-: SJC-11575, Commonwealth versus Da Lin Huang.
-: Okay.
Good morning, Ms. Baronoff.
-: Good morning.
May it please the Court.
Susan Baronoff representing Da Lin Huang on his appeal
from his conviction of first degree murder
of his wife, Gin Hua Xu, and from the denial of his motion
for new trial and reduction of verdict.
I'll focus this morning on the two arguments
that were first and last in my briefs.
That is, that the trial judge's rejection
of defense counsel's Batson/Soares objection
to the prosecutor's challenge of a seventh male juror
was structural error and that a sentence of life in prison
without parole on an intellectually disabled person
like Mr. Huang is unconstitutional.
I would be happy to answer questions
about other rulings or actions of the case.
-: Can I start on the facts of the first one?
So my understanding, there's 25 indifferent jurors,
14 men, 11 women.
Seven men are, the Commonwealth exercises peremptories on
and eight women, is that, I mean, excuse me, three women,
is that right?
-: Two out of 11 indifferent.
-: So it's two out of 11, not three.
Susan: Jurors.
-: On the women, okay.
All right.
Kind of hard to do this on man-woman.
You know, it's a little tricky and it's also 10 years ago
when the judge does this before some of the
more subtle distinctions that we've drawn come out, right?
-: Well, let me get right to the Batson/Soares issue,
and some of the questions you seem to be raising.
Yes, this case was tried in 2010, but the governing law
really had its genesis in Batson and Soares,
and the more recent cases clarified
what was always required, and these cases are not
just a numbers game.
The numbers can be significant and they were in this case,
but there are other factors that need to be considered,
and our position is that this is unfortunately another case
from Suffolk County in which there was
a Batson/Soares objection, and the trial judge
didn't move past the first stage, didn't require
the prosecutor to give an explanation for the challenge,
and here, of course, the objection was not based
on race discrimination as in many of the cases,
but on gender discrimination, and the court has repeatedly
reiterated, and this has been a through line back to Batson,
that the bar for showing a prima facie case
of discrimination is very low, and that bar was met here
in a number of ways.
The numbers are significant.
It's not just that this was the seventh
peremptory challenge of a male juror.
The defense counsel said it was the seventh
out of 10 challenges, I count seven out of nine,
but in any event it's clear, it was the seventh challenge.
So at least 70% of the peremptory challenges
were exercised against male jurors, but it's not just that.
-: I thought it was seven,
I thought it was seven out of 14, is that wrong?
Susan: Pardon me?
-: I thought it was seven out of,
he challenged seven out of 14 males.
-: He checked, out of all of his peremptory challenges,
seven were of men.
Kafker: Right, but there were 14.
-: But of the indifferent jurors, seven out of 14 juror,
jurors who are male were challenged.
So that was, so then I think we look at the disparity
in the strike rate and the strike rate
for male jurors. Wendlandt: So counselor,
how does that,
counsel, can you explain to me,
what is the denominator we use?
Is it? -: I'm sorry?
-: What is the denominator we, that is relevant?
Is it the seven out of 14 or the seven out of 10?
-: I think most relevant is the seven out of 14
and the two out of 11, the strike rates.
-: So seven out of 14, he, he strikes half.
-: That's 50 of the, of the indifferent male jurors,
but of the indifferent female jurors,
two out of 11 were struck, so that was 18%.
So that's a disparity in the strike rate
and maybe not as great as in some cases
like Hamilton and Butler, but significant nonetheless,
and I think it's important that that was not
the only factor that contributed to the establishment
of the prima facie case.
We also have in this case the situation where the defendant,
a man, was in the same protected class as the juror
whose peremptory challenge was disputed, another man,
and the court has said in several cases that this is
a significant factor among those factors
that have to be considered.
We also have the fact that this was unfortunately
a domestic violence case, a case in which a man is charged
with killing his wife, and that's the kind of case
in which courts can anticipate and have seen on occasion,
on more than one occasion, that there may be a preference
for male jurors and furthermore.
