-: SJC-10590 Commonwealth v. Robert O. Jacobs.
-: Okay, Attorney Pumphrey.
-: Good morning, your honor.
May it please the court,
I'm Janet Pumphrey for Robert Jacobs
and before I start, I'd like to thank Clerk Conneely
for such a smooth and easy way
to get into this new world that we have here
and he really made everything perfectly
and I've had other court hearings
that don't go nearly like this. (chuckles)
-: [Chief Justice Budd] Thank you so much for the feedback,
that's great.
-: [Counsel Pumphrey] Let me start
with the three uncalled alibi witnesses.
Defense counsel certainly knew about these witnesses,
he interviewed them at least once, some of them twice,
they were on his witness list.
He told them they couldn't be in the courtroom
because they would be called to testify
and he introduced them to the jury.
Pretrial, before the trial,
he understood the importance of their testimony.
In his own words, he said, "Vanessa was, Vanessa Franklin
was the only person who could testify
that her brother did not commit this crime.
Christina's testimony is gonna be very important
for the defense and when the first shots were fired,
the defendant and Reeksmi were standing together.
The motion judge understood the importance--", go ahead.
Hon. Elspeth: Let me ask you, before you get into
what the motion judge said.
Was Attorney Davis asked about this,
the motion for new trial?
-: Yes.
Hon. Elspeth: And what was his response?
-: For the most part, he remembered very little,
the motion judge attributed that to his health
and the way it played out is that Attorney Davis,
the two days of evidentiary hearing,
Attorney Davis testified on the first day,
second day was months later, it wasn't contiguous
and in between the first day and the second day,
Attorney Davis had basically very little file,
I had about five documents.
Otherwise, it was destroyed in a flood in his basement.
In between the first day and the second day,
someone at his office discovered a computerized file
and so I got a good size file,
which we admitted the second day of that motion hearing,
by stipulation.
The motion judge had this paper file
and the motion judge wanted to call Attorney Davis back
to testify to some of these documents
and Attorney Davis, rescheduled it a couple of times,
he just was too ill, yeah.
-: Okay.
As you were going to address what the judge found
with regard to why it was not necessarily a good idea
to call these witnesses, considering their relationship
to the defendant, correct?
-: Exactly and the judge said, basically he looked at,
read the extensive notes and he said,
"There can be no doubt that Attorney Davis
went into the trial knowing exactly
what the witnesses would have testified to,
it's then inconceivable that he arbitrarily threw up
his hands and failed to call them"
and I would suggest that's exac--
Hon. Scott: Can I ask one question about,
it's Vanessa, right?
She's the-- -: Vanessa.
-: She said drove to the party with the defendant
and we know from the victim's girlfriend that,
that's not true, right?
We had one contradictory fact right upfront.
Is there, by the way, is there any evidence
besides the other sister, that Vanessa was at the shooting?
Is there evidence that this isn't all made up or?
-: I can check the record,
I don't remember other evidence, I'll try check--
Justice Georges: But counsel dovetailing off of that,
my understanding is in the record, there wasn't any evidence
that Vanessa was at the party, right?
Was there--? -: I'm not remembering
any evidence, perhaps my sister remembers more than I do,
but I will check the record.
Hon. Scott: Okay, 'cause that's a real problem.
Justice Georges: Wouldn't that be a big deal?
-: If they completely made it up,
but I would suggest they were very credible, both of them.
The second sister, Lady: Credibility of, sorry
-: The second sister doesn't add much to...
-: She doesn't, she just corroborates.
Hon. Scott: It's really Vanessa
and I'm gonna mispronounce the other gentleman's name.
-: Reeksmi Hon. Scott: Yeah.
But again, just so no one places,
when we go through this record
and I have not read this record yet,
are we gonna have any, you think we're,
'cause if there's an issue
of whether she was actually there,
then you understand why Mr. Davis
was a very skilled trial lawyer.
