-: SJC 11386, Commonwealth Patrick Greer.
-: Attorney Capo.
-: Thank you so much, may it please the court,
my name is Rosemary Capo and I present Mr. Greer.
Today I'd like to talk about three different
issues in Mr. Greer's trial.
The first of which the jury, the problems in jury panel,
the next to which is the problems with the ID
and the third of which is the 33E review
which normally I don't ask the court for time for,
but I think in this case it's necessary.
So with respect first to the jury and panel issues,
I would ask this court to look very carefully
at Mr. Greer's sores, back and challenge.
What happened on the third day of impeachment
is that there were three African American
female jurors cleared.
All three of them were challenged by the Commonwealth.
The Commonwealth says in its opposition that we don't know
if there were other people in the veneer that were of color.
And my suggestion is I'm to Commonwealth versus Ortega.
If there was other people you would expect either that the
prosecutor would've pointed that out,
or the judge would've pointed that out.
So we have an entire day of jury and penal where the only
three African American women who are
cleared are challenged by the Commonwealth.
That in my opinion, meets Mr. Greer's primer fascia case
in the low burden of proving that
there is a pattern of exclusion.
What should have happened under those circumstances is that
the trial judge should have asked the prosecutor for a race
neutral reason for the exclusions.
Instead, the prosecutor, the judge who wasn't the prosecutor
in this case answered for the
Commonwealth and said essentially,
"I don't see a pattern as far as race is concerned."
I see a pattern as far as age is concerned,
and I've seen this pattern for every single
criminal case that I've ever sat on.
And I've seen it with every single prosecutor.
They excuse people for age.
And the problem with that is that the word
young jurors isn't defined anywhere.
And so in every single case,
young jurors become something different.
In this case, young jurors was anyone under 31.
In other cases, young jurors are 18 to 21,
but if you leave that young juror out there
with no explanation whatsoever,
it gives the Commonwealth the opportunity to use this type
of challenge, this challenge to age,
which they say is not a protected class
and use it as a backdoor way to get
around the bat and sues challenge.
So the problem with--
-: Just, okay, so we have a very experienced
trial judge, judge Fabricamp,
-: Absolutely.
-: And we have, what's the constitution of the jury
at this point, it's a very diverse jury according to--
-: Well, she says it's a very diverse jury.
-: And was she right?
-: I don't know because I wasn't there,
but what I know the record suggests is that after the judge
let the Commonwealth run jurors records,
there was one African American male who was
according to the defense attorney,
the only African American jury male on the panel
and his record was run and the
Commonwealth chose to challenge him.
So if they had a very diverse jury,
I don't know what it was made up of
because there's nothing in the record to suggest that.
But if this African American juror who was
challenged after his record was run,
wasn't the only African American juror who was sitting,
you would've expected the prosecutor
or somebody else to say something.
-: A lot of it's there.
I'm just trying to get, you know,
the facts that we can establish from this, which is again,
Mr. Wind's gonna get up there and say
there is a very diverse jury at this point.
Also, there is a consistent pattern
of striking young people.
Now this one person was 32.
I take it or 31. -: 31.
-: 31, but youth is not a protected category, right?
-: Not yet, I'm still trying.
-: You're still trying, but you keep losing, you know.
-: I'm not gonna give up.
-: Yep, I get it.
That's one of the reasons you're so successful,
but again, I don't see the basis here.
-: Well, the basis of--
-: Again, the basis for the particular challenge
you're talking about, that's quite an odd back
and forth with that juror, right?
-: Well, there were three jurors that day.
-: Well, I'm not talking about the three.
You said the African American male
who was, which was struck.
-: Who, when they ran his criminal record.
-: Quite an odd back and forth, isn't it?
-: Well, I think the juror was confused.
And I think it's confusing that
they're questioned about only one portion
of their jury questionnaire.
So to me, I don't understand why we believe jurors
when they say they've never been,
they've never worked for law enforcement.
We believe jurors when they say we've never been a witness
or a victim to a crime, but we disbelieve them
when we're talking about their criminal record.
And, that's another issue that I have in the brief
that, you know, I still think that Suffolk county
and no county should be able to,
not be able to run jurors records.
What we know about the practice of--
-: You want us to reverse cousins.
-: Yes, for a different reason though,
not for the reason in cousins.
So I think the reason here that you need to take
a look at it is now we have data that
suggests that black and brown people stopped war
proportionally more than any other subset of people in the
entire Commonwealth of Massachusetts.
