clerk: SJC one, two, three, zero, seven,
Commonwealth V Jorge Rodriguez Davis.
-: Attorney Schnipper, whenever you're ready.
You're on mute.
-: Can you hear me now?
-: Yes.
-: Thanks so much, good morning, Chief Justice Budd,
associate justice says welcome justice Wendlandt,
may it please the court.
I'm Merrit Schnipper for Jorge Rodriguez Nieves today.
The defendant was convicted of murder
solely on the theory of extreme atrocity or cruelty.
Today I'd like to discuss with the court two issues,
two discrete errors,
one of which improperly strengthened the Commonwealth
extreme atrocity or cruelty case by heightening the evidence
of the victims conscious suffering and the other
of which removed from the Jury's consideration.
Most mitigating evidence available to the defendant on that
same theory and discuss how the combination of these two
errors rendered a first degree murder conviction
and a sentence of life without the possibility of parole,
inconsistent with justice.
Now, the first issue is the Commonwealth is the prosecutor's
nondisclosure of and capitalization on Geneses Diaz
is non-disclosed testimony,
which provided the Commonwealth strongest,
extreme atrocity or cruelty evidence.
That was the evidence on which the trial judge sent
that theory of conviction to the Jury.
Our post-conviction investigation has shown that the victim
could not have spoken the words Ms. Diaz
attributed to him, but because the superior...
-: Well, we have a decision by the trial judge,
and it really comes down to whether or not that testimony,
if you assume it was erroneously admitted because you have
your expert post-conviction expert
calling that into question.
It comes down to whether or not that'd be a real factor
in the Jury's deliberations.
And here you have a finding by the trial judge
that goes against you.
We have to defer to him in this.
Tell me why the trial judge was wrong.
-: Sure, I'll tell you and there's two reasons he was wrong.
One of which is very case specific,
the other one deals with some larger principles of law
I'd like to take the larger principles first.
The judge didn't even discuss the fact that there's
strong evidence to suggest that this evidence was not simply
undisclosed and late breaking, but false.
So I've asked repeatedly for discovery and I've asked for an
evidentiary hearing so we can explore the extent to which
the government knew or may have known these words were
probably not spoken, and the extent to which,
despite that knowledge,
the prosecutor planned to use this evidence
in his case for a conviction.
So that's the big picture issue.
The judge didn't mention the Napiu issue at all.
No discussion of the presentation of false evidence.
With the regard to the impact on the jury,
I would say that the judge,
his own ruling during trial contradicts his assessment...
-: That him saying that, I mean, I get what you're saying,
that it has kind of a visceral appeal to her reaction,
when you say that
he cried out for his family and the defendant was laughing.
But under our recent case Castillo the probably sufficient
evidence of atrocity cruelty,
given the force used and the manner
in which that blow was struct.
Correct, don't you think that if you took
that evidence out of it,
it's still satisfies to steal in our trustee jurisprudence.
-: I mean, you you'll probably notice from my briefing
that I haven't specifically raised sufficiency
of the evidence on that theory,
and I'm not contending today that if you remove
that there's insufficient evidence to send it.
Although I think it's a very close question.
-: So you have a comment by a judge where he cites
the laughing and in the crying out as a factor,
but there's still sufficient evidence to go to a jury on
atrocity cruelty, Correct?
Even without that...
-: Fair enough but what we have here is we have a harmless
beyond a reasonable doubt standard based on a knowing an
intentional due process violation by a prosecutor.
We don't have a sufficiency analysis.
This is a Chapman analysis for the court, really...
-: No I've been on house.
This is whether or not this is a real factor
in the deliberations.
And will you let me finish my question?
Thank you.
What you said was that the judge relied on that
to let the case go forward.
What I'm saying to you is there's probably other evidence
that was sufficient for trustee cruelty.
So again, address how that could be a real factor
in the deliberations, if there was sufficient
evidence of atrocity cruelty otherwise.
-: Well, because sufficiency doesn't command a jury finding
on a specific point.
And here, when the judge notes,
this is the most powerful evidence
or he certainly channels it,
when he's talking about the sufficiency
of the Commonwealth's case,
which suggests the power that it had to anyone who would
have heard it, what we've got here is a situation
where the judge also found that the Commonwealth, he said,
there's a finding of bad faith
and a impact on trial strategy.
