-: SJC-09265, Commonwealth v. Jason Robinson.
-: Okay, Attorney Scapicchio.
-: Good morning, Your Honors, may it please the court,
my name is Rosemary Scapicchio,
and I represent Jason Robinson.
I'd like to divide my time today,
if it's agreeable to the court.
I'd like to spend 10 minutes on the direct appeal
and 10 minutes on the sentencing issue if I could.
So I'm gonna try to keep track of the time
and ask for permission to switch over after 10 minutes.
So the first issue I'd like to bring up
on the direct appeal is that the evidence here was
constitutionally insufficient
to establish Robinson was guilty of felony murder,
where there was no evidence that Robinson knew
the shooter was armed.
In this case, the evidence suggests that
this particular victim was picked because he was passive,
that he wouldn't put up a fight.
The evidence is that Mr. Robinson
with his co-defendant arrived at 89 Faneuil Street.
They then, each one of them stood beside the victim
and walked into what was the bottom floor
of 89 Faneuil Street, no gun displayed at all.
The evidence then is that about five minutes passes,
and that Mr. Robinson is then seen coming
from 75 Faneuil Street, which is almost diagonally
across from and up from where 89 Faneuil Street is,
a completely different building,
a completely different parking lot that he's coming from.
His co-defendant comes directly out of 89 Faneuil Street,
gets into the vehicle in the alleyway
that was there at 89 Faneuil,
and then Ms. Tate gets in the car,
and ultimately, Mr. Robinson gets in the car.
And although there is evidence that Mr. Robinson is counting
money, there still is no evidence that he was even there
when the gun was fired or that he knew
that his co-defendant had a gun.
In this case, the evidence is that the co-defendant turns
and hands a gun to him, and then subsequent to that,
they drive to a park and hide the gun underneath a truck.
And subsequent to that, there is a conversation
that takes place the day after,
where the co-defendant summonses everyone to a park
down by Watertown, the Arsenal Mall,
and they have a conversation.
And it's in that conversation that Tate has
with the co-defendant in this case,
that he confesses to what he says happened.
And his version of what happens is that he was telling
the victim to keep his arms up.
The victim was saying, "Please, please."
He got nervous and he shot him.
Doesn't say that Robinson was there,
doesn't say that Robinson played any role,
and it indicates that it was an accident,
in other words, he got nervous and he did it.
So based on those facts,
I'm suggesting that a conviction of Mr. Robinson,
and he was only found guilty of felony murder
as a joint venturer, not as a principle in this case,
so the law requires him to know
that his co-defendant had a gun.
And what I've just gone through in terms
of the evidence suggests that he didn't know.
Now, I know this court just decided
Commonwealth versus Eagles,
a joint venture case as well with respect to felony murder,
and I think this case is distinguishable,
and it's distinguishable because there's no evidence
that Mr. Robinson saw the victim get shot.
There's no evidence that Mr. Robinson didn't look shocked.
There's no evidence one way or the other
as to whether or not he did.
But I would suggest even if this court gets to that point
where you're evaluating the after conduct,
which I would consider to be
the accessory after the fact conduct,
but if this court evaluates Eagles under the way
that I think it should, all of the things
that this court said the defendant in Eagles should do,
you have to take into consideration,
I think, that you have a 19 year old kid,
a 19 year old kid who was just involved in something
that he may not have known
what the gravity of it was in the beginning.
-: Ms. Scapicchio, could you use that outline
that you just laid out for us and incorporate it
into the co-conspirator statements
and the conversation with Tate?
-: Sure, so the co-conspirator conversations,
there are a few.
First, the co-defendant makes a statement to the police
in which he puts himself with Robinson during the day
of the homicide, and he lies about his whereabouts
in the homicide, clearly.
And then he has a conversation with Tate where he tells
Tate, essentially, this is what happened.
First of all, he says, "He's merked.
I got my body for the summer,"
which indicates that he has his body, not my client,
but it's certainly relevant to my client.
But the most egregious, I think, statements that came in
against Mr. Robinson is this idea
that his co-defendant confessed to Tate.
He said that even though Robinson
and the co-defendant led the victim into the hallway,
he, the co-defendant kept telling the victim
to keep his hands up because they didn't wanna,
he kept on reaching for the door,
and at some point he says he got nervous
and he shot him in the head.
And during that conversation, he's the one who places
Robinson at the scene of the crime.
He's the one who says Robinson is leading him
into the building, and he places him there.
Whether or not he's there during the shooting or not,
those statements came in without any limited instruction,
and they weren't in furtherance of any conspiracy.
Tate wasn't a co-conspirator to a homicide.
She was only charged with an accessory after the fact,
and Tate was the third party
that the confession was made to, which in this case,
I would suggest that statements of joint ventures
to third party are not admissible under these circumstances,
and then statements made after the joint venture is over.
And I would suggest that once they leave the alleyway
and they go and they hide the gun, then it's done.
What's happening from there is the co-defendant's direction,
not Mr. Robinson's direction.
Mr. Robinson isn't saying,
"Everybody come and let's talk about what happened."
