-: SJC 12310, Commonwealth v. Cara L Rintala.
-: Okay, Attorney Wood, we're ready for you.
-: Thank you.
May it please the court, Chauncey Wood for Cara Rintala.
The opinions of the Commonwealth's
so-called paint expert, David Guilianelli,
that the paint at the crime scene was intentionally poured,
and poured within 30 minutes
of the first responders' arrival, were grossly unreliable,
and therefore never should have been admitted
at Cara Rintala's third trial.
-: Counselor, I know that you've got a number of issues
and this is going to be the big one,
because the amicus also chimed in on these,
but could we go through what happened here
and look at this and say,
Judge Rup took the matter under advisement
after having oral argument.
This isn't, I know that was a 16 L letter that was filed
that tried to say that this set of facts
was kind of analogous to our recently issued Heinz decision.
But this particular gentleman
had incredible qualification,
in the sense that he had an undergraduate degree
in a hard science, had spent 20 years,
and indeed had worked on the,
if my memory is correct of the record,
this particular paint.
So what is it about the,
what is it that's unreliable here?
Is it just that you don't like the conclusions,
or that it's really unreliable?
Because it was based on someone
who had been in this industry,
who knew a lot more about paint than any of us do,
that talked about some of the things that he did
to kind of replicate what was known
and came to a conclusion, what's unreliable about that?
-: So, first of all, (laughs)
there's so much in that question.
The most important thing, well, the place to start
is you've characterized this as incredible experience.
I vigorously oppose that.
The amici go into this.
We all go into this in great detail.
His incredible experience is as a guy building paints
for architectural applications.
Georges: Sure.
He himself admitted, quite emphatically,
this was a new area of inquiry for him.
What we're talking about here is the forensic application,
the design of experiments
to determine forensic applications of paint.
He had no experience,
no relevant experience in that area.
Dr. Loughlum goes through this in great detail.
What we needed was a scientist
with a background in designing experiments.
He had no relevant experience designing experiments.
To suggest that he had incredible experience in this area
is, most respectfully, not on point.
-: Well, that's not what I was alluding to.
I was alluding to paint, and paint drying,
not about whether or not he has incredible experience
in designing experiments to figure out
how often and how fast paint dries.
He knows about paint.
And the entire, and I think both sides distilled this too,
that the relevance of this evidence
was with respect to how fast this paint dried.
-: Right, so he, well, there's two elements.
First of all, there's two elements.
How fast the paint dried,
and whether it was intentionally poured
or accidentally spilled.
Now on the intention, I'm sorry,
on the drying time, the fundamental problem
was he had no reliable methodology.
We need to tie this to the doctrine.
I'm not painting, (laughs)
excuse the pun, on a blank canvas.
This requires a reliable methodology.
He had no reliable methodology.
If I go back to Heinz, this court's recent comment
on the bedrock beginning principle,
this court stated quite clearly and efficiently,
"Experts in hard sciences primarily base their findings
on repeatable experiments
conducted under controlled conditions."
The fact that he had a long history working with paint
doesn't allow him to throw
the Daubert-Lanigan standard out the window.
The question is still before us:
did he design repeatable experiments
conducted under controlled conditions?
The short answer is no.
He did not control for individual environmental variables,
paint thickness, homogeneity, temperature, humidity,
porosity of the concrete and human skin,
rigidity of the concrete substrate, air flow,
the effect of disturbing the paint.
Despite all of this, the prosecutor erroneously claimed
in closing argument all variables were taken into account.
Absolutely untrue.
And again, his experience working with paint
doesn't answer any of this.
-: Didn't he talk about,
that he adjusted for various variables?
He used the humidity that was on the humidifier,
and I understand that there's some argument
that they're not reliable and that they can vary and that,
so it's not really telling you anything.
But there were a variety of different variables
that he accounted for, didn't he?
-: So he conducted, (laughs)
I don't want to go down the rabbit hole.
The short answer is no.
The slightly longer answer is,
he conducted six individual trials.
Maybe seven, I can't remember.
Six trials, I think.
Each of them was different.
Another hallmark of science
is you must repeat your experiments.
In each of his experiments, they were different.
He added a different variable.
Now that's one problem.
But also, what your honor is alluding to is partially true.
In four of the six trials,
he conducted them in an atmospheric chamber.
And in that chamber, he was able to replicate
roughly the humidity and temperature
of the environment in the basement.
But there's details that I don't want to waste time on,
that it's not, we're not sure that that was even accurate.
In the first two, he did not control for that.
But in the last four, a different problem,
he added a different variable each time.