What you have here as a prosecutor,
taking late disclosed, undisclosed,
and quite likely false evidence,
marshaling it at the very end of his presentation
to the jury, the final piece of Commonwealth evidence
that the jury is exposed to.
-: I'm not clear on that Mr.Schnipper,
I mean, helped me on this, on the record.
And I've read it, but I read it last week,
when you go through the Commonwealth cause an argument,
'cause obviously when we look to see whether or not
something's prejudicial, the easiest thing to do,
and you probably do it when you review cases to start
the course and arguing.
So what are the Commonwealth think was important.
Here the Commonwealth kind of dismissed that evidence given
the impeachment of the witness.
So what did the Commonwealth say exactly in the closing
argument about those two,
about the statements and the laughing?
-: Sure well, with regard to the statement
that the prosecutor says with regard
to whether Geneses Diaz, whether the defendant
the victim, excuse me, actually spoke those words,
he says, you'll have to use your common sense.
Where he says, I suggest you can use your common sense
to know that the person's trachea is not their voice box
or their larynx, and that there's no evidence on how long
it took blood to come up,
block the larynx and prevent this man from speaking.
He makes that argument.
My expert said,
laid it out very clearly that there is absolutely no
relation between transection of the larynx and the ability
to speak that is not dismissing this evidence,
that is emphasizing this evidence and urging the jury
to use its common sense,
in fact, which is common sense that has nothing to do
with the physiology.
-: Doesn't the prosecutor go on to say whether or not
you believe Hennessy,
there's enough here for extreme atrocity.
-: He certainly does, He says you don't have to rely on
that exclusively, but...
-: I think its whether or not she said it.
-: But that to no way suggests that he's telling them
to disregard it, I mean, he says, yeah, rather not,
she said it after he tells them why they should believe
that he said it.
And with regard to the testimony about the defendant
purportedly, stepping to the side of the laughing,
he that's his primary evidence of indifference
to the victim's suffering.
He says the fact that he turns and laughs just says it all
again, I've asked the judge to allow us to discovery
in a hearing, so we can hear about how much
when the prosecutor met with Ms. Diaz before trial
to find out exactly how much did he look
into whether other witnesses had seen this supposed to be
here, your behavior by the defendant, no other person...
-: It says it's the same because it's the same.
-: It certainly is the same witness.
-: So Mr. Schiff, this is my depend in response
to just got the end of the questions, on what standard
we're applying here and...
-: And that's why I'm asking for hearing.
-: Yeah so that's what I want to ask you about because
if your point is, well,
I need this post-conviction discovery to get the reasonable
likelihood of false testimony could affected the Jury
standard, which considering both the laughing
and the victim's suffering manifested by speaking
in what he said might make the difference.
So tell me we are, is it,
I know you say the manner in which the case was presented,
I'm having a hard time with it.
We're is it that we've got
the level bad faith by the prosecutor
that and this was all intentional.
He knew what he was doing in order to be able to avoid
certain expert testimony,
put the witness on last and prove the case to a moral issue.
-: So how do I draw that conclusion from the existing record,
or what do I hope to get from a hearing?
-: We are, is there enough to suggest that you should get
post-conviction discovery?
-: Okay, well, we've are in these post-conviction discovery,
we are allowed to access to this point.
We have the prosecutor's trial notes showing that him
planning to use this non-disclosed testimony in his extreme
atrocity or cruelty argument.
We have the organization of his trial presentation.
So this witness is presented last and these
comments that she makes are the last part of her testimony.
So in other words,
this testimony is given literally minutes
within the Commonwealth, completing its examination
of its final witness.
We have a witness saying I came in last week to meet
with the prosecutor, as of now,
we don't know if that was on April 25th, 2016,
several days before testimony started,
or just the last day of the week after the medical examiner
had been examined, we don't know whether the Commonwealth,
because I mean, trial counsel at sidebar,
when he's arguing against an instruction and treatment
trustee or cruelty immediately says,
given the other testimony that the blood gushing of this,
there's no way this guy could have spoken.
I took one look at this thing.
And the first thing I did was call up pathologist.