-: You mean a preference for female jurors?
-: Yes, I'm sorry, preference for female jurors.
I misspoke, and then furthermore, we have.
-: So this is really a mental health case.
It's not a who done it case or it's,
does that change the analysis?
-: I don't think so.
It, it's, it's still a case where a man
has killed a woman and.
-: But it's not a case where we're deciding
who's telling the truth about what happened there.
We're, it's a case in which we're deciding whether
there's some kind of justification
related to his mental health, right?
I mean.
-: That's true, but there's still a concern
that the prosecutor might feel that
a man's defense might resonate more with a male juror.
-: Well, let, put that premise aside just for a moment,
I'd like to get back to it if we could, but here,
the, the, the, the problem here in your view,
it's not that seven out of 14 males,
peremptory challenges occurred.
It's the differential, because that wouldn't really
be unusual with half of a particular gender.
It's the differential between that and the females
were peremptory challenges were used, is that right?
Because seven out of 14 males, that,
that doesn't strike me as, wow.
-: The situation can be somewhat different when we're talking
about gender discrimination, rather than discrimination
against a smaller minority, such as African-Americans.
Lowy: But that's my point.
-: But you have to look at the composition of the venire
and especially of who you have in terms of
indifferent jurors and then you, I think,
have to look at the strike rate,
that that is that a significant,
but so are the other factors, and then the.
-: But when you have, you know, this is a life felony.
When you have a 50% strike rate when you're dealing
with gender and you're dealing with a prosecutor
who probably had 32 peremptory challenge,
probably had 16 pre-entry challenges, excuse me,
it doesn't strike you on its face as that unusual.
I mean, I understand your point can,
when you want to do a comparison to two,
to the strike rate with, with females, but on its face,
the seven out of 14, does that, does that strike you
as wow, that, that, that looks like
your concern with 16 peremptories?
-: I think if that were all we had, that would not be enough,
but that's not all we have, and I think the other
very significant aspect of this case was that.
-: Can I ask the Court, is there ever,
is there a case you can cite that doesn't have,
it's just a pure man-woman case where the defendant
and the victim are the same race and, any cases like this,
or is this the first time we'd ever do this?
-: I think every case is a bit different in terms
of the, in terms of the.
-: I'm just looking for something, I'm just looking for
something close, something close that just involves again,
we've got the victim and the defendant are of the same race,
or at least nationality, and it's a pure man-woman case,
'cause I, it just strikes me that we're entering
into even more problematic territory.
Is there a case in any state
where someone's done this or here?
-: Well, if I understand the Court,
you're more troubled with race discrimination.
-: I'm looking for a case that's close.
Just give me a case in which we've, some court has decided
that this is a peremptory challenge problem.
I'm accepting your statistics.
-: The implication seems to be the gender discrimination
is somehow less of a concern. -: No, I'm not.
All I'm looking for is support.
Give me the best case that supports your position,
where we're not dealing with this intersection
of different races or other things.
I'm just, I'm curious.
-: Well, I think that the Butler case, which was
the unpublished Appeals Court case,
is a gender discrimination case and there is a disparity
in the strike rate there, and then there are other cases
that the Court has decided, this Court has decided,
such as, I think it's O-BER-LEE or O-BERL,
I can't remember, I don't know the exact pronunciation,
which involved gender discrimination in jury selection.
Sometimes these cases, including within Massachusetts,
proceed beyond stage one, but nevertheless,
there's a clear indication that there's
gender discrimination at work in peremptory challenges.
I hope that answered the question.
-: If I'm writing a decision ruling for you,
I still don't have a case.
I have a 128 from the Appeals Court,
but I don't have anything on point 'cause,
just 'cause of the problems with, you know, just, you know,
50% of the jurors are likely to be men or women,
and this has the potential to be sort of, you know,
difficult to do, because if, depending on how many people
come out first and other things, I don't know, I just,
I worry that this is taking us into an area
of where statistics may not be very useful.
