Bailiff: This is SJC-12677,
Commonwealth v. Andrew Robertson.
-: Okay, Attorney Mirsky, good morning.
-: Good morning, Your Honor,
good morning, Your Honors.
May I please the court, Attorney David Mirsky,
for Andrew Robertson.
First I'll address Mr Robertson's convictions.
His, a first degree murder
and illegal possession of firearms
should be dismissed because retrial after jury deadlock,
where the evidence was insufficient
to prove guilt beyond a reasonable doubt,
it was barred by double jeopardy.
The Commonwealth conceded
that no witness could identify Mr Robertson
or anyone from the surveillance video
they were relying on to prove the identification
of the alleged assailant.
And there was no evidence of that
and the only evidence that came in was not proper evidence,
it was not actual evidence,
it was argument by the prosecutor which was improper,
which is also a separate issue
but it's not even evidence because it was just argument
and the prosecutor attempted to make the identification
from the video but could not,
there was no evidence of that.
And then there's an ineffective failure of trial counsel
to object to that.
The Commonwealth conceded that they had no,
that they did not have that evidence.
And in terms of the double jeopardy issue,
the Commonwealth has raised very briefly in their brief,
without any citation that a double jeopardy issue is waived
because not brought before,
not appealed after the motion to dismiss was denied
in the trial court.
However, the motion did, first of all,
the motion to dismiss was denied, it was raised post-trial.
The objection to the evidence was raised in the first trial
as being insufficient to prove guilt
beyond a reasonable doubt.
The objection was raised to retrial
in the motion to dismiss
which was filed after the evidence
which came before the transcripts were fully prepared
and in clerk, this court stated that double jeopardy
and quoting Preston can at least,
can be raised at least as well in the appeal
following the second trial as under a general laws,
Chapter 211, Section 3,6
which is also a, not a mandatory statute anyway.
It's enabling, it gives the opportunity of the court,
it does not preclude or force a defendant
to waive important constitutional rights.
-: Mr Mirsky if you are, if...
-: Yes?
-: If your wrong answer,
if you are right that it's preserved
but wrong on sufficiency at both trials,
what's your issue that you wanna discuss first?
-: Well, I don't concede that your Honor, but obviously...
-: I know you don't, I understand.
-: But the issue
that I think is the most important other than those,
is the fingerprint evidence.
The Wellington issue,
Wellington saying that the Commonwealth,
the court and the Commonwealth were allowed to put evidence,
something in as a fact,
which is not fact under Massachusetts law,
under this court's law,
which is fingerprint identification evidence.
It's not supposed to be presented as a fact
and it was at trial,
they presented evidence from the testimony of Miss Koziorik,
that they were able to individualize fingerprints
that they were able to exclude and identify,
definitely people from fingerprints
however that that's not valid.
-: Before, I'm sorry to interrupt you,
but before getting to whether
or not the opinion given violated Fulton and Drayton,
are you arguing that this was preserved?
Because the issue that was raised was that Daubert-Lanigan,
not the certainty of the expert's testimony on fingerprints.
-: Well, Your Honor, the evidence is preserved,
because it was part of a pretrial motion objected to,
at this, taking into account that this witness testified
in the first trial and gave these type of opinions
in the first trial.
And everyone knew, it was on the record
that this is impermissible.
That it's not fact, it's not fact,
so they're not permitted to be...
-: No, I understand, but I thought the objection
on the fingerprint evidence was, that we had a motion on,
was as it related to gatekeeper reliability.
-: Well, Your Honor, their reliability is in the motion.
It is in the objection,
which is the raise that has no statistical basis
given to the jurors to evaluate the significance
of the fingerprint evidence
in terms of identification of an individual
that you cannot, this is not evidence.
It's just an argument by a prosecutor,
a person that works for the prosecution team
and it's not meeting,
it would not have stood up to Daubert-Lanigan.
It would not have stood up to an evidentiary hearing.