Mr. Robinson isn't the one that's making any efforts
to conceal anything at that point.
That's all the co-defendant, and that statement that came in
against Mr. Robinson over his trial attorney's objection is
what would require this court, I think,
to reverse the conviction.
How do you let someone make a statement that is,
in essence, a confession that he was there,
that he did this with my client, and not give my client
his sixth amendment right to confront
and cross-examine that witness?
-: Assuming, as you suggested, it's not in furtherance.
-: Assuming, well, I think that the points as
to why it's not in furtherance in this case is
because that meeting was not generated by Jason Robinson.
I think it would be a completely different story
if the co-defendant and Robinson were calling people saying,
"Let's meet at the park at Arsenal Mall.
Let's do that right now,
'cause we gotta talk about what we're doing."
But this was all Tate,
this was all the co-defendant and Tate, and in fact,
when this statement was being made,
Mr. Robinson is 20 feet away talking to some other girl.
He's not there when this co-defendant is confessing.
He's not there to say,
"Wait, no, that's not how it happened."
He's not even hearing this conversation,
so he can't even react to it at all.
Yet it comes in a trial as a link in the chain
that ultimately convicted Mr. Robinson.
And I would suggest that because the conversation
at the Arsenal Mall was not part
of a continuing joint venture at that point,
not with respect to Mr. Robinson.
It may have been a part of his co-defendant's efforts
to talk to his girlfriend because she was insisting
on telling her the truth about what happened.
That's what she was doing.
"I wanna know the truth, you gotta tell me the truth."
And so they're sitting on some swings having
this conversation between themselves about what's happening
and Mr. Robinson is 20 feet away,
has no idea that conversation is taking place,
and then at trial that conversation comes in against him
as if he was there when that conversation took place.
He had no opportunity to confront
and cross-examine the co-defendant.
He had no opportunity to put that statement
in the context in which it was,
and that's why it violates the sixth Amendment.
That's why, under these circumstances,
the case should be reversed.
Now, I notice I'm running out of time.
If there are no more questions on the direct appeal,
I'm gonna move on to the sentencing issue.
Now, what we're asking the court to do
in sentencing is to put a categorical ban
on life without the possibility of parole sentences
for emerging adults,
because individual sentencing hearings will result
in unfair impacts on people of color,
and does not comport with the evolving standards of decency.
-: Counsel, what is the upper limit on an emerging adult?
-: 20, well, up to 21, so 20 years, 364 days.
That's essentially what it is.
That's what the expert said.
-: So it's 21, and the basis of that is what?
Why did the they pick 21?
-: The basis of that, Your Honor,
I can tell you is that prior to,
when this court decided Diatchenko,
essentially it got it right, okay?
And what happened after Miller and Diatchenko,
what was happening up to that point is all
of the studies were either under 18 or over 18,
because 18 was the demarcation point at that time.
Once Miller got decided, the studies started to break out
those categories of people 18 to 21, 21 to 25, 26 to 30,
and they did extensive studies.
And I would suggest that the studies that were done
post-Miller, post-Diatchenko are much more robust
than the studies that this court had
when they decided Diatchenko, and so there's no question,
there's no expert that's gonna ever say that the people
who are in the 18 to 21 category when they're
in hot cognition act more like the 16 and 17 year olds
than they do the 24 to 25 year olds.
Justice Gaziano: What about cold cognition?
Atty Scapicchio: Say that again?
-: I'm sorry, what about cold cognition in the particularity
of the juvenile in front of a judge?
-: Well, that's an argument that the Commonwealth makes
in terms of cold cognition.
And the problem with cold cognition is Dr. Steinberg,
who testified for us in front of Judge Edelman, indicated
that hot cognition could come on so fast
that it's almost impossible to determine
when you're in cold cognition
and when you're in hot cognition.
-: What about the Commonwealth's expert?
-: The Commonwealth's expert didn't disagree with that.
They didn't disagree with the fact
that hot cognition could come on quickly.
What they're saying is that there's a possibility
in some fairytale world that somebody could commit,
somebody between 18 and 21 could commit a crime
in cold cognition, and what they're looking at
to determine that is the elements
of the atrocity of the crime, not the person.
And that's not what we're looking at when we're looking
at life without the possibility of parole.
We're looking at the person, not the crime.
So if you wanna look at the crime and all the atrocities
that Commonwealth's gonna put forward
about he could have planned this, and he bought a gun,
and he went to school, and all of those things,
you're talking about the crime,
and that's not what we're talking about here.
When this court decided Diatchenko,
we were talking about the individual defendant,
not the crime, because we are gonna lose every time
if we're talking about the crime.
There's no way for a defendant to win on a homicide case
when you talk about the crime. -: Or they might not be guilty.
What if they're not guilty?
-: What if you're not?
Oh, no, I'm saying after conviction, after conviction.
-: Okay.
-: No, no, no, I didn't mean that at all.
So what I'm trying to say in this case is that this court is
in a unique position from every other court
in every other state.
Because you got it correct in Diatchenko, you now have
not only does did this court do the right thing,
but you now have 10 years of data from the parole board
to look at whether or not you're right, 10 years of data,
and that data tells you something extraordinary,
in my opinion.
