Man: SJC-11586, Commonwealth with Joshua Fernandez.
-: Okay. Good afternoon, counsel.
And just, I'll just remind people that
pursuant to the SJC longstanding tradition,
may single justices of this month and last month
will not be sitting on these cases.
Um, Miss Scapicchio, we'll start with you.
-: (coughing) Sorry. Good morning, your Honor.
It's Rosemary Scapicchio on behalf of Joshua Fernandez,
may it please the court.
Today I'm here to argue on behalf of Mr. Fernandez,
four issues that I hope to cover in my argument.
The first is that the jury selection in this case
violated Joshua's Sixth Amendment right
in Article 12 rights,
to both due process and equal protection
because of the systematic exclusion
of everyone under 24 and most people under 30-
-: Counsel, on this point, you don't address,
we decided this issue in Lopes.
So if you're going to do, and we may be wrong in Lopes,
but you got to argue why Lopes is wrong.
You can't just raise the exact same arguments
that you raised in Lopes.
-: Well, I didn't raise the arguments in Lopes.
And in addition, I don't think it was the exact same margins
with all due respect, your honor.
I think Lopes argued, -: Well, how's this different?
-: well, I think Lopes argued that the challenges
that the Commonwealth made resulted in a source type issue,
where people of color were excluded
more appropriately than others, so-
-: That's the second part of source.
Second part of Lopes, the first part of Lopes
is exactly on point.
Yeah. I mean, you gotta distinguish it
or you're wasting our time.
-: Right. Well, I'm not looking
to waste anyone's time, your honor.
What I'm doing is I argue under both
the equal protection and the due process clause,
which was not argued by Mr. Lopes.
And under the due process clause,
what I'm asking this court to find,
without having to exactly include age as a protected class,
under the due process clause,
find that the systematic exclusion of people under 30
from the jury pool in this case,
which was the largest section of the population
of the jury pool,
resulted in Joshua not getting a fair cross-section
of his community,
and that's what violated his due process rights.
That's a different argument in my mind,
from the argument that was raised by Mr. Lopes.
And that's why I think the argument
needs some attention here.
And with respect to that argument,
if I could just get into it a little deeper,
in this case, the Commonwealth excluded
all the jurors under 25 and most of the jurors under 30.
If you put those two categories together,
it comes out to be about 81% of the jury pool
that was excluded systematically by the Commonwealth,
when these jurors were already cleared
for jury duty by the legislature.
So what the Commonwealth does in exercising these challenges
is it tells the legislature that their regulation,
that everyone 18 and over is qualified
for jury duty is wrong.
And the Commonwealth already said in Madis,
when it argued before you,
that you can't change the legislature
by something that you do.
And that's exactly what the result
of the Commonwealth's actions in this case is.
They're looking to, even though these jurors were cleared
by the legislature,
and said that they were qualified to serve,
they came up with this reason
that young jurors can't make up their mind
between which classes to take.
And therefore, if they can't decide classes,
then they shouldn't be able to decide guilt or innocence.
There is no scientific data to support that position.
And the result of that position
is what affects, it affected Joshua at trial.
The result of the Commonwealth's position
struck every single solitary juror under 24
and struck most jurors under 30.
And if under Source, what this court said,
is that the jury of your peers equals a fair cross-section.
Then I think under Source and all of the federal cases
that I studied in my brief, clearly you're,
what the Commonwealth is doing here is preventing Joshua
from ever getting a fair cross-section of the community
under the due process clause, and that's unfair.
So if you don't want to look at it
under the equal protection clause,
if you want to say that this issue is foreclosed
because of Lopes under the equal protection clause,
then I'm asking that you look at it
under the due process clause.
And you find in this case,
that because there was this systematic exclusion,
and because the Commonwealth was clear
that it was a systematic exclusion, that was their goal,
that they wanted to exclude all people of this age.
And my issue with that is, what if next time
they want to exclude all people who are gay or lesbian?
Is that going to be okay with the court? 'Cause it can't be.
-: That's a totally different thing, it's a protected class.
We've, I mean, I really do encourage you
to maybe get to some of your new issues,
but that's up to you, it's your 20 minutes, you know?
-: Well, I appreciate, I appreciate that, your honor.
But I think this is an important issue.
I don't think it was decided by Lopes.
I understand that you do,
but I'm hoping that you'll take a look at it
under the due process clause
and understand my argument is that the system-
-: In all the cases cited in Lopes,
all those federal circuit court cases,
do any of them draw the distinction you're drawing here?
-: On the due process claims?
