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<v ->SJC-12405.</v>

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Commonwealth versus Rashad A. Shepherd.

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Okay, Attorney Bolgen.

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<v ->Good morning, Your Honor.</v>

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May it please the court.

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My name is Claudia Bolgen.

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I represent Mr. Shepherd.

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This case presents new

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and uncontested data proving that 82%

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of the people currently serving pre-Brown felony murder,

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life without parole, are Black or Brown.

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Only 18% of those 108 persons are white,

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and 60% of them are Black.

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<v ->Can I focus on the legal standard?</v>

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Because the stats you put together are troubling

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and impressive, and we need to know this information,

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but I wanna focus on the Equal Protection legal standard

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for a moment,

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as applied to those troubling statistics, okay?

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<v ->So the problem with Equal Protection is that-</v>

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<v ->Well, that's your claim.</v>

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<v ->I have, actually,</v>

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a fairness claim that's bigger

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than Equal Protection.
<v ->Oh, you have a 33E claim,</v>

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but you have an Equal Protection claim?

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<v ->Indeed, but the Equal Protection claim is subsumed</v>

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into a fairness claim.

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<v ->Wait a second.</v>

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There's an Equal Protection Standard, right?

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<v Claudia>Yes, the Equal Protection Standard looks-</v>

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<v ->Did you apply the Equal Protection Standard?</v>

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<v ->Certainly, Your Honor.</v>

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The Equal Protection Standard looks

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for intentional discrimination.

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Disparate impact is not recognized.

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And I think,

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I'm asking this court

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to consider recognizing disparate impact

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in the Equal Protection context.

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<v ->Okay, so you want us</v>

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to change our Equal Protection jurisprudence?

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<v ->Yes.</v>
<v ->Okay.</v>

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Because the regular Equal Protection, as you well know,

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is a tripartite...

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'Cause there's none of that in your brief.

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It's Bernardo B., it's Van Rader, which recently...

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<v Claudia>Exactly.</v>

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<v ->So, you basically...</v>

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That's why you didn't go into Bernard B.

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or do the tripartite analysis?

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<v Claudia>Correct.</v>

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<v ->You want us to change our Equal Protection jurisprudence?</v>

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<v ->I do, under state constitutional law.</v>

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<v Justice Gaziano>Okay.</v>

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<v ->Which is, of course, within your discretion.</v>

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<v Justice Gaziano>Right.</v>

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Okay, so the stated purpose in Brown,

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for prospective application was the fairness

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of the government in those charging decisions,

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as then Chief Justice Gants wrote, correct?

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<v ->That's correct.</v>

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<v ->And your argument is it's had a disparate impact</v>

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as neutral, and as well intended perhaps,

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as that statement was?

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<v ->Absolutely right, Your Honor.</v>

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I'm arguing that here, in 2023...

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In 2017, with the information

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that this court had at the time,

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the fairness balance went to the Commonwealth

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on the retroactivity question.

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But here we are in 2023,

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after the June of 2020 letter,

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where this court committed to combating systemic racism,

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to combating rooting out conscious and unconscious bias

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in our courtrooms.

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Here we are with this data...

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<v ->But can you tell me...</v>

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All right, we do away with tripartite Equal Protection,

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because the government decision-making in this case,

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ironically, is our decision, right?

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<v Claudia>Ironically.</v>

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<v Justice Gaziano>Right.</v>
<v ->Here, but-</v>

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<v ->Right, but no, that's true, correct?</v>

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We're analyzing the decisions we've made not

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to be retroactive.

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<v ->Indeed, and that's a little uncomfortable.</v>

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<v Justice Gaziano>Sure.</v>
<v Claudia>Sure.</v>

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<v ->Which we shouldn't shy away from it.</v>

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I appreciate that.

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<v Claudia>Indeed, and I appreciate you saying that.</v>

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<v ->Just let me ask a question.</v>

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So given all those,

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and we have governmental decision-making,

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and it's an Equal Protection argument,

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your request is that this court not apply

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it's Equal Protection jurisprudence,

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but it change the jurisprudence to what?

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<v ->I suggest, in answer to the Commonwealth's argument,</v>

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that any change

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to the state constitutional law Equal Protection Standard

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would open the floodgates, would make every new rule-

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<v ->Well, we've changed Equal Protection before.</v>

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We did it in the stop-and-frisk cases.

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That's not the issue.

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I just wanna know, rather than the floodgate argument,

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I wanna know what our legal standard is,

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or what you propose our legal standard should be.

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<v ->I propose a horrific disparate impact standard,</v>

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because equal-

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<v ->[Justice Wendlandt] Horrific?</v>

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<v ->Equal protection is a bad fit.</v>

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<v ->[Justice Wendlandt] I just...</v>

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You said horrific?

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<v ->Yeah, I said horrific.</v>

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<v ->[Justice Wendlandt] Okay.</v>

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<v ->Because that's what we're showing here.</v>

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<v Justice Kafker>Does any state have a model?</v>

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'Cause I understand we can change,

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provide greater protection under the state constitution,

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but does any state, has adopted something similar

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to what you're proposing,

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horrific disparate impact standard?

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<v ->I don't think so, Your Honor.</v>

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But again, whether-

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<v ->Has any state done a disparate impact analysis?</v>

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<v ->In terms of Equal Protection, no.</v>

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<v Justice Kafker>Okay, so we would,</v>

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<v ->Because cause Equal Protection is not the best fit</v>

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for combating systemic racism

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as Justice Budd defined it in Long,

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which is a system

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that produces racially disparate outcomes independent

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of the intentions of the people who work within it.

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So, my Equal Protection argument is a subset

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of my fairness argument.

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Because if this court wants

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to address the systemic racism shown by the statistics,

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there's a number of different ways this court can do that.

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If there are problems-

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<v ->About the horrific disparate impact standard</v>

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that you're proposing, what's the control group;

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that is, you're saying the decision of this court

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to not apply Brown retroactively has resulted

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in a disparate impact as opposed to what,

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the decision to apply it retroactively?

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'Cause it seems to me,

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or the decision that was made to apply it prospectively.

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Because if there is,

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and let's just assume for purposes of conversation

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that there is systematic racism,

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then the people who benefited

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from the prospective Brown rule were disproportionately,

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as you call them, Black and Brown.

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So, they benefited disproportionately, and then...

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I don't understand what the control group is.

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<v ->Let me address the control group.</v>

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There is a baseline, and I hate to use the word baseline,

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but there's a baseline disparity

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in the DOC prisoner population

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that is mirrored almost exactly

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in the malice murder defendant population,

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which is approximately 60/40,

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40% white, 60% non-white, Black, Hispanic, Asian, other.

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And, you know, pejoratively, I don't mean to say baseline,

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like that's acceptable.

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It's not acceptable, but that's the baseline,

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Your Honor.
<v ->Can I ask</v>

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to follow up on that?

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If you remove the...

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'Cause one of the briefs, the BU brief,

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I believe, Amicus brief,

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talks about the number of people in the 18 to 20 category.

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So if you remove the 18 to 20 disparate, which is 84%,

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or something like that.

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<v Claudia>88, your honor.</v>
<v ->88.</v>

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Do you get to the normal prison population

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if you removed the 18 to 20-year-olds?

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<v ->No, there's no way.</v>

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There's no way.

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The horrific racial disparity of 40-

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<v ->What does it lower it to?</v>

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I'm just curious.

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<v ->I'm sorry, Your Honor.</v>
<v ->What does it lower it to?</v>

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Do you know the percentage it comes back

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to when you do that?

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<v ->Well, I'm not sure-</v>

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<v ->It's just, the numbers were staggering</v>

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in the 18 to 20 category.
<v Claudia>Aren't they?</v>

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They are.

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<v ->But that issue is also before us in another case.</v>

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So I'm just wondering,

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if you remove that category of people, what the effect is.

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<v ->I don't think it would have an effect, Your Honor,</v>

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because 30%.
<v ->What's the number on that?</v>

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<v ->I, actually, out of all the numbers that I have,</v>

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removing the Mattis-Robinson cohort was not one of them.

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<v Justice Gaziano>We can do that math.</v>

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You don't have to do it.

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<v ->Thank you.</v>

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I appreciate that.

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Math, is maybe, perhaps...

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<v ->We'll do that in our leisure, yeah.</v>

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<v ->But with regard to that, Your Honor,</v>

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obviously, no one knows what those cases are going to hold,

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but that's 32 less people.

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<v ->I'm just trying to understand the practical effect</v>

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of what you're doing based on...

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Again, I wasn't here the first time,

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but the Gants decision talks about the problem

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of going backwards.

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The Commonwealth couldn't have produced,

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didn't know it had to use malice, prove malice.

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So what happens if you get what you want?

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We adopt this new constitutional standard,

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then what goes on in these 108 cases?

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Retry everybody?

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I'm just trying

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<v Claudia>No.</v>
<v ->To understand what to do.</v>

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<v ->No, the BU brief does a good job of positing out</v>

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to the practical implications

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of either a constitutional change

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or simply a common law change.

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But what happens to those 108 cases?

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<v ->I would advocate for blanket parole eligibility.</v>

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And if that was not acceptable in this court's discretion,

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this court has full discretion in any way

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to deal with this issue.

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Individualized re-sentencing

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<v ->They'd get blanket parole eligibility,</v>

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meaning that everyone's immediately eligible for parole?

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<v ->With regard to what, perhaps,</v>

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a second-degree murder, 15-year sentence would be, yes,

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parole eligibility, Your Honor.

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And then, the fairness of the Commonwealth,

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because that is a concern,

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comes back in at each individual parole hearing

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or each individual re-sentencing hearing,

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that if the Commonwealth had strong evidence of malice,

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that it didn't produce a trial in reliance on pre-Brown law,

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they could produce it at that time

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to keep each individual person accountable

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for their actions, and it's 108 people.

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This court has done many things recently

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that were affecting many more defendants.

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So a floodgates argument doesn't really wash

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when there's 108 people.

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<v ->Yes, on the floodgate issue,</v>

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does a horrific disparity Equal Protection test apply

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to facially neutral drug laws?

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<v ->That would be in this court's discretion.</v>

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Because again,

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Equal Protection is not a perfect fit

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for combating systemic racism in all its forms.

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That's a big question, Your Honor.

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<v ->That's what Equal Protection-</v>

256
00:10:59.040 --> 00:11:02.340
If anything is designed to deal with systematic racism,

257
00:11:02.340 --> 00:11:04.503
it's the Equal Protection Clause, isn't it?

258
00:11:06.197 --> 00:11:09.630
That's the go-to constitutional provision

259
00:11:09.630 --> 00:11:12.423
to deal with Equal Protection violations.

260
00:11:13.260 --> 00:11:14.850
<v ->Your Honor, if that's true,</v>

261
00:11:14.850 --> 00:11:16.980
then it's done a pretty poor job,

262
00:11:16.980 --> 00:11:20.890
and that's what I'm coming back to you here today.

263
00:11:20.890 --> 00:11:25.890
<v ->But doesn't that raise what they're gonna argue,</v>

264
00:11:26.160 --> 00:11:29.690
that it's a global...