-: Ms. Scapicchio, before we go into that,
I think there's a preliminary question.
Diatchenko cites Cepulonis.
Cepulonis provides the three part test for cruel
or unusual punishment under the Declaration of Rights.
And Diatchenko gets cited along with Cepulonis
in other cases.
Why is it that we're just assuming that the three part test
of Cepulonis doesn't apply?
-: I think it's because of the emerging information
that we have now, judge.
I think that the information that we have
regarding emerging adults is much different than we had
when Diatchenko was decided.
I think that all of the studies,
there's an international study, the Cohen study,
all of those studies suggest that age category 18 to 21
in hot cognition act more like 16 year olds,
so what do we do with them?
Justice Lowry: Assume that's true.
Atty Scapicchio: Right.
-: Just for the purpose of my question,
because we have to distinguish
the United States Supreme Court,
which in Roper has made clear that it's a category,
that 21 is a category that's a social norm
that's being adopted, and they're only analyzing
younger than a certain age.
We know that from Roper.
Why do we assume from the language of Diatchenko,
where the discussion is about juveniles,
that the science is necessarily the entire analysis?
-: It's not. Justice Lowry: Okay.
-: It's the science and then the evolving standards
of decency both combined together,
so it's not just the science, Your Honor.
It's science plus, and in this case,
what I was trying to get to is the evolving standards
of decency, we have this data set that no other state has.
And when you look at the data set from the parole board
that we have, it will tell you that
of all of the Diatchenko people
who went before the parole board,
74% of the percent of them were paroled, 74%,
which means 26% were not paroled,
they were not deemed fit to return to society.
And that's a job, I would suggest, that the parole board is
much more filled with information than a sentencing judge.
I think when you talk about the remedy,
and you talk about Diatchenko versus Miller,
I think that the Diatchenko remedy asking a judge-
-: You're talking about the 15 year passage of time,
or 20 year passage of time?
Atty Scapicchio: Sometimes 15, sometimes 20,
sometimes 25, depending-
-: Not that, because judges,
I take somewhat issue with the Amici.
Judges have to make individual calls all the time,
better is suited than the probe,
but what you're talking about is what this person looks like
as an adult when they're 30 or so.
-: Right, but what what we've learned is
the individual judges,
trial judges can't make a reliable determination.
They can make a determination, certainly they can,
they're a judge, but it's not reliable,
and up to 87% of the time they get it wrong, 87%.
-: It's only unreliable because of the passage of time.
-: It's unreliable because you can't make that determination
when someone's brain isn't fully formed.
You can't make that determination as to whether
or not they are capable of redemption.
What the parole board has
in front of it is 15 years of data.
Did he educate himself, or did he or she educate himself?
Were they able to hold down a job?
Were they able to comply with the rules?
Were they able to stay disciplinary report free?
You know, have they engaged in activity that would make them
safe to be back out in society?
Have they redeemed themselves?
-: Well, is there any validity to doing a brain scan
at the time of parole when that comes up
to see has the brain in fact developed?
-: Well, what the doctors who testified
at the hearings have said is a brain scan
at that point might be too late,
because the the time period-
-: Oh no, I mean, suppose you did one in beginning,
and then you do one later?
-: You do one at the time of the crime,
are you talking about? Justice Cipher: Yeah.
-: And then do another one at the time of parole?
I don't know what it would show at the time of parole.
My suggestion based on what the expert said is that
the passage of time would make it difficult
to make those FMRIs effective 10, 15 years later.
It wouldn't be, 'cause it's not, you know, I think
that when we look at the brain science,
when we look at the studies, there's no way
for any specific expert to stand before a judge and say,
"This defendant is gonna re-offend."
-: How is this any different than normal aging and wisdom?
-: It's different from aging and wisdom because
this class of individuals don't have a fully formed brain.
Their brain is still maturing.
It's the same reasons why this court decided Diatchenko.
-: Is that true for all juveniles
or all people of emerging adult?
Would that be any brain we looked at?
-: From 18 to 21?
-: Would they all look the same?
-: I don't know that you can say individually.
That's the problem, Your Honor, is that no one can look
at an individual defendant and say,
"This one's gonna re-offend and that one's not."
-: I understand that, but my question is this finding
with regard to the 18 to 21 year old brain,
that applies regardless whether they're charged
with an offense or they committed an offense?
-: That's correct.
Justice Cipher: Okay.
Atty Scapicchio: That's correct.
-: How, do we take into account the variability
that was discussed in the hearings?
-: Well, the variability as to?
Justice Gaziano: Offenders.
-: Offenders, well, I think the problem with the variability
as to offenders, you know, I think
you have to acknowledge race when you're talking
about the variability of offenders,
and when you start looking at the race,
these are what the statistics are.
77% of juvenile offenders serving life
without the possibility of parole are Black or brown, 77%.
That should shock us all, but that's the standard.
And Black youths are serving sentences
that are 16 times higher than white youths.
And we have to do something about that implicit bias
and how that happens.
