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SJC 12229, Commonwealth v. Nathaniel Brown,
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Attorney Cusick, take your time.
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Good morning your Honors.
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May it please the court,
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Tracey Cusick on behalf of the Commonwealth,
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your Honors, the Commonwealth is asking this court
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to vacate the allowance of the motion for new trial
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that was granted in the matter
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of Commonwealth versus Nathaniel Brown.
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Mr. Brown was convicted of the first degree murder
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of Jordan Baskin, who was 22 years old at the time.
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Your Honor, in this case, the Commonwealth's first argument
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I'd like to focus on is the motion judge's finding
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that counsel had an actual conflicts of interest
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that constrained the motion judge to grant the motion
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for new trial without a showing of prejudice.
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We don't have to get there
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if we decided on ineffective assistance, right.
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I believe that is potentially correct, your Honor.
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The actual conflict is a more complicated issue
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given all the colloquies.
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Yes, your Honor.
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And I suggest here with the conflict again,
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there were multiple colloquies
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by three trial judges who were, again, taking efforts
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to make sure that we did not end up here
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where there was an argument of a conflict of interest.
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Do you mind starting with the ineffective assistance?
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Certainly, your Honor.
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Your Honor, with respect
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to the ineffective assistance of counsel argument,
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I'd suggest here, counsel first did investigate this case
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by meeting with the defendant who was not in custody,
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who contacted, or a family member of his, contacted her
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and I suggest reading through
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all of the hearing at the motion for new trial
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and all of the paperwork
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suggests that the defendant certainly wanted
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to get that vehicle back,
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that the police had expressed an interest in
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and that they had custody of.
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There's some lack of clarity in the record
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about how the vehicle came to be in-
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But what happens when the counsel speaks
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to a client who lies to her?
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And that's what Judge Sullivan finds.
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Then they show up at the Milton Police Department
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and there's the CPAC DLT
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who said, "This is a murder case, your Honor."
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If this was a movie, the heavy music would come in.
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I mean, this is a big deal
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and then she continues to go forward with an interview.
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That's the problem.
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Well, your Honor, I would suggest here,
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counsel talked to the defendant about the dangers
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and ramifications of speaking with police
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and spent hours with him, according to her testimony,
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and said that she asked him first about the vehicle,
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anything to do with that vehicle,
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would that be implicated in anything?
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She never calls the police department though, right?
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Other than calls to arrange the logistics of an interview,
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no, she doesn't inquire specifically what it's about.
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Doesn't say, "Hey, my client wants the motor vehicle back.
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How does this happen?"
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Your Honor, it's not entirely clear what was said,
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but it's certainly clear from her testimony
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that the driving interest here
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was the defendant wanted the car back that was used
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by his child's mother to drive the child around.
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Yeah, I mean, given his representations,
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everything seems reasonable, I guess.
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But then when you get to the meeting itself,
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then I think you've got a problem.
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Well, your Honor, I'd suggest when they get to the meeting
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at the police station,
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first, the attorney had repeatedly asked the defendant
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if he had any issues in Milton, specifically in Milton,
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specifically in Quincy or anywhere else
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and the defendant continually said,
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"No, no, there's no issues."
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But then the officer tells her,
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this is in a murder investigation.
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And we're looking at your client's role.
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Right, so at that point,
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one would hope that counsel would pause
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and talk to her client again before entering the room.
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Well, in hindsight, it's I guess, easier to say
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that maybe that would've been a good thing to do.
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But not doing that,
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I suggest does not transform this
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into ineffective assistance of counsel.
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When you go with your client,
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you think maybe he's involved in some sort of drug issue,
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he's telling me he just wants the car back
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and then you hear murder,
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you don't think that ordinary counsel would say, "Aha?"
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I think in here, this attorney was not ineffective
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for not doing something different at the police station,
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because review of her testimony indicates
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she thought the police thought the car was involved
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in some kind of drug activity
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and she did say that she remained convinced
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that the car wasn't involved in any sort of crime
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and the defendant had told her it wasn't.
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But then, but then she hears the M word.
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And then she hears the M word,
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but I suggest it was the M word,
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also, it occurred in Milton
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and the defendant had indicated no problems in Milton
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and the police,
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she said she knew the police were investigating something
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in Milton, and so-
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In the light most favorable to her,
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she says, "I asked my client,
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'Do you got any problems in Milton?"
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He says, "Nope, I'm good in Milton."
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But then the police says, "There's a murder in Milton,
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we wanna talk to your guy about that murder."
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That's a different ballgame, isn't it?
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It could be that maybe the police are wrong
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in a light most favorable to the attorney,
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but at that point, there's a duty to inquire
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or a duty to get the heck out of there.
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Well, I suggest counsel already inquired of the defendant
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and again, the defendant is also, he's not in custody,
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he had counsel of his choosing
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and decided that they would go to the police station
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and was given Miranda warnings.
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And then we get those questions
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that happen in every murder case.
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What's your cell number?
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And the defendant, well, the first question was,
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"Do you know this person who was Jordan Baskin the victim?"
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And again, the defendant said he didn't.
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And again, that was not something counsel could have known
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and the defendant chose to lie in the police interview.
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But counsel knows he's lying
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once they ask about the cell phone, right?
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And does she keep allowing him to answer questions
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after he lies about the phone?
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I know she breaks for a second,
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but she keeps allowing him to, she knows he's now lying
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and he's lying in a way that's silly.
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Well, she knows that she had communicated with him
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on a cell phone and she recognized one of the numbers.
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So there was a break where she spoke to him
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and then the interview continued.
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But I suggest prior to that-
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Not only does she know we've gone from drugs to murder,
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but we've gone from lying to being caught lying
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and she knows it.
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I don't know, we're getting dicey, aren't we?
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Your Honor, in hindsight, we're certainly getting dicey,
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but looking at what we knew at the time-
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Effective assistance is, it's hindsight.
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We have to do a little hindsight.
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Well, if we look at what counsel knew at the time,
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she went to the interview with the defendant
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and if we also look
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at if the ineffective assistance and counsel analysis
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and a potential motion to suppress,
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I suggest that, I don't know the victim,
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that wouldn't have been suppressed
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and I suggest that if counsel should have stopped
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the interview after the cell phone lie,
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those two items I suggest wouldn't have been suppressed
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if there had been a motion to suppress.
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So the harm is the consciousness of guilt evidence
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that comes out of the client's mouth?
