-: Counsel, good morning.
Baler: Good morning.
-: Informing you that the four justices here in this case
will decide this case.
We are the quorum.
So with that, I will turn to Mr. Baler for your argument.
-: Good morning.
May it please the court, Jeffrey Baler for Jesse Williams.
I'd like to first address the issues involving the jurors
unless the court would, which is otherwise.
First off, we contend that so-called juror 11
was improperly dismissed.
Our mistrial should have occurred where the reasons
for his dismissal were not personal to him.
In order for dismissal to be appropriate,
the reasons for the dismissal must be appropriate,
must be personal to the juror and cannot be related
to his or her relationship with the other jurors.
Here from the juror's know and inquiry
and even the judge's findings,
we see that the reasons for the dismissal were at least
in part related to his relationship with the other jurors.
-: Can you answer this question, Mr. Baler?
What was Judge Pierce to do?
So he says, and we'll get into the other juror in a second.
He says to this juror, or he says to the jury,
"You have to deliberate anew."
Baler: Right.
-: And then we have a mixed bag.
We have this juror saying, "I can't and I won't deliberate
anew, I won't follow your instruction."
But then he also says, "And the reason I'm not gonna do that
is 'cause everyone hates me essentially,
everybody disagrees with me."
So what should Judge Pierce have done short of a mistrial?
-: Well, I mean, we can-
-: I'm sorry to interrupt you.
Could he have said, go back in there and do your best?
-: Yes, and he could have done that
especially 'cause the juror didn't say I can't follow
your directions, he said he wasn't 100% sure
that he couldn't follow the directions.
But even if he says he couldn't follow the directions,
then a mistrial should have occurred.
I mean, the cases I cited in my brief say that it's costly
for everyone involved but sometimes you'd get a juror
that just requires a mistrial.
And here, we see that the juror's issue
was based on his relationship with the other jurors.
So therefore it can't be found totally personal to him.
I'm sorry.
-: Yeah, and thank you.
Could we have extensive colloquy in very particular findings
by the trial judge?
We owe deference to his assessment of that juror, correct?
-: Correct.
But as a matter of law, the juror could not be dismissed
under the rule when his issue is related
to the other jurors.
-: Could...
Go ahead, Justice Gaziano, I'm sorry.
-: No, I'm all set just, Cypher.
-: The Attorney Baler,
going back particularly to the colloquy that the judge
is having with the juror, where do you identify this,
that it's particularly related to the other jurors?
-: Well first of all, the court received the note
from the juror saying among other things
that he was not able to engage in discussion
with the other jurors.
He can not have a discussion without being judged.
Then an acquiree of itself-
-: No, no, let me stop you there for a minute.
Was that note about,
he says, as he says at this point, I know the other members
are waiting on me, so I don't think I would be able
to have an open discussion without feeling judged.
Is that more about the fact that he is interrupting
the proceedings or is it because...
I took that a different way I think.
-: Well, during the inquiry,
the juror said that that is part of it,
but that was just a minor part.
In the note, it also said that he couldn't engage
in the discussion without the jurors.
But the judge, in that, he was being judged.
So maybe he couldn't, he didn't feel like he could,
that they were waiting on him and that was a problem,
but he also felt like he couldn't return
because they were judging him.
But I think in the inquiry that occurred afterwards,
it's even clearer that his issue is related to the jurors'
and that he may well have been the only dissent.
In the inquiry, he said, "I already know specific jurors
that I disagree with.
I know how it goes in there."
And even the court and its finding state that the juror
has views different from others.
So the juror might've said, I'm not 100% sure
if I can follow the directions and might have
in a minor part felt like he couldn't return
after delaying the jury, but it really comes down
to the reasons that he wrote the note in the first place,
and that is that he already knew specific jurors
that he disagreed with, and he felt like he couldn't start
all over again.
-: With that specific point, where do you discuss that
and agree that there are jurors he disagrees with
or where in the record is that?
-: When there's an inquiry, it's on Page 32 of my brief,
let's see.
It's Transcript 2515 where the juror says,
I can read you the quote,
"I've already made up my decision,
I already know specific jurors in there
that I disagree with.
So going in there with a new person who has to start over,
I feel like I already know what I'm going to say
and it's going to be biased and not fair for me
to be in there."
