Appeals court hears challenge to Liebert conviction over eyewitness ID and post-conviction DNA

Commonwealth v. Liebert (24P231) was argued April 2 before a three-judge panel of the Massachusetts Appeals Court. Defense counsel Jill Tessier urged the court to grant a new trial under Mass. R. Crim. P. 30(b), saying the conviction rested entirely on a single eyewitness identification and that post-conviction DNA testing has excluded Mr. Liebert from several items of crime-scene evidence. Assistant District Attorney William Joyce argued the motion judge did not abuse his discretion in denying a hearing and that the record does not show prejudice from the defendant’s pro se representation.

Tessier told the panel that a “confluence of factors makes clear that justice may not have been done,” pointing to scientific research on eyewitness reliability and an expert affidavit from Dr. Summers saying the linchpin identification should have been viewed in light of established identification science. Tessier said the case was tried about five weeks before the SJC’s decision in Commonwealth v. Gomes and that a five-week delay between the assault and the identifying photo array, multiple identification procedures, the victim’s head injury and loss of consciousness, and other “estimator variables” together undermined the identification’s reliability.

The motion judge denied Liebert’s post-conviction motion for a new trial without an evidentiary hearing. Tessier told the panel that an evidentiary hearing would allow the court to hear from an eyewitness-identification expert and DNA analysts to evaluate the significance of the post-conviction lab results. She said the jury at trial had heard the victim express high certainty, and that expert testimony would have explained how certainty does not reliably predict accuracy.

Joyce, arguing for the Commonwealth, stressed that admission of identification-expert testimony remains within the trial judge’s discretion and that Gomes does not apply retroactively to create an entitlement to such testimony. He further argued the defendant had standby counsel and opportunities to obtain experts while representing himself, and pointed to portions of the trial record where the judge allowed some modified instructions and where the defense attacked the photo-array procedures and identification inconsistencies.

The parties disputed how the post-conviction DNA results change the picture. Tessier said two bottles connected to the victim’s description excluded Liebert as a major DNA contributor and other items produced inconclusive or minor profiles; she argued the Commonwealth’s earlier trial remarks that “everything had been tested” could not be bolstered now because inconclusive results are not the same as a positive inclusion. Joyce countered that the lab results include items consistent with the victim’s DNA and that the hatchet testing produced results the Commonwealth would highlight at any retrial.

The justices asked about what an evidentiary hearing could add beyond the papers, what specific expert opinions Dr. Summers had offered, and whether the defense’s pro se status and prior waivers of counsel were dispositive. Tessier said the hearing would permit live testimony from identification and DNA experts to explain the science and testing limitations; Joyce said the defendant had not shown the prejudice required to overturn the waivers or to warrant a hearing.

The court took the arguments under advisement and moved to the next calendar item.