-: SJC-08464, Commonwealth v. Charles E. Robinson.
-: Okay, Attorney Krowski.
-: Good morning, Your Honors.
I bring to the court no thorny legal issues this morning.
Simply put, I just want to finish the mission
that I was assigned back in 2001.
As this court knows, I've already filed
and argued a direct appeal after a hearing
in front of Judge Watford in the masters hearing.
I fully expected when we had the direct appeal,
that we would be remanded back
to complete the competency hearing
that we had a number of false starts with
in front of Judge Nickerson.
Basically what had happened,
and I think the court is pretty well aware of the facts
of this case, it is pretty much fact-driven.
-: Mr. Krowski, can I get to the standard of review?
'Cause we had two decisions by the motion judge, right?
So I know you tried to get the hearing
in front of Judge Nickerson and that didn't happen
'cause of competency issues.
So now we have the second time go around
in front of a different motion judge.
The motion judge makes two decisions,
one is not to have a hearing,
and then the second is to deny the motion.
Atty. Krowski: Right.
-: The first decision the judge makes not to have a hearing,
is that an abuse of discretion?
-: No, yes, I think it is at this point.
-: No, no, is that under an abuse of discretion standard?
I'm sorry. -: Oh, I think
the way we're here now is under a plenary review under 233,
so I think we should be here in any event.
But basically, what had happened
with the second judge- -: Can you explain?
I don't understand what you're saying.
Plenary review, not abuse of discretion?
I thought the decision whether to hold
an evidentiary hearing was subject
to an abuse of discretion standard.
-: On the abuse of discretion,
I think it's a ineffective assistance, strike that.
The competency hearing,
the standard is if there are no other alternatives,
and no other alternatives to review,
and I think in this case,
given the Commonwealth's position
with their own psychiatrist, Dr. Kelly,
that it is an abuse of discretion not to allow us
to continue the hearing that we commenced
under pretty tough circumstances.
We had, I think, three false starts.
We actually had two days of hearing,
and the defendant, Mr. Robinson, was not capable
of completing the hearing after a evaluation
by a court psychologist.
J. Budd: Can I ask, oh, I'm sorry.
-: I'm sorry, please go ahead.
-: I was just gonna ask what would've been gained
from a hearing if you've got the affidavits
from the experts, and so if the trial judge, I mean,
the motion judge took a look at everything and said,
"I've got everything I need."
-: Well, I think we have to go back
to Judge Nickerson's last ruling.
I think it was kind of an ambiguous use of language.
I understood what he meant because we had a sidebar hearing.
Unfortunately, it was not recorded by the stenographer
because it was off the record.
-: But Judge Gilday wouldn't have been bound
by anything that Judge Nickerson would've said.
Atty. Krowski: What was that, Your Honor?
-: Judge Gilday, who decided not to have
the evidentiary hearing, would not have been bound
by anything that Judge Nickerson said.
-: I understand that, but I think the equity
in this situation goes back to the history of this case.
It's a fact-driven case at this point.
There were three hearings.
-: I understand, I think, your argument on the equities
and why you would like to have had an evidentiary hearing.
I guess I'm wondering, you know,
back to the Chief's question,
what would the evidentiary hearing have gotten
to Judge Gilday that he didn't already have
from the affidavits?
-: Exactly, there are two hypotheses that are in equipoise.
One is the fact that we had three psychologists evaluate,
or psychiatrists, actually, evaluate Mr. Robinson.
Then the Commonwealth hired Dr. Kelly,
and Dr. Kelly's evaluation was ambiguous.
In fact, the equipoise is that there was some doubt
in his mind as to-
-: You might be overstating that.
He basically says you could,
he says you could look at it both ways,
but he's definitive that he's competent.
I don't know if that's a little overstated, Mr. Krowski
-: I don't, in fact, he reviewed everything.
He had the Bridgewater State Hospital records.
He had three evaluations from three of my psychiatrists.
In the end, what he said the Bridgewater State Hospitals,
and they were records were voluminous,
because he had spent half the time since I came on the case
till today in Bridgewater State Hospital,
so it was six inches of records,
and he said they are problematic.
That should have been fleshed out,
or fleshed out in a hearing.
Also, he said the colloquy in the lockup
in the fifth day of trial was problematic as well,
and it could be subject to interpretation.
-: So let me ask you the second standard review question.
So we have the two decisions, right?