-: I'm sorry, isn't that the point of deliberations
and new...
So maybe it's a fiction, but we're supposed to say
you're now a different group of 12, you start at square one.
And he's basically saying, I can't do that, I won't do that.
-: Right, but his reasoning is because he already knows
that he disagrees, that certain jurors disagree with him.
And then in fact, once he's removed from the juror
and the alternative, alternate, that's it,
was put on the jury, they came back with their decision
very rapidly.
-: So which means-
-: Mr. Baler, can I get you to the attorney juror
in a second?
And maybe if we have time, you can go back to the jury
if need be?
What strikes me about this case is number one,
isn't it wrong for the lawyers to say let's rig
the alternate system?
-: In a case that occurred after this case,
I think the court made that clear
that that's not an acceptable way to do things.
-: Right, there's a statute about prejudice, right?
But that's not, and the defense attorney below said sure,
right?
-: About this alternate procedure?
-: Right. -: I think the defense attorney
in fact said that in the past,
that's the procedure they've used
and there's no embarrassment or trouble
caused by the jurors.
And at the time that the trial judge said,
well, do you want Nuvodia?
And the defense attorney said no, let's just make sure
that he's gonna be an alternate.
-: Okay, and that leads to my second question, Mr. Baler.
So what can, really I find troubling about this case
is we have a statement at Volume 11, pages five to six
from an experienced judge who says,
"I had a colloquy with this juror and he wasn't sleeping,
he was concentrating."
That's not apparently in the record.
What steps were taken when this record was assembled
to ask Judge Pierce?
was this something that happened?
Did the court reporter not pick it up?
Was this done in the lobby?
Because I'd hate to make a rule on this case
and if I were the trial judge and I had a colloquy
and then the SJC is saying the judge should have had
a colloquy, I wouldn't be too pleased with this court.
So what steps were taken by you folks down below
to shake this out?
Well, I know that's not in the record,
but I talked to the trial attorney and the defendant
and it appeared that there was no colloquy.
I don't believe that it's clear that when the judge
is saying, he said, "Yeah, I spoke to him,"
or "I inquired."
To me, it appears that he spoke
to the assistant district attorney,
not that he spoke to the juror.
-: (murmurs) him is the ADA?
-: That's how I read it.
I don't have it right in front of me,
but if you read the whole-
-: I just read it again this morning.
So I spoke to him, his hands were on his head,
he was concentrating.
-: But if you read what the defense attorney said
right before, when the defense attorney says
object that, he should be an alternate
that the defense attorney said that there was a problem
with this juror in that he shouldn't be
and he should be an alternate,
meaning that there was never an inquiry
and that there was a problem with him.
So that leads into the judge saying, well, I had an inquiry,
I inquired of him.
-: And helped me out Mr. Baler, as far as I think we've said,
it's structural error, but if a defense attorney
essentially waives a colloquy, there's no need.
And then I guess the issue is whether or not
the report of the person sleeping is reliable,
that's the first step.
But anyway, if the defense attorney says no,
we don't need a colloquy, can that issue be waived?
-: It cannot be waived because it's a structural error.
And I signed a case from this court in my brief
which I don't recall the name off the top of my head-
-: That obviously makes sense of structural error.
So if there was reliable evidence that this person
was asleep, no matter what happened with the request
for colloquy, it's a reversal.
-: Right, if there was no inquiry of the juror and a finding
that he or she wasn't asleep.
-: Counsel, is this a situation where Rule Eight
would have worked to make a motion
for the judge to reconstruct the record
of the inquiry he made?
-: Well, I didn't believe that based on the record,
that there was a missing portion and the Commonwealth
could have just as easily moved to correct the record
if it had believed that there was something missing.
-: Either one of you could have, but I'm wondering
if this is where it doesn't appear,
either party was involved.
I mean, at least if the lawyers are in the room
and something happened during trial
and it's not in the transcript, and there's a motion
to reconstruct, we're a little more aware
of what we're reconstructing, but here, I'm just wondering
if that would be a mechanism that would have worked,
not necessarily critiquing you for not doing it.
-: It could have worked, but it didn't appear from the record
or from what the judge said that there was an inquiry.
