Their intense and quick passion takes each of them by surprise, eliciting a relationship that neither one of them ever expected. Her past collides with her present, and she is forced to face it head on, tangling her up in a web of twisted truths and lies which soon leave both vulnerable and bare. Sometimes the only option is just to be silent no more.
The Gallagher family has called Deeprath Castle home for 700 years. Nestled in the Wicklow Mountains of Ireland, the estate is now slated to become a public trust, and book lover and scholar Carragh Ryan is hired to take inventory of its historic library. But after meeting Aidan, the current Viscount Gallagher, and his enigmatic family, Carragh knows that her task will be more challenging than she'd thought.
Gagne then filed a petition for a writ of habeas corpus in this court. Because the SJC had not been afforded an opportunity to consider Gagne's claims in light of Mullaney, which was decided more than a week after the SJC denied Gagne's request for a rehearing on his appeal, I denied Gagne's habeas corpus petition under the doctrine of exhaustion of state judicial remedies. Gagne v. Meachum, 423 F. Supp. 1177 (D.Mass.1976). Gagne then filed a second petition for rehearing with the SJC. The SJC denied the petition for rehearing and suggested that Gagne file a petition for writ of error. Gagne did so. The SJC then reviewed his claims in light of Mullaney and its own decision in Commonwealth v. Rodriguez, 352 N.E.2d 203 (Mass.1976) (\"Rodriguez\"), and affirmed the conviction. Gagne v. Commonwealth, 377 N.E.2d 919 (Mass.1978). Gagne then revived his petition for a writ of habeas corpus by filing a motion for rehearing in this court. I allowed the motion and heard arguments on the merits of the habeas corpus petition itself, as modified by the motion for rehearing, on August 24, 1978.
Gagne's argument here, in essence, is that the trial judge's charge, which included instructions regarding the inference of malice, relieved the Commonwealth of its burden of proving malice beyond a reasonable doubt and placed on Gagne the burden of proving the non-existence of malice. In the words of the SJC, \"[s]uch a shift of the burden of persuasion would be constitutionally impermissible.\" Gagne v. Commonwealth, supra, 377 N.E.2d at 921 (citing Hankerson, supra, and Mullaney, supra). Gagne also contends that the SJC, in its decision on his petition for writ of error, Gagne v. Commonwealth, supra, applied a more lenient constitutional standard than that applied to cases tried after the Mullaney decision and argues that the SJC decision \"emasculates\" Mullaney by examining the jury charge in its entirety rather than by determining whether the charge \"in fact\" placed the requisite burden on the Commonwealth. Finally, Gagne contends that the jury's verdict was against the weight of the evidence.
Viewed in the context of the entire charge, the instructions of which Gagne complains do nothing more than permit *1220 the jury to infer the existence of malice from the intentional doing of an unlawful act (in this case the use of deadly force) coupled with the absence of justification (self-defense) or mitigation (heat of passion on sudden provocation). While the judge told the jury that malice could be inferred or presumed from the use of deadly force, he repeatedly told the jury that the burden was on the Commonwealth to prove every element of the crime of murder beyond a reasonable doubt. The judge listed malice as one of those elements and consistently defined malice as requiring the absence of justification or mitigation. The jury could have interpreted these instructions only as permitting an inference of malice from other proven facts, subject to the reasonable doubt standard. Thus, the jury must have concluded from these instructions that although inferences may be drawn and may stand as sufficient by themselves in the absence of contrary evidence; malice in the sense of the non-existence of justification or mitigation, must be established by the Commonwealth beyond a reasonable doubt. Any confusion which the jury might have had when the judge discussed the inference of malice should have been dissipated by the judge's later instructions. For example, the judge, in discussing murder in the first degree, told the jury:
Gilbert v. Maryland, 36 Md.App. 196 at 205, 373 A.2d 311 at 317 (1977). The SJC found, however, and I agree, that \"[t]he defendant's testimony in rebuttal of the inference of malice was not sufficient to create a reasonable doubt as a matter of law.\" Commonwealth v. Gagne, supra, 326 N.E.2d at 910 (footnote omitted). See Mullaney, supra, 421 U.S. at 701-702, n. 28, 95 S. Ct. 1881; Hankerson, supra, 432 U.S. at 237, n. 3, 97 S. Ct. 2339. See n. 12, supra. Moreover, read fairly, the judge's charge at Gagne's trial did no more than permit the jury to draw rational inferences. In effect, it placed the issue of malice in \"the lap of the fact finder.\" Apparently, the jury chose not to believe Gagne's own testimony as to self-defense and provocation.