If you have individual sentencing,
the way the Commonwealth is saying under Miller,
you're gonna have disparate sentencing
according to the judge, everybody understands that,
and what happens is juvenile offenders that are Black
and brown have longer records,
have more interactions with the police,
don't acclimate to prison the same way that other people do,
and so they're gonna have a worse record when you're making
that determination, and they're gonna end up serving
life sentences without the possibility of parole,
and that's exactly what happened after Miller.
-: I understand your position
about the Suffolk DA's office's brief, I get it.
I'd like you to talk
about the Essex DA's office Amicus brief for a minute,
where the point that they're making,
and this goes back to my initial question is
Diatchenko is about juveniles.
The United States Supreme Court is about juveniles.
And the issue, there's a preliminary issue here,
which is whether before 21 is a social norm age
that relates to a legislative determination,
or whether or not within, 'cause I'm not sure why
it doesn't apply, the Cepulonis three part test
that science should be an aspect of the analysis post 21.
That's the initial question.
I don't get the Suffolk DA's office position.
Atty Scapicchio: You don't get their position?
-: I mean, I understand it, I just don't agree with it
for the reasons that you said.
But I'd like to understand why 21 isn't a social norm.
Like in Roper, Graham, other cases
in the United States Supreme Court recognize
that the difference between 20 and 364 days and 21,
I mean, that's not the difference.
-: But when the Supreme Court made those determinations,
they didn't have before them the robust record that we have.
They didn't have before them the scientific evidence
that we have now that suggests that
that category of 18 to 21 is more, it acts-
-: We have Supreme Court cases that say we recognize that,
I think it's Graham, this is just a number.
-: But, we're not supposed, I mean, if we're talking
about the constitutionality of someone serving
a sentence under Article 26, if we're talking
about whether or not that's unconstitutional,
then why are we talking about whether
or not the legislation should handle that?
If it's unconstitutional, then it's up to this court.
This court has to take that on.
-: I'm asking about the if.
I'm asking you about if Cepulonis applies,
and you're trying to figure out
what is the difference between 20 and 21,
whether the choice of 21 is a legislative determination.
And there's nothing in Diatchenko that says
we're looking at anyone post 21.
That's the initial question.
-: Right, I don't think anyone's looking at anyone post 21.
-: Well, not now, that's the question, but at what point,
if I could ask my question.
At some point it does become a number, and I get
that the emergent adult testimony in this case was centered
on 18, because that was the remand, 18 to 21 or 18 to 20.
Justice Cipher: That's 18 to 20, I think.
-: 18 to 20, but anyway, when do you come in,
in three years from now with a 22 year old?
-: I will tell you that this soft science is no different
than the hard science that we deal with.
We deal with changes in DNA,
we deal with changes in fingerprints,
and when the science changes, the law changes,
and that's exactly what's happening here.
-: Yeah, at some point, we're gonna have to say
it's a number, correct?
Or we just have a role in hearing
where we tie it to the brain science.
-: I think it's the brain science plus
what is acceptable within the community.
I think that-
-: That's the issue is, as justices have always said.
At some point, it does become social norms.
That's why we get into, you know, but let me finish.
When we get into the questions of, you know,
alcohol purchase and military service, et cetera, right?
At some point it becomes a number,
at some point it becomes social norms,
so what's to distinguish the 20 year old
from the 22 year old?
-: Well, I think it's the science, it's the database
that we have that distinguishes them.
It's the robust set of data that we have,
and it's looking at the way that society has moved.
We've moved from 18 year olds being able to drink
to now it's 21 year old.
We've moved from 18 year olds being able
to not purchase alcohol,
but 18 year olds being able to do things in the past
that they can't do now, so society is evolving.
We're moving that number because society says 18 is
too young to be able to make those determinations.
-: Counsel, isn't that because society
and the societal norms are informed by the data
that we're living, so it's not either or, it's both and?
-: That's exactly right.
It's not just the science, you know,
and if I didn't make that clear, I will say again.
It's not just the science in this case,
it's the science plus what is-
-: What's the plus?
'Cause the end of Diatchenko is very focused on science.
I'm just trying to make sure I understand
what the plus is that you're referring to.
-: So I think in this case,
when we talk about what's correct,
it's the science plus the evolving standards of decency.
That's it. -: Okay,
but we're ahead of the rest of the country, right?
Atty Scapicchio: Absolutely.
-: So there's only one other state, Washington,
that's done what you're asking us to do, right?
Atty Scapicchio: That's correct.
-: So how do we analyze the plus factor
if we're ahead of the curve?
It goes against you, right?
-: No, because you have the data set that nobody else has.
-: But the data set isn't the data set
of the 25 people in Massachusetts.
The dataset is the science, which is everybody, right?
-: Right, it's the science that we have developed
from the time of Miller and Diatchenko.
It's that robust area where there's international studies,
there's psychological studies-
-: But counsel, earlier you mentioned this was soft science.
Can you explain the difference
between soft science and hard science,
and how that might affect a Daubert hearing?
-: Sure, I think with respect to hard science,
you're talking about things that you can actually see.
If you put a DNA sample into a device
and the data comes out,
you might differ about what the data says,
but it's a hard science, that's what it is.