If we know that, and we know that they're more
subject to arrests, then how are we using their
criminal records as a way to excuse them from jury duty.
It's a racist practice.
That's all there is to it, it's racist.
And we can't tolerate that in our criminal justice system.
Why do we only disbelieve people
when we talk about criminal records,
because we're talking about black and brown people
and we don't think they tell the truth.
That's the message that we're sending.
And that should not be the message any court is sending
to jurors who show up for jury duty.
And that's the absolute message we're sending
with running criminal records.
So why else are we running them?
They don't help me as a defense attorney,
they only help the Commonwealth.
And so if we look at the number of challenges that the
Commonwealth uses after running these criminal records,
we will see a distinct pattern of exercising
challenges to black and brown people.
Why are we giving them that opportunity when
we know that that's a racist practice.
-: The appeal in this case, I take your points.
The appeal in this case is what happened with this
particular juror and having been there
and done this impairment with you as you well know if you
have a juror, hopefully, and they have, you know,
dismissal, qu dismissal, and they come up and they say,
"Well, I didn't know it was a record,
they said it was dismissed."
Most judges, I think, brush it off and say,
"Yeah, they didn't know."
And we move on, but here we had an inquiry with a juror
that the judge found problematic, given comprehension
and given isn't that a reason to excuse this person?
-: I don't think so.
-: We gotta look at it in the judge's eyes
and what the judge found, not what you think.
-: I understand that, but I think when you realize that
jurors at sidebar are always nervous,
always nervous about interacting with the court.
-: So was the judge clearly erroneous?
-: I think the judge was clearly erroneous.
I think that the jurors said ultimately that
the juror could be fair and impartial.
And once the juror says that they could
be fair and impartial, why is the
judge second guessing that?
-: The trial counsel object to this?
-: No.
-: Okay--
-: Risk of miscarriage of justice.
-: Right, isn't that a sign that, you know--
-: No. -: The defense, it's not.
-: It's a sign that the trial attorney missed it.
That's what it's a sign of.
It's not a sign that it's not an error,
It clearly, it's an error.
Because in this case--
-: I know what I deemed it's error
but here, the issue is whether or not we accept
the judge's findings of fact and why they're clearly
erroneous where the defense attorney didn't
even recognize it as an error.
-: Right.
-: And you don't bring it as an ineffective
assistance claim, either.
-: Well, we were planning on bringing ineffective assistance
in motion as motion for new trial,
but this court ordered us to file the brief first.
There's an objection that I put on the record.
That's in the record, I think it's at number 34,
where I put on the record that I thought it was unfair
to force me to file the brief in this case
before the motion for a new trial.
So yes, there's gonna be a training trial.
-: How old is this case?
-: 2013 Is when I took over.
-: How old is the case?
-: I was a 2010 conviction.
The transcripts were ready, I believe in 2012,
and I took over in 2013.
And I can tell this court exactly,
if the court is wondering what I was doing
for those four years, I have a problem
with the facts In this case,
I have a problem with the way that the testimony came in.
I do not believe that Mr. Greer is guilty
and I want this court, and this is my 33E argument,
so I'll do it right now.
I would like this court to look very significantly
at the identification issue in this case.
Ms. Day's testimony makes no sense.
She's the one with the gun.
She's the one who says that my client ran from Linger street
down Washington street to Aspen wall street,
in front of the bank, in front of a million people,
tossed a gun to her from the middle of the street,
over to where she was on the corner.
Except when she testifies, she says, as soon as
she hears the shots, her and Lewis run
down Aspen wall street, that's what she says.
And so how can she be you running down Aspen wall street
with Mr. Lewis next to her,
if she's also supposed to be at the corner,
trying to get the gun from Mr. Greer.
-: When was that the subject of cross examination
or inquiry by the trial court, by the trial attorney,
in front of the jury?
-: Not to the extent that it was very effective.
I can tell you that.
-: But well, did it occur that this wasn't effective?
-: It did occur in some sense,
but not in the timeline that it should have.
And so I'm asking this court into 33E to look at that.
Because Day's testimony is that she was running
down Aspen wall with Lewis on her left hand side,
that they were both on the sidewalk,
Lewis disappears out of nowhere and then all of a sudden,
my client who has asthma catches up to her,
he has to run from Linger, down to Washington,
halfway down Aspen wall and according to where
the gun is actually, or the hat is actually found, she says,
she sees my client take off a hat and throw it next
to the parking lot, you know, where the bank is.
