Lowell murder trial remains in limbo: ‘It’s now clear there was a cover-up’
Defense lawyers, prosecutors and the judge overseeing the murder trial of three brothers accused of gunning down a man in Lowell more than five years ago agree — more investigation is needed into a 2023 fatal crash involving a Massachusetts State Police trooper .
The question is whether the murder trial, currently scheduled for April, is the right forum for that investigation.
In January, prosecutors disclosed for the first time that State Police Sgt. Scott Quigley may have been driving under the influence when he collided with a medical transport van in December 2023, killing one of its passengers.
The revelation came during the second day of jury selection in the retrial of Channa, Billoeum and Billy Lee Phan, who are all charged with first-degree murder. Quigley was one of the lead investigators into the 2020 killing the brothers are charged with.
Until January, Middlesex County prosecutors say, they knew only that Quigley had been hurt in a crash and would be out of work. The first time they learned of the elevated blood-alcohol content was late January.
But this week, prosecutors revealed that an unsworn, non-attorney employee of the office had prior knowledge of the situation. That employee disclosed that State Police Lt. Anthony DeLucia mentioned in 2024 that he had heard Quigley's blood-alcohol content was .11 at the time of the crash. DeLucia apparently said Quigley had been at "Teresa's" with another trooper before the crash.
On top of that, in recent days, prosecutors pointed the finger at State Police for not disclosing dash camera footage from the troopers who responded to the 2023 crash, which was published in The Boston Herald . During the footage, obtained by MassLive, an investigator can be heard saying, "if he's not (expletive)-faced, I'm not worried about it."
"It appears that Scott had his phone out," Sgt. Jennifer Penton can be heard saying. "They're looking out for him."
A lawyer for the State Police said the failure was a simple oversight.
The series of late disclosures of evidence has led lawyers for the Phan brothers to say the conduct of the district attorney's office and the State Police amounts to a cover-up. In one recent filing, William Dolan, who represents Channa Phan, said prosecutors were trying to pass the buck to the State Police.
Dolan wrote that he was reminded of the Wizard of Oz and the expression "pay no attention to that man behind the curtain." He asked the judge to sanction the State Police and hold them in contempt.
The defense lawyers have filed a motion to dismiss and sought an evidentiary hearing to get to the bottom of the issues surrounding Quigley. They want to call Quigley and the troopers who investigated the crash to the stand, as well as Woburn police officers who responded to the scene and several prosecutors.
But Judge Christopher Barry-Smith indicated Tuesday he was less interested in understanding the full scope of the issues surrounding Quigley than in understanding how Quigley's misconduct might impact the Phan trial.
Barry-Smith has yet to rule on the request for an evidentiary hearing or the motion to dismiss. He set a Friday morning hearing for arguments on the motion to dismiss.
The Tuesday hearing
A hearing convened Tuesday afternoon was focused on what Barry-Smith described as a "pretty narrow issue" — the late disclosure of the dash camera footage and whether the State Police had more relevant evidence to turn over.
Assistant Middlesex District Attorney Casey Silvia said prosecutors filed the motion because they wanted to avoid returning with new information.
"We do want to ensure we all have all discoverable information when we move forward," she said.
Barry-Smith pressed Siobhan Kelly, a lawyer for the State Police, on whether the department had gone beyond simply producing everything it had turned over in a civil suit related to the 2023 crash.
While Kelly said everything related to the crash had been disclosed, she admitted that information generated by the slew of investigations kicked off in the wake of the revelations about Quigley would likely come later, perhaps even after the trial.
"If there were a circumstance where we were provided information that related to this incident ... that information would be shared with all parties," she said.
The revelations regarding Quigley have touched off four separate investigations: an Internal Affairs investigation by the State Police, a third-party review from the firm 21CP Solutions, an investigation of the district attorney's office led by a retired judge and a criminal investigation led by the Suffolk County District Attorney.
Silvia said the investigation by Judge Thomas Drechsler will begin on March 10, and he had been told the review must be completed quickly. But the district attorney's office was not directing the investigation and had no control over it, she said.
Barry-Smith ordered State Police to provide "all responsive documents and information, not limited to that which was produced in the wrongful death civil litigation."
Implications for trial
Throughout the hearing, prosecutors emphasized that while they believed a thorough airing of the facts regarding the crash was needed, the trial was not the place to do it.
"I do again want to say that we completely agree that this is something that needs to be fully and fairly investigated, but I think at the end of the day it's important to keep in mind this is the trial of Commonwealth v. Phan, not Commonwealth v. Quigley or Commonwealth v. State Police," Silvia said.
While Silvia conceded the information about Quigley was discoverable, she argued it couldn't be admitted at trial.
Just because the information was exculpatory, "doesn't mean a whole fishing expedition into this should be authorized," she said.
Barry-Smith said he was trying to maintain a distinction between the potential misconduct by Quigley, namely the crash, and the potential misconduct by the State Police for failing to properly investigate Quigley's involvement. That was particularly important when considering the high standard for a motion to dismiss compared to potential admissibility at trial, he said.
"The defense deserves their best chance to make their argument (that the information) warrants admissibility," the judge said.
Dolan, the defense lawyer, said they couldn't do so without an evidentiary hearing.
"It's now clear there was a cover-up; the question is how far it goes," he said. "If we don't have the ability to confront what the commonwealth is saying, I think constitutionally, the defendants are ... left simply to be in the wilderness as the Massachusetts State Police and commonwealth are able to say whatever they want."
"I think the defendants are being put in a position where we can't properly defend ourselves," Dolan continued.
The Phans' trial is set to resume on April 27, but the defense lawyers said they may seek another delay.
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