The prosecutor you're telling me,
didn't have reason to at least ask the medical examiner,
whether this was conceivable before he'd uses it as a focal
point of both his evidentiary case and his closing
arguments, I think we...
-: You certainly have a discovery violation,
-: Yes discovery violation.
-: And again, if you let me finish my question,
you have a discovery violation,
and one of the problems we have is that the defendant's
trial counsel objected to hearsay and prejudice,
but be that as you know, the judge would have excluded it,
but be that as it may,
you've got a solid discovery violation.
You think if there's further inquiry in this matter post
conviction, you're going to get evidence
that it was known only Dawn.
-: I think there's a strong chance that I will Yes.
And I would love the opportunity,
and just so the court is aware a person in my position,
meeting an individual who represents a criminal defendant
in a case in which death resulted is not permitted access
to anyone for the medical examiner is obviously the only way
for me to know whether the medical examiner spoke
with the prosecutor about this issue
is to have an evidentiary hearing at which I can examine
the medical examiner at which I can examine the prosecutor
and find out whether given the glaringly suggestive
suggestion in Ms. Diaz, as late as those testimony,
that this is false and that a person is going to spend
his life without parole until the day he dies in prison,
instead of being consider for parole,
only sentencing differential here,
the idea that we are not permitted to understand what level
of knowledge the government's agent had with regard
to that testimony, I think is a serious, serious issue,
and the record is still on the full case.
-: And the difference is as opposed to a new trial for remedy
for the discovery violation and the impact,
if the judge was wrong about real factor,
you could potentially get if done in bad faith,
a dismissal with prejudice, correct?
-: No I'm not suggesting you mean of the indictment itself.
No I'm suggesting that that without this bad faith use
of false evidence, the highest available conviction
to the Commonwealth is second degree murder,
we have asked for relief in the alternative,
either reduction or reversal of the...
-: Wait, wait, wait, wait, wait, wait, wait.
This already sufficient evidence, you've already,
you're not making a claim otherwise of atrocity cruelty.
If we agree with you, and I'm not saying we don't,
if we agree with you that this would have been a real
factor, because as you point out in your brief,
this was so visceral.
He's crying out for his family
and the defendants laughing take that away from the jury,
we disagree with the trial judge,
it now goes back for new trial.
You are saying, not only do I want a new trial,
but I want to cabin that second degree,
if I find out this bad faith,
I don't get how one falls the other.
-: Okay, I've got a couple of different arguments
in my brief, the entirety of a new trial on the entire
indictment is based on the manslaughter argument
and advancements is separate.
-: Yeah, so sure that I thought mutual combat
requires a fight.
-: I'm sorry.
-: I thought mutual combat requires combat, a fight.
-: That's right, I mean, so what I'm arguing
is on the manslaughter argument is taken
in the light most favorable to the defendant as is required
to view with the denial of the manslaughter instruction.
It's clear that he believed they were entering into combat,
that was going to be armed after initially the conflict
looking like more like a fist fight.
-: And then your client, excuse me,
didn't your client go back and get the knife?
-: Yes He did.
-: Are there any cases where that has been held to be
a manslaughter where there's been a break in the inter
exchange and somebody goes, gets a weapon and comes back?
-: No, there's not and that's why, as I acknowledged,
we're arguing for a somewhat of an extension of the law
and that principle,
but I think that you can see from the context of the trial
evidence, that there was a strong belief,
and of course the victim also returned arm to the knife,
although he didn't draw his.
-: So the only way anybody knows that the victim had a knife
was when they cut his clothes off?
-: Correct.
-: So your client, even in a light, most favorable attacks,
a guy who he thinks is unarmed
and the guide never draws a weapon.
-: Well I don't think its fear to front of the light,
most favorable to him that he thought he was on art.
I think he thought he didn't draw as well,
'cause he talks about them both going back into the house
and then got me back out.
But I think that what your question...
-: Also there's testimony
that the victim doesn't want to fight.
He said, two times, I want to go to the parade.
I don't want to fight.
-: Yeah it was the testimony Yes.
-: Does the fight is, the part of the mutual combat
I'm not getting, but go back to the original premise
Mr Schnipper about your relief and maybe you can't get two
motions for new trial out.
So if we agree with you on the real fact
that you get a new trial.