-: True for the brain scan too?
-: I think, but it's not just the brain scan.
It's the brain scan plus, you know,
all of these other areas, the psychological studies,
the crime statistics that we have, all of them together.
When you take the crime statistics,
when you take the psychological studies,
when you take the FMRIs and this new MRI data,
it's all of it together.
It's not one individual,
and they all corroborate each other.
The crime statistics corroborate
what the psychological studies are saying.
The psychological studies corroborate
what the FMRI studies are saying.
So it's these three branches of information
all coming together to say the same thing, essentially.
And the same thing essentially is
that juveniles are different.
They're amenable to rehabilitation, and we should treat them
differently because the science says so,
and because the evolving standards of decency say so.
-: Does evolving standards in the emerging adults,
do we have any evidence with regard
to how they handle rehabilitation?
-: Well, I don't, I do not have any evidence right here
as to how they handle rehabilitation.
-: Because you said the evidence showed
a juvenile can be more easily rehabilitated.
-: I was talking about the people that got out with respect
to Diatchenko, the under 18 people, so with respect to-
-: So I wanna know, does that same kind of reasoning apply
to the 18 to 20 year old, or do we not know?
-: I don't think we know, but I think we can find out,
because I think that there are some people
who were sentenced to second degree murder
who were in that category, who got out
and who have been doing well.
I think if you look at the Amicus brief from CPCS,
they talked about all of these kids
that were Diatchenko kids that got out
and they did well, phenomenally well.
There were only three of them that got sent back
out of all of them that got out, so it's working.
Treating people who have underdeveloped brains
differently because they're not developed works.
It gives them the opportunity to redeem themselves
and to prove to a parole board,
to seven members of the parole board
that they're ready to enter society again,
and that's not an easy task,
going before seven members of parole.
We're not asking this court at all
to open the doors and let anybody out.
All we're asking you to do is make
a categorical determination
that life without the possibility of parole
for this category of people is unconstitutional
under Article 26, and it's because of the science
and because of the evolving standards of decency.
And again, I will say this court got it right in Diatchenko.
The same arguments that the Commonwealths are making
right now are arguments they made
before this court in Diatchenko,
and if you think about the impact of sending 203 cases back
to trial judges, to now hire experts on both sides,
hold hearings on both sides, try to make determinations
from whatever you can in terms of the record at,
six part folders at each of these institutions.
That's gonna clog the system up forever,
and what are you gonna get?
You're gonna get exactly what you have right now,
because you're still not gonna be able to have-
-: Defense counsel's not always overly concerned
about clogging the system, right?
We've taken a million drug cases and you know,
sent them back, right?
Atty Scapicchio: Right. -: So that's really not
a driving force, particularly for you, right?
-: What I'm saying, judge, is that
you're not gonna have any more info.
The sentencing judge at that point is not gonna have
any more information than he has right now.
-: I understand this may be an impossible task
for a sentencing judge,
but we're not being driven by the number of-
-: I understand that.
You're being driven by the Constitution, and Article 26 says
if they're the same as Diatchenko,
you should treat them the same as Diatchenko.
And so now the decision is remedied.
Do we do a Diatchenko remedy or do we do a Miller remedy?
And I think the Miller remedy leaves so much room
for disparate treatment of the Black and brown community
that we can't do it, 77%.
We can't let that be.
We can't be in a society where it's okay that 77%
of the people that are serving life without the possibility
of parole, the 18 to 21 year olds are Black and brown.
There's something wrong with that statistic.
And we know because this court did a study,
we know about the implicit bias that exists
within the criminal justice system.
We know about the overcriminalization of Black
and brown people in the community.
We have to do something about that.
And if we don't recognize it in this context,
then many, many, many of those 203 men
and women are gonna spend the rest of their life in jail.
If there are no more questions,
I'd ask you to reverse Mr. Robinson's conviction
and enter a finding of not guilty on the required finding.
And if not, I would ask you to consider the categorical ban
on life without the possibility of parole
for that emerging adult 18 through 21, thank you.
-: Okay, thank you.
Attorney Linn.
-: Good morning, Your Honors,
Paul Linn for the Commonwealth.
With me is special ADA Cailin Campbell
who will be arguing the brain science issue.
I will be addressing the issue of the direct appeal,
the issues on direct appeal.
I cannot emphasize enough as I did in my brief
in my 16-L letter that Eddie Gautier testified at trial
that after he heard the gunshots, he saw the defendant
and Anderson running away from 89 Faneuil Street,
which is the murder scene, together.
On cross-examination, he denied that he had actually seen
them exiting the building, that is, coming out the door,
but he said still at that point
that he saw them right next to the building.
So the evidence in the light most favorable Commonwealth is
that Tate sees the defendant and Anderson leading
the victim into the building.
Five minutes later, there's a gunshot.
Seconds after that, Gautier sees the defendant
and Anderson running away from 89 Faneuil Street.
(overlapping speech)
-: I'm sorry, Justice Gaziano.
That still doesn't answer the question about whether
or not he was aware that there was a gun there,
so how can you connect those dots?