Except that's halfway down Aspen wall street.
None of it makes any sense, the testimony that she has
doesn't fit with the evidence.
And then when you look at the identification,
which I'm sure this court will, then I'd urge you
to look at the surveillance video,
cause this is what it is, okay.
You can't see anything from this surveillance video.
You can't make out a person, you can't tell who he is,
but somehow the Commonwealth, blew this up and said that
this person that was here was wearing this jacket
and committing this crime with a hat on.
Except when you look at the person that
they blew up, he has no hat on.
And so the theory has to be that my client had a hat on,
and then he took his hat off to do the shooting.
And then he put his hat back on to run down Washington
street and Aspen wall, and then took his
hat off when he saw Ms. Lewis.
-: He has gun powder on his jacket, right?
-: He has gun powder four months later
on the jacket, yes, he does.
Gun powder typically, as this court knows,
that the test should be done within four hours.
So either the Commonwealth Massachusetts got very,
very lucky or there was some sort of contamination.
But there are problems with this case judge.
And I just ask you to look at it
on 33E review, it doesn't make sense?
-: Can you take us through Divine's testimony
and the use of the arrows and such
and his opinion of identification.
-: Yeah, so his opinion of identification is that this,
you can tell from this still that they blow up.
That there is a C on the side of this person's jacket.
-: So, and forgive me if for not knowing the record
you obviously know it well and know it better,
but as far as the use of arrows, like what's
with that type of stuff, what happened here as far as
enhancements or arrows or direct testimony
that we prohibit as far as the police
officer given that opinion.
-: The police officer, it was detective Divan,
took the stand and said, I think on three
different occasions, that he and other members of his squad
reviewed the video numerous times,
several times, reviewed it.
I think at one point said to exhaustion.
And then he gave the jury the opinion
that this person who was here in the video,
who was blown up, he was focused on a C on his jacket,
which they claim this photo has a C on the jacket.
-: Did he say, look at this video, you can see the C or--
-: Yes, oh yeah, you can see, I was focused.
What he said was, I wasn't looking, cause someone asked him,
did the person have a hat on?
And he said, "Oh, I can't tell what the person has
a hat on him and you guys can look, he clearly doesn't."
And he says,
"I was focused on the C on the side of his jacket."
And then they put a big picture of the jacket, they say,
"Mr. Greer had, and they're saying it was a C
on the side of this jacket."
That's how they make the identification of Mr. Greer.
-: Did they do the thing with the arrows?
-: Yes, the arrows were in where the C was
and then in where the sea is on this.
Yes, they did that at this trial.
And you know, under Commonwealth versus Wandsworth,
we know that they can't do that,
they shouldn't have been able to make that claim,
that it was the same jacket.
-: And you know, some of the other cases we've had that
they they've given an opinion that,
that didn't happen in this case.
-: It did not, it did not, but it didn't have to.
because you're telling him that this is the jacket,
you're telling him it's the C.
It's almost like Commonwealth versus Williams where you're
identifying an object and you're telling them
that the object is the same.
You don't have to say the words and it's the defendant.
When clearly that's the inference.
And that's what the Commonwealth argues
in it's closing, it's there.
The identification is made because,
the strange thing about this case,
and again, we go back to the 33E argument,
is that none of the civilian witnesses
identified Mr. Greer as the shooter.
And they all had the opportunity to do it.
Betty Smith, who was right there,
she looked at a photo of Greer and said,
"That's not the guy I saw."
And in fact, she said,
"The guy I saw had a B on his hat,
not this hat that they say he had a pinwheel on it."
She said it wasn't the same.
And then if you go down to Lorraine Sanders, she says,
"I saw pants."
And they showed her the pants that they
said were Greer's pants and she says,
"They consistent, but that's not them,
it's not those pants, that's not the same thing."
And the third witness that miss Deborah McKenna,
who testified said that there was actually
a different man there, an additional man with a red jacket
who also ran down Aspen wall street.
And she doesn't identify Mr. Greer.
So the only identification they have is
through detective Divan, who says that all of
these arrows mean something significant.
And he looked at the video with all his
police officers a number of occasions.
He talked about the FBI helping them to bolster
his testimony about what happened in this case
and that's how the ID was made.
-: But he never says that the,
he never says this is the defense.
-: He doesn't, never says this is grant.
No, he doesn't use those words your honor.
-: And by the FBI helping with the enhancement of photograph.
