-: SJC-12405.
Commonwealth versus Rashad A. Shepherd.
Okay, Attorney Bolgen.
-: Good morning, Your Honor.
May it please the court.
My name is Claudia Bolgen.
I represent Mr. Shepherd.
This case presents new
and uncontested data proving that 82%
of the people currently serving pre-Brown felony murder,
life without parole, are Black or Brown.
Only 18% of those 108 persons are white,
and 60% of them are Black.
-: Can I focus on the legal standard?
Because the stats you put together are troubling
and impressive, and we need to know this information,
but I wanna focus on the Equal Protection legal standard
for a moment,
as applied to those troubling statistics, okay?
-: So the problem with Equal Protection is that-
-: Well, that's your claim.
-: I have, actually,
a fairness claim that's bigger
than Equal Protection. -: Oh, you have a 33E claim,
but you have an Equal Protection claim?
-: Indeed, but the Equal Protection claim is subsumed
into a fairness claim.
-: Wait a second.
There's an Equal Protection Standard, right?
Claudia: Yes, the Equal Protection Standard looks-
-: Did you apply the Equal Protection Standard?
-: Certainly, Your Honor.
The Equal Protection Standard looks
for intentional discrimination.
Disparate impact is not recognized.
And I think,
I'm asking this court
to consider recognizing disparate impact
in the Equal Protection context.
-: Okay, so you want us
to change our Equal Protection jurisprudence?
-: Yes. -: Okay.
Because the regular Equal Protection, as you well know,
is a tripartite...
'Cause there's none of that in your brief.
It's Bernardo B., it's Van Rader, which recently...
Claudia: Exactly.
-: So, you basically...
That's why you didn't go into Bernard B.
or do the tripartite analysis?
Claudia: Correct.
-: You want us to change our Equal Protection jurisprudence?
-: I do, under state constitutional law.
Justice Gaziano: Okay.
-: Which is, of course, within your discretion.
Justice Gaziano: Right.
Okay, so the stated purpose in Brown,
for prospective application was the fairness
of the government in those charging decisions,
as then Chief Justice Gants wrote, correct?
-: That's correct.
-: And your argument is it's had a disparate impact
as neutral, and as well intended perhaps,
as that statement was?
-: Absolutely right, Your Honor.
I'm arguing that here, in 2023...
In 2017, with the information
that this court had at the time,
the fairness balance went to the Commonwealth
on the retroactivity question.
But here we are in 2023,
after the June of 2020 letter,
where this court committed to combating systemic racism,
to combating rooting out conscious and unconscious bias
in our courtrooms.
Here we are with this data...
-: But can you tell me...
All right, we do away with tripartite Equal Protection,
because the government decision-making in this case,
ironically, is our decision, right?
Claudia: Ironically.
Justice Gaziano: Right. -: Here, but-
-: Right, but no, that's true, correct?
We're analyzing the decisions we've made not
to be retroactive.
-: Indeed, and that's a little uncomfortable.
Justice Gaziano: Sure. Claudia: Sure.
-: Which we shouldn't shy away from it.
I appreciate that.
Claudia: Indeed, and I appreciate you saying that.
-: Just let me ask a question.
So given all those,
and we have governmental decision-making,
and it's an Equal Protection argument,
your request is that this court not apply
it's Equal Protection jurisprudence,
but it change the jurisprudence to what?
-: I suggest, in answer to the Commonwealth's argument,
that any change
to the state constitutional law Equal Protection Standard
would open the floodgates, would make every new rule-
-: Well, we've changed Equal Protection before.
We did it in the stop-and-frisk cases.
That's not the issue.
I just wanna know, rather than the floodgate argument,
I wanna know what our legal standard is,
or what you propose our legal standard should be.
-: I propose a horrific disparate impact standard,
because equal-
-: [Justice Wendlandt] Horrific?
-: Equal protection is a bad fit.
-: [Justice Wendlandt] I just...
You said horrific?
-: Yeah, I said horrific.
-: [Justice Wendlandt] Okay.
-: Because that's what we're showing here.
Justice Kafker: Does any state have a model?
'Cause I understand we can change,
provide greater protection under the state constitution,
but does any state, has adopted something similar
to what you're proposing,
horrific disparate impact standard?
-: I don't think so, Your Honor.
But again, whether-
-: Has any state done a disparate impact analysis?
-: In terms of Equal Protection, no.
Justice Kafker: Okay, so we would,
-: Because cause Equal Protection is not the best fit
for combating systemic racism
as Justice Budd defined it in Long,
which is a system
that produces racially disparate outcomes independent
of the intentions of the people who work within it.
So, my Equal Protection argument is a subset
of my fairness argument.
Because if this court wants
to address the systemic racism shown by the statistics,
there's a number of different ways this court can do that.