And in all six, he didn't repeat his experiment.
This is basic high school science.
He did not follow the scientific method in the least.
And the result, as your honor briefly alluded to,
is the results, are they useful?
No, they're not useful
to address the question before us, drying time.
And that's the first question.
The second question he was asked to address (laughs)
is the intentional or accidental spilling,
intent of the party.
And at least with regard to drying time,
he tried to develop a methodology.
And we say it wasn't even close to reliable. (laughs)
With regard to the intentional pouring of the paint,
that was based on pure naked speculation, nothing more.
He admitted that much on cross examination.
And this is a point I actually want
to speak to the court about, stepping back.
When we talk about the standard of review
and what evidence this court should consider,
this is a really important point,
and I don't think we addressed it fully in the briefing.
Normally you give respect to the trial court
and you require the parties
to present evidence to the trial court.
And you only consider it the abuse of discretion,
so the question is abuse of discretion.
And in analyzing whether the judge abused her discretion,
we say, what evidence was before her?
In this situation, there's a different rule.
Commonwealth v. Camblin, this court has articulated it,
you are not only permitted,
but you yourselves have said,
we will consider all the reliable evidence out there
to make sure that ultimately this opinion was reliable
because we only allow reliable evidence to get to the jury.
I'm not talking about credibility.
That's for the jury.
But here, it's important to understand,
there are two sources of evidence, really three.
One, the cross-examination by Attorney Hoose.
There was no evidentiary hearing,
no crucial gatekeeper function here
at an evidentiary hearing.
Attorney Hoose, most importantly, got Mr. Guilianelli
to concede every single point
that he relied on for his speculation
that the paint was intentionally poured
was indeed pure speculation.
He admitted it was speculation.
You can consider that,
because that never was before the trial judge
in her gatekeeper and in her preliminary judgment.
The second point is Dr. Loughlum's affidavit.
Dr. Loughlum, as we indicated
in our reply brief most specifically,
made points that Mr. Hoose did not make
on cross-examination.
Your honors are explicitly authorized
(laughs) by your own case law, Camblin,
to consider Dr. Loughlum's opinion.
And then finally, there was a crucial point
by one of the Commonwealth's own experts, Dr. Andrews.
Because the question on, I'm sorry. (laughs)
I'm jumping to a different opinion, so I'll stop there.
But this court, on the question
of whether Mr. Guilianelli's opinions were reliable
is permitted to consider the cross examination
of Mr. Hoose, the concessions by Mr. Guilianelli
that his opinions were pure speculation,
and the opinions of Dr. Loughlum
illustrating how in every way possible
Mr. Guilianelli's opinions
were not based on reliable methodology
and were nothing more than naked speculation.
-: Can I go to Dr. Loughlum's affidavit
for a moment in your last point?
Anyways, so we, this raises
a little bit of a complicated issue,
because that affidavit wasn't available to Judge Rup.
I assume it was available,
it was available to the trial judge
who heard the motion for new trial, right?
-: I think you mean post,
the evidentiary hearing after trial, Judge-
-: So Judge Rup retires,
and then there is not an evidentiary hearing after trial.
There is no evidentiary hearing.
But at the motion for new trial,
that affidavit's submitted.
Chauncey: Yes, Judge Mulqueen had that affidavit.
Yes. -: Okay.
So it seems to me that we have to sort of separate
something you just said.
I don't think when we're looking at whether or not
Judge Rup abused her discretion
on the gatekeeper issue, something that she didn't see.
But I do think that that affidavit can be considered
by the motion for new trial judge in deciding
whether in fact there really wasn't gatekeeper reliability.
-: I think, (laughs) I think
there's no meaningful difference between our positions.
I wouldn't blame Judge Rup.
As a practical matter, you don't blame a judge
for not considering something that wasn't before her.
I think we agree to that much.
And then Judge Mulqueen should,
had the affidavit of Dr. Loughlum,
and so that is relevant information
for deciding after the fact
whether Judge Rup abused her discretion as a gatekeeper
without any blame to Judge Rup, because she didn't have it.
I think we're saying the same thing.
Okay, so if I've answered your question, that's my view.
Now on prejudice, this is crucial,
because I have to prove prejudice.
There are four points here that are crucial
to establish why there's no doubt that this was prejudicial.
And first of all, it was, as the standard of review,
abuse of discretion, if it was erroneously admitted,
if it was unreliable and therefore inadmissible,
then because the defense preserved the issue,
quite emphatically, the issue is harmless error.
Can you say clearly, this didn't matter.
Four things.
First, two trials before this,
before we ever heard from Mr. Guilianelli,
both resulting in hung juries.
