Judge: SJC-12382, Commonwealth V Raymond M. Concepcion.
-: Thank you.
Attorney Billowitz.
-: Good morning.
May it please the court, Elizabeth Billowitz
for the defendant appellant Raymond Concepcion.
Raymond was 15 years old with an IQ of 66
when adult gang members drove him to the victim
and instructed him to shoot.
His youth and intellectual disability were
improperly disregarded
at every critical juncture of his case,
indictment, trial, and sentencing.
As a result, he's now serving an above minimum sentence
of life with the possibility of parole only after 20 years
while his adult co-defendants are serving 12
to 14 year sentences.
I'd like to start with the grand jury indictment.
-: Can I ask on that score on the Walczak?
You would ask us to basically change Walczak
because, of course, that was forward-looking
and here your client was indicted two weeks
before that case came out.
So you would have had the district attorney's office
basically to go back to the grand jury
when there was no requirement
to do so under Walczak, correct?
-: That's exactly right.
It's long been the law,
both federally and in the Commonwealth
that where a court announces a new criminal rule
that's rooted in a constitutional requirement
it must apply to cases that aren't yet final on appeal.
And often... -: That's unless we say
otherwise though, right?
'Cause I thought we said otherwise in Walczak.
-: No, that rule of Griffith V Kentucky and Dagley
that applies even when there is
expressly prospective language in the new rule.
And...
-: And when we said future cases in Walczak, we were wrong?
-: It's not that you were wrong.
It's that, that did not apply
because Walczak announced a constitutional rule.
That perspective language didn't bar defendants
whose cases were still pending on appeal.
And... -: Yeah, that was my question,
where you would draw that line.
-: It's a fairly bright line and it turns entirely on,
not on whether there's perspective language in the case
but on whether the new rule
that's announced is constitutional in nature.
And this court's most recent retroactivity case law
actually makes that very clear
in Commonwealth versus Martin.
This court considered whether changes
to the felony murder doctrine announced
in Brown should apply to a defendant
whose case was on appeal at the time.
And Brown's new rule was explicitly perspective.
However, Martin's analysis didn't turn on that.
It only looked at whether Griffith V Kentucky
and Dagley should apply... -: Was Grassy also wrong
then when we said that Walczak was prospective?
-: Grassy was dicta.
The main issue in that case was whether the rule
of Walczak should be expanded to pertain
to adults as well as juveniles.
This court did so, and then stated in the alternative
even if the Walczak case had applied to adults
that case was decided three months
after and nor that the perspective language.
I looked at the briefs in Grassy,
there was no briefing about the admittedly complex doctrine
of retroactivity in that case.
It doesn't appear that it was addressed
at all in the opinion.
That should be treated as dicta.
-: So every juvenile that was convicted, I mean,
I guess it's easier, right?
Because after Walczak came
out there was notice and the likes.
So your issue would be anybody who was charged
on direct appeal would have the benefit of Walczak.
-: That's exactly right.
So it's a much narrower group.
I mean, this is not a situation where it would be applied
to collateral challenges on rule 30.
This would apply to a small group.
And I would also, you know....
-: If someone were convicted so they're in that group
you would say the remedy would be to vacate the conviction
and have them go back to the grand jury?
-: That's correct.
And that certainly would have been a very easy thing
for the judge to have done in this case.
Counsel promptly made a motion
long before this case was tried.
It would have been easy to send down at the time,
obviously more complex now,
but that absolutely is the remedy,
would be dismissal with prejudice and the opportunity
for the Commonwealth to go back before the grand jury
with the proper instructions that Walczak requires.
-: And that request was made,
was that request actually made at the time?
-: Yes,
Raymond's counsel did file a motion for transcription.
And there was an opinion by the,
the trial judge was also the motion judge
and his reasoning was erroneous.
He said that Walczak was not a constitutional rule
and relied on a little bit of a stray comment by the dissent
in a discussion of whether Supreme court's trilogy
of eighth amendment cases require the instruction.
And justice like even responded to that in her concurrence
and said, "I haven't suggested otherwise."
It's clear from both concurring opinions
that together form the rule in Walczak,
that this was a constitutional rule based
in due process requirements in article 12.