If there are problems-
-: About the horrific disparate impact standard
that you're proposing, what's the control group;
that is, you're saying the decision of this court
to not apply Brown retroactively has resulted
in a disparate impact as opposed to what,
the decision to apply it retroactively?
'Cause it seems to me,
or the decision that was made to apply it prospectively.
Because if there is,
and let's just assume for purposes of conversation
that there is systematic racism,
then the people who benefited
from the prospective Brown rule were disproportionately,
as you call them, Black and Brown.
So, they benefited disproportionately, and then...
I don't understand what the control group is.
-: Let me address the control group.
There is a baseline, and I hate to use the word baseline,
but there's a baseline disparity
in the DOC prisoner population
that is mirrored almost exactly
in the malice murder defendant population,
which is approximately 60/40,
40% white, 60% non-white, Black, Hispanic, Asian, other.
And, you know, pejoratively, I don't mean to say baseline,
like that's acceptable.
It's not acceptable, but that's the baseline,
Your Honor. -: Can I ask
to follow up on that?
If you remove the...
'Cause one of the briefs, the BU brief,
I believe, Amicus brief,
talks about the number of people in the 18 to 20 category.
So if you remove the 18 to 20 disparate, which is 84%,
or something like that.
Claudia: 88, your honor. -: 88.
Do you get to the normal prison population
if you removed the 18 to 20-year-olds?
-: No, there's no way.
There's no way.
The horrific racial disparity of 40-
-: What does it lower it to?
I'm just curious.
-: I'm sorry, Your Honor. -: What does it lower it to?
Do you know the percentage it comes back
to when you do that?
-: Well, I'm not sure-
-: It's just, the numbers were staggering
in the 18 to 20 category. Claudia: Aren't they?
They are.
-: But that issue is also before us in another case.
So I'm just wondering,
if you remove that category of people, what the effect is.
-: I don't think it would have an effect, Your Honor,
because 30%. -: What's the number on that?
-: I, actually, out of all the numbers that I have,
removing the Mattis-Robinson cohort was not one of them.
Justice Gaziano: We can do that math.
You don't have to do it.
-: Thank you.
I appreciate that.
Math, is maybe, perhaps...
-: We'll do that in our leisure, yeah.
-: But with regard to that, Your Honor,
obviously, no one knows what those cases are going to hold,
but that's 32 less people.
-: I'm just trying to understand the practical effect
of what you're doing based on...
Again, I wasn't here the first time,
but the Gants decision talks about the problem
of going backwards.
The Commonwealth couldn't have produced,
didn't know it had to use malice, prove malice.
So what happens if you get what you want?
We adopt this new constitutional standard,
then what goes on in these 108 cases?
Retry everybody?
I'm just trying
Claudia: No. -: To understand what to do.
-: No, the BU brief does a good job of positing out
to the practical implications
of either a constitutional change
or simply a common law change.
But what happens to those 108 cases?
-: I would advocate for blanket parole eligibility.
And if that was not acceptable in this court's discretion,
this court has full discretion in any way
to deal with this issue.
Individualized re-sentencing
-: They'd get blanket parole eligibility,
meaning that everyone's immediately eligible for parole?
-: With regard to what, perhaps,
a second-degree murder, 15-year sentence would be, yes,
parole eligibility, Your Honor.
And then, the fairness of the Commonwealth,
because that is a concern,
comes back in at each individual parole hearing
or each individual re-sentencing hearing,
that if the Commonwealth had strong evidence of malice,
that it didn't produce a trial in reliance on pre-Brown law,
they could produce it at that time
to keep each individual person accountable
for their actions, and it's 108 people.
This court has done many things recently
that were affecting many more defendants.
So a floodgates argument doesn't really wash
when there's 108 people.
-: Yes, on the floodgate issue,
does a horrific disparity Equal Protection test apply
to facially neutral drug laws?
-: That would be in this court's discretion.
Because again,
Equal Protection is not a perfect fit
for combating systemic racism in all its forms.
That's a big question, Your Honor.
-: That's what Equal Protection-
If anything is designed to deal with systematic racism,
it's the Equal Protection Clause, isn't it?
That's the go-to constitutional provision
to deal with Equal Protection violations.
-: Your Honor, if that's true,
then it's done a pretty poor job,
and that's what I'm coming back to you here today.
-: But doesn't that raise what they're gonna argue,
that it's a global...
I mean, we're talking about re-analyzing all different types
of cases, not just these, right?
-: In your discretion,
you could make a constitutional new rule
that would have those problems, or in a common law manner,
as Brown has been applied from 2017 to now,
this court has complete discretion, non-constitutionally,
to implement fairness here
and leave the rest for another day.
Justice Gaziano: Under 33E?
-: Yes, fairness and justice is my argument.
If that means Equal Protection, I'm happy to discuss that.
-: And in Brown, and actually even in my decision,
we applied 33E to Mr. Brown's case.
-: Yes, and I'm asking for the same here.