-: It seems unfair to me that we would make a finding
of structural error with this looming question
about whether or not there was an inquiry.
-: Well, as I...
All I can say is it appears that there wasn't one
and that's as far as,
that's what's in the record that there wasn't one
and that it appeared as I said,
from what the trial lawyer said, the defense lawyer,
that it wasn't one.
And if you read what the judge said closely,
I believe he's referring to the district attorney,
not to the juror.
-: Is that because he thought that they would basically
gain he's going to make this guy an alternate,
so there would be no problem with this guy?
-: I'm sorry.
-: I was under the impression that they didn't do a colloquy
if they didn't do a colloquy, because the notion
was that he was gonna be an alternate juror
and he wasn't gonna be a problem anyway.
-: Yes, that's a good (murmurs).
-: But that was raised before because we had two...
There was another, he puts him in the mix to be an alternate
a prior time over the defense attorney's objection,
and then this is the second juror
who was excused for cause, right?
-: Right. -: So there are
plenty of opportunities to have a colloquy
and the issue was raised to the judge
about whether or not this person is a proper juror.
Correct?
-: Right, yes.
-: You've frozen.
-: Before that, I'm sorry.
-: Mr. Baler, you froze a little bit,
so I don't wanna miss what you said in response
to my question, why don't you start all over again?
-: Okay, I'm sorry.
Do you recall what the question was?
-: I was just asking you about, this was the second time
this issue was broached.
-: Oh, yes.
It appears from the transcript that there was no making
this third juror an alternate when the first juror
was selected, it just slipped by happenstance
he wasn't...
I can't remember if it was a he or she, that juror couldn't,
I think it was a he, couldn't...
Nothing said that the juror couldn't be selected
and at that time.
-: They didn't say on the record, we palmed his number.
-: No.
And then in the second time, he was picked.
So here is that it was just happenstance
that he was not picked in the first part of the jury,
the first part, yeah.
-: Do you have some time remaining Mr. Baler.
Do you wanna address your motion, suppress argument?
-: Yeah, I would.
And just getting down to the central issue
and of course we say on the totality of the circumstances,
statement was involuntary and primarily
because Mr. Williams invoked Counsel.
During the middle of the interrogation
before Mr. Williams had admitted anything, he said...
I have the piece of paper right here.
"I was gonna say whatever, but this is where
the lawyer thing comes in."
So I know that this isn't an unsophisticated way to say it
but he's basically saying I was gonna say whatever,
meaning I don't wanna talk,
and this is where the lawyer thing comes in,
meaning that he doesn't wanna talk until (murmurs).
-: What's the next response to the police?
-: Pardon me?
-: How did the police follow up on that?
-: Well, we contend that they should have just stopped
questioning because that was an invocation of counsel,
but then they followed up.
It is possible if it's unclear for the police to follow up.
And even with the clarifying questions,
Mr. Williams never said he didn't want a lawyer.
I just can read it too,
"The police responded, 'Okay, well,
if you say the lawyer thing,
does that mean you want to have a lawyer?
Do you want to stop or do you wanna keep talking?'"
And the defendant responded,
"No, I definitely like to talk."
But he didn't say he didn't want a lawyer,
all he said was he wants to talk
but apparently with a lawyer,
because he's asking for a lawyer.
I mean, it was so unclear that the police asked him again,
"Does this mean you want a lawyer?"
"If you're saying you want a lawyer, I wanna stop,
but if you want to talk, I'm glad to listen.
Do you understand what I'm saying?"
Mr. Williams responds, meaning he understands
what he's saying but again,
never saying that he didn't want a lawyer.
Then the police still unsure, left the room
to talk to the assistant district attorney
who was monitoring the interrogation.
And then police just came in
and started questioning him again.
It was never as required explicitly Mr. Williams
saying that he did not want a lawyer.
And once he, even if it's equivocal,
the followup questions were warranted,
and it's required that Mr. Williams said that he wished
that he did not want a lawyer and want to continue.
While we have the sophisticated defendant,
who's saying this is where the lawyer thing comes in.
I was going to say whatever, meaning he wants to stop.
And then the police just keep going.
-: But don't they ask him, do you really want a lawyer?
