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<v ->SJC-08464, Commonwealth v. Charles E. Robinson.</v>

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<v ->Okay, Attorney Krowski.</v>

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<v ->Good morning, Your Honors.</v>

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I bring to the court no thorny legal issues this morning.

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Simply put, I just want to finish the mission

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that I was assigned back in 2001.

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As this court knows, I've already filed

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and argued a direct appeal after a hearing

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in front of Judge Watford in the masters hearing.

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I fully expected when we had the direct appeal,

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that we would be remanded back

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to complete the competency hearing

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that we had a number of false starts with

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in front of Judge Nickerson.

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Basically what had happened,

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and I think the court is pretty well aware of the facts

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of this case, it is pretty much fact-driven.

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<v ->Mr. Krowski, can I get to the standard of review?</v>

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'Cause we had two decisions by the motion judge, right?

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So I know you tried to get the hearing

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in front of Judge Nickerson and that didn't happen

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'cause of competency issues.

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So now we have the second time go around

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in front of a different motion judge.

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The motion judge makes two decisions,

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one is not to have a hearing,

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and then the second is to deny the motion.

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<v Atty. Krowski>Right.</v>

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<v ->The first decision the judge makes not to have a hearing,</v>

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is that an abuse of discretion?

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<v ->No, yes, I think it is at this point.</v>

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<v ->No, no, is that under an abuse of discretion standard?</v>

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I'm sorry.
<v ->Oh, I think</v>

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the way we're here now is under a plenary review under 233,

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so I think we should be here in any event.

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But basically, what had happened

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with the second judge-
<v ->Can you explain?</v>

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I don't understand what you're saying.

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Plenary review, not abuse of discretion?

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I thought the decision whether to hold

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an evidentiary hearing was subject

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to an abuse of discretion standard.

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<v ->On the abuse of discretion,</v>

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I think it's a ineffective assistance, strike that.

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The competency hearing,

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the standard is if there are no other alternatives,

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and no other alternatives to review,

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and I think in this case,

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given the Commonwealth's position

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with their own psychiatrist, Dr. Kelly,

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that it is an abuse of discretion not to allow us

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to continue the hearing that we commenced

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under pretty tough circumstances.

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We had, I think, three false starts.

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We actually had two days of hearing,

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and the defendant, Mr. Robinson, was not capable

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of completing the hearing after a evaluation

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by a court psychologist.

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<v J. Budd>Can I ask, oh, I'm sorry.</v>

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<v ->I'm sorry, please go ahead.</v>

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<v ->I was just gonna ask what would've been gained</v>

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from a hearing if you've got the affidavits

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from the experts, and so if the trial judge, I mean,

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the motion judge took a look at everything and said,

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"I've got everything I need."

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<v ->Well, I think we have to go back</v>

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to Judge Nickerson's last ruling.

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I think it was kind of an ambiguous use of language.

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I understood what he meant because we had a sidebar hearing.

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Unfortunately, it was not recorded by the stenographer

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because it was off the record.

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<v ->But Judge Gilday wouldn't have been bound</v>

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by anything that Judge Nickerson would've said.

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<v Atty. Krowski>What was that, Your Honor?</v>

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<v ->Judge Gilday, who decided not to have</v>

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the evidentiary hearing, would not have been bound

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by anything that Judge Nickerson said.

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<v ->I understand that, but I think the equity</v>

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in this situation goes back to the history of this case.

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It's a fact-driven case at this point.

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There were three hearings.

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<v ->I understand, I think, your argument on the equities</v>

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and why you would like to have had an evidentiary hearing.

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I guess I'm wondering, you know,

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back to the Chief's question,

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what would the evidentiary hearing have gotten

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to Judge Gilday that he didn't already have

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from the affidavits?

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<v ->Exactly, there are two hypotheses that are in equipoise.</v>

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One is the fact that we had three psychologists evaluate,

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or psychiatrists, actually, evaluate Mr. Robinson.

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Then the Commonwealth hired Dr. Kelly,

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and Dr. Kelly's evaluation was ambiguous.

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In fact, the equipoise is that there was some doubt

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in his mind as to-

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<v ->You might be overstating that.</v>

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He basically says you could,

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he says you could look at it both ways,

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but he's definitive that he's competent.

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I don't know if that's a little overstated, Mr. Krowski

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<v ->I don't, in fact, he reviewed everything.</v>

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He had the Bridgewater State Hospital records.

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He had three evaluations from three of my psychiatrists.

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In the end, what he said the Bridgewater State Hospitals,

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and they were records were voluminous,

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because he had spent half the time since I came on the case

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till today in Bridgewater State Hospital,

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so it was six inches of records,

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and he said they are problematic.

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That should have been fleshed out,

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or fleshed out in a hearing.

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Also, he said the colloquy in the lockup

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in the fifth day of trial was problematic as well,

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and it could be subject to interpretation.

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<v ->So let me ask you the second standard review question.</v>

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So we have the two decisions, right?

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One is to not have a hearing, and the second is

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the decision on the merits by Judge Gilday.

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So assuming for the sake of argument,

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the standard of review for the decision

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to have a hearing is abuse of discretion,

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the second decision is de novo,

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that's your argument, basically?

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<v ->Yes.</v>

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<v ->Because he did not have a hearing,</v>

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so now we do the same thing he could have done.