-: 'Cause every case, this has been rejected.
This argument has been rejected
by every single circuit court of appeals.
Do they distinguish your argument and say,
"Well, we haven't decided this, but we've decided that,"-
-: I believe it's, they decided, your honor,
under the equal protection clause.
-: Which cases do make the distinction
you want us to make, any of those?
-: I don't believe that they do judge.
I do not believe that they make the distinction
that we're looking for this court to make here.
And I think that it's, the court has done it before.
You've done it in OB, when you recognized religion
as a reason not to exclude jurors.
The headscarf, the jury with the headscarf,
that that was OB, and I would suggest that
if the court does that for religion,
it can also do it for age.
There's plenty of data in my brief
about why age should be a protected class,
and I asked the court to look at it
and to evaluate it, and to not be foreclosed by Lopes.
Because even though Lopes has decided
Mr. Fernandez has an absolute right
to bring his cases to, in front of the court,
and has an absolute right to be able to argue
and litigate the cases in the way that he sees fit.
And that's why we're arguing as both an equal protection
and a due process claim.
The next issue that I'd like to bring
to the court's attention
is the issue of the denial of the expert witness.
In this case, we were looking to hire
or to call Dr. Kinscherff as an expert witness,
relative to the mental condition for a first degree murder.
-: How do you distinguish Brown and the Okoro?
Because in both of those cases,
we required the expert to have some testimony
directed at the person, not just the age itself.
-: Well, I would say with respect to whether or not
it's okay to have the people testify or the experts testify,
that's exactly what this court is going to decide
in Madison Robinson, in both the Madison Robinson case,
that Robinson will be up in the SJC soon,
and Madison was just remanded.
It was never about whether or not
they evaluated Madis,
and determined Madis had something that,
some condition that the jury should know about.
This is whether or not the issue of adolescent brain,
the issue of whether or not this should be a factor
that the jury gets to hear,
especially in light of the fact that in this case,
the Commonwealth was arguing that a 16-year old
had the capacity of an adult.
And what we were trying to do is hire an expert
to tell the jury that in many cases, generally-
-: Okay. Can I read you,
let me read you a sentence from Okoro.
So Okoro, the same expert, Kinscherff,
Kinscherff, I'm mispronouncing his name.
This information was beyond the jury's common knowledge.
It offered assistance to the jury
in determining whether the defendant was able
to form the intent, and it did not amount to an opinion,
this is the part I want to emphasize.
That the defendant or any other 15-year old
was incapable of forming the intent required for murder.
Aren't you making that very argument,
that that's why he should be allowed
to testify here? 'Cause-
-: No, I was never making an argument
that he would need to evaluate Josh or an audit
in order to testify.
I'm making the argument that if the Commonwealth
is going to put a 16-year old on trial,
and say that the 16-year old can form
a specific intent to kill,
and that he wouldn't be affected by the facts of this case.
The facts of this case is
that there was a co-defendant who was 20,
who according to the Commonwealth, was the ringleader,
was putting pressure on Joshua.
And in some ways intimidating Joshua into becoming involved,
and that there was issues regarding impulsivity.
And so the facts of this case are very different
than the facts of Okoro,
and we have the Commonwealth argued
that these specific issues that would result
in Mr. Fernandez spending the rest of his life in jail,
unless the jury were educated as to why,
why would a 16-year old participate in this manner?
And we're suggesting that had they had the information
from the expert in this case,
that it would've made a difference.
We believe in terms of culpability,
it would've made a difference to explain the impulsivity,
it would've made a difference to explain the peer pressure.
And the jury never got to hear that information.
-: But we're, in Okoro, we say
we can't just allow you to sort of testify generally.
We want, we need some specific knowledge
about this particular defendant,
not just the facts of the defendant's case,
but you need to have some,
the expert needs to be familiar
with this particular defendant.
Isn't that what we're saying in Okoro?
And that's exactly why the judge didn't allow that here.
-: No. I don't think that that's why the judge
didn't allow it here.
I think what the judge said here,
with respect to this case is that,
well, at least according to the Commonwealth,
that there was some claim
that they didn't understand the proffer
of what Mr. Kinscherff would testify to.
And that's simply just a fallacy.
We brought up the juvenile brain and the motion to dismiss,
and the motion to suppress,
and the motion in eliminate and the required finding,
and the request for jury instructions
and the request to have Dr. Kinscherff
testify at sentencing.
So we're a little bit different,
and I think that distinguishes us,
somewhat from what happened,
as far as the court is concerned.