The only new material evidence
was Mr. Guilianelli's opinion, his two opinions.
Second, the prosecutor relied heavily on this opinion
in closing argument, asserting
that they demonstrated consciousness of guilt.
Third, the judge gave a sua sponte
consciousness of guilt instruction
for the first time at this third trial,
focusing the jury's attention
on the evidence of consciousness of guilt.
Mr. Hoose did not expect the instruction.
We've focused on that in our appeal.
But it focused the jury's attention
on evidence of consciousness of guilt,
the weakest part of the Commonwealth's case.
And finally, fourth, as if that weren't enough,
the jurors gave a post-trial interview on Dateline
and stated (laughs) that the paint evidence
was important to their verdict.
So there can be no doubt that this opinion testimony
that the paint dried,
that the paint was poured intentionally
within 30 minutes of the first responders arriving
was material to the jury's verdict.
I want to-
-: Do you want to address, staying on the paint,
-: Yes. -: because quite frankly,
that's I think your best argument,
the ineffective assistance of counsel issue?
-: So I think this is really interesting,
and we struggled obviously, and I think doctrinally
everybody is struggling with this,
that this court's line of cases.
Well, first of all, 33 E review and right,
doctrinally the court is very clear and right.
If there's an error by any party, the judge,
the prosecutor, defense counsel,
that has an effect on the jury
that creates a substantial likelihood
of a miscarriage of justice,
we're going to reverse in a first degree murder case.
We're not going to get too caught up
in figuring out which doctrinal bucket this goes into.
That's the first point.
And this court has, in concrete circumstances,
extended that doctrine in a lot of different situations.
So that's relevant in the background.
But another point that's specific to this case,
which I think is really intellectually interesting,
is while it's true that defense counsel made some missteps,
excellent defense lawyer, one of the best in Massachusetts.
I don't want to bring an ineffective assistance claim.
I have to concede, of course,
Mr. Hoose is an excellent lawyer.
But he didn't request an evidentiary hearing
on this brand new novel opinion.
That's probably a mistake.
He also didn't have an expert.
It was hard to find the right kind of expert.
It took us a while to find an academic
with a specialization in material science
and specifically the effects of nature on building materials
and the proper background, experimentation,
not a guy who builds paints, a different kind of experience.
So it's hard to find that.
So I don't blame Mr. Hoose for having a hard time.
But the really interesting point comes back to Camblin,
Commonwealth v. Camblin.
This court is mostly concerned with reliability.
Reliability is the lodestar for admissibility.
And this court therefore takes an expansive view
of the record we can consider.
And that's in the back, against the backdrop of 33 E,
which says we have an expansive view
of, you know, the cause of the error.
We're really just concerned, was there an error?
So we can look at everything and decide,
ultimately, in a post hoc sort of way,
was the judge's decision an abuse of discretion?
And I don't think it matters
that the information was, for example,
Dr. Loughlum's affidavit was produced after the fact
and that Mr. Hoose failed to find an appropriate expert.
What really matters is whether Dr. Loughlum's affidavit
and Mr. Hoose's very effective cross examination
and other, all the totality of the circumstances,
demonstrates that this opinion was unreliable.
-: Can I ask, just to cut you off for a second.
I know you're on a flow.
But this,
back to Justice Georges' original question,
this guy knows a lot about paint.
He may have gone way beyond what he can talk about,
but if he had been more limited in what he testified to,
the paint, "Our paint dries within 30 minutes
normally when it's applied.
You know, I don't, you know, I don't know,
you know, the effects of,
we don't pour paint on people.
You know, we pour paint on walls."
But I take it that he could testify
as an expert in a limited way here.
Is that correct?
-: You're asking for a hypothetical that isn't this case?
-: Well, I've got a follow up question.
Why don't you start with that one?
-: Oh, I'm sorry.
Okay.
So he knows a lot about paint.
-: He knows a lot about paint -: I don't know
-: and he knows a lot -: what that means.
-: about this paint, he knows how long it takes to dry.
He knows how it changes color.
I'm not saying he can do all the stuff he did here,
but he can testify to that, couldn't he?
Judge Rup would certainly not have been in error
if she'd kept him in that box, right?
-: The Heinz decision,
my first reaction is the Heinz decision
Kafker: I'd love an answer just to the question.
-: No, it's not a relevant fact.
So no, you can't give an opinion
that something's irrelevant,
to take what's irrelevant. -: This guy can't be,
can't testify on how long paint dries,
and how it changes color, when he knows this paint
probably better than any human on earth?