Now, you can say, and everybody knows they had
that conversation about they're going to rob this,
he's docile, he's not going to essentially put up a fight.
So we can get you with all of the robbery part,
but how do we get the gun?
-: Well, the first thing that I would point out is that
the jury did not have to believe Tate's testimony
that she told anyone that Yazbek was docile.
That's not the evidence in the light most favorable
to the Commonwealth.
That's self-serving, trying to make her look better
than she was in this case, 'cause of course,
she's the mastermind of this.
She's the one who put the plan together.
Second, you're robbing a man in the city
in a housing project in the middle of the night.
They try to choose a secluded location,
but there's still that possibility that this-
Justice Gaziano: Do we have any cases
that say that the circumstance-
-: Yes, that's Ferguson, which I cite in my brief.
That's a case in which they robbed a drug dealer,
and I mean, there were some questions was it the defendant
or co-defendant who stabbed the drug dealer in the back,
but that's when the court says you can infer
from the circumstances of a drug robbery
that the defendant would know that the victim might resist
and therefore someone might be armed.
And of course, as I point out in my brief, certainly
whether or not Tate said that the victim would be docile,
that didn't stop Anderson from carrying a gun.
-: Yeah, but I guess that was my point,
because we have this inference,
and I'm familiar with Ferguson, but we have this inference,
but it's rebutted perhaps by the introduction
of the Tate evidence of the victim's a docile person.
-: As I said, the jury can believe parts
of a witness's testimony and disbelieve others.
They absolutely, in the light most favorable
to the Commonwealth under the Latimore standard,
do not have to believe that testimony.
The Commonwealth is not bound by that testimony
on the Latimore standard.
-: So what's the legal standard as far as the inference
that someone is armed?
If anybody is of fighting age or something
that you get the inference that they had to have a gun?
-: No, that's the starting point.
You start with Ferguson and say the very fact
that it's a robbery is some evidence, in some circumstances
legally sufficient evidence under Latimore.
Whether or not that's the case here is a close question,
but then you get the evidence upon the evidence,
which is the defendant stays with Anderson,
runs away from the scene with Anderson,
gets in the car, no reaction whatsoever.
His reaction is to,
he has this cell phone that Tate hasn't seen.
He has this wallet, he's counting money in the wallet.
He says "$46," and he hands it to Anderson,
and Anderson says "46," 'cause of course,
Tate also supposedly said that he was known
to carry a lot of money, so now they have killed a man,
and instead of saying, "Oh my God, you killed him,
I didn't know you were going to kill him,"
the defendant says "$46."
That's his reaction to this whole thing.
And certainly in Booth and Colon-Cruise,
and most recently in Eagles,
this court has said you can consider
first of all, two things for that line of cases.
The first is under Massachusetts law,
you do not necessarily have to know before the robbery
that the defendant was armed, so long as you learn about it
before the killing, or if there's no killing,
if it's just a robbery, as long as you learn about it
during the robbery and continue to participate.
And you certainly can consider the things
that the defendant did after the crime as evidence
of what he was doing and thinking at the time of the crime.
My sister is absolutely correct that you cannot convict
the defendant based on what he did after the crime.
That's accessory after the fact.
But in Booth, and Eagles, and Colon-Cruise,
the court makes it clear,
you certainly can consider that evidence
of what the defendant said and did after the crime
as evidence of what he was thinking and doing at the time,
and thus convict him of armed robbery
and felony murder based on that,
and that's the evidence here in the light most favorable
to the Commonwealth.
He shows no surprise, he continues to participate,
he runs away with the defendant, or excuse me,
with the co-defendant.
He's counting the money, by all occasions keeps the wallet,
so he is still participating, an active participant
in this joint venture even after he learns
beyond any reasonable doubt
that the co-defendant Anderson was armed,
because he shot the victim.
Turning to the joint venturer statements,
I would first emphasize that the Commonwealth did not offer
these statements as adoptive admissions,
which would require the defendant to be present
and know of the statements under circumstances
in which he would be expected to deny it,
although I think we could have done that on the statements
to Gautier because he was standing right there.
But we had offered these statements as statements
of a joint venturer during the commission
of the joint venture.
And I take issue with my sister's claim that the jury got
no limiting instruction.
As soon as Tate started testifying
about statements that Anderson had made,
the judge instructed the jury that they could not consider
these statements against the defendant
unless they found that a joint venture existed
and that these statements were offered,
were made in furtherance of the joint venture.
And there's, you know-
-: And a joint venture existed separate and distinct from-
-: Yes, there was also yes, other,
but of course here you have them plotting
the murder together and getting people together,
so there's certainly other evidence besides the statements
that this joint venture exists, and certainly I think
Robertson is the best case for the Commonwealth here.
In Robertson, the statements are long,
I mean, not long after, but they're after the crime.
They're after some of the co-defendants are arrested,
and these are statements made among the co-defendants
trying to figure out to get their stories straight
while they're in jail, and most important,
the defendant got away.
The defendant isn't even there
when the Robertson statements are made.
And some of these statements are very incriminating,
you know, "Thank God they didn't find the gun."
