Emory Snell, Jr. v. Office of the Chief Medical Examiner (SPR 20200440)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 13, 2020 SPRZ0/0440 Eric B. Hogberg Records Access Officer Office of the Chief Medical Examiner 720 Albany Street Boston, MA 02118 Dear Mr. Hogberg: I have received the petition of Emory G. Snell, Jr. appealing the response of the Office of the Chief Medical Examiner (Office) to a request for public records. G. L. c. 66, § IDA; see also 950 C.M.R. 32.08(1). Specifically, on January 20, 2020, Mr. Snell requested several categories ofrecords including policies, procedures, directives, protocols and information involving files for two named individuals for the period of time 1987-2000 and name(s) of individuals involved with record classification and record destruction. Previous appeal This request was the subject of a previous appeal. See SPR19/2527 Determination of the Supervisor of Records (January 3, 2020). I closed SPRl 9/2527 by ordering the Office to provide Mr. Snell with a supplemental response to the request, provided in a manner consistent with the Public Records Law and its Regulations. In a response dated January 16, 2020 the Office provided a supplemental response to Mr. Snell. Unsatisfied with the Office's response, Mr. Snell appealed and SPR20/0440 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

!

Eric B. Hogberg SPR20/0440 Page 2 March 13, 2020 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § lO(b)(iv). The Office February 181 Response " In its October 18th response, the Office responded indicating that it is not in possession of many of the responsive records. For the requests specific to the period of time 1987-2000, the office stated that the request is vague and overly broad and the Office asked for clarification or narrowing of the request. No Duty to Create Records Please be advised, under the Public Records Law the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). With regard to the request to produce all records, information for a particular individual from 1987-2000, the Office asserts in its February 18th response" ... [the] blanket request for all records, information and materials for a 13 year period is vague and overly broad ... [y]ou may clarify and/or narrow your request to the records or categories of records you are seeking ... " I encourage Mr. Snell and the Office to communicate further in order to facilitate producing records efficiently and affordably. Mr. Snell may wish to include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § lO(a)(i). The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request). Consequently, where it appears the Office does not possess certain records responsive to Mr. Snell's request and has no duty to create records responsive to the request and has asked for modification of the request, Mr. Snell may wish to clarify this matter and his objections to the Office's response. If issues remain, Mr. Snell may file a subsequent appeal. Accordingly, I will consider this appeal closed. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Emory G. Snell, Jr.

Durgin, Barbara (SEC) From: Durgin, Barbara (SEC) Sent: Monday, March 2, 2020 3:56 PM To: ocme.rao@massmail.state.ma.us Cc: SEC-DL-PREWEB Subject: SPR20-0440 Appeal Acknowledgement Attachments: spr20-0440.pdf Dear Records Custodian, Please be aware, this office has received an appeal relating to your entity's response to a request for public records. Attached are further details concerning this appeal. If you have any questions or wish to provide further information relating to this matter, please contact the Public Records Division at pre@sec.state.ma.us or 617- 727-2832. Given that the Supervisor of Records must issue a determination within 10 business days of receipt of the appeal petition, please provide any additional information to this office as soon as possible. Thank you, Barbara Durgin, Esquire Staff Attorney Office of the Secretary of the Commonwealth Public Records Division One Ashburton Place, Room 1719 Boston, MA 02108 Tel: (617) 727-2832 Email: Barbara.Durgin@sec .state .ma. us 1

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 02, 2020 SPR20/0440 Mr. Emory Snell, Jr. MCI-Shirley A-2 (11) 1 Harvard Rd. P.O. Box 1218 Shirley, MA 01464 Dear Mr. Snell: I have received your letter appealing the response of the Office of the Chief Medical Examiner to your request for records. I have directed a member of my staff to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately. Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mr. Eric B. Hogberg One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 · Fax (617) 727-5914 www.sec.state.ma. us/ pre

25 February 2020 EMORY G. SNELL,JR. 1 Harvard Rd. Shirley, Ma. o;l-'464,,.1218,, 1:11 ~ ,, ;f::' '; .(.:.:.C,,J l C L o o m ri m A on . w S ea u lt l h l iv o a f n M , a G s e s n a . c h C u o s u e n tt s s e l , i • · · ' · · · wO rt J 1 1 . ;:: ! l William Galvin, Sec. of State ;:::;·. j Public Records Division - Rm.1719 - r:-·: 1 Ashburton Place .. ' ···1·1 N Boston, Ma. 02108-1512 Re: Appeal - OCME Public Records Demand (1) 16 Jan. & 20 Jan. 2020 Dear Gen. Counsel Sullivan: Pursuant to c.66, §10A(a), I now present my "appeal" from both Public Records - 16/20 jan. 2020 - demands served on the Office of the Chief Medical Examiner (OCME), particularly, insofar as, at their request, I reduced that public records demand narrowly, as to time frames, so as to permit a more efficient search area of those records sought. Even with this nairowly based search criteria, the OCME' s RAO Eric Hogber·g, Esq. , continued to be evasive, and nonresponsive; several times alluding to my criminal case, where a in letter supplied by the SPR, it was determined that the OCME "destroyed" public documents with neither prior authority from the State Records Conservation Board, or any statutory allowance. See, enclosed. I. Appeal From OCME "answer questions or create documents response to request," &/or "OCME not in possession of responsive records." A- Public Records Request #1. . Produce the name of the individual whose responsibility it was between [1987-2000] for classifying and record for destruction, particular to William Zane and Stanton Kessler. Appeal- The public records law, c.66, §10(a), requires the government to release upon request materials that fall under the definition of "public records." Boston Globe Media Ptnrs. v. Dep't · of Pub. Health, 482 Mass. 427 (2019). Nowhere within question #1, do I ask a question, or require the OCME to create documents, insomuch as, the public record demand is simple, who was authorized to classify 'public records' specific to public e~ployees, Willia~ Zane and Stanton Kessler, for destruction. Indeed, surely. a public document in the possessi6n of the· OCME con ta ins· such. information, as des true tion of public records, in this case, without authority was tasked to someonei

Lori A. Sullivan, Gen. Counsel 25 Feb. 2020 - p.2 Re~ Appeal - OCME Public Records Demand (1) 16/20 Jan. 2020 A- Public Records Request #1(a) · Like #1, this public records demand seeks .the riame of the [OCME[ individual [tasked] prior to the enactment of [the] Statewide Records Retention Schedule, that between [1987-2000]had authority to destroy any records of William Zane and Stanton Kessler . . Appeal- ''A prasumption shall exist that each record sought is public and the burden shall be on the [OCME] defendant agency · .... to prove, by a preponderance of the evidence, that such record or portion of the record· may be withheld in accordance with. [SJ ta te of [F]ederal law." id. Th~ OCM~ responsive does not comply with the mandate of that presumption that each record is public, as records, information, . documents or papers must exist ~s to assignment of a person tasked; with cataloging &/or recording which public records would be destroyed. Those requested records did not destroy themselves~ The OCME are not denying my records request under any statutory exemption, theref6re, my request is narrowed to a centralized &/or automated database for the OCME's personnel tasked to destroy public records. B- Public Records Request #2 This public records request is·for. records that underscore that such records did indeed exis~ at someiime, and if #1 & #1(a) were cataloged, then I request those public records of cataloged materials, informati6n. The Court's that address public records enforcement actions, speak of "indices" derived from databases, insofar as,. information · in repositories may be exempt from public records l~ws, but that they=. still may be public if located in a rapository that is not exempt. id. Therefore, the RAO's denial demonstrates that he failed to access those 1987-2000 respositories to evaluate if any public records exi~~ed that were not exempt to disclosure. Certairily, the OCME maintains a central .database that records employees ta~ked to each available position within the agency, and that information is subject to public record disclosure. Cf. c.46, §2A, with c.46, §13(h), information that I am not seeking;- comparing DPH to the OCME, in the public records disclosuie context. None of ihose public records requests, .extend beyond the person tasked with destruction of William Zane and Stanton Kessler OCME racords. E.g., I am not seeking: birthdates; social security numbers &etc.