-: Enhancement of photographs talked about at the time Green
worked for the FBI, talked all about Green and what
he could do and how they needed the FBI's help
and that's what they did in this case.
That's essentially how they identified my client as a person
who they said was involved.
Just one other issue, I know I'm running out of time
that I'd like to get to and that is the instructions
the jury to disregard their life
experiences when they're serving jury duty.
-: I read those instructions.
It seemed like the instructions that
just about every judge gives and I think
you've taken them outta context, but go ahead.
-: I disagree judge.
So first of all, and most respectfully,
most respectfully, I disagree.
-: Disagreement's fine.
-: So there are three different, so the Commonwealth
says in their brief that in this case,
it only happened on one day, that's just not true.
So I wanna point the court to the three days of jury
impairment and the three days that she makes
the same exact statement.
So on day one, and just so the court knows,
there are two volumes, one is June 1st, and one is June 2nd.
They both say volume one, but they're two
different days of trial testing.
-: This is during like the instructions,
the preliminary instructions to the jury,
which judge fabric says these things, right?
-: She tells them essentially to,
if they've had any experiences to leave them outside
and not bring them into their deliberations.
Any life experiences, any other experiences.
And, you know, that's pretty in instruction
as far as the jury is concerned, I think that
that's pretty limiting.
And I think the court has already said
in cases like this, that you can't ask the jurors
to leave their experiences at the door.
In fact, that's why we have a diverse jury
to have all of the different experiences.
But let me just get back to the three different occasions,
cause the common brief said there's only one.
So on day one, which I named June 1st, it is volume,
it says volume one page 38, on June 2nd,
which they also say is day one, it's page 15,
and on day three, it's page 24.
So those are the three different places in which all three
panels got the same instruction.
And the instruction essentially was, when talking about
whether or not they could be fair and impartial,
that they should leave their experiences,
If they've had any experiences,
they should put it aside and put their life experiences
and their beliefs in order to serve.
That's erroneous, and I agree that there was no objection
by the trial attorney again, but to all three panels,
the judge asked them to put away,
put aside their life experiences and
their beliefs in order to serve.
What do you have left if you don't have
your life experiences and your beliefs?
Well, how do you decide the case?
And she said, decide the case based only
on the evidence that you hear in this courtroom.
And that's pretty powerful instruction for a judge
to give a juror before they get imputed in this case.
And if we are to believe that the jurors follow
the judge's instructions, there was no
other instruction that told them differently.
They were told to, in order to serve,
that to put their life experiences and their beliefs aside.
And this court has already said that that's improper,
that that no judge should be in instructing any jurors to
put their life experience in their beliefs
aside so that they can decide cases.
In fact, it's the exact opposite.
-: Didn't she say being fair and impartial
doesn't necessarily require that you've never heard anything
or read anything or had any experience opinions
of views that might in some way be relevant?
-: Yes, she said that statement.
-: There are probably a lot of people
who wouldn't fit this description.
-: Yes.
-: Okay, so does it?
-: And then she goes on to say,
write that next line where she says,
"Put your life experiences in your beliefs aside."
That's the problem, I don't have the problem
with her saying not everyone fits that, that's no problem.
Any judge can say that to a jury.
But when you say to all three panels,
put your life experiences and your beliefs aside
in order to serve, that's the exact opposite
of what we want jurors to do.
We want jurors to bring their life
experiences into the courtroom.
We want jurors to bring their beliefs into the courtroom.
That's how we get a diverse jury.
And so if jurors believed that they couldn't put
their life experiences or beliefs aside,
then they believe they couldn't serve jury duty.
-: But we also want them to focus on the evidence
and put aside any personal biases and
things of that nature, right?
-: We do, and so when you say personal biases,
I think that's what makes the difference, judge.
When you talk about personal biases, in other words,
the question that always asks in Suffolk county,
would you believe the testimony, believe a disbelieve,
the testimony of police officer
simply because he's a police officer?
There are a lot of jurors who are raise their hand and say,
"I had experiences with the police and I don't know
that I can be fair impartial."
Clearly that juror has to be excused because
he had personal experiences that made him biased.
That's not what this instruction says.
This is a general instruction saying,
"Put aside your life experiences and your beliefs."
That's the difference.
Not that it's personal to you, but your
life experience and beliefs.
-: They are personal to the juror, inherently.
-: But, you're telling them don't use them
in deciding this case.
That's what you're telling them.