-: Are you familiar with some, I'm sorry,
did you finish answering Chief Justice Budd's question?
-: Yes.
-: All right.
Are you familiar with at least this federal case law
that says that any defects
in a grand jury proceeding are cured
by what happens at trial?
And here the issues of his mental impairments were
what would have gave you that trial, correct?
-: That's correct.
-: And rejected by the petite jury?
-: To some extent they did reject the premeditation ground,
but I am familiar with that line of cases
and that doesn't apply here because the crux
of Walczak was that the grand jury is forced
into a gatekeeper role between adjudication
in the juvenile system versus the adult system.
And once they returned that indictment
and the case proceeded in superior court,
then that juvenile adjudication was lost
and nothing the petite jury did could make up for that.
-: Right.
And that recognizes,
of course 'cause as you well know Walczak is
a fragile opinion given the how many different opinions
there were in Walczak, correct?
-: It's true that the rule emerged from two concurrences.
I'm not sure I would concede
that the rule is fragile as a result.
I mean, clearly it's limited to the ground that both of
the concurrences... -: Yeah,
I don't mean to distract you but your answer
to my prior question was that, that doesn't,
the petite jury saving the grand jury that doesn't apply
when the grand jury has a gatekeeper role.
-: That's correct.
-: Good.
And then let me ask you while I have your attention,
you know, maybe you can get back (chuckles) on track.
You want us to change the law we got
in whether the duress instruction is applicable
when it involves death, correct?
-: That's correct.
-: And I didn't look at it and maybe I should've
but is that what, I mean, is that a majority view
or is that unique or where do other States come out on that,
on that question, if you know?
-: I'm afraid I don't know off the top of my head.
So Vasquez is holding that duress is
unavailable as an affirmative defense to murder is,
the rationale is that people who know
that they can claim duress would be
more likely to follow a gang order
to kill instead of resisting
if they know that they have to face
the consequences of their act.
And this rationale simply doesn't apply to a child
with such a limited ability to understand the situation,
to resist the pressures imposed,
and to understand the consequences of his actions.
It's unlikely that this child would even be able
to comprehend the legal defense of duress,
much less make a reason decision
whether to yield to adult gang members on this basis.
-: You want us to make a subjective inquiry on that issue
as opposed to just having a blanket rule for all juveniles?
-: That's correct.
That's correct.
And I also would ask this court to change that rule,
or at the very least to give Raymond relief
under section 33 E.
And that is something that Vasquez explicitly holds open.
It was that this is something that can be addressed in 33 E.
-: The government of course agrees with you with respect
to the Miller factors for parole eligibility
for 15 years, correct.
-: Yes.
And while acknowledging that the Commonwealth has done
that we would submit that that does not go far enough.
-: Unless anyone has further questions
about the grand jury and Walczak,
I'd like to turn to the constitutionality
of chapter 119 section 74.
Raymond like every other 14 to 18 year old charged
with murder in the Commonwealth was automatically excluded
from the protections of the juvenile court
and tried as an adult.
Superior court jurisdiction is automatic.
There is no longer any transfer hearing.
There's no opportunity for remand
or any judicial consideration of individual characteristics
or the circumstances of the offense.
All discretion vests in the prosecutor.
Each child charged with murder is tried identically
to each adult charged with murder in the Commonwealth.
And of course, each child convicted
of murder receives a life sentence.
Massachusetts is an outlier.
There are only seven other States that have
mandatory transfer of children
out of the judicial system coupled
with mandatory life sentence.
There is a majority of States
that have discretionary transfer
for children who are charged with murder.
And this provides individual consideration
of youth on the front-end of the judicial process.
There's also a majority of States
that have discretionary sentencing providing
individualized consideration of youth
on the backend of the judicial process.
And some States have discretion on both ends.
Very few States have neither,
that's the category that Massachusetts falls into.
We are one of only eight States with a statutory scheme
that's mandatory and automatic,
both in adult trial and in life sentence.
And this contravenes a general legislative trend
away from treating children as adults.
And I would certainly recommend to the court
the Amicus briefs that were submitted
that provide detail as to that trend.