I mean, they probe him a little bit on this.
Don't they?
Doesn't that (murmurs) tell them to do?
-: Well, they're supposed to just say plainly,
does this mean you want a lawyer?
And they can't keep questioning unless the defendant says,
no, I do not.
And they never do that, they just want to ask him
two part questions.
Does this mean you want a lawyer?
Do you wanna stop talking?
And there's never a clear statement from Mr. Williams
that he will talk without a lawyer.
He just says, "No, I wanna keep talking,"
but he's already asked for a lawyer.
So I think he understands what's going on,
but then police go out and they talk about this.
And apparently, they agree that it's okay for them
to continue even though the defendant
mentioned the lawyer, but they just come in
and they don't ask him anything,
again, they just go forward with the interrogation.
So we contend that first of all, it was unequivocal.
And even if it was equivocal and the followup questions
were required warranted that Mr. Williams never said
that he wanted to go forward without a lawyer.
An unsophisticated defendant he's trying
to apparently appease the police by saying no, I'll talk,
but he's asked for a lawyer.
And of course he doesn't know what the procedures are
and I think that he deserves at least the benefit of doubt
in this case when he basically says that he wants a lawyer.
-: Any further questions for Mr. Baler?
Thank you, Counsel.
-: Thank you.
Frank: Mr. Charles.
-: There we go.
Good morning, your honors.
May it please the court assistant district attorney,
Jamie Michael Charles from Middlesex on behalf
of the Commonwealth.
Just briefly, since you left off with the Miranda issue,
I'll just briefly touch on the invocation of counsel.
Our position and I think the motion judge
opted this position in our memorandum of decision
is that there wasn't even a need to confirm
an invocation here because what the defendant said
did not rise to the level post waiver
of an unequivocal invocation of council.
And I don't think it's fair for my brother
to use the fact that these state police trooper here
in an abundance of caution really tried to be sure
that that isn't what happened to suggest
that that should count against the Commonwealth.
I think clearly here, Trooper Baker twice attempted to get
to the heart of any ambiguity
that there might've been there.
And you'll note from my brief I think,
and also from the transcript that there's some dispute
between the Commonwealth and the defendant
regarding his unofficial version of the transcript
which we maintain does not accurately reflect what was said
in that moment and the video recording of the hearing,
which I would urge the court to listen to,
which I think reflects the defendant said,
"No, I'll definitely, I'll talk."
And then even after that, a statement is made
by the defendant.
Trooper Baker still asks one more time,
he says, "If you're saying you want a lawyer,
I wanna stop and if you wanna talk, I'm glad to listen."
And the record is that the defendant
nodded his head positively and acknowledged.
And I would also just, the last thing I'll say
before I move on, unless there are questions
on this is if you look at the transcript
of the motion to suppress at Page 46,
Trooper Baker's testimony was he did not have any doubt
in his mind that the defendant had not
invoked counsel when he left the room
for that three minute period,
that he merely left the room to make sure
that anyone else watching didn't have a different opinion.
But his personal test, his testimony was that he himself
had no doubt after that brief interaction with the defendant
that he had noninfected vote counsel.
And you can see that after the brief recess,
when they resumed, the defendant participates
without hesitation, the matters never brought up again.
And so I don't think under the case law,
there was a clear invocation here
that even necessitated that additional back and forth
between Trooper Baker and the defendant.
I suppose next, I'll move to the issue of the juror
who was allegedly sleeping.
-: Why didn't you ask for clarification from judge Pierce?
-: I actually I've struggled with that decision
in the past couple of days,
it's obviously not in the record I will note,
I did directly email Justice Pierce to inquire
whether he had a recollection in the first instance,
because I thought that would have been prudent initially
to see if he even had a recollection
before staying proceedings and pursuing a hearing.
I unfortunately did not get a response.
I'm by no means putting the onus on Justice Pierce.
I think ultimately where the Commonwealth came out on this
is our opinion based on the transcript
was that this was not a reliable report and that therefore
because Nuvodia was required, it was not-
-: But what if we disagree with you,
then you got a huge problem of structural error,
which could have been remedied by asking a trial judge
to work at his notes.