Lori. A. Sullivan, Gen; Counsel 25 Feb. 2020 - p.3 Re: Appeal-OCME Public Records Demand (1) 16/20 Jan. 2020 C- Public Records #2(a~ "Produce that schedule of documents, records, materials, and other information ·Of when the OCME had possession of records particular to William Zane and Stanton Kessler." Certainly, the OCME possessed records of their employees William Zane and Stanton Kessler. This clearly nonresponsive answer, unassailably demonstrates that utter disobedience with the mandate of c.66, §10A(a), where all public records shall be presumped public. Stanton Kessler in 1987 was responsible for hiring William Zane, therefore, a record must exist. Kessler was in 1987-1999, the OCME Chief of Staff, public records must exist. Zane's postion as pathologists appears in numerous Massachusetts Supreme Judicial and Appeals Courts cases, therefore, public records of those duties &/or responsibilities must exist. RAO Hogberg's nonresponsive answer to #2(a) public records request is nonsensical, in that he is asserting a falsehood, when he opines that no schedule of documents, records materials or other information is in the OCME's possession. Indeed, media reports document that Zane was "acting chief" many times over his 30yr. career, so how does the OCME not possess any schedules of information; in fact, if their database was purged of any relevant information, there would be an Order authorizing that. · D- Request #3(a) The objective of this request is to ascertain what public records documents, information & materials were issued to permit the destruction of those previously requested public records. Again, the SPR has already discovered that the OCME destroyed public records without any prior authorization; Therefore, a separate public record must exist, that Ordered "whoever" a OCME employee to destroy those public records, signed off by someone, presumably, the chief of staff, insofar as, in 1987 no records ·access officer was specifically positioned within the ·OCME. E- Request #4(a) The argument above (~3(a)) applies here. F- Request #S{a) Obviously, this response evades the mandate of the Public Records Law, as it is essentially stating that William Zane was not an OCME employee, otherwise, there would be a record, as noted in those attached media articles. ·

Lori A. Sullivan, Gen. Coupsel 25 Feb. 2020 - p.4 Re: Appeal-OCME Public Records Demand (1) 16/20 Jan. 2020 G- Request #5(b) Despite the previous (~~3(a) - 5(a), where the OCME denies possession of any Zane records, in this denial, that change track by opining that this request for information ... for a 13 year period is vague and overly broad .... Therefore, the suggestion is that the OCME does have records on Zane, contrary to their earlier infra, denials. A word search pf.William Zane in their catalog of data should turn up information, materials or records on Zane, even if it may need to be redacted. See, Worcester Tel & Gazette v. Chief of Worcester, 436 Mass. 378, 384-85 (2002)(discussing various mechanisms for judicial inspection) H- Request #6(a) In that request supra, (#5(b)), the OCME remarks that my request is 'vague & over broad,' yet when that request is focused narrowly, the OCME reverts. back to the claim that judge Fishman found nothing during his review.· Judge Fishman's remarks were: "The OCME has not produced anything prior to 2002.11 Therefore, Hogberg's misrepresentation is disingenouous, signaling that the OCME has held back rublic records from the court; See, Stanton Kessler, _M.D., Report. I- ·Request #7(a)(b)(c)(d) Once again, the Kessler Report, stemming from 'business records' during his tenure as chief of staff, details that Kessler put in place protocols to supervise Zane by senior pathologist Dr. James Weinei, and required Zane t6 bring 'suspected close-contact homicides' to the Boston OCME facility. Therefore, Hogberg's lack of positive response violates the public records mandate. See, Hull Mun. Lighttng v. Mass. Mun. Wholesale Elec., 414 Mass. 609, 614 (1992). J- Request #8(a)(b) As is well established, the Statewide Records Retention & Conservation schedule was adopted by all state agengies, therefore, this specific question is for production of documents, information · and materials specific to when the OCME adopted it .. These· requests would be applied under the canon of noscitur a sociis, which would require a common sense coupling of the words -and their intention understood generally as to their use. Com. v. Hamilton, 459 Mass. 422, 432 (2011). · _ .

d. Produce all records, information [1994-1995]: specific to Stanton Kessler; Your blanket request for all records from 1994-1995 for· a particular individual is vague and overly broad as it could include any ~nd all records or categories of records, includi;ng autopsy reports or personnel records, which are exempt from the public records law. You may clarify and/or narrow your request to the records or categories of records you are seeking in addition to the many other specific records or categories of records requested herein and requested previously: e. Produce all records, information [1995-1999] specific to Stanton Kessler; Your blanket request for all records from 1995-1999 for a particular individual is vague and overly broad as it could include any and all records or categories of records, including autopsy reports or personnel records, which ·· are exempt from the public records law. You may clarify and/or narrow your request to the records or categories of records you are seeking in addition to the many other specific records or categories of records requested herein and requested previously. · f. Produce all records, information [ 1994-199 5] specific to meetings, consults or other determinations of the OCME [1994-1996] to restrict homicide autopsies of William Zane; As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. g. Produce all records, information [1993 - 1996] specific to the then Chief Richard Evans, in regards to restrictions, or mandated oversight or supervision of William Zane; As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. h. Produce all records, information [1993-1996] specific to Richard Evans instructions to Stanton ~~~~~~~~~~am~; . . . As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. 1. Produce all records, information [1992 - 1996] specific to the OCME's "chain of command" - Chief down to associate pathologists, or those titled similarly; The OCME is not in possession of responsive documents. · J. Produce· records, information [1994-1996] specific to histology training, mm1mum passing (grade or other level of necessary satisfaction satisfactory completion) particular to William Zane. The OCME is not in possession of responsive documents. If you wish to challenge this response, you may appeal to the Supervisor of Public Records following the procedures set forth in 950 C.M.R. 32.08, a copy of which is available at http://www.mass.gov/courts/case legal:-res/law-lib/laws-by-source/cmr/. You may also file a ~ivil action in accordance with M.G.L. c. 66, § 1O A.