Yes we get a new trial at the very least on the first
re aspect of the indictment.
And if the court feels that it impacted the murder decision
itself, then yes, we get a new trial on both.
-: And then how the only way it gets reduced to a second
degree is if we buy your manslaughter argument.
-: No it gets reduced to second degree,
if you find that the false testimony from Ms. Diaz
was a significant factor in the jury,
aggravating murder to first degree murder under the extreme
atrocity or cruelty theory,
which is the only theory of conviction as I mentioned,
and this is the Commonwealth's strongest evidence on those
points, or at least as your honor has said the most visceral
evidence on those ones.
-: But not withstanding the adequacy in which you don't
of the Castillo evidence on trust equity.
I think the extreme atrocity or cruelty evidence,
primarily evidence of the victim's conscious suffering.
If we take out this late, this closed in different sets,
money is remarkably similar to Castillo,
and in my reply brief,
if I lay out some of the reasons and some of the evidentiary
similarities, I see only have a few minutes left
if I could move briefly...
-: Before you switch out of that,
so if we don't agree that your client was entitled
to a manslaughter instruction,
would you also emphasize his upbringing
and sort of his psychological problems,
I'm just trying to figure out if there's,
if say I agree with you that evidence about,
laughing and et cetera, create some doubt.
I'm just still trying to figure out why it's not just a new
trial remedy is just as Gaziano pointed out.
Does that psychological evidence get you
that to reduce verdict in combination
with this error or not?
-: I mean, what I've proffered to the court are really dual
avenues of getting us to the same point.
As I said, I do think that our arguments for giving
the defendant and entirely in trial,
but we set that to one side for the moment.
I think the court could look, I mean, as in many cases,
the court has said when we have a trial error that results
in a first degree murder finding that's incorrect,
but there is no real evidentiary flaw in the secondary
finding, you can either just reduce the verdict now
from your own position,
or you can send it back to the superior court for a new
trial solely on the first degree murder,
a portion of the indictment.
In other words, the Commonwealth would have the opportunity
to make its case again,
that this killing was committed a really extreme atrocity
or cruelty, but only with properly used evidence.
With regard to the mental state evidence that we have
presented through the post-conviction forensic assessment,
I mean, our argument is twofold.
One is that this was the strongest evidence of mitigation
on extreme atrocity or cruelty that was available
with the defense and the fact that it was left out,
certainly prejudiced him.
And you can see from defense council's other work
that he did pretrial and trial,
this was entirely consistent with the theory of the defense.
He's seeking a manslaughter instruction based on how
agitated and overly emotional defendant was.
He spent quite a bit of time...
-: And again, I'm just trying to, I get your argument.
I'm just trying to understand doesn't that still come back
to a new trial because it's ineffective assistance for not
presenting that evidence, right.
We can't use that absence of evidence to create
a 33 E reduction, can we?
-: You can consider evidence that is filed in the context
of a new trial motion in part of your 33 review.
I discussed the Moore case,
and if you have other cases in my brief where that certainly
is within the scope of the plenary review that the court
is going to undertake, I do think you can use it.
And I use it for purposes of a 25 B2 motion below.
And the court can consider that type of evidence
when it looks at the entirety of the case and decides again,
whether life without parole versus life with parole is more
consistent with justice,
I would say that when you look at the court's recent ruling
in Castillo, you have a remarkably similar fact pattern here
in which a single blow kills a person, the person lingers
in pain, although not as long in this case as in Castillo,
but in any case, how much is that really a foreseeable
outcome of the defendant's own accident and how...
-: The counsel is Castillo a gunshot wound.
-: Yes, it is.
-: Yeah and so this one was different in that the defendant
pinned the victim down,
held down his legs and arm and then plunged the knife
into his throat, and then the victim let out.
-: I would, He grabbed him by the shoulder and stabbed him.
So it's a single blow, obviously it's a...
-: And it's a lot different right in college, right.
-: That's our personal act of violence, but it's...
-: We were careful on Castillo to say single blows,
still kids suffice for Trustee cruelty.
-: And while, although I think this is a week extreme
atrocity or cruelty case,
you'll note that I have not mounted as efficiency challenge.