265
00:11:29.690 --> 00:11:34.690
I mean, we're talking about re-analyzing all different types

266
00:11:35.880 --> 00:11:38.910
of cases, not just these, right?

267
00:11:38.910 --> 00:11:40.315
<v ->In your discretion,</v>

268
00:11:40.315 --> 00:11:44.783
you could make a constitutional new rule

269
00:11:44.783 --> 00:11:49.783
that would have those problems, or in a common law manner,

270
00:11:50.190 --> 00:11:54.982
as Brown has been applied from 2017 to now,

271
00:11:54.982 --> 00:11:59.447
this court has complete discretion, non-constitutionally,

272
00:11:59.447 --> 00:12:02.010
to implement fairness here

273
00:12:02.010 --> 00:12:04.290
and leave the rest for another day.

274
00:12:04.290 --> 00:12:05.452
<v Justice Gaziano>Under 33E?</v>

275
00:12:05.452 --> 00:12:09.652
<v ->Yes, fairness and justice is my argument.</v>

276
00:12:09.652 --> 00:12:13.590
If that means Equal Protection, I'm happy to discuss that.

277
00:12:13.590 --> 00:12:17.913
<v ->And in Brown, and actually even in my decision,</v>

278
00:12:19.130 --> 00:12:23.190
we applied 33E to Mr. Brown's case.

279
00:12:23.190 --> 00:12:25.192
<v ->Yes, and I'm asking for the same here.</v>

280
00:12:25.192 --> 00:12:27.560
<v ->And the reason we did that was based on the facts</v>

281
00:12:27.560 --> 00:12:30.300
of the, you know, the person on the outer limits

282
00:12:30.300 --> 00:12:32.700
of the joint venture, correct?

283
00:12:32.700 --> 00:12:33.750
<v ->Yes, absolutely.</v>

284
00:12:33.750 --> 00:12:35.280
And that is my second argument.

285
00:12:35.280 --> 00:12:36.990
<v Justice Gaziano>Right, you're arguing that too.</v>

286
00:12:36.990 --> 00:12:37.823
<v ->So my second argument-</v>

287
00:12:37.823 --> 00:12:40.860
<v ->That argument that your client should receive</v>

288
00:12:40.860 --> 00:12:42.000
on the facts?

289
00:12:42.000 --> 00:12:43.833
<v ->Certainly, so completely separate</v>

290
00:12:43.833 --> 00:12:47.640
from the retroactivity argument is the 33 argument,

291
00:12:47.640 --> 00:12:52.440
and the racial disparity data is pulled back into that.

292
00:12:52.440 --> 00:12:54.420
So that's where it comes into play

293
00:12:54.420 --> 00:12:56.850
with my client's particular case.

294
00:12:56.850 --> 00:12:59.901
But I'm arguing for Mr. Shepherd-

295
00:12:59.901 --> 00:13:01.590
<v ->The fact that he's BLack,</v>

296
00:13:01.590 --> 00:13:03.090
is that the fact that we're...

297
00:13:03.090 --> 00:13:04.080
<v ->No.</v>
<v ->Okay.</v>

298
00:13:04.080 --> 00:13:05.730
<v ->That's the 33 argument though.</v>

299
00:13:05.730 --> 00:13:07.140
<v ->That's the predicate.</v>

300
00:13:07.140 --> 00:13:10.346
This case would have been-

301
00:13:10.346 --> 00:13:11.577
<v ->Can we get the answer to that...</v>

302
00:13:11.577 --> 00:13:14.806
Please, just give us your 33 argument on the facts.

303
00:13:14.806 --> 00:13:19.007
<v ->So the deficits in the Commonwealth's case</v>

304
00:13:19.007 --> 00:13:21.780
on culpability, there's 10 main deficits.

305
00:13:21.780 --> 00:13:24.750
And so, with those deficits in place,

306
00:13:24.750 --> 00:13:28.500
putting the racial disparity back into it leads

307
00:13:28.500 --> 00:13:32.400
to the conclusion that, were Mr. Shepherd white,

308
00:13:32.400 --> 00:13:36.090
this case would have been prosecuted differently.

309
00:13:36.090 --> 00:13:39.270
So there's 10 main problems with the Commonwealth's case

310
00:13:39.270 --> 00:13:42.240
as to Mr. Shepherd's culpability.

311
00:13:42.240 --> 00:13:45.647
First of all, Jones was a very unconvincing star witness.

312
00:13:45.647 --> 00:13:50.647
The DA, in her closing argument, called her despicable.

313
00:13:51.731 --> 00:13:54.390
The Commonwealth's brief also

314
00:13:54.390 --> 00:13:58.290
acknowledges she was unconvincing and credulity straining.

315
00:13:58.290 --> 00:13:59.520
So that's their star witness.

316
00:13:59.520 --> 00:14:00.589
So that's the first problem.

317
00:14:00.589 --> 00:14:03.000
The second problem was there was trial evidence

318
00:14:03.000 --> 00:14:05.511
that this lady was actually the shooter.

319
00:14:05.511 --> 00:14:09.300
The third problem is that there was information

320
00:14:09.300 --> 00:14:12.630
about the star witness that was not brought out at trial

321
00:14:12.630 --> 00:14:15.210
but was brought out in the motions for new trial,

322
00:14:15.210 --> 00:14:16.980
which is a month before this.

323
00:14:16.980 --> 00:14:19.380
She had a gun in her apartment.

324
00:14:19.380 --> 00:14:20.763
And then, I'm not suggesting this

325
00:14:20.763 --> 00:14:22.320
would've been trial evidence,

326
00:14:22.320 --> 00:14:24.690
but after she got her 527,

327
00:14:24.690 --> 00:14:28.380
she got out and was promptly arrested for possession

328
00:14:28.380 --> 00:14:32.220
of a high-capacity firearm with 13 hollow-point bullets

329
00:14:32.220 --> 00:14:33.346
in the suppressor barrel.

330
00:14:33.346 --> 00:14:38.346
So, that's the credibility argument of their star witness.

331
00:14:38.400 --> 00:14:40.410
But even that aside,

332
00:14:40.410 --> 00:14:45.090
this unconvincing star witness didn't actually testify

333
00:14:45.090 --> 00:14:48.810
to what Mr. Shepherd's role, if any,

334
00:14:48.810 --> 00:14:52.470
was in this struggle in the apartment.

335
00:14:52.470 --> 00:14:54.323
And in fact, the first-

336
00:14:54.323 --> 00:14:55.710
<v ->Nobody saw what happened.</v>

337
00:14:55.710 --> 00:14:56.984
There was just a gunshot, correct?

338
00:14:56.984 --> 00:14:57.817
<v ->Correct.</v>

339
00:14:57.817 --> 00:15:00.060
And the first motion for new trial made a finding,

340
00:15:00.060 --> 00:15:04.290
no testimony described his involvement in the struggle.

341
00:15:04.290 --> 00:15:09.090
So, she testified she never saw my client with a weapon.

342
00:15:09.090 --> 00:15:10.470
So this is, you know, going back.

343
00:15:10.470 --> 00:15:11.970
Okay, let's look at her testimony,

344
00:15:11.970 --> 00:15:13.904
if that's their star witness.

345
00:15:13.904 --> 00:15:16.650
Never saw him with a weapon.

346
00:15:16.650 --> 00:15:19.890
Didn't see when he left the apartment,

347
00:15:19.890 --> 00:15:22.320
whether it was before or after the shooting.

348
00:15:22.320 --> 00:15:25.079
So that's another difficulty in the case.

349
00:15:25.079 --> 00:15:29.010
She testified to his presence earlier in the evening

350
00:15:29.010 --> 00:15:30.194
at the planning,

351
00:15:30.194 --> 00:15:32.425
but she never testified to one word

352
00:15:32.425 --> 00:15:35.823
that my client said, evidencing agreement.

353
00:15:36.960 --> 00:15:40.170
Testimony was to presence at the planning

354
00:15:40.170 --> 00:15:42.300
and the Commonwealth points-

355
00:15:42.300 --> 00:15:43.620
<v ->They're all jury questions.</v>

356
00:15:43.620 --> 00:15:48.620
I mean, the cross-examination of Jones is vigorous

357
00:15:49.620 --> 00:15:50.970
and portrays her

358
00:15:50.970 --> 00:15:53.733
in all the negative lights you're talking about.

359
00:15:55.004 --> 00:15:58.380
There's all kinds of evidence that the other two are

360
00:15:58.380 --> 00:15:59.580
in the place, right?

361
00:15:59.580 --> 00:16:01.140
<v Claudia>Right, absolutely.</v>

362
00:16:01.140 --> 00:16:02.690
<v ->And the angle of the shooting comes...</v>

363
00:16:02.690 --> 00:16:06.168
The best thing you've got is that he's a,

364
00:16:06.168 --> 00:16:10.500
the felony that he's found is unarmed robbery, right?

365
00:16:10.500 --> 00:16:11.333
<v Claudia>Right, there's no-</v>

366
00:16:11.333 --> 00:16:12.870
<v ->And that's the best you've got.</v>

367
00:16:12.870 --> 00:16:16.020
The other stuff are all jury questions, right?

368
00:16:16.020 --> 00:16:16.853
How old is he?

369
00:16:16.853 --> 00:16:17.686
I can't remember.

370
00:16:17.686 --> 00:16:19.740
<v ->He was 25 at the time, Your Honor.</v>

371
00:16:19.740 --> 00:16:21.407
So, respectfully, I disagree.

372
00:16:21.407 --> 00:16:24.075
<v ->And he had a gun too, right?</v>

373
00:16:24.075 --> 00:16:26.520
There's evidence about him having guns as well,

374
00:16:26.520 --> 00:16:28.530
or am I mixing the two cases we're hearing today?

375
00:16:28.530 --> 00:16:31.333
<v ->There's no evidence of him having a gun.</v>

376
00:16:31.333 --> 00:16:33.179
So respectfully, Your Honor,

377
00:16:33.179 --> 00:16:35.898
I'm not making a sufficiency argument.

378
00:16:35.898 --> 00:16:39.720
What I'm doing is I'm showing all the problems

379
00:16:39.720 --> 00:16:41.970
with the Commonwealth's case.

380
00:16:41.970 --> 00:16:44.790
And then, my next argument is that,

381
00:16:44.790 --> 00:16:47.520
given the problems with the Commonwealth's case

382
00:16:47.520 --> 00:16:48.744
on culpability,

383
00:16:48.744 --> 00:16:53.744
the data tends to show that if Mr. Shepherd had been white-

384
00:16:54.390 --> 00:16:56.973
<v ->Oh, let me ask you about that assertion.</v>

385
00:16:57.960 --> 00:16:59.700
That smacks of Equal Protection.

386
00:16:59.700 --> 00:17:02.880
I know there's cross-pollenization with your argument.