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Yes, that he does make these statements,
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which I suggest turn out to be,
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by inference, they were untrue.
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But again, when counsel, if the court were to say
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counsel should have stopped the interview
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when he lied about the cell phone,
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if there were to be a motion suppress,
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then perhaps everything after that point
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would be suppressed,
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but the fact that the defendant lied
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about knowing the victim,
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lied about being at the victim's home
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and lied about the cell phone,
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I suggest would not have been suppressed.
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But the thing is, he shouldn't have been in there
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talking to the police in the first place, right?
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No, your Honor,
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I suggested it was his decision to go there.
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Even after he heard that it was a murder investigation?
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Again, the defendant was not in custody.
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He chose an attorney.
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He went there, he made certain statements
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and he was allowed to leave after the interview.
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I guess my point is, what was the attorney's role?
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What was his attorney's role
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in terms of guiding him, the defendant?
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She warned him of the dangers
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or ramifications of speaking to police
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and she said, "If there's anything,
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even if you don't wanna tell me what it is,
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don't speak to the police."
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So there's nothing to support the motion,
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Judge's finding that based on what she said to him prior
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to going to the interview,
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that he made these statements to police,
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the motion judge made an inference
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that based on counsel's deficient work,
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I don't know the exact wording,
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that's why he made a statement to police
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and I suggest that that's not born out by the record.
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We said that it's not categorical,
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the decision to walk your client into the police station,
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that's not categorically ineffective,
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but we said it needs to be accompanied by an investigation.
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Here we have an investigation
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that was solely directed to the client,
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but none to the police.
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So this is the next case we're talking about.
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What is the scope of that investigation, correct?
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Well, your Honor, I suggest yes.
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And here again, it's a non-custodial interview,
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this is not someone who is being held
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by police in a situation where there's a murder warrant
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in some of the cases,
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or that the defendant is somehow being told,
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maybe you'll get to leave the police station
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if you talk to us.
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It's not that situation.
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They voluntarily went there
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and again, here it was, the defendant chose his attorney,
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chose what to tell her, chose to be untruthful with her
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and chose to go to the police station
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to make these statements.
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What is the record on what the attorney asked the police
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when setting up the interview?
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There's a little bit of inconsistencies in it.
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It appears that the attorney was primarily setting up
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the logistics, but with the defendant's request to do so.
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She said she would never set a meeting up with police
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unless her client wanted her to do so.
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So the record, for example,
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did she say, "What do you wanna talk to my client about?"
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There's nothing in the record to indicate that,
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it doesn't appear she made that inquiry.
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And the findings are contrary to that.
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Excuse me your Honor?
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Judge Sullivan's findings are contrary to that.
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Yes, your Honor.
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It appears that it was purely logistical
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what the attorney was arranging
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and again, it was the defendant was telling her,
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"I want this car back."
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And it was a big problem
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because they didn't have the car
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for the child's mother to use.
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And again, I suggest that,
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oh, maybe the car wasn't part of this offense,
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maybe it was just a coincidence that police had that video
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and that was what potentially prompted the defendant
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to really wanna emphasize getting this car back.
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But I suggest he did go to the police station
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with counsel who he had, again, lied to
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and it's unclear what counsel could have done
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prior to going to the police station
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00:12:25.590 --> 00:12:27.810
and again told it was a murder.
266
00:12:27.810 --> 00:12:29.610
Perhaps that was surprising to counsel,
267
00:12:29.610 --> 00:12:32.430
but again, she had inquired of him if he had any issues
268
00:12:32.430 --> 00:12:33.720
that he didn't wanna tell her about,
269
00:12:33.720 --> 00:12:34.770
don't go to the police.
270
00:12:34.770 --> 00:12:37.620
Counsel if she had heard, let's just imagine,
271
00:12:37.620 --> 00:12:39.030
this is not the record we have,
272
00:12:39.030 --> 00:12:40.920
but if she had heard the day before,
273
00:12:40.920 --> 00:12:42.270
she had asked that question,
274
00:12:42.270 --> 00:12:45.480
and she said, "By the way, what is this about?"
275
00:12:45.480 --> 00:12:47.707
And the person on the phone said,
276
00:12:47.707 --> 00:12:49.980
"It's a murder investigation."
277
00:12:49.980 --> 00:12:51.600
Do you think that she would've had a duty
278
00:12:51.600 --> 00:12:52.980
to ob investigate at that point
279
00:12:52.980 --> 00:12:55.410
before bringing her client in the next day?
280
00:12:55.410 --> 00:12:57.570
I think it would've been a good idea to investigate.
281
00:12:57.570 --> 00:12:59.850
But whether it would be ineffective for not doing so,
282
00:12:59.850 --> 00:13:01.620
I don't think so, because again,
283
00:13:01.620 --> 00:13:04.310
she's relying on what her client has hired her to do.
284
00:13:04.310 --> 00:13:06.030
So you don't think it would be ineffective
285
00:13:06.030 --> 00:13:08.550
to rely on her client's prior denials
286
00:13:08.550 --> 00:13:11.670
that he had done anything wrong in connection with the car,
287
00:13:11.670 --> 00:13:12.720
which it sounds from the record
288
00:13:12.720 --> 00:13:14.430
it was a pretty specific to the car.
289
00:13:14.430 --> 00:13:16.620
He said there's no evidence in the car,
290
00:13:16.620 --> 00:13:18.600
which turned out to be correct.
291
00:13:18.600 --> 00:13:21.390
So you're saying that there would not be ineffectiveness
292
00:13:21.390 --> 00:13:22.650
if she did nothing more
293
00:13:22.650 --> 00:13:25.200
after hearing it was a murder investigation,
294
00:13:25.200 --> 00:13:28.088
after receiving the earlier day
295
00:13:28.088 --> 00:13:29.790
the news from her client
296
00:13:29.790 --> 00:13:33.210
that he didn't think he was worried about the car?
297
00:13:33.210 --> 00:13:35.400
Well, your Honor, I suggested it was more than just a car,
298
00:13:35.400 --> 00:13:37.410
was what counsel talked to the defendant about.
299
00:13:37.410 --> 00:13:39.150
She talked to him about any issues.
300
00:13:39.150 --> 00:13:41.010
She talked first about the car,
301
00:13:41.010 --> 00:13:44.100
but she also said, "Are there any issues at all,
302
00:13:44.100 --> 00:13:45.707
even if you don't want to tell me what they are?"