Doesn't wanna go anywhere near that, right?
-: Yes, but he interviewed her two times is my memory,
Vanessa and she told him, and he told her,
your testimony is very crucial,
because you're the one person
who says your brother didn't commit the crime.
Attorney Davis believed her.
Hon. Scott: If he believed her,
he wrote down what she said,
you know, those are...
-: That's true, that's true.
"Her testimony was important
because she's the one person who could say this.
There could be no better defense than a witness who says
that the defendant was not the shooter".
-: But counsel, that's not necessarily true,
when your witnesses are related to the defendant and--
-: [Counsel Pumphrey] It's true.
-: You have one, two, three, almost four,
as I count them, people saying it was the defendant,
that are not rel--
-: It was really just Swoyer Key, the other--
-: Daquan saw him fire two shots, right?
Maybe up in the air, but then Carmen sees the gun
and John Pier identifies him as the shooter
and then you've got Toby who delays it a little bit,
because he's afraid and then he wouldn't go further in court
but you see you do have a substantial body of witnesses
saying he is the shooter.
-: [Counsel Pumphrey] Or you've got a couple of people
who say that the shooter
was standing in the middle of a hill, shooting up the hill
and those two people couldn't possibly be correct
or telling the truth, because the shooter--
Hon. Elspeth: That's based on your expert witness, right?
-: [Counsel Pumphrey] That's exactly right.
Justice Georges: But your expert doesn't deal with Swoyer
-: [Counsel Pumphrey] No.
Justice Georges: According to your expert's conclusions,
Swoyer's testimony would be consistent with what he claims
how far away and the plane that the victim was shot
and killed with, right?
-: It would be, her testimony is a little, it's difficult
because there were a whole lot of things wrong with it.
(rustling paper) She testified basically,
that she didn't say what they said she said,
that she didn't remember anything at all.
The officers put words in her mouth,
she didn't circle the picture,
she didn't identify the picture
of the defendant as the shooter,
but only that that's who that was.
-: But we can see what that was, right?
After the fact that we could see
what this was at the time of trial,
my concern is trying to look at this case,
within which you're saying
that Attorney Davis should have called these people
and the language that you're relying on,
was a letter that was written to her prior to trial, right?
-: [Counsel Pumphrey] That's right.
-: About her importance, but then the trial unfolded
and like a lot of things, things fold, unfold a way
that perhaps illuminates what you might have thought before
and didn't Attorney Davis say to the trial judge,
why he was not calling these folks?
-: [Counsel Pumphrey] Well sort of,
he basically said they didn't have anything to offer
and then he made some,
I think perhaps trying to be humorous,
statements about how the two district attorneys
would tear them apart or something like that
and I think that was an attempt at humor,
or at least that's what the motion judge thought as well,
but there really was no reason not to call them,
because they were right there willing to testify
and if they refuted what the other witnesses said,
at least put on a defense, they were friendly with--
Hon. Elspeth: Counsel, let me ask you,
did you run their background?
Did you do background checks on these witnesses,
before making the determination they'd be good to call?
I mean, he may have.
-: I didn't myself but I think that Attorney Davis did.
Hon. Elspeth: I'd have known that,
he thought they would be torn apart
by the Commonwealth. -: [Counsel Pumphrey] Exactly.
That's hard to say, the only one,
Vanessa and Christina I don't know for a fact,
but I believe had no criminal record whatsoever.
Reeksmi had, there was a...
I don't know what kind of record he had
but there were inconsistencies,
in his police reports for sure.
Hon. Scott: And Reeksmi only gets you up,
the first two shots, he doesn't give you--
-: [Counsel Pumphrey] That's exactly right.
Vanessa's the crucial one.
The Commonwealth's theory
was that the person who shot the first two shots,
was the same person as the shooter.
So Reeksmi definitely helps in that regard.
-: [Justice Wendlandt] Can I ask you a question,
just on the facts, was Vanessa saying that the defendant
was with her during the first two shots?