387
00:17:02.880 --> 00:17:06.780
But that if he was white, he'd be prosecuted differently,

388
00:17:06.780 --> 00:17:08.320
that requires proof

389
00:17:09.210 --> 00:17:13.950
or evidence of similarly situated persons not being charged,

390
00:17:13.950 --> 00:17:17.226
white people not being charged with felony murder, correct?

391
00:17:17.226 --> 00:17:22.226
<v ->That data is largely unavailable.</v>

392
00:17:22.740 --> 00:17:24.270
And trust me, I looked for it.

393
00:17:24.270 --> 00:17:25.560
<v Justice Gaziano>How is it unavailable?</v>

394
00:17:25.560 --> 00:17:28.200
<v ->Because prosecutors charging practices</v>

395
00:17:28.200 --> 00:17:30.897
are not data-driven.

396
00:17:30.897 --> 00:17:34.470
Were we to have those sorts of data,

397
00:17:34.470 --> 00:17:38.620
then I could come here with that and data-

398
00:17:38.620 --> 00:17:41.190
<v ->Could have plugged that into the tripartite analysis</v>

399
00:17:41.190 --> 00:17:42.330
if you had that data.

400
00:17:42.330 --> 00:17:46.170
<v ->Indeed, but the difficulty in obtaining data, Your Honor,</v>

401
00:17:46.170 --> 00:17:49.375
I cannot overstate how difficult that is.

402
00:17:49.375 --> 00:17:50.520
At the moment, this is...

403
00:17:50.520 --> 00:17:51.480
<v ->In Bernardo B,</v>

404
00:17:51.480 --> 00:17:53.850
we said it was actually easier, and in Van Rader,

405
00:17:53.850 --> 00:17:56.580
we said it was actually easier with prosecution's decisions.

406
00:17:56.580 --> 00:17:58.500
That's why we eliminated that

407
00:17:58.500 --> 00:18:02.760
for police-officer-on-the-spot investigations, right?

408
00:18:02.760 --> 00:18:05.820
So we had said that, in Bernardo B., of course,

409
00:18:05.820 --> 00:18:08.410
they had prosecuted all the males

410
00:18:08.410 --> 00:18:11.370
in consensual sex, statutory rape cases,

411
00:18:11.370 --> 00:18:12.870
and we could look at that.

412
00:18:12.870 --> 00:18:15.874
And here, you can't say

413
00:18:15.874 --> 00:18:18.630
that these people were charged with murder.

414
00:18:18.630 --> 00:18:20.280
There was a robbery in a gas station,

415
00:18:20.280 --> 00:18:23.670
and they weren't charged with felony murder, the white guy?

416
00:18:23.670 --> 00:18:26.790
<v ->So I will respond to that by saying we are dealing</v>

417
00:18:26.790 --> 00:18:28.576
with unconscious bias here.

418
00:18:28.576 --> 00:18:33.576
The data shows that almost no white people are convicted

419
00:18:34.800 --> 00:18:35.850
of felony murder.

420
00:18:35.850 --> 00:18:36.810
<v ->That's a different issue.</v>

421
00:18:36.810 --> 00:18:39.420
The issue is whether not they're similarly situated,

422
00:18:39.420 --> 00:18:40.795
not charged.

423
00:18:40.795 --> 00:18:44.400
<v ->And that is data that I don't have,</v>

424
00:18:44.400 --> 00:18:48.360
because it's not available, at least in this Commonwealth.

425
00:18:48.360 --> 00:18:50.239
And I've looked across the country as well,

426
00:18:50.239 --> 00:18:52.800
anticipating that this would be an issue.

427
00:18:52.800 --> 00:18:53.633
<v ->Who did the data?</v>

428
00:18:53.633 --> 00:18:55.890
I haven't read the whole record here.

429
00:18:55.890 --> 00:18:58.590
Is there a statistical expert brought in

430
00:18:58.590 --> 00:19:01.273
to do the type of comparisons you're talking about,

431
00:19:01.273 --> 00:19:05.918
or are you just taking these numbers yourself and running?

432
00:19:05.918 --> 00:19:09.660
Do we have experts here doing this analysis,

433
00:19:09.660 --> 00:19:12.570
doing what is the pool we should look at,

434
00:19:12.570 --> 00:19:14.700
which murders should be excluded from this,

435
00:19:14.700 --> 00:19:16.500
which ones are relevant?

436
00:19:16.500 --> 00:19:18.768
Or, is this all done by lawyers?

437
00:19:18.768 --> 00:19:21.780
<v ->This was done, essentially, by me, Your Honor.</v>

438
00:19:21.780 --> 00:19:26.780
<v ->So we don't have a statistician of any kind, saying...</v>

439
00:19:27.945 --> 00:19:31.590
Again, I didn't go to MIT, like one of my colleagues,

440
00:19:31.590 --> 00:19:33.150
and take statistics,

441
00:19:33.150 --> 00:19:34.950
but we normally have experts

442
00:19:34.950 --> 00:19:37.105
who do standard deviation analysis,

443
00:19:37.105 --> 00:19:40.170
making sure we're comparing apples to apples,

444
00:19:40.170 --> 00:19:41.220
not apples to oranges.

445
00:19:41.220 --> 00:19:42.980
We don't have any of that here?

446
00:19:42.980 --> 00:19:46.020
<v ->This is relatively straightforward.</v>

447
00:19:46.020 --> 00:19:47.610
<v ->Well, there's nothing straightforward</v>

448
00:19:47.610 --> 00:19:49.051
about statistics when we're dealing

449
00:19:49.051 --> 00:19:52.380
with the entire criminal justice system

450
00:19:52.380 --> 00:19:53.913
and felony murder, right?

451
00:19:54.810 --> 00:19:56.340
<v ->Which is one of the reasons I was asking you</v>

452
00:19:56.340 --> 00:19:57.600
about the comparator data.

453
00:19:57.600 --> 00:19:58.560
Like, what do we compare...

454
00:19:58.560 --> 00:19:59.700
What's the control group?

455
00:19:59.700 --> 00:20:02.414
The control group here was malice murder, Your Honor.

456
00:20:02.414 --> 00:20:05.093
<v ->But why is that the appropriate control group?</v>

457
00:20:05.093 --> 00:20:08.754
<v ->Because proof of malice is the difference</v>

458
00:20:08.754 --> 00:20:12.330
between pre-Brown historical felony murder

459
00:20:12.330 --> 00:20:14.250
and first-degree murder.
<v ->That I understand.</v>

460
00:20:14.250 --> 00:20:18.381
But mathematically, that doesn't compute.

461
00:20:18.381 --> 00:20:21.180
<v ->With regard-</v>
<v ->That would be your baseline,</v>

462
00:20:21.180 --> 00:20:22.900
that that would be your control group.

463
00:20:22.900 --> 00:20:26.100
The control group, I would submit,

464
00:20:26.100 --> 00:20:28.440
is correctly malice murder, Your Honor.

465
00:20:28.440 --> 00:20:33.440
Because what we're looking at here is a pool of folks

466
00:20:33.531 --> 00:20:35.550
that are doing life without parole

467
00:20:35.550 --> 00:20:37.710
for one type of murder that doesn't have malice

468
00:20:37.710 --> 00:20:41.475
as a component and a pool of folks doing life without parole

469
00:20:41.475 --> 00:20:43.860
for malice murder.

470
00:20:43.860 --> 00:20:45.927
So the difference-
<v ->But that's psychology.</v>

471
00:20:45.927 --> 00:20:47.721
Why is that the right control group?

472
00:20:47.721 --> 00:20:50.130
I mean, that's the control group that you compared it to,

473
00:20:50.130 --> 00:20:51.930
but I don't understand why that would be it?

474
00:20:51.930 --> 00:20:54.840
<v ->Isn't Justice Gaziano's suggestion</v>

475
00:20:54.840 --> 00:20:56.403
the actual control group.

476
00:20:57.270 --> 00:20:58.980
I mean, it's the Bernardo B. thing.

477
00:20:58.980 --> 00:21:02.915
And why wouldn't you be able to find information data

478
00:21:02.915 --> 00:21:06.907
about white people who are in the same type of situation

479
00:21:06.907 --> 00:21:09.690
but don't get charged with felony murder?

480
00:21:09.690 --> 00:21:12.558
It seems like that would be the way to prove this.

481
00:21:12.558 --> 00:21:17.130
<v ->The only study I was able to find was in Minnesota.</v>

482
00:21:17.130 --> 00:21:20.280
It's cited in the BU Amicus brief,

483
00:21:20.280 --> 00:21:22.508
where in that state, due to the data laws,

484
00:21:22.508 --> 00:21:27.210
they were able to try to figure out what this upcharging

485
00:21:27.210 --> 00:21:31.440
and overcharging situation was with regard to that state.

486
00:21:31.440 --> 00:21:33.120
The Harvard study in this state-

487
00:21:33.120 --> 00:21:35.433
<v ->What was the control group in Minnesota?</v>

488
00:21:36.574 --> 00:21:38.460
<v ->I believe that they were just looking</v>

489
00:21:38.460 --> 00:21:43.410
at all of the murder prosecutions and attempting

490
00:21:43.410 --> 00:21:46.140
to figure out why their...

491
00:21:46.140 --> 00:21:48.480
Minnesota has the same disparity that we do.

492
00:21:48.480 --> 00:21:49.313
They were trying to-

493
00:21:49.313 --> 00:21:53.103
<v ->Is that article in the record?</v>

494
00:21:55.275 --> 00:21:58.440
<v ->In the BU brief, it cites to the Minnesota study,</v>

495
00:21:58.440 --> 00:21:59.273
I believe, on page 19.

496
00:21:59.273 --> 00:22:00.420
<v ->[Justice Wendlandt] Okay, fine, thank you.</v>

497
00:22:00.420 --> 00:22:03.358
<v ->I mean, I looked through the BU brief.</v>

498
00:22:03.358 --> 00:22:05.220
You have, you know,

499
00:22:05.220 --> 00:22:06.439
a bunch of studies that sort of suggest things,

500
00:22:06.439 --> 00:22:10.754
but none of that evidence is presented here.

501
00:22:10.754 --> 00:22:15.273
And do we even have to do this DA's office by DA's office?

502
00:22:17.520 --> 00:22:18.810
I mean, is the relevant group

503
00:22:18.810 --> 00:22:20.400
this district attorney's office,

504
00:22:20.400 --> 00:22:23.160
or is it, I mean, how they do it?

505
00:22:23.160 --> 00:22:25.290
I mean, is there unconscious...

506
00:22:25.290 --> 00:22:28.230
I mean, are they really responsible

507
00:22:28.230 --> 00:22:31.020
for what the other DA...

508
00:22:31.020 --> 00:22:34.500
I don't have any sense that this has been done

509
00:22:34.500 --> 00:22:36.868
in a statistically valid-

510
00:22:36.868 --> 00:22:41.100
<v ->The odd part about it is that it's not the DA's decision</v>

511
00:22:41.100 --> 00:22:44.100
to challenge and it's our decision on retroactivity.

512
00:22:44.100 --> 00:22:45.153
<v ->Yes, that's right.</v>

513
00:22:46.050 --> 00:22:46.883
<v ->You'd have to show</v>

514
00:22:46.883 --> 00:22:49.118
that we've made retroactivity decisions

515
00:22:49.118 --> 00:22:50.714
in a disparate manner.