Walczak explained that the differences
between how a juvenile is treated in juvenile court
versus superior court are considerable.
There is an underlying policy mandate.
The juvenile justice system is
primarily rehabilitative, cognizant of the inherent
differences between juvenile and adult offenders,
and geared toward the correction and redemption
to society of delinquent children.
Juvenile court judges
and probation officers receive training
suited to their protective role.
They're knowledgeable about juvenile development.
They have experience dealing with children.
And children adjudicated in juvenile court,
they receive the benefit of statutory interpretation
that favors these policies... -: Thank you,
but what would meet in your view constitutional criteria
under eighth amendment article 26?
Would it be the old transfer hearing
or it would be something less than that?
-: Yes, the transfer hearing system that was
in place from 1975 to 1996 contained
enough individualized consideration of youth
that it would satisfy Miller.
Obviously it would take the legislature to revive that,
right now we only have transfer hearings
in the very limited circumstances where a juvenile is
only apprehended after age 19.
But this system that was then in place was
somewhat prescient in satisfying Miller's concerns.
Fully discretionary sentencing which obviously is a question
that this court has reserved several times,
Brown, Okoro, Lugo, Wart,
I know this court has been reserving that.
Without conceding that that would make trying
a juvenile as an adult constitutional,
I would say that that would remove
the major problem with our current scheme.
-: And the discretion to impose different lengths
of parole eligibility is not far enough in your view?
-: It's not.
And just, before addressing parole
further I also just want to complete my answer
as what would happen if we were
to get rid of section 74 right now,
which the mandatory exclusion from juvenile court is
that children accused of murder would be treated
like other youthful offenders,
and that the youthful offender scheme
other than its exclusion of children charged with murder,
also would satisfy Miller.
That there is sufficient discretion
and consideration of youthful characteristics
in the disposition of those cases.
Juvenile judges in youthful offender cases can provide
a range of dispositions ranging from DYS custody
until age 21 to a full adult sentence
or a combination of DYS custody age to age 21
and then a suspended adult sentence,
which I would submit would likely be an attractive option
in a case of a juvenile charged with murder.
And I also want to point out that, that option
of providing DYS custody to age 21 would have made
a tremendous difference to this particular client.
He was in DYS detention for the years
between his arrest and his trial.
And this was the environment where he made
a remarkable progress.
Developmentally, academically.
He had counselors, he had one-on-one tutoring.
His capacity for rehabilitation
and growth were being met in that environment.
That is not available to juveniles
who are charged with murder
and are removed from the juvenile system.
To say a little bit more about remedy,
if this court strikes down section 74,
some of the other statutes that prescribe sentences
for those convicted of juvenile murder would
not be applicable.
And I would want to point the court to chapter 119, 72 B
and 265, section two B.
Both of those statutes use the language,
"if a person is found guilty of murder in the first degree
"or any person who is found guilty of murder."
Those statutes could stay in place
because if a child is adjudicated as a youthful offender,
they're not found guilty.
They're not convicted
rather they are adjudicated a youthful offender.
So this court would not need to entirely lay waste
to the existing statutory structure.
All it would need to do would be to strike down section 74,
the legislature could act to reinstate the transfer hearings
or cases could simply proceed like other children charged
with felonies under the youthful offender scheme.
I see that I don't have much more time.
I would like to address another important issue
here which is the constitutionality of a life sentence
in light of intellectual disability.
Raymond's automatic sentence
of life was unconstitutionally disproportionate
because he was both a child and intellectually disabled.
And these two groups each have diminished culpability based
on their impulsivity, their poor self-control,
and illogical reasoning.
And they also share vulnerability
to outside pressures and criminal environments.
And this makes the most severe punishments excessive.
His intellectual disability and his youth provided
distinct and cumulative basis
for an individualized sentence.
And this double burden wasn't just theoretical.
There was evidence at the trial,
Dr. Aru testified that he had much less capacity
to understand the consequences of his of his actions
than the average 15 year old,
both due to his intellectual disability
and to his trauma history.
And the Commonwealth concedes that this sentence was
indeed disproportionate in light of his disability.
And while this concession is welcome,
15 years is still disproportionately long.