I made that decision and not withstanding the weakness
of the evidence, a very thorough review of the court cases
on extreme atrocity or cruelty.
-: I'm sure.
-: Because filo, we specifically said though, once again,
that the defendant doesn't have to intend to commit a murder
in an extreme atrocious or cruel...
-: Understood justice Lowy.
And I'm not suggesting that the court modifies jurisprudence
or require that either what I am asking the court to do in
addition to considering the impact of the missing evidence
in this case is to extend the law to simply require
that in every case where any evidence of a defendant's
mental state at the time of the crime is proffered,
that creates an entitlement to a jury instruction on
the sort of mental impairment aspect that the court began in
Gould has developed through Rutkowski and many other cases,
because as justice can't set in as Barry concurrence,
as justice definitely said in her Riley concurrence,
in enabling the jury to fully consider everything about
the defendant's actions as wholly consistent with,
and will really support the community conscience function,
that really is what the extreme atrocity or cruelty prong,
or first degree murder under our laws about.
And that's really notably different from premeditation
where you have an additional mens rea component.
Here what you have is the jury assessing
whether the defendant's conduct so violated community norms
of beyond as the court has frequently said and said again,
and conceal beyond the just standard atrocity and cruelty
of unlawfully killing another human being.
Have you gone so far beyond that the jury should aggravate
your sense and require you to never be released from prison
or even considered to be released from prison.
I mean, that's the sole differential here.
-: Of course, the victim's pain and suffering post Castillo
and the defendant knowledge of it is much less important.
-: I'm sorry, I'm having a little trouble hearing you.
-: Well, the victim's pain and suffering
is it's not no longer, one of the factors
and so the defendant's understanding of it is less concerned
for instance, the point in cathedral about, Oh,
he's a bad shot.
So the victim suffered more is no longer something
that's going to ignore the detriment of the defendant
and the extreme across your coat.
-: I understand Castillo,
it still can be a factor if the Commonwealth shows
that it was a reasonably likely that the extended suffering
was a reasonably likely outcome of the defendant's actions
and the defendant would have known that.
So I see it as frankly,
a bit of the opposite and just that you still can use
conscious suffering as a factor,
but only when that conscious suffering as the court setting
Castillo reflects on the defendant's actions,
that is not the product simply of chance.
-: Any other questions?
Thank you, attorney Schnipper,
-: Thank you. -: Attorney Wendel.
-: It's a good morning, and may it please,
the court assistant district attorney John Wendell
for the Commonwealth,
I suppose I might as well start with Hennessy's testimony
and what precisely we to do with that,
I would like to start by addressing that sufficiency point
and what precisely the trial judge said when he denied
the motion for required finding, he did not say,
this is your only evidence, he did not say,
this is your best evidence, he said,
what about this evidence?
This was the evidence heard five minutes prior as...
-: Mr. Wendel, the big picture is whether or not
we find the judge was wrong,
we did determine that this testimony would not have been
a real factor, correct?
-: Yes, it is.
-: And we have quite visceral and quite damning
testimony where the witness says,
I saw the defendant go over to the stop sign and laugh,
I saw the victim cry out for his princess
and for his family.
How are we supposed to excise that from the jury's mind
when they find a trustee of cruelty,
it wasn't a judge wrong in this regard?
-: No, your honor, I think the best answer to that
is the judge's own reasoning as to why it's not a factor,
He said, if that testimony comes in and then an expert comes
in and testifies that he's drowning in his own blood,
and that why that's impossible.
That simply not a factor.
The reason that this kind of a wound makes this an extremely
atrocious or cruel murder, it's multiple factors.
I can get to discussing Castillo a bit later,
but there's the extreme level of force.
There's the conscious suffering of the victim.
And under the Castillo analysis,
this is conscious suffering that is reasonably foreseeable
because it is a stab wound to the neck.
If it is impossible for him to speak,
it is impossible only because he is choking to death
on his own blood.
In those circumstance...
-: We see a lot of these cases, unfortunately,
and the callous statement of a defendant in reaction,
and then the victims crying out in that emotional way,
strikes me as something that would be
particular relevance to a jury.
When you look at these cases
and the point is I take it from Mrs. Schnipper,
that's why this witness testified last,
and that's why it was a big part of the Commonwealth case.