516
00:22:50.714 --> 00:22:54.210
And if we were to apply the tripartite analysis,

517
00:22:54.210 --> 00:22:56.537
which you will ask us not to, appropriately,

518
00:22:56.537 --> 00:22:59.689
we'd have to look at similarly-situated people,

519
00:22:59.689 --> 00:23:01.889
and that's why you don't want us to do that.

520
00:23:03.140 --> 00:23:05.223
<v ->In this case,</v>

521
00:23:06.565 --> 00:23:09.840
the pool of folks

522
00:23:09.840 --> 00:23:13.860
that are the most similarly situated

523
00:23:13.860 --> 00:23:15.150
are the malice murder folks,

524
00:23:15.150 --> 00:23:18.450
and I recognize your honor's difficulty with that.

525
00:23:18.450 --> 00:23:20.354
Because that is, just objectively,

526
00:23:20.354 --> 00:23:22.170
the difference between the two.

527
00:23:22.170 --> 00:23:23.910
<v ->I'm confused by that, though.</v>

528
00:23:23.910 --> 00:23:28.910
Like, if there's a killing of someone with no underlying...

529
00:23:29.520 --> 00:23:31.230
The killing is not...

530
00:23:31.230 --> 00:23:33.150
There's no other felony.

531
00:23:33.150 --> 00:23:35.490
Those groups are not relevant to this.

532
00:23:35.490 --> 00:23:38.460
Are they included in your statistics?

533
00:23:38.460 --> 00:23:42.000
<v ->They would be if they were convicted of malice murder,</v>

534
00:23:42.000 --> 00:23:44.340
would be in the malice murder statistics.

535
00:23:44.340 --> 00:23:45.710
Because then...

536
00:23:45.710 --> 00:23:49.976
<v ->But again, are we comparing apples to oranges?</v>

537
00:23:49.976 --> 00:23:52.980
<v ->To me, the comparator needs to be those who benefited</v>

538
00:23:52.980 --> 00:23:56.370
from the rule prospectively versus those who did not benefit

539
00:23:56.370 --> 00:23:59.430
from the rule not being applied retroactively.

540
00:23:59.430 --> 00:24:01.530
<v ->And Your Honor, it's probably not surprising to you</v>

541
00:24:01.530 --> 00:24:03.960
to know that I've been trying to find that data.

542
00:24:03.960 --> 00:24:06.210
<v ->Well, if we assume, as I said,</v>

543
00:24:06.210 --> 00:24:10.710
systematic racism is still present after 2017,

544
00:24:11.880 --> 00:24:16.320
and that felony murder disproportionately affected Black

545
00:24:16.320 --> 00:24:17.243
and Brown people,

546
00:24:17.243 --> 00:24:21.053
then the benefit

547
00:24:21.053 --> 00:24:24.600
of the new rule disproportionately benefited Black

548
00:24:24.600 --> 00:24:25.504
and Brown people.

549
00:24:25.504 --> 00:24:27.660
Do you see what I'm saying?
<v ->I do</v>

550
00:24:27.660 --> 00:24:29.430
That is, the people who benefited

551
00:24:29.430 --> 00:24:32.280
from the rule were disproportionately Black and Brown

552
00:24:32.280 --> 00:24:36.990
as well as the people who did not benefit from it.

553
00:24:36.990 --> 00:24:39.567
So, if you compare those apples to apples,

554
00:24:39.567 --> 00:24:44.280
there is actually no horrific disparate impact,

555
00:24:44.280 --> 00:24:46.080
nor any disparate impact.

556
00:24:46.080 --> 00:24:48.690
<v ->So, I have two responses to that, Your Honor.</v>

557
00:24:48.690 --> 00:24:49.523
First of all,

558
00:24:49.523 --> 00:24:51.270
the data I was able to uncover

559
00:24:51.270 --> 00:24:53.783
as to what has happened post Brown,

560
00:24:53.783 --> 00:24:57.630
in terms of prosecuting felony murder, is that,

561
00:24:57.630 --> 00:24:59.436
by and large, there is-

562
00:24:59.436 --> 00:25:01.457
<v ->Can you prosecute felony murder after that?</v>

563
00:25:01.457 --> 00:25:03.153
<v Justice Gaziano>Yes.</v>

564
00:25:03.153 --> 00:25:04.713
<v ->It's a discretionary decision.</v>

565
00:25:04.713 --> 00:25:08.472
<v ->It's a truncated felony murder, but it's still there.</v>

566
00:25:08.472 --> 00:25:11.670
<v ->You can absolutely still prosecute felony murder.</v>

567
00:25:11.670 --> 00:25:13.290
There was a recent decision,

568
00:25:13.290 --> 00:25:15.810
Commonwealth versus Darrell Fisher, exactly that.

569
00:25:15.810 --> 00:25:18.780
So, Mr. Fisher is one of a handful,

570
00:25:18.780 --> 00:25:20.693
perhaps five or six folks,

571
00:25:20.693 --> 00:25:25.693
that have been convicted of felony murder only since 2017

572
00:25:26.250 --> 00:25:27.480
that I've been able to find.

573
00:25:27.480 --> 00:25:32.480
What I found, Your Honor, was a ton of manslaughter pleas.

574
00:25:32.790 --> 00:25:35.130
So, it's very complicated.

575
00:25:35.130 --> 00:25:37.290
What happens after Brown?

576
00:25:37.290 --> 00:25:39.984
Would prosecutors decide, in a felony murder context,

577
00:25:39.984 --> 00:25:43.932
where they have an unintended homicide, they have a felony-

578
00:25:43.932 --> 00:25:45.660
<v ->'Cause now, we're really dealing</v>

579
00:25:45.660 --> 00:25:48.090
with third-prong malice versus involuntary manslaughter?

580
00:25:48.090 --> 00:25:49.686
<v ->Exactly.</v>

581
00:25:49.686 --> 00:25:52.230
So that leads to the second part of my answer

582
00:25:52.230 --> 00:25:54.180
to Justice Wendtlandt's question, which is,

583
00:25:54.180 --> 00:25:57.960
continuing to prosecute felony murder with a, shall we say,

584
00:25:57.960 --> 00:26:01.530
expanded definition of third prong malice may result

585
00:26:01.530 --> 00:26:03.540
in the same disparities.

586
00:26:03.540 --> 00:26:05.507
<v ->What did you find with the five or so cases</v>

587
00:26:05.507 --> 00:26:07.833
as far as racial breakdowns?

588
00:26:09.827 --> 00:26:13.297
<v ->Racial data is very hard to come by in this state.</v>

589
00:26:13.297 --> 00:26:15.360
<v ->You found five convictions, or so?</v>

590
00:26:15.360 --> 00:26:16.680
<v ->Yeah, I found five convictions,</v>

591
00:26:16.680 --> 00:26:18.240
at least two of them,

592
00:26:18.240 --> 00:26:20.280
with regard to Mr. Fisher and his co-defendant,

593
00:26:20.280 --> 00:26:22.620
were of Black people.

594
00:26:22.620 --> 00:26:23.640
<v ->Right, but you're not suggesting</v>

595
00:26:23.640 --> 00:26:25.080
that's a sufficient pool to make any-

596
00:26:25.080 --> 00:26:26.640
<v ->I am absolutely not.</v>

597
00:26:26.640 --> 00:26:28.680
But I did wanna recognize, Your Honor,

598
00:26:28.680 --> 00:26:30.545
that this is, you know,

599
00:26:30.545 --> 00:26:32.130
this is part and parcel of attempting

600
00:26:32.130 --> 00:26:37.130
to get our arms around this systemic, racist problem.

601
00:26:37.140 --> 00:26:38.060
<v ->Can I ask...</v>

602
00:26:39.780 --> 00:26:44.370
The BU brief talks about the Binder and Yankah study,

603
00:26:44.370 --> 00:26:45.367
and there's a quote here.

604
00:26:45.367 --> 00:26:48.330
"The strikingly disparate patterns of felony murder,

605
00:26:48.330 --> 00:26:50.190
charging, and convictions suggest

606
00:26:50.190 --> 00:26:52.151
that felony murder is a crime prosecutors

607
00:26:52.151 --> 00:26:55.830
have seen little need to punish when committed by whites."

608
00:26:55.830 --> 00:26:57.440
That suggests there's some...

609
00:26:58.574 --> 00:27:01.920
By the way, are those statisticians or lawyers again?

610
00:27:01.920 --> 00:27:05.790
And is there a statistical underway to this?

611
00:27:05.790 --> 00:27:06.623
<v ->I don't believe-</v>

612
00:27:06.623 --> 00:27:09.181
<v ->If it is, it's not presented in this case, is it?</v>

613
00:27:09.181 --> 00:27:12.020
<v ->I don't believe that they are...</v>

614
00:27:12.981 --> 00:27:15.810
They're law professors, and perhaps...

615
00:27:15.810 --> 00:27:18.344
I don't think they're statisticians, Your Honor.

616
00:27:18.344 --> 00:27:19.890
What people have done,

617
00:27:19.890 --> 00:27:22.320
in terms to get their arms around this situation,

618
00:27:22.320 --> 00:27:24.930
is to go to the jurisdictions

619
00:27:24.930 --> 00:27:28.920
and take a look what has happened with felony murder,

620
00:27:28.920 --> 00:27:30.570
what is on the ground.

621
00:27:30.570 --> 00:27:32.490
So we're coming here to show you what's happened

622
00:27:32.490 --> 00:27:34.800
with felony murder is that, in all these states,

623
00:27:34.800 --> 00:27:36.180
including Massachusetts-

624
00:27:36.180 --> 00:27:39.223
<v ->But you just don't have an evidentiary record for this.</v>

625
00:27:39.223 --> 00:27:44.223
You're sort of, without any statistical expertise,

626
00:27:44.729 --> 00:27:46.473
putting this together.

627
00:27:48.930 --> 00:27:50.736
To make this kind of conclusion,

628
00:27:50.736 --> 00:27:54.901
don't we need an ample evidentiary record to support this,

629
00:27:54.901 --> 00:27:59.901
not your putting together these numbers by yourself?

630
00:28:00.060 --> 00:28:03.032
<v ->Well, Your Honor, the third motion for new trial judge,</v>

631
00:28:03.032 --> 00:28:06.630
Judge McCarthy volunteered herself for remand.

632
00:28:06.630 --> 00:28:10.260
So if, indeed, this court is interested in this issue,

633
00:28:10.260 --> 00:28:13.181
but it just wants more data, wants statisticians,

634
00:28:13.181 --> 00:28:17.807
remand it to Judge McCarthy, and we will provide that.

635
00:28:17.807 --> 00:28:19.443
<v ->Can I ask you a question?</v>

636
00:28:20.370 --> 00:28:24.696
Does your 33E argument rely on this statistical data?