And the availability of parole doesn't render
this life sentence constitutional
because children are entitled to a meaningful opportunity
to obtain release based on demonstrated maturity
and rehabilitation.
And the qualities that entitle Raymond
to judicial consideration of his specific traits
also constrain his chances of release on parole.
The Supreme court and Atkins noted
that the intellectually disabled are
typically poor witnesses.
They have difficulty assisting their counsel.
Their demeanor can create an unwarranted impression
of lack of remorse.
And even the Commonwealth here has acknowledged
that parole for this particular individual
might be a very very difficult challenge.
And the Commonwealth expressed hope
that opportunity will be available to him.
The hope is appreciated, but of course it does
not bind the department of correction or the parole board.
So Raymond here is seeking
individualized discretionary sentencing.
A child with the cognitive function
of a ten-year-old was sentenced
to the most severe punishment any juvenile
in Massachusetts can receive.
And his disability didn't shorten the sentence
and it wasn't even considered.
And this violates the principle of proportionality.
In addition...
-: Oh, wait, we're past time,
(chuckles) so... -: Oh, good.
Yes we are.
-: If it's in your briefs, we've got it.
And I thank you.
-: Thank you very much.
-: Attorney Campbell.
-: Thank you.
Good morning and may it please the court,
Callin Campbell on behalf of the Commonwealth.
I'd like to acknowledge Jennifer Hickman
who is the trial prosecutor in this case
as well as the victim's family
who are all watching via the live stream.
We ask you today to affirm the defendant's
first degree murder conviction
for the execution of Nicholas Martinez.
This is a case in which the defendant has
never contested his role in the crime.
He was part of a group who tracked and hunted the victim.
And the defendant was the person
who admitted that he shot the victim.
At trial and here on appeal,
he solely contest his culpability in a variety of ways.
But based on the evidence that was presented at trial
there is no basis to reduce the verdict in this case.
I'd like to start with a question
that justice Gaziano asked as to duress.
Specifically the question was,
how do other States follow duress as a defense to murder?
If you look at the Vasquez case
it has a long history and explain sort of jurisdictionally
where States fall on this.
But specifically it says it's not a defense at common law
in any state and every State but one has held
that duress is not a defense to murder.
The Commonwealth suggests
that this court should uphold Vasquez and not revisit it.
I also would point the court though to reasons
in the evidence why a duress defense was
not appropriate in this instance.
It's really not supported by the defendant's actions.
While true that in an interview he told the police
that he shot the victim because of influence
from two older gang members and to get out of the gang,
once he did complete the shooting
he did not take any actions that would suggest
that he was trying to distance
himself from the Mission Hill gang.
Quite to the contrary,
evidence was presented at trial
specifically from Norma Hollenback
who was a DYS caseworker that worked
with him as well as Dr. Aru
who was the defense expert in this case,
that the defendant, even while in DYS custody removed
from these gang influences,
continued to show allegiance to the Mission Hill gang.
That continued through the pendency
of his both DYS custody and custody in adult prison
awaiting his trial and statements that he also made
to the Commonwealth expert, Dr. Martin Kelly.
So ignoring that this is not a recognized defense
either in the Commonwealth or 49 of the 50 States,
the evidence itself doesn't support
that this defense be given as a jury instruction.
Turning to the first claim my sister spoke
about the Walczak claim,
I disagree with her recitation as to retroactivity
in what the Brown case holds.
And I would tell the court that the best description
and analysis of this is at 645,
I'm sorry, I said Brown, but I meant the Martin case.
It's at page 645 specifically.
And at page 645, this court held
that because Brown didn't establish
a new federal constitutional right
nor a new rule of criminal procedure,
Griffith and other federal retroactivity cases
were inapplicable to the analysis of the court.
I would say that the same rationale
and reasoning applies here,
that Walczak was explicitly prospective only.
And that the analysis that my sister says Martin supports
simply is born out by reading the analysis of it.
-: Was Walczak constitutionally based?
Was it a due process, right?
Or what was the based?
I know that's a difficult question
because there's so many Walczaks but,
-: Yeah.