303
00:13:45.707 --> 00:13:49.140
And so she would not have had to follow up with him?
304
00:13:49.140 --> 00:13:52.080
It would not be constitutionally ineffective or deficient
305
00:13:52.080 --> 00:13:54.030
for her not to follow up with him
306
00:13:54.030 --> 00:13:56.100
after learning it was a murder investigation,
307
00:13:56.100 --> 00:13:58.230
before walking into the interview?
308
00:13:58.230 --> 00:14:00.360
Your Honor, in this case, we also have the affidavit
309
00:14:00.360 --> 00:14:02.130
of the defendant who didn't testify,
310
00:14:02.130 --> 00:14:04.320
but he indicated in a sworn affidavit
311
00:14:04.320 --> 00:14:07.200
that he had heard that the police word was out,
312
00:14:07.200 --> 00:14:08.280
that people were looking for him
313
00:14:08.280 --> 00:14:09.446
in connection to a murder.
314
00:14:09.446 --> 00:14:11.370
But the focus is on the counsel's conduct here.
315
00:14:11.370 --> 00:14:14.880
So the question is, if counsel had learned a bit earlier
316
00:14:14.880 --> 00:14:17.340
that this was actually a murder investigation,
317
00:14:17.340 --> 00:14:19.620
would it be deficient of her not to follow up,
318
00:14:19.620 --> 00:14:22.860
at least with the client, and possibly otherwise,
319
00:14:22.860 --> 00:14:25.050
before going into that interview?
320
00:14:25.050 --> 00:14:27.210
In the circumstances again, of this record,
321
00:14:27.210 --> 00:14:30.150
I suggest it's not per se, ineffective,
322
00:14:30.150 --> 00:14:33.750
again, it would be a good idea to inquire of the client,
323
00:14:33.750 --> 00:14:35.430
but again, in this case,
324
00:14:35.430 --> 00:14:37.620
we have the defendant is sitting there with his lawyer.
325
00:14:37.620 --> 00:14:39.748
He is hearing what's being said.
326
00:14:39.748 --> 00:14:42.060
But akin to what I was getting at,
327
00:14:42.060 --> 00:14:44.490
and I'm sure you're getting that,
328
00:14:44.490 --> 00:14:47.460
is that if she had heard the day before,
329
00:14:47.460 --> 00:14:49.650
I think you say it would've been a good idea
330
00:14:49.650 --> 00:14:51.540
for her to follow up again with her client
331
00:14:51.540 --> 00:14:53.850
and maybe even do other investigation.
332
00:14:53.850 --> 00:14:55.020
As it actually happened here,
333
00:14:55.020 --> 00:14:57.900
she didn't hear until she's at the station,
334
00:14:57.900 --> 00:14:59.580
but at that point she has options available
335
00:14:59.580 --> 00:15:00.990
to her still, does she not?
336
00:15:00.990 --> 00:15:01.823
At the station?
337
00:15:01.823 --> 00:15:02.656
Yeah, they could have left.
338
00:15:02.656 --> 00:15:04.590
I mean, they could have turned around and left.
339
00:15:04.590 --> 00:15:08.190
She did ultimately terminate the interview later on
340
00:15:08.190 --> 00:15:09.720
when the officers asked the defendant
341
00:15:09.720 --> 00:15:11.580
to remove the bandage on his hand.
342
00:15:11.580 --> 00:15:13.710
But I suggested it was not ineffective,
343
00:15:13.710 --> 00:15:16.560
even if she had known earlier, it was about a murder,
344
00:15:16.560 --> 00:15:19.830
again, where she had inquired specifically of her client
345
00:15:19.830 --> 00:15:22.890
and told him specifically of the dangers and ramifications
346
00:15:22.890 --> 00:15:24.630
of speaking to police.
347
00:15:24.630 --> 00:15:27.268
So let's just say we think it's ineffective.
348
00:15:27.268 --> 00:15:29.370
Is there a substantial likelihood here
349
00:15:29.370 --> 00:15:31.020
of a miscarriage of justice?
350
00:15:31.020 --> 00:15:32.190
I would suggest there isn't,
351
00:15:32.190 --> 00:15:34.530
given that there is quite a lot of evidence,
352
00:15:34.530 --> 00:15:35.940
perhaps overwhelming evidence,
353
00:15:35.940 --> 00:15:38.043
of the defendant's guilt in this matter.
354
00:15:40.260 --> 00:15:42.360
What do we do with the closing argument, though?
355
00:15:42.360 --> 00:15:45.360
Where the prosecutor really focused,
356
00:15:45.360 --> 00:15:47.730
at least for some part of the closing argument,
357
00:15:47.730 --> 00:15:51.630
on the consciousness of guilt stemming from the interview?
358
00:15:51.630 --> 00:15:53.640
I suggest that that's one part
359
00:15:53.640 --> 00:15:56.580
of a fairly comprehensive closing argument
360
00:15:56.580 --> 00:15:57.413
and that there was ample-
361
00:15:57.413 --> 00:15:59.280
What's your best analogous case
362
00:15:59.280 --> 00:16:01.770
where we said no substantial likelihood
363
00:16:01.770 --> 00:16:05.580
of miscarriage of justice, where there is this argument
364
00:16:05.580 --> 00:16:07.740
of consciousness of guilt in the closing
365
00:16:07.740 --> 00:16:09.813
and overwhelming evidence of guilt?
366
00:16:11.040 --> 00:16:14.640
Your Honor, I apologize, case names aren't coming to mind.
367
00:16:14.640 --> 00:16:16.473
Okay, I'll look, thank you though.
368
00:16:19.252 --> 00:16:20.085
If there are no further questions,
369
00:16:20.085 --> 00:16:21.693
I would rest on my brief.
370
00:16:23.390 --> 00:16:24.263
Okay, thank you.
371
00:16:27.270 --> 00:16:28.563
Okay, attorney Cunha.
372
00:16:34.380 --> 00:16:35.213
Good morning, your Honor.
373
00:16:35.213 --> 00:16:37.533
It's John Henry Cunha for Mr. Brown.
374
00:16:39.240 --> 00:16:43.443
Before I begin, reading our brief over the weekend,
375
00:16:47.670 --> 00:16:51.028
I was appalled at some of the typos.