-: And the reason we did that was based on the facts
of the, you know, the person on the outer limits
of the joint venture, correct?
-: Yes, absolutely.
And that is my second argument.
Justice Gaziano: Right, you're arguing that too.
-: So my second argument-
-: That argument that your client should receive
on the facts?
-: Certainly, so completely separate
from the retroactivity argument is the 33 argument,
and the racial disparity data is pulled back into that.
So that's where it comes into play
with my client's particular case.
But I'm arguing for Mr. Shepherd-
-: The fact that he's BLack,
is that the fact that we're...
-: No. -: Okay.
-: That's the 33 argument though.
-: That's the predicate.
This case would have been-
-: Can we get the answer to that...
Please, just give us your 33 argument on the facts.
-: So the deficits in the Commonwealth's case
on culpability, there's 10 main deficits.
And so, with those deficits in place,
putting the racial disparity back into it leads
to the conclusion that, were Mr. Shepherd white,
this case would have been prosecuted differently.
So there's 10 main problems with the Commonwealth's case
as to Mr. Shepherd's culpability.
First of all, Jones was a very unconvincing star witness.
The DA, in her closing argument, called her despicable.
The Commonwealth's brief also
acknowledges she was unconvincing and credulity straining.
So that's their star witness.
So that's the first problem.
The second problem was there was trial evidence
that this lady was actually the shooter.
The third problem is that there was information
about the star witness that was not brought out at trial
but was brought out in the motions for new trial,
which is a month before this.
She had a gun in her apartment.
And then, I'm not suggesting this
would've been trial evidence,
but after she got her 527,
she got out and was promptly arrested for possession
of a high-capacity firearm with 13 hollow-point bullets
in the suppressor barrel.
So, that's the credibility argument of their star witness.
But even that aside,
this unconvincing star witness didn't actually testify
to what Mr. Shepherd's role, if any,
was in this struggle in the apartment.
And in fact, the first-
-: Nobody saw what happened.
There was just a gunshot, correct?
-: Correct.
And the first motion for new trial made a finding,
no testimony described his involvement in the struggle.
So, she testified she never saw my client with a weapon.
So this is, you know, going back.
Okay, let's look at her testimony,
if that's their star witness.
Never saw him with a weapon.
Didn't see when he left the apartment,
whether it was before or after the shooting.
So that's another difficulty in the case.
She testified to his presence earlier in the evening
at the planning,
but she never testified to one word
that my client said, evidencing agreement.
Testimony was to presence at the planning
and the Commonwealth points-
-: They're all jury questions.
I mean, the cross-examination of Jones is vigorous
and portrays her
in all the negative lights you're talking about.
There's all kinds of evidence that the other two are
in the place, right?
Claudia: Right, absolutely.
-: And the angle of the shooting comes...
The best thing you've got is that he's a,
the felony that he's found is unarmed robbery, right?
Claudia: Right, there's no-
-: And that's the best you've got.
The other stuff are all jury questions, right?
How old is he?
I can't remember.
-: He was 25 at the time, Your Honor.
So, respectfully, I disagree.
-: And he had a gun too, right?
There's evidence about him having guns as well,
or am I mixing the two cases we're hearing today?
-: There's no evidence of him having a gun.
So respectfully, Your Honor,
I'm not making a sufficiency argument.
What I'm doing is I'm showing all the problems
with the Commonwealth's case.
And then, my next argument is that,
given the problems with the Commonwealth's case
on culpability,
the data tends to show that if Mr. Shepherd had been white-
-: Oh, let me ask you about that assertion.
That smacks of Equal Protection.
I know there's cross-pollenization with your argument.
But that if he was white, he'd be prosecuted differently,
that requires proof
or evidence of similarly situated persons not being charged,
white people not being charged with felony murder, correct?
-: That data is largely unavailable.
And trust me, I looked for it.
Justice Gaziano: How is it unavailable?
-: Because prosecutors charging practices
are not data-driven.
Were we to have those sorts of data,
then I could come here with that and data-
-: Could have plugged that into the tripartite analysis
if you had that data.
-: Indeed, but the difficulty in obtaining data, Your Honor,
I cannot overstate how difficult that is.
At the moment, this is...
-: In Bernardo B,
we said it was actually easier, and in Van Rader,
we said it was actually easier with prosecution's decisions.
That's why we eliminated that
for police-officer-on-the-spot investigations, right?
So we had said that, in Bernardo B., of course,
they had prosecuted all the males
in consensual sex, statutory rape cases,
and we could look at that.
And here, you can't say
that these people were charged with murder.
There was a robbery in a gas station,
and they weren't charged with felony murder, the white guy?
-: So I will respond to that by saying we are dealing
with unconscious bias here.
The data shows that almost no white people are convicted
of felony murder.
-: That's a different issue.
The issue is whether not they're similarly situated,
not charged.