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We have the records in front of-

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<v ->But I fully expected we would've had the hearing,</v>

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given Judge Nickerson's,

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if Judge Nickerson was in the case.

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<v ->Let's back up.</v>

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Do you argue the standard review was de novo

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for the decision on the merits?

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<v ->Oh, yes, that was Judge Nickerson's decision,</v>

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because Judge Nickerson was concerned with the competency

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of Mr. Robinson to participate in the hearing

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or the competency during trial,

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so he wanted another evaluation.

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<v ->It's just because you know how fluid this is,</v>

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obviously, and I think as Justice Wendlandt has stated,

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the Nickerson decision, that ship has sailed.

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We're focused on what Gilday did, correct?

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<v ->I understand that.</v>

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I suggest that he was in error when he said

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that there was no controversy arising from the evaluations

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of Dr. Kelly and Dr. DiCataldo.

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I suggest that when you look at the record in equipoise,

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it should have been fleshed out.

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There's no ifs, ands, or buts about it, Your Honor.

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There was a competency hearing right after trial,

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as you remember from the direct appeal,

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and when we argued this case, and that there was always

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a question of competency after the case,

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but that's not the guidance.

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The guidance is what happens during the trial,

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and we have, as Dr. DiCataldo pointed out,

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something that you never get,

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a colloquy where under Chapman,

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the attorney should have brought that

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to the attention of the judge.

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<v ->And that's why you keep on saying equipoise,</v>

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'cause I know the equipoise,

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you don't use that in normal conversation, nor do I,

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but you're quoting the Chapman standard, right?

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<v ->And I think that Judge Gilday, in reviewing that,</v>

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should have taken that into consideration,

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and as a matter of life, he didn't,

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and we should be allowed to go back and flesh.

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<v ->Because we have two qualified experts.</v>

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You may disagree with what Kelly came up with,

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but we have two qualified experts.

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He says Kelly versus DiCataldo.

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That's a a decision trial judges make all the time, correct?

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<v ->Well, he had an affidavit.</v>

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<v ->So under abuse of discretion, that'd be difficult</v>

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to say it's an abuse of discretion.

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<v ->Under abuse of discretion,</v>

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I suggest that when the Commonwealth's expert says

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the hospital records are problematic,

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the colloquy is subject to interpretation,

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I think it's, I suggest

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it's an abuse of discretion not to find out

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what that interpretation is from Judge Kelly,

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from Dr. Kelly, rather.

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Dr. Kelly just says, it's subject to interpretation.

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What is that interpretation?

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Can I, if after the cross-examination as a psychiatrist say

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that interpretation favors a defendant?

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We don't know that, so I think that I suggest,

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and I know in my own experience that that was so ambiguous

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that this is an abuse of discretion

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for the judge not to follow through.

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<v ->If we find abuse of discretion not to have a hearing,</v>

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we remand it, what's this hearing gonna look

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like 25 years from the date of the event?

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<v ->The record's pretty clear.</v>

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I don't think there's a problem there.

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And I thought that myself,

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this is 23 years removed from that colloquy,

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but the record is clear, the record doesn't change,

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the record is not abstract, the record is discreet.

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<v ->But does that suggest there should be</v>

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no evidentiary hearing then?

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<v Atty. Krowski>Pardon?</v>

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<v ->Does that suggest there shouldn't be</v>

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an evidentiary hearing?

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<v ->There should be.</v>

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<v ->But if the record's clear, see, I'm still troubled.</v>

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<v ->When I say clear, if Dr. Kelly looks at the record,</v>

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and I cross-examine him and what he's seen on the record,

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then we can find out what that subject

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to interpretation means,

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so I don't think we're prejudiced by the time in this case,

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because they'll have progress notes

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on Mr. Robinson over the years, so we know discreetly

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and in real time what he was going through.

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<v ->It's a snapshot though, right?</v>

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We're really looking at a snapshot

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of his mental state at that time.

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<v ->But the evaluations, we've had evaluations,</v>

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since day one there was, and they've all been used

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by the subsequent and follow up experts.

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Dr. Rosemarin filed a lengthy report.

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That was followed up by Dr. Ebert and Dr. DiCataldo.

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Dr. DiCataldo has spoken to witnesses,

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he's spoken to prior counsel.

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<v ->What do we do with the fact</v>

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that prior counsel did not submit an affidavit?

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<v ->Well, he was summonsed at the time by the Commonwealth,</v>

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so I think he was about to take the stand

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when we found we couldn't go through with the hearing,

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and not only that, we had for the first time,

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in my experience, and I've done a few of these,

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the first time in my experience, we had mid-trial

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in real time contemporaneous what was going on,

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a colloquy between defense counsel and the defendant.

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And it's clear that Chapman,

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which came down in Chapman one and Chapman two,

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that at that point,

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that the defense counsel should have notified the judge.

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In fact-

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<v ->But before you leave that, so is the failure to have</v>

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an evidentiary hearing where you call the defense counsel?

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I mean, the two most, the two people who knew

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the mental state of the defendant best at the time of trial,

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which is the relevant time period, correct?

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<v Atty. Krowski>Correct.</v>

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<v ->Are Dr. Montgomery and the defense counsel, right?</v>

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They're the only people who can,

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was there a Commonwealth expert in August of 2002?