376
00:16:51.028 --> 00:16:52.620
(participants laughing)
377
00:16:52.620 --> 00:16:55.470
And I think, I don't know if you noticed,
378
00:16:55.470 --> 00:16:58.680
but we got the brief in at 11:02 PM
379
00:16:58.680 --> 00:17:02.190
and I thought we had vetted it properly,
380
00:17:02.190 --> 00:17:05.430
but we did not, other than being embarrassing,
381
00:17:05.430 --> 00:17:07.590
there are a couple that I'd like to point out to you.
382
00:17:07.590 --> 00:17:12.590
One is on page 11 where the word told is repeated twice,
383
00:17:12.810 --> 00:17:15.060
and it's a little unclear what I'm talking about
384
00:17:15.060 --> 00:17:17.151
and that is that in fact,
385
00:17:17.151 --> 00:17:22.151
trial counsel called a Milton police detective
386
00:17:22.266 --> 00:17:26.493
and was told by that detective, who was also a woman,
387
00:17:30.720 --> 00:17:33.720
no, pardon me, trial counsel told the police detective,
388
00:17:33.720 --> 00:17:36.120
who was also a woman, the location of the car
389
00:17:36.120 --> 00:17:38.292
and where it could be picked up.
390
00:17:38.292 --> 00:17:42.240
Perhaps more egregiously on page-
391
00:17:42.240 --> 00:17:44.591
Is the error, what was the error?
392
00:17:44.591 --> 00:17:48.030
It's ambiguous as to,
393
00:17:48.030 --> 00:17:50.580
I use trial counsel who was a woman
394
00:17:50.580 --> 00:17:53.252
and then used her and told us, said twice.
395
00:17:53.252 --> 00:17:54.250
I see, okay.
396
00:17:54.250 --> 00:17:55.602
So it's a little unclear who told who what.
397
00:17:55.602 --> 00:17:57.300
I got you, the pronoun was redundant.
398
00:17:57.300 --> 00:17:59.910
Before you fall on your sword some more on typos,
399
00:17:59.910 --> 00:18:03.120
can I shift you to the substance for a second?
400
00:18:03.120 --> 00:18:03.953
Sure.
401
00:18:03.953 --> 00:18:08.400
So and again, having not been in your shoes,
402
00:18:08.400 --> 00:18:11.100
so you call the police, you're defense counsel,
403
00:18:11.100 --> 00:18:12.450
you call the police, do they tell you
404
00:18:12.450 --> 00:18:14.730
what they're investigating, do they?
405
00:18:14.730 --> 00:18:15.870
Unless you ask them!
406
00:18:15.870 --> 00:18:19.170
But if you ask them, do they have any kind of obligation?
407
00:18:19.170 --> 00:18:21.008
Nope, they don't.
408
00:18:21.008 --> 00:18:22.650
So, often you get stiffed, is that right?
409
00:18:22.650 --> 00:18:27.360
Well, this is a pretty unusual circumstance, Judge.
410
00:18:27.360 --> 00:18:31.327
I personally, and I know that this court has said
411
00:18:33.840 --> 00:18:38.040
that it isn't per se ineffective to bring your client
412
00:18:38.040 --> 00:18:41.250
to speak to the police, but I would point out to you
413
00:18:41.250 --> 00:18:45.060
what Justice Jackson said in Watts v. Indiana,
414
00:18:45.060 --> 00:18:47.220
which is quoted by this court, and Simon,
415
00:18:47.220 --> 00:18:50.490
and I quote, "Any lawyer worth his salt
416
00:18:50.490 --> 00:18:53.040
will tell the suspect in no uncertain terms
417
00:18:53.040 --> 00:18:56.173
to make no statement to police under any circumstances."
418
00:18:56.173 --> 00:18:57.930
I'm just trying to figure out
419
00:18:57.930 --> 00:19:01.195
sort of we've rejected that, though.
420
00:19:01.195 --> 00:19:03.060
Well, I'm not so sure you have Judge,
421
00:19:03.060 --> 00:19:05.460
because the word, "Suspect," is important there.
422
00:19:06.870 --> 00:19:08.790
In other words, somebody may not be a suspect
423
00:19:08.790 --> 00:19:11.250
and counsel may say it's appropriate
424
00:19:11.250 --> 00:19:12.510
to speak to the police.
425
00:19:12.510 --> 00:19:15.930
But here we have, at least, I guess you could infer,
426
00:19:15.930 --> 00:19:16.890
that they'd say something,
427
00:19:16.890 --> 00:19:19.020
because when I went to the police station,
428
00:19:19.020 --> 00:19:22.110
the lead investigator says, "Here's why we're here."
429
00:19:22.110 --> 00:19:23.910
They didn't just wait to get him in the box
430
00:19:23.910 --> 00:19:25.489
and ask him questions.
431
00:19:25.489 --> 00:19:26.493
No, that's right
432
00:19:26.493 --> 00:19:28.163
and they didn't surprise him halfway through the interview.
433
00:19:29.372 --> 00:19:30.722
I will say this too, Judge,
434
00:19:32.520 --> 00:19:35.460
the Commonwealth's argument is premised on the fact
435
00:19:35.460 --> 00:19:40.170
that Mr. Brown lied to trial counsel about being guilty
436
00:19:40.170 --> 00:19:42.540
and I know we have a guilty finding here,
437
00:19:42.540 --> 00:19:45.330
but I don't accept that premise.
438
00:19:45.330 --> 00:19:50.330
The focus was on the car, was on the automobile.
439
00:19:51.353 --> 00:19:53.434
Oh, no, the findings as I read them was,
440
00:19:53.434 --> 00:19:56.340
did you do anything in Milton?
441
00:19:56.340 --> 00:19:58.860
Right and he says he didn't!
442
00:19:58.860 --> 00:20:01.590
He says he didn't, he still says he didn't.
443
00:20:01.590 --> 00:20:04.080
Well, I get you on that one, right.
444
00:20:04.080 --> 00:20:08.640
So either way, he's got a problem
445
00:20:08.640 --> 00:20:11.040
that she's not advising him about.
446
00:20:11.040 --> 00:20:13.830
He's got a problem that the police know about
447
00:20:13.830 --> 00:20:17.370
and that she doesn't.
448
00:20:17.370 --> 00:20:20.253
And I know that, frankly,
449
00:20:24.900 --> 00:20:28.380
walking a client into a police station and being told that,
450
00:20:28.380 --> 00:20:32.670
my client is telling me that that there's nothing here,
451
00:20:32.670 --> 00:20:33.960
but I think it's about drugs.