Eric B. Hogberg Records Access Officer

m:ue <!Comntontuealtb of jlf[assacuusetts' <!Executibe ice of ~tihlic ~afetp anb $)ecuritp af}ff Office of the Chief Medical Examiner Mindy J. Hull, MD Charles D. Baker Headquarters Chief Medical Examiner Governor General Office Numbers . Karyn E. Polito 720 Albany Street Tel: (617) 267-6767 Lieutenant Governor Boston, MA 02118-2518 Tel: (800) 962-7877 Thomas A. Turco, Ill Fax: (617) 266-6763 Secretary February 18, 2020 Emory G. Snell, Jr. 1 Harvard Rd. Shirley, MA 01464-1218 RE: Public Records Appeal -SPR19/2527 Dear Mr. Snell: I am writing in response to your January 20, 2020 letter, which serves as a follow-up. to my January _16, 2020 correspondence. · Your letter expands upon and attempts to clarify your original nine requests, includes numerous new requests, and also asks questions associated with your requests. Your request pertains to any and all records particular to William Zane and Stanton Kessler from 1987-2000, including record retention . documents, procedure directives and documents, and policy documents, etc. · I have addressed your nine requests/sub-requests individually below· even though many of your requests are repetitive and have been responded to numerous times, some of which is subject to the Superior Court matter, Commonwealth v. Snell, Docket No. 1995-6579. 1. Produce the name ofthe individual whose responsibility it was between [1987-2000] for classifying and record for destruction, particular to William Zane and Stanton Kessler; The public records law does not require the OCME to answer questions or create documents response to requests. Notwithstanding the foregoing, the OCME is not in possession ·ofresponsive records. a. Produce the name of the individual prior to the enactment of Statewide Records Retention Schedule, that between [1987-2000] had authority to destroy any records of William Zane and Stanton Kessler. The public records law does not require the OCME to answer questions or create documents response to · requests. Notwithstanding the foregoing, the OCME is not in possession ofresponsive records. 2. You state that the OCME is not in possession of those ~2 public records request, so when exactly did th~ OCME have such possession of those records, materials, information. The public records law does not require the OCME ·t o ans\71.'.er questions or create documents response · to requests. Notwithstanding the foregoing, the OCME is not in possession of responsive records.

Lori A. Sullivan, Gen. Counsel 25 Feb. 2020 - p.5 Re: Appeal-OCME Public Records Demand (1) 16/20 Jan. 2020 K- Request #9(a-j) Finally, that OCME nonresponsive answer to each of these main and subset public records demands, unassailably demonstrates a clear violation of c.66, §10A(a) .. In making a "personnel" exemption, · Hogberg ignored the requirement of producing a "privilege·index" relating specifically to his claim that these documents are exempt,· See, Suffolk Constr. v. Div. of Capital Mgmt., 449 Mass. 444, 447-48 (2007); c.4, §7(26)(b)(c)(d)(o)(p)·; See generally, Cape Cod Times v. Sheriff Barnstable Cty., 443 Mass. 587, 591-592 & n.14 (2005)(summerizing statutory exemptions) .. II. Conclusion Whereby, c.66, §10A(a) demands that the public shall·access those agency records presumed to be public records; OCME RAO Hogberg, who too is, a state licensed lawyer, clearly in those.numerous nonresponses failed to carry the burden that the OCME did not possess the public records requested, as evinced by those contrary replies to each request. On the one hand Hogberg would assert that the OCME did not possess the record requested, while on the other hand, he would remark that the request was 'vague or over broad,' indicating that some public records did exist. Further evinced by caselaw, Hogberg on those records denied overtly avers some 'privilege,' yet nonetheless, ignores the fact that public record jurisprudence has required agencies asserting/withholding alleged privileged records, must.provide a · 'privileged index,' of course, Hogberg has not. See, Suffolk Constr., supra; Cape Cod Times, supra. In the end, none of my ~ublic records requests fall under any exemption protected documents, and the answers provided show with incredible clarity, that these documents, records, information and materials exist, but are being deprived, no doubt, as they further underscore that for 25yrs., I have been falsely imprisoned by the incompetence of William Zane, evinced by the Stanton Kessler Report, supra. I close, praying that my appeal will result in an SPR Administrative Order, commanding the OCME RAO Hogberg to obey the public records law. I am as always incerely.-Jours, ' /EGS Cc: Richard J. Shea, Esq. encls.

20 January 2020 ..' · .-E~10RY.G. ·-sNELr;Jfh· - 1 Harvard Rd. ·>-~hirley, Ma. 01464-1218 ··-·-·- ··- ···- . " ~ ,,,,. ,-,-·-,~ . ... -,.-~,_. ,..-,.--- --- ---- .............. - Erit B. Hogberg, R~cords Access Officer Office of the Chief Medical Examiner 720 Albany Str. Boston, Ma. 02118-2518 Re: 1/16/20 - letter/ More Definite Public Records Demand Dear Mr. Hogberg: . - Your letter of 1/16/20 complains that my public records 7 requests [~~1-9] lacks specificity, or burdens~me. Prior to ·r again seeking the SPR's appellat~ intervention, will provide you requests that should be.easily answered, without further delay of excuse. 1- Produce the name of that individual whose responsibility it was between [1987~2000] for·classifying any record for destruction, particular to William Zane and Stanton Kessler; a- Produce the name of the individual prior to enactment of Statewide Records Retention Schedule, that between [1987-2000] had authority to destroy any records of William Zane and S~anton Kessler. · , 2- You state that the OCME is not in possession o:f those '.112 public records request, so when exactly did the OCME have such possession of those records, materials, information, ~- Produce that schedule of.docqment~, records~ materials, and other information of when the OCME had possession of records particular to William Zane and Stant·on Kessler. 3- You state the OCME is not in possession of those records sought in ~3, regarding policies, directives specific to restrictions, specific to William Zane, particularly, (i) senior staff supervision, and (ii) transporting autopsies to Boston.· a- ~reduce any record, information, mat~rial or paper from [1987-2000] of directives·, restrictions or mandates specific to William Zane, or such indices that relate thereto. 1.

Eric B. Hogberg, RAO zo·Jan. 2020 pg~2 ~ Re: 1/16/20 - letter/ More: Definite Public Records Demand 4- You state in 114, that the OCME is not in possession of responsive records. a- Produce any directive, order or mandate between [1987- 2000] .specific to "close contact sutopsies procedures" and t_he authbr of such for that period requestedp 5- · You state that the OGME is not in possession of responsive records, 1T 5. a- Produce those indices specific to cataloging of records, information,.materials between [1987-2000] particular to William Zane. b- Specific to that [1987-2000] time ftame, produce records, information, and materials particular to William Zane. 6- You state that this request (116) is overly broad &/or burdensome [albeit, without s·pecificity how] or vague [same]. a-. Produce only specific to William Zane those records, information or materials-from [1987-2000] as to operations of the· Office of the Chief Medical Examiner, requirements ·detailing Zane's close contact suspected autopsy protocols. · 7- ·You state this request (117) is Vague and confusing. a- Produce OCME operation protocols in effect [1987-2000]. b- Produce when OCME" adopted Statewide Records Retention schedule. c- Produce those files, papers, records; materials and information specific to William Zane, with redacting if needed, between. [1987-2000]. ·. , . ·. · · . d- Produce what time frame the OCME transferred paper fi'les to electronic format, a:nd how stored, .or where stored· [1987-.2000]. 8= You state the OCME is not in possession, (~8). ·a- Produce records, materials, information and· process used .. to decide to destroy files of William-Zane [1987-2000]. b= Produce all records specific to William Zane & Stanton kessler [1987-2000], particular to mentoring, supervision.