And listening to my sister's argument I did pull
up Walczak and I was reading through it trying
to figure out the answer to that question.
And I guess I would go back to the Martin case.
So Martin talks about Brown,
which changed the liability under felony murder,
which is common... -: Yeah, I'm over that.
-: Yeah, (chuckles) no, I know.
I would say that where this is talking about presentation
and the culpability and degree of murder to a grand jury
that it would fall into the same category of cases.
That's the best answer I can give you because in reading it,
it was hard for me to figure
out the answer to that question,
but I think Martin supports
that it isn't necessarily a new constitutional law,
it just has to do with sort of culpability of murder
and in this case the indictment that is returned.
Moving to the statutory argument raised by my sister,
it is our contention that this court not strike
down general law chapter 119 section 74.
The statute simply confers jurisdiction
over a certain class of defendants.
The eighth amendment and article 26
specifically speak to the punishment that's imposed
and not statutory jurisdiction.
So I'd say that this case law cited by my sister is
simply enough applicable to the question
that needs to be asked by this court.
As recognized by this court,
where age is the classification
that is really an issue here,
all that needs to be upheld for the statute
to be constitutional is a rational basis
for the jurisdiction in this case.
And I'd suggest that the rational basis
here is that murder is the most serious offense
that can be committed in the Commonwealth,
and conferring jurisdiction upon the superior court
who routinely hears such cases is
certainly rational given that.
Also where murder is the most culpable
and serious offense conferring again, adult jurisdiction
to deal with this type of serious offense is rational
under any circumstance. -: But it also,
it also greatly influences
or correlates to punishment though, right?
Because once they come under the statute
in a convicted of first degree as you know,
and what your office has done as far as parole,
it cabins punishment.
So it's not just jurisdictional, it's also a punishment.
-: It's not jurisdictional
but I think that there is where it's important to see
what the case law holds
in regards to the eighth amendment and article 26.
And as it relates in cases like Miller and Diatchenko,
which is that in crafting an inappropriate sentence
the individual characteristics
of the defendant's age have to be,
there has to be an opportunity
and they need to be considered.
Here based on the statutory scheme,
that is based on the parole eligibility date.
And I would say that based on the laws that currently exist,
that, that satisfies it.
-: I guess that is the issue though, right?
Is whether or not that statutory scheme that allows
for a judge to set parole eligibility between 15
and 20 years is sufficient to fully vest the defendant
with their eighth amendment article 26 rights
under Diatchenko and Miller, correct?
-: Yes.
And I believe if you read the specific language
of both Miller and Diatchenko,
is just the meaningful opportunity of parole
that needs to be considered.
And certainly that is considered under the statutory scheme.
So, really what violates the eighth amendment
and article 26 when you read those cases is
the lack of any sort of parole eligibility date, right?
And so when you read what those cases stand for,
certainly I don't think that it suggests
that the statutory scheme as it exists violates
either the eighth amendment or article 26.
-: Yes, and this might not be particularly raised
in this case irrelevant, but as of thinking
about some arguments that attorney Billowitz made,
she points out that the defendant was,
when he was in DYS custody was doing
very well in terms of services that he was receiving.
What kind of services are available if you know
in the department of corrections for younger defendants
so that they can build toward the chance
of getting out in 15 years?
-: I don't wanna speak without fully knowing
every single service that is provided
to younger defendants.
I don't have the answers
to that question... -: Oh, that's okay.
That's fine.
-: But certainly when looking at,
again, I would point the court towards Miller and Diatchenko
and looking at what they specifically hold
with particularity to the eighth amendment and article 26
and say that this statute does not offend that.
And it's really a statutory question.
What this is, it is an attack
again on the constitutionality of a sentence with life
with the possibility of parole.
And this court as recently as June of this year
in Ward upheld to that that was a constitutional sentence.
You know, it is true that the question is left open.
I don't think that this is the case to answer that question.
And the reason why I don't think
that this is a case to answer that question is
because if you look at the record in this case
the defendant's own expert testified
that she didn't base her opinion
on the characteristics of an adolescent brain.
She really based her opinion on this specific defendant,
his individual characteristics
and his history of what he had went through.