-: Right, so this paint, meaning this paint
is the forensic application of this paint
in a thickness -: All right,
-: that it's not designed for. -: so you're not
going to answer my question,
but I'll go to the next question.
This lawyer is terrific at basically tearing apart
this stuff that he doesn't really know.
So is the error here harmless?
Because again, I disagree with you,
and think this guy could have given some testimony
but he went well beyond what he knows
and what he could testify to.
But the lawyer tore him up, well.
Chauncey: Yes, so harmless-
-: And- -: Sorry, go ahead.
-: And the lawyer had an expert,
but he was the brother-in-law or the father-in-law,
so he doesn't want to use him,
but it's hard to say that, you know,
'cause I'm not sure he wanted all that evidence
about drying of paint,
'cause it may have hurt his client, right?
You know, so he doesn't bring in an expert.
But again, it's tough on ineffective assistance
when you've got such a good lawyer
who did such a good job on cross-examination.
But I do see the point that this guy is out there
talking about stuff he doesn't know.
-: So the shortest answer is,
and I've covered this, harmless error.
How could this be harmless error?
So all of us reading that cross examination,
we thought this should be in a CLE.
This was a spectacular cross examination.
The problem with that, she was convicted.
She was convicted of first degree murder.
So how do we know that this made a difference,
despite this spectacular cross examination?
Because first of all, there were two hung juries before.
You add the paint evidence, and you get a conviction.
There's doctrine, Uber v.- -: I haven't read,
I haven't read the trial transcripts
of the earlier ones or this one yet.
Was there testimony about the paint in the prior trial?
And nothing about how long it takes to dry,
nothing about any of that stuff?
-: No, sir. -: Okay.
-: So the second point, the prosecutor relied
explicitly on this point as consciousness of guilt
in the third trial, on Mr. Guilianelli.
Again, not withstanding that we might say
this jury shouldn't rely on that,
that is not a good argument.
The fact is the prosecutor chose to rely on it
and the jury convicted.
The third point, the judge gave a sua sponte instruction
that focuses the jury on this.
And fourth, post-trial interviews,
the jurors say the paint evidence made a difference.
Again, we can sit here and say that was great work.
And we can say he shouldn't be guilty
of ineffective assistance.
The question before the court,
and this is why I went into this long apparent diversion,
is that's not the question that we need to focus on.
Was this evidence reliable?
And if it was not reliable, it's the judge as gatekeeper.
Did she abuse her discretion
in letting it go before the jury?
There are many-
-: Mr. Wood, I don't want you to repeat that,
'cause we're running out of time.
So, you know, we can dig
into the gatekeeper reliability issue.
But I think Justice Kafker
was getting at the issue
of whether there should be a remand,
because we don't, we need a factual predicate
to deal with manifestly unreasonable,
and whether or not, you know, we're not applying Cesarean,
we're applying 33 A.
And so you're saying,
and it's I think a really good point.
This is a very powerful evidence.
My gosh, if the jury thinks right before the police came
she poured paint all over her, you know,
good luck with getting a not guilty.
So the point's well taken.
But the question is, in this situation,
not only do we need the second prong,
not in a factual vacuum,
but you know, the first prong,
it doesn't have to be reasonably below.
It has to be whether or not it would have been error.
So a lower standard on the first prong.
There's an issue here.
I haven't really gotten a chance
to digest the transcript either,
but you can tell he did a great job on cross.
But isn't there a real issue with,
it's easy to quarterback on Monday morning.
Hindsight's a perfect science and all of that.
But if this evidence was so important,
is there an evidentiary hearing on remand
that might need to be taken here,
if in fact there wasn't a gatekeeper reliability issue?
-: So I think the short answer is,
we think that the record establishes Dr. Loughlum's opinion,
and the undisputed record establishes the narrowest holding.
I think that on the second part of his opinion,
that the paint was intentionally spilled,
he admits himself on cross examination
that was pure speculation.
The case law is clear on opinion,
expert opinion based on pure speculation is inadmissible.
So I think that narrow point
renders the judge's decision an abuse of discretion.
And we don't need an evidentiary hearing to establish that.
And moreover, if it's not intentionally poured,
how long it took to dry becomes irrelevant
because it could have been- -: I'm not asking
about gatekeeper reliability -: Right, right, right.
-: Just so, I think you know where I'm going.
Chauncey: Yeah, so ineffective-
-: I'm not asking about gatekeeper reliability.
If you win on that, you don't have to worry
about my next question. -: Okay.
So on ineffective assistance, if we're analyzing this
as ineffective assistance under 33 E,
it's true that no judge has had a chance to,
the Commonwealth has not had a chance
to cross examine Dr. Loughlum.
