-: SJC-10079 Commonwealth versus Dennis M. Bateman.
-: Okay. Attorney (mumbling)
-: Amy Connagnon.
-: [Chief Justice Budd] Great.
-: Good morning.
May it please the court,
Amy Connagnon on behalf of Dennis Bateman.
There are four issues that I'd like to address today.
The first is why the racially biased foreperson
on an interracial murder requires a new trial.
The second is the withheld evidence
and the prejudice that flowed from it.
The third is that there are four avenues to suppression,
and I'd like to specifically address the agency question.
And the fourth is the error
in the DiGiambattista instruction.
But before I get started, and before I begin,
I would implore in this case
that this court take its 33E review obligations seriously.
I am asking that this case be looked at
Justice: As opposed to at other times?
Amy: In the cumulative.
This is a case where the Commonwealth in their brief,
has conceded five errors.
They have conceded that there are five errors
and there are many more errors that there, that are raised.
This is a case where Mr. Bateman has maintained
from the outset that he is actually innocent and...
Justice Kafker: Why don't we start there?
Okay. 'Cause that's important for 33 review, right?
Amy: Sure.
-: Right. So we have his DNA matching on the belt, right?
Amy: We do.
-: We have one in 250,000 people
on the fingernails.
Right?
Amy: We do.
-: We have within minutes,
he's present during the time the murder takes place.
-: Right?
Amy: I disagree with that, your Honor.
-: Really, go ahead, do that,
'Cause, cause... Amy: I disagree.
You're throwing around a lot here.
And so let's start with actual innocence.
Amy: Sure.
-: I would suggest to the court that there is a gentleman
by name of David Williams who this court is referencing.
And Mr. Williams says that he saw a van that he thought...
Justice Kafker: He's there, right.
His DNA is on the belt.
Amy: He is, but he admits that he was there,
so I would suggest to the court...
-: His DNA is on the belt and the fingernails. Right.
And the timing. What timedoes he place himself there?
-: Earlier in the day around 3:30 to 4:00.
-: Four o'clock.
Justice Kafker: And how many people placed the van
there at 6:30?
-: There is one witness who drives by and indicates
that he sees the van there at 6:30.
There is another witness that's an issue pending
before the motion for new trial who was there at 6:30,
who says that she saw a red truck.
The other witnesses see the van there earlier in the day.
And it's not, this is,
this is one of the issues in this case.
It is not the same van.
The Commonwealth has presented in its brief
that it is in fact the same van.
But if you go back and you look at each witness's testimony
describing the van that they saw.
Justice Kafker: And we're gonna do that
because you know, a lot of your briefing is based
on sort of very, sort of, sketchy fact stuff.
So we're gonna do that very carefully because...
Amy: Absolutely.
-: You've raised like 25 issues,
and it's very hard to dig into each one of them,
'cause each time I do that,
the facts start evaporating here. But go ahead.
Amy: Well. So, I would suggest to the court
that the facts here support the claims that I'm happy to,
to as long as I can talk about those.
Justice Kafker: Go ahead.
-: But this is a case
where the Commonwealth has conceded five errors,
and ultimately from start to finish here,
this case was not tried fairly.
Justice Cypher: I thought we were talking
about actual innocence.
You were saying there's evidence of act..., that we were,
that there's no evidence.
Amy: What I'm saying is,
is that he has maintained that he's actually innocent,
and he behaved in a way that was consistent with that
at the outset of this case.
And when this court evaluates the case,
this court needs to evaluate the claims in the cumulative.
That is what I'm asking the court to do.
That this court not look at this piece by piece.
But at the end of the day,
whether this case was fair requires a cumulative review
of the case. And with that, if I could, I'd...
Justice Kafker: As far as I can tell,
the issues of errors, and they're errors here,
they relate to the jailhouse snitch,
and I'm gonna mispronounce his name, begins with a B.
Amy: Bogatz.
-: Right. So there's errors there with the detective and him.
There's also a devastating cross-examination
of this witness, isn't there?
Basically showing just he's, as he says,
"I'd give up my mother for a break." Right?
Amy: Sure. He, he does.
And, and I would suggest to the court
that his cross-examination was, it was done well,
but with a witness as important as him...
The cross-examination here was focused on things
like that, theoretical. "I would turn in my own mother."
If it were true, "I would turn in my own mother"
and counsel attempted to show.
-: "I'm a great liar. I'll turn in my own mother.
I've done all these things."
Amy: Counsel tried to show why he would lie in this case.