637
00:28:24.696 --> 00:28:26.299
'Cause you started talking

638
00:28:26.299 --> 00:28:30.480
about all the reasons why it's a fairness argument,

639
00:28:30.480 --> 00:28:31.950
but then you also said

640
00:28:31.950 --> 00:28:36.360
but you're rolling in the racial disparities into that.

641
00:28:36.360 --> 00:28:37.313
<v Claudia>That's right.</v>

642
00:28:38.700 --> 00:28:39.900
<v ->Is that what we have to find</v>

643
00:28:39.900 --> 00:28:43.757
in order to provide relief under 33E?

644
00:28:43.757 --> 00:28:48.757
<v ->No, the culpability versus sentence argument,</v>

645
00:28:50.430 --> 00:28:53.820
if this court has a problem with the pulling

646
00:28:53.820 --> 00:28:57.090
in of that racial disparity data, then it stands alone.

647
00:28:57.090 --> 00:28:57.923
Because the culpability-

648
00:28:57.923 --> 00:29:00.213
<v ->You'd be in the same position as Mr. Brown.</v>

649
00:29:01.050 --> 00:29:01.883
<v ->I would be.</v>

650
00:29:01.883 --> 00:29:05.040
And Mr. Brown got 33E relief, and that is what I'm asking.

651
00:29:05.040 --> 00:29:07.080
<v ->Right, that's what I meant.</v>

652
00:29:07.080 --> 00:29:08.730
<v ->Yeah, that's what I'm asking for.</v>

653
00:29:08.730 --> 00:29:13.350
I'm asking for 33 relief with the racial disparity data

654
00:29:13.350 --> 00:29:15.120
and without it due to the fact

655
00:29:15.120 --> 00:29:18.380
that the culpability versus the death

656
00:29:18.380 --> 00:29:21.540
by incarceration sentence here is not fair.

657
00:29:21.540 --> 00:29:24.570
<v ->Yeah, no, we understand the argument.</v>

658
00:29:24.570 --> 00:29:26.460
It just isn't clear to us,

659
00:29:26.460 --> 00:29:30.030
I think, that you've got the data to support that.

660
00:29:30.030 --> 00:29:31.380
There's numbers here,

661
00:29:31.380 --> 00:29:35.247
but they're not put together in a way

662
00:29:35.247 --> 00:29:37.653
that supports the argument.

663
00:29:40.650 --> 00:29:42.283
That's all.

664
00:29:42.283 --> 00:29:43.860
It's an interesting argument,

665
00:29:43.860 --> 00:29:46.582
but we just don't have enough here to-

666
00:29:46.582 --> 00:29:48.840
<v ->Then, Your Honor, I would ask for a remand.</v>

667
00:29:48.840 --> 00:29:50.397
I have a team of folks-

668
00:29:50.397 --> 00:29:51.580
<v ->Yes, but before you do that,</v>

669
00:29:51.580 --> 00:29:54.150
can you go through a couple of your other legal issues?

670
00:29:54.150 --> 00:29:56.250
'Cause you've got nine other legal issues

671
00:29:56.250 --> 00:29:57.360
in this case.

672
00:29:57.360 --> 00:29:59.520
And could you remind me, in Brown,

673
00:29:59.520 --> 00:30:00.450
And again, I wasn't here,

674
00:30:00.450 --> 00:30:02.130
and I just don't remember the facts of Brown,

675
00:30:02.130 --> 00:30:05.541
was Brown one a getaway driver type of case,

676
00:30:05.541 --> 00:30:10.380
or was Brown in the room, like-

677
00:30:10.380 --> 00:30:12.019
<v Justice Gaziano>He supplied hoodies and guns.</v>

678
00:30:12.019 --> 00:30:13.650
<v Claudia>He supplied hoodies and guns.</v>

679
00:30:13.650 --> 00:30:14.790
<v ->Okay, all right.</v>

680
00:30:14.790 --> 00:30:19.790
So, any of your other legal issues you wanna pinpoint?

681
00:30:20.190 --> 00:30:22.110
'Cause you've got nine of them,

682
00:30:22.110 --> 00:30:26.177
but particularly the trial judges sort of overquestioning.

683
00:30:26.177 --> 00:30:29.940
<v ->Yes, Your Honor, this was a very unusual trial.</v>

684
00:30:29.940 --> 00:30:31.980
When one reads the transcript,

685
00:30:31.980 --> 00:30:35.370
the judge asked 149 questions of the witnesses.

686
00:30:35.370 --> 00:30:39.517
The judge personalized the instructions on joint venture.

687
00:30:39.517 --> 00:30:42.967
"My crazy, dumb brother-in-law.

688
00:30:42.967 --> 00:30:46.470
I would want my wife to have posted bail."

689
00:30:46.470 --> 00:30:51.180
There was an overarching unfairness here,

690
00:30:51.180 --> 00:30:53.589
where the judge used this.

691
00:30:53.589 --> 00:30:55.740
<v ->This is beyond folksy?</v>

692
00:30:55.740 --> 00:30:58.230
<v ->This is way beyond folksy.</v>

693
00:30:58.230 --> 00:31:00.903
This is aligning with the prosecution.

694
00:31:02.430 --> 00:31:04.437
The worst thing that this trial judge did-

695
00:31:04.437 --> 00:31:06.120
<v ->Was it clarification?</v>

696
00:31:06.120 --> 00:31:08.550
I read through a lot of his questions.

697
00:31:08.550 --> 00:31:11.850
He does ask more questions than usual,

698
00:31:11.850 --> 00:31:13.380
but he seems to be just trying

699
00:31:13.380 --> 00:31:15.660
to clarify a couple of points.

700
00:31:15.660 --> 00:31:18.447
Where does he go beyond clarification?

701
00:31:18.447 --> 00:31:23.070
<v ->He went beyond clarification in a jury instruction</v>

702
00:31:23.070 --> 00:31:25.050
that commented on-

703
00:31:25.050 --> 00:31:27.188
<v ->About his wife and the hypotheticals?</v>

704
00:31:27.188 --> 00:31:28.198
<v Claudia>Right.</v>

705
00:31:28.198 --> 00:31:33.198
<v ->Too folksy, but I don't know if there are really any,</v>

706
00:31:33.750 --> 00:31:36.150
it doesn't look like he's putting his fingers on the scales.

707
00:31:36.150 --> 00:31:39.360
It just looks like he's showing off a little bit.

708
00:31:39.360 --> 00:31:42.030
<v ->There was a comment that he made that,</v>

709
00:31:42.030 --> 00:31:43.260
in his jury instructions,

710
00:31:43.260 --> 00:31:48.063
that expressly equated himself as the victim of an assault.

711
00:31:48.900 --> 00:31:49.764
That was quite far-

712
00:31:49.764 --> 00:31:51.360
<v ->But in a way that it's not gonna be be-</v>

713
00:31:51.360 --> 00:31:53.351
<v ->'Cause we've had like transferred intent.</v>

714
00:31:53.351 --> 00:31:57.420
This is horrible SJC instruction on transferred intent.

715
00:31:57.420 --> 00:31:58.747
And some judges have said, you know,

716
00:31:58.747 --> 00:32:01.467
"If I shoot the clerk, and I shoot..." you know,

717
00:32:01.467 --> 00:32:05.700
and I'm sure you've heard or read that instruction before.

718
00:32:05.700 --> 00:32:06.533
Probably not a good idea.

719
00:32:06.533 --> 00:32:11.044
But have we ever said that that stuff is forbidden?

720
00:32:11.044 --> 00:32:13.260
<v ->No, Your honor, but this is-</v>

721
00:32:13.260 --> 00:32:17.340
<v ->I know, overbroad hypotheticals that relate</v>

722
00:32:17.340 --> 00:32:22.340
to the case aren't a good idea and in our error, right?

723
00:32:22.870 --> 00:32:24.414
It's more like that?

724
00:32:24.414 --> 00:32:29.414
<v ->The cases are that you're referring to are these cases</v>

725
00:32:29.720 --> 00:32:32.850
where there was one bad thing, and generally speaking,

726
00:32:32.850 --> 00:32:34.296
everything else was fine.

727
00:32:34.296 --> 00:32:36.060
That's not this case.

728
00:32:36.060 --> 00:32:39.990
This case is a constant litany, one after the other,

729
00:32:39.990 --> 00:32:44.723
of unfair things that were said by the trial judge.

730
00:32:46.380 --> 00:32:47.910
<v ->Jones is critical,</v>

731
00:32:47.910 --> 00:32:50.070
and you say there's something wrong

732
00:32:50.070 --> 00:32:53.523
with the way he gave the cooperating witness.

733
00:32:54.510 --> 00:32:57.210
What did he leave out, and why was that meaningful?

734
00:32:57.210 --> 00:33:00.090
<v ->So what he left out of the Champa instruction was</v>

735
00:33:00.090 --> 00:33:02.430
that the Commonwealth has no way of knowing

736
00:33:02.430 --> 00:33:04.380
that this witness is telling the truth?

737
00:33:04.380 --> 00:33:05.610
After Jones-

738
00:33:05.610 --> 00:33:06.935
<v ->Doesn't he...</v>

739
00:33:06.935 --> 00:33:09.330
He does say that.

740
00:33:09.330 --> 00:33:10.331
<v ->Particular care.</v>

741
00:33:10.331 --> 00:33:11.280
<v Justice Gaziano>Huh?</v>

742
00:33:11.280 --> 00:33:13.560
<v ->He gave the particular care part</v>

743
00:33:13.560 --> 00:33:14.790
of the Champa instruction,

744
00:33:14.790 --> 00:33:16.110
and my argument is that,

745
00:33:16.110 --> 00:33:18.570
in light of what he said

746
00:33:18.570 --> 00:33:21.747
with regard to the lifestyle instruction, which could be-

747
00:33:21.747 --> 00:33:23.160
<v ->Did the defendant ask for</v>

748
00:33:23.160 --> 00:33:24.780
that part of the Champa instruction?

749
00:33:24.780 --> 00:33:26.303
<v ->She did, she did.</v>

750
00:33:26.303 --> 00:33:29.490
<v ->There's no objection when he gives the instruction, right?</v>

751
00:33:29.490 --> 00:33:32.040
<v ->There was an objection to the Champa instruction</v>

752
00:33:32.040 --> 00:33:33.690
after the charge.

753
00:33:33.690 --> 00:33:36.387
She asked him to give the complete instruction,

754
00:33:36.387 --> 00:33:38.253
and he refused to do that.

755
00:33:39.180 --> 00:33:41.905
But that problem dovetailed

756
00:33:41.905 --> 00:33:45.090
with the lifestyle instruction,

757
00:33:45.090 --> 00:33:48.390
where he expressly told the jury that we're not here

758
00:33:48.390 --> 00:33:50.760
to judge someone's lifestyle,

759
00:33:50.760 --> 00:33:54.077
be it a witness or any other person.

760
00:33:54.077 --> 00:33:56.100
<v ->But he doesn't direct that at Jones,</v>

761
00:33:56.100 --> 00:33:58.050
and there's a lot of lifestyle problems here.

