Appellate counsel urges court to consider lost hard drive, alleged prosecutorial misconduct in Holbrook appeal

Appellate attorney Brian Kelly asked the court to consider newly discovered material that he says bears on claims of prosecutorial misconduct and ineffective assistance of counsel in the murder conviction of Richard Holbrook. Kelly told the panel he had "literally just found out about it this week," and that a letter and forensic leads point to facts the motion judge treated as insufficient to show intentional misconduct.

Kelly told the court the trial record shows a failure to secure useful computer forensics: an expert was retained but not fully used, no successor expert was engaged, and copies of a seized hard drive that later produced some emails are now missing or corrupted. Kelly said a predecessor counselexpert, Mr. Verano (the record also contains the variant spelling "Verona"), had recovered emails and provided an affidavit suggesting additional data might have been recoverable with later techniques.

The panel repeatedly pressed Kelly on prejudice. Judges asked who bears the burden of proving that missing data would have changed the verdict when no examinable copy remains and whether any additional emails would have been material to the third-party-culprit theory. Kelly relied in part on the court's earlier Holbrook I decision, which he said highlighted problems with how prosecution evidence was presented to the jury.

Attorney Carolyn Burbine, arguing for the Commonwealth, said the prosecution's evidencewitness identifications, surveillance and timeline evidence, and post-event financial activityremains strong. Burbine summarized the investigation timeline the Commonwealth relied on at trial: a witness identified the defendant in the victim's apartment, the computer showed a hard shutdown at 12:23 p.m., a sighting consistent with the defendant occurred at about 12:45 p.m., and surveillance placed a suspect at a nearby store between roughly 1:03 and 1:25 p.m. She told the court that the original data image obtained from the Secret Service and a sheriff's-office copy were no longer usable; a data-recovery vendor reported a "head crash" and could not retrieve additional data.

The panel explored strategic decisions by defense trial counsel as well. Judges asked whether declining to test DNA found on a wallet near the victim was a reasonable gamble; counsel acknowledged the risk that testing could both help and hurt the defense. The court also questioned whether the prosecutorin closing argumentmisstated the existence or evidentiary value of emails and whether any such remark was mitigated by expert testimony and jury instructions. Burbine argued that the prosecutor's closing was made in context and would not have skewed the result given the weight of identification and other evidence.

Kelly urged the court to consider precedent addressing lost evidence (including Commonwealth v. Conley) and said that the combination of mishandled or missing forensic copies and the Commonwealth's trial statements could amount to prejudice that warrants relief or further investigation. The Commonwealth denied bad faith, said the copies degraded over time, and argued the record shows no reasonable likelihood the missing data would have altered the verdict.

The panel asked procedural questions about the appropriate vehicle for the new factual material; judges suggested that a serial Rule 30 motion for a new trial is the usual means to raise newly discovered facts rather than a Rule 16L filing. Counsel indicated they would address the issues in briefing consistent with the court's direction. The court did not rule from the bench on the record during the argument.