And what he was trying to show was this is what he does,
that he's a rat, that he turns on people.
But he had one instance with which to show that:
the 1993 cooperation.
He didn't show it with a 1980 cooperation
because that was withheld.
And he failed to use the jail calls that showed
that he was cooperating as the lead-up
to his interrogation of Mr. Bateman.
So it was different in kind than the information
before the jury.
But the withheld 1980 cooperation matters
because Mr. Bogatz lied to the jury.
He said, "I have only ever informed one time
on Mr. Thurston", one time.
And to be able to catch a witness like Mr. Bogatz in a lie
would be incredibly powerful cross-examination
because it was unlike anything else that he had.
He had no information to suggest
that this witness was lying.
He was trying to convince the jury that he would lie,
he would turn in his own mother.
You can't tell if he's a good liar,
and that's a great cross-examination.
But to be able to show that he lied,
that he lied to the jury, there is nothing that powerful.
Imagine what a great criminal defense attorney,
or even a good one, could do with an actual lie.
He's willing to lie to you because he did. We can prove it.
And so with that withheld information,
they can prove that he lied.
And I would point this court to Cowells of 2015,
from this court where the court indicated with a witness
like this, even that individual was impeached all day long.
He, I think had, I think a 19-day, 19-page record.
And with a witness as crucial as Bogatz,
it can't be cumulative because, at some point,
the jury is going to disbelieve them.
And this could have been the piece,
the lie could have been the piece to prove
that he was lying, not just about his prayer cooperation,
but he was lying about what he was saying.
-: How about all the other non-jailhouse witnesses
in which your client essentially is covering up
what he's doing?
It's not just with the, you know,
we've got the testimony of the two jailhouse people saying,
hey, I want you to provide me with an alibi.
But we have all this other stuff,
including with the man's wife, the victim's wife,
excuse me, the victim's husband,
where he's going to the victim's husband
and sort of bringing up all kinds of information.
It's not, I mean, I just don't know how important
these two jailhouse witnesses are.
And they're clearly bad witnesses.
-: So I would dispute
that these other witnesses are bad witnesses.
The fact that Mr. Bateman is trying to establish an alibi
when the police are asking him for one,
I think that that could be considered innocuous evidence.
He's walking around with a notebook trying to ask people,
was I with you from 4:00 to 6:00pm,
which by the way, wasn't even when the murder took place,
-: Bringing up the belt himself,
no one knows the belt is the murder weapon.
Amy: He's trying to tell the police what happened
that day, your Honor.
So bringing up what happened that day would...
-: They're not asking about the belt.
Amy: Well. If you believe the police recitation
of the evidence, but I would remind you
that we don't have a recording of it.
So their recitation of when things happened in sequence,
we don't have a recording of it,
which is why their recitation of it should have been
evaluated with great cautioning care.
Justice Lowy: Did he also go to the liquor store and ask
for some testimony there? And then he asked,
the videotape showed that what he was asking relative
to a time wasn't the actual time that he was in there?
-: But he went in to ask for proof
that he had been there that day.
He was trying to establish his own alibi
because the police were asking him for it.
-: I know, but the point is, the timing.
Didn't he go in and say I was there at...
-: Right. He thought that he was there, I think
at 4:00 or 5:00 pm, and the video showed
that he was there at 3:30.
But the point is he wasn't trying to cajole an alibi.
He was trying to verify where he was for the police
because the police had asked for it.
But I suppose what I would like to say,
because are many legal issues in this case
that these violations of his constitutional rights
still matter.
And getting back to the issue
with the biased juror, that is an issue where the person
who is ultimately selected as the foreperson
of the jury told the judge that he believed
that by virtue of Mr. Bateman's skin color,
he believed that he was more likely to commit crime.
-: There was no, there was no challenge for cause.
Am I right?
Amy: There was no challenge for cause.
-: And, and there were peremptories (coughing muffles sound).
Amy: And there were peremptories left,
and I have raised that.
-: So what can you do with that?
-: Well, I have raised that
as an ineffective assistance of counsel
because I think allowing a biased juror to get
onto a jury is per se ineffective,
and I think that that is dictated
by the Weaver decision.
-: Did he say... So it's been a while
since I read the transcript.
But didn't he say something like
that has nothing to do with this case?
Amy: He does.
-: Would you have to decide this case
based on this individual?
-: The question that was asked was having that information,
having the information that Black people are statistically
more likely to commit crimes,
would that affect your ability to decide the facts
of this case? And he said no,
because that has nothing to do with this case.