-: Well, as I say, I don't think statistics
are all that we have here, and the other striking thing
about this case is that the judge just focused exclusively
on the composition of the jury at that point,
and at the point at which the disputed peremptory
was challenged, was made, the dispute was joined,
there were six men and four women on the jury and she just,
and the judge has focused on that, and that is the kind
of mistake that led to reversal in Carter and Sanchez.
Granted, those were race discrimination cases,
but the Court can't fall into this notion that, well,
if there are, you know, enough men on the jury,
then there wouldn't have been discrimination of the sort
that is unlawful because I think as this Court has said,
and the Supreme Court has said, the discriminatory challenge
of even one juror is constitutionally unacceptable.
So here we have a case where the judge applied
the wrong standard, just focused like a laser
on the composition of the jury,
and didn't consider the other factors,
which are required to be considered.
-: I'd like to shift to your second art,
your second focal point, which is the,
the intellectually disabled issue.
Do we have enough here?
I mean, even in the motion for new trial filing,
he, he still exceeds the threshold, doesn't he?
He's still above 70, right?
-: Well, Dr. Holtzen, who did the examination at Bridgewater
in 2004, put him in a range of 62 to 78
with a midpoint of 70, which would satisfy
the usual cutoff for intellectual disability.
So that in and of itself, I think, puts the first factor
of limited, significant limitation
on intellectual functioning, in play.
-: Now, in the motion for, I can't remember,
does the expert in the motion for new trial
say that the first person has employed the wrong tests,
given that he's Chinese and there are language barriers,
as well as other barriers here?
He moves to the fourth version of this test,
as opposed to the third version, right?
-: Well, the person who did the post-conviction evaluation
was Dr. Chialant, and actually.
-: And he uses the fourth edition, right, not the third.
Susan: Pardon me?
-: He uses the fourth edition,
not the third edition, correct?
-: Right, but it's the same test, the Toney test,
which both Dr. Holtzen and Dr. Chialant regarded as
the most appropriate test for a man who was, was difficult
to test because he didn't speak English.
He spoke a dialect of Chinese and he was illiterate,
but they, they both agreed that the Toney test was
the most appropriate test to use, and Dr. Chialant came up
with a score that was 77, but she also, you know,
said in great detail, spoke in great detail
about the significant limitations that Mr. Huang
had cognitively and, and compared him to someone
at the level of a six-year-old child.
So I think for the first factor of intellectual disability,
there was certainly support in the record.
The second factor has to do with adaptive functioning.
-: Can I ask, that, that issue with the six year old child,
'cause he's, he has, he holds a job.
He's driving, he's shopping, he's taking care of his kids.
There's some evidence that he helped with math homework.
How are we, how do we reconcile that with this?
I mean, six year olds, don't, aren't capable
of doing any of that.
-: Well, I think you have to look at the environment
in which he's functioning.
He's, he's looking after young children, but he's part
of this tight knit, extended Chinese family
that surrounds him.
He does shopping.
Maybe he gets to China, maybe knows how to get to Chinatown.
He does work in a series of Chinese restaurants.
There's no indication, by the way, that he drove.
I think the car in which he was driving,
in which he was riding during that accident,
was being driven by someone else in New Hampshire.
There's certainly no suggestion that he's a master chef
in a Chinese restaurant, and he's surrounded
by Chinese coworkers, and if you look back at his childhood
as well, he is out of school at an early age.
He, he works in the fields.
I think if he were in the United States,
you would probably see him categorized as learning disabled,
if able to stay in school at all.
-: Well, that's important because I wonder where you,
that's important.
If you could help refer to the record because as,
as you know, intellectual disability,
the statutory definition also includes conceptual,
social and practical, adaptive skills,
a lack of those before the age of 18.