a. Produce that schedule of documents., records, materials, and other information of when the OCME had·possession of records particular to William Zane and Stanton Kessler. The OCME is not in possession of a schedule of documents or the like documenting when the OCME had possession of records particular to William Zane and Stanton Kessler. 3. a. Produce any record, information, material or paper from [1987 - 2000] of directives, restrictions or mandate specific to William Zane, or such indices that relate thereto. As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. 4. a. Produce any directive, order or mandate betwe~n [1987-2000] specific to "close contacts sutopsies procedures" and the author of such for that period of time. As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. 5. a. Produce ·those indices specific to cataloging of records, information, materials between [1987- 2000] particular to William Zane. The OCME is not in possession of indices specific to cataloging ofrecords particular to William Zane. b. Specific to that [1987-2000] time frame, produce records, information, and materials particular to William Zane. · As previously stated, your blanket request for all records, information and materials for a 13 year period is vague and overly broad as it could include any and all records or categories of records. You may clarify and/or narrow your request to the records or categories of records you are seeking in addition to the many other specific records or categories of records requested herein and requested previously. 6. a. Produce only specific to William Zane those records, information or materials from [1987 - 2000] as to operations of the office of the chief medical examiner, requirements detailing Zane's close contact suspected autopsy protocols. As previously stated, and as explored by the Superior Court in Docket No. 1995-6579, the OCME is not in possession of responsive documents. · 7. a. Produce OCME operation.protocols in effect 1987 -2000. The OCME is not in possession of responsive documents from 1987-2000 consistent with: Attorney Gen. V. Collector of Lynn, 377 Mass. 151, 158 (1979) (As stated in your initial request). b. Produce when OCME adopted statewide records.retention schedule.

The public records law does not require the OCME to answer questions or create documents response to requests. c. Produce those files, papers, records, materials EJ.nd information specific to William Zane, with redacting if needed, between [1987..,-2000]. As previously stated, your blanket request for all records, information and materials for a 13 year period is vague and overly broad as it could include any and all records or categories of records. · You may clarify and/or narrow your request to the· records or categories of records you are seeking in addition .to the many other specific records or categories of records requested herein and requested previously. d. Produce what time frame the OCME transferred paper files to electronic format, and how stored, or we are stored [1987 - 2000]. The public records law does not require .t he OCME to answer questions or create documents respqnse to reqµests. Notwithstanding the foregoing, the OCME is not in possession ofresponsive records. 8. a. Produce records, materials, information and process he used to decide to destroy files of William Zane [1987-2000]. The OCME is not in possession of responsive records. b. :Produce all records specific to William Zane & Stanton Kessler [1987 - 2000]~ particular to mentoring, supervision. . The OCME is not in possession of responsive.records. 9. a. Produce all records, information [1987] specific to William Zane; · Your blanket request for all records from 1987 for a particular individual is vague ;md overly broad as it could include any and all records or categories of records, including autopsy reports or personnel records, which are exempt from the public records law. You may clarify and/or narrow your request to the records or categories of records you are seeking in addition to the many other specific records or categories of records requested herein and requested pi"eviously. b. Produce all records, information [1994-1996]'specific to William Zane;. Your blanket request for all records from 1994-1996 for a particular individual is vague and overly broad as it could include any and all records or categories of records, including autopsy reports or personnel records, which are exempt from the public records law. You may clarify and/or narrow your request to the records or categories of reeords you are seeking in addition to the many other· specific records or categories of records requested herein and requested previously. · c. Produce all records, information [1998 -1999] specific to William Zane; Your blanket request for all records from 1998-1999 is vague and overly broad as it could include any and ali records or categories of records, including autopsy reports or persorinel records, which are exempt from the public records law. You may clarify and/or :µarrow your request to. the records or categories of records you are seeking in addition to· the many other specific records or categories of records requested herein and requested previously. ·

m'.be Qtommontuealtb of ;ifltlas%acbunetts <fxecuttue ~ffice of i)ublic ~afetp anb $ecurttp Office of the Chief Medical Examiner Mindy J. Hull, MD Charles D. Baker Headquarters Chief Medical Examiner Govemor General Office Numbers Karyn E. Polito 720 Albany Street Tel: (617) 267-6767 Lieutenant Governor Boston, MA 02118~2518 Tel: (800) 962-7877 Thomas A. Turco, Ill Fax: (647) 266-6763 Secretary January 16, 2020 Emory G. Sne.11, Jr. 965 Elm Street Concord, l'v1A O1 7 42 -2119 RE: Public Records Appeal -SPR19/2527 Dear Mr. Snell: I am writing to supplement fu~ OCME's December 2, 2019 response to your public records request pursuant to your appeal and the Supervisor of Records' determination regarding said appeal. Toe· Supervisor of Records stated that it was unclear what, if any, responsive records are in the OCME's possession, and that the OCME did not provide sufficient specificity regarding the OCME' s denial. Therefore, each of your nine (9) requests is addressed individually below. · · 1. Specific. statutory or regulatory procedures particular to destruction of all internal records specific to evaluations, opinions, c.v.'s, or anything that is kept on indlvidual forensic pathologist employed by the OCME. Please see attached Secretary of State Massachusetts Statewide Records Retention Schedule, particularly E04-05: Employee Personnel Case Files. 2. Any and all records, documents, records and inf'ormation regarding specific authorization under the State's Record Retention. Act, which the OCME seeks prior authority for destruction and/or disposal of personnel records, particular to: (i) William Zane, (ii) Stanton Kessler; The OCME is not in possession of responsive records. 3. Any and all records, information, material and all other documents per c.30, §42 of the records conservation board, where the OCME previously sought permission to destroy administrative policies &/or directives, specific to William Zane's restrictions to perform autopsies, without (i) senior staff superyision, or (ii) transporting of those autopsies to the OCME in Boston on}20 Albany Ave.; The OC:tvffi is not in possession of responsive records.

The Commonwealth. of Massachusetts William F.tancis Galvin, Se~retary of the CoromonweaJ,tb. Public Recox:ds Division Rebecca S. Murray Supervisor ofR ecord! December 23, 2019 SPR19/2527 Iv.fr. Emory Snell, Jr. MCI-Shirley A-2 (11) 1 Harvard Rd. P.O. Box 1218 Shirley, MA O1 464 Dear Jv.fr. Snell, Jr.: . I have :received your letter appealing the response or'fue Office ofthe·ChlefMedical. Exammer to your request for rooords. · I have direct~.d a me.mber ofm y staff to reviewthls matter. Upon completion of the review, I will advise you in writing of the disposition ·oftbis case. If in the :interim you receive a .satisfactozy.response to your request, please notify this .office immediately. · Any further correspondence concen:ring this specific appeal should refer-to the SPR.case number listed under the date of this letter. Sincerely, Rebecca S. Murray Supervisor ofR ecords cc: Jv.f:r. Erie Hogberg OneAshburton Place, Ro.om 1719, Boston, MaJsachusetts 02108 · (617) 727 ... 2832, Fax (617) 727-5914 .w ww.sec.state.ma. us/p re .