But this court knows that has everything to do
with this case because this case was tried
to that juror's prejudice.
This is a case where Mr. Bateman was alleged
to have stolen a $5 bottle of liquor
and then conned somebody out of gas and then gone
to murder someone who is his friend
and her unborn child so that he could get $300
to go on a crack binge.
That was the Commonwealth theory of the case.
The theory of the case was
that he was committing crimes left and right.
So whether or not a Black person was committing crimes
was the juror's task.
It had everything to do with the case,
and the court didn't probe further.
And that's why this court can't defer
to the finding of indifference.
There's one question to the juror about whether
or not it would impact his ability to be fair and impartial,
and the answer is non-responsive.
This court cannot be assured that he didn't employ
that bias, his bias that was...
Justice Kafker: I thought, I mean, again,
from the details of what he said,
and I'm not condoning what he said,
but he said that statistics show there are more crimes
in these neighborhoods, right. That's that's what he said.
-: He said that he believed...
-: And then when asked about the individual case,
he goes, no, I'm doing that on an individualized basis.
I'm not, it's not a, so I'm not saying it's good,
but it's different from what you just represented. He...
Amy: I don't think that he indicated
that he would do this analysis or this review
on an individualized basis. What he said...
-: Well, why don't you go through what was,
why don't you, the question he said,
why don't you do exactly what was said as opposed
to characterizing it?
Amy: Absolutely. If I could just have one moment.
Justice Kafker: Mm-hmm.
-: The court asked,
"Are you able to keep an open mind in deciding this case
solely on the facts introduced at this trial?"
The juror answered, "Yes."
"Are you sure of that?"
"Yes."
"Could you give both sides a fair trial?"
"Yes."
"Will the fact that the defendant is African American
and the alleged victim is white affect your ability
to decide this case fairly, impartially?"
"No, it would not."
"Do you believe that African American males are more likely
to commit crimes than individuals from other racial
or ethnic backgrounds?"
"Yes, I believe they probably are."
"Why is that?"
"By statistics, from what I've read,
not just more likely to commit crimes,
more likely to be victims.
There apparently is more crime in the African American
community, in my opinion."
"Having that information,
would that affect your ability in deciding the facts
of this case?"
"No, no, because it doesn't have anything
to do with this specific case."
And then the court moved on,
and I would suggest to the court that it has everything
to do with this case.
Justice Kafker: What's the follow-up question
at that point?
Amy: The follow up question?
-: What question should have been asked at that point
after he says, "No, it has nothing to do with this.
I'm gonna decide this based on the evidence."
Amy: Well, I don't know
what the exact question should have been, your Honor,
but there should have been more probing
because the court was aware that this case was going
to be tried on...
Justice Cipher: Well, but as I'm listening
to what he said, as it's set out
specifically with what this juror said,
he's referring to something he's read about statistics
in cities and African-American, Black people
being more likely to be victims.
Amy: He says that...
Also more likely.
So he's recognizing that he's read something
about more crime.
-: He says that they're more likely to commit crimes
and more likely to be victims.
Justice Cipher: He said both?
-: He said both.
But this is a case where he was being asked
whether or not Mr. Bateman, a Black man,
committed an interracial murder.
So his belief that by virtue of Mr. Bateman's skin color,
that he was more likely to commit crimes,
and those were his words, "more likely to commit crimes"...
Justice Cipher: Men are more likely to commit crimes too.
Amy: I understand that, but...
-: So 99% of violent crime is by males,
so we could factor that in and consider that a bias?
Amy: Well, well, so what,
what I would suggest to this court is
there should have been more probing here.
In my opinion, a person who holds a racial bias
should not be able to sit in judgment of that person.
If they are biased against their race,
they shouldn't be able to sit in judgment
of that person.
-: But if you know, the general say, let's just assume
hypothetically, and I don't know if this is true or not,
that the facts that he was citing are accurate.
I have no idea. I've not read anything that he's suggesting.
But what if somebody knew
that men are more likely to commit violence?
Amy: There should.
Justice Cipher: Would that be a bias?
-: There should be some probing
as to whether or not he's going
to apply that to Mr. Bateman.
The fact that...
-: Well, and so what, like Justice Kafker asked,
what would you want them to ask further?
He's already said it's not this case.
Amy: Well, I think there should be some,
-: This is just a generalized thing.
Amy: There should be some instructions,
instruction to the jury that it has nothing to do
with Mr. Bateman.
And given that it has nothing to do with Mr. Bateman,
is he able to set that aside?