But the idea that an expert can't educate a jury
on a new and developing area of the law,
I would suggest is exactly what this court has
asked us to develop in both Robinson and Madis.
We're not talking in either of those cases
about expert testimony as to the defendant.
We're talking about what is the science?
Tell us what the science is behind this.
And that's what we were looking to educate the jury of,
is what is the science of this impulsivity?
What is the science of the susceptibility to peer pressure,
especially on facts like facts that were here,
where there was clear evidence there was peer pressure.
There was clear evidence that there was impulsivity.
And we alleged that the jury had the right to know that,
and not to determine whether to believe the expert or not,
but to determine whether or not that knowledge
would have made a difference in their decision,
and our suggesting is that it would.
And if you don't have any further questions on that issue,
I'd like to move on to the statement,
and the denial of the motion to suppress in this case,
which resulted in Joshua's statement
being introduced at trial,
which resulted in an implication of guilt
by the Commonwealth, through their closing argument.
Now, the statement in this case
was 16-year old Joshua was arrested.
He was taken to the police station.
He was, his parents were called.
His father showed up.
There was some discrepancy as to whether or not
his father could speak English.
Ultimately, what happened in this case is that
they got an interpreter,
who was another police officer who came
and spoke to the defendant in this case.
And then the question was asked,
did he want to speak to them?
And he said, "I'm all set."
And then the police officer went on and said,
"So do you want to sign this form that waives your rights?"
And he says no.
Now we're intending that was not ambiguous.
It was an invocation of his Fifth Amendment right
to remain silent,
and it was not scrupulously honored by the police.
And if there was any ambiguity at all,
in the statement, "I'm all set,"
when he asked if he wanted to speak,
and the subsequent sentence to statement of
"No, I don't want to sign the Miranda waiver",
then it was incumbent upon the police officers,
not a 16-year old boy
to ferret out any ambiguities in that,
to make sure they understood
that he was forcefully exercising his Fifth Amendment right
to remain silent in this-
-: Could you remind me of the timing?
So the all, "I'm all set" and the refusal aside,
then he goes to speak to his father
or I can't remember the time.
-: He has spoken to his father before that.
So he's spoken to his father,
and they come back into the room.
The allegation, at least in the findings
by the motion judge,
is that the father waives the police back in the room.
They ask him whether or not he's willing to speak to them,
he says, "I'm all set."
They ask him whether or not
he wants to sign the Miranda waiver, and he says no.
Now the Commonwealth is taking the position.
I'm sorry, your honor.
-: And then what happens?
And then what happens next? He doesn't-
-: He says no, and then instead of scrupulously honoring
his request to remain silent, the police then say,
"I just want to tell you that we have witnesses
who put you at the scene,
who say that you did this, that or the other thing."
And he says at first, "Nothing happened."
And when he says nothing happened,
the conversation continues.
But that conversation about what happened and what they had
should never have even taken place.
He had invoked his Fifth Amendment right to remain silent,
and in that case should have been honored.
And the suggestion here that it wasn't honored,
in that somehow the Commonwealth now wants to say
that his invocation of,
"No, I don't want to sign the Miranda waiver,"
is somehow separate and distinct
from his "I'm all set" statement,
to make them two separate issues,
in which the Commonwealth says were ambiguous.
Then even if it was ambiguous,
the onus was on the police department
to clear up any ambiguity,
and they did nothing to clear up the ambiguity.
Instead, they made statements that Joshua,
this would be Joshua's only chance
to tell his side of the story.
That's what they said.
And that information is contained directly in my grief.
And I would suggest that
because they didn't scrupulously honor Joshua's request
to remain silent, that there's a problem.
But there's another problem with the statement as well.
The interpreter that came to interpret,
who was not a court-certified interpreter,
but instead was an interpreter who, in this case,
wasn't interpreting everything correctly.
And so we hired an interpreter
for the motions press hearing who,
a certified court interpreter,
who interpreted what was actually being said.
And some of the most key points of the Miranda waiver
were not read to the father.
For instance, when they were told
that he had a right to have an attorney present
during the statement, that wasn't translated properly.
And it came out as
he had a right to have an attorney present,
but not any indication that he had it during the statement.
So even if there was an interested adult,
even if you want to look at this
to determine whether or not it was voluntary.
I think you have to look at the pressure
that the police put on him,
the now or never language that they use,
combined with the fact that the interested adult
wasn't properly advised of his rights.
