Miriam Van Waters Papers. Male Prisoner Correspondence, 1927-1971. Correspondence: K, 1954-1971. A-71, folder 600. Schlesinger Library, Radcliffe Institute, Harvard University, Cambridge, Mass.

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in before the court, in the criminal side of the court, are cases that involve not direct, positive evidence; that is, in the criminal courts. But they practically all involve what we call 'Circumstantial or indirect evidence'." It then implied that most cases are based strictly upon indirect or circumstantial evidence - or substantially upon indirect or circumstantial evidence (which the defendant states is not fact). But, because it had been the fact insofar as the defendant's case was concerned, the Jury could well have misconceived that it was a customary situation.

9. The Court when it stated "You wouldn't be safe in your homes if it were true that the Commonwealth would be bound to prove the criminal, having been caught, is guilty beyond all doubt and all possibility of doubt" stated an inflammatory theory that had no place in a criminal charge - and was calculated to instill a prejudice against and fear of defendant.

10. The Court when it stated "You aren't looking for doubts in the Jury Room. You are looking for truth" is rendering a harmful and illegal theory with respect to the question of the burden of proof which the Government must sustain.

11. The Court when it stated "The task is easy", or again "It is that simple" and the like, which it did many times over, was prejudicial to the rights of the defendant.

12. The Court when it stated "It is that easy really, insofar, I mean, as the factual information is concerned. Was he there?" oversimplified the matter and made it rather too easy for the Jury in its reasoning process.

13. The Court, having stated, that the question is only whether he (Kerrigan) was there then reasoned as follows: "There were two men there." The defendant suggest that it is the province of the Jury to determine whether or not there were two men there and that the Judge illegally commented or judged the evidence when he made that statement in his charge. The defendant says that when the Judge further said to the jury "Was he there?" and then, next, "Having been there, did he do what the Commonwealth alleged he did?" again suggested a determination by the Jury which he was unwarranted in doing.

14. The Court when it spoke of the specific (Emphasis in all cases supplied) elements of the crime of conspiracy states definitively, "There was a getting together at some time, an understanding at some time, a meeting of the minds at some time between Kerrigan and Cook. A meeting of the minds to do what? A coming together in their minds to commit a crime. And what crime? The breaking and entering at night in Symme's Restaurant or the building of the Kendall Square Corporation." This appears at page 1011 in the Transcript, Volume 9. The defendant states that this is an unconscionable prejudgement of the crime of conspiracy and that by subsequent reasoning it is in effect a prejudgment of the crime of murder. The evidence was specifically contradictory on the question which the Judge so easily decided in the charge in the afore-cited paragraph and the defendant specifically denied that there was a "Meeting of the minds". Herein, the defendant maintains, was A most ruinous and unpropitious example of prejudicative language indurated with bias which, standing alone, would be ample cause for rehearing.

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15. With respect to the specific crime of breaking and entering, the Court stated "The Commonwealth alleges there was an attempt, and to the extent that that helps you in determining there was before that attempt a prior understanding, make use of it." The Court continued "That is in the case as an additional piece of evidence; that the parties before the actual breaking and entering, or attempted breaking and entering, had come to a mutual understanding to do it." The defendant says that the evidence does not warrant that assumption; the defendant specifically denied that he had an understanding to do it as the Judge so freely assumed that there was and the defendant states that he was entitled to a charge which would instruct the Jury that they must find there as facts, rather than assume, that such mutual understanding did exist. There was, in fact, no direct evidence at any time by anybody in the trial that there was such a mutual understanding. Here, the defendant objects, not on the basis of the determination of guilt on the question of the conspiracy charge, but on the determination of the guilt in connection with the charge for attempted break and entering.

16. With respect to the charge of carrying the revolver, the Court stated on page 1013 of Volme 9, "This particular crime has only to do with the fact that he dared to carry it on his body, on his person, a revolver, not being authorized by law to have that on his person." Again, the Court has prejudiced his guilt and told the Jury that the defendant did dare to carry it. Cumulatively, therefore, the Judge had thus far found that there was: (1) A conspiracy - (2) That that fact may be used in determining whether or not there was an attempted breaking and entering - (3) And that the man did carry a gun and - what the Jury must gather to be an inescapable inference - (4) He was at the scene!

17.With respect to the possession of burglarious tools, the Court cited as an example a case which has to do not with burglarious tools, but with dangerous weapons, and the citation was inflammatory, and damaging to the defendant.

18. With respect again to the tools, the Court in describing a joint enterprise, used the words --- ".....These people had engaged in." Again assuming the guilt, and as much as instructing the Jury as to their verdict.

19. On page 1018 the Court says; "...Whether or not Kerrigan was actually attempting to force open the door, or whether Cook was, if you find it was Cook, who was there with him?" Presumably, the Court meant to say, if you find it was Kerrigan who was with Cook -- since that was after all what the trial was all about -- but that was again an assumption made by the Court to which the Jury listened well.