That you're precluded from using them and
you're limited to only using the--
-: She also gives the standard instructions
about reasonable inferences and common sense, right?
The, you know, I don't know.
It's quite different from the case that you're relying on
where there's a back and forth with a juror where she says,
"Look, you know, based on my experience
as a juvenile expert, you know,
I really think people are unfair to,
you know, minority use."
That's a different exchange than this one
which is just sort of preliminary, you know,
instructing to focus on the evidence.
I mean, this isn't really reversible issue, is it?
-: I may not answer cause I know I'm out of time.
-: Yes. -: Thank you, I believe it is.
And the reason I believe it is,
is because we don't know that there was
no individual call with these jurors.
We don't know which jurors believed the judge
when she gave this instruction and followed it.
-: We do have three jurors who raised issues
surrounding this instruction, correct?
-: There were three jurors that responded to
the life experiences and beliefs, yes.
We do have that judge, but we don't know what other jurors,
if they just follow the judge's instruction.
She said, leave it aside, I'm gonna leave it aside
and I'm gonna decide this case based only in
the evidence I hear in the courtroom.
-: Objection though, came to the panels, right?
-: It did at three different panels.
-: It wasn't repeated in the final charge that way?
-: It was not repeated in the final charge, no.
But we don't know who believed it
and who abided by it because--
-: We don't know that, do we?
I'm sorry of these instructions,
I never know who's listening.
-: I think this court assumes that the jury believe,
follows the judge's instructions.
And so if the jury follow the instructions in this case,
it's reversible error and Mr. Greer should get a new trial.
And if there are no other questions,
I know I'm out of time, I've asked that this court
look very seriously at the 33E issue and I'd ask the court
to reverse Mr. Greer's conviction, thank you.
-: Thank you, attorney Lynn.
-: Good morning your honors.
May I please the court Paul Lynn for the Commonwealth.
I too would like to start with with the Bat and sores issue.
When the defendant raised this, excuse me,
I'm vaccinated, sorry.
When the defendant raised this Batson Sores challenge,
on the third day of trial,
the judge did exactly what she was supposed to do under
Jones and she looked at those factors
that are set out in Jones.
The first thing she asked was, was there and apparent race
neutral reason on the record for these challenges.
And she found, yes, there is.
-: Was this before Issa or after Issa.
-: This was before Issa, this was three years before Issa.
So she looks at the Jones factors, she asks,
"Is there an apparent race, neutral reason on the record?
And she concludes yes, there is.
The prosecutor has been challenging young people.
She then asked the next question, which is,
"Has the prosecutor been applying this consistently
to both black and white jurors?"
Concludes, yes, he has.
Looks at, she looks at whether the prosecutor
has challenged a disproportionate number of the jurors
and she finds there's no evidence of that.
There were dozens, I counted 57 jurors that were cleared
by the judge that were up for peremptory challenges.
So almost 60 jurors.
And we have a record of three of
those challenged by the prosecutor.
So the judge was well within her discretion to say,
"No, there's no pattern of discrimination here."
-: But we don't know how many black women were in the jury."
-: We do not, we do not.
But that's because there was no record made.
That's the problem here.
The jurors, the judge does say,
"We have a very diverse juror."
And I wanna point out one thing regarding the conversation.
-: But we we've said that's problematic before
we've said we've got enough, isn't isn't an answer, right?
You have to look at the permit challenges before you.
-: Oh, absolutely, yes, that's the Sanchez decision.
You can't just say it was a adverse jury
therefore that's the end of the argument,
but that's not the idea.
-: There's about three cases that say that.
-: Yes, and, but the caveat that this court
has said ever since Sanchez is they will say,
"Also the judge noted that there were other
minorities on the jury."
Which is not in itself enough to justify a peremptory
challenge or to foreclose the inquiry into
peremptory challenge, but it's still a relevant factor.
-: And I know, I'm sorry, this is obviously,
and you answered it, this is before Issa,
but is it a problem when it's the judge
that's applies the race neutral reason
as opposed to asking the Commonwealth to do so.
-: Absolutely not, the Jones factor is explicitly
set out that the judge should consider this.
It's also the there's plenty of case I say
the judge can raise and conduct bats
and source inquiry sua sponte.
-: Yeah, but we have a challenge.
It wasn't like the judge, the defense attorney
did make the sua challenge, bat and source challenge, right?
-: Yes, the judge, excuse me, defense counsel did make
the bats and source challenge.