And even detective McDonald said,
"Had he known that the transcription
or the translation was wrong,
he would have stopped everything
to make sure the translation was right,"
but nobody understood it
because they didn't use a certified interpreter,
they used whoever happened to be in the police station
at the time, who could speak Cape Verdean.
-: A couple of things, just, I just went back and re-read.
They, after the, on your first point, they go back to,
the father and the son go back into the room
after the ambiguity about "I'm all set" and refusal to sign.
Then they come back and the police officers asked him again.
So do you want to talk to us? Right?
-: Yes. -: So there is a subsequent,
if there's ambiguity about what's going on, they,
isn't it clarified afterwards, when they come back?
-: How was it clarified by him saying "I'm all set"
and "No", refusing to sign the Miranda waiver.
And then having this conversation.
The mere fact that he was speaking to his father,
who wasn't appropriately advised of his rights,
who didn't even know that he could have
a lawyer present during the statement.
How can you say at that point that he validly waived
his fifth amendment right to remain silent.
I don't-
-: Well, let me go through that factually with you,
for a second, because I was concerned
about what the translation.
So I've gone back and forth and tell me where I'm wrong,
so the first Miranda right,
you have the right to remain silent.
From what I understand the translation to that was
you have the right to remain silent.
That was correct, right?
Rosemary: Yes.
-: Second one, anything you say can,
and will be used against you in a court of law.
Translation, anything he says they can use it
against him in court.
No problem with that one, right?
Rosemary: No. -: Third one,
you have the right to an attorney.
Okay. Here's where it gets a little confusing.
Have the right, you know, have the right to an attorney
before he answers any question.
Then Mr. Fernandez steps in and he's somewhat confused.
And then the follow-up translation is his fault.
No, you have the right, then if they start, if you want,
you can be silent and they are reading your right,
as long as you understand all your rights.
But after that, just like I told you, if they,
anything they ask you, if you remain silent,
and you have that right, okay?
That's your focal point, right?
Rosemary: Right. -: On that one.
-: Because that doesn't suggest that he had a right
to have an attorney present during the questioning.
And that's what Miranda waiver requires.
And that's not the-
Well, the first part of it says that.
Have you have the right to an attorney
before he answers any question?
The first part is correct.
It's when Mr. Fernandez gets confused,
there's this garbled thing, right?
-: Right. But the right to an attorney,
and the right to have an attorney present during questioning
are two separate things.
And that's the part that doesn't get transcribed.
The part that says you have a right to an attorney
to be present during questioning.
So even if we have a right to an attorney, in this case,
then you also have to have an understanding
that you have a right to, for an attorney to be present,
before you make any additional statements.
And that's the part that never got transcribed.
That's the part that doesn't get communicated-
-: Well hold on, let me, 'cause there's an end.
If you just, so the right is,
if you decide to answer questions now
without a lawyer present,
you have the right to stop answering at any time,
that's the warning.
-: Yes. -: The translation,
if he decides right now to answer any question
before the attorney is here,
he can stop at any time he wants.
He says that, right? -: Yes.
-: And if you decide to answer any question
before you have attorney here, even if you start,
you can stop anytime that you want, right?
-: That's correct. -: Okay.
So I just want to make sure we pin down factual points.
-: Right. The factual point is that they never told
Mr. Fernandez or Joshua that he could have
an attorney present during questioning.
That's part of the Miranda, it wasn't communicated.
There was clearly some confusion.
There was no effort to straighten out the confusion.
And in all sense,
if they had a certified interpreter taking these statements,
this wouldn't have been an issue.
But this just happened to be a police officer who spoke,
who believed he spoke Creole and was doing this translation.
So they didn't even understand exactly what was happening.
And even at one point, Mr. Fernandez says,
"well, you just said to remain silent."
And so he's clearly not comprehending
the words that are coming out of the translator's mouth.
And there should have been some inquiry
as to whether or not he truly was an interested adult,
if he did not have the capacity to understand,
comprehend and advise.
And that's what we're suggesting was wrong
with the statement.
And then in terms of the final argument
which was my closing argument,
the argument, I know the court has addressed it in Lopes,
and I know this court understands what happened in Lopes,
but the court also made a statement in Lopes.
That the reason that it didn't really affect Lopes
is because the argument, the third-party culprit argument
really went to Fernandez, not Lopes.
It was Fernandez's argument
that they were calling an insult.
It was Fernandez's argument that they were calling a fuss.
It was Fernandez's argument that they were calling
a distraction in this case.
And there was no limited instruction to the extent
that it's not a farce, this is advocacy.
This is what a lawyer is required to do.