One is to not have a hearing, and the second is
the decision on the merits by Judge Gilday.
So assuming for the sake of argument,
the standard of review for the decision
to have a hearing is abuse of discretion,
the second decision is de novo,
that's your argument, basically?
-: Yes.
-: Because he did not have a hearing,
so now we do the same thing he could have done.
We have the records in front of-
-: But I fully expected we would've had the hearing,
given Judge Nickerson's,
if Judge Nickerson was in the case.
-: Let's back up.
Do you argue the standard review was de novo
for the decision on the merits?
-: Oh, yes, that was Judge Nickerson's decision,
because Judge Nickerson was concerned with the competency
of Mr. Robinson to participate in the hearing
or the competency during trial,
so he wanted another evaluation.
-: It's just because you know how fluid this is,
obviously, and I think as Justice Wendlandt has stated,
the Nickerson decision, that ship has sailed.
We're focused on what Gilday did, correct?
-: I understand that.
I suggest that he was in error when he said
that there was no controversy arising from the evaluations
of Dr. Kelly and Dr. DiCataldo.
I suggest that when you look at the record in equipoise,
it should have been fleshed out.
There's no ifs, ands, or buts about it, Your Honor.
There was a competency hearing right after trial,
as you remember from the direct appeal,
and when we argued this case, and that there was always
a question of competency after the case,
but that's not the guidance.
The guidance is what happens during the trial,
and we have, as Dr. DiCataldo pointed out,
something that you never get,
a colloquy where under Chapman,
the attorney should have brought that
to the attention of the judge.
-: And that's why you keep on saying equipoise,
'cause I know the equipoise,
you don't use that in normal conversation, nor do I,
but you're quoting the Chapman standard, right?
-: And I think that Judge Gilday, in reviewing that,
should have taken that into consideration,
and as a matter of life, he didn't,
and we should be allowed to go back and flesh.
-: Because we have two qualified experts.
You may disagree with what Kelly came up with,
but we have two qualified experts.
He says Kelly versus DiCataldo.
That's a a decision trial judges make all the time, correct?
-: Well, he had an affidavit.
-: So under abuse of discretion, that'd be difficult
to say it's an abuse of discretion.
-: Under abuse of discretion,
I suggest that when the Commonwealth's expert says
the hospital records are problematic,
the colloquy is subject to interpretation,
I think it's, I suggest
it's an abuse of discretion not to find out
what that interpretation is from Judge Kelly,
from Dr. Kelly, rather.
Dr. Kelly just says, it's subject to interpretation.
What is that interpretation?
Can I, if after the cross-examination as a psychiatrist say
that interpretation favors a defendant?
We don't know that, so I think that I suggest,
and I know in my own experience that that was so ambiguous
that this is an abuse of discretion
for the judge not to follow through.
-: If we find abuse of discretion not to have a hearing,
we remand it, what's this hearing gonna look
like 25 years from the date of the event?
-: The record's pretty clear.
I don't think there's a problem there.
And I thought that myself,
this is 23 years removed from that colloquy,
but the record is clear, the record doesn't change,
the record is not abstract, the record is discreet.
-: But does that suggest there should be
no evidentiary hearing then?
Atty. Krowski: Pardon?
-: Does that suggest there shouldn't be
an evidentiary hearing?
-: There should be.
-: But if the record's clear, see, I'm still troubled.
-: When I say clear, if Dr. Kelly looks at the record,
and I cross-examine him and what he's seen on the record,
then we can find out what that subject
to interpretation means,
so I don't think we're prejudiced by the time in this case,
because they'll have progress notes
on Mr. Robinson over the years, so we know discreetly
and in real time what he was going through.
-: It's a snapshot though, right?
We're really looking at a snapshot
of his mental state at that time.
-: But the evaluations, we've had evaluations,
since day one there was, and they've all been used
by the subsequent and follow up experts.
Dr. Rosemarin filed a lengthy report.
That was followed up by Dr. Ebert and Dr. DiCataldo.
Dr. DiCataldo has spoken to witnesses,
he's spoken to prior counsel.
-: What do we do with the fact
that prior counsel did not submit an affidavit?
-: Well, he was summonsed at the time by the Commonwealth,
so I think he was about to take the stand
when we found we couldn't go through with the hearing,
and not only that, we had for the first time,
in my experience, and I've done a few of these,
the first time in my experience, we had mid-trial
in real time contemporaneous what was going on,
a colloquy between defense counsel and the defendant.