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This is an August 2000 trial, right?

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<v ->No, the defense counsel at the time had taken</v>

253
00:11:46.800 --> 00:11:51.690
a first degree murderer to trial from February to August.

254
00:11:51.690 --> 00:11:53.520
Within six months he had a trial,

255
00:11:53.520 --> 00:11:57.450
and at no time was there ever any question

256
00:11:57.450 --> 00:12:00.990
in defense counsel's mind that he should have had

257
00:12:00.990 --> 00:12:02.820
a psychiatrist on board,

258
00:12:02.820 --> 00:12:04.800
and one of the reasons is, and the record is clear that-

259
00:12:04.800 --> 00:12:06.350
<v J. Kafker>But you're confusing me.</v>

260
00:12:06.350 --> 00:12:10.590
<v ->That he never spoke with the defendant between the time</v>

261
00:12:10.590 --> 00:12:13.650
of his assignment and the time of trial,

262
00:12:13.650 --> 00:12:14.880
and that's clear on the record.

263
00:12:14.880 --> 00:12:17.340
<v ->No, I understand that, but I'm trying to understand.</v>

264
00:12:17.340 --> 00:12:19.860
It really goes back to the Chief's original question,

265
00:12:19.860 --> 00:12:24.030
which is what more would we learn in an evidentiary hearing?

266
00:12:24.030 --> 00:12:28.140
And the two people who are most knowledgeable

267
00:12:28.140 --> 00:12:30.900
about his mental state are defense counsel

268
00:12:30.900 --> 00:12:33.360
and Dr. Montgomery, right?

269
00:12:33.360 --> 00:12:34.800
<v ->I'm not sure who Dr.-</v>

270
00:12:34.800 --> 00:12:36.841
<v ->She did the evaluation when he was sentenced.</v>

271
00:12:36.841 --> 00:12:40.680
<v ->Oh, that was, there've been so many doctors.</v>

272
00:12:40.680 --> 00:12:42.158
Dr. Montgomery was at Bridgewater State.

273
00:12:42.158 --> 00:12:43.182
<v J. Kafker>But they're the ones who were-</v>

274
00:12:43.182 --> 00:12:44.015
<v ->That was afterwards.</v>

275
00:12:44.015 --> 00:12:46.080
<v ->I know, but they're the ones who actually are interviewed.</v>

276
00:12:46.080 --> 00:12:47.670
I mean, these other doctors are six,

277
00:12:47.670 --> 00:12:50.880
seven years later, and they disagree with each other.

278
00:12:50.880 --> 00:12:53.310
<v ->I think Dr. Rosemarin was on less than that,</v>

279
00:12:53.310 --> 00:12:54.630
maybe three years.

280
00:12:54.630 --> 00:12:56.430
<v ->I don't know, I thought it was like, five years,</v>

281
00:12:56.430 --> 00:12:58.020
but I could be wrong.

282
00:12:58.020 --> 00:13:00.360
<v ->Well, he was involved early on, but I think</v>

283
00:13:00.360 --> 00:13:03.420
the main evaluation might have been done at five years,

284
00:13:03.420 --> 00:13:06.120
but I know he was early on.

285
00:13:06.120 --> 00:13:08.520
What happened was I didn't get any money

286
00:13:08.520 --> 00:13:10.440
for a psychiatrist at first.

287
00:13:10.440 --> 00:13:14.040
<v ->Can I just ask, so if I'm, and I may be off base,</v>

288
00:13:14.040 --> 00:13:18.000
but do you see any evidentiary value

289
00:13:18.000 --> 00:13:22.863
of having Montgomery or the defense counsel?

290
00:13:24.870 --> 00:13:26.853
'Cause they're the people again,

291
00:13:27.750 --> 00:13:31.020
his mental state five years later after he's been convicted

292
00:13:31.020 --> 00:13:34.650
and been in Souza is different

293
00:13:34.650 --> 00:13:38.130
from what it was the day he is convicted, right?

294
00:13:38.130 --> 00:13:41.160
<v ->Sure, under the law, we have to show</v>

295
00:13:41.160 --> 00:13:46.080
that post-conviction could be related back to-

296
00:13:46.080 --> 00:13:47.400
<v J. Kafker>I understand that, but-</v>

297
00:13:47.400 --> 00:13:51.330
<v ->To pretrial, so we would have to take into consider,</v>

298
00:13:51.330 --> 00:13:52.560
the fact finder, the judge

299
00:13:52.560 --> 00:13:54.843
in the motion hearing would have to take

300
00:13:54.843 --> 00:13:58.200
into consideration facts and circumstances.

301
00:13:58.200 --> 00:14:01.890
The Commonwealth in its brief points out that the mother

302
00:14:01.890 --> 00:14:04.770
and the girlfriend, the mother of the child, were not-

303
00:14:04.770 --> 00:14:05.820
<v ->I'm trying to be helpful to you,</v>

304
00:14:05.820 --> 00:14:08.400
but I'm maybe not getting it across.

305
00:14:08.400 --> 00:14:11.160
To me, you seem to have an uphill battle when you're dealing

306
00:14:11.160 --> 00:14:15.030
with dueling experts who interview the defendant

307
00:14:15.030 --> 00:14:16.890
five, seven, and nine years later.