I next consider Gagne's contention that the SJC in its decision on his petition for writ of error, Gagne v. Commonwealth, supra, applied a more lenient constitutional standard than that applied to cases tried after the Mullaney decision. Gagne argues that the SJC has created three constitutional standards, one each for cases tried before Mullaney, after Mullaney but before Rodriguez, and after both Mullaney and Rodriguez. While Gagne does not elaborate on this argument, I am convinced that it is rooted in the SJC's language in Commonwealth v. Stokes, 374 N.E.2d 87 (Mass.1978), to wit:
Reports have quite recently noted the outbreak of polio within Western Africa and Southern Asia. Declarations by the World Health Organization headquarters in Geneva, Switzerland (WHO) and its South East Asia Regional Office in New Delhi, India (WHO SEARO), about the future prospects of eradicating polio across the globe, therefore, reveal more than a hint of anxiety. Yet, as options and new strategies are weighed up by members of the different United Nations organizations, national aid agencies and global funding bodies, one important set of lessons appear to have been consistently ignored: those presented by the successful eradication of smallpox, which was formally ratified by the World Health Assembly in 1980. As in the 1970s, the South Asian sub-continent and, in particular, locations within Northern and Eastern India is providing major hurdles for the successful completion of a major global disease eradication programme.
The tide of Indian disinterest began to slowly turn only in the mid-1960s, after the WHO departments charged with starting planning work on smallpox eradication re-organised themselves. Interestingly, this involved employing people who were more willing than their predecessors to engage with Indian politicians and public health officials, in order to develop common ground before an organised push to eradicate variola was launched3. An increased budget, which allowed the relevant WHO departments to fund agreed plans and share some costs with the Indian health departments in Delhi and the states, helped matters along. The results were impressive at one significant level. The Indian federal authorities agreed to organise district-level pilot projects within each state, based, at least on paper, the commitment of comprehensive numbers of local health staff. This was considered helpful within the WHO, as it held out the promise of allowing for the collection of information that would reveal if the smallpox eradication plan was workable4.
All these experiences quickly taught senior WHO representatives that it was far easier to draw up collaborative plans in the sub-continent than to arrange for their implementation. The experience also brought home, by the mid-1960s, the important fact, that they could not hope to micro-manage the programme, top-down, from a great distance. As a consequence of the problems faced in the vast majority of Indian states, splits began to appear within the WHO firmament it was reported that senior WHO SEARO officials, including the Regional Director, were openly expressing doubts about the possibility of ever eradicating smallpox. This, in turn, emboldened critics of the proposed programme within Indian federal and state governments, including members of the office of the Indian Director General of Health Services, to criticise the plan to expunge variola. The problem deteriorated to such an extent by 1967, that people within the WHO's Smallpox Eradication Unit feared that the Indian government would cut back its support very substantially and potentially even withdraw from the programme6. The situation was finally rescued by a series of time-consuming and placatory diplomatic initiatives managed by the Unit's Chief, Donald A. Henderson, who travelled to India for negotiations with several senior government officials, including those based in the prime minister's office. These efforts bore fruit and a new deal was struck, where the Indian federal authorities agreed to continue to be supportive of global smallpox eradication they agreed to streamline the health services department, create a more dynamic smallpox unit within it and also commit greater resources to state-level smallpox eradication efforts from 1968 onwards7.
Another important consideration in an eradication programme is the reliable monitoring of the vaccinal status of the target population and the reporting of disease. In India, the assessment of immunisation coverage amongst children has relied largely on the oral testimony provided by parents; recent evidence from Turkey has questioned this method27. Presentations based on these sources of information at the seventeenth meeting of the India Expert Advisory Group (IEAG), which was held in May 2007, indicated that there were 473 cases of wild polio virus (WPV). Of these, 85% had received more than three doses of OPV and nearly one-third received ten doses or more. By contrast, 99% of 6749 non-polio cases of Acute Flaccid Paralysis (AFP) received more than three doses and 805 cases received more than ten doses28. 59ce067264