762
00:33:58.050 --> 00:34:01.950
'Cause everyone's got a lifestyle that's problematic,

763
00:34:01.950 --> 00:34:03.900
who's involved, right?

764
00:34:03.900 --> 00:34:05.610
<v ->The problem here is</v>

765
00:34:05.610 --> 00:34:09.150
that the whole defense was the lifestyle of Jones.

766
00:34:09.150 --> 00:34:13.470
Lifestyle was the code word for the defense,

767
00:34:13.470 --> 00:34:14.880
and that was the problem

768
00:34:14.880 --> 00:34:18.420
with asking the jury not to judge lifestyle.

769
00:34:18.420 --> 00:34:20.223
That was the defense.

770
00:34:22.332 --> 00:34:23.850
<v ->[Justice Wendlandt] I thought the defense was</v>

771
00:34:23.850 --> 00:34:25.923
that he wasn't the third party?

772
00:34:27.132 --> 00:34:31.110
<v ->Based on the fact that Jones could not be believed,</v>

773
00:34:31.110 --> 00:34:35.610
because she was the only person who would testify

774
00:34:35.610 --> 00:34:39.420
that he came into the apartment and did what he did.

775
00:34:39.420 --> 00:34:42.105
And the reason the jury shouldn't believe her was

776
00:34:42.105 --> 00:34:45.060
because she was a gun-toting drug dealer

777
00:34:45.060 --> 00:34:46.427
who did the shooting herself.

778
00:34:46.427 --> 00:34:51.420
So the whole lifestyle shorthand for the defense was,

779
00:34:51.420 --> 00:34:53.943
don't believe Jones as to what she said.

780
00:34:56.700 --> 00:34:58.740
<v ->Okay.</v>
<v ->Thank you.</v>

781
00:34:58.740 --> 00:34:59.573
Thank you, Your Honor.

782
00:34:59.573 --> 00:35:03.990
I would ask for 33E relief for Mr. Shepherd or a new trial.

783
00:35:03.990 --> 00:35:05.340
I appreciate your time.

784
00:35:05.340 --> 00:35:06.173
Thank you.

785
00:35:09.090 --> 00:35:11.340
<v ->Okay, Attorney Jansen.</v>

786
00:35:11.340 --> 00:35:12.173
Good morning.

787
00:35:12.173 --> 00:35:13.006
May it please the court.

788
00:35:13.006 --> 00:35:15.210
Catherine Jansen on behalf of the Commonwealth.

789
00:35:15.210 --> 00:35:17.823
I think I'll start with the Equal Protection issue.

790
00:35:19.080 --> 00:35:21.330
Here, I think it's clear, under the law,

791
00:35:21.330 --> 00:35:22.680
if we're gonna apply Equal Protection,

792
00:35:22.680 --> 00:35:24.690
disparate impact alone is not enough.

793
00:35:24.690 --> 00:35:29.070
And even looking at the statistics provided by my sister,

794
00:35:29.070 --> 00:35:31.290
which I'm not sure it's enough of a record,

795
00:35:31.290 --> 00:35:33.708
as this court had noted, to show that-

796
00:35:33.708 --> 00:35:36.707
<v ->It would've been nice if you actually dug in</v>

797
00:35:36.707 --> 00:35:38.400
and pointed that out, right?

798
00:35:38.400 --> 00:35:42.193
You kind of just gloss over all the statistics

799
00:35:42.193 --> 00:35:46.149
and leave us just, you know, unwinding them, right?

800
00:35:46.149 --> 00:35:48.783
You kind of concede on statistics,

801
00:35:48.783 --> 00:35:52.290
even though there's no statistical evidence in here.

802
00:35:52.290 --> 00:35:53.730
<v ->Well, I think it was important</v>

803
00:35:53.730 --> 00:35:57.655
to acknowledge what the statistics she did show

804
00:35:57.655 --> 00:36:02.493
that it does show that there tend to be more-

805
00:36:04.200 --> 00:36:05.400
<v ->We're not used to, I think,</v>

806
00:36:05.400 --> 00:36:09.030
having no expert statistical analysis,

807
00:36:09.030 --> 00:36:12.210
and then the Commonwealth saying, "Hmm, too bad.

808
00:36:12.210 --> 00:36:13.980
Let's focus on something else."

809
00:36:13.980 --> 00:36:17.163
It would've been helpful if you responded

810
00:36:18.781 --> 00:36:20.250
to some of these questions.

811
00:36:20.250 --> 00:36:21.441
But anyways, it's water under the bridge.

812
00:36:21.441 --> 00:36:22.307
<v ->Understood, Your Honor.</v>

813
00:36:22.307 --> 00:36:23.970
But as this court has noted,

814
00:36:23.970 --> 00:36:26.340
and I think even in the wake of Long showing

815
00:36:26.340 --> 00:36:28.785
where there were troubling statistics there,

816
00:36:28.785 --> 00:36:32.340
you need to show that you...

817
00:36:32.340 --> 00:36:33.331
I think this more has to be presented

818
00:36:33.331 --> 00:36:35.610
in a selective prosecution manner,

819
00:36:35.610 --> 00:36:37.560
that there are simply situated white defendants

820
00:36:37.560 --> 00:36:40.740
who are not being prosecuted for felony murder.

821
00:36:40.740 --> 00:36:43.800
And I think it's not as hard as my sister says

822
00:36:43.800 --> 00:36:45.180
that it would be to show the statistics

823
00:36:45.180 --> 00:36:46.589
that there were,

824
00:36:46.589 --> 00:36:49.206
a murder occurred where there was a felony also

825
00:36:49.206 --> 00:36:51.570
and the Commonwealth just chose not to go forward

826
00:36:51.570 --> 00:36:54.150
on the felony murder, because they were white.

827
00:36:54.150 --> 00:36:56.580
I don't think the showing has been made here that-

828
00:36:56.580 --> 00:36:57.450
<v ->Is that the showing?</v>

829
00:36:57.450 --> 00:36:59.640
'Cause I thought the challenge was to our decision

830
00:36:59.640 --> 00:37:02.425
as to whether or not to make Brown retroactive.

831
00:37:02.425 --> 00:37:05.148
Do we have to go down to the prosecution's decision

832
00:37:05.148 --> 00:37:10.148
on with whom to charge not felony murder?

833
00:37:10.458 --> 00:37:13.080
<v ->Well, I think they're a little bit intertwined,</v>

834
00:37:13.080 --> 00:37:13.920
Your Honor,

835
00:37:13.920 --> 00:37:16.290
<v ->I'm wondering, I mean, this is to Justice Kafker's point,</v>

836
00:37:16.290 --> 00:37:20.850
it would've been great to have some person

837
00:37:20.850 --> 00:37:22.260
who was a statistician

838
00:37:22.260 --> 00:37:24.360
who could tell us who the control group was.

839
00:37:24.360 --> 00:37:27.840
Because the challenge decision is this court's decision

840
00:37:27.840 --> 00:37:30.600
in 2007 for all the reasons set forth

841
00:37:30.600 --> 00:37:34.710
in that decision not to apply Brown retroactively.

842
00:37:34.710 --> 00:37:37.987
And what everybody seems to be talking about

843
00:37:37.987 --> 00:37:42.527
in the briefs is some charging decision on felony murder.

844
00:37:42.527 --> 00:37:45.360
Those are two different things.

845
00:37:45.360 --> 00:37:48.120
They are not unrelated.

846
00:37:48.120 --> 00:37:52.950
But talking about the latter doesn't help with the former.

847
00:37:52.950 --> 00:37:55.173
It doesn't solve that statistical question.

848
00:37:56.201 --> 00:37:57.783
<v ->Understood, Your Honor.</v>

849
00:37:59.520 --> 00:38:03.268
<v ->So who's the proper control group to determine whether</v>

850
00:38:03.268 --> 00:38:08.250
deciding Brown, applying Brown prospectively,

851
00:38:08.250 --> 00:38:10.693
even if we adopt a disproportionate,

852
00:38:10.693 --> 00:38:14.433
disparate impact analysis?

853
00:38:15.510 --> 00:38:18.843
What's the disparity as against what?

854
00:38:22.892 --> 00:38:24.192
I think nobody knows.

855
00:38:24.192 --> 00:38:26.806
At least, the briefing hasn't told me.

856
00:38:26.806 --> 00:38:29.550
<v ->I think that might be a fair characterization, Your Honor.</v>

857
00:38:29.550 --> 00:38:33.600
<v ->But your argument is the tripartite analysis controls-</v>

858
00:38:33.600 --> 00:38:34.433
<v ->Correct.</v>

859
00:38:34.433 --> 00:38:35.400
<v ->No matter ow how we apply it</v>

860
00:38:35.400 --> 00:38:37.200
or what whatever the governmental decision is,

861
00:38:37.200 --> 00:38:38.970
as Justice Wendlandt characterized it,

862
00:38:38.970 --> 00:38:41.433
which is my view as well.

863
00:38:44.580 --> 00:38:47.370
Unless we change the analysis

864
00:38:47.370 --> 00:38:50.970
to horrific disparities.
<v ->Horrific disparities.</v>

865
00:38:50.970 --> 00:38:53.640
And I think, here, when we're talking about a floodgate,

866
00:38:53.640 --> 00:38:56.970
if we're changing our Equal Protection analysis based

867
00:38:56.970 --> 00:38:59.313
on whatever the statistics are,

868
00:39:00.510 --> 00:39:02.580
the floodgate is that that would apply not just

869
00:39:02.580 --> 00:39:03.870
to the small group of people,

870
00:39:03.870 --> 00:39:08.870
but any case or any change in a statute

871
00:39:09.000 --> 00:39:11.643
or a new common law rule by this court.

872
00:39:13.110 --> 00:39:16.713
It would open the floodgate to a lesser standard, I think.

873
00:39:18.199 --> 00:39:20.460
And so, that's what we're talking about.

874
00:39:20.460 --> 00:39:23.490
I think you should not change the jurisprudence,

875
00:39:23.490 --> 00:39:24.903
as my sister asked you to.

876
00:39:28.860 --> 00:39:32.980
<v ->Can you address the trial judge's</v>

877
00:39:34.050 --> 00:39:38.310
more-than-folksy insertion of himself into the trial?

878
00:39:38.310 --> 00:39:41.700
<v ->Your Honor, I think it was probably very clear</v>

879
00:39:41.700 --> 00:39:44.370
to the jury based on, this is the judge's temperament.

880
00:39:44.370 --> 00:39:48.900
He's very courteous and talkative, for sure.

881
00:39:48.900 --> 00:39:51.210
I don't think, when you look at it...

882
00:39:51.210 --> 00:39:53.940
When you read the whole nine-day transcript,

883
00:39:53.940 --> 00:39:55.800
I think when you look at it,

884
00:39:55.800 --> 00:39:58.410
it does not, in my opinion, jump out at you.

885
00:39:58.410 --> 00:40:00.030
I think it was clear that this was his temperament,

886
00:40:00.030 --> 00:40:01.680
that he was courteous to everybody.