-: And that is data that I don't have,
because it's not available, at least in this Commonwealth.
And I've looked across the country as well,
anticipating that this would be an issue.
-: Who did the data?
I haven't read the whole record here.
Is there a statistical expert brought in
to do the type of comparisons you're talking about,
or are you just taking these numbers yourself and running?
Do we have experts here doing this analysis,
doing what is the pool we should look at,
which murders should be excluded from this,
which ones are relevant?
Or, is this all done by lawyers?
-: This was done, essentially, by me, Your Honor.
-: So we don't have a statistician of any kind, saying...
Again, I didn't go to MIT, like one of my colleagues,
and take statistics,
but we normally have experts
who do standard deviation analysis,
making sure we're comparing apples to apples,
not apples to oranges.
We don't have any of that here?
-: This is relatively straightforward.
-: Well, there's nothing straightforward
about statistics when we're dealing
with the entire criminal justice system
and felony murder, right?
-: Which is one of the reasons I was asking you
about the comparator data.
Like, what do we compare...
What's the control group?
The control group here was malice murder, Your Honor.
-: But why is that the appropriate control group?
-: Because proof of malice is the difference
between pre-Brown historical felony murder
and first-degree murder. -: That I understand.
But mathematically, that doesn't compute.
-: With regard- -: That would be your baseline,
that that would be your control group.
The control group, I would submit,
is correctly malice murder, Your Honor.
Because what we're looking at here is a pool of folks
that are doing life without parole
for one type of murder that doesn't have malice
as a component and a pool of folks doing life without parole
for malice murder.
So the difference- -: But that's psychology.
Why is that the right control group?
I mean, that's the control group that you compared it to,
but I don't understand why that would be it?
-: Isn't Justice Gaziano's suggestion
the actual control group.
I mean, it's the Bernardo B. thing.
And why wouldn't you be able to find information data
about white people who are in the same type of situation
but don't get charged with felony murder?
It seems like that would be the way to prove this.
-: The only study I was able to find was in Minnesota.
It's cited in the BU Amicus brief,
where in that state, due to the data laws,
they were able to try to figure out what this upcharging
and overcharging situation was with regard to that state.
The Harvard study in this state-
-: What was the control group in Minnesota?
-: I believe that they were just looking
at all of the murder prosecutions and attempting
to figure out why their...
Minnesota has the same disparity that we do.
They were trying to-
-: Is that article in the record?
-: In the BU brief, it cites to the Minnesota study,
I believe, on page 19.
-: [Justice Wendlandt] Okay, fine, thank you.
-: I mean, I looked through the BU brief.
You have, you know,
a bunch of studies that sort of suggest things,
but none of that evidence is presented here.
And do we even have to do this DA's office by DA's office?
I mean, is the relevant group
this district attorney's office,
or is it, I mean, how they do it?
I mean, is there unconscious...
I mean, are they really responsible
for what the other DA...
I don't have any sense that this has been done
in a statistically valid-
-: The odd part about it is that it's not the DA's decision
to challenge and it's our decision on retroactivity.
-: Yes, that's right.
-: You'd have to show
that we've made retroactivity decisions
in a disparate manner.
And if we were to apply the tripartite analysis,
which you will ask us not to, appropriately,
we'd have to look at similarly-situated people,
and that's why you don't want us to do that.
-: In this case,
the pool of folks
that are the most similarly situated
are the malice murder folks,
and I recognize your honor's difficulty with that.
Because that is, just objectively,
the difference between the two.
-: I'm confused by that, though.
Like, if there's a killing of someone with no underlying...
The killing is not...
There's no other felony.
Those groups are not relevant to this.
Are they included in your statistics?
-: They would be if they were convicted of malice murder,
would be in the malice murder statistics.
Because then...
-: But again, are we comparing apples to oranges?
-: To me, the comparator needs to be those who benefited
from the rule prospectively versus those who did not benefit
from the rule not being applied retroactively.
-: And Your Honor, it's probably not surprising to you
to know that I've been trying to find that data.
-: Well, if we assume, as I said,
systematic racism is still present after 2017,
and that felony murder disproportionately affected Black
and Brown people,
then the benefit
of the new rule disproportionately benefited Black
and Brown people.
Do you see what I'm saying? -: I do
That is, the people who benefited
from the rule were disproportionately Black and Brown
as well as the people who did not benefit from it.
So, if you compare those apples to apples,
there is actually no horrific disparate impact,
nor any disparate impact.
-: So, I have two responses to that, Your Honor.
First of all,
the data I was able to uncover
as to what has happened post Brown,
in terms of prosecuting felony murder, is that,
by and large, there is-
-: Can you prosecute felony murder after that?
Justice Gaziano: Yes.
-: It's a discretionary decision.
-: It's a truncated felony murder, but it's still there.
-: You can absolutely still prosecute felony murder.