-: Can I ask you about 33 E review in your in your office
as concession that it should be
a 15 year parole eligibility?
Why wouldn't those same considerations
that your office has gone through compel us to exercise
our 33 E authority and reduce
the conviction to a second degree?
-: Sure. -: Are they
the same considerations?
-: I don't believe they were the same considerations
because in 33 E,
one of the tasks that the court is asked
to do is to look at this defendant and the crime
that he engaged in and compare it to similar defendants
who committed similar crimes and ask whether that falls
within the range
of sort of what is... -: Well, we've also looked
at individual characteristics of defendants as well.
A case out of the North shore comes to mind.
I forget the name of the case that I wrote
but we did that when reducing a sentence, so.
I guess if your office can do
it why can't this court do it (chuckles), is the question.
-: Yeah.
And it's a good question.
It's a really good question because (laughs) yeah,
the Commonwealth that the position that it took is
not typically what the Commonwealth advocates
in a first degree murder case, we fully recognize that.
But I think that if you look at the evidence in this case,
why we didn't suggest that to the court I guess,
is the way that I'll frame this is that it fully supports
a verdict of first degree murder
with extreme atrocity and cruelty.
I disagree with my sister that the only factor
that we could point to was the degree
of the victim suffering,
which certainly existed in this case based on the evidence
that he was gurgling that he was awake for a period of time,
that his girlfriend yelled at him to "go, go,"
and he was able to actually step on the gas pedal
and his car crashed into a car near him before coming
to rest on a median.
But there are other factors at play
here too which I think are important,
specifically the manner degree and severity of force used,
the nature of the weapon and the method used,
and the disproportion between the means used
to cause death and those employed.
And I think... -: Miss Campbell,
can I ask you,
I understand how you get on we reduced the verdict
under justice Gaziano's approach.
But when I read yours,
it was very interesting 'cause you're
basically saying they got no basis.
They got no basis.
They got no basis, but guess what?
We're gonna lower it based on proportionality.
But you didn't find a cruel
or unusual punishment proportionality.
What do we cite if we lower this?
What is the legal basis for us reducing
this besides prosecutorial compassion?
-: Yeah, we'd have to say that the sentencing judge
who heard all the evidence got it wrong.
-: Yes, yes.
You would.
-: And on what basis?
I'm just trying to understand the legal basis he was wrong.
-: Absolutely.
So in this instance, anytime you're looking
at a sentence under the eighth amendment or article 26
what you're tasked with asking is whether it's proportional.
And not only is it proportional,
but you have to look at the specific offender
and the specific offense.
And it is district attorney Rollin's contention
that based on this specific offender
and the facts of this specific offense
the sentence that was imposed is disproportionate
under the law.
So I...
-: Are you saying that it's a cruel or unusual punishment
under the law, cruel and unusual?
You kind of, I'm reading along and I thought
you didn't find it cruel or unusual.
It wasn't, but then we get to your compassionate solution
which I understand and I'm not disagreeing with,
I'm just trying to understand,
are you saying that the judge violated?
That that's a cruel unusual punishment
or just that you'd like him to redo it?
-: In this particular instance, yes.
The Commonwealth recognizes that, in its brief it does.
I guess I want to be clear that the position
that the Commonwealth is taking is
that it is not that a sentence of life with the possibility
of parole upwards to 25 years for juveniles
per se is unconstitutional.
We believe that under the current law
that that is a legal sentence in which a judge could impose.
The Commonwealth contention is that in this specific case
with this specific offender based on this specific offense,
that it is a disproportionate sentence.
-: But it has to be based
upon his personal characteristics, correct?
'Cause we have a juvenile, we have an execution.
So those are, you know,
those are 25 year, 20 year, in that case
the judge got it right.
But is it because of his mental deficiencies
or they have been pointed out?
-: Sure.
I think it's, Oh, sorry.
I'm sorry.
-: No, I'm just thinking out loud.
I'm just trying to,
'cause I think what Justice Kafker is getting
at is we're tasked with righting
this and having a rule that applies
not just to this defendant but to all the next case
and the next case after that.
And we can't just, we need some basis to do that,
that is repeatable.