Instead, the court said,
"Don't get too carried away with the closing argument."
That's not a limiting instruction,
especially when it goes to the heart of Joshua's defense.
So despite the fact that the court took up this issue
with Mr. Lopes, it did not consider it
with respect to the third-party corporate argument
that I raised.
And there was no limiting instruction, there was no juror,
and we don't know how the jury relied on these,
the insult farce and distraction,
because they weren't told to ignore them.
Instead, they were told not to get too carried away.
And I haven't found a single case that says
when a judge tells the jury not to get too carried away,
that's a sufficient curative instruction
for an egregious error in closing arguments.
So I think that also should result
in the reversal of Joshua's conviction.
And I'm not sure, your honor,
is if anyone else on the bench had questions,
I can only see one person on my screen.
So I'm not sure if anyone else had questions about anything.
-: No, we're all here, and we got it.
We think that Justice Kafker covered-
-: They're not shy. Don't worry.
They speak up (laughing).
-: Well, if there are no further questions then,
I see my time is up, and I would rest on my brief.
And I'd ask that you consider reversing
16-year old Joshua's conviction for first degree murder,
based on the fact that the jury selection
violated his rights,
based on the fact that he was denied the opportunity
to hire an expert,
and based on the fact that his statement
should not have been introduced against him.
And I'd ask the court to look at the closing argument,
and the way that the prosecutor
used the closing argument against Joshua,
when he said these words, which is
"What is a lie?
The lie is the last refuge of a guilty man."
That's what he told the jury.
That's how he used Joshua's statement against him.
And that's why he-
-: Thank you very much, counselor.
Rosemary: Thank you.
-: Okay. Ms. Campbell.
-: Good afternoon.
And may it please the court, Katelyn Campbell,
on behalf of the Commonwealth.
Before I start, I would like to acknowledge the victim
on Nicholas Faunby Davis and his family who are watching.
We ask you today to affirm the conviction of the defendant
for the murder of 14-year old Nicholas Faunby Davey,
who was executed while simply riding a scooter
in his neighborhood, two blocks from his family home.
I'll start with the Batson issue.
And I think there's a factual clarification
that should be addressed first.
The first is this could be found on volume four,
pages 41 through 42, a young black female college student.
She was a junior who sat on the jury.
The Commonwealth had run out
of peremptory challenges by then, and this juror was set.
So I don't think it's fair to say
that this jury did not have any individuals
who were not young on the jury.
Not that that is dispositive of the issue,
but I think it does speak to the cross-section argument
that my sister makes.
I'll largely rely on my brief and the analysis in Lobes.
But I didn't understand my sister's argument
to be a due process attack on this.
Even if it were, it falls into a similar analysis
as if it was an equal protection claim,
because where a non-suspect class is challenging something,
it would just need to be a rational basis test.
And certainly, looking at the prosecutor's justification
as to why he wished to strike these jurors
had a rational relation.
The judge found that it was justified
and it was content neutral.
And so it satisfied that test, as well.
As to my sister's argument, that it is sort of
superseding the role of the legislature,
to say that young people can't sit on juries,
it is also statutorily created
that both the defense and prosecutor
can use peremptory challenges to challenge jurors,
so long as they are not used inappropriately.
So I'd say that there were sort of two statutes
that need to be addressed on that ground.
Moving to my sister's argument about the expert.
I disagree that this is at all,
like the Robinson and Maddis cases,
which she mentioned in her argument.
In both those cases, the question is whether
Dia Chanco and his progeny should be expanded
to include individuals who are over the age of 18.
And that is certainly not the issue that is here.
As I think I addressed in my brief,
this is on all fours with Akoro.
And it struck me,
as I was listening to my sister's argument,
that she was talking about
the defendant in this case specifically.
And she was saying that he had specific characteristics,
which could have mitigated his intent.
And had an expert analyzed him and offered,
or even proffered a report as to that,
then I think we would a very-
-: That can't be right.
It's been a while, but I've seen lots of murder cases
and participated in many murder cases,
where a defense expert says,
"I never examined the defendant,
but let me tell you about cocaine addiction."
"I never examined the defendant
but let me tell you what's what DTs mean or alcohol."
We've never said that an expert can't testify
on diminished capacity-type issues,
unless they've examined the defendant
and can proffer an opinion about the particular defendant.
This seems like we're changing the rules
in this type of diminished capacity.
That doesn't seem right to me.
-: Well, I would disagree with you,
in so far as, I think Okoro and Brown can be read
to hold that, where it is adolescent brain development,
that there is required to have some sort of evidence
particular as to this defendant.