-: And I think the point that Ms. Capo is raising is,
it's why is it that the judge that comes up
with the race reasons as opposed to making
a Commonwealth come up with those reasons?
-: Because under Jones, certainly before Issa,
it's not until Issa that this court ever says,
the jury should think, the judge should think long and hard
before she doesn't ask for an
explanation from the prosecutor.
Here, the judge has been watching the
entire parliament process, over three days.
And she says,
"I immediately noticed that the prosecutor
was challenging young people."
That happens in every case I've ever seen.
He's challenging young people, there's just no evidence.
-: What about the age 31 problem?
-: Well, there's two things about the age 31, first is,
there's no showing on the record that there
was anyone younger than 31 on the jury.
In fact, defense counsel complained that the prosecutor
was stalking the bench with middle aged people,
or is not the bench--
-: That seems like quite a stretch to say
that someone is 31 is a young juror.
-: True your honor, but what you end up with
then is one challenge out of 57.
And the defendant does have the initial burden
to show that this was not a proper challenge.
The presumption is that this was a proper challenge.
So over three days you have 57 jurors.
You have 15 peremptory challenges by the prosecutor,
16 by defense counsel.
-: Where do we go if we think that the judgment
and error by saying the 31 year old juror is a young juror.
-: No, the judge never said that.
-: I thought the judge said that the reason why we
don't need to inquire, there's no pattern
because the 31 year old is a young juror.
-: No, she never says that, she says,
"There's a pattern, the pattern is he's
been challenging young jurors.
She is referring there to the fact that the prosecutor
has challenged three African American jurors that day.
-: And maybe I'm maybe I'm confused,
I thought the 31 year old is one of
the ones that are at issue.
-: That is correct, but the judge never says,
"Oh, 31 is young."
She's she is saying, I don't see any evidence
of a pattern here,
I see a pattern of challenging young people,
which is entirely proper.
I don't see any pattern.
-: Normally those people are college students
and all the headaches that are caused
by picking college students, right?
-: Yes, no, there's no question.
This is not a particularly--
-: Race and sex for a minute,
which are the protected classes, right?
Race sex are protected classes.
Those are the ones that are recognized
under bats and sources, age isn't, correct?
-: Correct.
-: And neither is a diverse jury because
we don't know what that means,
or minorities that could mean many things
that are not necessarily protected by bats and sores.
-: Correct.
-: So, but when we take race and
we take sex, we put them together.
We have a pattern of race and sex, which is a unique status.
It's two statuses, but they're combined.
And why does that not create the pattern
that we're concerned about?
-: You'll gimme half a second here.
I can find the exact case that I'm looking for here.
It's Henderson, it's the most recent case.
In that case, the prosecutor, there was a record
that the prosecutor struck three of 12
black people into an ire.
-: But do we know were they male or female in that case?
-: We don't know if they're male or female
but the point is here, you have under the
best case scenario for the defense,
you have three jurors out of 15 that
we're a member of protected class.
And we can say that it's, yes,
you can say that protected class is black women,
although that's not, well, I won't say that.
The defense council does raise that, I can say that.
So you have three out of 15 or three out of 57,
depending how you're looking at it.
There is no evidence whatsoever that the prosecutor in this
case challenged a disproportionate number of jurors.
So you have these two jurors on the
third day who are admittedly young.
So they're, they fall under this
umbrella of the young juror.
One challenge -: Pick out the race issue.
-: But hold on, we finish on the three
young people for a second.
Just to clarify, so two of them
are young and one's 31, right?
-: Right.
-: 31 getting younger every year for me, but.
-: Yes, and me too, your honor.
-: But that is a little odd.
-: You're saying that the judge basically said the 31 year
old female is the stand alone and
the judge is saying, there's no pattern.
-: Exactly.
-: The only pattern I see is young people, right?
So the challenge of the 31 year old could
have been 42 years old, it doesn't matter,
that's what you're saying.
-: Right, it certainly is better for the cam well
that she was 31 and not 51, but yes, absolutely.
What matters is that there's no showing of a pattern.
You can't just cherry pick the morning of the third day.
You have to look at the entire entitlement.
And the judges, the judges, the question
in an abusive discretion, even under bats and sore
is not whether this court would have--
-: I don't remember the names of the cases off him,
but we go back to the other cases where we've said,
judges get in trouble, even Prensa,
cause these cases are old and pre Sanchez of course.
Judges get in trouble when they start basically
looking at the jury composition and saying, ah, good enough.
-: I would disagree with that, your honor.