· 4. Any and oill records, information, materials and ail other ,documents specific to "maintaining" every record attributable to those administrative orders &/or directives mandated by former chief of staff, Dr: Stanton Kessler, particular to William Zane; The OCME .is not in possession of responsive records. 5. Any list, record, information, d~cument or any other material, specific to cataloging particul.ar :indivicluals (i) WiHiam Zane, & (ii) Stanton Kessler, whose files personal or otherwise, w~re subject of destruction and preapproval authority per .c30, §42, particularly detailing the exact time, & date such destruction was authorized to talce place; where, & by whom; The OCl\.ffi is not in possession of responsive records. 6. Any list, category, cataloging, information, record, material, or anything rele,vant to (i) .William Zane, (ii) Stanton Kessler from 1987 up to and throi.1gh 2000~ that discusses, details or is subject to any OCME . administrative action; procedure, process, or policy; This request is overly broad, vague and unduly burdensome as it requests "anything relevant" to William ' Zane anu..1 iC:i >t®ton .Tl\T. eSSH, ::r rfo' r a. <1 3 year pen' oc•t , m'• ci1: uu;Ju!.1, g reoorai s relau•'n g m, auAr.-m~ m' stta,u ' ve actm' ns, ' procedures, processes, or policy records. Notwithstanding the foregoing, the OCME previously searched for records relating to OClVIB protocols or restrictions placed upon William Zane from 1987 ~ 2000, and did not locate responsive records. You may further narrow your request and specify records you are seeking. 7. Any and all directives, orders, acts, procedures, processes or anyother responsibility attributable to the OC:ME per c.30~ §42, as to ti.me :frames for conservation &/or retention of personnel files, evaluations, restrictions, special administrative actions, or anything otherwise meant to be made a public record, consistent with: Attorney Gelll. V. Coilectmr «)fLynllll, 377 Mass. 151, 158 (1979) ("[g]reater access to information about the actions of public officers art11.d institutions is increasingly, .. , an essential ingredient ofp ublic confidence in government") ( citation omitted); This request is vague and conf'U.Sing as to the specific records bem.g :requested ..N otwithstanding the foregoing, please see the enclosed Statevvide Records Retention Schedule relating to conservation and retention of records. · 8. Any and all :records, lists, information, documents and any other .material that details how the OC:ME under c.30, §42, conserved all records specific to (i) William Zane, and. (ii) Stanton Kessler, prior to any destruction, even without a specific authority to do so c.30, §42. The OCME is riot in possession of any responsive records other than the enclosed Statewide Records Retention Schedule. · · 9. Anything particular to (i) William Zane, & (ii) Stanton Kessler, piirticularly, from 1987 up to and through 2000. · This request is overly broad, vague and unduly burdensome, and requests "anything particular to (i) William Zane, & (ii) Stanton Kessler" from 1987-2000, a 13 year period. You may narrow your request and clarify the records you are seeking from that time period. ·

If you wish to challenge this response, you may appeal to th.e Supervisor of Public Records following the procedures set forth in 950 C.M.R. 32.08, a copy of which is available at http://www.mass.gov/courts/case lega1-res/law-1ib/1aws-by-source/cmr/. You may also file a civil action in accordance with M.G.L. c. 66, § lOA. Re~~· · Eric B. Hogbe~ · on · Records Access er I • Cc:.i">re@.sec.state.ma.us Enclosi-!re

The Commonwealth of Massachusetts William Francis Ga.lvin,· Secretary of the Commonwealth . Public Records Division Rebecca S. Murray Supervisor of Reccrds June 20, 2018 SPR18/617 Lisa Riccobene Chief of Staff Office of the Chief Medical Examiner 720 Albany Street Boston, MA 02118 Dear Ms. Riccobene: I have received the petition of Emory Snell, Jr. seeking reconsideration of a . ·determination regarding the response ·of the Office of the Chief Medical Examiner (Office) to a · request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, lvl:r. Snell requested the CV of an identified individual; On May 4) 2018, the Office provided M:r. Snell with a re~ponse to bis request, explaming .. · that they were not in possession'ofresponsive records. In my May 4, 2018 determination, I found that the Office had met its burden in responding to Mr. Snell. See SPR18/617 Determination of the Supervi~or of Records (May 5, 2018). - · Request for reconsideration In his M~y'24th petition for reconsideration of the determination, M:r. Snell raises . concerns about the inappropriate destruction of public·records> and as~ that the Supervisor o'rder the Office to .provide him with the requested records. · · · M:r. Sn~ll claims in his petition that the requested records clearly fall und'3r the definition of a public record, and·ought to be disclosed. ML Snell also provides documentation indi'c:ating . that ~dentified individual worked for the Office in the past, and as· suc4 wou.ld have provided the Office with a copy of his CV. · Mr. Snell shou.ld be advised that the records management practices of state entities, like the Office, are governed by the Massachusetts Statewide Retention Schedule, (2018 Edition). Specifically> the CV of a former empioyee wou.ld be retained according to the Massachusetts Statewide Records Retention Schedu.le Number 06-18, Series Number E04-05(c) Supervisor or Departmental copy of personnel file, for 6 years ·after separation. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 . sec.state.ma.us/pre • pre@sec.state.ma.us

Lisa Ricco bene SPR18/617 Page2 June·20, 2018 . . S-qbsequent to intervention by a-Public Records Division staff m~mber, the Office conducted a *bro ugh search and con:(inned that. th~y were not in poss~ssi~n of tJ?.e requested records. However, they were also uµable to locate an approved application for destruction of the . records. It is necessary to seek permission from the Records Conservation Board to destroy · records, other than those records that are meant for adri:rinistrative use. · . Safeguards must be instituted by the Office to ensure that all records are retained in accordance with both applicable law as well as the retention sch~dules promulgated by-this o'ffice. G; L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance·in records managemep.t ~nd retention~ the Office may'contact the Re!)ords Management Unit (RMU) at 617- of 72 7-2816·. The RM:U operates under the authqrit'y of the Supervisor Records, as.sisting state and local governme1:1,t entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens anq. government. Training upon workshops records management are conducted request. 0~ It should be noted that while there are concerns regarding the Office's records · management practices,. the duty to comply with requests for records extends only to·those of records that exist and ary in the possession, custody, or control the custodian of records at the time of the request. See G. L. c. 66,i § 1O (a)(ii). The Office is not required tq create~ record in. response to a pubJic. records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to que~tions. See G. L. c. ·66,· § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977):. Conclusion Accordingly, as the Office is not in possession of the requested re~ords, I respectfully ·decline to reverse my findings.If Mr. Snell is not satisfied with the resolution of this administrattve appeal, please.be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(A)(c). Sincerely, ~~ . Rebecca S. Murray Supervisor of Records · cc: Emory Snell, Jr.

'' - ' . ' -. -·. ~ ~ ' ' f I . ' I. . --lr ·,:···~ . u· ' .D V T TI · t i I D .. I- -,.1 ·..LA ~-l- - _I_ .. . _I_ . . . ' : . I ' i . I 1 ' \ . ! . . '.' !

Eric B. Hogberg~ RAO 20 Jan. 2020 - pg.3 Re: 1/16/20 - .letter / More Definite Public Records Demand 9- You·state ·this request (ff9) is overly broad, vague or unduly burdens9me .• a- Produce all records, information [19e7J specific to William Zane; b- Produce all recot'ds, information [1994-1996] specific to William Zane; c- Produce all records, information [1998-1999] specific to William Zane; d- Produce all records, information [1994-1995] specific to Stanton Kessler; e- Produce all records·, inforrnatiop [1995-1999] specific to Stanton.Kessler; · f- Produce a~l records, information [1994-i995] specific to meetings, consults or· other determinations of the OCME [1994- 1996] to restrict hdmicide autopsies of William Zane; g- Produce all records, information [1993-1996] specific to then Chief Richard Evans, in regards to restrictions, or mandated·oversight or supervision of William zgnE; h- Produce all records, information [1993-1996] specific to Richard Evans instructions to Stanton Kessler as chief of staff, specific to William Zane; i- Produce all records, i~forrnation [1992-1996] specific to the.OCME1s "chain of command" - Chief down to as$ociate pathologists, or those titled simila~ly; j- Produce records~ information [1994-1996] specific to histology training~ minimum passing ( grade or other level ·of neces~ary satisfactory completion) particular to William Zane. ·1 close, praying that:these public records demands are specifically focused.for your immediate attention and production of those requestedc I am ~est Regards,---, c~~-~~.-- ,,....,,....--j --=------,,. .. ->;'.~:;.~~,~ .. ~ . <,.-- EmorLG. Snell~r:~- · .· /EGS encls. 1/16/20 = Hogberg letter

