defendant was the shooter. In this case and in the subsequent trial, the prosecutor suggested that the defendant was the shooter – arguably inconsistent theories.
The Massachusetts Supreme Judicial Court, however, held that the defendant’s due process rights were not violated because the Commonwealth proceeded on a theory of aiding and abetting – that he had or shared the intent required to commit the crime of murder. The SJC also pointed out that that, in both trials, the prosecutor stated in his closing argument that it didn’t matter who shot the victim and the evidence was similar in each trial.