308
00:14:16.890 --> 00:14:17.723
<v Atty. Krowski>Right.</v>

309
00:14:17.723 --> 00:14:21.810
<v ->But you do have two people, the defense counsel</v>

310
00:14:21.810 --> 00:14:26.810
and at least one mental health professional,

311
00:14:26.880 --> 00:14:31.770
Dr. Montgomery, who actually are sort of conversant

312
00:14:31.770 --> 00:14:33.780
with the defendant's mental state at the time.

313
00:14:33.780 --> 00:14:37.230
Now, the defense counsel says, "Nothing doing,

314
00:14:37.230 --> 00:14:39.810
I'm going forward with the trial," so I'm not sure

315
00:14:39.810 --> 00:14:42.120
that's gonna be helpful for you with the evidentiary,

316
00:14:42.120 --> 00:14:45.690
and Montgomery is opining that he is competent,

317
00:14:45.690 --> 00:14:47.940
but those are the only two people who know anything.

318
00:14:47.940 --> 00:14:50.160
<v ->I'm not sure where Dr. Montgomery comes in pretrial.</v>

319
00:14:50.160 --> 00:14:53.250
There was never any kind of psychiatric evaluation.

320
00:14:53.250 --> 00:14:57.780
<v ->Montgomery was able to do a mental health evaluation</v>

321
00:14:57.780 --> 00:15:02.780
of your client the day of or the day after the verdict,

322
00:15:02.790 --> 00:15:05.250
very contemporaneous with the trial,

323
00:15:05.250 --> 00:15:07.803
and she opines competent.

324
00:15:09.768 --> 00:15:14.005
<v ->I'm not aware of, I know that there was an evaluation done</v>

325
00:15:14.005 --> 00:15:16.650
at Souza Baranowski.

326
00:15:16.650 --> 00:15:19.740
<v ->Assuming that I'm correct on the statement of the facts,</v>

327
00:15:19.740 --> 00:15:24.246
what is it that an evidentiary hearing would help you prove?

328
00:15:24.246 --> 00:15:29.246
<v ->It would enable a fact finder to make a discreet finding</v>

329
00:15:29.250 --> 00:15:32.790
of fact that at the time of trial, Mr. Robinson,

330
00:15:32.790 --> 00:15:35.790
and I think, I know that this would be the outcome,

331
00:15:35.790 --> 00:15:39.690
that Mr. Robinson was not competent to participate

332
00:15:39.690 --> 00:15:43.350
in the trial of his case in the Commonwealth versus-

333
00:15:43.350 --> 00:15:46.770
<v ->You want to be able to drill down into the Kelly opinion?</v>

334
00:15:46.770 --> 00:15:47.603
<v Atty. Krowski>Absolutely.</v>

335
00:15:47.603 --> 00:15:48.696
<v ->In a factual.</v>

336
00:15:48.696 --> 00:15:50.040
<v Atty. Krowski>It has to be done, Your Honor.</v>

337
00:15:50.040 --> 00:15:51.300
<v ->In an evidentiary hearing,</v>

338
00:15:51.300 --> 00:15:53.460
you wanna cross examine Kelly.

339
00:15:53.460 --> 00:15:55.260
<v ->I am unequivocal on my belief</v>

340
00:15:55.260 --> 00:15:58.313
that to flesh this thing out,

341
00:15:58.313 --> 00:16:02.521
Dr. Kelly's testimony has to be defined

342
00:16:02.521 --> 00:16:07.521
and clarified, because it's too ambiguous at this point.

343
00:16:07.710 --> 00:16:11.580
Interpretation, problematic, I suggest a motion.

344
00:16:11.580 --> 00:16:14.730
Judge can't say, "Well, problematic, so what?"

345
00:16:14.730 --> 00:16:17.580
And just discard it as superfluous.

346
00:16:17.580 --> 00:16:20.700
It's not, this is a first degree murder trial,

347
00:16:20.700 --> 00:16:23.550
where under Chapman one and Chapman two,

348
00:16:23.550 --> 00:16:28.550
the defendant was making all kinds of inappropriate remarks,

349
00:16:30.810 --> 00:16:33.610
meaning they weren't relevant, and they weren't germane.

350
00:16:34.680 --> 00:16:37.863
I was with him through six evaluations.

351
00:16:39.270 --> 00:16:43.740
Judge Nickerson had him evaluated by a court clinician,

352
00:16:43.740 --> 00:16:45.780
and had me go in to observe myself,

353
00:16:45.780 --> 00:16:48.150
because there were all kinds of things happening

354
00:16:48.150 --> 00:16:51.810
during the course of the maybe 12 times

355
00:16:51.810 --> 00:16:53.010
we're in court in (indistinct).

356
00:16:53.010 --> 00:16:56.647
Two times I remember distinctly that Bridgewater said,

357
00:16:56.647 --> 00:17:01.647
"We can't send him down because he's not mentally capable."

358
00:17:01.740 --> 00:17:03.960
<v ->But again, this is all after trial, right?</v>

359
00:17:03.960 --> 00:17:04.793
This is after trial.