"If I ever get outta here, I'm gone, I'm off to Cape Verde."
These are extremely incriminating statements,
and they're still admissible because they're made
in the course of trying to preserve this joint venture,
trying to make it, conceal it
even after the crime is finished,
and that's exactly what you hear.
It would have to be an even better situation
because there's no doubt that the defendant is present,
that these are still
all the joint venturers getting together.
Even if he doesn't actually hear the statements
while he is sitting on the swings with Heather Cody,
he's still part of these meetings.
He's still part of this effort to get together
with Anderson trying to get,
make sure that everyone keeps their stories straight
and nobody goes to the police,
and that's what he's trying to do.
That's a joint venture.
That's a statement in furtherance of the joint venture.
And so these statements, and it's clear from the case law
that joint venturer statements do not violate Crawford.
They don't violate Bruton, because you take your chances
that your joint venturers are gonna say
something incriminating during the course of the crime.
-: Yeah, I understand.
I didn't take Ms. Scapicchio's argument as saying
that there's a confrontation clause issue,
or that these were adoptive admissions,
or that she made the point
that the defendant wasn't even there
during the conversation.
But really the point she was making was that at this point
in time, the conversation is concealing in furtherance
between the co-defendant and Tate,
and that's a different joint venture
and different conspiracy that the defendant's not in.
That's the real point of he's not there.
-: I think that's contrary to the law.
I think Robertson is directly on point that-
-: He doesn't have to be there.
I understand he doesn't have to be there 100%.
What she's saying is that the discussion between Tate
and the co-defendant was during and in furtherance
of their concealed conspiracy,
and not having to do with her client.
-: I don't think that holds water,
but I understand what you're saying, Your Honor.
I see my time is winding down.
Do you have any questions on this issue
or any of the others?
-: We're all set.
-: Thank you very much, Your Honors.
-: [Chief Justice Budd] Thank you.
-: Okay, Attorney Cailin.
Oh, sorry, Attorney Campbell.
-: It's okay.
Good morning, and may it please the court,
Cailin Campbell appearing
as the special assistant district attorney
on behalf of Suffolk County.
I'd also like to acknowledge ADA John Verner,
who is the motion prosecutor in this case who's also sitting
at the second council table due to the number of us today.
We ask you today to hold that a sentence of life
without the possibility of parole is unconstitutional
if mandatorily imposed, but constitutional for those 18, 19,
and 20 after an individualized sentencing hearing.
Justice Gaziano: I don't understand the middle ground.
-: Nor do I.
Atty Campbell: Okay, okay.
-: And the middle ground being that what we said
in Diatchenko that is that
our article 26 remedy is categorical.
The other ground would be what a lot of the rest
of the country does, and say it's a number, like Roper does,
and it doesn't apply after juveniles.
Why the middle ground?
-: Sure. -: Other than it being
something that we might bite on.
-: I don't just think it's something that you might bite on.
I think if you look at, so we didn't come
to this conclusion, I can assure you,
because it's something that you might bite on.
I think it's supported by the record, and I think
it's supported by the law, and I think that if you look
at the record and you look at the consensus,
this case has been difficult at multiple points
in litigation because I felt as if the Commonwealth
and the defendant were speaking entirely different languages
even though we were looking at the same case law
and listening to the same testimony
and reading the same studies.
I think if you look at the record, and you look
at individual testimony of the experts,
and you look at individual articles written by some
of these experts, you could pick or choose parts of those
to support any argument you could make.
I think the far better and what this court should do is look
to see where there is a consensus as to these experts
and as to the articles,
and what you can draw from the consensus.
And if you look at the consensus,
and this comes through both the testimony
and all of the articles that are part of this record,
what emerges is that in this group of people 18, 19 to 20,
there is a consensus that brains are still developing,
but the problem is that brains do not mature
among age boundaries.
Brains also do not mature uniformly.
There is a very large variation in how brains reach maturity
and there is very large maturation difference or how-
-: Would you support a Miller hearing then?
Some of the science is 23 to 26 year olds.
Would you support a Miller hearing then for 26 year olds?
-: Not to 26 year olds, I think-
Justice Lowry: 25?
-: Not 25.
Justice Gaziano: 22?
-: Not 22, although 22 is where I think I would end it,
both based on the studies and the expert's testimony
that brain maturation ends somewhere in an individual's 20s,
but if you all should look at the age crime curve,
which all of the experts testified about,
crime behaviors and impulse seeking behaviors peak
at 17 to 22, and then if you look at it,
there's this precipitous drop off.
So at least there, there's corroboration
that there's something amongst that age group.
-: But what's the poor trial judge gonna do?
So most of the science suggests
that their brains are still maturing, right?
So is the trial judge gonna be doing brain scans?
Is the trial judge gonna be,
I just don't understand how the trial judge is gonna do this
in any kind of way that's meaningful,
consistent with what we said in Diatchenko,
'cause Diatchenko is like the, you know,
that's the Everest of all these cases at this point.
It's the Article 26 determination of this court.
Roper is a federal.