So where are you on the record when you make the,
this adjusting, I think that point.
-: I think that Dr. Chialant's report, which surveys
the record in some detail, gives you an idea of
the landscape and contains a great deal
of what you're looking for, and that's in
the third record appendix.
That's where I would, I would start on that,
and it also hits this notion
that these cognitive limitations date back to childhood.
So my position would be, there was enough here
to show that he was intellectually disabled.
If the Court feels that the record is not as full
as it should be, or as it would want it to be
before tackling this constitutional issue,
I think the thing to do would be
to remand for an evidentiary hearing.
I did request an evidentiary hearing.
The judge declined to hold one, perhaps because he thought
this issue was really one for the, for this Court,
and an evidentiary hearing would allow these issues
to be explored more fully, and also perhaps more information
about current science, about the nature
of intellectual disabilities.
-: Counsel, what, counsel, what test, what test do we use
to determine whether the motion judge abused his discretion
in not holding the hearing?
That is, what's your burden at getting to a hearing?
It seems clear to me that the motion judge
reviewed the entire record.
It's clear to me that he reviewed also the affidavit
of the expert and, and, and, and did not conclude, you know,
didn't do this matching of the factors
on intellectual disability.
-: If the burden under rule 30(c)(3) is to demonstrate
the existence of a substantial issue, and we think
that there was enough in the record to get over that hurdle,
it seems that the judge assumed that the, the IQ score
surmounted some arbitrary cutoff, but you have to consider
both the Holtzen testing and the Chialant testing
and the Supreme Court cases that talk about how
you assess intellectual functioning.
I also cited to the Court the Supreme Court's decision
in Brumfield versus Cain, which is interesting.
It is a death penalty case, but the standard applied there
for an evidentiary hearing is whether there's
a reasonable doubt as to whether the defendant
is intellectually disabled, and I would suggest that
that would be an appropriate standard to use here
where life without parole is the most serious penalty
under Massachusetts law, and there are similarities.
This is as the Supreme Court has said in the severity
and the irrevocability of life without parole and,
and death penalty, so.
-: Well, Congressman Jones points out,
some of the differences
with death penalty cases, as far as the analysis goes,
but that's leads to one other question if I could please,
which is, you know, one of the things that we look at
in determining whether or not under our constitution,
under the declaration of rights, cruel or unusual punishment
is sort of contemporary values and normative values,
and one of the things you look at there
is what's going on around the country.
Is there any other state that has applied Miller or Atkins
to somebody with an intellectual disability as far as
a constitutional right to be considered for parole?
-: Both I and the amicus brief cite a Texas case,
which is an intermediate level case, which has reached
that issue and held that life without parole,
mandatory life without parole for
an intellectually disabled person is not constitutional.
That's up on further review.
The amicus brief also points out that some states
have changed their laws legislatively because this issue,
and they also encourage the court to look more broadly,
internationally, as it's appropriate for the court to do,
and it cites the trends in international law
against life without parole, much less life without parole
for an intellectually disabled person.
I think what's really troubling is the mandatory nature.
There is just no possibility of consideration
of the individual case, the individual offender,
the way things are, are now.
Kafker: Any other questions?
Georges: No thank you.
Kafker: Thank you very much.
-: Thank you.
-: Good morning, Mr. McGowan.
-: Good morning.
May it please the Court.
David McGowan for the Commonwealth, asking this court
to affirm the defendant's convictions and the denial
of his motion for a new trial.
I'm happy to go in reverse or chronological order,
whatever the Court's preference.
If no preference, I'll begin like my sister did
with the Batson/Soares claim.
I do agree that there will be some cases where statistics
become unhelpful to the court as Justice Kafker noted.
In this case, statistics, I think, are incredibly helpful,
in addition to all the relevant factors.