360
00:17:04.793 --> 00:17:07.708
<v ->But that's all relevant, because that goes to Dr. Kelly's.</v>

361
00:17:07.708 --> 00:17:09.690
He didn't follow through

362
00:17:09.690 --> 00:17:13.890
and give Judge Gilday his interpretation

363
00:17:13.890 --> 00:17:17.520
of what problematic is.

364
00:17:17.520 --> 00:17:18.690
<v ->They didn't feel he needed it,</v>

365
00:17:18.690 --> 00:17:21.780
but I guess we'll address that.

366
00:17:21.780 --> 00:17:24.289
<v ->I disagree, Your Honor.</v>

367
00:17:24.289 --> 00:17:27.150
I just think there's too much up in the air,

368
00:17:27.150 --> 00:17:32.070
given that prior to trial, the mother

369
00:17:32.070 --> 00:17:35.970
and the girlfriend had given all kinds of information

370
00:17:35.970 --> 00:17:40.680
about this really odd behavior, and it was not taken

371
00:17:40.680 --> 00:17:43.118
into consideration by defense counsel.

372
00:17:43.118 --> 00:17:44.040
<v ->But he had that, right?</v>

373
00:17:44.040 --> 00:17:45.247
<v Atty. Krowski>Pardon?</v>

374
00:17:45.247 --> 00:17:46.080
<v ->But didn't-</v>

375
00:17:46.080 --> 00:17:48.300
<v ->That's all part of the package that we sent up here.</v>

376
00:17:48.300 --> 00:17:50.760
<v ->Okay, is there any other, are there any?</v>

377
00:17:50.760 --> 00:17:52.080
Okay, thank you very much.

378
00:17:52.080 --> 00:17:53.213
<v Atty. Krowski>Thank you.</v>

379
00:17:58.620 --> 00:18:00.213
<v ->Okay, Attorney El Khoury.</v>

380
00:18:05.670 --> 00:18:07.080
<v ->Morning, may it please the court,</v>

381
00:18:07.080 --> 00:18:09.300
Rose-Ellen El Khoury for the Commonwealth.

382
00:18:09.300 --> 00:18:11.580
<v ->Can I ask you the first, the standard of review,</v>

383
00:18:11.580 --> 00:18:12.840
so we get our bearings?

384
00:18:12.840 --> 00:18:13.890
<v Atty. El Khoury>Of course.</v>

385
00:18:13.890 --> 00:18:15.150
<v ->So we have two decisions.</v>

386
00:18:15.150 --> 00:18:17.300
I'm gonna start the same way I did with Mr. Krowski.

387
00:18:17.300 --> 00:18:19.020
We have two decisions by a motion judge.

388
00:18:19.020 --> 00:18:19.853
<v Atty. El Khoury>Yes.</v>

389
00:18:19.853 --> 00:18:20.970
<v ->One is to not have a hearing.</v>

390
00:18:20.970 --> 00:18:22.961
The second is a decision on the merits.

391
00:18:22.961 --> 00:18:23.820
<v ->Yes.</v>

392
00:18:23.820 --> 00:18:28.230
<v ->The decision not to have a hearing,</v>

393
00:18:28.230 --> 00:18:30.450
that's an abuse of discretion standard, correct?

394
00:18:30.450 --> 00:18:31.283
<v Atty. El Khoury>Absolutely.</v>

395
00:18:31.283 --> 00:18:34.050
<v ->Okay, the second decision on the merits,</v>

396
00:18:34.050 --> 00:18:35.970
because he didn't have a hearing,

397
00:18:35.970 --> 00:18:40.032
because he wasn't the trial judge, that's de novo, correct?

398
00:18:40.032 --> 00:18:42.150
<v ->Well, the Commonwealth maintains</v>

399
00:18:42.150 --> 00:18:46.800
that motion judge's denial of a motion for new trial is

400
00:18:46.800 --> 00:18:48.600
an abuse of discretion standard, however,

401
00:18:48.600 --> 00:18:50.610
we fully understand that where the motion judge

402
00:18:50.610 --> 00:18:51.960
as here was not the trial judge,

403
00:18:51.960 --> 00:18:54.480
this court is in as good a position to review

404
00:18:54.480 --> 00:18:55.650
as the motion judge was.

405
00:18:55.650 --> 00:18:57.720
<v ->So we have a motion judge who basically has</v>

406
00:18:57.720 --> 00:19:02.340
two conflicting psychiatric reports in front of him.

407
00:19:02.340 --> 00:19:03.173
<v Atty. El Khoury>Yes.</v>

408
00:19:03.173 --> 00:19:04.200
<v ->He picks one.</v>

409
00:19:04.200 --> 00:19:05.580
<v ->He reviews both.</v>

410
00:19:05.580 --> 00:19:07.410
He reviews all the materials in front of him.

411
00:19:07.410 --> 00:19:09.720
<v ->Okay, I'm short circuiting this.</v>

412
00:19:09.720 --> 00:19:11.910
He credits Kelly.

413
00:19:11.910 --> 00:19:13.617
<v Atty. El Khoury>Yes.</v>

414
00:19:13.617 --> 00:19:16.653
<v ->Inference he doesn't credit DiCataldo's report.</v>

415
00:19:18.060 --> 00:19:23.060
The Chapman case says, and I'm not used to the equipoise,

416
00:19:24.483 --> 00:19:27.453
when it's a jump ball, you lose.

