Announcer: SJC-12670 Commonwealth v. Matthew Gumkowski
-: Okay. We all here?
Mr. Fellows?
-: I'm here.
Hon. Kimberly: Okay.
-: There we go.
Well, good afternoon your honors.
Michael Fellows for Matthew Gumkowski.
As you know, from the brief, I've raised two larger issues.
One of them broken down into many smaller pieces,
in this case, one is the motion judges failure
to suppress CSLI information,
from the defendants phone records
or to suppress the phone records themselves,
and the other involves jury instructions.
-: Mr. Fellows, let me jump to the CSLI issue first.
We're dealing with the so-called re-pole numbers
and you cite appropriately Augustine. All right?
Did you consider Former Chief Justice Gants concurrence
in Augustine, where he distinguished
between what he called telephone CSLI and registration CSLI?
-: Well, let me start by saying, I received an email
from ADA Nadeau just about an hour ago,
conceding that we're talking about CSLI in this case,
we're not just talking about re-pole numbers.
So, what we're talking about here is historical CSLI,
which is tower information going back 24 hours.
I have read Augustine,
and I did read Justice Gants concurrence,
some of the technology he was ahead of
in understanding for me,
but I think I basically understood
that he was talking about automatic cell phone information
as opposed to information that happens
when you actually dial a call,
but the majority--
-: One take on it is that,
what was distinguished in that concurrence,
registration CSLI means,
it's when your phone registered to different points
and it leads to the GPS like tracking.
Telephone CSLI is what information is gleaned
when someone picks up a phone and call someone, correct?
Fellows: Yes.
-: And then that was the same issue jump ahead in Collins
that talked about this re-pole information in Collins
in the point that Former Chief Justice Gants made
in the Augustine case is, just like when I have a landline,
and I call someone that's a traditional telephone record
and I certainly am identified by my home address
when I make that call.
So too me is telephone CSLI or re-pole information,
because you're not having the same tracking situation
that you would have that makes it comparable to GPS.
So how do you respond to that Gants concurrence in Augustine
as well as Collins?
-: Well, Collins, I'm not recollecting
off the top of my head I do.
I believe The Commonwealth cited Almanar
for re-pole numbers.
Re-pole numbers and CSLI are not exactly the same thing.
As the Commonwealth points out re-pole numbers
and an Almanar that's what they talk about
can only show you where a person is
within about a hundred miles.
This CSLI although happens less frequently,
than the automatic CSLI that Justice Gants is talking about
can put you very close,
and that's historical CSLI is both
(indistinct)
Calvin Carpenter and in Augustine.
And that is the CSLI we're talking about here.
-: Mr. Fellows, we have three miles.
Fellows: Yeah.
-: Is that GPS by tracking three miles?
-: Yes. I mean, if you look at Carpenter,
they talk about that they could put the location
of the defendant between four and 11 miles of any place
during this period of time, wherever he was.
And it's not clear that they couldn't have gotten better
than three miles.
This was what Trooper Joseis testified to
based on the charts that he had,
showing where the towers were.
Now, they stipulated
that they wouldn't go further than three miles,
but that doesn't mean that they couldn't have asked
the phone company to get more detail but they didn't.
-: Collins is the main case that Mr. Nadeau sites.
It's also the only case that deals with re-pole numbers.
And you tell me you're not familiar with it.
-: I am familiar with it,
but my point as I wrote in my reply brief
is that, these are not re-pole numbers.
If you look at the phone records themselves,
which is on page 47 and 48,
I believe of the record appendix,
the third to last column are re-pole numbers.
And then the last two columns are first cell and last cell,
and the description given--
-: I thought first cell and last cell
that's where the call starts and ends, right?
So if I'm on my phone, Fellows: Yes.
-: And I'm driving down to the Cape
and I'm talking for a long time
I could go from Hingham to Provincetown, right?
Fellows: Yeah.
-: But if I'm stationary,
I'm gonna be in Hingham the whole time, correct?
Fellows: Yeah.
-: That's what first cell and last cell means.
-: Yes, but is CSLI.
Is information coming from the phone
that goes to the tower, that's gathered by the company
that can put you within a certain period of time.
And as the court said in Augustine,
and as the US Supreme Court said in Carpenter,
it isn't just necessarily about
what information you can glean from the specific numbers
it's, they're putting in more towers all the time--
-: But how is that different
-: And it's arrowing all the time.
So that the distance
that you're gonna be able to get from people
is going to end up being in meters rather than miles.