So that it woulda contradicted Reeksmi (indistinct).
-: No, he--
-: I thought she was saying
that she left the party with the defendant at midnight.
-: [Counsel Pumphrey] That's right,
but I think that that's after the first two shots,
it was a little confusing,
but Reeksmi was with the defendant,
standing in the parking lot,
for the first two shots, then Vanessa
and the defendant go, walk up the hill,
on the far left hand side
to the Cumberland Farms where Christina picked them up.
-: Is Reeksmi's testimony consistent with Vanessa's
on the first two shots?
-: [Counsel Pumphrey] Yes. -: It is, okay.
-: [Counsel Pumphrey] Yeah.
The motion judge found that
Attorney Davis had tactical reasons
for not calling these witnesses,
but I would suggest that reasoning is...
That the finding is clearly erroneous for one thing,
there's really very little evidence that supports them,
they would have made good witnesses.
They were credible,
they would have refuted all the other testimony,
which actually was not much
and it was certainly all over the place
and I would suggest that if you, if this court--
Hon. Scott: With that, Ms. Pumphrey,
if the testimony is all over the place,
is Mr. Davis making a bet that,
it's such a mess that, that's the best place to go here.
We have to evaluate that, right?
I haven't read, again
I haven't read all of these transcripts here,
but when we read them, is it gonna be a mess?
-: They are all over the place, the two that testified
that the shooter was standing in the middle of the hill.
That just wasn't the way it would have played out,
from Carmen Velasquez's testimony, the shooter was
and also the crime scene reconstruction,
the shooter was at the very top of the hill,
behind Carmen and the victim
and shooting sort of down towards, behind,
basically behind the victim,
because he was facing the party house
and she was facing North Street
and the crime scene reconstruction said that,
experts said that the shot went into his back,
from an upwards to a downwards,
which would put him behind and above.
So it's a little different.
-: [Justice Wendlandt] If that's an accurate representation
of the record before there was an opportunity
to put on to defense,
why was it manifestly unreasonable to just say, it's a mess.
You have to show beyond a reasonable doubt
and rely on that, as opposed to trying to put up an alibi,
which might have, some problems in terms of credibility,
especially with Reeksmi.
-: I would say that putting on no defense at all,
the witnesses would have testified
and refuted a lot of what was said.
It makes a whole lot of sense to have witnesses who testify,
that the defendant was not the shooter,
that he was someplace else.
-: [Justice Wendlandt] We're looking at that the test
is manifestly unreasonable,
to get beyond it's a 50, 50 shot.
You have to show that it's manifestly unreasonable,
why is it?
-: It's manifestly unreasonable test is a search basically
for the rationality in the decisions taking into account,
all the circumstances known
or that should have been known by counsel
and if you go to his notes, which are extent
not extensive, but the stipulation of the parties,
if you go to his notes, he tells you exactly what he knew
and these were important witnesses, and he knew it
and then he just failed to call them for--
-: Right, but counsel, the motion judge,
not only did he note that they were family members,
he also noted that Vanessa had a lack of memory
about the party and who was there,
that she told an investigator working for Attorney Davis,
that she rode with the defendant to the party,
but that conflicted with her testimony
at the motion hearing
and that Reeksmi's testimony, the defendant was next to him,
when the first set of shots went off
would conflict with the Vanessa's testimony,
that she was with the defendant after they left the party.
And it goes on, but it seems like to me,
that this seems that when you say,
the definition of something being manifestly and reasonable,
you look for the rationale that makes this okay.
This seems very legitimate to me.
-: [Counsel Pumphrey] I think that all Attorney Davis
knew before trial,
was what he learned from the witnesses' interviews.
That's what he knew and it was the language--
Hon. Elspeth: But do we measure?
Do we always measure everything with regard to
what the lawyer knew before the trial?
Or do we take into account
the lawyer within the lawyers file?