There was a recent decision,
Commonwealth versus Darrell Fisher, exactly that.
So, Mr. Fisher is one of a handful,
perhaps five or six folks,
that have been convicted of felony murder only since 2017
that I've been able to find.
What I found, Your Honor, was a ton of manslaughter pleas.
So, it's very complicated.
What happens after Brown?
Would prosecutors decide, in a felony murder context,
where they have an unintended homicide, they have a felony-
-: 'Cause now, we're really dealing
with third-prong malice versus involuntary manslaughter?
-: Exactly.
So that leads to the second part of my answer
to Justice Wendtlandt's question, which is,
continuing to prosecute felony murder with a, shall we say,
expanded definition of third prong malice may result
in the same disparities.
-: What did you find with the five or so cases
as far as racial breakdowns?
-: Racial data is very hard to come by in this state.
-: You found five convictions, or so?
-: Yeah, I found five convictions,
at least two of them,
with regard to Mr. Fisher and his co-defendant,
were of Black people.
-: Right, but you're not suggesting
that's a sufficient pool to make any-
-: I am absolutely not.
But I did wanna recognize, Your Honor,
that this is, you know,
this is part and parcel of attempting
to get our arms around this systemic, racist problem.
-: Can I ask...
The BU brief talks about the Binder and Yankah study,
and there's a quote here.
"The strikingly disparate patterns of felony murder,
charging, and convictions suggest
that felony murder is a crime prosecutors
have seen little need to punish when committed by whites."
That suggests there's some...
By the way, are those statisticians or lawyers again?
And is there a statistical underway to this?
-: I don't believe-
-: If it is, it's not presented in this case, is it?
-: I don't believe that they are...
They're law professors, and perhaps...
I don't think they're statisticians, Your Honor.
What people have done,
in terms to get their arms around this situation,
is to go to the jurisdictions
and take a look what has happened with felony murder,
what is on the ground.
So we're coming here to show you what's happened
with felony murder is that, in all these states,
including Massachusetts-
-: But you just don't have an evidentiary record for this.
You're sort of, without any statistical expertise,
putting this together.
To make this kind of conclusion,
don't we need an ample evidentiary record to support this,
not your putting together these numbers by yourself?
-: Well, Your Honor, the third motion for new trial judge,
Judge McCarthy volunteered herself for remand.
So if, indeed, this court is interested in this issue,
but it just wants more data, wants statisticians,
remand it to Judge McCarthy, and we will provide that.
-: Can I ask you a question?
Does your 33E argument rely on this statistical data?
'Cause you started talking
about all the reasons why it's a fairness argument,
but then you also said
but you're rolling in the racial disparities into that.
Claudia: That's right.
-: Is that what we have to find
in order to provide relief under 33E?
-: No, the culpability versus sentence argument,
if this court has a problem with the pulling
in of that racial disparity data, then it stands alone.
Because the culpability-
-: You'd be in the same position as Mr. Brown.
-: I would be.
And Mr. Brown got 33E relief, and that is what I'm asking.
-: Right, that's what I meant.
-: Yeah, that's what I'm asking for.
I'm asking for 33 relief with the racial disparity data
and without it due to the fact
that the culpability versus the death
by incarceration sentence here is not fair.
-: Yeah, no, we understand the argument.
It just isn't clear to us,
I think, that you've got the data to support that.
There's numbers here,
but they're not put together in a way
that supports the argument.
That's all.
It's an interesting argument,
but we just don't have enough here to-
-: Then, Your Honor, I would ask for a remand.
I have a team of folks-
-: Yes, but before you do that,
can you go through a couple of your other legal issues?
'Cause you've got nine other legal issues
in this case.
And could you remind me, in Brown,
And again, I wasn't here,
and I just don't remember the facts of Brown,
was Brown one a getaway driver type of case,
or was Brown in the room, like-
Justice Gaziano: He supplied hoodies and guns.
Claudia: He supplied hoodies and guns.
-: Okay, all right.
So, any of your other legal issues you wanna pinpoint?
'Cause you've got nine of them,
but particularly the trial judges sort of overquestioning.
-: Yes, Your Honor, this was a very unusual trial.
When one reads the transcript,
the judge asked 149 questions of the witnesses.
The judge personalized the instructions on joint venture.
"My crazy, dumb brother-in-law.
I would want my wife to have posted bail."
There was an overarching unfairness here,
where the judge used this.
-: This is beyond folksy?
-: This is way beyond folksy.
This is aligning with the prosecution.
The worst thing that this trial judge did-
-: Was it clarification?
I read through a lot of his questions.
He does ask more questions than usual,
but he seems to be just trying
to clarify a couple of points.
Where does he go beyond clarification?
-: He went beyond clarification in a jury instruction
that commented on-
-: About his wife and the hypotheticals?
Claudia: Right.