417
00:19:28.440 --> 00:19:29.550
<v ->If it was a jump ball,</v>

418
00:19:29.550 --> 00:19:31.020
Your Honor would be absolutely correct.

419
00:19:31.020 --> 00:19:31.950
When all the evidence-

420
00:19:31.950 --> 00:19:33.060
<v ->Why wasn't this a jump ball</v>

421
00:19:33.060 --> 00:19:35.250
when we have two conflicting experts?

422
00:19:35.250 --> 00:19:36.083
<v ->Well, because it was more</v>

423
00:19:36.083 --> 00:19:38.280
than just two conflicting experts.

424
00:19:38.280 --> 00:19:40.530
The motion judge's decision was very thoughtful.

425
00:19:40.530 --> 00:19:42.990
It examined every piece of evidence submitted

426
00:19:42.990 --> 00:19:46.530
by the defendant in support of his competency claim,

427
00:19:46.530 --> 00:19:49.920
so that was the two affidavits from the defendant's mother

428
00:19:49.920 --> 00:19:53.640
and the mother of his children from 2001,

429
00:19:53.640 --> 00:19:57.990
that was the transcript of the conversation

430
00:19:57.990 --> 00:20:00.600
between trial counsel and the defendant

431
00:20:00.600 --> 00:20:02.790
from August 18th of 2000,

432
00:20:02.790 --> 00:20:07.790
and that was the report submitted by Dr. DiCataldo

433
00:20:07.950 --> 00:20:11.613
that was submitted, I believe, in July of 2018.

434
00:20:12.600 --> 00:20:15.000
So the motion judge reviewed those four submissions.

435
00:20:15.000 --> 00:20:16.650
The motion judge also reviewed what was submitted

436
00:20:16.650 --> 00:20:17.820
by the Commonwealth, which,

437
00:20:17.820 --> 00:20:19.860
as this court has already pointed out,

438
00:20:19.860 --> 00:20:24.180
included the evaluation by Dr. Montgomery

439
00:20:24.180 --> 00:20:25.890
from August 22nd of 2000,

440
00:20:25.890 --> 00:20:29.490
the day after the defendant was convicted.

441
00:20:29.490 --> 00:20:32.220
It included the report of Dr. Kelly.

442
00:20:32.220 --> 00:20:36.780
It included the affidavit submitted by Judge O'Neill,

443
00:20:36.780 --> 00:20:38.073
who presided at trial,

444
00:20:40.350 --> 00:20:43.740
stating that there had been no records of any,

445
00:20:43.740 --> 00:20:47.666
he recalled no unusual outbursts or behavior,

446
00:20:47.666 --> 00:20:50.370
which is a factor that this court can consider.

447
00:20:50.370 --> 00:20:51.360
And looking at the transcript,

448
00:20:51.360 --> 00:20:53.940
the transcript supports that recollection

449
00:20:53.940 --> 00:20:56.790
that the defendant did not display

450
00:20:56.790 --> 00:20:59.460
any of the sort of behavior that is typically associated

451
00:20:59.460 --> 00:21:04.320
with the kind of psychosis that the defense expert claims

452
00:21:04.320 --> 00:21:08.883
that the defendant was experiencing at the time of trial.

453
00:21:09.840 --> 00:21:12.300
So the motion judge reviewed all of this,

454
00:21:12.300 --> 00:21:16.470
and he went through and he discounted the affidavits

455
00:21:16.470 --> 00:21:18.690
from the defendant's mother and the mother of his children.

456
00:21:18.690 --> 00:21:21.540
He said not only are these sort of remote in time,

457
00:21:21.540 --> 00:21:24.750
but these are also submitted by individuals who have

458
00:21:24.750 --> 00:21:29.250
no experience evaluating a person's competency.

459
00:21:29.250 --> 00:21:32.050
And under, I believe it's Goodrow

460
00:21:33.360 --> 00:21:37.380
that this court has held and supported

461
00:21:37.380 --> 00:21:41.040
a motion judge's decision to sort of set those aside,

462
00:21:41.040 --> 00:21:41.873
because those are-

463
00:21:41.873 --> 00:21:46.873
<v ->Using the de novo standard and the Chapman language,</v>

464
00:21:47.160 --> 00:21:50.250
what do we do with Kelly's report that says

465
00:21:50.250 --> 00:21:54.267
that the colloquy between defendant

466
00:21:54.267 --> 00:21:56.463
and defense counsel is problematic,

467
00:21:58.380 --> 00:22:00.000
is open to interpretation,

468
00:22:00.000 --> 00:22:03.870
and his Bridgewater State stays are problematic?

469
00:22:03.870 --> 00:22:06.480
<v ->Well, I think I would respectfully submit</v>

470
00:22:06.480 --> 00:22:09.510
that what Judge Gilday did in the situation was correct.

471
00:22:09.510 --> 00:22:11.850
He looked at that and said, "Well, this is, you know,

472
00:22:11.850 --> 00:22:14.570
none of this even starts until the defendant has served

473
00:22:14.570 --> 00:22:18.240
the first nine months of a life sentence."

474
00:22:18.240 --> 00:22:20.120
So how relevant-

475
00:22:20.120 --> 00:22:22.170
<v ->That's not true for the jail discussion</v>

476
00:22:22.170 --> 00:22:24.513
between counsel and the defendant, right?