So as an alternative, we would recognize
if we're looking at this as 33 E, ineffective assistance,
that a remand for, we would accept a remand
in the alternative to a trial judge.
It can't be Judge Mulqueen because she's recused herself,
but another judge, then we would agree
that that is appropriate.
And furthermore, to I guess explore
Attorney Hoose's decisions
and whether they were reasonable tactical decisions.
I think that's all fair play in an evidentiary hearing.
And that is an alternative request
that we made in our briefing, for an evidentiary hearing
If that answers that. -: Okay.
Thank you very much. -: It does.
-: Thank you.
-: Okay, Attorney Gagne.
-: Thank you.
Good morning, your honors.
May it please the court, Steven Gagne.
I'm the first assistant district attorney
for the Northwestern district.
I was trial counsel in this case.
And with me virtually today
is deputy district attorney Jennifer Sewell,
who was co-counsel in this case.
Your honors, the Commonwealth asks this court to affirm
the defendant's 2016 conviction for murdering her wife
inside their home in Granby, Massachusetts.
As you know, this case has a long procedural history,
with two hung juries and an unsuccessful appeal
by the defendant to this court
in an effort to prevent there from being a third trial.
All throughout that time, Judge Mary-Lou Rup,
who had served on this Superior Court since 1992,
retained jurisdiction over this case
and became intimately familiar with it.
On appeal, the defendant argues
that Judge Rup abused her broad discretion
in a number of pretrial and midtrial rulings.
And while this court's review
under abuse of discretion is not perfunctory,
it also affords great deference to trial judges.
And in this case, Judge Rup's discretionary rulings,
particularly her decision
to admit expert testimony in this case,
cannot be said to be so far
outside the realm of reasonable alternatives,
or that it amounted to a clear error of judgment.
Now, with respect to the paint evidence,
the Commonwealth's burden at the pretrial
Daubert-Lanigan stage on the motion in limine
was to establish to a preponderance of the evidence,
more likely than not, that this evidence
was sufficiently reliable to at least reach the jury.
-: Counsel, if we could just dive right into it.
So Attorney Wood brings up two different aspects
of the paint evidence, not only of the drying,
but of also to the issue
of whether it was intentionally poured.
Do you concede at least that second part,
that he was not qualified to opine
as to whether it was intentionally poured or not?
-: I would concede that it was not as firmly rooted
in his testing and his experience
as perhaps the drying time.
I do not think it was beyond the realm of his expertise,
and I would direct your honor's attention
to the defendant's record appendix at pages 201 to 204,
because that is where Mr. Guilianelli laid out
six different points from which he concluded
that this was an intentional pour
as opposed to a spill or a drop.
It was not, as Attorney Wood argues, mere speculation.
And Mr. Guilianelli never said on cross examination
that this was just his own wild speculation.
He pointed to the unique flow patterns
that the dye in this paint left,
which would not be there if it was dropped or spilled.
So it was rooted in his experience,
and it was well laid out and documented
in the discovery that Judge Rup had
when she allowed this in.
Now, when it comes to the drying time experiments,
first of all, it can't be understated.
Excuse me, it can't be overstated,
how experienced and knowledgeable Mr. Guilianelli was,
not just within the paint field,
not just as 20 years of a chemist.
He literally designed this paint.
This was a unique type of paint with this added dye
for ease of application by the customer.
He thoroughly documented his work in this case.
And it's worth noting, as he testified,
when he was first contacted by the Commonwealth,
the working theory was the change in color
may tell us something here about the time.
Based on some preliminary testing he did,
he actually said the color change really doesn't apply
when we're dealing with poured paint.
But what is interesting is the visual changes
in this paint as it dries over time.
Now he thoroughly documented his work,
all of which Judge Rup had when she ruled on this.
369 photos,
252 pages of notes and reports,
and a 14 page report that he authored
in May of 2016, prior to trial.
-: Yeah, I'm not, you've got two evidence professors
on the panel, and I'm not one of them, so I'm,
but I find that this seems junky in terms of science.
So tell me, is this a repeatable experiment?
Is somebody capable of doing what this guy did again
and verifying that this was correct?
'Cause this seems like, you know,
playing in your garage with paint rather than,
I get that he can describe his own paint,
when they put it on walls, and you know,
how it, you know, it was a good paint.
But this is like, this seems like we're off
in a totally different direction here.
So tell me why this isn't junk science.
-: Yes, your honor.
Well, this was admittedly a unique fact pattern,
and a unique crime scene,
at which paint was poured over a body.