Very soon, it's done already--
-: How is that different
from when I make a phone all from my house?
-: It allows them to follow you.
And then in fact that it allowed Trooper Joseis
to show exactly where assuming that Gumkowski
was using his own phone, where he was,
when he was making calls during the 24 hour period.
He put him in Attleboro.
And this was part of him putting together his case
that he could put him within three miles
of the crime scene,
just from immediately, just from looking at a chart,
and see that all of the calls that he made that day
were in Attleboro.
So, that's tracking, and this court has said,
if you do that,
you can do that, you can request six hours
of that kind of information, historical CSLI,
anything more than that,
you need a warrant and probable cause.
And in this case,
The Commonwealth has acknowledged there is no probable cause
because they didn't even know who Gumkowski was,
when they sought these records.
In fact, they sought records
from two different phone numbers,
'cause this was an investigation.
They were trying to find out who he was.
So at the time they received these records,
they had no information about him
other than that, there was a blonde person in the building,
who somebody thought their name was Matt.
Well, they took Kilroy's phone records,
got phone records from two different people
or tried to get phone records from two different people
who appeared to have called Kilroy at important times.
And then they requested Gumkowski phone records,
and they asked for, specifically asked for CSLI.
-: Counsel, are you saying that unlike Augustine,
the remedy here is not to go back
to see if there was probable cause,
'cause The Commonwealth has conceited there is none?
-: Absolutely. Yes.
And there's no way they could show there is any
because there isn't any.
I mean, they're literally trying to find out
who this person is.
So, they have no basis to believe
that he has committed any crime
at the time that they request the records,
this is investigatory.
This is why they need a warrant
or they need to find other information,
or request information that isn't protected.
But they asked for CSLI because they need CSLI,
because they're not just looking to find out who he is,
they wanna find out where he was. And they did.
-: Let me ask you a question
about your second series of issues,
with respect to the jury instructions.
Fellows: Hmm mm.
-: There was a recent case of Commonwealth vs. Silva
that dealt with the same judge same type of instructions.
You didn't address that.
I'll give you a chance to address it here.
-: I don't know that. I may have missed that case.
Silva?
-: Silva. S-I-L-V-A.
You would have an E-R in it because of my brutal accent
which it's Silver.
(Hon. Frank chuckles)
-: Do you have a citation?
-: Yes. You can actually write us--
Fellows: I was gonna suggest--
-: It's 482 mass 275 and it deals with the jury instructions
that are hypothetical similar inference hypothetical.
So if you could address that in a letter,
that'd be appreciated.
-: Okay.
Hon. Frank: Thank you.
-: Well, what I would say about the instructions
in this case, it isn't just the hypothetical
that's the problem.
The hypothetical, maybe the least of the problems
and the jury instructions in this case.
I think looking at the jury instructions in this case,
it's important first to look at the posture of the case
when the jury instructions were given.
So the jury has two issues to decide.
Has the government proven beyond a reasonable doubt,
there's circumstantial case that Matthew Gumkowski
killed Joseph Kilroy.
And as part of that,
they had to evaluate the credibility of Matthew Gumkowski.
And another important piece to remember,
is that the Commonwealth in the closing argument,
had specifically told the jury
that they should not believe Matthew Gumkowski on the stand
when he testified that he left the room at 8:45.
They should instead listen to,
or watch the interview he made with police
when he appears to say that he was in the room
between eight 45 and nine o'clock.
-: Mr. Fellows, along those lines, when the judge says,
that you should be controlled by the video.
Fellows: Yes.
-: Is he saying that in the context of
it's not what the lawyers say to you?
It's all the evidence.
Obviously he can't say,
you can't consider all the witnesses
and anything that might conflict with the video
or other statements.
I thought that if you look at everything that he said,
that what he was trying to get across
and it didn't come out well, I agree,
was you're not controlled by what the lawyers say
you're controlled by the evidence.
-: Well, I don't think that's the context
that a juror would take those instructions.
And because he goes immediately from giving an instruction
about expert witnesses.
And then he says,
"You're gonna have a video."
So he's not talking about,
what the sources of evidence are,
right before he says this,
he's talking about expert witnesses,
and right before he talks about expert witnesses,
he talks about the evaluation of evidence.
And that's when he tells the jury
what do you do when you have an exhibit?
Do you accept an exhibit?
What do you do when that contradicts a witness?
What do you use that for?
A reason not to believe the witness.
So that's the most sort of recent information
they've had about what to do with an exhibit.
And then he says, and it comes sort of out of nowhere
"You're gonna have a video,
"You're gonna be able to watch it.