Here, I don't see how this court could rule that a 50%
of what in this instance is a binary
male or female dichotomy here could be seen as
a prima facie showing of a pattern, particularly
in this case where in addition to having the obvious 50%.
Lowy: Doesn't have to be a pattern
anymore, though, right?
-: Of course, of course not.
It can be, a pattern of one is maybe not a pattern,
but, but as this court has ruled discrimination can come in
in, with just one challenge.
In this case, what the court had before it
was 14 challenges, 14 indifferent males, seven challenges.
The court also had, it's not clear from the record
that the judge stated orally, that I find a certain number
of individuals in the box, what the court knew
was 10 jurors had been set.
Six of them were male, four for them were female.
What the court also looks to in all relevant factors in
addition to those statistics, which I think are controlling
here is, is there any possible characteristic neutral
or non-prohibited reason for challenging this person?
This juror, from the record we can glean,
was a Boston College law student and was working
as a research associate on law review.
There was no discussion at sidebar that I can point to,
but that, I would suggest to the court, many litigants,
both criminal defense attorneys and prosecutors, prefer not
to have law students on their jurors with reasons.
-: I think, I don't know if I ever saw a prosecutor
in 19 years as a trial judge leave, leave a law student
or a lawyer on a jury.
-: I haven't, but I'm sure there are exceptions and.
-: There are, and by the way, I take it, none of the,
none of the females were law students or students or.
-: Not that I could tell from the record.
Again, this was a 2010 trial.
There was an efficient system.
This is prior to attorney-conducted voir dire,
so some of the things that more recent cases may allow
litigants in this court to, to analyze and, and really
dig deep into these issues aren't present in his record,
but we do have from the record are some of
these conversations are nuggets of data,
and with respect to this challenge juror,
that is an important one.
So in addition to the prosecutor's challenge, strike,
strike rate of being 50% of what is a binary determination
in this instance, I see very difficult to, to reach
the conclusion that the trial judge in this case
made a clear error of judgment by not taking
into all relevant circumstances, and I think the Court
does need to understand that.
-: Can I just double-check?
None, so I haven't read the transcript yet.
Are any of the jurors seated students?
Do you know, 'cause?
-: Not, not, not that I could tell.
Kafker: Okay.
-: And I do recall this trial judge being
somewhat encouraging students to sit from time to time over,
over previous trials, but I don't, I don't believe so,
and I did look for, for legal backgrounds also
before emphasizing to the court that
this was a law student.
-: I've just, having dealt with this prosecutor before,
I, I've had a couple of trials where he knocks off
every student, but I, I'm just curious in this case
what the record is going to show, but yeah.
-: Anecdotally, and again, the rec, the, the, the transcript
is a little thin on some of the data that would be helpful.
There didn't appear to be too many students generally, but,
but I'd have to go back to do a deep dive here.
I don't think it's one of those, one of those cases
where the parties did not want students.
I think in this case, a law student and a researcher
on law review may have been, and there's,
there's an affirmative evidence in there,
but it may have been the main rationale here,
and I think because there is that possibility,
this trial judge was well within her discretion
to not inquire for a gender neutral.
-: But it raises the issue that, that I brought up
in my concurrence in Sanchez, that may be a,
such an obvious reason and the, as Ms. Baronoff points out,
the bar is very low to satisfy the first step here.
Why isn't it a circumstance where out of fairness
to the juror, the defendant, the Commonwealth,
and the administration of justice so the case is not tried
over and over again to just get an explanation?
We've reached it, but why should,
why should we just skip step one?
-: I see wisdom in that.
I know that when there's a challenge when I'm litigating
a case, I now offer it whether it's requested
or not for this reason.
It's very difficult to go back over 11 years later and,
and divine what's going on in the courtroom.
None of us in this courtroom were there,
but we do have a very experienced judge.
We have two very experienced trial lawyers, and we don't,
we can't picture what they were seeing in real time there,
and really the analysis is what was the trial judge seeing.