If he's not able to set it aside,
then he's going to employ that bias in the jury room.
Justice Georges: But didn't he say he could set it aside
without being asked?
He just said it has nothing to do with this case.
Amy: He said it has nothing to do with this case.
-: So else would the court ask to elicit the same answer?
-: Well, because the court knew
that it had to do with this case, that he was a Black man
accused of committing crime,
so it has everything to do with the case.
Justice Georges: I'm trying to square your argument
with what we said in Williams, because this,
thank you, Justice Kafker.
You know, jurors come to serve
as who they are with all of their experiences.
And we talked about in Williams how,
even if there was some expression
of some concern with the system or some other things,
we all have our own implicit, if not explicit, biases.
And so when you have a situation like this,
where do we get to?
Where do we draw the line and say, you know,
it's not necessarily an attempt by the trial judge
to rehabilitate this potential juror.
He asked the questions, he expressed his views,
and then said it has nothing to do with this case,
and I can serve fairly and impartially.
Is the judge is supposed to, I mean,
the judge who's also judging the credibility
of the answer makes a determination
that they're indifferent.
How far do we go?
Amy: So I think that the record needs
to support the finding of indifference.
And here there's just one question
and then there's an answer that I would suggest
to the court is non-responsive
because there's no probing about
how this is exactly the case,
that is this juror...
-: [Chief Justice Budd] Okay, I'm sorry.
So, but given all of that...
Amy: Yes.
-: There was no challenge and there was.
Amy: Understood. And if I could just move on,
I don't wanna spend all of my time on this one issue.
-: Okay.
Amy: There are a number of issues
that I was hoping to address this morning.
The other thing, if I could just back up there,
there is a case that was
where the United States Supreme Court advocated
for structural error in a denial of cert in April of 2022.
Kristopher Love versus Texas
on a almost identical factual issue.
And I have advocated for structural error. I would ask,
just ask that the court look at that decision.
But with regard to the withheld evidence.
Justice Kafker: It a denial of cert?
-: It was, it was a denial of cert
on procedural grounds and a number of issues,
but three of the justices dissented
and argued that we should take this case
and we should make clear that structural error applies.
There are a number of categories of withheld evidence,
and I realize that I'm running out of time.
We have touched upon Mr. Bogatz's prior cooperation
and his perjury attendant to that.
With regard to Debrik Sweeney,
there was a number of different categories
of information that was withheld.
Mr. Sweeney was largely unimpeached
at the end of his cross-examination.
He testified that the police had approached him,
and he had to do what was right.
His only impeachment was effectively with drug crimes.
But there was a threat in coordination
with the police department and the probation department
to get him to court.
And that threat, I would suggest to the court,
of a pending probation surrender,
particularly where the Commonwealth knew
that he was facing a 10-year sentence,
that the judge had all but promised him that employment
of a probation surrender to get him before the court
to sort of force his cooperation was exculpatory
and should have been turned over.
That could have been viable impeachment evidence
for Mr. Sweeney, for which there was none.
Justice Kafker: And what does Mr. Sweeney add to this
that others don't add?
Why is his... What is specific to Sweeney?
-: So he corroborates, I would suggest to the court,
he corroborates Mr. Bogatz's testimony in a way
that the other witness is arguably Mr. Swee...,
Mr. Bateman is going around trying to establish his alibi.
But this witness suggests
that he's doing it in a way to sort of force
just as sort of the court was.
Justice Kafker: But I'm confused though.
So he's, 'cause you're drawing a distinction
between what he did with the non-jailhouse people
and what he did with the jailhouse people.
Amy: Mh-hmm.
-: And I understand with Bogatz,
Bogatz basically describes him confessing to everything.
Amy: Yes.
-: Does Sweeney describe that or is he just another example
where he is trying to place himself somewhere
during the timeframe of the murder?
-: Sweeney is a person to whom Sweeney says he tried to force
an alibi out of him by threatening him.
And that's where that comes from.
The other witnesses don't describe that type of interaction
that he's just trying to establish where he was.
This is a sort of, I know I wasn't there at the time,
but I'm gonna tell on you if you don't,
if you don't say exactly what I want you to say.
-: Can we just... Go ahead, finish your answer.
-: No, and that's why I think
that he corroborates Mr. Bogatz,
but he also provides his own inculpatory spin on things.
Justice Lowy: If we run out of time,
could you just address DiGiambattista for a moment?
Amy: Yes.
-: Because there's nothing,
whether it's the expert testimony instruction
that suggested or DiGiambattista or many other instructions,
even the homicide instructions where there's any sense
that we're saying you have to do it verbatim.