452
00:20:33.960 --> 00:20:35.460
So already she's going there
453
00:20:35.460 --> 00:20:38.280
thinking that she's walking the client in,
454
00:20:38.280 --> 00:20:40.380
even though he's denying any problem.
455
00:20:40.380 --> 00:20:41.550
She's already thinking
456
00:20:41.550 --> 00:20:43.650
that he's got criminal responsibility.
457
00:20:43.650 --> 00:20:45.723
She's done no investigation.
458
00:20:49.260 --> 00:20:52.650
I do not in any way concede that bringing him there
459
00:20:52.650 --> 00:20:55.170
without doing an investigation is acceptable.
460
00:20:55.170 --> 00:20:58.140
It's not and then being told that,
461
00:20:58.140 --> 00:20:59.700
walking in the door and being told,
462
00:20:59.700 --> 00:21:01.860
oh, by the way, this is a murder.
463
00:21:01.860 --> 00:21:05.520
And okay, what do you want to know?
464
00:21:05.520 --> 00:21:09.603
I mean, frankly, the conduct is outrageous.
465
00:21:11.310 --> 00:21:14.910
This is an actual conflict of interest
466
00:21:14.910 --> 00:21:18.563
and the lawyer should-
467
00:21:18.563 --> 00:21:20.250
Is that a separate argument?
468
00:21:20.250 --> 00:21:21.270
I mean, let's stick
469
00:21:21.270 --> 00:21:23.640
with the ineffective assistance of counsel for a moment.
470
00:21:23.640 --> 00:21:27.720
Why, assuming we agree with you that this was ineffective,
471
00:21:27.720 --> 00:21:31.050
once she heard it was the murder investigation,
472
00:21:31.050 --> 00:21:32.910
why is there a substantial likelihood
473
00:21:32.910 --> 00:21:34.739
of a miscarriage of justice, given,
474
00:21:34.739 --> 00:21:38.040
although I'm sure your client proclaims his innocence,
475
00:21:38.040 --> 00:21:39.750
there was a lot of evidence
476
00:21:39.750 --> 00:21:43.800
suggesting that he and the victim were planning to meet up,
477
00:21:43.800 --> 00:21:46.470
that they were waiting for each other
478
00:21:46.470 --> 00:21:51.470
minutes before the actual murder, so tell me why,
479
00:21:51.930 --> 00:21:54.570
given the nature of the evidence against him,
480
00:21:54.570 --> 00:21:56.280
this is a substantial likelihood
481
00:21:56.280 --> 00:21:57.450
of a miscarriage of justice?
482
00:21:57.450 --> 00:21:58.500
I will reply to that Judge,
483
00:21:58.500 --> 00:22:01.800
but I don't think you can separate the fact,
484
00:22:01.800 --> 00:22:05.010
this is not a situation where one lawyer,
485
00:22:05.010 --> 00:22:06.660
say for instance in Celeste,
486
00:22:06.660 --> 00:22:11.660
there's one lawyer who misconduct is questioned,
487
00:22:11.880 --> 00:22:13.650
but is not the trial lawyer.
488
00:22:13.650 --> 00:22:15.000
You can't separate the fact
489
00:22:15.000 --> 00:22:16.950
that the lawyer who took him to the station
490
00:22:16.950 --> 00:22:20.301
is also the lawyer who was the trial counsel
491
00:22:20.301 --> 00:22:22.473
and it's an actual conflict.
492
00:22:23.392 --> 00:22:25.770
And to answer your question,
493
00:22:25.770 --> 00:22:30.770
and we have spent a lot of paper,
494
00:22:31.050 --> 00:22:32.310
for the first time in my career,
495
00:22:32.310 --> 00:22:33.780
I filed an oversized brief here,
496
00:22:33.780 --> 00:22:34.950
because I felt that the facts
497
00:22:34.950 --> 00:22:36.750
were so important to this court
498
00:22:36.750 --> 00:22:37.890
and I'd suggest
499
00:22:37.890 --> 00:22:41.080
that the evidence against him was not overwhelming
500
00:22:42.060 --> 00:22:45.111
and that no one saw him on the scene.
501
00:22:45.111 --> 00:22:47.970
There is this possibility
502
00:22:47.970 --> 00:22:52.020
that a car that's associated with him was seen
503
00:22:52.020 --> 00:22:54.603
driving into Milton and out of Milton.
504
00:22:57.300 --> 00:23:00.060
He's the last drug deal.
505
00:23:00.060 --> 00:23:01.980
He is the last possible drug deal.
506
00:23:01.980 --> 00:23:04.320
Right, that's the strongest evidence the government has,
507
00:23:04.320 --> 00:23:06.720
is there's a drug deal gone bad
508
00:23:06.720 --> 00:23:11.370
and he's the last person identifiable by cell phone records,
509
00:23:11.370 --> 00:23:15.090
text messages, et cetera, to engage that drug deal.
510
00:23:15.090 --> 00:23:17.640
Well, as a possibility, we don't know that, we don't know.
511
00:23:17.640 --> 00:23:20.010
Right. And then there's the fingerprint
512
00:23:20.010 --> 00:23:25.010
on the bag of drugs, there's the palm print on the porch.
513
00:23:25.200 --> 00:23:26.610
Right, well, he's been there before.
514
00:23:26.610 --> 00:23:31.610
There's is a relationship, albeit an illegal relationship-
515
00:23:33.665 --> 00:23:35.250
I don't think the relationship's illegal.
516
00:23:35.250 --> 00:23:37.170
That's based on illegality.
517
00:23:37.170 --> 00:23:42.083
And with respect to the bag, there was testimony from-
518
00:23:42.083 --> 00:23:43.710
And his cell phone?
519
00:23:43.710 --> 00:23:46.440
There was testimony from people in the car
520
00:23:46.440 --> 00:23:50.700
that they had purchased drugs from him earlier that day.
521
00:23:50.700 --> 00:23:53.430
So the fact that there's a fingerprint on a bag
522
00:23:53.430 --> 00:23:54.845
is consistent with that.
523
00:23:54.845 --> 00:23:55.678
But what about the DNA
524
00:23:55.678 --> 00:23:57.420
under the fingernails and the cut?
525
00:23:57.420 --> 00:24:00.690
Yep, again, the cut actually,
526
00:24:00.690 --> 00:24:03.690
the government didn't emphasize that.