Was what the trial judge saw, based on her
lengthy experience, and a judge who was very cognizant
of the case law, is what she's seeing and what she decided
to do in that instance a clear error of judgment,
and on this record, I don't see how
this court could find that.
I don't see the defendant having met his burden,
and I think on this claim, he should not prevail.
If there's no further.
-: What would you say to your opposing counsel's position
on the differential in the strike rates,
that is, seven out of 10, yeah it's 50,
but the men were struck at that 50% level,
whereas the women were struck at the 18% level?
-: I'd say with, if, if the defense attorney
at the trial raised that exact point at, at sidebar,
that the parties would probably turn to the sat jurors
and already see women being sat, 60%, both women
being sat for, and a majority men being sat.
The jury at that time was 60% men, and so even though
there might be difference in how the Commonwealth is using
challenges versus how the defense using challenges,
my sister alluded to that, maybe there's a preference
for men from one side and women from the other.
The defendant was challenging, like five of six I believe
were, were of women and that's, that's not an issue
in this appeal, but, but in terms of what the judge
is seeing in terms of strike rate and how to evaluate
what's happening before her, I think that wouldn't be
a very persuasive data point to carry the day
in finding a pattern here if this were raised at trial
and today, I don't see it being very persuasive either.
-: But you know, and this is, you're absolutely right,
very experienced and talented judge, who,
as Justice Kafker said, you know, I haven't seen,
I didn't have the benefit of recent cases, but, you know,
we really, there's a reason that what's the jury look like
now at this point of empanelment is last
on the list of considerations.
We've, we have to be really careful with that factor
because every individual juror has a right not
to be discriminated against and the parties have a right
to a fair and impartial jury.
That's a sort of really, not the most weighty
of considerations, I guess.
-: Yeah, I agree.
It's all relevant factors, and I think that's the test
that this court has articulated and that's
the test it must articulate.
There's no one thing that controls, and in this case,
I'm not, to be clear, hanging my hat
on the composition of the jury alone.
It is the possible alternative to using the strike
in this case, a law student and the 50% strike rate.
The strike rate itself, I think in a binary situation,
when it's at 50%, I don't see how
this court moved beyond that.
-: I just read the transcript.
It's even more than that.
I mean, the last three jurors seated are men.
It's not like they just said,
there's a man on the jury and moved on,
like the cases we've, and there's a long discussion
about the student, because the judge teaches at BC.
They're joking about the person being a student.
The prosecutor asks about the research.
I mean, this is, yeah.
I think you can move to the second issue if you want.
-: Indeed, Your Honor.
Turn, turning to the second sister raised by my, my sister,
I, I don't see in this court, in this case rather,
this record, that this issue is right
for this court's adjudication.
Might it be someday?
Maybe, I don't.
-: But isn't, I think that's tough though for,
so in Jones, we weaved this issue undecided, expressly,
meaning we don't know what the answer is at this point.
It's troubling to the Court.
Our article, our core or our usual standard
is more protective than the feds.
Don't, do we need an evidentiary hearing
to figure out whether this defendant really is?
I mean, I have, based on this record,
I can see why we're skeptical he is,
but should we pin that point down to protect,
you know, say in the future we have, we do make this change.
We're not going to really know for sure whether
this guy is intellectually disabled or not, are we?
It's tough to know based on this.
-: And that's an important factor.
If this is a, if that is a data point that is tough to know,
I'm not sure that record can lead to clear guidance
from this court, and in this case, not only is it
tough to know, it is suspect.
The record itself speaks to how suspect it is.
It was rejected by the jury.
It was rejected by multiple experts, it was.
-: But the case is not tried as an intellectual disabil,
intellectual disability case.
It's, it's, it's tried as a mental health case,
but not that he's, you know, got an IQ of under 70.
You know, this wasn't a "Of Mice and Men" case.
It's whether he's, you know, mentally ill case, right?
-: Yes to a degree, Your Honor.