I think before, at least before Issa and before Sanchez,
there is a ruling by this court.
There's a settled law by this court that the judge does not
have discretion to even ask the prosecutor
until the defendant has met the first prong
of the bat and source challenge that
has changed since the trial.
So the judge here is acting entirely properly under the law
at the time she's looking at the John's factor,
she's looking at all of them.
-: But these are constitutional rights.
-: Oh absolutely, the right to--
-: Right, so I don't know, I mean it was obviously
probably unfair of, you know, well maybe not,
but the law, our, our bat and sources
law has changed dramatically.
-: Correct, I would not say it has
changed certainly, but it's--
-: The fabric, fairness was fallen previous a law.
-: Correct, the judges--
-: But that hasn't been a refuge for some
judges who've been reversed.
-: Yes, I agree with that.
But you're looking at the right that has existed since 1979
in this Commonwealth is the right to a jury
that represents a cross section of the community.
The defendant has always had a right not to have challenges.
-: We've never said in instance in all those other cases
that this is prospective.
-: No, but this is--
-: Is interpreted a constitutional right.
-: Correct, but you have still said that
it's a matter of the judge's discretion.
If I might find that.
-: Are you saying that here, judge Fabricant does two things.
One may be more problematic than the other,
but the first one she says is the
only pattern I see is youth.
-: Correct.
-: And then she also says the jury
before me is a diverse jury.
-: Correct, there's nothing is.
-: Is the combination helpful for her?
Meaning if she just said, this is a diverse jury,
that's a no-no for the reasons we've said later, which is,
you know, you don't get to stop doing that.
You don't stop considering whether the jury
is diverse once you have a certain number,
but she also says the only pattern I see is this.
And that seems to be different from the
cases where we've reversed.
-: I agree 100% what she's doing, as I said,
the first words out of my mouth today
is she is going through those Joan's factors,
which is exactly what she's supposed to do.
And I would point out one thing on the record.
-: But before you do that, can I just ask you,
isn't the point though, of this, not just
the defendant's rights, but the jurors
rights to be on the jury?
-: Yes, yes the jurors are entitled.
-: So if you have a subset of jurors that are members of two
protected classes that are excluded
and it's their rights that we're concerned about,
what difference does the diverse jury make?
-: It's just one of the factors.
It shows that the prosecutor is some evidence.
It is not conclusive evidence,
which of course that would open the door to prosecutors
leaving one black person on the jury
and challenging everyone else.
But it is one factor among many that
shows that the prosecutor is not in fact
using peremptory challenges to prevent
people of protected classes from serving on the jury.
-: And now is one of the Commonwealths is the key witness,
I forget her name.
-: Mrs. Day, yes, or Ms. Day, yes.
-: She was important to the Commonwealth.
She was testifying under an agreement.
-: Correct.
-: Was she a black woman?
-: She was, yes.
-: So is there some suggestion there that
excluding black women from the jury
has some effect on the juror's perception of the witness?
-: That's a tough question to answer,
cause there's about three answers,
three different parts to the answer.
But the first question, the first answer is
if the prosecutor, if the defendant doesn't show
that the prosecutor is challenging jurors
based on their race or sex or a combination thereof,
that's the end of the inquiry.
But yes, of course that's why we have diverse juries.
Is so that people will consider the, you know,
the different perspectives that they have.
But that also is further evidence that the prosecutor was
not using these appropriate
challenges for race based reasons.
Cause he would want people who were sympathetic
to our young black female key witness.
to be on the juror.
There there's no reason why he would want
to exclude black women from this jury.
So the judge goes through the Jones factor,
she finds that most of the Jones factors--
-: We go through this record, Mr. Lynn,
are we gonna be justice Cypress says,
"Look, we've identified when we have the nexus
between a black person and a woman."
So we have a black woman that is a protected category.
-: Correct?
-: We're not gonna be able when we go through
this record to evaluate how other black women were treated.
-: Not at all, there's no record of that.
I would just point out for the record that when
the court is examining juror 89, who's
the black male who's ultimately stricken who
had the trouble answering the questions.
He starts by saying he's only one of only
two black males on the jury.
And then later in that same paragraph, he says,
"He's the only black juror on the panel."
So it's very ambiguous what he means.
The judge doesn't address that because the judge says,
"That doesn't matter, we're here to determine
the qualifications of this particular juror
and that I'll segue just very quickly to that issue.