527
00:24:03.690 --> 00:24:06.571
Although I would agree with you Judge
528
00:24:06.571 --> 00:24:09.420
that it is inculpatory
529
00:24:09.420 --> 00:24:10.972
and that's one of the problems with
530
00:24:10.972 --> 00:24:13.950
bringing him to that interrogation.
531
00:24:13.950 --> 00:24:15.480
But the DNA under the fingernails
532
00:24:15.480 --> 00:24:16.530
is really Inculpatory.
533
00:24:16.530 --> 00:24:18.930
Well, both the commonwealth expert
534
00:24:18.930 --> 00:24:20.370
and the defense expert
535
00:24:20.370 --> 00:24:24.540
said that it's easily placed under the fingernails
536
00:24:24.540 --> 00:24:27.993
and the defense expert said it could last for weeks.
537
00:24:29.476 --> 00:24:34.020
But it's of a prior fight between these two?
538
00:24:34.020 --> 00:24:35.580
Well, no one was focusing on that judge.
539
00:24:35.580 --> 00:24:36.780
So I don't know the answer to that.
540
00:24:36.780 --> 00:24:39.000
See, I would've thought that you might focus
541
00:24:39.000 --> 00:24:43.140
on the fact that the prosecutor used the interview
542
00:24:43.140 --> 00:24:47.010
as consciousness of guilt to buttress any holes
543
00:24:47.010 --> 00:24:51.360
in what might be considered lots of evidence
544
00:24:51.360 --> 00:24:54.120
that your client and this victim were together
545
00:24:54.120 --> 00:24:55.803
right before he was killed.
546
00:24:58.236 --> 00:24:59.874
Are you not suggesting that?
547
00:24:59.874 --> 00:25:02.310
Are you saying that, that closing argument
548
00:25:02.310 --> 00:25:05.289
was really not the the thing that brought everything in?
549
00:25:05.289 --> 00:25:06.867
No, I'm saying that closing argument was very important
550
00:25:06.867 --> 00:25:09.780
and frankly, in addition to the closing argument,
551
00:25:09.780 --> 00:25:13.950
there was a very powerful jury instruction
552
00:25:13.950 --> 00:25:16.260
on consciousness of guilt
553
00:25:16.260 --> 00:25:19.468
that specifically mentioned the lies
554
00:25:19.468 --> 00:25:22.680
that Mr. Brown had told to the police
555
00:25:22.680 --> 00:25:24.030
when he was interviewed.
556
00:25:24.030 --> 00:25:25.740
So no, I definitely think
557
00:25:25.740 --> 00:25:30.740
that the closing argument was very important.
558
00:25:31.760 --> 00:25:33.720
But I'm suggesting, Judge,
559
00:25:33.720 --> 00:25:36.003
that it's not an overwhelming case.
560
00:25:38.104 --> 00:25:40.200
So I know why you want to get to conflict,
561
00:25:40.200 --> 00:25:43.530
because then there's no prejudice problem
562
00:25:43.530 --> 00:25:44.610
on an actual conflict.
563
00:25:44.610 --> 00:25:45.443
That's correct, judge.
564
00:25:45.443 --> 00:25:47.310
And I don't think you can actually separate them.
565
00:25:47.310 --> 00:25:50.056
Right, well, I think you can, but let's get through this.
566
00:25:50.056 --> 00:25:52.740
Well, you're the judge!
567
00:25:52.740 --> 00:25:55.260
But anyway, so there's two arguments raised,
568
00:25:55.260 --> 00:25:56.550
one's the ineffective assistance,
569
00:25:56.550 --> 00:25:58.410
which requires a showing of prejudice
570
00:25:58.410 --> 00:26:01.860
and the second is potential conflict versus actual conflict.
571
00:26:01.860 --> 00:26:04.173
Actual conflict, you win, no matter what.
572
00:26:05.490 --> 00:26:08.790
I'm just troubled by the multiple colloquies,
573
00:26:08.790 --> 00:26:12.180
including the ones by the DA who say, wait a minute,
574
00:26:12.180 --> 00:26:14.970
we're gonna end up in front of the SJC here,
575
00:26:14.970 --> 00:26:16.110
let's talk to this
576
00:26:16.110 --> 00:26:18.930
and the DA raises this like three times
577
00:26:18.930 --> 00:26:23.580
and judges have various colloquies with your client
578
00:26:23.580 --> 00:26:24.500
to the judges satisfaction.
579
00:26:24.500 --> 00:26:26.673
So the prosecutor mentioned it once.
580
00:26:27.810 --> 00:26:30.439
And that was not during the colloquy,
581
00:26:30.439 --> 00:26:32.970
I believe it was in the same hearing
582
00:26:32.970 --> 00:26:34.050
as the colloquy.
583
00:26:34.050 --> 00:26:37.230
So there was a conversation then the colloquy follows.
584
00:26:37.230 --> 00:26:41.013
Right and the colloquy was all about the Patterson issue.
585
00:26:42.690 --> 00:26:44.700
Any waiver has to be knowing and intelligent,
586
00:26:44.700 --> 00:26:49.440
that's just essential black letter, constitutional.
587
00:26:49.440 --> 00:26:52.590
Patterson Issue is that she would be a witness?
588
00:26:52.590 --> 00:26:53.670
That's correct.
589
00:26:53.670 --> 00:26:54.690
And that's different
590
00:26:54.690 --> 00:26:56.490
from the conflict you're talking about,
591
00:26:56.490 --> 00:26:58.710
which is she doesn't file the motions to suppress
592
00:26:58.710 --> 00:27:00.150
'cause she's gonna look stupid
593
00:27:00.150 --> 00:27:01.560
based on ineffective assistance?
594
00:27:01.560 --> 00:27:06.560
Correct, they step around the Patterson issue
595
00:27:07.890 --> 00:27:12.090
by saying, "We agree with the police report."
596
00:27:12.090 --> 00:27:13.560
And the police report, for instance,
597
00:27:13.560 --> 00:27:15.240
doesn't say that she stepped out
598
00:27:15.240 --> 00:27:17.520
to speak to him in the hallway halfway through
599
00:27:17.520 --> 00:27:20.220
and she says, we agree entirely with that,
600
00:27:20.220 --> 00:27:21.053
that's another issue.
601
00:27:21.053 --> 00:27:24.150
But I haven't read these, but it's clear in the colloquy
602
00:27:24.150 --> 00:27:25.200
their focus on the fact
603
00:27:25.200 --> 00:27:28.800
that the issue is whether she's gonna have to testify
604
00:27:28.800 --> 00:27:31.680
to contradict the police and what they said,
605
00:27:31.680 --> 00:27:36.000
not that she's going to confirm, "I messed up."