I'd have to concede that.
However, as the motion judge articulated in his ruling,
that a lot of the evaluation that was done
in the post-conviction expert's work was redundant
of earlier evaluations that went on for over a decade,
from the murder itself to when it was ultimately tried
in where, where that's the case, the, the Court doesn't
have much to make that determination, and as
the motion judge reviewed, determined that there was
no evidence of a mental defect for this individual,
and there was no clear evidence that
this was even an impairment.
-: But the judge, the judge does a real, and he writes
over a 50 page decision, it's very carefully done,
but at the same time, he seems to accept that this person
may have a six year old mental functioning capacity.
I'm not sure I can determine that from this record,
and I'm just, I just, I guess if we've left this issue open
and we haven't decided it, should we know factually
whether this person, 'cause admit, 'cause we don't have
anything from the Commonwealth on this point, do we?
I mean we have, we have, we have these two defense analyses
that suggests he's in the range of intellectually disabled,
but we don't have anything from the Commonwealth
like we do on the mental health issues in the Court
that he's like, this guy is saying,
he's, this is malingering or something else.
We don't have that on the
intellectual disability point, do we.
-: Well I think both of those experts that defense rely on,
those reports are replete with caveats and,
and I think the motion judge had to acknowledge that,
but they were, I guess in light will show you the defendant.
They were doing the best they could,
based on the evaluations they had at their disposal
and the condition of the defendant himself.
The, this was not a battle of the experts post-conviction,
but it was during the trial and in addition to not looking
into the mental state or the mental bandwidth
of this defendant, 'cause it wasn't a lack
of criminal responsibility defense.
It was mental impairment.
So any of those things that would suggest or lead
to some kind of mental deficit of this individual
was explored deeply, maybe not as fine a point
as Your Honor's inquiring about, but it was explored
very deeply and almost all of it was put before the jury,
and so the motion judge, in this instance.
-: The jury can't decide this based on, I mean,
I haven't read the, again, the whole trial record,
but the jury can't decide, it doesn't know whether
he's got an IQ below 70 or not.
There's nothing before the jury on that.
-: No, no, no, but it was before
the motion judge and on this.
-: I'm sorry, I think it's important to see
what the motion judge concluded.
He says,
"it is troubling that a man with the intellectual ability
of a six-year-old just above the cutoff for those
with intellectual disability will serve life
without the possibility of the parole, of parole,"
and he says, but the SJC hasn't ruled on it.
So I'm not going to do it.
Bring it to the SJC and here we are.
-: And we are and I think basically.
-: So I'm troubled by your statement
that this is not the case for that.
I mean, if there's a question as to
the intellectual disability of this particular defendant
and the law seems to be moving, or at least has made
some inway into whether or not that is constitutional,
why not conclude that the defendant
has raised a substantial issue, sufficient to get what
you call the battle of the experts, post-conviction?
Don't we need to know, is he intellectually disabled or not?
-: That's assuming it can, it can be known
based on the expert reports that the.
-: According to, you know, nothing, the truth can't be known.
I mean, this is the way we test these things is by,
you know, taking evidence, and here the defendant has raised
enough of an issue that the motion judge,
hearing this motion without any evidence,
is troubled that this defendant has
the intellectual ability of a six year old.
-: Well, I think that sentence may have been inartfully
phrased by the motion judge, because taking
the motion judge's, and it is, it is clear.
I'm not saying that is ambiguous.
That statement of concern is clear, but I believe
it's repeating the defense expert in a light
most favorable to the defendant.
In that instance, part of that motion judge's opinion
makes two clear findings, which was the essence of the issue
raised on the motion for new trial.
There's no evidence that the defendant suffered
from a developmental or intellectual disability.
That's the first conclusion of the motion judge.
The second is, no clear evidence he suffered from
a mental illness that prevented him from appreciating
the consequences of his choices or controlling his impulses.