I mean, the investigator and all of those other things.
-: I think in this case, the attorney's file is important
because Attorney Davis had so little memory,
at the Rule 30 motion and the motion judge
really tried to get him back on the stand,
so he could ask him some of these questions
and he just was too sick to come.
So the file is important,
because it's exactly what he knew at the time of trial
and exactly why he made these decisions.
Hon. Elspeth: But there're reasons,
there're reasons for the decisions,
it sounds to me like you disagree with the reasons.
Justice Georges: Yeah, but he also goes second.
If he's gotta put on any evidence he goes second.
-: [Counsel Pumphrey] That's true.
Justice Georges: What you know before trial,
and after the Commonwealth puts on its case in chief,
really then may inform whether you really ought to do,
what you thought you should have done pretrial,
it's aqueous.
I'm just trying to find if you're saying,
that if your only shot is putting on witnesses
who have a variety of warts,
that would then be decimated on cross examination
and have absolutely zero credibility to the jury,
that it's manifestly unreasonable to not put these folks
on the stand anyway, is that what you're saying?
-: [Counsel Pumphrey] I am, because the warts
that you're describing, were not huge warts in my opinion,
they were just because they're family members.
They were, but they were credible
and just because there was slightly confused
which we know now, after we've heard their testimony
they were a little confused.
Justice Georges: Isn't it a pretty big wart
that she says she went to the party with him
and the sister of,
I don't know how to pronounce his last name, Rex May?
-: [Counsel Pumphrey] Reeksmi
Justice Georges: Said, "He's the shooter
and we all drove together and Vanessa was not in that car".
Isn't that a pretty big wart to then have to credit
that she was with him the entire time,
in a way left the party, isn't that a biggie,
a pretty big hurdle to overcome credibility-wise?
-: I would have thought
that Attorney Davis discussed the inconsistency with her.
He was excellent--
Hon. Scott: Definitely also,
Attorney Davis also asks her,
"Look I need somebody else at that timeframe", right?
He asked Vanessa to find somebody else who was with her
and the defendant as they went up the hill, right?
She doesn't get him anything, right?
Now so he--
-: [Counsel Pumphrey] You're talking about Christina.
Hon. Scott: No, I thought that Attorney Davis
asked Vanessa, said, "Look, it's very important
for us to find a non-family member,
who was going up that hill with you two".
-: [Counsel Pumphrey] I don't remember this, okay.
Hon. Scott: I thought that,
I may have made it up (chuckles),
but I thought it was in either the briefing
or in the motion judge's decision,
that Attorney Davis didn't just leave it to her.
He wanted sort of a test of...
-: My memory is that Attorney Davis asked
and I forget if it's Christina or Vanessa,
to find Reeksmi because--
Hon. Scott: That's a separate issue, I remember that one.
I believe there's a...
I believe that he made the point to Vanessa that,
"We wanna, we need somebody besides you".
-: [Counsel Pumphrey] I don't remember that,
but I'll look for it, okay.
The point of this with Reeksmi
and I think that this is important that counsel's reasoning
for not calling him really had nothing to do
with any of the conflicting police reports.
What he said was at the Rule 30 motion,
"I can say with absolute certainty
that I did not consider calling him as a witness,
because I did not think he was gonna testify
to anything useful".
When just before trial, he recognized
the importance of that testimony, for not calling him
because he was the one person who could say,
who could give him useful information
and it's manifestly unreasonable in my opinion.
Also,--
Hon. Scott: Can I ask?
The judge has sort of an extra prop,
it seemed unusual to me, the judge asks Attorney Davis
at the trial, "So you're not bringing in...?".
He presents that to Attorney Davis and then he says,
"Those two vicious, women prosecutors are gonna...".
It's not as if we sorta know the judge raises the issue
with him, isn't it clearly tactical at that point?
The judge is making sort of an unusual step
of asking him to articulate why he's not
presenting the witnesses.