. Stanton C. . Kessler, MD Forensic Pathologist · 112 Silver Lake Road E Columbia, South Carolina 29223 423 930-7758 803 4 77 .. 3385 March 7, 2011 Gary G. Pelletier, Esq. · Pelletier Clarke & Caley 35 T ouro Street Newport RI 02840 Re: Commonwealth v. Emory.Snell Barnstable Sup. Ct No. 95-46579 Dear Attorney Pelletier, My name is Dr. Stanton C. Kessler. For 15 years I was the chief of staff and director--of fellowship training for the Office oft he Chief Medical Examiner (OCME) in Massachusetts and a member of the pathology teachln.g staff at Boston Uni.--versity (11BU11 ) and Harvard Medical School at Beth Israel Hosprtal I now teach pathology at the . University of South Carolina Medical School in Columbia, South Carolina; . ' . I have reviewed Dr. William Zane's ("Zane") autopsy report and trial testimony related to the death of Elizabeth Lee Snell (No. 95-00844), scene video, scene and autopsy photos, as well as reports of Drs. Friedlander and Young. Based upon my review, I have made tlie following observations and conclusions: · 1. I had a close relationship with the late John Smiale~ ¥-D. , the chief medical examiner for the State of Maryland and director of fellowship training in forensic pathology where Zane trained. Dr. Smialek and I worked and lectured together at the National Association of Medical Examiners' annual meetings: Dr; Smialek informed me that Zane participated in his fellowship program in Maryland. Dr. Smialek relayed that, although the feUowship was only a year long, he required Zane to take an extra year of training because of bis poor performance. 2. As chief of staff of the OCME in Boston, I was responsible for Zane's work product following the completion.of his fellowship in Maryland. Zane worked afo ur.. the Cape Cod office in Pocasset, Massachusetts with late James Weiner, M.D., who was and also under my supervision. Dr. Weiner was a very competent precise pathologist who needed no supervision so I allowed him to also supervise Zane, when he was on duty.· i was on call 24/7 during this time covering the entire Commonwealth of Massachusetts. When Dr. Weiner was not available Zane :reported· directly to me. As

Zane had some problems making good decisions~ lacked expertise in forensic pathology~ exhibited severe anxiety, and, at times,. could not control his temper, I did not allow him to perform any homicide autopsies alone. IfDr. Weiner was not present, I directed Zane to bring the cases int~ the Boston office where I could and would observe bis work.. 3. The OCME moved into the new morgue on 720 Albany Street in Boston in the early 1990's. Along with the Massachusetts State Police Crime Lab, led by Lieutenant Kenny~ I helped to design a separate body lab in the new office. The new office · a had its own fume hood to remove toxic gasses created when we would tent body and expose .it to cyanoacrylate :fumes [superglue] for finger print retrieval. We also had modem photography equipment and alternate light source technology to help remove hairs and fibers and any other trace 'evidence. These examinations would take up to six hours to complete and could not be completed at the scene or other offices. These techniques were and are state of the art in forensic science. They were reserved for any case of close contact suspected homicides.· The Elizabeth Lee Snell case would qualify as a close contact suspected homicide. Zane was aware of$ is lab ~d ho'\\: w:e utilized it. He ~voided calling the Boston office, did not bring the case in for a supervised autopsy, and did not alert the ,State Police about the need to retrieve trace evidence. Thi~ lab was operational 24/7. 4. I do not know ifZ ane willfully avoided the special trace procedures, ifh e-was just oppositional: ·or ifhe just forgot about them. Bringing the body-to Boston took extra time and Zane was not fond of being supervised. His poor worlc product and lack ofj udgment, however, necessitated it. 5. With regard to the Elizabeth Lee Snell case, Zane should have brought the inhaler found at the death. scene near the body to the lab as evidence. He also should have contacted the physician. who wrote the prescription (''Rx") for it and obtained Elizabeth Snell's medical history. At the time of 4er death. in 1995, ·about one to two asthmatics died each year in Massachusetts in their sleep. Thosv asthmatics were often found face down in their beds ·by family members. Lying on boney prominences as decomposition begins causes them to be red in the areas where the blood pools. Here, microscopically, there was no vital reaction seen. There is no evidence of any trauma in this case. Sometimes autopsy lungs show evidence o:t chronic asthma· . changes~ but even without decomposition, I do not think that Zane would have been perceptive enough to be able to make the diagnosis, At the very least, he should have investigated the case before signing the Death Certificate on March 19, 1995. His histology slides would have taken one or two weeks to receive before he could even review thew.. · · · In reviewing Zane's diagnosis, I note that the drug tb.eophyllin has never been· · used as an asthma inhaler as Zane speculated in his testimony. It is a liquid or pill medi~tio~ Theodur. It may be given intravenous.- It was used in the early 1960' s as long term therapy to prevent asthma attacks~ but_ several deaths have occurred from the

drug due to abnormal heart arrhythmias. It has not been used for the last 25 years. Moreover, Epinephrine inhalers aren't prescribed by medical doctors. They are over the counter medications, i.e. Primatine mist, and can cause severe cardiac and blood pressure_ problems. Emergency medical technicians and paramedics may give epinephrine by the mhaler route when they are treating a patient suffering from a severe allergic reaction. - 6. From these observations> I think that Zane did not have an understanding of basic medical knowledge. Essentially, he is negligent. His inability to follow up with.a . treating physician, his disregard for the inhaler or its proper documentation, his handling and numerous oilier errors in judgment that compounded errors were so serious that he rendered himself incapable of determining any scientific basis for the cause of Elizabeth, Lee Snell's death. Zane totally ignored and did not investigate the only the inhaler, which was fue clue t,hat would facilitate finding the cause of Mrs. Snell's death. 7. I reviewed Dr. Friedlander' s report of the microscopic slides taken and made by Zane in this c;:i..se. It wn.~ evident to Dr. Friedlander and now to me, as I review his one hundred and two photographs taken of the histology slides and blocks when he was at the OC:ME, that the wax blocks and tissue slide of the same number, i.e., 95-844; 95-844:H, 95-8440-, etc., which should be an exact _match of one another, as one is just a thin · section of the other stained and put in glass, did not match up. They were not the same tissues on each slide. This should be evident even to a layman without requiring the use · of.DNA. I agree with Dr. Friedlander's conclusion: "No pathologist reviewing the case and exercising due care would fail to .notice that there-is something gravely wrong here". Statement of Dr. . Friedlander contained :in a letter to ·Mr. Emory Snell's former attorney, Irving Marmer, dated Mar.ch 31; 2006~ m Histology is the basis of pathology. A new resident pathology learns how to · properly perform cutting tissue as well as making and reading slides in the first week of every basic anatomic pathology training program. Even a minimally competent pathologist would never fail to no'j:ice whether the blocl;cs match the slides. If a pafuologist capnot even get this _simple task correct, then he or she simply should not perform autopsies. · 8. Apart from the failure to match the slides with the blocks, I noticed in my review the absence of Tardieu spots. Tardieu spots are caused from the 'rupture of small blood vessels due to pressure of settling blood.. They are an artifact of decomposition. Ta rdieu spots are helpful during a death investigation. Tardieu spots help in dete:rmimng if the body was moved after death. If the body was moved, they may appear in an anti.:gravity position. I di~ not_ ~ali::~ that ~bservation in tbis case. 9. There were only four photos of the body and organs taken at the autopsy. They are all poorly exposed and simply do not contain enough information to support Zane's findings of suffocation. I did not see Tardieu spots. I did not see any petechiae in the