"Indeed, you should be controlled by it."
And then at the end, a couple of sentences later,
he says,
"And if that contradicts,
"If you're viewing contradicts anything
"The lawyers have said,
"You should pay attention to the video."
To me, that comes as an afterthought,
and a juror who doesn't understand the law
only understands what they're being told by the judge
is gonna hear that and say
"I should be controlled by the video,
"Including in the situation
"Where it's contradicted by a lawyer."
Then The Commonwealth in their brief
tries to connect it to his pre-closing argument instructions
where about this, but that's 80 pages before.
The place where he talks about,
when you take an exhibit and it contradicts a witness,
you should use that as a reason not to believe the witness
is two pages before or three.
So that's the more immediate context.
And I think that the statement at the end,
it doesn't say you shouldn't be controlled by this
for any other reason, it says,
"You should be controlled by this
"Including if the lawyer says something different
"From what you see on the video."
-: Well, we don't just look at it in isolation though.
I mean, quite frankly, and this is a very experienced judge,
he's not telling them that
what evidence they can and can't rely on.
And throughout the instructions,
he's talking about them being the only judges
of the facts of the case
and they determine the weight and value of the evidence.
So we can't look at that misstatement in a vacuum, I guess.
-: I would ask you not to look at it in a vacuum.
I would ask you to look at it in the context
of all of the jury instructions
regarding how the jury should deal with evidence.
And I know this is a very experienced judge,
but he made a bunch of mistakes
and a bunch of erroneous instructions.
He says,
"And bear this in mind,
"The defendant has a bias."
Okay? That's not...
You can consider
whether the defendant might have an interest
in the outcome of the case,
credibility is figured to you determine,
he says,
"Bear this in mind, don't forget this,
"The defendant has a bias."
-: But does he follow up and say
"And the police officers have a bias.
"Everybody has a bias."
-: He tries to fix that.
But the police officers aren't testifying
in their own defense.
Gumkowski's only defense is his entire defense
is his own testimony.
-: Right. That the proper instruction
is that you can consider the defendant's bias
as you would anybody else's bias, right?
-: Something like that. Yes.
These are the factors you can consider.
-: Everyone's got a bias -: He doesn't say that.
He says he has a bias.
And he in fact says-- -: You just can't
-: If you have an exhibit that contradicts a witness,
you should (both mumbles)
-: You can't just say,
well, he doesn't say that.
He does say,
"A police officer have a bias too."
So we have to look at everything in context.
We can't just take discrete sentences that you want us to.
We wanna put everything in context.
-: I'm not asking you to take anything out of context.
In fact, as I say, in my brief
I'm asking you to look at the instructions as a whole,
because if you do, you see that
he ends up essentially arguing that the government's case.
If you listen to what he says,
he says,
"The defendant has a bias."
He does not tell the jury at any point,
that they have the same power with exhibits
as they have with the witnesses
that they can believe some, none or all of it.
So, when he tells them,
if you have an exhibit that contradicts a witness,
what do you use that for, a reason to disbelieve the witness
he is privileging exhibit evidence over testimony.
And he is telling them how specifically to use
exhibit evidence
and this mirrors exactly what The Commonwealth has argued
in their closing argument, they should do.
They should ignore the witnesses testimony,
and accept the exhibit of his interview with the police.
So, it may be unintentional,
but that's what he ends up doing.
And then when he says,
"You should be controlled by the video,"
again, you have to think about is, in my view,
in terms of the average juror, not in terms of one of us.
The average juror knows nothing about the law
and when they are given instructions,
they're expected to follow them.
And so here, if they follow his instructions
they're left with no choice, it seems to me,
but to accept the videotape,
and accept the government's argument.
And this is thing begin to get
into his series of fact findings
that he requires them to make,
at the beginning of his analysis of evidence.
That you have to find out who was in the room at the time,
what each person was doing there,
when each person arrived,
what each person's purpose was in the room,
and what each person did in the room,
and what the sequence was of events was.
(Fellows chuckles)
First of all, they don't need to find any of those facts.
Those are not the facts they need to find.
They need to find facts sufficient to determine
whether the government has met its burden of proof
of each element of the crime.
That doesn't necessarily mean they have to find out
who each person was in the room,
but by expressing it this way, the judge ends up...
If you think about it from a juror's perspective,
it's like,
Okay, I have to put together the sequence of events.
How do I do that?
Well, I can look at two pieces of evidence.
I can look at The Commonwealth's evidence
and I can look at Mr. Gumkowski's testimony.