20. Again, the Court says "...Because I wouldn't have to go into these details at all, if he (Kerrigan) were not there". It is to be supposed that what the Court more precisely meant to say was, "If you find that he was not there, you would not have to consider these details", but the two mean something very basically different.

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21. The defendant states that the only objective and impartial charge given to this jury was on the question of whether the attempted breaking and entering was in the night time or in the daytime. Here the Court reflected truly impartial position leaving it entirely to the Jury as to whether one witness would be believed over another. Of course, here a crime would have been committed in either event. The whole attitude, expression, choice of words, phraseology, and approach to the problem of daytime vis-a-vis night time is markedly different from the approach to the other questions with whcih the Judge dealt.

22. The defendant states that as a matter of law the Court erred in its definition of murder in the first degree.

23. The defendant states that the Court made a mathematical necessity of the finding of guilt with respect to the murder indictment - or a logical necessity - because of the assumptions which the Court made in the earlier part of the charge, having to do with the lesser offenses.

24. The Court implied that if the defendant had been at the scene - the general scene, at the time - then he was guilty of murder in the first degree.

25. The Court stated "It is not my function, and I don't intend to talk about the evidence, I shouldn't. I am suppose to try to be entirely neutral as between party and party." The defendant states that it is prejudicial for a judge to say that he was supposed to try to be neutral. The defendant states that the Judge is suppose to be neutral or that he is to try to be neutral, but he extended his prerogatives when he stated to the Jury that he is suppose to try to be neutral, since again such a statement strongly suggested to the Jury that it was an effort for him to be neutral, that a conscious attempt to be neutral was supposedly being exercised or that he was supposed to evidence a conscious attempt. The sentence which follows indicates a slant on the subject that is revealing to the Jury as to what the Judge's true feelings of guilt had been.

26. The Judge instructed the Jury that they were to be "Detectives". The defendant says that this is suggestive of bias and the role is entirely inconsistent with the role of a Juror. A trial is a contentious matter. It is an adversary matter. There were many Detectives who testified. Their credibility was an important part of the case. If the Jury is told that they must assume the role of Detectives, they are told consciously or unknowingly to identify with the Prosecution. The defendant says that it is harmful so to suggest to the Jury and is wrong as a matter of law.

27. The defendant says that in the explanation of the legal theory of "Consciousness of Guilt" the Judge has gone too far in suggesting modes of rationales. The defendant says too many rhetorical questions had been put. Too many questions left a Jury prepossessed of the Court's answers. Too many inflammatory questions were put. The defendant says that the charge was unnecessarily explicit and that the line of reasoning suggested by the Judge was unnecessarily leading. The defendant says that the Judge meditated aloud - followed his own methods of reasoning and substituted them for the natural methods and direction of the collective logic of the Jurors.

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28. The defendant says that the Judge erred in his charge to the Jury with respect to the suggestion of clemency.

29. The defendant says that clemency need not be recommended by the Jury unanimously but that a majority vote would suffice.

30. The defendant asks that the Jury be polled as to their vote in that respect.

31. The Court said on page 1032 "But you turn to your evidence to make a proper determination as to whether there is any doubt whatever as to whether or not the defendant was the one who wielded the weapon that caused German's death." This the defendant finds offensive as argumentative. It is certainly not saying "Turn to your evidence to determine whether or not the defendant was the one", nor is it the same as saying "Turn to your evidence to determine who was the one" nor "Turn to your evidence to determine if there is a doubt...".

32. The style of the charge is grossly censorial. Of all the methods of incisive discourse designed by mankind, none is more effective than the question intenden to persuade rather than inquire. Can the Trial Justice's predeliction for this form of composition, invented by the ancients as part of the art of oratory, be thought to be other than anticipatory to a verdict of guilt? There are no less than twenty such questions between pages 1036 and 1037 of the charge alone. Damaging as the device appears to the eye, is it not more telling when properly intoned with approproiate facial configuration? Wherefore, the defendant says he was denied the basic and fundamental rudiments of a fair trial because the error and deficiencies within the charge (including but not limited to those cited) were violative of his consitutional rights. The totality of the effect of the charge resulted in failure of substantial justice, particularly as respects those rights proscribedi nthe Fifth and Sixth Admendments thereto, providing for "Due Process" and for "An Impartial Jury", irremedial but for the granting of a new trial.

JOHN J. KERRIGAN

BY HIS ATTOURNEY

William E. O'Halloran

INMATE KERRIGAN DIES -- John Kerrigan, who spent 10 years on death row -- the longest time any Bay State prisoner has spent awaiting execution -- died yesterday of cancer. After his death sentence was lifted, he became active in reform at Walpole. Page 8.