However, you mentioned repeatable experiments,
and Attorney Wood says also controlled conditions.
That is exactly precisely what Mr. Guilianelli did here.
He conducted six rounds of testing.
He thoroughly photographically documented.
In the supplemental record appendix,
you can see, almost minute by minute,
the temperature down to the 10th of a degree,
the relative humidity.
So not only did he repeat his observations multiple times,
but they were controlled conditions.
These were environmental chambers
in which he was conducting this analysis.
So this is the farthest-
-: And the expert they hired to pick this apart,
what does he say about all of that?
-: Essentially, it's just an amplification
of what Dr. Gregory Otto put in his affidavit,
which Judge Rup had, which was,
there are some variables here
that perhaps you can't control for.
And Judge Rup specifically addressed that
head on in her decision.
She said, "I've read the affidavit from the defense expert.
Admittedly, perhaps this cannot be perfectly replicated.
However, it's replicated closely enough
that it meets a reliability threshold
and the jury can hear this."
And Judge Rup explicitly acknowledged
that even once she lets this in as gatekeeper,
that's not the final word on reliability.
And Justice Kafker, as you said,
I think you said beat up the defense, the witness,
or roughed him up, so to speak.
I admit this was a pretty effective cross examination.
I was squirming as I was watching it happen first real hand,
but that is exactly what this court has said,
what Daubert in the United States Supreme Court said,
that if you have a case, and I'm not saying,
I'm not saying that this was shaky evidence.
But in cases where there is shaky but admissible evidence,
if you meet that preponderance standard,
which is admittedly low,
it's then within the square realm
of trial counsel and the jury
to decide how much weight to give this, if any.
And on that point, if I-
-: But you know, again,
I'll defer to my colleagues who teach evidence.
But the, we have a gatekeeper function
so that the thing has got to be
reasonably reliable.
I don't know exactly the standard, sufficiently reliable.
And it just seems like
we're awfully close to the edge here on that.
But yeah.
-: Well, your honor, I would point,
and I make this, I think I made this point
more thoroughly last Friday.
And with the court's leave to accept this filing,
I did file a response to the amici filings in this case,
in which I discussed how, in this realm,
this court has acknowledged that not all areas
of expert testimony are equally far
outside the ken of the jury.
And in this case, ultimately, what we are talking about here
is the fairly common sense notion that paint dries.
Mr. Guilianelli didn't just come in
from his factory in Strongsville, Ohio
and say, "Oh, I know all about paint.
And let me tell you, it dries."
That would be a situation analogous, I believe,
to the Frangetti case,
which this court decided a couple of years ago,
where an accident reconstructionist
looked at a scuff mark in the road
and essentially said, "Oh, I know scuff marks.
That's a scuff mark from a sneaker.
I've seen it before, trust me."
No foundation, no testing, no anything.
In this case, Mr. Guilianelli didn't do that.
He did what he does in his industry,
using environmental chambers, repeated experiments,
repeatable experiments under controlled conditions.
And he documented it all through photography.
And some of that photography
was introduced to the jury at trial,
showing a fresh pour and a pour several hours later.
And they could see with their own eyes
what their common sense would have otherwise told them.
Paint dries over time.
So this was something where an expert
was simply helping the jury to understand better
evidence that was already in the case.
And I'd suggest that distinguishes this case perhaps
from fingerprint or DNA cases,
where if that expert doesn't come in
and tell the jury about DNA matches or fingerprint matches,
the jury is not hearing about that at all.
Here, the paint evidence was in the case.
It's dry- -: I guess I'm gonna ask you
to move away from dry and move over to pour.
Because this, I know Mr. Wood disagrees,
but this guy's in a way like the expert
in Kumho Tire versus Carmichael,
who was, he was the tire guy.
This guy is not just the paint guy,
but he's the paint guy about this paint.
But the fact that he's the paint guy, and he's qualified,
doesn't mean that his methodology as to pouring
satisfies Daubert-Lanigan.
So what he's doing is he's saying,
he's applying his personal observation and experience.
And he's saying
that this was poured.
Just on that issue, I know you've referred us
to page 201 through 204 of the defendant's record appendix.
But what's the methodology that he uses
to say this was poured, other than, "I'm a paint guy
and I'm a really good paint guy
and I use this paint and I think it poured?"
-: He was firmly rooting his opinion
in the trial evidence, in the crime scene photographs,
in his trained-
-: He absolutely had a basis for his,
he's qualified and he's got a basis for the opinion.
I'm giving you both of those.