-: Too folksy, but I don't know if there are really any,
it doesn't look like he's putting his fingers on the scales.
It just looks like he's showing off a little bit.
-: There was a comment that he made that,
in his jury instructions,
that expressly equated himself as the victim of an assault.
That was quite far-
-: But in a way that it's not gonna be be-
-: 'Cause we've had like transferred intent.
This is horrible SJC instruction on transferred intent.
And some judges have said, you know,
"If I shoot the clerk, and I shoot..." you know,
and I'm sure you've heard or read that instruction before.
Probably not a good idea.
But have we ever said that that stuff is forbidden?
-: No, Your honor, but this is-
-: I know, overbroad hypotheticals that relate
to the case aren't a good idea and in our error, right?
It's more like that?
-: The cases are that you're referring to are these cases
where there was one bad thing, and generally speaking,
everything else was fine.
That's not this case.
This case is a constant litany, one after the other,
of unfair things that were said by the trial judge.
-: Jones is critical,
and you say there's something wrong
with the way he gave the cooperating witness.
What did he leave out, and why was that meaningful?
-: So what he left out of the Champa instruction was
that the Commonwealth has no way of knowing
that this witness is telling the truth?
After Jones-
-: Doesn't he...
He does say that.
-: Particular care.
Justice Gaziano: Huh?
-: He gave the particular care part
of the Champa instruction,
and my argument is that,
in light of what he said
with regard to the lifestyle instruction, which could be-
-: Did the defendant ask for
that part of the Champa instruction?
-: She did, she did.
-: There's no objection when he gives the instruction, right?
-: There was an objection to the Champa instruction
after the charge.
She asked him to give the complete instruction,
and he refused to do that.
But that problem dovetailed
with the lifestyle instruction,
where he expressly told the jury that we're not here
to judge someone's lifestyle,
be it a witness or any other person.
-: But he doesn't direct that at Jones,
and there's a lot of lifestyle problems here.
'Cause everyone's got a lifestyle that's problematic,
who's involved, right?
-: The problem here is
that the whole defense was the lifestyle of Jones.
Lifestyle was the code word for the defense,
and that was the problem
with asking the jury not to judge lifestyle.
That was the defense.
-: [Justice Wendlandt] I thought the defense was
that he wasn't the third party?
-: Based on the fact that Jones could not be believed,
because she was the only person who would testify
that he came into the apartment and did what he did.
And the reason the jury shouldn't believe her was
because she was a gun-toting drug dealer
who did the shooting herself.
So the whole lifestyle shorthand for the defense was,
don't believe Jones as to what she said.
-: Okay. -: Thank you.
Thank you, Your Honor.
I would ask for 33E relief for Mr. Shepherd or a new trial.
I appreciate your time.
Thank you.
-: Okay, Attorney Jansen.
Good morning.
May it please the court.
Catherine Jansen on behalf of the Commonwealth.
I think I'll start with the Equal Protection issue.
Here, I think it's clear, under the law,
if we're gonna apply Equal Protection,
disparate impact alone is not enough.
And even looking at the statistics provided by my sister,
which I'm not sure it's enough of a record,
as this court had noted, to show that-
-: It would've been nice if you actually dug in
and pointed that out, right?
You kind of just gloss over all the statistics
and leave us just, you know, unwinding them, right?
You kind of concede on statistics,
even though there's no statistical evidence in here.
-: Well, I think it was important
to acknowledge what the statistics she did show
that it does show that there tend to be more-
-: We're not used to, I think,
having no expert statistical analysis,
and then the Commonwealth saying, "Hmm, too bad.
Let's focus on something else."
It would've been helpful if you responded
to some of these questions.
But anyways, it's water under the bridge.
-: Understood, Your Honor.
But as this court has noted,
and I think even in the wake of Long showing
where there were troubling statistics there,
you need to show that you...
I think this more has to be presented
in a selective prosecution manner,
that there are simply situated white defendants
who are not being prosecuted for felony murder.
And I think it's not as hard as my sister says
that it would be to show the statistics
that there were,
a murder occurred where there was a felony also
and the Commonwealth just chose not to go forward
on the felony murder, because they were white.
I don't think the showing has been made here that-
-: Is that the showing?
'Cause I thought the challenge was to our decision
as to whether or not to make Brown retroactive.
Do we have to go down to the prosecution's decision
on with whom to charge not felony murder?
-: Well, I think they're a little bit intertwined,
Your Honor,
-: I'm wondering, I mean, this is to Justice Kafker's point,
it would've been great to have some person
who was a statistician
who could tell us who the control group was.
Because the challenge decision is this court's decision
in 2007 for all the reasons set forth
in that decision not to apply Brown retroactively.
And what everybody seems to be talking about
in the briefs is some charging decision on felony murder.
Those are two different things.
They are not unrelated.
But talking about the latter doesn't help with the former.
It doesn't solve that statistical question.