So again, how do we just take that out of the jury's memory?
-: Well, your honor,
I guess the answer to that question is that I don't
necessarily think there's evidence that this is why
the witness testified last, because frankly,
there's no evidence as to when the trial prosecutor learned
of this particular statement.
-: And I guess doesn't have tail into counsel's request
for discovery on this issue,
why not get given the consequences?
Why not give the defendant the discovery he's asked for?
-: While, your honor, we gave discovery, we gave...
-: No, no, no, but I'm talking about
the second motion that was denied.
-: I guess the answer to the question, your honor,
is that there's simply no prima facia showing that he's
going to find anything else,
anything to suggest that this was further bad faith,
and simply a failure to disclose despite knowing
the duty to do so.
-: You can see it's a discovery violation.
-: Of course, it's a discovery violation.
Your honor, we have a continuing duty.
The only date available to us is April 30th,
which was two days prior to testimony.
If nothing else, the trial prosecutor was required
to disclose this to defense counsel at 8:30 AM Monday
morning, about two hours before she took before
the witness took the stand and testify.
-: No the DA was required to give the defendant
this information as soon as he learned it,
not at time of trial.
-: I'm simply saying, I believe
it's possible that the early morning on the second may have
been the first opportunity to actually provide it.
I suppose it would depend on counts on trial counsel's
availability over the weekend to give it over the weekend
would have been...
-: It wasn't something that was just,
I forgot because the DA boring, this information
puts the rewards Conine next to it
and knows he has a home run, correct.
-: Well, except that the problem with that view of it is that
that attributes certain timeline to when he writes
these certain things.
There's no way of knowing precisely when he wrote Conine
next to this information. -: But it still was April 30th.
-: And that goes to judge Wendlandt's question.
Why not a hearing?
-: Because assuming that he finds this out on April 30th,
April, as I say, April 30th is a Saturday,
if he can get in contact with counsel on Saturday,
he's obligated to do so.
-: April 30th, what year?
-: 2016.
-: So email's available, phones are available.
-: Yes.
-: So I assume on Saturday, he can reach counsel.
-: Probably.
There was something one of the days
about a trial counsel had had a personal issue, on a day off
I don't recall what precise day that came up, but yes,
there is probable that the trial prosecutor could have given
this information a number,
and it would be hours to days in advance,
but there's still no evidence that this is when he decided
to make this witness be the last witness Hennessy's
is an important witness.
Not simply because of this testimony.
She's also one of the few witnesses who can testify
to this actually taking place.
In fact, I believe the only other witness,
I think that's Carlos testifies that...
-: Can I asked this counsel
in analyzing whether or not this evidence would have been
a real factor in the jury's deliberation.
Do we excise Geneses testimony?
It seems like that's the present assumption and argument,
or is it a delayed disclosure play case?
-: It would be a delayed disclosure case.
-: Only analysis as to what is a real factor
is the expert's testimony
that the victim would have been choking on his own blood.
You would still have Hennessy's information, or testing.
-: I suppose that depends.
But that is the claim made by trial counsel is had I known
this testimony in a timely manner.
I would have asked an expert witness about this.
-: Well, the trial judge says,
if I knew this was a discovery violation, it's gone.
-: Not quite your honor.
What he says is if I knew this was a discovery violation,
I would have looked into further...
-: I would have excluded testimony.
-: That was a possibility, that was not a guarantee
he suggested that he would possibly do any of a number of
things, depending on what council had requested.
-: You don't need the expert,
if the judge knew this was a discovery violation,
as opposed in the objection that was raised at trial,
the judge said, I would have said it's over.
You don't get this testimony.
And then you don't need the expert witness.
-: That is true, if this testimony is excluded,
then this and the expert need not contradicted,
obviously, but...
-: It all starts with a discovery violation.
That's the problem.
So you're trying to have it both ways,
because what you have is glaring a discovery violation,
and you want to maintain the verdict.
-: Yes, your honor.
And fundamentally that's, there are two different,
first of all when there,
even when there is a discovery violation,
the question is what would council have done differently?
And the possibilities are a council would have sought
the assistance of an expert who would have testified he's
drowning in his own blood.
There's no way he can talk.
In which case, as the trial judge noted.