And so Judge Agostini hits both points of DiGiambattista.
So where's the error there?
-: So I would actually suggest that he doesn't hit the point
of, that is a core concern of DiGiambattista.
that the, they have to evaluate the precise contents
of the statement. The "use great care",
"caution and care" was tied to voluntariness only.
It said specifically "great caution and care when trying
to assess the totality of the circumstances".
But a core concern of DiGiambattista was
that police are not tape recorders,
that the police recitation
of a statement depends on their memory.
And the jury was not asked to evaluate the precise contents
of the statement.
And the Commonwealth seized on that in closing argument by,
and I don't wanna go over but, essentially,
by seven times calling the jury's attention
to things that the police said that Bateman omitted
in his statements, and also by mocking the idea
that the recitation was not accurate.
-: Okay. Any other questions?
-: No, thank you.
Okay. Thank you so much.
-: So if the court has no further questions,
I would rest on my brief. Thank you.
-: Okay, Attorney Townson.
-: Thank you. May I please the court,
Thomas Townson for the Commonwealth.
The DiGiambattista instruction. As it was noted,
there was no specific mandated verbiage
that shall be given, but the language
that Judge Agostini did use is found directly
in DiGiambattista. And I quote,
"Jurors should use great caution when trying
to assess the totality of the circumstances
when they have before them a highly selective sliver
of those circumstances.
Justice Lowy: Yeah, but the appellant's argument,
though, is that one of the reasons,
for a number o' years we said, you know, record these,
record these, and finally the court said, oh yeah,
you're not doing it, if you don't do it,
then that you have to give this instruction.
And one of the motivating reasons for wanting these taped is
because we're concerned
that the recitation
of what happened might not be accurate.
And it protects people being interrogated
and it protects the police, too.
But that leg of DiGiambattista seems to be missing.
Thomas: Well, there's the two required components
of DiGiambattista.
One that this court prefers that these be recorded,
and secondly, that the juror should take
great caution and care in evaluating.
-: Right, I understand.
I appreciate that. The, but the, but you,
you need to address their argument, which is,
it doesn't explain that one of the...
The language isn't important,
but the point is that accuracy is one of the reasons
that we want these recorded.
-: Well, I think he did cover that.
Justice Lowy: Okay.
Tell me what he said that covers that.
-: Well, let me pull the language.
Justice Lowy: You don't have to be specific,
but he actually addresses that, you know,
we don't have a recording here
of what was said, and you can take that into account.
Thomas: Right.
"Our Supreme Judicial Court has expressed a preference
that interrogations be recorded whenever practicable.
An unrecorded statement does not present
to the jury evidence of the totality of the circumstances,
but instead only presents the jury
with an abbreviated summary of those circumstances
and the interrogating officer's recollection
of the highlights of those circumstances.
Consequently, when the Commonwealth introduces evidence
of a defendant's statement,
that is the result of a custodial interrogation
at a place of detention,
and there is not at least an audio tape recording
of the complete interrogation,
the jury should use great caution when trying
to assess the totality of the circumstances.
You are advised that the absence of a recording permits,
but does not compel you, the jury,
to conclude that the Commonwealth has failed
to prove voluntariness beyond a reasonable doubt."
I submit that that covers it.
Now, the defendant may have gotten unwarranted benefit
by even having the instruction
because at that stage for that first interview,
he was not a suspect. He was a potential witness.
One of the individuals who drove by the station
in the half hour or so before
contacted the police after he had heard
about the murder and told them about the van
that he had seen there.
When he was telling that to the investigating officers,
a dispatcher happened to overhear it
and recognize the description of the van
and someone rang the officer and said,
"That van belongs to my neighbor Dennis Bateman."
That's how the defendant was first contacted,
not necessarily as a suspect, but as a witness,
a potential witness who was there.
Now, they didn't know if he was there
or if he had lent out his van to someone else.
And so he was interviewed on the 18th of October.
He was not a suspect,
so this was not a custodial interrogation,
so the defendant may have gotten an unwarranted benefit.
Justice Lowy: Let, let's,
I hope that this doesn't take too much time to answer
this question, so be as cogent if you possibly can.
But right off the bat, the appellant talked about
that this is an innocence case,
and obviously we're looking at these unpreserved errors
through a substantial likelihood of miscarriage of justice.
It's going to contemplate the Commonwealth's evidence.
So can you give your 92nd best version
of the compelling evidence?