-: Understood, Your Honor.
-: So who's the proper control group to determine whether
deciding Brown, applying Brown prospectively,
even if we adopt a disproportionate,
disparate impact analysis?
What's the disparity as against what?
I think nobody knows.
At least, the briefing hasn't told me.
-: I think that might be a fair characterization, Your Honor.
-: But your argument is the tripartite analysis controls-
-: Correct.
-: No matter ow how we apply it
or what whatever the governmental decision is,
as Justice Wendlandt characterized it,
which is my view as well.
Unless we change the analysis
to horrific disparities. -: Horrific disparities.
And I think, here, when we're talking about a floodgate,
if we're changing our Equal Protection analysis based
on whatever the statistics are,
the floodgate is that that would apply not just
to the small group of people,
but any case or any change in a statute
or a new common law rule by this court.
It would open the floodgate to a lesser standard, I think.
And so, that's what we're talking about.
I think you should not change the jurisprudence,
as my sister asked you to.
-: Can you address the trial judge's
more-than-folksy insertion of himself into the trial?
-: Your Honor, I think it was probably very clear
to the jury based on, this is the judge's temperament.
He's very courteous and talkative, for sure.
I don't think, when you look at it...
When you read the whole nine-day transcript,
I think when you look at it,
it does not, in my opinion, jump out at you.
I think it was clear that this was his temperament,
that he was courteous to everybody.
I think a lot of the questions,
when you look at the 140, or however many instances,
where the judge apparently inserted himself,
a lot of times he's clarifying evidence
or he's sustaining objections.
-: He does dig in a couple of times, you know,
five or six follow up questions, doesn't he?
There are a couple of times, where he's not just sort of...
I didn't understand that.
What do you mean?
He takes over a little bit.
It's kind of an interesting dynamic some of the time, right?
-: Your Honor, I think, perhaps you might be referring to,
when Jones was testifying,
she said it didn't seem
like the defendant was paying attention
to their conversation in the car.
And there was an objection to that, because she, obviously,
can't testify about the defendant's mental state.
And then, the judge clarified what was going on
in that conversation.
I think, when you're looking at whether
or not it's improper for judicial questioning,
you need to not necessarily look at the answer,
'cause obviously, the case law is clear that,
even if there is answers favorable to the Commonwealth case,
that's not enough to show partisans nature.
You have to-
-: I can't remember.
I thought he was worse with one of the, maybe,
one of the police officers.
There's like a five or six follow-up questions in a row,
on factual issues.
-: When one of the officers was looking
to serve another witness who had been with the group
and passed out in the car, and they couldn't serve her.
Maybe that's what you're talking about?
-: Yeah, he's trying to show, basically,
that they couldn't have found the witness, right?
They're looking for...
I can't remember this.
They're looking for somebody- Attorney Jansen: McMillan.
-: McMillan, yeah.
And that was odd, wasn't it?
I mean, it's just a lot of questions on that.
-: I don't believe so, Your Honor.
I think it might've been two or three questions.
I don't have the...
Excuse me.
It's four questions,
and I don't think it's a fair inference,
from the way he was questioning,
that he's trying to show that they exhausted all remedies.
-: What is he doing there?
I'm just trying to understand.
What is your understanding of what he's doing there?
-: I think he's just trying to clarify what he did
or didn't do, I mean, to the extent that, you know...
Was it totally necessary?
Probably not.
But judges are entitled to develop and clarify the evidence,
and that's part of developing the evidence,
and any claim of prejudice that could have resulted
from that, the defense attorney, on cross examination,
was able to elicit, aptly,
that he had not exhausted all remedies to serve that person.
And to the extent that this court finds the judge,
you know, overstepped his bounds in, potentially,
the number of questioning,
which I would suggest did not occur here.
This was a very experienced defense attorney,
who if she had no problem speaking up,
if she had found something objectional
in terms of the number
or character of the question, she would've objected.
But here, this jury was very discerning,
so it wasn't overly born by the judge
in anything he said or did in this case.
-: Can I ask you about the Champa instruction?
-: Sure.
-: 'Cause the judge doesn't give the standard line
that the prosecutors can't know the truth,
which is important because the examination is,
they're gonna be charged with a crime if they lie.
But then, you have to tell the jury.
but they don't know what the truth is.
So, the charging decision is colored by that information,
and that's not included in the instruction.
Isn't that error?
-: So, I think what happened here-
-: Was the Champa instruction erroneous?
-: I think it was, but I don't think it's preserved error,
and I wanna state why.
Here, obviously,
the prosecutor did not elicit that she had
to tell the truth.
That came out unanticipated on cross-examination.
So it was before jury.
-: But the judge's responsibility,
when you hear that evidence, is to give that instruction to-
-: Correct.
And then, at the end of the instructions,
the defense attorney asked
for the full Champa instruction.
And I would suggest that it's not preserved,
because she has to specific...