-: Again, I think that I've struggled with it
over the past few days recognizing candidly that I think
it fell to the back burner when I started writing the brief
and I think in an ideal world,
we probably would have stayed this and gone back down.
I guess I would ask the court, if you disagree
with my legal argument, as you have in some other cases
or I believe at least as I've seen the appeals court do
in circumstances here that it be sent back down
for further clarification on this one issue.
But again, I think the Commonwealth position
and I think it's a pretty strong one,
is that this was not a reliable report.
While unquestionably the Trial ADA did initially say,
he's been sleeping through the whole thing,
if you look several lines later,
he immediately qualifies that and said,
well, he had his face down in his hands,
maybe he was just listening, and the judge
should've acknowledged that you don't have to watch
the interrogation, you can just listen to it.
And I would say here, the other key distinction-
-: But then he adds and I spoke to the trooper
and the trooper said he was nodding off
during the surveillance video.
-: With all due respect on that point,
he does not say that the trooper said he was nodding off.
He just simply says that the trooper said
he wasn't paying attention.
-: The nodding off is my gloss, but there was a problem,
the trooper reported a similar problem.
-: And I would note that the trooper was the...
When we're talking about the trooper,
we're talking about the individual who had just finished
testifying, who introduced the tape that was played.
But I would also, what I was about to say
is that the key distinction here I think
is you have a judge who basically says repeatedly,
"I've been watching him during this relevant period of time
and I did not see that."
And that does not gel with what I have observed.
So if you look immediately, when it's brought up at Page 20
of Volume Eight, Judge Pierce's initial response is,
"I did not notice it."
And then at the very next page, Page 21,
"I was watching the jurors throughout, I did not see that."
And then he elaborates even more farther that page,
"Because I have been watching."
So, that I think squarely puts this case in the camp
of Dinesh and these other cases where you have one party
who alleges that there was possibly a juror
sleeping in here.
Again, I would say that the Trial ADA
almost immediately qualifies it or minimizes it.
And you don't have any other person who observed
that conduct, who directly spoke to observing that conduct.
And you have a judge who is saying that he did not see that
and not that he didn't see it because he wasn't watching
but that he was watching it and he didn't see it.
-: Two questions.
Why does the judge then say I made an inquiry?
-: Obviously as...
That's obviously (murmurs).
-: I know it's on Volume 11 at the end of the trial,
do you have the same take as Mr. Bailer that the inquiry
was inquiry to the ADA?
Or do you think that the judge did have an inquiry
that somehow didn't get transcribed?
-: Candidly, I initially had the opposite reaction
similar that there had been a board year
and it simply wasn't recorded
as evidenced by a footnote that I put in my brief.
But upon rereading the defendant's brief,
I don't think it's unreasonable his interpretation of it
because in looking back, the explanation that judge Pierce
gives at that point is exactly the explanation
that the Trial ADA gave when it qualifies
the initial observation that he had in his hands
to focus and pay attention.
So I'm not sure that that is...
I mean, the pronoun used there is not ideal,
I think he could simultaneously use the same pronoun
to refer to the Trial ADA and the defendant
so it is completed a little bit,
but I do think that that's a plausible explanation.
I'm just not certain which is the...
But I do just wanna say again, the fact that Judge Pierce
in an abundance of caution decided to offer
the prospective ward year does not change the fact
that this was not under the case law, a reliable report.
Again, I think if you look at the Benash,
oh, and before I get to,
I just wanna say our case law is replete with instances
of a party to the case, the defense attorney,
or a prosecutor making an observation
that is then deemed unreliable.
So just the fact that it's a party to the case
making this observation doesn't inherently imbue it
with reliability.
If you look at Vaughn, if you look at Benash
and then Keaton, which I didn't cite in my brief,
it's 36 Mass. App. Court 81.
All those cases I believe as the defense attorney
made an observation of a sleeping juror
and then the court found that it was unreliable.
-: It's a bit odd when it's your party to the case.
-: I understand that but I don't think
that because it was a prosecutor,
should necessarily be imbued with greater reliability
than a defense attorney.
I think we expect all the parties to the case
to make observations.
And I think here-
-: Well, let me ask you about rigging the alternate system.
Was that improper?
-: I think under the statute, if the parties agree,
though I recognize as my brother said
that there was a case that came out afterwards,
I don't think the process was right.