And it's clear that Chapman,
which came down in Chapman one and Chapman two,
that at that point,
that the defense counsel should have notified the judge.
In fact-
-: But before you leave that, so is the failure to have
an evidentiary hearing where you call the defense counsel?
I mean, the two most, the two people who knew
the mental state of the defendant best at the time of trial,
which is the relevant time period, correct?
Atty. Krowski: Correct.
-: Are Dr. Montgomery and the defense counsel, right?
They're the only people who can,
was there a Commonwealth expert in August of 2002?
This is an August 2000 trial, right?
-: No, the defense counsel at the time had taken
a first degree murderer to trial from February to August.
Within six months he had a trial,
and at no time was there ever any question
in defense counsel's mind that he should have had
a psychiatrist on board,
and one of the reasons is, and the record is clear that-
J. Kafker: But you're confusing me.
-: That he never spoke with the defendant between the time
of his assignment and the time of trial,
and that's clear on the record.
-: No, I understand that, but I'm trying to understand.
It really goes back to the Chief's original question,
which is what more would we learn in an evidentiary hearing?
And the two people who are most knowledgeable
about his mental state are defense counsel
and Dr. Montgomery, right?
-: I'm not sure who Dr.-
-: She did the evaluation when he was sentenced.
-: Oh, that was, there've been so many doctors.
Dr. Montgomery was at Bridgewater State.
J. Kafker: But they're the ones who were-
-: That was afterwards.
-: I know, but they're the ones who actually are interviewed.
I mean, these other doctors are six,
seven years later, and they disagree with each other.
-: I think Dr. Rosemarin was on less than that,
maybe three years.
-: I don't know, I thought it was like, five years,
but I could be wrong.
-: Well, he was involved early on, but I think
the main evaluation might have been done at five years,
but I know he was early on.
What happened was I didn't get any money
for a psychiatrist at first.
-: Can I just ask, so if I'm, and I may be off base,
but do you see any evidentiary value
of having Montgomery or the defense counsel?
'Cause they're the people again,
his mental state five years later after he's been convicted
and been in Souza is different
from what it was the day he is convicted, right?
-: Sure, under the law, we have to show
that post-conviction could be related back to-
J. Kafker: I understand that, but-
-: To pretrial, so we would have to take into consider,
the fact finder, the judge
in the motion hearing would have to take
into consideration facts and circumstances.
The Commonwealth in its brief points out that the mother
and the girlfriend, the mother of the child, were not-
-: I'm trying to be helpful to you,
but I'm maybe not getting it across.
To me, you seem to have an uphill battle when you're dealing
with dueling experts who interview the defendant
five, seven, and nine years later.
Atty. Krowski: Right.
-: But you do have two people, the defense counsel
and at least one mental health professional,
Dr. Montgomery, who actually are sort of conversant
with the defendant's mental state at the time.
Now, the defense counsel says, "Nothing doing,
I'm going forward with the trial," so I'm not sure
that's gonna be helpful for you with the evidentiary,
and Montgomery is opining that he is competent,
but those are the only two people who know anything.
-: I'm not sure where Dr. Montgomery comes in pretrial.
There was never any kind of psychiatric evaluation.
-: Montgomery was able to do a mental health evaluation
of your client the day of or the day after the verdict,
very contemporaneous with the trial,
and she opines competent.
-: I'm not aware of, I know that there was an evaluation done
at Souza Baranowski.
-: Assuming that I'm correct on the statement of the facts,
what is it that an evidentiary hearing would help you prove?
-: It would enable a fact finder to make a discreet finding
of fact that at the time of trial, Mr. Robinson,
and I think, I know that this would be the outcome,
that Mr. Robinson was not competent to participate
in the trial of his case in the Commonwealth versus-
-: You want to be able to drill down into the Kelly opinion?
Atty. Krowski: Absolutely.
-: In a factual.
Atty. Krowski: It has to be done, Your Honor.
-: In an evidentiary hearing,
you wanna cross examine Kelly.
-: I am unequivocal on my belief
that to flesh this thing out,
Dr. Kelly's testimony has to be defined
and clarified, because it's too ambiguous at this point.
Interpretation, problematic, I suggest a motion.
Judge can't say, "Well, problematic, so what?"
And just discard it as superfluous.
It's not, this is a first degree murder trial,
where under Chapman one and Chapman two,
the defendant was making all kinds of inappropriate remarks,
meaning they weren't relevant, and they weren't germane.