Isn't that unusual?
Don't we give some credit to that in terms of,
whether we've got a tactical decision here.
-: I think with respect to Attorney Davis
at the Rule 30 hearing, he really remembered so--
Hon. Scott: I'm not talking about the Rule 30 hearing,
I'm talking about a trial.
-: [Counsel Pumphrey] A trial? Okay.
Hon. Scott: Doesn't the judge ask Attorney Davis,
"You're not bringing witnesses?"
I mean, the judge is--
-: Judge is giving them every opportunity, yes.
Hon. Scott: Giving him every opportunity,
but does that relate to whether,
Mr. Davis has made a tactical decision at that point,
the judge is like questioning him about it.
He says, "I don't wanna expose my w...
I don't wanna put these two women on the stand
and have them torn up". (Pumphrey chuckles)
-: I would just suggest
that the judge may be saying this,
because he thought that the witnesses should be called.
Attorney Davis has got these three witnesses there
and that he doesn't call them.
-: [Justice Wendlandt] Can you remind me, did the judge
ask the defendant as well (indistinct)?
-: [Counsel Pumphrey] The judge did ask the defendant as well
and there was a sort of a brief colloquy
and the defendant basically said,
his lawyer tells him, he's talked to his lawyer
and his lawyer says, "I don't wanna call him",
with respect to Reeksmi only Reeksmi.
The defendant did say that,
but the defendant is an uneducated young man,
who had really never been in trouble before, as my memory.
Importantly, after both with the motion judge
and defense counsel himself,
said that the defense counsel's decisions
may have been wrong in hindsight
and Attorney Davis says "A hindsight tells me that Reeksmi
should have been called, with respect to Vanessa.
If she had been with the defendant at any time,
when the shots were heard it would have been helpful
to the defense.
So basically he's saying--
Hon. Scott: You notice the word "if",
you just read out the word "if" in it.
-: [Counsel Pumphrey] That's right.
Hon. Scott: Odd formulation given...
-: [Counsel Pumphrey] Let me see if those were exact words.
He did say that, (chuckles) but I think there was, go ahead.
-: [Chief Justice Budd] Further questions?
Justice Georges: No, thank you chief.
-: [Chief Justice Budd] Thank you very much.
-: Thank you.
Counsel Carolyn: May it please the court
Carolyn Burbine, for the Commonwealth.
It's our position that defense counsel was not ineffective
for failing to call these witnesses,
and that the judge who reviewed it,
properly found that this was a tactical decision
and the record supports that.
We have Attorney Davis right on the record,
contemporaneously at the trial telling the judge,
"I'm not going to call any witnesses
in view of the testimony of the other witnesses,
to the effect that Mr. Key was observed along with others,
including the defendant near his car,
at the time of the first shots",
he didn't know what else he could bring to the table.
He also said he was reluctant
to expose him to the cross examination
from the prosecutors and calling them,
calling it vicious cross examination
by these two young ladies that, Judge Cosgrove recognized
that as an affectation of Mr. Davis,
but that doesn't mean that he wasn't concerned
about cross examination.
and then regarding Vanessa and Christina,
he said, "They will not be utilized,
because after hearing everything I've heard,
I don't think they will bring anything to the jury.
That would be helpful."
-: That's, I know hindsight's always better,
but I'm just trying to figure out again,
I haven't read this whole record, but if it's really damning
and we've got, when you've got a witness
who says, "I was there the whole time and he didn't do it",
it gets a little tricky not bringing that witness,
especially when you've sequestered them,
you've told everyone they're coming and...
Counsel Carolyn: Right. Well, if you see
he also said at the motion hearing
and he did struggle greatly, it was very sad,
but he said as Judge Cosgrove noted with great conviction,
if he decided not to call someone, he had a good reason--
-: That's just abit.
Can I ask, do we have any other evidence
whether Vanessa was at that party?
Counsel Carolyn: No, no -: Is it (indistinct)
to this record?