If you look at-
-: I thought the statute says that they have to be chosen
at random.
-: I believe the statute says if the parties
are in agreement, there can be an alternate...
I'm struggling with the word, an alternate procedure,
as long as all the parties agree.
But again here, if you look at Volume 11, Page Five,
the judge basically instructs the clerk to select
another alternate from the original alternates
who were selected at random.
And I think based on that observation there
and the absence of any record in the transcript
that there was an agreement and there were any steps taken
to intentionally make this juror an alternate,
I don't think you can infer that that was done.
And I don't think the transcript supports
that that was done.
The defense attorney here suggests
that that's something he's done in the past,
the prosecutor agrees that that's something he's done,
the court in the moment never agrees to it,
there's no subsequent indication
that the court took that step.
So I think this juror just became an alternate
through the luck of the draw.
And then when the defendant brings it up again at Volume 11,
the judge reiterates that he had been watching the juror.
He says, I've been watching,
regardless of what he said how we interpret
the did or didn't need Nuvodia,
he says, I was watching the jury personally
periodically throughout the trial.
I have concluded that he was fully attentive
from beginning to end.
So I think you have a judge who is vehement
in his assertion that he was watching this juror
but he did not observe the conduct that the prosecutor
asserted took place.
You have a prosecutor who qualifies his initial observation
by saying well, maybe he just had his head down
in his hands to listen.
And so I think by the letter of the law, based on the cases
this court has decided, that doesn't qualify
as a reliable report of the sleeping juror.
-: Now, with respect to the other juror,
he gives a mixed bag because he says,
"I'm not gonna deliberate anymore,"
but he also says, "The reason I'm not gonna do so
is because of the position I have in this case."
Isn't that second explanation personal to him?
(indistinct) not straight business the opposite.
It has something to do with his feelings for the case,
not personal to him.
-: Correct.
So to me, this is almost...
I'm not saying that this is verbatim,
the Swafford situation or the Lakewood situation,
but this court has recognized in those cases
that even where there is this tangential relation
to the larger deliberations,
there can still be these idiosyncratic responses
from jurors that necessitate that they be removed.
And I would submit that here,
bear with the three alternatives that were open
to Justice Pierce, which was to let this juror remain,
remove the juror or declare a mistrial
that the course of action he took was unquestionably
the most reasonable course of action to take.
This is certainly not a situation this court
has been presented with before, we have a jury that was now
in its third iteration,
they were just about to start deliberating.
So there's no evidence in this record
that they were at an impasse, that they were deadlocked,
I would dispute my brother's characterization
and I would say that the trial judge's findings,
which you have to credit unless they're clearly erroneous,
suggest that he was not a minority juror.
-: He may not be a minority juror,
he may be the majority or the minority,
but there is disagreement 'cause he's expressly saying
there are jurors I disagree with, right?
He makes that point expressively, right?
I don't disagree with that,
but I think that in almost every case,
there are always gonna be jurors that disagree
about certain things.
I don't think the fact that he happens to disagree
on certain theoral things, undefined points
with other jurors-
-: Why do you say they are theoral?
It's, "I already know the specific jurors in there
that I disagree with."
-: So that's perhaps not the right language, I apologize.
I just mean that we don't know what he disagrees on,
we don't know if he's in the majority and the minority,
if he disagrees on a specific point of law
or if he just disagrees about...
But again, I'm not sure that that necessarily matters.
-: (mumbles) the majority.
Kicking off somebody, even if you're kicking off
some of the majority, that's still not good, right?
-: If there's not a justified reason to take them
off the jury, I would agree with you.
But here, you have a judge who conducted
an extensive colloquy with this juror
and just repeatedly tried to assure him
that he wasn't trying to have him abandon his positions,
he wasn't trying to change his mind
but that he had to follow the judge's instructions
and go back in.
And this is obviously not all of a real like I said,
that was a case where a juror
brought extraneous legal information in and could not abide
by the judge's instruction to disregard
that erroneous legal instruction,
but it's a good analogy because you have a jury
who will not follow the judge's instruction.
It's admittedly not an instruction
that is typically an issue in these instances
because again, this is a unique case
where the jury was reconstituted three separate times.