I was with him through six evaluations.
Judge Nickerson had him evaluated by a court clinician,
and had me go in to observe myself,
because there were all kinds of things happening
during the course of the maybe 12 times
we're in court in (indistinct).
Two times I remember distinctly that Bridgewater said,
"We can't send him down because he's not mentally capable."
-: But again, this is all after trial, right?
This is after trial.
-: But that's all relevant, because that goes to Dr. Kelly's.
He didn't follow through
and give Judge Gilday his interpretation
of what problematic is.
-: They didn't feel he needed it,
but I guess we'll address that.
-: I disagree, Your Honor.
I just think there's too much up in the air,
given that prior to trial, the mother
and the girlfriend had given all kinds of information
about this really odd behavior, and it was not taken
into consideration by defense counsel.
-: But he had that, right?
Atty. Krowski: Pardon?
-: But didn't-
-: That's all part of the package that we sent up here.
-: Okay, is there any other, are there any?
Okay, thank you very much.
Atty. Krowski: Thank you.
-: Okay, Attorney El Khoury.
-: Morning, may it please the court,
Rose-Ellen El Khoury for the Commonwealth.
-: Can I ask you the first, the standard of review,
so we get our bearings?
Atty. El Khoury: Of course.
-: So we have two decisions.
I'm gonna start the same way I did with Mr. Krowski.
We have two decisions by a motion judge.
Atty. El Khoury: Yes.
-: One is to not have a hearing.
The second is a decision on the merits.
-: Yes.
-: The decision not to have a hearing,
that's an abuse of discretion standard, correct?
Atty. El Khoury: Absolutely.
-: Okay, the second decision on the merits,
because he didn't have a hearing,
because he wasn't the trial judge, that's de novo, correct?
-: Well, the Commonwealth maintains
that motion judge's denial of a motion for new trial is
an abuse of discretion standard, however,
we fully understand that where the motion judge
as here was not the trial judge,
this court is in as good a position to review
as the motion judge was.
-: So we have a motion judge who basically has
two conflicting psychiatric reports in front of him.
Atty. El Khoury: Yes.
-: He picks one.
-: He reviews both.
He reviews all the materials in front of him.
-: Okay, I'm short circuiting this.
He credits Kelly.
Atty. El Khoury: Yes.
-: Inference he doesn't credit DiCataldo's report.
The Chapman case says, and I'm not used to the equipoise,
when it's a jump ball, you lose.
-: If it was a jump ball,
Your Honor would be absolutely correct.
When all the evidence-
-: Why wasn't this a jump ball
when we have two conflicting experts?
-: Well, because it was more
than just two conflicting experts.
The motion judge's decision was very thoughtful.
It examined every piece of evidence submitted
by the defendant in support of his competency claim,
so that was the two affidavits from the defendant's mother
and the mother of his children from 2001,
that was the transcript of the conversation
between trial counsel and the defendant
from August 18th of 2000,
and that was the report submitted by Dr. DiCataldo
that was submitted, I believe, in July of 2018.
So the motion judge reviewed those four submissions.
The motion judge also reviewed what was submitted
by the Commonwealth, which,
as this court has already pointed out,
included the evaluation by Dr. Montgomery
from August 22nd of 2000,
the day after the defendant was convicted.
It included the report of Dr. Kelly.
It included the affidavit submitted by Judge O'Neill,
who presided at trial,
stating that there had been no records of any,
he recalled no unusual outbursts or behavior,
which is a factor that this court can consider.
And looking at the transcript,
the transcript supports that recollection
that the defendant did not display
any of the sort of behavior that is typically associated
with the kind of psychosis that the defense expert claims
that the defendant was experiencing at the time of trial.
So the motion judge reviewed all of this,
and he went through and he discounted the affidavits
from the defendant's mother and the mother of his children.
He said not only are these sort of remote in time,
but these are also submitted by individuals who have
no experience evaluating a person's competency.
And under, I believe it's Goodrow
that this court has held and supported
a motion judge's decision to sort of set those aside,
because those are-
-: Using the de novo standard and the Chapman language,
what do we do with Kelly's report that says
that the colloquy between defendant
and defense counsel is problematic,
is open to interpretation,
and his Bridgewater State stays are problematic?
-: Well, I think I would respectfully submit
that what Judge Gilday did in the situation was correct.