Thomas: Compelling evidence?
Number one, the DNA on the actual murder weapon,
the strap.
It was one in 605 quadrillion randomly selected person.
The DNA on the fingernails, as was mentioned before,
one in 200,000,
the defendant placed in himself
at the gas station that afternoon,
the parade of witnesses who described someone
either matching the defendant or his van.
It's a very distinctive van.
In one of the great coincidences in this case,
the individual who sold the defendant the pink cans
to paint the white van black,
he was driving by at 6:30,
immediately noticed the van,
and said, that's what I expected
from a lousy paint can job on the van.
And that was, I submit, an identification of the van.
And that could be, you know, argued either way,
as the other identifications could be argued either way.
The defendant's attempts to cajole others
into providing an alibi
for the hours between four and six o'clock.
He threatened Debrik Sweeney saying
that he would tell the police that he had sold them drugs.
He, Charlene Jenkins,
who he had seen later that night,
he went back to her and she felt threatened.
He was very agitated.
He tried to convince her that he was
with her between those hours.
The teller at the,
or the store employee
at the liquor store, there was a cab driver.
It was a constant...
Justice Kafker: Statements to his friends
that he wanted them to take care of his wife.
He just said that in the immediate aftermath of the murder.
He approached the victim's fiance the day
after the murder at a different gas station.
Justice Kafker: Can I switch you to..
-: He said he had fingerprints.
He was afraid fingerprints were on the purse.
-: Are you okay? Can I switch you?
-: Are you okay? Can, can I switch you?
Justice Gray's "snatching victory
from the jaws of the feeder",
"defeat from the jaws of victory."
I can't remember the proper...
There's a lot of mistakes made in a case.
You know, you're bringing in these two jailhouse witnesses
and you're not giving all the information,
and then you're, you know,
the detective makes a bunch of errors that aren't corrected.
Why don't, how do we address that?
'Cause there's a lot of mistakes made in a case
that shouldn't have been this difficult to evaluate.
Thomas: I don't think I conceded here
in five areas where there were mistakes.
-: Even you've conceded,
I mean the Gibbons testimony has, I can't remember.
They're five, they identified five errors.
You've conceded error in two or three of them, right?
Thomas: I conceded error on the one where he was asked,
did Bo... -: At least two, right?
Did Bo, for two phone calls did, Bogatz contact you?
-: Correct.
Thomas: It had already been established
by both the prosecutor and the defense attorney
through Bogatz himself that Bogatz had indeed contacted him.
Justice Kafker: That that's the least serious. There's...
and nobody offered him a deal.
Somebody did offer him a deal and that none of my other,
nobody else talked to him.
We know three other people talked to him.
There are a bunch of errors, right.
Thomas: Well, the defendant's brief portrays
a factual universe in the,
like most favorable to his argument.
Justice Kafker: Right.
-: Judge Agostini had a hearing, an evidentiary hearing,
two-day evidentiary hearing
on whether Bogatz was a government informant or not.
-: Yeah, I find you're correct on the law on that issue,
so I'm not bothered by that.
I'm more bothered by just how many errors are made and
whether you had any duty to correct them at trial.
Thomas: I see where you're.
Justice Lowy: The prosecutor, the, the,
it's the part about where an answer comes up
and the prosecutor doesn't do anything
when the prosecutor's in the position
to know that there's contrary information available.
-: Right. But these errors come up on cross-examination.
Defense counsel has the information to impeach those.
Justice Lowy: Is that true? Because that' important.
-: Yes.
-: Because the defense attorney can impeach by contradiction
later. They don't have to take that extrinsic evidence,
that moment and prove the contrary of the denial
'cause it might not be as dramatic,
so I'm not worried about those.
But are there situations where the prosecutor knows
this contrary evidence and the defense attorney doesn't?
Thomas: I think the one clear one is
the one mentioned earlier where Detective Lieutenant Gibbons
said he had, did not go...
Bogatz had not tried to contact him.
There was clearly, there's a transcript of jail calls
that he could. Now Bogatz had already testified,
and both attorneys had established
that Bogatz had called him.
So defense attorney knew that, and defense attorney,
if he wanted to impeach the detective lieutenant
further, could have pulled out those recordings.
And then what does the prosecutor do on redirect?
Well, can you explain why you didn't remember it?
Well, there were two very brief phone calls I had forgotten,
that was two years ago in the midst
of a major homicide investigation.
Judge Agostini made a finding that it was an oversight.
It wasn't intentional.
And in any event, it was already established.