And I think it's different than,
let's say, cocaine addiction, as mentioned by your honor.
You know, my understanding of juvenile brain development
and the limited proffer that was given here
is that it varies from individual to individual.
So that while there are some individual truths,
it would be hard to just generalize.
-: Maybe the Brown and the Okoro are wrong men,
because you're still talking about cocaine addiction
is individual to person to person,
and lots of experts I've seen in court,
come up and say, "This is what happens
when people are addicted to cocaine."
I don't get why we should distinguish
and make it harder for people raise this claim
than we have for other types of diminished capacity.
-: Certainly I think it gets back
to what the precise question is, in this case though,
which is whether Judge Brady abused his discretion.
-: And then, I was going to get to that,
as to what happened here below,
that caused Judge Brady to say
there wasn't enough discovery,
there wasn't something to exclude in such,
that it was an abusive discretion.
-: Correct. And I think, if you look at the chronology
of how this was brought up,
it was first ever mentioned to the Commonwealth
three days before the trial was slated to begin.
The proffer that was given on the record,
it was raised through a motion to dismiss,
which was simply that Dr. Kinscherff
would offer evidence generally,
about adolescent brain development.
Judge Brady notes himself during the jury charge,
that there really wasn't any ever proffer,
as to the contours of the testimony
that Dr Kinscherff would give.
So it simply wasn't developed enough, I think,
to say that judge Brady abused his discretion,
on the basis of what was presented to him.
I also think based on the basis
of what was presented to him,
it's different than sort of an expert who would opine,
using the cocaine analogy again,
sort of, this is the effect,
this is what you could expect to see,
because it amounted nothing more to
someone by status of their age,
couldn't form the requisite intent.
It was simply, he was 16 years old
and he's going to testify
as to why he couldn't form the intent
because he was 16 years old.
I think that distinguishes it from the hypothetical
posed by your honor.
And I think the same,
if you look at the reasoning in Brown
and its interpretation of Akoro,
it follows that same reasoning that I just said here,
on that you really do need more
than a simple generalization.
-: Well, if you have a diminished capacity issue,
for instance, by way of alcohol,
there may not be an interview of the defendant,
but that specific circumstances,
in the case with an argument as to how
that specific circumstance applies to a defense,
capacity to formulate the intent.
Katelyn: Correct.
-: Whereas this would be a general statement
without any other facts to call an opinion from.
-: Correct. And I don't think that,
though there are some generalities of how,
it's recognized in the law, obviously,
that juveniles brains are different than adult brains.
I think specificity is needed such to explain
why this defendant, specifically, my sister mentioned
a susceptibility to peer pressure and impulsivity.
Certainly, an expert could interview the defendant
and speak more better, and have evidence as to that,
which could be used by the jury,
and I've seen it used by the jury,
where they're then said,
"Okay, you're to consider this defendant's,
the evidence of this defendant's specific mental condition
and how that affected his ability to form intent."
-: Could it be the circumstances, though?
Could it be, there's no, obviously,
there's not a defense of duress in a murder case,
but could there be the circumstances that might speak to
capacity to formulate the necessary intent?
-: I don't want to rule out that there never could be,
but I also would caution, just like an intoxication defense,
for example, you're not necessarily granted it,
if there was only testimony that you had a drink,
for example, right?
There has to be some level of incapacitation.
-: You have a hit in here, the qualifier is,
you're a juvenile.
So not every defendant is going to be able to say
they were intoxicated,
but every juvenile can say they were juvenile.
-: They can, that's true.
But I think that there needs to be,
if, and again, tying it back to Judge Brady
and his discretion at that point.
Certainly, it would be a change to say
that age standing alone
would warrant this type of treatment, right?
Because both Okoro and Brown, specifically state,
that age standing alone, doesn't give rise to sort of-
-: This is well before Okoro and Brown were decided,
wasn't it?
-: It is. This is in 2012.
So it's well before, and as I argue-
-: So that cuts both ways though, right?
Because this whole idea of this special treatment
for juveniles at this stage is very undeveloped, right?
The knowledge about the juvenile brain is,
what year are we in, in this case, when this is tried?
-: 2012. So it's pre-Dia Chanco, even.
-: So this is pre-Dia Chanco, pre-Brown, pre-Okoro.
Is Judge Brady not sort of doing this,
at that point in time an abuse in discretion?
-: Correct. And I'd say,
you have to look at the development,
especially in areas like this,
as it existed at the time the judge made his decision.
And certainly, it's a very different landscape now,
than it was then.