606
00:27:36.000 --> 00:27:39.886
That's correct and also, Justice Kafker
607
00:27:39.886 --> 00:27:44.886
the possibility also is that although we agree
608
00:27:45.120 --> 00:27:48.390
with this police report, we don't know,
609
00:27:48.390 --> 00:27:51.090
there may be something that comes out during the trial
610
00:27:51.090 --> 00:27:53.040
where she would have to testify
611
00:27:53.040 --> 00:27:54.660
and he waived that,
612
00:27:54.660 --> 00:27:57.117
he waived anything with respect to the Patterson Issue.
613
00:27:57.117 --> 00:28:00.513
I'm just trying to understand the breadth of this.
614
00:28:01.590 --> 00:28:03.690
If every time someone's ineffective
615
00:28:03.690 --> 00:28:07.910
for not filing a motion to suppress, you're limiting it.
616
00:28:11.790 --> 00:28:16.530
The conflict of interest arises when it's your own what?
617
00:28:16.530 --> 00:28:20.460
'Cause we'll often fail to file motions to suppress
618
00:28:20.460 --> 00:28:21.850
and try the cases
619
00:28:22.789 --> 00:28:24.939
and I'm just trying to understand the rule.
620
00:28:27.630 --> 00:28:28.650
This has the potential
621
00:28:28.650 --> 00:28:31.140
to be a giant conflict of interest thing
622
00:28:31.140 --> 00:28:32.100
you're creating here.
623
00:28:32.100 --> 00:28:34.020
I'm just trying to understand it's limitation.
624
00:28:34.020 --> 00:28:35.840
I don't think I created this judge,
625
00:28:35.840 --> 00:28:37.650
I think that the trial counsel created it.
626
00:28:37.650 --> 00:28:41.850
But it's her conduct, she could not even evaluate
627
00:28:41.850 --> 00:28:43.620
whether to file a motion to suppress.
628
00:28:43.620 --> 00:28:45.213
This isn't just a motion to suppress
629
00:28:45.213 --> 00:28:47.040
that should have been filed by her,
630
00:28:47.040 --> 00:28:49.380
she could not file a motion to suppress.
631
00:28:49.380 --> 00:28:52.320
So I mean, Celeste comes out
632
00:28:52.320 --> 00:28:54.037
and the judge says, "Wait a minute."
633
00:28:54.037 --> 00:28:54.870
"Take a look."
634
00:28:54.870 --> 00:28:56.970
"Everybody read this and then let's talk."
635
00:28:56.970 --> 00:28:59.466
Right and no one does.
636
00:28:59.466 --> 00:29:01.230
So it wasn't like the Celeste issue wasn't raised.
637
00:29:01.230 --> 00:29:03.810
The judge said, "Let's have a reading session."
638
00:29:03.810 --> 00:29:05.142
And nobody does!
639
00:29:05.142 --> 00:29:09.120
What's result of that discussion?
640
00:29:09.120 --> 00:29:12.810
Zip, Celeste's never mentioned again
641
00:29:12.810 --> 00:29:15.480
until the trial judge does.
642
00:29:15.480 --> 00:29:20.163
I think she references it, but neither lawyer,
643
00:29:21.330 --> 00:29:25.710
neither the prosecutor nor nor trial counsel at any time,
644
00:29:25.710 --> 00:29:28.620
the word, "Celeste," never passes either of their lips.
645
00:29:28.620 --> 00:29:32.640
Was the timing of Celeste after the last colloquy?
646
00:29:32.640 --> 00:29:37.640
Yes, after both, there were two colloquies, not three.
647
00:29:37.860 --> 00:29:41.700
The trial judge mentions the fact that there were colloquies
648
00:29:41.700 --> 00:29:45.245
and opined that they were good colloquies
649
00:29:45.245 --> 00:29:49.440
and I think they were, with respect to the Patterson Issue,
650
00:29:49.440 --> 00:29:52.230
but not with respect to the issue
651
00:29:52.230 --> 00:29:54.180
that was raised by Celeste.
652
00:29:54.180 --> 00:29:57.600
And neither counsel ever mentioned Celeste.
653
00:29:57.600 --> 00:30:00.120
In fact, when asked
654
00:30:00.120 --> 00:30:01.890
at the hearing on the motion for new trial-
655
00:30:01.890 --> 00:30:06.450
But I thought the prosecutor mentioned
656
00:30:06.450 --> 00:30:08.670
the possibility of a motion to suppress.
657
00:30:08.670 --> 00:30:10.765
That was before Celeste.
658
00:30:10.765 --> 00:30:13.893
Yes, that's what Justice Gaziano just said.
659
00:30:16.080 --> 00:30:17.220
And nobody says anything.
660
00:30:17.220 --> 00:30:22.020
Yeah and maybe the colloquy didn't match that comment
661
00:30:22.020 --> 00:30:23.160
and then Celeste comes up,
662
00:30:23.160 --> 00:30:25.530
so there was a second opportunity to get to this.
663
00:30:25.530 --> 00:30:26.380
Correct.
664
00:30:27.240 --> 00:30:28.830
And your view is
665
00:30:28.830 --> 00:30:31.130
neither of colloquies was sufficient for that.
666
00:30:32.580 --> 00:30:35.490
Judge, I think frankly, if you read it,
667
00:30:35.490 --> 00:30:37.050
it's very clear.
668
00:30:37.050 --> 00:30:39.450
They're talking about her testimony.
669
00:30:39.450 --> 00:30:40.680
This all came about
670
00:30:40.680 --> 00:30:42.990
because trial counsel filed,
671
00:30:42.990 --> 00:30:47.990
the government put trial counsel's name on the witness list,
672
00:30:48.180 --> 00:30:50.490
because of the fact that she had been present
673
00:30:50.490 --> 00:30:51.600
during this interview.
674
00:30:51.600 --> 00:30:54.900
She then filed a motion challenging that
675
00:30:54.900 --> 00:30:58.710
and it was in light of that, it was all about her testimony.
676
00:30:58.710 --> 00:31:01.110
It was in light of that motion,
677
00:31:01.110 --> 00:31:04.020
excuse me, putting on the witness list
678
00:31:04.020 --> 00:31:07.380
and then the motion that this came about,
679
00:31:07.380 --> 00:31:09.960
because it was all about Patterson.
