The attorney for former senator J. James Marzilli Jr. is seeking to have two charges against his client dropped because of a missing videotape.

Terrence W. Kennedy says in court filings that the tape contained evidence that could help his defense of Marzilli, due for trial in April, but Lowell police did not preserve the tape.

A motion and affidavit that Kennedy filed Feb. 20 in Middlesex Superior Court offer an account of the events that began last June 3, a day that ended with Marzilli facing charges involving four women. Those charges led to his indictment in July and resignation from the Senate. In an earlier motion, Kennedy argues that charges of accosting the women should be dropped on constitutional grounds. The new motion addresses the charges of resisting arrest and disorderly conduct.

The day Marzilli was booked on charges that he had accosted women, Lowell police also charged him with resisting arrest and disorderly conduct after chasing the then-senator into the city-owned Market Street parking garage downtown, which a videotape system monitors.

If available, a videotape might have shown the following, court filings say:

Lowell Police Detective Corey Erickson testified to a grand jury last June that the defendant "tensed up refusing to place his hands behind his back. We did not use any force against Marzilli other than controlling his arms.” Erickson further testified that the defendant “continued to cry that we were destroying his life and that his life was over” and that the Defendant “became less tense and we were able to place him into handcuffs.”

The events that occurred in the garage that day were recorded on the facility's videotape system. Kennedy says he requested a copy of the surveillance video from the garage, and the Commonwealth agreed to provide it on the next pretrial hearing date, set for last Oct. 23, but it was not produced.

The assistant district attorney handling this case said the tape no longer existed.

Timeline of events regarding videotape

In pretrial discovery, Kennedy's court documents provide the following timeline of events:

-- Last June 10, Lowell Detective Erickson requested a copy of the videotape and was informed that John Carney was the director for city-owned parking garages. Erickson was referred to Bill Riley, security supervisor for the garages and the only individual authorized to view, copy and produce the tape that day.

-- On July 10, Lowell Police Department administrative assistant Katherine Callery e-mailed Carney requesting a copy of the tape. That day, in response to the e-mail, O’Reilly told Callery that "the only view they have of Marzilli is only 2 seconds long, and you can barely see him." Reilly said he made a copy of the video and dropped it off at the Lowell police station.

-- On Sept. 22, an assistant district attorney quoted Riley as saying he had no memory of whether he dropped off the tape at the front desk or some other location. The ADA informed Riley that the defense was seeking a copy of the tape in a call chronology was requested in order to determine where the video may be and who may have last had the video. Riley was informed that the defense would be seeking a court remedy if "the evidence had been lost or destroyed” by the police.

-- That day, Riley called back to say that he had spoken to "Sharon" [no last name provided] at the Lowell police criminal bureau and she told him, “I thought you dropped it off already." The ADA indicated in the discovery disclosure that the Commonwealth does not know of a LPD employee named Sharon.

-- On the same day, Riley called back and asked the assistant district attorney, “Would it be better if I did not burn the disc?” Asked what he meant, Riley said, “Well, if you were talking about lost or destroyed evidence – I may not have not even burned [copied] it ... “ The assistant district attorney told him that the truth “was the best.”

Kennedy said it was his intention to use this videotape to try to establish that the defendant did not commit the alleged crime and that no third parties were disturbed.

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Private investigator offers some background

Kennedy also said that his private investigator in the case, William Connors Jr., provided the following:

-- Last June 11, Connors canvassed the area of the incident to determine whether additional witnesses or video were available. He spoke with an attendant at the Market Street garage who indicated that, Judy [no last name provided], the manager, would return the next day concerning the events surrounding the arrest of the defendant.

-- On June 12, a security attendant, who declined to identify himself, told Connors that Judy [no last name provided] was not there. The attendant said he was present when Marzilli was arrested and said the defendant did not raise his voice to police. Asked whether the defendant’s actions disturbed anyone, the attendant said there were "barely any customers" in the garage and none in the immediate area. The attendant also noted the garage had a video surveillance system.

-- On June 13, Judy told Connors in a phone call that a tape of the arrest existed. She said she would have to ask Chuck Carney, director of parking services, whether she could provide it.

-- On June 18, Judy said Carney had told her that the tape had been turned over to Lowell police and if the lawyer wanted a copy, he would have to get it via a subpoena.

Subsequently, according to the court documents Kennedy has filed, the videotape was missing. Kennedy argues:

"The evidence shows that the Videotape existed and that the Lowell Police Department did not preserve [it], despite sufficient opportunity to do so. The Discovery Disclosure shows that, despite the Assistant District Attorney’s performance of her job, the Lowell Police’s failure to preserve the Videotape has caused significant damages to the Defendant’s ability to provide a defense. The comments of Reilly only make the entire situation that more suspect. Accordingly, motion to dismiss due to lost or destroyed evidence should be allowed."

January motion seeks to suppress evidence

The more serious charges in the case were addressed in a Jan. 14 motion filed in Middlesex Superior Court. Judge Frances McIntyre ruled on the motion related to accosting charges Feb. 24.

Kennedy said the court should reject counts of annoying and accosting a person of the opposite sex as well as three other charges, because they violate equal protection for people of different genders, an issue backed the state Constitution.

In a brief filed with the court, two assistant district attorneys argue that the law does not discriminate against a particular sex but people of either sex who target those of the opposite sex.

Kennedy's motion asks the court to suppress all evidence obtained beginning from and after Lowell police began to chase Marzilli before the time of his arrest last June 3.

His motion says Lowell police arrested Marzilli after interviewing witnesses who alleged that the defendant committed acts that, if true, would constitute a misdemeanor. Police did not witness the acts.
Thus, Kenned seeks to have any statements and any other evidence, whether obtained directly or indirectly as a result of the above-described police actions, be suppressed. Among the grounds the motion lists are:

-- The stop and/or arrest violates Terry v. Ohio, 392 U.S. 1 (1968); and

-- The Defendant did not waive voluntarily any of his rights under the U.S. Constitution or the Massachusetts Declaration of Rights. The Defendant contends that because the actions of the police violated his rights under the Terry v. Ohio, 392 U.S. 1 (1968), Commonwealth v. Stout, the Fourth, Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution, Articles 12 and 14 of the Massachusetts Declaration of Rights, and M.G.L. c. 276 §1, all evidence and fruits resulting from such actions should be suppressed.