That's not really going to undermine the impact
of what precisely this man is going through,
as he lays there on the pavement diet option, number two,
this testimony stays out well, in that case,
we analyze it as if the testimony never came in,
how much do we still have.
-: Well, being do you want us to go even further
than that, one you want us to say, okay, there's a
discovery, but we know there's a discovery violation.
And you want us to sort of give the prosecutor the benefit
of the doubt that it wasn't an intentional violation.
So that cause that affects the standard review.
You also want us then to sort of make the jury's thought
process go away,
which is as this visceral testimony go away.
We got to decide like four or five things in your favor
to affirm this, right.
I mean, it's a confluence of,
decisions that help you out and you need each one of them.
I mean, we can't decide whether the prosecutor did this
intentionally or not without an evidentiary hearing, right.
If the prosecutor did this intentionally,
the standard reviews different, right?
So we have to sort of decide that one in your favor.
Then we've got to deal with the fact that the jury
had this information.
So we, and then we've got to sort of make,
figure out whether it would have made a difference,
but we know the jury did have it,
and it's powerful evidence.
-: Except that it's powerful,
except that it's then dismissed by the trial prosecutor
as forget it doesn't matter if it happened.
-: Why does he, I mean, if he goes out,
if the prosecutor goes out of his way to put in this last
minute information as his last witness and brings it up,
obviously the witness gets cross-examined and their
credibility gets diminished,
but the prosecutor is like making a lot of this.
Even though this comes in out of the blue at the last
second, it's just don't we have to give a new trial here.
I mean, I'd like to understand sort of how we not give
a new trial on this point with all of these problems,
or is there, or do we have to give this evidentiary hearing
and put your colleague and the medical examiners
conversation with the prosecutor in play.
-: While, your honor, I think there were a few questions
there as far as why the trial prosecutor took the tactic,
He did, I suppose the answer to that question may simply be
the impeachment that I was not at the trial.
I don't know precisely how her credibility came off,
but the fact of the matter is he did make the argument
that his comment about use your common sense to know
that the trachea is not the larynx.
That's a single paragraph out of an eight page argument
on extreme atrocity or cruelty.
-: That's just wrong, I mean, I'm not a doctor.
I have some common sense, I have no idea that's true or not.
Isn't that another clear error?
-: Well, to say that the trachea
is not the larynx that's, I don't know.
We're just stating a fact
-: In other cases or other courts or the appeals court
has held that various bodily functions or things
that can happen to the body in the course of a homicide
or a stall need requires some degree of expert testimony,
even things that are less complicated than this.
-: That's true, your honor.
The other point about this paragraph, not only is it,
but one paragraph out of eight pages and promptly followed
up without, but it doesn't matter whether he spoke or not.
It's also a direct response to an equally problematic
statement by a trial counsel who says this isn't possible.
There's no way for him to talk because
his trachea was transected.
That's the comments...
-: Isn't it apparently true that he couldn't do it?
-: Yeah, it happens to be probable.
That trial counsel is the one who is actually correct.
But to the extent that neither may make this argument
without an expert, both of them made the same error.
They both argued based upon information that if neither,
if it must require an expert,
then both were required to have expert testimony to habit.
So the comment itself...
-: Being the fact that the prosecutor dismiss,
believe it or not that the victim could have spoken isn't
that somewhat diminished by the fact that really
the powerful evidence here in terms of the Canadian factors
was the laughter of the defendant.
The whether or not the victim actually spoke was kind of an
aside, it was powerful and visceral,
but also the laughter of the defendant was critical
for the prosecution.
-: And that is barely mentioned at all by the trial
prosecutor, and again, it's similarly dismissed.
He mentioned the fact that there's some comment about maybe
he went over there and laughed, but whatever that is,
whatever happened, if he dismisses
that as much as he dismisses...
-: What the prosecutor was doing, trying to preserve
his own credibility with the jury, correct?
Because we have impeachment by the defendant,
which he shouldn't have had to have, have done by the way.
But we have impeachment of the witness by the defendant,
then it goes for 'cause and argument,
the prosecutor knows darn well,
like any prosecutor knows that their own credibility or any
trial lawyer knows that their own credibility is online
or at stake when they address the Jury.