Even defense counsel on page 53 of volume three,
who is advocating to keep this juror on the jury says,
"He had some trouble answering the questions."
Prosecutor says that the judge says that
and even defense counsel says that.
It's pretty clear on the record but it probably
was even clearer in person.
So the judge acted well in her discretion by dismissing.
-: Can you address the use of the identification
articles are calling and whether
or not they are vein, right?
-: Sorry, missed that.
-: Is detective Divan,
-: I'm not sure.
-: Divan, anyway, it's.
-: I think divine anyway.
But is it the functional equivalent of saying
that this is the guy, when you say,
look at the champion logo and here's the jacket we've
got the guy wearing and it's a champion
jacket fill in the blanks.
Why can't you just put the photographs up?
Why do you need the police officer to say,
"Hey, look here."
If the photographs are what tells the story.
-: Right, and that is largely what the prosecutor did.
-: But I mean, obviously I know it's trial advocacy,
but you could have put the surveillance photograph up
and you could have put the photograph
in the closing argument.
The prosecutors pointed to the champion logo,
pointed the champion logo.
-: Yes, and that's important to you.
-: Why does the police officer do that?
-: Well, the police officer just says, as my sister admitted,
"I was focused on the C on his jacket."
The prosecutor, because I think this was pre words worth
actually tries to ask the detective,
"And did that appear to be the same jacket?"
And the judge Stuart credit says,
"Objection, sustained, you can't say that."
And that's distinction, you can certainly put
up the picture of the jacket, we could have zeroed in,
take another picture that zeroed in on that C but instead,
we introduced a photo that had one red arrow, by the way,
this is not Alice's restaurant.
They're not circles and arrows describing each one.
There's a single red arrow pointing.
And I'm not, I'm not trying, I don't mean to be harsh here,
but I'm not sure what my sister was showing
the jury cause the exhibits are missing.
We're trying very hard to track them down.
And if not to recreate what was there.
But as best as we can tell,
it's a photograph based on our records, it's a photograph
of the single red arrow pointing to the C.
That's all it is.
And then there's the jacket.
I am reasonably certain that the, although again,
we don't have the exhibits, but I believe that the,
photo of the jacket itself, the one we know
is the defendant's jacket does not
have a corresponding arrow off.
It's just the jacket.
-: So I'm confused when we do our 33 here,
we're not gonna have the exhibits.
-: Correct, and that's, I--
-: So what is Ms. Capo showing us then?
-: I wish I knew.
We have photographs, we have hundreds of photographs.
It's the digital age.
What we don't have definitive way to determine which
photographs were actually admitted in evidence.
I think we would need attorney Artfela
or at least somebody who was involved in the trial custody.
And yes, I think that's something that should be done.
-: Do we know why?
-: Why, what?
-: Why we're handicapped in this manner?
-: I don't know, I have talked to the clerk's office,
I have talked to our keeper of records.
It appears that after the trial,
the exhibits went directly to the clerk's office.
They're not there now, or they're not where they're--
-: This isn't a co-defendant case, right?
Whether they were used again?
-: No, there's no co-defendant in the case.
-: So I'm just trying to, how are we,
cause we are going to go back to our offices
and start writing this case.
Are you working on solving this problem or trying to,
what are we gonna do here on this?
-: I think we need, if you are concerned with the--
-: We have a statutory duty to do so.
-: Not only are we concerned, it's our job.
-: I think we need to get together with the defense
and see if we can figure out.
Cause I think the photos that as far as I could see
from an angle appear to be the photos
that we think were admitted in evidence.
So I don't think it's gonna be that hard to determine.
-: Is there a surveillance video?
-: There is surveillance video.
-: The speech says yes.
She's not, she's not.
-: Yeah, I believe the video, I'm not sure,
I'm not gonna say cause I really don't remember
and also that's not part of the record.
-: Well, you'll be hearing from us.
-: Yeah, and I welcome that cause it's,
yeah, it's something we ought to do.
You should see cause of my sister's 33E argument,
when you see that photograph, you will see a C
that looks exactly like the C on the defendant.
-: Attorney Lynn, what about the fact that,
well the defendant conceded that the still images
from the surveillance video depicted him and Day, correct?
-: Correct.
-: So we do have that in the record.
-: That's at a different point than the incident, correct?
-: Well, it's leading up to the minutes,
minutes immediately prior to the incident.
I see my time is up, does the court
have any further questions?
-: We are all set, thank you.
-: The Commonwealth of otherwise rest
on its brief, thank you.