477
00:22:24.513 --> 00:22:25.770
<v Atty. El Khoury>Yes, but-</v>

478
00:22:25.770 --> 00:22:27.390
<v ->That's the big.</v>

479
00:22:27.390 --> 00:22:31.650
<v ->Well, the Commonwealth would, to its own sort</v>

480
00:22:31.650 --> 00:22:33.630
of embarrassment, remind this court that

481
00:22:33.630 --> 00:22:35.430
before right now is a very good example

482
00:22:35.430 --> 00:22:37.710
of two differing interpretations of the transcript.

483
00:22:37.710 --> 00:22:40.290
As the defendant pointed out in his reply brief,

484
00:22:40.290 --> 00:22:42.360
something that the Commonwealth read going

485
00:22:42.360 --> 00:22:44.460
through the transcript for the first time

486
00:22:44.460 --> 00:22:45.801
in February of this year,

487
00:22:45.801 --> 00:22:48.360
there's a reference made by trial counsel

488
00:22:48.360 --> 00:22:51.420
to documents that were sent to Mr. Robinson,

489
00:22:51.420 --> 00:22:53.700
and having no context for any other Mr. Robinson

490
00:22:53.700 --> 00:22:56.040
in this case, it was the Commonwealth's assumption

491
00:22:56.040 --> 00:22:58.080
that he was referring to the defendant,

492
00:22:58.080 --> 00:22:59.093
and in the reply brief,

493
00:22:59.093 --> 00:23:01.029
the defendant is arguing that that was actually

494
00:23:01.029 --> 00:23:04.560
the same last name as the head of probation at this time.

495
00:23:04.560 --> 00:23:07.740
So when you take a conversation and you reduce it

496
00:23:07.740 --> 00:23:09.014
to a transcript and you're examining it

497
00:23:09.014 --> 00:23:11.430
more than 20 years on, I would say

498
00:23:11.430 --> 00:23:14.370
it's very easy to subject it to differing interpretations.

499
00:23:14.370 --> 00:23:16.050
<v ->But does that mean you should have had</v>

500
00:23:16.050 --> 00:23:19.047
an evidentiary hearing where that lawyer is brought in

501
00:23:19.047 --> 00:23:24.047
to say, "Okay, he's babbling incoherently,

502
00:23:24.810 --> 00:23:29.810
but I concluded he was," I concluded what, you know?

503
00:23:30.650 --> 00:23:32.430
<v ->In Dr. DiCataldo's report,</v>

504
00:23:32.430 --> 00:23:36.300
he does base some of his determinations

505
00:23:36.300 --> 00:23:39.180
on conversations that he had with trial counsel.

506
00:23:39.180 --> 00:23:41.730
I believe the last, he spoke with trial counsel,

507
00:23:41.730 --> 00:23:45.423
I wanna say two days before he drafted his report.

508
00:23:46.380 --> 00:23:47.790
And the Commonwealth would also point out

509
00:23:47.790 --> 00:23:49.950
as the motion judge took note of,

510
00:23:49.950 --> 00:23:52.230
as this court has already noted,

511
00:23:52.230 --> 00:23:55.290
there was no affidavit submitted by trial counsel

512
00:23:55.290 --> 00:23:58.920
in this case, and the record indicates that as late as 2018,

513
00:23:58.920 --> 00:24:01.350
he was still engaging with this case

514
00:24:01.350 --> 00:24:02.730
and responsive to questions.

515
00:24:02.730 --> 00:24:03.840
The Commonwealth would further point out

516
00:24:03.840 --> 00:24:05.220
that there was no affidavit submitted

517
00:24:05.220 --> 00:24:08.370
by post-conviction counsel detailing the efforts

518
00:24:08.370 --> 00:24:13.170
to secure any kind of affidavit from trial counsel

519
00:24:13.170 --> 00:24:15.480
and trial counsel's refusal to cooperate.

520
00:24:15.480 --> 00:24:20.480
So as everyone is aware, silence and a lack of evidence

521
00:24:20.910 --> 00:24:23.970
from an available and expected source of information does,

522
00:24:23.970 --> 00:24:24.900
you know, can be considered,

523
00:24:24.900 --> 00:24:27.450
and does cut against the defendant's argument here.

524
00:24:29.610 --> 00:24:32.040
<v ->In Chapman, was it a battle of the experts,</v>

525
00:24:32.040 --> 00:24:37.040
or was it differently, had a different status?

526
00:24:38.700 --> 00:24:43.700
<v ->I would not categorize Chapman as a battle of the experts.</v>

527
00:24:43.890 --> 00:24:45.780
<v ->Yeah, well, didn't it, the defendant came forward</v>

528
00:24:45.780 --> 00:24:48.240
with some experts, and then the Commonwealth stood

529
00:24:48.240 --> 00:24:50.790
on the trial counsel's affidavit?

530
00:24:50.790 --> 00:24:53.343
<v ->Yes, I believe that was the case in,</v>

531
00:24:54.300 --> 00:24:56.910
I believe it was Chapman,

532
00:24:56.910 --> 00:24:58.140
I'm confusing Chapman one and two,

533
00:24:58.140 --> 00:25:02.343
but one of the Chapmans, I believe that was the posture.