So we don't know--
-: I think that's important here,
she claimed she was at the party,
but then she testified at the motion hearing,
she didn't know the hostess,
she claimed to know a few people.
The record shows that Attorney Davis was concerned,
he asked her to give him the names
of some people she knew there,
which would show he was concerned about cross,
there's no indication she ever did.
No one testified at the trial that they saw her
and as Judge Cosgrove noted,
significantly at the motion hearing
when Reeksmi was asked if Vanessa was there,
he quote unquote, "Exhibited a rare moment of indecision".
That's what Judge Cosgrove noted and said he was not sure
and then he claimed that he thought she was,
but he didn't remember seeing her.
I think it's very important that...
There's a serious problem there
and then on top of that, we have
the fact that she has this very important information,
but she admitted she never went to the police,
never told the police any of this,
that's important. -: How about the exper--?
Counsel Carolyn: If you got alibi information,
to give it in a timely fashion.
Hon. Scott.: How about the expert issue,
we have sort of one witness,
who sees the defendant shoot the victim
and she's close by, but the other witnesses
are describing shooting from down the hill,
which can't be true.
So they're clearly wrong, right?
'Cause the five bullets are found,
the five shell casings are found
within five feet of the victim, right?
Wouldn't that have been helpful?
-: We have, if you look at Vanessa's,
are you talking about the Vanessa's testimony
in that regard?
Hon. Scott: No, no.
I'm talking about the expert witness on ballistics,
showing that the two people who said that they saw firing
from down the hill, are almost surely inaccurate--
-: We really only, when you read the transcript
you'll see that there was really only one,
who definitively said the defendant was in the middle
and that was Aaron and Attorney Davis
in his closing discredited Aaron,
by saying that, he wasn't a reliable witness,
he was a young kid--
-: (indistinct) An answer to Justice Kafker's question,
can you tell me how accurate was this expert
in his conclusions?
How much confidence was there?
Was he impeached on cross examination?
What happened?
-: Judge Cosgrove (rustles papers) found that Massey,
basically relied on all of the measurements by the police.
He didn't contradict the measurements,
didn't contradict the ballistician,
he opined that the victim and the shooter
and the gun were on the same plane.
Judge Cosgrove held that Massey didn't contradict
the heart of our case, which was Swoyer's testimony.
She had told the police,
obviously when it was fresh in her mind,
that she was was with Carmen and the victim
when they found each other on top of the hill,
that she started to walk down,
she heard the second set of shots,
she quickly turned around.
She saw the defendant shoot the victim
in the victim's right side.
Judge Cosgrove also noted
that at the time that the defendant fired,
she said that the defendant
and the victim were five to six feet apart--
Hon. Elspeth: Do we know how this distance was?
Do we have any measurement on the--
-: No.
There are two exhibits and as Judge Cosgrove noted
there is a 160 foot measurement,
but when you look at it, that is not
from the top of the hill to the bottom of the hill,
no one actually measured the hill itself
and you can see, that there's actually,
in one of these you can see that in one,
you have to look at both of them,
in conjunction, but there's (indistinct),
I'm sorry. -: The prime witness...
The prime witness, doesn't she,
at trial she says none of this is true, right?
She walked back everything, right?
Counsel Carolyn: Right.
Hon. Scott: So again, if the ballistician expert
could have undermined all the other IDs,
you're left with one person,
identifying the defendant who now has said,
"I didn't, it's not, none of it's true".
There's no value to that's...
-: I don't...
The measurement according to the defendant,
it's physically impossible for the defendant to the shooter,
unless he was at the top of the hill
and witnesses saw him in the middle.
I would dispute the account of Jayron, McNeil and
Daquan. Hon. Scott: But don't they,
they put them down the hill, right?
The only person, you've got hard evidence
that the guy shot at close range, right?
You got the five shells, unless the guy is a marksman,
he's nailed him from pretty far away.