Everyone in the courtroom knew that Bogatz had attempted
to contact
Detective Lieutenant Gibbons.
Now we have to step back and look at, so what's,
what's the defendant's argument here?
That Bogatz was somehow an government agent.
There was an evidentiary hearing,
two-day evidentiary hearing years later.
But fortunately Judge Agostini was still on the bench
and he allowed evidence to be submitted.
Where, now, United States Marshall Gibbons testified,
the prosecutor testified, two state,
police lieutenants testified,
and the defendant failed to establish
that Bogatz was a government agent and failed badly.
There was no evidence to support it other than this,
from 25 years ago.
Bogatz had told then, Officer Gibbons...
-: I agree with you. I agree with you that he's not an agent.
That's not, but their argument's broader than that.
Their argument is that Gibbons is lying and that if they,
you know, and that's important.
Why don't you address that part of this, too?
-: Right. So this was before Agostini,
and in his decision and the motion for a new trial,
he said there were some inconsistencies
with Detective Lieutenant Gibbons's
or Marshall Gibbons's recollections.
But there was nothing deliberate about it.
It was an oversight, not delib, and that was in there.
Now the defendant,
there was some ambiguous interchanges during trial.
The defendant says, wow, this is referred to this.
I counter while in the context actually referred to that,
it's not clear.
So that's something that defense counsel can develop.
-: How about the other one, Sweeney?
The argument is that Sweeney, and again,
I understand he's not an agent, so I'm,
I don't disagree with your legal analysis there,
but they're also arguing that, you know,
Sweeney has all kinds of incentive to lie
that they're not able to pinpoint.
Do you wanna deal with that?
-: Well, Sweeney, it's unfortunate that Sweeney's paired
with Bogatz.
Sweeney was a pretty minor player at trial.
We had, there was over 40 witnesses.
His import was that the defendant had tried to get him
to be an alibi between four and six.
There's no evidence that they were together on the day.
There was evidence that sometime before the murder,
the defendant had gone over Sweeney's house
and Sweeney had sold him crack, okay.
Importantly, Sweeney does not go to the police.
The police go to him.
His name comes up in the investigation and he says that
indeed the defendant tried to get him to be an alibi.
Defendant Sweeney pleads guilty of the following fall,
is given 18 months' sentence.
In the run up to trial, he's on probation.
It's a dispute whether he there was an active violation
of probation or not.
And he's given his,
the prosecutor meets with Sweeney exactly one time,
gives him the statement and says,
is everything in there true before I put you
on the stand? And he admitted, well,
actually I did sell cocaine to the defendant.
He had denied it in earlier,
in his earlier statement from two years earlier.
And so that's the basis of his cooperation agreement.
They're not gonna use that inculpatory statement
against him.
They're not gonna charge him with a sale of cocaine
to the defendant. So that's the basis of his deal.
Now, if there were an open violation of probation and...
Justice Kafker: And he's subject to a 10 year,
he has exposure to going back to jail for 10 years.
Is that right? Am I misremembering?
-: Well at his, when he pled guilty to these charges,
which was a year and a half
before he entered a cooperation agreement,
the judge at the time said something that
if he violates probation, he's looking at 10 years.
And I have the quote in a footnote in my brief.
That was a single remark
in a plea hearing
from year half earlier.
It's not transcribed until four years after trial.
So, I...The defendant is trying to make it
as a discovery violation because we would not foresee
that this person would later enter
a core operation agreement.
And this somehow is exculpatory evidence
that needs to be turned over.
-: Can you address the juror
who made the comments about statistics and...?
Thomas: Sure.
-: Black males.
-: So it was asked earlier
what would've been a good follow-up question.
So the question was, having that information,
would that affect your ability to decide on the facts
in this case? And the juror says, no, no,
because it doesn't have anything to do
with the specific case. And then there was a question,
what would be a good follow-up? Well, there was a follow-up.
"Now are you conscious of any feelings
of racial bias or prejudice,
which might tend to influence your decisions in this case?"
And the answer is no.
Now this court's decision in Williams brought a lot of need
to clarity to this area of the law.
It parsed out the two different aspects.
If a juror has bias or worldview or opinion
about this specific case, they may be asked to set it aside.
If a juror has an opinion, a worldview,
or a bias about something generally,
there should be a follow-up question
'xause jurors are allowed to have opinions and biases
and worldviews as this court and Williams said.
And so there should be a follow-up question.
Now, in Williams,
this court did not mandate any particular phrase.
And in, actually in footnote eight of Williams,
"No special terms or particular phrasing is required."