887
00:40:01.680 --> 00:40:03.090
I think a lot of the questions,

888
00:40:03.090 --> 00:40:07.500
when you look at the 140, or however many instances,

889
00:40:07.500 --> 00:40:09.420
where the judge apparently inserted himself,

890
00:40:09.420 --> 00:40:11.430
a lot of times he's clarifying evidence

891
00:40:11.430 --> 00:40:14.405
or he's sustaining objections.

892
00:40:14.405 --> 00:40:18.600
<v ->He does dig in a couple of times, you know,</v>

893
00:40:18.600 --> 00:40:20.873
five or six follow up questions, doesn't he?

894
00:40:20.873 --> 00:40:25.873
There are a couple of times, where he's not just sort of...

895
00:40:26.010 --> 00:40:27.240
I didn't understand that.

896
00:40:27.240 --> 00:40:28.710
What do you mean?

897
00:40:28.710 --> 00:40:30.330
He takes over a little bit.

898
00:40:30.330 --> 00:40:33.180
It's kind of an interesting dynamic some of the time, right?

899
00:40:33.180 --> 00:40:36.311
<v ->Your Honor, I think, perhaps you might be referring to,</v>

900
00:40:36.311 --> 00:40:38.970
when Jones was testifying,

901
00:40:38.970 --> 00:40:39.870
she said it didn't seem

902
00:40:39.870 --> 00:40:40.980
like the defendant was paying attention

903
00:40:40.980 --> 00:40:42.570
to their conversation in the car.

904
00:40:42.570 --> 00:40:45.720
And there was an objection to that, because she, obviously,

905
00:40:45.720 --> 00:40:47.910
can't testify about the defendant's mental state.

906
00:40:47.910 --> 00:40:50.550
And then, the judge clarified what was going on

907
00:40:50.550 --> 00:40:51.510
in that conversation.

908
00:40:51.510 --> 00:40:52.610
I think, when you're looking at whether

909
00:40:52.610 --> 00:40:55.050
or not it's improper for judicial questioning,

910
00:40:55.050 --> 00:40:57.030
you need to not necessarily look at the answer,

911
00:40:57.030 --> 00:41:00.510
'cause obviously, the case law is clear that,

912
00:41:00.510 --> 00:41:02.850
even if there is answers favorable to the Commonwealth case,

913
00:41:02.850 --> 00:41:04.560
that's not enough to show partisans nature.

914
00:41:04.560 --> 00:41:05.520
You have to-

915
00:41:05.520 --> 00:41:06.554
<v ->I can't remember.</v>

916
00:41:06.554 --> 00:41:09.780
I thought he was worse with one of the, maybe,

917
00:41:09.780 --> 00:41:11.069
one of the police officers.

918
00:41:11.069 --> 00:41:16.069
There's like a five or six follow-up questions in a row,

919
00:41:17.674 --> 00:41:18.610
on factual issues.

920
00:41:18.610 --> 00:41:20.910
<v ->When one of the officers was looking</v>

921
00:41:20.910 --> 00:41:24.120
to serve another witness who had been with the group

922
00:41:24.120 --> 00:41:26.412
and passed out in the car, and they couldn't serve her.

923
00:41:26.412 --> 00:41:28.504
Maybe that's what you're talking about?

924
00:41:28.504 --> 00:41:30.456
<v ->Yeah, he's trying to show, basically,</v>

925
00:41:30.456 --> 00:41:34.203
that they couldn't have found the witness, right?

926
00:41:36.180 --> 00:41:37.013
They're looking for...

927
00:41:37.013 --> 00:41:37.846
I can't remember this.

928
00:41:37.846 --> 00:41:39.570
They're looking for somebody-
<v Attorney Jansen>McMillan.</v>

929
00:41:39.570 --> 00:41:40.410
<v ->McMillan, yeah.</v>

930
00:41:40.410 --> 00:41:42.690
And that was odd, wasn't it?

931
00:41:42.690 --> 00:41:44.970
I mean, it's just a lot of questions on that.

932
00:41:44.970 --> 00:41:46.153
<v ->I don't believe so, Your Honor.</v>

933
00:41:46.153 --> 00:41:50.010
I think it might've been two or three questions.

934
00:41:50.010 --> 00:41:52.019
I don't have the...

935
00:41:52.019 --> 00:41:52.890
Excuse me.

936
00:41:52.890 --> 00:41:54.090
It's four questions,

937
00:41:54.090 --> 00:41:58.170
and I don't think it's a fair inference,

938
00:41:58.170 --> 00:41:59.100
from the way he was questioning,

939
00:41:59.100 --> 00:42:02.910
that he's trying to show that they exhausted all remedies.

940
00:42:02.910 --> 00:42:03.780
<v ->What is he doing there?</v>

941
00:42:03.780 --> 00:42:04.613
I'm just trying to understand.

942
00:42:04.613 --> 00:42:07.190
What is your understanding of what he's doing there?

943
00:42:08.190 --> 00:42:10.440
<v ->I think he's just trying to clarify what he did</v>

944
00:42:10.440 --> 00:42:14.550
or didn't do, I mean, to the extent that, you know...

945
00:42:14.550 --> 00:42:15.840
Was it totally necessary?

946
00:42:15.840 --> 00:42:16.869
Probably not.

947
00:42:16.869 --> 00:42:21.360
But judges are entitled to develop and clarify the evidence,

948
00:42:21.360 --> 00:42:24.000
and that's part of developing the evidence,

949
00:42:24.000 --> 00:42:28.200
and any claim of prejudice that could have resulted

950
00:42:28.200 --> 00:42:30.990
from that, the defense attorney, on cross examination,

951
00:42:30.990 --> 00:42:33.000
was able to elicit, aptly,

952
00:42:33.000 --> 00:42:37.200
that he had not exhausted all remedies to serve that person.

953
00:42:37.200 --> 00:42:40.413
And to the extent that this court finds the judge,

954
00:42:42.210 --> 00:42:45.720
you know, overstepped his bounds in, potentially,

955
00:42:45.720 --> 00:42:46.553
the number of questioning,

956
00:42:46.553 --> 00:42:48.870
which I would suggest did not occur here.

957
00:42:48.870 --> 00:42:50.640
This was a very experienced defense attorney,

958
00:42:50.640 --> 00:42:52.140
who if she had no problem speaking up,

959
00:42:52.140 --> 00:42:54.102
if she had found something objectional

960
00:42:54.102 --> 00:42:54.935
in terms of the number

961
00:42:54.935 --> 00:42:56.910
or character of the question, she would've objected.

962
00:42:56.910 --> 00:42:59.460
But here, this jury was very discerning,

963
00:42:59.460 --> 00:43:02.370
so it wasn't overly born by the judge

964
00:43:02.370 --> 00:43:04.920
in anything he said or did in this case.

965
00:43:04.920 --> 00:43:06.750
<v ->Can I ask you about the Champa instruction?</v>

966
00:43:06.750 --> 00:43:07.583
<v ->Sure.</v>

967
00:43:07.583 --> 00:43:11.139
<v ->'Cause the judge doesn't give the standard line</v>

968
00:43:11.139 --> 00:43:13.860
that the prosecutors can't know the truth,

969
00:43:13.860 --> 00:43:18.530
which is important because the examination is,

970
00:43:18.530 --> 00:43:22.260
they're gonna be charged with a crime if they lie.

971
00:43:22.260 --> 00:43:23.970
But then, you have to tell the jury.

972
00:43:23.970 --> 00:43:25.260
but they don't know what the truth is.

973
00:43:25.260 --> 00:43:29.728
So, the charging decision is colored by that information,

974
00:43:29.728 --> 00:43:33.090
and that's not included in the instruction.

975
00:43:33.090 --> 00:43:33.960
Isn't that error?

976
00:43:33.960 --> 00:43:35.712
<v ->So, I think what happened here-</v>

977
00:43:35.712 --> 00:43:39.633
<v ->Was the Champa instruction erroneous?</v>

978
00:43:42.149 --> 00:43:45.240
<v ->I think it was, but I don't think it's preserved error,</v>

979
00:43:45.240 --> 00:43:47.940
and I wanna state why.

980
00:43:47.940 --> 00:43:48.773
Here, obviously,

981
00:43:48.773 --> 00:43:51.090
the prosecutor did not elicit that she had

982
00:43:51.090 --> 00:43:51.923
to tell the truth.

983
00:43:51.923 --> 00:43:54.840
That came out unanticipated on cross-examination.

984
00:43:54.840 --> 00:43:56.010
So it was before jury.

985
00:43:56.010 --> 00:43:57.270
<v ->But the judge's responsibility,</v>

986
00:43:57.270 --> 00:44:00.274
when you hear that evidence, is to give that instruction to-

987
00:44:00.274 --> 00:44:01.107
<v ->Correct.</v>

988
00:44:01.107 --> 00:44:03.780
And then, at the end of the instructions,

989
00:44:03.780 --> 00:44:04.710
the defense attorney asked

990
00:44:04.710 --> 00:44:06.636
for the full Champa instruction.

991
00:44:06.636 --> 00:44:07.980
And I would suggest that it's not preserved,

992
00:44:07.980 --> 00:44:10.710
because she has to specific...

993
00:44:10.710 --> 00:44:13.199
I think it's a duty as a litigant

994
00:44:13.199 --> 00:44:15.960
to bring a specific attention to the trial judge

995
00:44:15.960 --> 00:44:19.290
about what the issue is with more specificity.

996
00:44:19.290 --> 00:44:21.330
<v ->When the facts get raised,</v>

997
00:44:21.330 --> 00:44:24.871
she asks for the full Champa instruction, right?

998
00:44:24.871 --> 00:44:27.300
<v ->Right, and I think it would be helpful</v>

999
00:44:27.300 --> 00:44:28.474
to highlight with specific-

1000
00:44:28.474 --> 00:44:31.997
<v ->And then, did she object to the instruction as given?</v>

1001
00:44:31.997 --> 00:44:34.513
<v ->She objected through the instruction</v>

1002
00:44:34.513 --> 00:44:36.056
as given after...

1003
00:44:36.056 --> 00:44:38.716
Her objection came after the final instructions.

1004
00:44:38.716 --> 00:44:39.993
<v ->Okay, then how is it not preserved?</v>

1005
00:44:39.993 --> 00:44:44.220
<v ->Well, I think because she didn't state with specificity,</v>

1006
00:44:44.220 --> 00:44:46.380
excuse me, I'm tongue tied,

1007
00:44:46.380 --> 00:44:51.380
about what specifically why that instruction was error.

1008
00:44:51.420 --> 00:44:54.840
But even if this was error,

1009
00:44:54.840 --> 00:44:55.980
and it was preserved-
<v ->You have a certain view</v>

1010
00:44:55.980 --> 00:44:57.789
of preserving instruction.

1011
00:44:57.789 --> 00:44:59.160
<v ->Well, I do think the case law is clear.</v>

1012
00:44:59.160 --> 00:45:00.267
You have to kind of state,

1013
00:45:00.267 --> 00:45:01.950
not just give a general objection.

1014
00:45:01.950 --> 00:45:04.440
I think that's more on the general side,

1015
00:45:04.440 --> 00:45:07.500
and I think that's a fair statement about how this happened.