I think it's a duty as a litigant
to bring a specific attention to the trial judge
about what the issue is with more specificity.
-: When the facts get raised,
she asks for the full Champa instruction, right?
-: Right, and I think it would be helpful
to highlight with specific-
-: And then, did she object to the instruction as given?
-: She objected through the instruction
as given after...
Her objection came after the final instructions.
-: Okay, then how is it not preserved?
-: Well, I think because she didn't state with specificity,
excuse me, I'm tongue tied,
about what specifically why that instruction was error.
But even if this was error,
and it was preserved- -: You have a certain view
of preserving instruction.
-: Well, I do think the case law is clear.
You have to kind of state,
not just give a general objection.
I think that's more on the general side,
and I think that's a fair statement about how this happened.
But even if this was preserved, it's not reversible error,
because there was no vouching that occurred
with the prosecutor in her closing argument.
She did not mention the cooperation agreement,
and the fact that they should believe her
because of the cooperation agreement,
or that she had special knowledge independent
of what was evidenced before the jury
about why Jones was believable.
She absolutely properly argued that Jones was credible based
on her testimony alone and her demeanor,
but also based on the corroborating evidence presented
that independent of her testimony,
which was before the jury.
-: And we have cases on the lack
of a proper Champa instruction, correct?
-: Correct.
-: As to whether or not it's reversible error?
-: Correct.
-: What corroborated Jones?
Remind me, what are the major corroborating factors
for Jones?
-: I would suggest the China Bowl video was very important
to corroborate Jones,
that all three of them were together.
It was important because the China Bowl video,
when viewed in conjunction
with the 8 Carlton Street video,
the China Bowl video is very clear
and the Carlton Street video, I would say, is not as clear,
but when you view them together,
you can see that the two figures in there,
I think it's more than a fair inference
that it is Tyler and the defendant.
You see the defendant
in the Carlton Street video manipulating his pants.
And it was suggested in closing,
and it was not objected to,
that he could have been putting a firearm
or securing a firearm in his waistband.
You can see that he's not on his cellphone
during that operative time,
and the Carlton Street video's about two minutes off.
So that's consistent with his phone records.
The fact that Tyler is seen on his phone
in the Carlton Street video
at the operative time consistent with Jones' testimony
and their phone records.
You see them turning the corner.
Jones said when the struggle began
and before she went to the bathroom,
the defendant was standing in the doorway.
And based on the trajectory,
he would've been standing where the gunman was.
And so, I think the fair inference from the trajectory
and the Cardinal Street videos
that the defendant was the shooter and standing there based
on the timing of her testimony.
As far as corroborating about how the scuffle occurred,
she said that the victim bit Tyler's finger,
and then that DNA from his blood hand was
on the passenger side door of her car.
And obviously, the CLSI was helpful,
but it was not the linchpin of the case
to put the defendant in the vicinity.
-: On the ineffective assistance claim,
the second degree felony murder instruction
was not asked for.
And there was discussion of it,
and the co-defendant received that from Judge Lang, correct?
Catherine: Correct.
-: Why isn't that ineffective where the jury came back
on unarmed robbery
and rejected the other predicate felonies?
-: Well, I think it's not ineffective,
because one on this record,
where there's no affidavit from the defense attorney,
the defendant hasn't shown it's anything
but a tactical decision.
And I think it's fair from the record
that this was a tactical decision,
where she acknowledged that, in the Tyler case,
there were completely different theories of the case.
Tyler never said that he had a firearm
or knew about a firearm.
There was always the defendant.
-: We're to infer there was an all-or-nothing defense.
-: I don't think you have to infer it.
I think you can see it based on her closing argument.
I think if she had asked for that instruction,
her closing argument might've been very different.
Her closing argument and her theory of defense was,
you can't believe Jones.
The defendant was not here.
Look at the phone records.
You can see the timeline to show,
look, why would he be calling her if he wasn't there?
And I think a reasonable tactic decision,
under Roberts, which is cited in my brief, in Pagan,
that it's not manifestly unreasonable
to forego a certain instruction
that might allow lesser included degree of guilt
when you're going all-or-nothing.
You know, I think that we very well could be here
on the flip side, if she had requested this thing.
She's ineffective for having inconsistent defenses.
So, on this record,
you can't say that it's anything but a strategic decision.
And you know, sometimes, you know,
decisions pan out how they pan out,
but it's not unreasonable.
-: There's no evidence on the gun?
No fingerprint, nothing on...
Was the gun ever found?
I can't remember.
-: I don't believe the gun was ever found, Your Honor.
-: Right.
-: Obviously, any evidence
from the gun would've been helpful.
Although, just from experience,
it's hard to get evidence off of a gun, generally.
And I'm happy to answer any,
and there were a lot of issues raised,
so I'm happy to, you know,
answer any other questions the court may wish me to address.