-: Although your sister is pushing to change that,
even at this time, your sister is pressing,
she's pushing for this type of stuff, which we get into.
-: Absolutely. And though, I mean, I would say that she,
she did raise it at the trial below,
which is something that many attorneys may not have done,
I'm not pushing and being pressing,
such as Attorney Scapicchio is,
that doesn't change sort of the analysis
of whether Judge Brady abuse is discretion though.
And I'd say on this fact, on this proffer,
on this record, the answer to that is no.
Moving to- -: Could you,
and I don't mean to cut anyone off.
But I would like you to go through, carefully,
the motion to suppress and the statements,
particularly sort of how we deal with that really
sort of garbled instruction that I went over
with Miss Scapicchio.
-: Sure. And I think it's important to look at Judge Brady's
factual findings here, which aren't challenges clearly
erroneous by my sister on appeal.
And his reasoning as to why,
I'll start with the sort of translation
of the Miranda warning.
Though the part highlighted by my sister
is not sort of overbid and accurate.
Translation, Judge Brady found the later part,
where he talks about having a lawyer present.
And if you decide to answer,
I think specifically, and this is on page 21 of my brief,
is located on addendum pages 80 to 86
of the Commonwealth's brief.
You have to look at the chronology
of how this was translated,
specifically, that Officer Tek Sarah,
told the defendant's father,
if you don't have money for an attorney,
they'll give you an attorney for free.
The very next morning, the way that it's translated is
if you decide to answer any question now,
without a lawyer present,
you still have the right to stop answering anytime you talk,
until you talk to a lawyer.
If you understand that, just initial right there.
If you decide to answer any of the questions
before you have an attorney here with,
like, you can even start or stop anytime you want.
So I think there is an acknowledgement,
when you read it in conjunction,
that you have a right to an attorney,
they will give it for free.
And if you decide to answer questions
without the attorney here,
you can stop at any time you want.
I don't think any,
I think that's sufficient to cover the basis of Miranda.
I also disagree with my sister,
where she, in her argument,
claimed that the defendant himself
was given an improper Miranda warning.
That certainly not borne out by the recording
or the findings of the judge.
As to the specific factual chronology
of the alleged indication of the right to remain silent.
Again, I urge the court to look at Judge Brady's findings
which aren't challenged,
but specifically, they get to the end of the Miranda forum,
Detective McLaughlin then said, and I'm quoting
from Judge Brady's findings,
"Okay. So if you understand all those things,
and you're willing to speak to us without a lawyer present,
you just have to sign right here
and then the officer will witness it."
The defendant responded, "I'm all set."
Detective McGlaughlin then said,
"You don't want to sign it?"
And the defendant said, "No."
That happened before he consulted with his parents.
If you look-
-: So what are we supposed to make of "No" there?
No means yes, no means no, I'm not sure what it means.
-: So here, I think at best it's ambiguous,
but here's where the chronology is important.
If you look at what happens next,
Mr. Fernandez then asked to speak to his son.
It's at that point that the recording is paused,
and the defendant goes and speaks to his parents
for 10 minutes, and then they waive the detectives back in.
So I'd say the waiving of the detectives back in
is evidence that it wasn't an unambiguous invocation
of right to silence.
But even more than that,
when they get back in the interview room,
after they're waived back in, Detective McLaughlin, again,
ask clarifying questions.
"We're just seeing if you want to talk to us,
you don't want to talk to us,
you don't want to tell us what happened."
I mean it's at that point that the defendant begins to-
-: Didn't they have an obligation to know
"I'm all set" to just do nothing?
You just stop and say it's a declination.
-: I don't believe so, because I believe
the case law says if it's unambiguous,
which I think given that they were-
-: What about "No, I'm all set."
If I said to you, would you like a hamburger?
you say, "No, I'm all set."
-: No, but if you say to me,
sort of a conjunction of two things,
which is what happened here.
You have to sign right here.
Okay. Do you want a hamburger
or do you want to sign right here?
And I say, "No, I'm all set."
I think that the case law says
you can ask a clarifying question-
-: Is he all set was in your mind and Judge Brady's mind,
apparently, was will you sign this?
-: And Detective McLaughlin does the same thing.
He says, "You mean you don't want to sign this?"
And he says "Yes."
-: Okay. So he says, "I don't want to sign this."
-: He says, "I don't want to sign this,"
and he says, "No," he says, "I don't want to sign it."
-: And then what happens?
-: And then the father says,
"I haven't really gotten a chance, what's going,"
that's when the father puts the brakes on.