But be that as it may, one of the instructions
that he has sworn an oath to follow
is that he will start deliberations anew
when there is a new juror placed in and he will engage
in deliberations.
And this juror refused to do that repeatedly.
He didn't even,
I mean, frankly, he waffled even on whether he could be
a fair and impartial juror, if you read the transcript.
But I think what is the judge to do when he is faced
with someone who has removed himself from the jury,
who refuses to,
not I would say because of his disagreements
but just because he's like, I figured this case out,
I'm not interested in talking about it anymore?
I don't think that that is necessarily a result
of the views other jurors have
or the disagreements he has with other jurors,
that's a personal thing.
He has decided the case, he's not interested
in talking about it anymore,
and he's refusing to do what the judges
are instructing him to do which he is legally obligated
to do, which is to engage in a new round of deliberations.
And I do have to comment, my brother makes it seem
as though that he was a minority and there was this holdout
and then the jury convicted
immediately after he was replaced.
If you look at this, there's no trial errors alleged
in this case.
The evidence is frankly quite strong against the defendant
including a confession and numerous parties who identify him
as someone who shot the victim who survived.
And if you look at the prior iterations of the jury,
none of them deliberated for even a full day.
And neither of the prior iterations of the jury
had had their question to the judge answered yet,
which was a technical legal question
that concerned corroboration of the defendant's statement
and whether they could use reasonable inferences
to get that circumstantial corroboration
of the defendant's statement.
So I would just submit to you that the jury
really wasn't very far along in their deliberations
and they weren't gonna come to a verdict until they got
an answer to that question.
And because they submitted that question pretty quickly
the third time around when they were reconstituted
'cause essentially, they already asked for an answer twice
and hadn't gotten it.
Once they got their answer to that question,
then it's not surprising to the Commonwealth
that it only took them another three, three and a half hours
to convict this defendant.
Because this was not a case where the evidence
was frankly in doubt, it was a very lopsided case,
the defendant didn't really put on any defense
other than to call Dr. Newman Pope to try
and poke holes in the voluntariness of his statement
based on his childhood and school records.
And so while they did acquit him of assault
with intent to murder, they found that he didn't intend
to murder anybody when he fired the gun,
the evidence was quite overwhelming
from a joint venture perspective
that he was all in on this armed robbery
and that his co-venture clearly shot
and killed Mr. Praplo.
So it's not remotely surprising to the Commonwealth
that when this juror was replaced and there was finally
an answer given to the jury's question,
that this was a fairly short deliberation.
But I think again, a judge has to be able to make
what is a reasonable decision in the moment.
And I think here, certainly you can't keep someone
on the jury who is refusing to follow
the judge's instructions.
And to declare a mistrial where a jury essentially,
where the jury as it exists in the moment,
has not deliberated at all,
where there is no indication that the prior iterations
of the jury were deadlocked or at an impasse,
and where the judges made a finding,
unlike some of these other cases where you've reversed
that this is not a minority juror
which although I take your earlier point, Justice Kafker,
that majority minority
we certainly don't wanna be removing people.
This court has been pretty clear
that you have to be extra cautious
in trying not to remove a holdout juror.
And I think there's no indication from the record here,
at least the judge's findings support the conclusion
that this was not a holdout juror,
and this was a deliberation that was just about
to get underway again,
and I would submit that in that circumstance there,
it was reasonable to remove this juror
who would not abide the judge's instructions.
And it did not make sense, it was not a manifest necessity
for a mistrial there where he was,
yes, he disagreed with people
but the disagreement was not the fundamental basis
for why he had to be removed.
He had to be removed because he was done,
he'd made up his mind, he wasn't interested
even with talking with the new juror who hadn't contributed
to deliberations at all.
He just wasn't interested in participating anymore,
he refused to say that he could
and the judges just didn't really have a choice.
They had viable alternates two remaining.
And so the judge took the most reasonable course
of action, and I would submit it wasn't
an abusive discretion and it didn't run a foul
of this court's case law in that regard.
If there are no further questions
on any of the other issues, I would rest on my brief
and ask that you affirm the defendant's convictions.
-: Thank you, Mr. Charles.
Thank you, Counsel.
-: Thank you, your honors.