CAMBRIDGE — A Superior Court judge has indicated she is leaning toward tossing out key evidence — text messages — Peter and Daniel McGuane sent to each other and friends after they allegedly beat Kelly Proctor to death following a Fourth of July celebration in Ayer.
Defense attorneys for the twin brothers argued in Middlesex Superior Court on Jan. 5 that all records, subscriber information, voice mail and incriminating text messages from the twins’ cell phones should be suppressed because the records were obtained without a search warrant.
Prosecutors allege that as Proctor, 19, and his girlfriend, Jaime Rotundi, were leaving festivities on July 2, 2005, they ran into the McGuanes, who were walking with several friends.
Witnesses said the fight began with some harsh words between Proctor and the twins and quickly escalated into a physical fight. The McGuanes hit and stomped on the much smaller Proctor several times during the fight that lasted less than a minute, they said.
Within hours of the beating, Proctor, of Ayer, was dead. An autopsy determined the cause of death was blunt force trauma.
Prosecutors have charged the 21-year-old McGuanes with first-degree murder.
Police reported that when the Ayer brothers were contacted after the fight, they said they’d stayed home to play video games.
Prosecutors allege that the twins then began to contact via text messages some friends who were with them that night, asking if they had been contacted by police and instructing them what to say.
Even while each brother was being questioned separately by police the twins were text messaging each other at the police station.
Defense attorneys argue any communications that were stored by the cell phone provider for less than 180 days can only be accessed by warrant based on probable cause.
Prosecutor Kate MacDougall said the records were obtained using a grand jury court order, which she conceded may have been a technical violation. But she said the text messages themselves were held in electronic remote storage which doesn’t apply to the 180-day statute.
Defense attorney Edward Ryan dismissed MacDougall, saying, “The prosecution has twisted and turned this thing and stood it on its head.”
Judge Diane Kottmyer told MacDougall the defense has “the better part of the argument.”
MacDougall also argued that the text messages aren’t protected by privacy laws.
Ryan countered, “No case supports their position.”
Kottmyer took the matter under advisement.