-: Before you move that, if he doesn't want to sign it,
but what does that mean? How significant is that?
I take it you're interpreting,
or Judge Brady interpreted that to mean
he was willing to talk, but he didn't want to sign?
-: Well, you know, so I think
what the detectives did here is,
and what the case law says you can do
when you don't really know what to, how to respond,
to a response that you get
is to ask clarifying questions.
Here, what happens is, that happens, then the father,
it's at that point, almost that exact point
that the father says in English, like
"I don't know what happened,"
and he asked to go speak with his son.
So there's a pause in the proceedings after that,
"I'm all set."
And I think that pause is important, right?
And I think it's important,
as Judge Brady found,
that it's the defendant and his family
that waived the detectives back.
-: We have to agree with with your position, Judge Brady,
that it was an ambiguity,
during that "I'm all set" part
for it to proceed, correct? Katelyn: Yes.
-: Okay. -: Yes.
But either way, it gets interesting.
'Cause yes, I think that's sort of the yes,
but you could invoke and then invite back in.
So certainly at the point that they,
-: If he initiates -: If he initiates
If he initiates, I would say here it's,
but then the waving back in, that gets interesting.
I think even then they're sort of clarifying questions.
It doesn't launch into, so,
"Joshua tell us what happened."
It's more like, "Okay, you don't want to talk to us?
You don't want to talk to us?"
And then he starts talking.
So certainly, I think the most reasonable way
and I think certainly supported the way
that Judge Brady both found the facts and reasoned
is that this was ambiguity,
that there was a pause, that they do call them back in.
And that then, the defendant decides to respond
to the officer's questions.
-: How significant is his statement at trial?
-: Not very, not very significant.
It's interesting because it gives the defendant
an avenue of defense that he wouldn't otherwise have,
if it wasn't admitted in that he,
when he speaks to the police,
he gives in, he exculpates himself.
He puts himself there, but I mean, that's proof-
-: How does the Commonwealth use his statement in closing?
I can't remember.
-: The prosecutor played that part of the statement,
where he gave his version, and then used it to say,
"Look at, he is making up this story,
which is evidence of his guilt."
It doesn't give the Commonwealth sort of,
if you were looking at it in terms of,
does it fulfill any element of the crime
that the Commonwealth otherwise didn't have,
the answer to that is no.
And it has to be looked at in light
of the overwhelming evidence of-
-: The strong identification evidence here.
-: I'm sorry, can you-
-: The strong identification evidence in this case.
-: Absolutely, absolutely.
There's surveillance video and two eye witnesses
who watched the entire murder unfold, and so-
-: I can't remember the surveillance video,
how clear is the surveillance video?
-: The surveillance video, it's not the clearest,
it's from some distance away,
but it certainly supports the observations that were made.
The better evidence and the best evidence
is really Officer Williams and Mr. Singletary,
who were a feet away, who watched the entire thing.
-: Ms. Campbell, before you go to the closing argument issue
on the constitutional challenge to the statute,
is there any reason why Commonwealth versus Freeman
isn't dispositive of that issue on rational basis?
-: I'm sorry, I didn't hear-
-: Commonwealth versus Freeman.
-: Freeman, yes, I believe it is dispositive.
I believe it is dispositive, your honor.
And I'll move to the closing argument issue.
I disagree with my sister's reading of Lopes.
It was called an overly aggressive argument by this court,
three years ago in Lopes.
I think it's a fair reading that it was overly aggressive,
but if you look at really what it was a response to,
was in large part the argument made,
by attorney Scapicchio in her closing argument.
There was that curative instruction that was given,
which this court and Lobes held was sufficient to curate,
but it also has to be looked at
in light of how it was in conjunction with
the closing argument as a whole.
And certainly the attacks on Miss Scapicchio
were not the focus of the closing argument as a whole.
It has to be looked at in light of the overwhelming evidence
of the defendant's guilt,
and the other jury instructions that Judge Brady gave,
which included that closing arguments were not evidence,
which the jury is presumed to have followed.
(pages flipping)
If there are no further questions,
the Commonwealth will rest on its,
the remainder of its brief, but it urges this court
not to reduce the verdict under 33E.
This was an execution of a 14-year old
on a beautiful May night,
while he was doing nothing
but simply enjoying his life on the street.
And it absolutely supports the verdicts
of a first degree murder in this case.
Budd: Okay. Thank you, counsel.
Man: We'll all rise
(indistinct)
Commonwealth of Massachusetts.
(papers shuffling)