1016
00:45:07.500 --> 00:45:11.280
But even if this was preserved, it's not reversible error,

1017
00:45:11.280 --> 00:45:13.434
because there was no vouching that occurred

1018
00:45:13.434 --> 00:45:14.520
with the prosecutor in her closing argument.

1019
00:45:14.520 --> 00:45:16.530
She did not mention the cooperation agreement,

1020
00:45:16.530 --> 00:45:18.150
and the fact that they should believe her

1021
00:45:18.150 --> 00:45:19.530
because of the cooperation agreement,

1022
00:45:19.530 --> 00:45:21.720
or that she had special knowledge independent

1023
00:45:21.720 --> 00:45:23.280
of what was evidenced before the jury

1024
00:45:23.280 --> 00:45:24.840
about why Jones was believable.

1025
00:45:24.840 --> 00:45:28.290
She absolutely properly argued that Jones was credible based

1026
00:45:28.290 --> 00:45:29.970
on her testimony alone and her demeanor,

1027
00:45:29.970 --> 00:45:32.820
but also based on the corroborating evidence presented

1028
00:45:32.820 --> 00:45:35.220
that independent of her testimony,

1029
00:45:35.220 --> 00:45:37.157
which was before the jury.

1030
00:45:37.157 --> 00:45:38.728
<v ->And we have cases on the lack</v>

1031
00:45:38.728 --> 00:45:42.510
of a proper Champa instruction, correct?

1032
00:45:42.510 --> 00:45:43.489
<v ->Correct.</v>

1033
00:45:43.489 --> 00:45:45.570
<v ->As to whether or not it's reversible error?</v>

1034
00:45:45.570 --> 00:45:46.470
<v ->Correct.</v>

1035
00:45:46.470 --> 00:45:48.360
<v ->What corroborated Jones?</v>

1036
00:45:48.360 --> 00:45:51.840
Remind me, what are the major corroborating factors

1037
00:45:51.840 --> 00:45:52.673
for Jones?

1038
00:45:52.673 --> 00:45:55.800
<v ->I would suggest the China Bowl video was very important</v>

1039
00:45:55.800 --> 00:45:56.730
to corroborate Jones,

1040
00:45:56.730 --> 00:46:00.030
that all three of them were together.

1041
00:46:00.030 --> 00:46:03.390
It was important because the China Bowl video,

1042
00:46:03.390 --> 00:46:04.410
when viewed in conjunction

1043
00:46:04.410 --> 00:46:06.247
with the 8 Carlton Street video,

1044
00:46:06.247 --> 00:46:08.370
the China Bowl video is very clear

1045
00:46:08.370 --> 00:46:12.510
and the Carlton Street video, I would say, is not as clear,

1046
00:46:12.510 --> 00:46:13.380
but when you view them together,

1047
00:46:13.380 --> 00:46:15.240
you can see that the two figures in there,

1048
00:46:15.240 --> 00:46:17.010
I think it's more than a fair inference

1049
00:46:17.010 --> 00:46:20.880
that it is Tyler and the defendant.

1050
00:46:20.880 --> 00:46:21.720
You see the defendant

1051
00:46:21.720 --> 00:46:24.572
in the Carlton Street video manipulating his pants.

1052
00:46:24.572 --> 00:46:26.640
And it was suggested in closing,

1053
00:46:26.640 --> 00:46:27.540
and it was not objected to,

1054
00:46:27.540 --> 00:46:30.372
that he could have been putting a firearm

1055
00:46:30.372 --> 00:46:32.575
or securing a firearm in his waistband.

1056
00:46:32.575 --> 00:46:34.668
You can see that he's not on his cellphone

1057
00:46:34.668 --> 00:46:36.690
during that operative time,

1058
00:46:36.690 --> 00:46:39.340
and the Carlton Street video's about two minutes off.

1059
00:46:40.505 --> 00:46:42.802
So that's consistent with his phone records.

1060
00:46:42.802 --> 00:46:47.790
The fact that Tyler is seen on his phone

1061
00:46:47.790 --> 00:46:48.870
in the Carlton Street video

1062
00:46:48.870 --> 00:46:51.390
at the operative time consistent with Jones' testimony

1063
00:46:51.390 --> 00:46:52.848
and their phone records.

1064
00:46:52.848 --> 00:46:55.143
You see them turning the corner.

1065
00:46:56.460 --> 00:46:59.670
Jones said when the struggle began

1066
00:46:59.670 --> 00:47:01.650
and before she went to the bathroom,

1067
00:47:01.650 --> 00:47:04.368
the defendant was standing in the doorway.

1068
00:47:04.368 --> 00:47:07.683
And based on the trajectory,

1069
00:47:08.880 --> 00:47:12.960
he would've been standing where the gunman was.

1070
00:47:12.960 --> 00:47:16.497
And so, I think the fair inference from the trajectory

1071
00:47:18.441 --> 00:47:20.310
and the Cardinal Street videos

1072
00:47:20.310 --> 00:47:21.900
that the defendant was the shooter and standing there based

1073
00:47:21.900 --> 00:47:23.670
on the timing of her testimony.

1074
00:47:23.670 --> 00:47:27.523
As far as corroborating about how the scuffle occurred,

1075
00:47:27.523 --> 00:47:31.958
she said that the victim bit Tyler's finger,

1076
00:47:31.958 --> 00:47:34.950
and then that DNA from his blood hand was

1077
00:47:34.950 --> 00:47:37.983
on the passenger side door of her car.

1078
00:47:39.390 --> 00:47:42.450
And obviously, the CLSI was helpful,

1079
00:47:42.450 --> 00:47:44.040
but it was not the linchpin of the case

1080
00:47:44.040 --> 00:47:45.870
to put the defendant in the vicinity.

1081
00:47:45.870 --> 00:47:47.883
<v ->On the ineffective assistance claim,</v>

1082
00:47:49.980 --> 00:47:52.440
the second degree felony murder instruction

1083
00:47:52.440 --> 00:47:54.540
was not asked for.

1084
00:47:54.540 --> 00:47:56.520
And there was discussion of it,

1085
00:47:56.520 --> 00:47:59.670
and the co-defendant received that from Judge Lang, correct?

1086
00:47:59.670 --> 00:48:00.770
<v Catherine>Correct.</v>

1087
00:48:01.740 --> 00:48:04.140
<v ->Why isn't that ineffective where the jury came back</v>

1088
00:48:04.140 --> 00:48:05.490
on unarmed robbery

1089
00:48:05.490 --> 00:48:08.370
and rejected the other predicate felonies?

1090
00:48:08.370 --> 00:48:09.630
<v ->Well, I think it's not ineffective,</v>

1091
00:48:09.630 --> 00:48:11.190
because one on this record,

1092
00:48:11.190 --> 00:48:13.590
where there's no affidavit from the defense attorney,

1093
00:48:13.590 --> 00:48:14.850
the defendant hasn't shown it's anything

1094
00:48:14.850 --> 00:48:15.930
but a tactical decision.

1095
00:48:15.930 --> 00:48:18.000
And I think it's fair from the record

1096
00:48:18.000 --> 00:48:19.350
that this was a tactical decision,

1097
00:48:19.350 --> 00:48:22.620
where she acknowledged that, in the Tyler case,

1098
00:48:22.620 --> 00:48:25.896
there were completely different theories of the case.

1099
00:48:25.896 --> 00:48:29.580
Tyler never said that he had a firearm

1100
00:48:29.580 --> 00:48:30.930
or knew about a firearm.

1101
00:48:30.930 --> 00:48:32.515
There was always the defendant.

1102
00:48:32.515 --> 00:48:36.510
<v ->We're to infer there was an all-or-nothing defense.</v>

1103
00:48:36.510 --> 00:48:37.590
<v ->I don't think you have to infer it.</v>

1104
00:48:37.590 --> 00:48:40.050
I think you can see it based on her closing argument.

1105
00:48:40.050 --> 00:48:42.600
I think if she had asked for that instruction,

1106
00:48:42.600 --> 00:48:44.940
her closing argument might've been very different.

1107
00:48:44.940 --> 00:48:46.800
Her closing argument and her theory of defense was,

1108
00:48:46.800 --> 00:48:47.940
you can't believe Jones.

1109
00:48:47.940 --> 00:48:49.380
The defendant was not here.

1110
00:48:49.380 --> 00:48:50.400
Look at the phone records.

1111
00:48:50.400 --> 00:48:51.690
You can see the timeline to show,

1112
00:48:51.690 --> 00:48:54.567
look, why would he be calling her if he wasn't there?

1113
00:48:54.567 --> 00:48:59.567
And I think a reasonable tactic decision,

1114
00:49:00.660 --> 00:49:03.660
under Roberts, which is cited in my brief, in Pagan,

1115
00:49:03.660 --> 00:49:05.190
that it's not manifestly unreasonable

1116
00:49:05.190 --> 00:49:08.400
to forego a certain instruction

1117
00:49:08.400 --> 00:49:12.927
that might allow lesser included degree of guilt

1118
00:49:12.927 --> 00:49:15.002
when you're going all-or-nothing.

1119
00:49:15.002 --> 00:49:17.400
You know, I think that we very well could be here

1120
00:49:17.400 --> 00:49:19.020
on the flip side, if she had requested this thing.

1121
00:49:19.020 --> 00:49:21.600
She's ineffective for having inconsistent defenses.

1122
00:49:21.600 --> 00:49:23.327
So, on this record,

1123
00:49:23.327 --> 00:49:26.640
you can't say that it's anything but a strategic decision.

1124
00:49:26.640 --> 00:49:31.350
And you know, sometimes, you know,

1125
00:49:31.350 --> 00:49:33.150
decisions pan out how they pan out,

1126
00:49:33.150 --> 00:49:35.133
but it's not unreasonable.

1127
00:49:41.370 --> 00:49:43.680
<v ->There's no evidence on the gun?</v>

1128
00:49:43.680 --> 00:49:45.087
No fingerprint, nothing on...

1129
00:49:45.087 --> 00:49:46.140
Was the gun ever found?

1130
00:49:46.140 --> 00:49:47.335
I can't remember.

1131
00:49:47.335 --> 00:49:49.248
<v ->I don't believe the gun was ever found, Your Honor.</v>

1132
00:49:49.248 --> 00:49:50.081
<v ->Right.</v>

1133
00:49:50.081 --> 00:49:50.914
<v ->Obviously, any evidence</v>

1134
00:49:50.914 --> 00:49:52.230
from the gun would've been helpful.

1135
00:49:52.230 --> 00:49:54.450
Although, just from experience,

1136
00:49:54.450 --> 00:49:56.950
it's hard to get evidence off of a gun, generally.

1137
00:49:59.610 --> 00:50:01.260
And I'm happy to answer any,

1138
00:50:01.260 --> 00:50:02.580
and there were a lot of issues raised,

1139
00:50:02.580 --> 00:50:03.990
so I'm happy to, you know,

1140
00:50:03.990 --> 00:50:07.713
answer any other questions the court may wish me to address.