He looked at that and said, "Well, this is, you know,
none of this even starts until the defendant has served
the first nine months of a life sentence."
So how relevant-
-: That's not true for the jail discussion
between counsel and the defendant, right?
Atty. El Khoury: Yes, but-
-: That's the big.
-: Well, the Commonwealth would, to its own sort
of embarrassment, remind this court that
before right now is a very good example
of two differing interpretations of the transcript.
As the defendant pointed out in his reply brief,
something that the Commonwealth read going
through the transcript for the first time
in February of this year,
there's a reference made by trial counsel
to documents that were sent to Mr. Robinson,
and having no context for any other Mr. Robinson
in this case, it was the Commonwealth's assumption
that he was referring to the defendant,
and in the reply brief,
the defendant is arguing that that was actually
the same last name as the head of probation at this time.
So when you take a conversation and you reduce it
to a transcript and you're examining it
more than 20 years on, I would say
it's very easy to subject it to differing interpretations.
-: But does that mean you should have had
an evidentiary hearing where that lawyer is brought in
to say, "Okay, he's babbling incoherently,
but I concluded he was," I concluded what, you know?
-: In Dr. DiCataldo's report,
he does base some of his determinations
on conversations that he had with trial counsel.
I believe the last, he spoke with trial counsel,
I wanna say two days before he drafted his report.
And the Commonwealth would also point out
as the motion judge took note of,
as this court has already noted,
there was no affidavit submitted by trial counsel
in this case, and the record indicates that as late as 2018,
he was still engaging with this case
and responsive to questions.
The Commonwealth would further point out
that there was no affidavit submitted
by post-conviction counsel detailing the efforts
to secure any kind of affidavit from trial counsel
and trial counsel's refusal to cooperate.
So as everyone is aware, silence and a lack of evidence
from an available and expected source of information does,
you know, can be considered,
and does cut against the defendant's argument here.
-: In Chapman, was it a battle of the experts,
or was it differently, had a different status?
-: I would not categorize Chapman as a battle of the experts.
-: Yeah, well, didn't it, the defendant came forward
with some experts, and then the Commonwealth stood
on the trial counsel's affidavit?
-: Yes, I believe that was the case in,
I believe it was Chapman,
I'm confusing Chapman one and two,
but one of the Chapmans, I believe that was the posture.
-: Can I ask one follow up,
and I should know this, but I don't.
So was the defense counsel one of,
was the defendant planning on calling the defense counsel
at this evidentiary hearing?
Is that in his submission or her submission?
-: In Chapman or?
J. Kafker: No, this case. -: In this case.
In this case, there had been the beginnings
of evidentiary hearings prior to the 2011 order
in which the judge basically stated four things,
and among them it was that we're not taking any action
on these prior motions.
The defendant may file an amended motion for new trial,
which clearly sets forth the factual
and legal basis for relief.
The amended motion should be accompanied
by either a detailed supporting affidavit
from an appropriate mental health professional
or an affidavit of counsel with a clinical report,
sort of outlining the mental health posture at this time,
and this is the one that the Commonwealth discusses,
you know, at length in our brief,
and it's on page 103 of volume two of the record appendix,
that in the event that court conducts a hearing
on the amended motion, said hearing will commence anew
with reliance upon the testimony and arguments presented
on past occasions, oh sorry, without reliance.
That's a big difference, and it really matters.
Basically, this defendant was offered the opportunity
to begin anew, and he took his time in considering
what arguments he wanted to raise.
And in 2014, he filed his first amended motion
for a new trial that dealt only with the competency issue.
-: Yeah, mine's a narrow question,
and you may have answered it,
but when the defendant's arguing for an evidentiary hearing,
is one of the basis for it that he needs
to call the defense counsel, or is that not part
of the request for the evidentiary hearing?
-: Where the record stands as it is at this time
with no affidavit from counsel and no affidavit
from trial counsel, and no affidavit
from post-conviction counsel detailing the efforts
to get in touch with trial counsel,
the Commonwealth would argue that that is not relevant.
You know, the defendant on his filings offered a number
of supplemental reports for this court's consideration
that were not before the motion judge,
and even at that point, did not submit an affidavit
from trial counsel or post-conviction counsel discussing
whether or not trial counsel would be
an available participant in an evidentiary hearing.
If there are no further questions,
the Commonwealth would request that this court deny
the defendant the relief requested,
and deny him a second round of review under 33E,
and rest on its brief.