And if I look at the government's evidence,
I can answer all of those questions.
I have a very simple way to answer all of those questions.
If I listen to Mr. Gumkowski's testimony, I don't.
Because he doesn't know why that person was there,
he doesn't know what happened after the person left,
he doesn't know who that person is,
he doesn't know the entire sequence of events,
but that instruction essentially
puts a burden on him to prove that
because if he doesn't allow the jury to answer
those questions based on his testimony,
and the judge has told them
"It's your job to find these facts."
He tells them this twice,
this sequence of facts that they have to find.
You have to find these facts
and that ends up putting a burden on him,
because the jury is understandably
going to say,
"Well, we need to know the sequence of events."
And his testimony doesn't tell us that,
but the government's does.
And I think it ends up lowering the government's
burden of proof too,
because it essentially says,
"If he can't explain it,
"Then their version is probably true."
-: Oh, so--
-: And you should consider that.
Combined with the other bad instructions,
this leads the jury down a path to conviction.
I apologize, Justice Lowy you were gonna ask me.
-: That's Okay, I think you're almost out of time.
I'll hold the question.
Thank you.
-: Okay, you're welcomed.
-: Any further questions?
Was there something you wanted to add Attorney Fellows?
-: No, I think I would like to ask
that you read my (chuckles) carefully,
and the jury instruction section carefully
and particularly the end part where I try to--
-: We will read the entire brief carefully too.
-: I understand that, but to make the point
that I'm not asking you to separate these things out.
I'm asking you to look at them in combination
the way the law says you should,
that is what I want you to do.
And if you do that
I think you will end up agreeing with me.
Thank you very much.
-: Thank you.
Attorney Nadeau.
-: Thank you, Madam Chief Justice.
Good morning, may it please the court,
or good afternoon rather.
I'm Steve Nadeau on behalf of The Commonwealth.
I do know that I did send Attorney Fellows an email
acknowledging that the cell phone evidence
or the three mile radius evidence in this case
does appear to be phone calls CSLI,
although the motion judge here,
her finding was that this was the re-pole information
that was consistent with Trooper Joseis
kind of generalized testimony.
And then when this information came in
by way of a stipulation at the defendant's second trial,
that seemed consistent with,
again this sort of abbreviated testimony that went in.
But I do note that in the defendant's first trial,
I don't think this in front of Judge Garcia.
I don't think this information came in
by way of stipulation.
And these keeper of records for sprint,
did provide a much more detailed record
of exactly what these records are,
and that's at volume three of the defendant's first trial
beginning at page 90.
-: So does Collins control or not?
-: I believe Collins does not control.
-: Okay.
And what's your argument?
Nadeau: I'm sorry.
-: What's your argument then, if Collins has a control?
-: Oh, my argument would be first and foremost,
that where we are dealing here with,
rather than a mandatory compelled disclosure
under 2703 of The Stored Communications Act,
or The Massachusetts 271/17 B,
whereas here, we're dealing with 2702,
which is a voluntary production of records
in response to a request rather than a demand of--
-: Does that voluntariness, make it not a search?
Given that the test of whether or not it's a search
is the reasonable expectation of privacy
is delineated in Augustine?
I don't really understand the Domino's argument here.
-: So, I think The Commonwealth's argument at that point
is relevant to a couple pieces--
-: So for example, my neighbor may have my house key,
and the police come to my house and my neighbor says,
"Here, I got a key, go on in."
Not a search anymore because it was voluntarily admitted?
-: Well, even with a search into a home
may obviously a protected zone of privacy
the most, perhaps protected zone of privacy.
The law does allow for distinction between
consent entries even where there's not actual authority,
but only apparent authority
to seek consent from a third party.
And here there's a federal statute
that provides authority to seek voluntary disclosure.
-: But even under the federal statute, under Augustine,
there was the federal statute,
and we said, even under the federal statute
which is less than probable cause it's not enough.
It still falls under the fourth amendment.
And so, and then Carpenter mimics that as well.
So, I don't understand this whole voluntary aspect.
-: Sure, well, Augustine and I think
almost all of the cases I'm dealing with that
the Augustine issue involve section 2703, 2703 (d) order
which the mandatory and, is it?
I'm sorry.
I think it's Chamberlin, which deals with the 2702
although explicitly the court notes
they're not dealing with the constitutional issues there
but they acknowledged the distinction between--
-: But you still need a warrant if there's a search,
there's no third party doctrine.
So, I'm with Justice Wendlandt.