So, I guess this ballistics evidence
seems to be fairly useful here,
because it could limit you to one eye person,
identifying the defendant as the shooter
and that person's walked back everything she said, so--
Counsel Carolyn: But she's walked it back,
because she said she's had conversations with her brother,
who is the defendant's friend
and then we have all of Reeksmi's problems as a witness
and it's biased. -: I'm just talking
about Carter, I thought she,
I understand she tells the cops earlier,
that, "He's the shooter, I was right there",
but then she completely recants
her testimony at trial, right?
-: Yes. Hon. Scott: Even though
she's facing a perjury conviction for doing so.
Counsel Carolyn: Right, but she's also said
that she's had multiple conversations with her brother
and we can see from Reeksmi's testimony
at the motion hearing,
what his issues with bias are, where he gave,
there are at least four instances that I cited,
where he gave different versions.
-: [Justice Wendlandt] What is the standard
for the new trial though?
Are you putting too much of a burden on this expert?
Doesn't it just have to be a real factor?
What is the standard?
-: The decision not to call him it has to have made
a difference, (rustling paper)
at the trial, it had to,
I just want--
-: You got an expert
that will undermine everybody else and --
-: But it has to be a substantial, sorry
substantial ground of defense.
It has to provide a substantial ground of defense,
or it was necessary to rebut critical expert testimony,
put on by the Commonwealth and as Judge Cosgrove found,
Massey's testimony didn't contradict
any of the police finding.
It's what the defense has tried to extrapolate from it,
that it's our position, it's erroneous.
Defense has tried to say, "He says it was 160 feet,
that's the measurement of the hill,
people who said he was in the, shooting was in the middle,
that had to be 80 feet".
That's not accurate on what Massey said,
or what the measurements were or what the exhibits show.
It's overstating, what he said
and basically if you take what he really said,
the meaningful stuff that he said it was
that the shooter and the victim were on the same plane
and that is supported by Swoyer's testimony
and I also dispute the characterization
of Jayron and Shaquan saying that,
it was the middle of the hill.
If you look at this transcript
and Judge Cosgrove also found this,
Jayron said he heard the second shots
when he was jumping a little hill,
he heard them like in the middle of a hill.
So he's not saying he saw anything,
he's saying that was his impression, he heard it.
He could not see where the victim or the shooter were.
Shaquan said he was beside Jayron,
he heard shots fired from behind him,
as they were about to jump a fence.
He's testified he didn't see the victim or the shooter.
He gave no opinion of whether it was
in the middle of the hill or elsewhere,
Aaron was the only one to testify to that
and then we have Swoyer who--
-: How many people, when we go through the transcript,
how many people saw the defendant with a gun?
How many witnesses?
And was anyone else spotted with a weapon, this thing?
Counsel Carolyn: There was no testimony
about a second weapon,
but the ballistician could not say definitively,
'cause no guns, gun or guns were recovered,
that there definitively had to be one weapon,
although he opined,
that the casings were all likely shot from the same gun,
he could not definitively say that.
I'd also point out no one, I'm sorry.
Carmen said you saw the gun in the van,
Jayron said he saw it when the defendant
lifted up his hoodie in the basement,
Carmen confirmed that encounter.
-: And the bullets are, are what?
I can't remember what caliber weapon this is.
Counsel Carolyn: They're all 380.
Hon. Scott: And was there any matching of the guns
spotted in the car as being consistent with that?
Counsel Carolyn: There was testimony that a small gun,
Carmen had described it as a little gun.
There was testimony that a little gun,
380 could be a little,
a gun that could fire 380 cartridges, could be a small gun.
Justice Georges: Counsel,
could I change gears for a second?
Counsel Carolyn: Yes your honor.
Could you talk to me a little bit
about the issue with the jurors?