534
00:25:03.750 --> 00:25:04.977
<v ->Can I ask one follow up,</v>

535
00:25:04.977 --> 00:25:06.750
and I should know this, but I don't.

536
00:25:06.750 --> 00:25:09.780
So was the defense counsel one of,

537
00:25:09.780 --> 00:25:12.533
was the defendant planning on calling the defense counsel

538
00:25:12.533 --> 00:25:15.180
at this evidentiary hearing?

539
00:25:15.180 --> 00:25:17.613
Is that in his submission or her submission?

540
00:25:18.600 --> 00:25:20.220
<v ->In Chapman or?</v>

541
00:25:20.220 --> 00:25:21.870
<v J. Kafker>No, this case.</v>
<v ->In this case.</v>

542
00:25:21.870 --> 00:25:24.810
In this case, there had been the beginnings

543
00:25:24.810 --> 00:25:29.640
of evidentiary hearings prior to the 2011 order

544
00:25:29.640 --> 00:25:34.640
in which the judge basically stated four things,

545
00:25:34.710 --> 00:25:38.490
and among them it was that we're not taking any action

546
00:25:38.490 --> 00:25:39.840
on these prior motions.

547
00:25:39.840 --> 00:25:42.240
The defendant may file an amended motion for new trial,

548
00:25:42.240 --> 00:25:44.670
which clearly sets forth the factual

549
00:25:44.670 --> 00:25:46.323
and legal basis for relief.

550
00:25:47.490 --> 00:25:49.140
The amended motion should be accompanied

551
00:25:49.140 --> 00:25:51.990
by either a detailed supporting affidavit

552
00:25:51.990 --> 00:25:54.420
from an appropriate mental health professional

553
00:25:54.420 --> 00:25:57.540
or an affidavit of counsel with a clinical report,

554
00:25:57.540 --> 00:26:02.460
sort of outlining the mental health posture at this time,

555
00:26:02.460 --> 00:26:05.459
and this is the one that the Commonwealth discusses,

556
00:26:05.459 --> 00:26:07.770
you know, at length in our brief,

557
00:26:07.770 --> 00:26:11.850
and it's on page 103 of volume two of the record appendix,

558
00:26:11.850 --> 00:26:14.040
that in the event that court conducts a hearing

559
00:26:14.040 --> 00:26:16.469
on the amended motion, said hearing will commence anew

560
00:26:16.469 --> 00:26:19.410
with reliance upon the testimony and arguments presented

561
00:26:19.410 --> 00:26:22.740
on past occasions, oh sorry, without reliance.

562
00:26:22.740 --> 00:26:25.470
That's a big difference, and it really matters.

563
00:26:25.470 --> 00:26:27.720
Basically, this defendant was offered the opportunity

564
00:26:27.720 --> 00:26:31.530
to begin anew, and he took his time in considering

565
00:26:31.530 --> 00:26:32.880
what arguments he wanted to raise.

566
00:26:32.880 --> 00:26:35.250
And in 2014, he filed his first amended motion

567
00:26:35.250 --> 00:26:39.360
for a new trial that dealt only with the competency issue.

568
00:26:39.360 --> 00:26:40.560
<v ->Yeah, mine's a narrow question,</v>

569
00:26:40.560 --> 00:26:41.400
and you may have answered it,

570
00:26:41.400 --> 00:26:46.400
but when the defendant's arguing for an evidentiary hearing,

571
00:26:46.530 --> 00:26:49.290
is one of the basis for it that he needs

572
00:26:49.290 --> 00:26:53.550
to call the defense counsel, or is that not part

573
00:26:53.550 --> 00:26:56.760
of the request for the evidentiary hearing?

574
00:26:56.760 --> 00:26:59.610
<v ->Where the record stands as it is at this time</v>

575
00:26:59.610 --> 00:27:02.085
with no affidavit from counsel and no affidavit

576
00:27:02.085 --> 00:27:03.900
from trial counsel, and no affidavit

577
00:27:03.900 --> 00:27:05.820
from post-conviction counsel detailing the efforts

578
00:27:05.820 --> 00:27:08.520
to get in touch with trial counsel,

579
00:27:08.520 --> 00:27:12.090
the Commonwealth would argue that that is not relevant.

580
00:27:12.090 --> 00:27:17.070
You know, the defendant on his filings offered a number

581
00:27:17.070 --> 00:27:20.340
of supplemental reports for this court's consideration

582
00:27:20.340 --> 00:27:22.260
that were not before the motion judge,

583
00:27:22.260 --> 00:27:25.110
and even at that point, did not submit an affidavit

584
00:27:25.110 --> 00:27:29.700
from trial counsel or post-conviction counsel discussing

585
00:27:29.700 --> 00:27:31.626
whether or not trial counsel would be

586
00:27:31.626 --> 00:27:34.353
an available participant in an evidentiary hearing.

587
00:27:39.480 --> 00:27:41.160
If there are no further questions,

588
00:27:41.160 --> 00:27:43.770
the Commonwealth would request that this court deny

589
00:27:43.770 --> 00:27:46.380
the defendant the relief requested,

590
00:27:46.380 --> 00:27:50.100
and deny him a second round of review under 33E,

591
00:27:50.100 --> 00:27:51.483
and rest on its brief.