That, those are the clear findings, and, and so I,
when I got to the last, the first sentence
of that last paragraph Your Honor just recited,
I was somewhat puzzled at the tone of it,
but really it's restating the law as the Court
hasn't addressed this head on.
The judge is just making an observation.
This is someone that, a defendant who clearly
has some, some stuff going on.
It's, it took a number of years to get to court,
to get to trial, and, and he continues to receive treatment.
So that's, that's part of the record,
and it's very well established.
Whether the expert report that was submitted in support
of his motion for new trial raises substantial issue,
I would say no, and as the judge outlined in his findings,
that there was really nothing new here.
Not only was it not new evidence,
it was very much duplicative and redundant of prior work,
and so if this court were to affirm the convictions
and affirm denial of this motion for new trial,
there is nothing in our jurisprudence that prevents
the defendant from further and better establishing
what this court's asking to do but based on this record,
I think remanding just as a faster way to get
to this particular legal issue is inappropriate.
-: Let me pick up on the point you're raising
and go back to Justice Kafker's question of the defendant.
So if the finding is, there's no evidence of
an intellectual disability, you don't, you don't have
a, an evidentiary hearing if the issue is not raised.
If that's the judge's conclusion, when we're looking
at this record, going back to the question
that was asked to the defendant, what's our review
of that determination, that no issue
of intellectual disability has been raised?
-: What's,
did the motion judge is a gatekeeper of that exact issue,
of whether or not that in the form that it is
before the Court is a substantial issue
that merits an evidentiary hearing.
Did that judge in finding, no at this time,
no, based on what is before me.
It is not a substantial issue.
That is reviewed for an abuse of discretion.
Might there be an instance in this case where,
where that changes, possibly, but right now,
before this Court on this record, it is not
before the Court, and I'm not, certainly not,
in a position for the Court to offer sound guidance
of what I expect will be an issue the Court faces someday,
but on this case, I would ask you to not address
that point based on this record,
affirm the defendant's convictions
of the brutal murder of his wife, and affirm the denial
of the defendant's motion for new trial.
If there are no further questions.
Lowy: I actually do have one last question for you.
-: Yes, Your Honor.
-: On the, on the argument of the issue of what the,
the son said about the father and, and,
and the lack of ability to refresh the recollection.
David: Yes sir.
-: There's an argument in the appellant's brief
about past recollection recorded,
and I, I wondered about two things.
Number one, was that raised at trial,
and number two, if it was raised, was there any showing
as to the found, other foundations required
for past recollection recorded about
personal knowledge firsthand, and that there was
a sufficient memory at the time, and that it was truthful,
those, those conditions.
-: I'm quite confident to say it was not raised,
and that was February eighth, page 44, ballpark area,
where this was an unsuccessful refreshing of recollection.
It didn't come to that point.
I do know that that, the evidence being sought to,
through that witness did come through another witness,
maybe not in the form defendant was seeking,
but that evidence did get before the jury that,
that after the car accident,
the defendant became quote,
"crazy, he's getting worse."
-: Here's what I'm asking is, is that if it never came up,
then, then the issue is, is with the substantial likelihood
of miscarriage of justice, when we're reviewing it,
it never came up, don't we have to say,
was there a strategic reason?
Was it impossible to, to raise it?
-: It wasn't fleshed out, and so I hadn't done
a full analysis, but based on how Your Honor's phrase,
I don't think it would've come in as past recollection
recorded in the form that I recall it coming in, but,
but again, that it is in the transcript,
how it was litigated, and there was some specifics
as to how it was being attempted
to be introduced and so that.
-: And the tape also, it's a videotape, is that what it is,
or grand jury minutes?
David: I don't recall, Your Honor.
-: Doesn't matter for analysis either way.
All right, thank you.
David: I don't recall.
-: Any other questions?
Georges: Nope.
Lowy: All right, thank you.
-: Your Honors, thank you.