So that's why it's dismissed.
But we don't know what would have happened,
if the defense attorney didn't impeach, that's the problem.
-: But you want us to give him credit for running away
from his witness where he shouldn't have testified.
-: Well, but the thing is, your honor, we're again,
discussing whether this would have been a factor
in the juries...
-: The best best evidence you've got is that the trial judge
agreed with you and the trial judge was there.
-: Yes to some extent, yes, your honor.
But there's also the fact we're discussing whether
or not this evidence would have been a factor
in the jury's deliberations.
The fact that the evidence was so thoroughly impeached,
that my colleague was like, Oh, whatever, forget that,
that is equally relevant to this analysis,
because all of the testimony was in front of the jury.
I assume you're correct that he's moving to preserve his own
credibility with the jury by dismissing this testimony,
and to that extent, the jury he's asking the jury,
I know you don't believe this, so ignore it.
and to the extent that he's doing that,
that contributes in its entirety to the analysis,
that this would not have been a factor
in the juries deliberation.
-: Don't we almost have to, I mean,
the way justice Wendlandt summed it up earlier,
we have to find that when somebody pin somebody down
and stabs them in the neck and they died this way,
that's regardless of what else came in,
that's gonna be everything else is harmless beyond
a reasonable doubt.
'Cause that's extreme atrocity grueling don't we need
to do that, 'cause we got a lot of,
bad stuff in here and we have to sort of be able
to basically say this steps over to the neck
and they die in the pool of their own body.
They drown in their own blood and that's extreme atrocity
and cruelty, regardless of these errors.
-: I don't know that I would agree with this standard of
review, your honor,
but I would agree that making such a finding,
would it remove any issue that we would have here.
Again I've argued that the evidence of extreme trusty
or cruelty was overwhelming in this case.
-: So I have to say, I really don't understand that.
I think the evidence of murder is overwhelmed
by the evidence extreme atrocity of cruelty,
if you excise the laughing and the laughed words before
meeting your maker,
I don't know if what you're left with is
the strongest extreme atrocity or cruelty case
that I've come across recognizing
that's the nature of murder.
That's what we don't mean by extreme the trustee of cooled.
-: Well, your honor, it's not so much a question of like
are there other cases where it may be even more obvious,
perhaps more stab wounds would do something
to perhaps improve it.
But the fact that it's a single stab wound is
that is not in and of itself.
So particularly relevant here where the stab wound is strong
enough that it goes literally all the way through his neck.
There's a wound on this side of his neck,
as well as the larger one to this side
this is a wound of extreme force.
-: It's this, the Schindler said about five times extent to,
the injuries that's on your search.
You don't have a sufficiency problem at all.
I'm just saying, when you say the evidence is overwhelming,
I'm not sure from what I've seen, that reading cases,
that this is overwhelming evidence of extreme atrocity
to proving it's absolutely fish.
-: Well, I suppose a reasonable minds may differ
on the point, but I would suggest that the nature
of the wound, the amount of force required to inflict it,
this simple fact of the matter there is actually evidence
of indifference, aside from the laughter has pointed.
The fact is the defendant just walks away.
Whether he stops to laugh or not,
he simply walks away from this.
That is evidence of indifference.
The fact that the victim probably drowned in his own blood.
And that is testimony that comes from a medical examiner.
He testifies that there's blood in the victim's lungs,
that the victim would have been in extreme pain.
And all of this is even under Castillo.
This is reasonably foreseeable,
given the intimate nature of the attack,
that it should be obvious that stabbing someone in the neck
right through the trache is going to cause them
extraordinary pain, and it's not going to be a quick death.
This is unlike Castillo where we have, well,
fundamentally that's an accident.
You shoot somebody, you expect them to die, and if you shoot
them in the back, 'cause Theo is furthermore,
it's in the middle of a brawl.
So it's a very different circumstance entirely.
Castillo is entirely distinguishable from this case,
I would suggest in the particular circumstances of this
case, no other verdict would have been found based upon the
particular nature of the facts,
given that it is a stab wound to the neck
of such extreme force.
I see my time is up.
If there are any further questions,
otherwise I just done my brief.
-: Thank you very much Counsel, We'll take a morning break.
-: Thank you very much.