Due-process-right-to-fair-trial,confrontation-clause,perjury-protocol,felony-murder,burden-of-proof,winship-fact

QUESTIONS PRESENTED 1. In a joint trial on a joint venture murder charge, the trial judge implemented a state protocol’ that enabled one co-defendant to give perjured testimony in his own defense and barred the other defendant [Petitioner] from cross-examining the perjuring witness about the influence of this order on his testimony. That order also authorized the prosecutor to make unlimited use of the perjury. The judge then denied Petitioner’s prompt motion for relief from prejudicial joinder. The perjury protocol was implemented on the trial judge’s terms.” The parties agree that the vast majority of the perjuring witness's testimony was false. No specific instances of perjury can be identified given the requirements for implementing the perjury protocol. In these circumstances: A. Did the combined impact of implementing the perjury protocol and denying severance violate Petitioner’s due process right to a trial free of the knowing use of perjured testimony against him by state officials? B. Did the perjury protocol as implemented violate Petitioner’s sixth amendment right to confront and cross-examine this perjuring witness? 2. Under Massachusetts felony-murder doctrine of “constructive malice,” the intent to commit the predicate felony is substituted for the malice aforethought element of murder.’ For first degree felony-murder, the predicate felony must be one punishable by life imprisonment. Thus ee Rule 3.3(e), Massachusetts Rules of Professional Conduct, a23. 2 Commonwealth v. Leiva, 484 Mass 766, 146 N.E.3d 1093 (2020). 3 Commonwealth v. Matchett, 386 Mass 492, 502, 436 N.E.2d 400 (1982). the first element of felony-murder in the first degree is that the killing occurred in the course of the commission of a felony for which the maximum penalty is life imprisonment.* Is the fact of the maximum penalty for the specified predicate felony a Winship’ fact that must be proved by evidence beyond a reasonable doubt? 4 Commonwealth v. Burton, 455 Mass 55, 57, 876 N.E.2d 411 (2007). 5 In re Winship, 397 U.S. 358, 990 S.Ct 1068, 25 L.Ed.2d 368 (1970) -ii