680
00:31:09.960 --> 00:31:10.793
It was understandable
681
00:31:10.793 --> 00:31:11.970
that they were very focused on that,
682
00:31:11.970 --> 00:31:13.530
given the unusual circumstance
683
00:31:13.530 --> 00:31:15.660
of counsel being a potential witness
684
00:31:15.660 --> 00:31:17.625
and it appears to have blinded everyone
685
00:31:17.625 --> 00:31:19.375
to any other issue.
686
00:31:19.375 --> 00:31:22.920
But just going back into the position of the trial court,
687
00:31:22.920 --> 00:31:24.450
can you respond to the concern
688
00:31:24.450 --> 00:31:25.283
that the trial court
689
00:31:25.283 --> 00:31:27.420
was a little bit between a rock and a hard place,
690
00:31:27.420 --> 00:31:29.850
given the possibility of structural error
691
00:31:29.850 --> 00:31:32.803
if the defendant/client here
692
00:31:32.803 --> 00:31:34.740
was denied counsel of his choice,
693
00:31:34.740 --> 00:31:36.570
where the defendant repeatedly,
694
00:31:36.570 --> 00:31:39.150
despite this extremely unusual circumstance,
695
00:31:39.150 --> 00:31:40.500
implicating a potential client,
696
00:31:40.500 --> 00:31:41.460
over and over again,
697
00:31:41.460 --> 00:31:43.760
said that he wanted to stick with this lawyer.
698
00:31:44.820 --> 00:31:45.990
He wanted to stick with this lawyer
699
00:31:45.990 --> 00:31:48.810
because they understood the issue to be Patterson.
700
00:31:48.810 --> 00:31:52.353
They had the police report and the police report,
701
00:31:53.490 --> 00:31:58.490
there was no cavel with it, there was no disputing,
702
00:31:58.980 --> 00:32:00.577
and I think trial counsel said,
703
00:32:00.577 --> 00:32:05.310
"We have no question about that police report at all."
704
00:32:05.310 --> 00:32:08.921
So it was a discreet issue that was dealt with,
705
00:32:08.921 --> 00:32:13.921
with colloquies that went to the discreet issue.
706
00:32:14.160 --> 00:32:19.160
If somebody says, "I want this lawyer,"
707
00:32:20.070 --> 00:32:23.040
and somehow that applies to everything in the world,
708
00:32:23.040 --> 00:32:25.650
then the concept of a knowing and intelligent waiver
709
00:32:25.650 --> 00:32:26.610
is out the window.
710
00:32:26.610 --> 00:32:28.590
And we don't know what conversations were had
711
00:32:28.590 --> 00:32:31.170
with your client, with respect to the Celeste issue.
712
00:32:31.170 --> 00:32:33.900
We do, because at the hearing,
713
00:32:33.900 --> 00:32:36.720
trial counsel said that her conversations with him,
714
00:32:36.720 --> 00:32:38.280
were about the Patterson Issue.
715
00:32:38.280 --> 00:32:40.200
Okay, the hearing in front of Judge Sullivan?
716
00:32:40.200 --> 00:32:41.100
Yeah, yes, yes, your Honor.
717
00:32:41.100 --> 00:32:42.540
Yes, yes, yes, yes, I'm sorry.
718
00:32:42.540 --> 00:32:44.400
I wasn't very explicit
719
00:32:44.400 --> 00:32:45.360
Pronouns again.
720
00:32:45.360 --> 00:32:46.193
Pardon me?
721
00:32:46.193 --> 00:32:48.783
Pronouns again, in the articles.
722
00:32:49.710 --> 00:32:51.990
Can you identify what you think is the strongest evidence
723
00:32:51.990 --> 00:32:54.960
that counsel was actually laboring under a conflict
724
00:32:54.960 --> 00:32:56.700
and affected by this conflict
725
00:32:56.700 --> 00:32:59.820
as opposed to the conflict just being a potential conflict
726
00:32:59.820 --> 00:33:01.770
where we have to see prejudice as well?
727
00:33:02.614 --> 00:33:04.830
I'm not sure exactly how to answer that, Judge,
728
00:33:04.830 --> 00:33:08.523
because having not read Celeste,
729
00:33:10.156 --> 00:33:14.070
that I think that trial counsel was perhaps ignorant
730
00:33:14.070 --> 00:33:15.903
of the problem.
731
00:33:19.758 --> 00:33:22.530
Under federal jurisprudence,
732
00:33:22.530 --> 00:33:26.070
there is no right to counsel at that stage.
733
00:33:26.070 --> 00:33:27.630
It's only under Article 12
734
00:33:27.630 --> 00:33:29.460
that there's the right to counsel.
735
00:33:29.460 --> 00:33:32.970
So I don't know her thought processes,
736
00:33:32.970 --> 00:33:37.970
but certainly, it is inexplicable to me, quite frankly,
737
00:33:39.090 --> 00:33:40.500
that if a prosecutor says
738
00:33:40.500 --> 00:33:43.410
a motion to suppress should have been filed
739
00:33:43.410 --> 00:33:44.940
or could have been filed,
740
00:33:44.940 --> 00:33:48.390
that any defense lawyer in that position
741
00:33:48.390 --> 00:33:50.430
would've said, "Well, let me think about that."
742
00:33:50.430 --> 00:33:53.400
That would make me, so...
743
00:33:53.400 --> 00:33:54.960
Can you clarify?
744
00:33:54.960 --> 00:33:57.360
I forget, did the prosecutor say a motion to suppress
745
00:33:57.360 --> 00:33:59.100
should have been filed based upon ineffective assistance?
746
00:33:59.100 --> 00:33:59.933
Didn't say should,
747
00:33:59.933 --> 00:34:01.560
they said, "Well, maybe another lawyer
748
00:34:01.560 --> 00:34:03.089
would file a motion to suppress.
749
00:34:03.089 --> 00:34:06.462
But was it based upon ineffective assistance?
750
00:34:06.462 --> 00:34:09.363
There was no explication of the reason for it.
751
00:34:10.770 --> 00:34:14.460
Yeah, it was just that it was a generic,
752
00:34:14.460 --> 00:34:17.820
maybe another lawyer would file one
753
00:34:17.820 --> 00:34:19.420
or would think about filing one.
754
00:34:20.670 --> 00:34:25.670
I'm over, I welcome any other questions,
755
00:34:25.860 --> 00:34:28.683
but if there are none, I rest on my brief.