So,
Campbell: Yes.
-: Well, how would you write that rule?
(laughs)
-: How I would write the rule is I would cite
to the eighth amendment and article 26 standard.
I would say that any proportional sentence has
to look at the specific characteristics
of the defendant and the offense.
And then I would say looking at this specific defendant
in his characteristics,
while they do include the factors
that your honor just mentioned,
they also involve other factors.
The first primarily is that he was 15 years old.
And while that doesn't negate the ability
of an individual to have the intent,
the specific intent to commit murder,
it definitely is a factor that should play
into a consideration of a proportional sentence.
The second is this defendant's particular history.
Now with the IQ, I wanna be
careful as to what the Commonwealth, you know,
it was thrown around that we conceded a lot about the IQ,
but it's that we recognize that he presented evidence
that his IQ was in the, his expert testified
in the 66 to 71 range,
that didn't preclude him from having
the specific intent to commit this murder.
But it does play into his individual characteristics.
That should be... -: But you argued
otherwise at trial and had an expert that said otherwise.
-: We had an expert that said he called
into question the IQ numbers.
He didn't offer a contrary IQ numbers.
He called into question.
I don't think it's a contrary position
because I think the Commonwealth is
still saying here and did at trial
that the level of disability
that this defense expert testified to,
we contested that level of disability.
And it certainly was for the jury to draw
a conclusion as to that level of disability.
-: Right.
Which leads me to my initial premise
when you write this and you say, 'cause you're basically,
we're not gonna look at it in a light
most favorable to the defendant
when you argued -: Correct.
-: Otherwise at trial.
But the age is undisputable, he was 15.
Campbell: Correct.
-: I think, is it also not in dispute
that he had intellectual disabilities?
-: It is not in dispute.
It's also not in dispute that he had past trauma,
which could come into play
as to sort of the actions that he undertook.
But I also think another factor
that the sentencing judge could consider
and certainly this court can consider is
the sentences of his co-defendants.
And I would point to the Tejada case
which is 481 mass 794.
Although that's in a different context,
I'm using it by analogy.
It's in a rule 29 context,
but it explains in a joint venture context
a sentencing judge can consider the sentences received
by other co-venturers who may have had more capability
but received a lesser sentence.
And I'd say here where the older members of the gang
who were the driver in the front seat passenger
who there's evidence to suggest did assert
some sort of pressure on this defendant,
that the fact that although they did plead guilty
and in pleading guilty avoided trial,
that they received a 12 to 14 year sentence is
a factor too that can be considered.
-: 'Cause you recognize that if we do this,
and I'm not saying we won't,
but if we do this this is gonna set the standard
for judges to look at going forward when they're trying
to assess parole eligibility in these cases.
-: Absolutely.
And, you know, I think that all of these factors are things
that should be considered by judges, you know,
due to the way that the statutes have been amended
and changed.
I don't think there is much guidance
as to specifically how a judge is supposed
to consider in this specific context with juveniles
a parole eligibility range.
So yes, I would welcome sort of discussing these factors
and how they should be addressed by a judge
in crafting an appropriate proportional sentence.
-: Great.
Justice Gaziano does that satisfy you?
Gaziano: Yeah.
-: My question then is how would this proposed language
which we've made you say,
how would that apply to other cases
that are in the same position as this defendant
or were at the time maybe going
back many, many, many many years, wouldn't they apply also?
-: As to your retroactivity analysis
it's individual, you know, -: Yeah.
-: That is a good question.
I think it wouldn't be creating, you know,
it certainly would be something that a defendant could raise
always and has always been able to raise
under a rule 38 motion to say
my sentence is unconstitutional.
And I think a juvenile defendant could raise
that even now based on the development
of both law and science as to the adolescent brain.
So I don't think it's sort of creating
or opening the flood gates in a way that isn't
already sort of available to any juvenile defendant
who is in custody.
Seeing I have zero time left (chuckles),
the Commonwealth asks that you do affirm
the degree of murder of of this brief
for the execution of Nicholas Martinez.
And we will rest on her brief
for the remainder of the arguments.
-: Thank you so much.
We'll take a five minute break
and then go back to the Colley's case.