I'm completely perplexed and I've read all this stuff.
So, was there a reasonable expectation of privacy
in this information?
-: Yes.
Hon. Frank: All right.
-: Because it appears to be his historical CSLI.
-: Okay.
All right, so that's step one.
Step two, what's the exception to the warrant requirement?
-: Well, here, I think I would refer
to Commonwealth versus Frederick
which doesn't appear in either of the parties.
We've acknowledged that the citation is 42 Mass 70.
-: Right? We know Frederick, so go on.
-: And there, I would refer to the dissent by Justice Cipher
which raises the federal, "good faith"
in requesting these at the time, this was 2011,
about three years prior to Aubrey Augustine decision.
-: So, you're basically saying that
unless we adopt the "good faith" exception,
that evidence was illegally obtained?
-: Well, no.
I would argue that the fact that this was voluntary
rather than a compulsion is a distinction of it.
-: It was voluntary by the provider not by the defendant.
Right?
And we don't have a third party doctrine in this area.
Right? So we have an independent expectation of privacy
which belongs to the subscriber. Correct?
The voluntariness is just as, Steve: Correct.
-: Just as when Justice Wendlandt said,
"Yeah, go into my house."
That's voluntary. Not her neighbor.
If, cell one back in the day
or one of these providers says,
"Sure, go ahead
"Go get guys, you know, cell records.
"I don't care."
That doesn't mean anything because we have a third party.
We didn't adopt that.
So now we have, as you just conceded
and I was going up based on the assumption
these are re-pole records, which I guess is conceded.
So now, we have something completely different.
It's not briefed.
So where does that put us?
-: And actually in Frederick,
that's one of Justice Louie's concern.
He has his own concurrence with the fact that
it wasn't briefed that was his own caution,
and now I want to extend that--
-: The problem is that you wrote a brief,
I read your brief.
And now you concede a major point an hour ago,
and now we don't know what your argument is,
other than "good faith" exceptions.
So you can't go with it wasn't brief 'cause we're here.
-: Right. Right.
And so I wish I had kind of caught up to this sooner
but as based on the motion judge's findings,
the learning curve was steeper
than I would've liked it to be figuring out,
that this used the re-pole numbers...
I appreciate the real distinction
between the re-pole numbers,
which the first trial makes clear
the re-pole number would cover an area essentially Boston
and the Greater Boston area.
And then there's first and last cell information
is what restricts it even further--
-: I guess we can decide
about whether or not we want further briefing
on this case based upon this concession.
But does anybody else have something? Well,
that's all the questions I have about this issue,
'cause I don't know if we can go beyond this
but if anybody else has any questions?
I don't know.
-: But just to clarify, it seems to me under Collins,
the re-pole numbers give you a hundred mile radius.
So, the defendant was in Washington DC and not Boston.
Right?
-: Correct, that's my understanding-
-: That's about mobile switching centers,
It's not about the information here
which is clearly CLSI.
-: And that is my understanding.
But regardless of any "good faith" exception
that has not been briefed
I would argue that the admission here,
even if this CSLI information is showing
that the operative calls were made
within three miles of some tower in Attleboro,
the admission of that information was harmless.
It did not lead even as there were no fruits
of that poisonous tree
'cause that three mile information
did not lead to the apprehension
or the identification of the defendant.
The investigation centered on the defendant
based on a request from the victim's cell phone records.
And he was the only person that identified
based on the numbers they requested
from the victim's cell phone information.
-: Is this in your brief?
-: I don't know if the harmlessness portion of it is.
-: Because I don't think it was.
And so I thought that this issue
was a make or break for the government.
I thought that if this is not within re-pole,
that this is not harmless,
but now you're suggesting an oral argument
that this could possibly be harmless?
-: I believe it is harmless.
And I don't know that I didn't go that far,
'cause I thought this was controlled by Collins,
and this just seemed to be re-pole numbers
which were took an outside the ambit of Augustine.
And just based on that understanding
I thought we were sort of all on all (mumbles)
and then obviously after,
when I realized my mistake, I'd sort of shift gears
but--
-: Do you think is a case controlled
or you give up by the Augustine concurrence
on the telephone CSLI versus registration CSLI?
-: Well, I think mentioning of United States
versus Carpenter, is that the way as they described it,
that distinction that the dissent and Augustine identified.
I'm not sure, but it sort of abated
the significance of that distinction.
I think once, now we have United States Supreme court
saying that the same kind of information is CSLI
within the meaning serve as no warrant requirement
under the United States constitution,
whether or not the same is true
under Article 14 is sort of a moot point.