Because the concern that I have here is,
the trial judge gets some indication
that it was more than just these three jurors
that were involved in this and yet,
there was only real inquiry done with those three folks,
but it seemed to suggest a couple of things:
One is that, that the discussion
about reasonable doubt the day before,
involved many more than just these three people.
And then the other concern that I have is,
even if you credit the two that were ultimately dismissed,
it would seem to suggest that maybe the foreperson
wasn't being completely forthright with the court,
about not only the involvement
or the encouragement to look into this,
but with all this going on, isn't this the,
why wasn't a mistrial, the appropriate remedy in this case?
-: The method of looking into this
is to question each of the jurors,
which the judge did, she followed the procedure
and what her job at that point is,
is to assess their capacity, to restart the deliberations
and reach a verdict independent of any extremist materials.
She's supposed to do an individual voir dire,
on the extent of the exposure
and the effect it had on each juror
and then she has to decide whether to declare a mistrial
or whether there's a last less drastic solution
and what she did was she called the foreperson in first
and the foreperson told her
that when she walked in the room,
she saw Burke writing the information,
foreperson told her she was uncomfortable with this,
told him that she was uncomfortable,
they need to tell the judge, court officer then came in--
Justice Georges: But this is that day,
this is the day of
when the court officer made this discovery.
I wanna go back to the day before,
Counsel Carolyn: Okay. -: because the information
seemed to suggest that this was prompted by,
the foreperson in discussions about this instruction,
amongst more than just these three folks,
that there seemed to be a suggestion
that it was more jurors than this,
that were part of this conversation.
-: Right.
The day before, but they haven't
I think it's important to note
that they have not yet begun discussing reasonable doubt,
they know that they're going to talk about it the next day.
They haven't begun talking about it,
they've been given the instructions and then,
(paper rustling)
there is a discussion about the next day.
Burke said, and he's the one
who's writing everything on the paper,
that no one else saw what he was writing.
She calls the foreperson in and the foreperson,
says she just saw the heading and the next thing,
then VanWarmer, who's another problematic juror,
she's the one who says, that the end of the prior day,
she suggested that the jury discuss reasonable doubt
the next day, she claims the foreperson suggested
that she look it up and that she went home
and did what she did.
The judge appropriately recalls the foreperson
and the foreperson acknowledges
that she told Burke when he said
he wanted to consult a legal search,
"If you go on and do that,
the source had better be the legal one",
but she said she didn't suggest everyone go and do it
and when she was asked,
if she suggested they look at dictionary,
she said, she didn't think that she had said that.
The judge explained why she didn't excuse the foreperson,
she said it was because she didn't exercise leadership,
that day before, she didn't handle it well the day before,
but while she didn't act correctly,
she didn't violate her oath.
When Burke came in,
which was actually gonna be the problematic time,
she did the right thing and sought to notify the judge
and that indicated to the judge
that she could carry out her duties responsibly
and then the judge had questioned her:
Can you follow my instructions?
Can you, in the future?
And the judge credited her testimony
and found that she was indifferent.
At that point, the credibility determination
is for the judge to make, when he's seen in her to witness.
Then you have to look at, what did everyone see?
And while they may have overheard that discussion,
only those two actually acted on it and looked up anything,
those were the offending jurors, they were dismissed.
Everyone else was asked what they had seen
and utmost the only thing they had seen,
was either reasonable or unreasonable doubt
on the top of the paper, they never saw the definition.
So that extraneous influence was limited to a title at most,
that would not warrant a mistrial.
The judge chose an appropriate remedy,
which was within her discretion
and that was to dismiss the two offending jurors,
after she had questioned everyone
and made sure that there in fact had not been,
any kind of taint on their ability to continue,
reformed with the new alternate starting fresh
and that would carry an error, any problem from it.
-: [Chief Justice Budd] Does anyone
have any further questions?
Justice Georges: No, thank you chief.
-: [Chief Justice Budd] Okay, thank you very much, counsel.
Counsel Carolyn: Thank you, your honors.
Man: All rise, (indistinct).