We've provided more protection and we've focused
on the science in Diatchenko pretty emphatically,
so I just don't know how the trial judge can possibly do
this consistent with Diatchenko.
-: Correct, and I have a few responses to that.
The first is I was struck by the ending
of my sister's argument in which she said
if they're the same as Diatchenko,
then treat them the same as Diatchenko.
I don't think the record supports
that they are the same as Diatchenko.
-: Well, aren't they actually worse?
I mean, in some say it's since the sensation seeking aspects
of 18, 19, and 20 year olds is actually worse than under 18,
so I don't understand the Commonwealth's position.
-: See, again, I think that's just one aspect,
and I think sensation seeking in highly aroused states, yes,
but not in other states,
not in other emotional states or cognitive states.
So again, that's where I think it's not
the most useful thing to look at just portions of the record
because I think it could support any position
that you would wanna choose, but I think that-
-: You know, going back to Justice Kafker's question is
how is the trial judge to do this individualized hearing
when you can pick and choose?
-: Certainly, and I think, and this sort of dovetails
with a question that Justice Lowy asked my sister.
I think that there is a hyper focus, I would agree,
in both of the briefs as to Diatchenko
and as to the science.
I think that's because that was the focus of the remand,
but I don't think in a sentencing hearing
that that would be-
-: But isn't that the focus of Diatchenko?
I mean, Diatchenko is driving, it's making us different
from the rest of the country, right?
I mean, we can't really sort of re-argue,
I mean, you're not saying we're not gonna follow Diatchenko.
That's what Diatchenko does, isn't it?
-: I'm not.
I guess my response to that is sort of twofold.
You know, it's interesting 'cause if you look at Diatchenko,
the language of Diatchenko,
specifically that irretrievably depraved language,
that's relatively new language
if you look at it in the context of the law.
It first appears-
-: I'm just looking at there are two paragraphs
in Diatchenko which seems to drive everything,
the ones of being given current scientific research
on adolescent brain, and it just goes from there.
Just that's the driver of all of this, isn't it?
-: It is, and I think if you look at the record,
there is a difference between those under 18
and those over 18, I think that's one.
-: Can I ask you one question on that?
Is there any differentiation made in the studies
between male subjects and female subjects?
-: There isn't, although there is, I think
one of the experts did testify that there would be
a difference between males and females.
-: But were they just studying males?
-: They were just studying males.
You know, if you look at the studies in general,
Justice Cypher, you asked a question
as to why it was 18, 19, 20.
It's actually interesting when you look at the studies,
and critiques of this can be found in the original filing
that the Commonwealth made under District Attorney Rollins.
There is a critique of the studies because they tend to come
from college students who are 18, 19, 20 years old,
and they're not studying necessarily the influence
of crime and what drives crime.
They're studying more impulse control and sensation seeking.
-: But in justice, isn't there a bunch,
these studies say that, you know,
the younger women mature faster than the younger men,
don't they, isn't there consensus on that?
-: Yes, yes, there is.
-: I guess, putting aside that I really don't understand
considering Diatchenko why it wouldn't be
a prong one determination if in fact we're going to treat
21 year olds, 18 to 20 year olds the same.
What I'm struggling with is Cepulonis was mentioned,
referenced in Diatchenko as to prong one.
It's mentioned in LaPlante, which is a murder case.
What is it that has us looking at 18 to 20 as a category
that's not a social norm category,
or when is it we've ever delineated before
at this point in age?
What Diatchenko says is when it comes to children,
this is the science.
It's not addressing what happens when it's not science.
And I get the remand, and I think it was an important remand
and this is important information to have,
and it fits within the analysis for step one Cepulonis,
but I just don't understand how that's gone.
-: And I don't necessarily,
I think if you were to put that analysis,
if you were to adopt that analysis,
and it's interesting because until you asked the question,
I was sitting there and then I went back and looked
at my brief, and you're right.
The focus is not on that Cepulonis test.
The focus is largely on the science.
I think it's because everyone was focused on Diatchenko
as the starting point, and then what the science shows.
You know, as an interesting preliminary question,
I think there are similarities between those 18, 19,
and 20 to those juveniles.
I don't think that you can make the same broad conclusions.
I don't think you can make the same conclusions.
For example, in Miller,
I think the specific language is that
because these characteristics do not vary
on the individual or the crime committed,
that that is why in part they're reaching that ruling.
That same language is echoed in Diatchenko,
and specifically in Diatchenko and in Miller,
they're talking about the inability of individuals,
not only the brain science,
but the inability of individuals below 18 to extricate
themselves from the home environment
or from the bad environments that they're in.
I don't think, though those may be a factor that does apply
somewhat to those 18, 19, 20, I don't think it applies
with the same force to that group of people.
So you know, insofar as Diatchenko was the starting point,
and the science was the focus of the remand,
I don't necessarily think that it indicates
that Cepulonis wouldn't apply.
-: Diatchenko, which cited Cepulonis, always gets cited
in the context of Cepulonis.
-: Correct.
I see that I'm out of time, and I do have
more time after the next argument, so I will wait until then
to address some of these questions, thank you.
(participants laughing) -: Thank you.