Updated
Edgartown District Court Judge Benjamin Barnes will allow the commonwealth to access the medical records of Zachary Dupon on the night of a crash that resulted in the death of 22-year-old Oak Bluffs resident Emma Hall.
Barnes also allowed a separate motion for access to a set of five medical and EMT records of two passengers who were injured in Hall’s vehicle.
Barnes originally took the issue under advisement, but made the ruling on Monday.
Dupon was arraigned on a vehicular homicide charge in December. He has been accused of driving at speeds of up to 70 mph when he passed vehicles on Beach Road. The SUV he was driving allegedly slammed into the driver’s side of Hall’s vehicle, killing her, and injuring two passengers.
Dupon, who was present on the Zoom call Friday, was represented by attorney Rachel Self.
Cape and Islands district attorney Matthew Palazzolo filed seven separate rule 17 motions for medical records and EMT records for Dupon and the two passengers in Hall’s car. Rule 17 allows the court to issue a subpoena for any third-party documents, but the commonwealth must show the documents are evidentiary and relevant, not otherwise procurable in advance of trial, that the commonwealth can’t prepare for trial without the documents, and that the request is in good faith and not a “fishing expedition.”
In Palazzolo’s affidavit, he outlines the medical records will “show evidence of the defendant’s physical injuries at the time of impact,” which Palazzolo said was relevant to the operation, even though Self told Judge Barnes the defense was not disputing the operation.
“I’d suggest firstly that the commonwealth’s case, even with a stipulation, we’re allowed to present evidence potentially with operation, and then briefly that would be to show if there’s bruising related to the steering wheel that would show he was the operator,” Palazzolo said. “As to the defendant’s injuries, we’d suggest he was taken to the hospital and the severity of his injuries would show the extent of the recklessness, ergo if he was driving fast he would have more bruising than if he were driving slow. I’d suggest the standard at this stage is merely relevance, and given that we’ve gone beyond the basis of a fishing expedition, we should be allowed to have these records to prove our case.”
Palazzolo added the only way to obtain the records prior to a trial, which could be months or years down the road, was through a rule 17 motion.
“While potentially, by no means 100 percent certain, we could obtain a doctor’s testimony, this is certainly the only way we could obtain these documents prior to trial,” Palazzolo said. “We are not the defendant; they are privileged documents.”
Judge Barnes told Palazzolo he would have to show there was no other way to obtain the medical records. He added that since the defense was not disputing the operation, it took out half of Palazzolo’s reasoning.
Self argued the medical documents were not the only source of information that the commonwealth seeks. She said the police report details alleged injuries Dupon suffered.
“The affidavit is simply woefully inadequate to establish with specificity that the documents are evidentiary, and likely to prove one way or another the necessary information that the commonwealth needs,” Self said, adding that the affidavit does not detail the relevance the requested information has for their case.
Palazzolo said the DA’s office could use eyewitnesses to prove Dupon’s recklessness, but they have to prove it beyond reasonable doubt. He said there’s a possibility a jury could find other witnesses not credible. “In the commonwealth’s duty to prove the case, we try and seek all relevant information that could help us prove the case,” he said.
Palazzolo also requested a hearing for a Gelfgatt motion related to a password on a phone. If granted, a Gelfgatt motion would compel a defendant to decrypt an electronic device by entering a password. The hearing is set for March 19.
Story updated with judge’s decision.