Whether we end up that way when we dive in,
I'm giving you that he's qualified,
I'm giving you that there was a basis for the opinion.
Chauncey: Okay.
-: What's the methodology that he uses
to say this was poured, so that we can understand
that methodology for gatekeeper reliability?
-: Well, admittedly, he did not conduct drop or spill testing
and document it as he did with the drying time.
However, this court has recognized that experts,
through their training and experience,
they can look at something and they can discern things
that the ordinary juror
necessarily wouldn't. -: I'll give you that too.
-: Pardon me? -: I'll give you that too.
And we said it in v. Canavan.
Observation and personal experience can be enough,
but it can't just be like in Kumho Tire,
where the expert says, "I touched it, I felt it,
and it was defective design,
not misuse.
What is the methodology
that he's applying to say it was poured?
-: And council, may I follow up on that,
because this is, that's not just an esoteric question.
Because there are instances in the record
that confused me with that, and I'll give you why.
In one sense, and I don't know,
and I can't remember exactly where,
but he talked about how the absence of splatter
was one factor, or something that was considered
with respect to whether it was poured or knocked over.
Right? -: Yes.
-: But then he also talked about how,
I believe this was ceiling paint, right?
Chauncey: Yes.
-: And that it was designed to not splatter, right?
Because, I forget about the composition of it.
He talked about the four things that go in it,
but part of it was, because it was ceiling paint,
it was formulated in a way to reduce splatter.
-: Yes, your honor, that testimony was specifically
in reference to when a customer applies this paint
as designed, -: Sure.
-: with a roller at a thin film, it will not splatter.
I mean, clearly if customers are rolling it on the wall
and it's spraying back on them, it wouldn't sell.
But what he was saying is that if this paint
were dropped from some distance, one would expect,
as almost with any fluid, that you would see,
I mean, I know that in my kitchen,
if my daughter drops a little cup of yogurt,
it ends up on every surface within 20 feet.
So he's simply saying here, again,
a fairly common sense example that there would be spatter.
It would not be a flow pattern.
And you wouldn't see that dye pattern inside the bucket.
-: The way there was. -: Particularly,
you wouldn't see the bucket lying on top of the lid.
Now, maybe that's something that a juror could see
with their own common sense,
but he was bringing a gloss to this.
He was bringing a lens, and pointing out things to the jury
that perhaps the ordinary lay person would not appreciate.
-: Perhaps, but he also backed off of that, right?
That, the issue about the canister
or the paint being on top of the lid, right?
And that having anything to do
with being able to glean whether it was kicked over
or that it was poured?
-: You know, if anything, that's one of the beautiful points
I think about Mr. Guilianelli's testimony
is that he freely acknowledged everything he didn't know
and everything that was based on perhaps partial assumption.
In fact, his testing,
he conducted his testing of the drying time
in such a broad range of temperatures and humidities
that he said, "Although it's highly unlikely,
I admit this paint could have been poured
four hours before anybody got there."
So he didn't come in and say, "This is bedrock science
and I know better than anybody else in the world.
Trust me."
He acknowledged what he didn't know.
Defense attorney, defense counsel skillfully hammered home
every assumption that his testimony
may have been based upon at certain points.
I will admit that of the two opinions he gave,
the pouring, the intentional pouring,
was less firmly rooted than the drying time.
But I would argue that that opinion, of the two,
was the less beneficial to the Commonwealth.
And the reason I say that is because,
regardless of whether this paint was poured or spilled,
what mattered was the time differential
between a cold, rigidly stiff body,
whose arms are literally suspended off the ground
in full rigor mortis,
which takes six to eight hours to form,
versus what was uniformly described by first responders
as wet, fresh, shiny paint.
Those two timelines do not match up.
So the significance of the drying or lack of thereof
was really the linchpin of Mr. Guilianelli's testimony.
And if he perhaps went a little farther out on the limb
than his weight would support with the pouring,
that would not be sufficient grounds
to overturn the defendant's conviction.
My brother mentions prejudice,
and he says that this testimony was what tipped the scales
into Cara Rintala's conviction.
I strongly disagree.
He mentions the fact that there were
two mistrials before this one.
That's confusing correlation with causation.
In this case, the Commonwealth's time of death evidence
was much stronger than it was in the first two cases,
because Dr. Thomas Andrew,
completely unconnected witness from New Hampshire,
25 years as the chief medical examiner,
he's asked to formulate an opinion as to time of death.
And he has no idea what time
Cara Rintala left the house that day.
He was specifically kept from that evidence
to avoid any bias one way or the other.
And he said explicitly, one o'clock is my opinion,
give or take, three o'clock isn't even on the table.