larynx. I found the effect of post mortem gastric juices draining into the mucosa at the .back of the throat,, epiglottis, ~d I~, causing it to look red, brown, and digested. the 10. There was no evidence of any trauma Also, in reviewing scene photographs of the Snell bedroom where the body was found, the pillow under the face and bed sheets · were :free of secretions. During an intenti,onal ~u:ffocatio~ there is always a struggle and the autonomic nervous system g~es into overdrive as the person attempts to survive. · Numerous glands produce excessive amounts of secretions :from the nasal sinuses and mouth. I did not see evidence of any secretions in this cas~ on the-pillow or bed sheets. case. 11. There were no signs of suffocation or a struggle in this Usually there are tom tie dowp.s, frenulae under the lip, gum, lip, facial nee~ and nasal or tooth . trauma Any or all oft hese should have been seen in any terminal violent struggle as well and as cyanosis petechi.ae in buccal musoca and eyes. Zane di~ not find any evidence of . a teuninaJ struggle. ;Moreover, in ~omicidal suffocatio~ the lungs are equally heavy weighing at least 800 to 1000 grams. Here,. one lung is light and the other one heavier, . but well below the. severe congested .weights seen in an asphyxia death. .Elizabeth Lee . Snell's drug screen toxicology was negative. She was not intoxicated or under the influence of any soporific medications to prevent a struggle. Rare petechlae, eve.Q. if I a had found them in the larynx, do not make this homicide. 12. The chain of command at the OC:ME for Zane was (1) Dr. James Weiner, (2) myself as chief of staff and (3) if he still had any questions, he could go to Dr. Evans, the Chief Medical Examiner for the OCME. Zane knew the chain of comm.and and disobeyed it. At the time I ran·:five offices throughout the Commonwealth. Unfortunately, we could not hire any new pathologists because of a poorly funded ·b udget; hence, we were stuck with Zane. Dr. Weiner tried as best as he could to watch him. ) but it looks like Zane, for whatever reason, intentionally slipped this case under the wrre. Finally, I note that Zane had severe interactional and self control problems with our :Bo~on staff. Once p.e became very abusive with our·Boston administrator, Mildred . Anglin, and threatened to assault her :with a telephone. receiv('.:r. This resulted in him being reli~ved of duty and he temporarily left the office. After my tenure in the OCJY.IB ende4 I discovered that the office forbid him from perfouning autopsies in possible homicide cases due to his documented gross incompetence in other cases. Please contact me if you have any questions.· Please see attached photo oft he slides and blocks taken by Dr. Frie.dlander. · Sincerely> · · !s/&~e.~ Stanton· C. Kessler, JY.ID

.:.·, ' / I .I . ,· -. /, : . :

l' . .!MDNWE..21..LTH OF MASS:ACHDSETT B~rnstable ss. Superior Court 1 } COMMONWEALTH·. ) ) v. ) No. 1995CR46579 ) . -EMORY G. S~LL, JR., ) . Defendant ) ,• ------------'-----) . MOTION FOR A NEW TRIAL DefenClf:.n'!: Emory G. Snell, Jr .. , moves; pursuant to Mass .R .. Criin.. P. . . 30 (b)' that the Court grant him a :new trial . . The grounds. for this motion are, individually and collctively: *Newly discovered evidence *Newly discovered ex~ulp~tory evidence *A substantial rfsk of a miscarriage.o; justice. *Ineffective assistance of counsel. *Actual Innocence. The foregoing grounds for a new trial are set forth i~ detail in the accompanying Memorandum of ~aw,· and affidavits and exhibits · colle·cted in the Appendix, also submitted herewith. . Fin'a lly, defendant- submits her~with a Motion for Discovery and requests an evidentiary hearing on his Ruie 30(b) motion. Respectfully submitted, EMORY G. .S NELL, JR •. By: Richard J. Shea Esq. 7 398 Columbus Ave. no. 194 Boston, MA 02116 617-909-4321 BBO 456300

THE LAW OFFICE OF ROSEMARY CUR.RAN SCAPICCHIO, INC. 107 \JNION WHAR.F BOSTON, MASSACHL!SITTS 02109 (617) 263-7400 FAX (617) 722-4198 SCAPICCHIO _ATTORNEY@YAHOO.COM www.sCAPICCHIOLAW.C0M Jam.i.ary 14, 2014 Emory Snell P.O. Box 9106 9 6 5 Elm Street Concord, MA 017 42 Dear Mr. Snell, · I received your letter requesting my assistance with your Motion for New Trial along with the documentation supporting your innocence. I have .reviewed your case and believe.that your claim of actual innocence is strong. I cannot "appoint'' myself to your case. My best advice is for you to write.to CFCS and request that I be appointed to your case. If CFCS ·agrees to appoint me to your case, I will request your file from your current counsel and begin the process of preparing your case for the Motion for New Trial. . As always, please call me with any questions.

POWERS, JODOIN, MARGOJ;.,IS 8i MANTELL.LLP l1 I Devonshire Street A TT e R N E_:r s A. T LA w Boston, MA Q2109 Tel. (617) 742-7010 Fax (617) 742-7225 Kevin G. Powers Eni.ail • kr;Jlowers@theemployme,u'tlawyers.com I . Au.gust 21, 2018 VIA FIRST~ CLASS MAIL Atto:r;ney R.adha Na:tarajan.. ~ · The New Englc12d Irinocep.ce PrOJ ect · 120 Tremont Street, Suite 73 5 · . Boston, 11A 02108 Re: Emory .G. Snell · · ·Dear A~omeyNatarajan.: . . . I received. the enclo~ed docum.1:,nts fro)? Emory Snell asking for my help, I am an and employment ancfcivil rights attorney have no~iried a criminal c~em. ave~ 30 years /. and am therefore not competent to help him.. ,I . I have read Mr. ~nell' s letter and revie'Yed what matei:iais are available on:line. There appears some question about the autopsy report, .. tb.e competence o.fthe cied.ical . . . ' . . -~----~--~-=e-x-a~m~.m ~ and t.her.efo re issues regarding Mr. Snell's guilt . --- --i.. ...... I hope you can. look into t.h is case; . X:.eviD: Ef_ ?.c:we.:rs Rcbcr.t,S. Mantell Lor.i A. 'Je€.oiu Beth• R. Myers J o n at h..~:g: l- M. s..r g:;S r:r -s.