If I'm understanding your question correctly, your honor.
-: Okay. I get it.
With respect to the jury instructions,
I assume you're gonna argue Silva?
-: Yes.
Hon. Frank: Okay.
That's all the questions I have.
-: Okay. So it sounds like we may need additional briefing
on this issue that's come up during oral argument.
-: I'm sorry, your honor, I'm obviously apologize
for the way it's sort of came in
and obviously wanting to accommodate
whatever the court would like to do.
I prepared to sort of say my piece on it today.
That's what the court would like, or, you know, handle this.
-: Well, do you--
-: If I may, your honor,
I would frankly object to further briefing
on issues that weren't raised in The Commonwealth's brief.
The Commonwealth made a position, they made it clear.
This was not CSLI and declined to argue anything else.
And I don't think that they should be allowed
to have a second bite at that apple,
if there are things that are outside of that,
that the court would like further briefing from
but otherwise I'm sorry to interrupt,
but I would I would have to object to that.
-: Okay. Well,
what I'm gonna do is have,
if The Commonwealth wants to say anything else
about this particular issue, we'll hear you.
If you want to submit something,
I want to give the defense a chance to object to it,
and we'll have to sort it all out afterwards.
So you're all set or do you have anything else to say?
Mr. Nadeau.
-: Well, your honor, simply on just the CSLI one last piece,
I would just say that the defendant admitted
in his interview that he was not just in Attleboro,
but in the victim's room right before the murder.
Defendants neighbor places him in the defendant's room
the morning of Jordery Rose,
his girlfriend places him in near the park
where she left him in Attleboro,
shortly after the murder and there's blood on his shoes.
-: Didn't they find that the defendant
based on the information they got?
-: They found on his records, but it's not.
There's no (mumbles) indication
that they found the defendant
based on the fact that he made his phone calls in Attleboro.
What initially centered them on him
was that was his number showing up
in the victims call detail records,
within a short time prior to his death,
and then getting that subscriber information
which they contacted the I think Warwick Police Department
with finding his name,
using his picture to show to Mr. Phillips.
There's no..
They don't confront him at the interview
with this three mile evidence.
They confront him with, you know
"Your girlfriend says you were there
"And we know you called the victim
"Shortly before the murder."
And they don't say
"We know you were in three miles
"Of this tower to get him to sort of place himself
"In the room during that interview."
That's all I would say that on that piece,
but beyond that regarding I think
we could probably be more productive
with the instructions
unless the court has any questions on the CSLI.
But I do think that viewing the instructions as a whole,
I don't know, the defendant highlights several other errors
beyond the one that appeared in Silva
but not withstanding as Silva indicates,
this court is familiar with this.
Judge gave them similar instructions,
but as a whole
I don't think there's anything he's telling the jury to do
that they shouldn't do
or wouldn't have otherwise be required to do anyway.
And so looked at as a whole,
they accurately state the law,
and to the extent that there were errors
they would not have given rise
to a substantial likelihood of a miscarriage of justice.
And if there are no questions on that second issue,
I would read something in the arguments, in the brief.
-: Okay. So you don't have anything else to submit?
I, raised an issue that
we may not even have to address.
You're all set with your arguments?
-: I guess.
I'm sorry, I'm kind of first time
I'm finding myself in this situation.
So, if the court,
I think I've said my piece on harmlessness
but if the court would like anything else as to that
or as to the "good faith" exception that we mentioned,
I'd certainly be willing.
-: No, we're not looking for anything else from you sir.
If you have anything else to submit,
we will hear you on that.
But if you don't, it's fine.
I'm not asking for anything extra.
I just want to be clear for the record
that you were not asking to submit anything extra.
-: I would ask for the opportunity
to just submit something brief
on the "good faith" piece of it.
-: Okay.
So, what I'm gonna do,
is say that you have until Friday
to submit your motion to do that.
Okay?
And, (mumbles) a brief statement on what you would say
and I'm gonna give Attorney Fellows
a chance to move to strike the submission.
Okay?
Nadeau: Yep.
-: So, you'll have a week after that.
Okay, Attorney Fellows.
-: Yes. Thank you, your honor.
-: Okay. Anything else?
-: And I apologize for interrupting earlier.
-: No, no.
I appreciate having all the information right here,
and we'll go from there.
Fellows: Okay.
-: Okay, thank you, counsel.
-: Thank you very much.
Nadeau: Thank you.
-: Bye.
-: That concludes today's hearings.
Thank you.