Secondly, the Commonwealth's strategy in its case
and chief in this case
was very different than the first two trials,
where this time, because the defense's theory here
was so strongly rooted in rush to judgment,
botched investigation, insufficient investigation,
the Commonwealth did not call its lead investigator,
trooper Magarian, and basically we elected to say,
if the defense wants to build that defense,
you call him, and they did.
And I think that changed- -: I'm not so sure
that when we're going to look at prejudice,
it benefits either of you
that as far as applying the doctrine,
well there was a mistrial this time and the time before.
But to me, I mentioned this to Mr. Wood as well,
to me, if she poured the paint,
that's brutal consciousness of guilt evidence.
And I imagine, maybe Judge Rup gave that instruction
because we had such consciousness of guilt evidence,
and the instruction also benefits the defendant.
-: Well- -: But, I'm sorry.
Go ahead, and then I'm gonna ask for a remand.
-: Just briefly, I just want to highlight
your use of the term she.
Mr. Guilianelli could not obviously say who poured it.
He said it was most likely poured
roughly a half an hour before first responders got home.
Whether or not Cara Rintala was even home at that time
is debatable because there was evidence she was in Chicopee
buying mac and cheese at 6:58 PM.
And first responders are called around 7:15.
So he couldn't point the finger to anybody in particular.
And even if the paint was poured 30 minutes, 60 minutes,
four hours before people got there, still,
that could have been the person who, somebody else
who killed Annamarie Cochrane at an earlier time.
So I do quibble with your use of the term she.
That's taking his testimony even farther than he did.
-: Let me ask you why we don't need a remand here
on the issue of whether it was an error
for the defense counsel, doesn't have to be Strickland,
if there was an error
for the defense counsel not hiring an expert,
considering how important this testimony was.
I mean, the paint evidence is a huge issue in this case.
-: Yes, your honor.
Respectfully, I do not believe a remand
would really shed much new light on this issue.
Because it won't change the fact
that trial counsel consulted
with two different experts prior to trial.
There was Dr. Otto Gregory,
whose affidavit he submitted to Judge Rup,
and then Dr. Robert Iezzi, who he also consulted with,
but ultimately chose not to use.
If I may finish my answer,
I see my time has expired, your honor.
Lowy: You'll have to ask the chief.
Budd: Oh yeah,
absolutely, go ahead. (laughs) -: Sorry.
Yes, so both before and in that trial,
trial counsel had consulted with two experts,
and he specifically relied
upon the assistance of Dr. Gregory
in crafting that damaging cross-examination
of Mr. Guilianelli.
When Judge Rup denied the motion to eliminate,
she was privy to these many challenges and critiques.
And when Judge Mulqueen denied the motion for new trial,
she was privy not only to the record that Judge Rup had,
but the enhanced and amplified affidavit by Dr. Loughlum.
And she too found
that there was no ineffective assistance here,
and no grounds for a new trial.
And for what it's worth,
and I would suggest it's worth something,
when Judge Carey, another esteemed
and experienced member of the Superior Court,
denied the motion for stay,
he found that this issue lacked heft.
So obviously this court is not bound
by the decisions of lower court judges,
but I'd suggest it's worth something
that three experienced, very capable
Superior Court judges here have looked at this evidence
and said it was not an abuse of discretion to admit it,
it was not ineffective assistance of,
what we both agree on here, perhaps the only thing,
one of the best trial attorneys
in Massachusetts over the past three decades.
So having said that,
if the court is sufficiently concerned about this issue,
obviously we would prefer a remand to a reversal
because I would like to see how these doctors hold up,
how these professors hold up under cross examination.
If I get the chance to do to them
what Attorney Hoose did to Mr. Guilianelli,
perhaps ultimately we'll be back before this court.
Because a new Superior Court judge,
the fourth one now to look at this case,
is going to decide in his or her opinion
that this was or wasn't ineffective,
or this was or wasn't reliable.
We'll be back here arguing abuse of discretion once again,
albeit on a perhaps more fully developed record.
So I really don't think that's going to change
the ultimate analysis that we're asking this court
to perform at this stage.
-: Okay, thank you. -: For those reasons,
your honor, I would ask your honors
to affirm Cara Rintala's murder conviction.
-: Thank you very much, counsel.
Bailiff: Court, all rise.
Hear ye, hear ye, hear ye.
All persons having anything further to do
before the honorable justices of the Supreme Judicial Court
now sitting at Boston within and for the Commonwealth,
at present depart.
The sitting of this court is now adjourned.
Please remain standing as the judges exit.
Thank you.