LO~oj.· JOSEPH F. R:RowsRI, ]}sQ.. .JOSEPH F. KROWSKl, ESQ. 3D COTTAGE STREET JASON C. HOWARD, ESQ. . BBOCKTDN, MASS. 02301 Tel. (5DB) 587-3701 Fax(5D8) 588-6035 Febroruy '22, 2017 · Mr. Dale Willi.ams W66527 MCI Concord Box9106 ,· . · 965 Elm Street Corrconl M.:_A. 01742-2119 Re: Comm.cm.wealth Y. Dale Williams Dear Dale: In response to. your letter, I recall fuatDr. S~ektold me :gJ. another case i:h.atDr .. Zane-b::.d worked fo;r him when.Di:. Smialek was Chief-Mecfu.·.'.a:L.Examiner for Baltimore Ceuniy and iha:t go- lie h;:;rlto let fu. Zane a:fu:r onl:Y a year becaime he·was not fit for the job. · ' . m . ' Tn.ere may be more :info the Baltimore County records on Zane and his two :failing rev:i:e-w-s from his snp~ors there_ . Also, as I read your letter, I tbougb.t about the empanelment in yom trial ·I remember clearly that the jury vof.r dire was conducted m the sm.all jury dehl>era:tion room ·: ad.joirring fue second 1rial sessi~n.. Ifm y mem~ry serves me correctly, and I'm~ it.does, you . and have a substantial meritorious claim.:to haye your corrv.iction reversed in courtroom closure based in Commonwealth. v. Cohen.. · · The jury "VO f.r dir:e by your trial judge, Flannery I believe, was held in fue same ju:ry delibe:r:a:tion. -. · room where·th.e JUC4:,cremprope:dy excluded the public in fue case of Common.wealth.. v-. Patry. let Please ym;rappellate lawyer or whoever is. assisting you in. your legal pursuit know this.. -· ... - ... .. .. Good luck and take .care ofy ourself JOSJ;:FH F. lCROWSKI, ES.QUIRE . . JFK/fin .

. COMMONWEALT H OF MASSACHSETIS Barnstable· Superior Court Dept . No. 95CR046579 Comrnonwea[th V. Emory G. Snell, Jr., Defentj.ant AFFIDAVIT OF EDWARD R FRlEDLANDER MD [, Edward R. Friedlander MD, having personal knowledge of these hereto stated facts, and am competent to testiff thereto, do $Wear and ~ffirm the following. i. At an times. relevant, I am Chairman of the Pathology Department for the Kansas City University.of Medicine and Biosciences, 1750 Independence · Avenue, Kansas. City MO 64106. · · 2. I was contcicted by Emory G. Snen Jr.I to review the autopsy. by performed on Elizaoeth Snell Massachuse:tts Medical Examiner William Zane, whose opi nfo n was that Ms. Snell died from "asphyxia by smotheringn. I · undersfand that he acknowledged that this was.a ~diagnosis of exclusion." on Based my education and experience in ar1atomic pat\iology, making the call of smothering as a "diagnosis of exclusion" is unusual, as there. are many other causes of an. autopsy prosection not reveating a clear cause of death. ln fact, ,some say that the more experienced the pathologist, the more likely he or she is · to dassrry the cause as "'undetermined." · 3.. l requested the opportunity to do a courtesy rev'iew of the photos. · and recuts of the glass. slides. It took months. to get thf? recuts; in fact, l have . never had.to wait this long in any. other consult My initial ceyiew of the g!'ass slid.es at o'nce revealed that the tissues came from more than one person. The sections of liver were obviously from Mo different people, and one of the sections of heart, unquestionably, came from a baby. 4. . During my initial revfew of the glass. slides, l had other conc;erns. Particularly, the sections of inn~r lfp ·simply didn't show the ciear bruising typical of smothering that the .report suggests was present. I was also troubled by Dr, Zane not haviQQ submitted a section of the lung from the area where the small bronchi are wen~rep,resented-, des'i)rte the patient being a known asthmatic.whose actual death rnfght realistically have been due to this illness. I shared all of these.· concerns with Mr. Marmer, and asked for an. opportunity to sit down with the· perso.nnel at the med)cal examiner's office and sortthis all out colleg'ialty. 1

&· && 5. In 2006, I visited Boston and had the opportunity to review the original glass slides and paraffin blocks. The blocks matched the recut& I had· reviewed but onfy some of them·matchedth . e original slides. that I was . n ow . examin[ng. · L ., 6. · RevieVf of the origina(s reinforced my cpncems about the way that the tissue that was· really Elizabeth Snell's haq peen interprE?ted as Qr: Zane was .f ormulating his 'di<aignosis ·oy smothedng. Some of the ·concerns ·ar? biv1al; for . the example, I recall the tiny bruise on "A" being in the dermrs rather than subcutis'. Others are more serious, and ra,_iqe concerns about an injustice haYing bee!l- done. · T. As I'd noted on the recuts, of three sections of what appeared to be · inner \fp, only one showed any abnormanty'- a few extravasated red cens, an . \nfinitesima\.fesion, was simply called acute interstitial hemorrhage, with:no a mention of lt being so tiny. This seemed to be ari overcall from pathologist eager to find the oral bruises of smothering whef"\ they were not visible gri;)ssly. A pathologist does not ordinarily take a section of n~rmal-appearing lip; and Dr. Zane m1,.tst have been s~arching hard for injuries .that may well rn;:>t have been present 8·. . Glass slide "E" showed recently abraded skin bWt I thought that l saVi{ ep-ithelial healing (regeneratibn}·at the edge~ This ·says to me-that whtle there had probably been a scuffle (and there are bruises elsewhere or'l the bodyt it had preceded: ¢eath by at \east severE1.l hours, 'l'<;i asked for subspe~if3.itst ,demiatopathology review here. · 9. The d~dent is an asthmatic, but we have poor documentation of the extent arid' activity qf this illness_ \ recal,! n:o sections or photos o~ cprqnary artery,· p~ople may have heart attacks ~!?pecially aft~r argt,1menfs. And · adrenergic-based asthma rriedit'.ines·cart trigger cardiac rhythm disturbances, a espech,~lly in people who are upset after quarrel. · · · a~ 1'0. lh!;;re is 110 such thifig a. perfe:ct pathologist, a perfect autopsy, or a perfect law enforcement team. f have riot studie.d ·all the facts surrounding th.e events of Ms. Snen's death, nor is it my p!aee to oo so. l have been approached by around 200 criminal defense t~arns about defendants who may . be irmocenl In about thre.e-quarters of these cases,.t have told the attorney to have a heart-to-h'earttaik w1tn his· or heq~uiity"c.ffeht. fn Mr-. Snelf's case~-1-have real c:o'ncems about the lack of good p~er review of the autopsy findings, including the glass slides, leading to a r:nistaken.conviction.

"& & &: 11. Since I am.a general pathologfst and educator with an interest in forensics but without subspecialty certification, I have decided it is best th.at severai pathologists who are subspecialty-certified review thfs case. Only a _foot · my pretends to know everything, or to be rtg ht a!I of the time. · l am sharing owo thoughts as a courtysy for the. benefit of the court and fur my colleagues, in the hope that this matter reaches a just conclusion. Alf of this is true on my wortj as a Christian gentlemat1, and under penalty of perjury. o.ri Signed· this 26th day of March, 2012, pain of.petjury. ~~~ Edward R. Friedlander MD · Pathology Department Kansas City University of Medicine and . Biosciences . . 1750 lndependence Avenue Kansas City Missouri 64106-1453 State ofI vfissouri County of Jack:$on ·I,:Lisa M. Winkle, a notary public in and for the State of Missouri, do certify that on th~ 1_ {p day of }Jarc h 20 I L-, Eo\ (r i ~ \a.gf¥1 signoo this letter in my presenc~ . . 3-