Now, Chief Justice Ganson, a concurrence put himself
sort of in that case in the trial judge's role, he said,
you know, I've, you know, questioned thousands
of jurors in my 11 years as a Superior Court judge.
And I like to think that if this had occurred,
that I would ask a particular question.
And the particular question he thinks he would've liked
to have asked is,
"Is there anything about the subject matter or your views
about the subject matter that would affect your ability
to be fair and impartial in this case?"
As the follow-up question,
the judge, Agostini,
actually used the actual language
in his follow-up question.
-: How many of the jurors talked about statistics? I'm sorry.
-: How many peremptories were left at that point?
-: Each? Well, ultimately,
each side retained four peremptories.
-: So after this, this would've been, we don't even know,
was this in the beginning? I can't remember
what this juror was 22.
This was on day two of jury selection.
Justice Kafker: So the defense counsel had a lot
of peremptories at this point.
-: Right? And so, yes,
the whole issue is waived, first of all.
And so, if anything, you don't...
Justice: It's still considered substantial likelihood.
-: Substantial likelihood.
Now the defendant in his principal brief says,
oh, structural error,
in the reply brief, the defendant says,
well, acknowledging it should be,
the defendant says substantial risk,
which should be substantial likelihood.
Now at oral argument,
the defendant is going back to structural error.
It's a substantial likelihood. The burden's on the defendant
and the burden can't sustain and the defendant can't sustain
that error. I mean, that burden.
If there were error, I submit, under Williams,
Judge Agostini handled this properly
because his follow-up question was having that information.
This is after the juror mentioned statistics.
Having that information, would that affect your ability
in deciding the facts in this case?
That's almost word for word,
but Chief Justice Gantz and his concurrence in Williams hope
that he would've said if he were in the position.
Now there is no mandated verbiage to be used under Williams,
but that was a pretty good one,
probably 10 or 12 years before Williams.
And again, there's probably no area of the law
in which a trial judge is accorded
more deference than in juror selection.
The trial judge sees the juror can't decide.
Judge Kafker: I'm not sure that's the case anymore,
but, yeah.
Thomas: Yeah, well, I think, no, I think,
I think Williams really gave, trusted,
I guess is the word, trusted trial judges to do their job
and specified that, you know, if a juror has a worldview,
they are not, need not put it aside unless it's affect,
unless it's about that particular case.
If it's some sort of view,
they're entitled to have it because we want a, you know,
diverse jury and everyone brings their views
into the deliberation room.
What you don't want is it to affect and affect their ability
to judge the facts of the case and the laws prescribed
by the judge and the instructions.
Judge Agostini did that.
Now, the defense counsel was a very experienced attorney.
He was content with this juror, the prosecutor's,
a very experienced prosecutor.
She was content with this juror and Judge Agostini,
who was an experienced judge even back then.
And he found the jury even 17 years ago.
(Justice Kafker laughing)
(Justice Lowy mumbling)
Thomas: And he found the jury to be indifferent.
And this is only an issue.
Defendant has filed multiple motions for a new trial.
He's on a sixth appellate attorney. It's only an issue now
in the brief, before this court.
-: Can you address before we lose you,
there's this doctoring of the tape issue that's
in a pending motion for a second new trial, is that...
-: There's a pending motion for a new trial.
Judge Agostini, there's a status hearing
on January 4th, I believe.
-: -[Justice Kafker] And what is the argument in there?
-: The argument is that the police doctored the
April no, the, the one of the,
the second interview doctored the second interview
to make the defendant look bad.
It's not clear what they took out, what, you know,
pearls of exculpation were removed from....
Justice Kafker: But is, the basis
of this is what, and do we,
what do we have of that in this record?
-: Well, the defendant included the issue in...
-: It hasn't been decided, right?
Thomas: No, no, no.
And each side has an expert and this will be, you know,
hashed out before Judge Agostini.
But that's the basis of it.
This, the police were trying
to make the defendant look bad and took out unspecified.
Justice Kafker: Statements.
-: Statements to make him look bad.
This is in the...
Justice Kafker: And the Commonwealth's experts,
in that case, are admitting that the tape has been altered?
-: No, no.
-: Or they're, they're...
Thomas: We're still in consultation with expert,
but we expect the report to say
that there was absolutely no tampering of the tape.
This is in the wake of DiGiambattista.
Officers were given these handheld Samsung recorders,
and they're trying to figure out how to work 'em.
Unless the court has any further questions, I'll rest
on my brief.