Attorney Scapicchio submitted attachments
to the motion in which Mr Robertson joined
and which was the joinder
and co-defendant motions was permitted
and acknowledged by the second trial judge
and that NAS report it's in the appendix
and also a reiterated
and validated by subsequent findings
of the "National Academy of Sciences,"
on this matter.
In the September following the convictions
that this would not have stood up, okay,
to a Daubert-Lanigan hearing
and the judge that the arguments were made,
and the evidence was there on the record,
making the beginning,
as of what the, making a prima facie case of the evidence,
more than a prima facie of the case.
The actual evidence,
I've attached it to the record appendix,
I've signed it.
-: Yeah, I read the whole thing up in transcript,
and I certainly understand your argument.
Assuming, I'm not sure it what was preserved,
I think what was preserved was Daubert-Lanigan,
and Mr Mitchell conceded the fingerprint issue
in the closing and alluded to conceding it in the opening,
but putting that aside,
when is it that the expert comes out
and actually says that he's testifying,
not to an opinion but to an infallibility or to a certainty?
When is that ever part of the answer to a question?
-: That's all through Daubert close to the heart testimony,
Your Honor, saying that fingerprints were individualized
to Mr Robertson, that you,
that she can make a conclusive statement
on whether a person is...
-: No, include, include.
First of all, individualized was,
even in Commonwealth versus Folgers.
As long as it's clear, it's subjective,
you can use the word individual on it, as it's...
-: It's not clear, it's not clear that it's subjective,
It's not only not clear,
it's not the way it was presented in, in the,
by the Commonwealth in closing.
It's not the way it was presented at trial,
in either trial.
And, but I'm talking about the second trial here,
because there was convictions, this was presented as fact,
which it's not fact okay,
I argued that it's not even permitted
to consider this as a fact that was presented
in the first trial, because it's not fact,
it's not fact you can't,
it's been already found by this court
that it's only an opinion and it's,
and it cannot be considered a fact at all.
It's, to consider this type of individualization
and conclusion evidence can be concluded
from the type of walls and fingers, you know,
I know when I see a testimony,
that's given here by Debra Karziad.
That is not fact,
okay so, it would be...
-: I understand what you're saying,
I'm wondering how you distinguish the Drayton case.
-: Drayton.
-: And that was the case where the expert testified
that she individualized the fingerprints
at the crime scene
to the defendant's right middle finger joint
and as I read the case, that was perfectly fine.
How was the testimony here different?
I'm not suggesting it's not,
I just don't see the difference, I'm asking you.
-: I, well, in my view
Drayton is not correctly presented
in the Commonwealth's brief,
the court in wellington warrant that evidence,
that testimony to the effect that the print matches
or is it individualized
and note print should be presented as an opinion
not a fact, not a fact.
So when the prosecutor is arguing,
as he did actually in the earlier trial,
that you can reflectively justify his arguments of,
of who the person is in the video
based on the fingerprints,
he actually is inventing a type of science
that doesn't exist, it would be like saying,
I have a new way of proving identification by breath,
breath or something, okay?
It's a completely made up thing under this standard,
it should not be presented as a fact
and it's being presented as a fact
and the case, the material that I've submitted
in my reply brief as the,
September 2017 reiteration validation
of the national academy of sciences report shows
that they, that the scientists
in the community of scientists do not consider even that to,
to leave that impression and to give a jury,
to make that impression with,
on the stand, to even be unaccepted,
even be accepted at all within any community.
It's not accepted it, it doesn't meet Daubert-Lanigan
and that's how it's not gonna make it.
If it's not accepted, it's not valid,
it doesn't allow a scientific judgment to be made,
It doesn't allow, you can't say I know when I see it.
Okay, we're not talking about that,
we're not talking about a judgment of what's pornography.
We're talking about identifying a person
and this isn't permitted here,
and this court has said that in wellington
and to use drain, otherwise,
whether it was used in other ways, it's, that's just wrong.
and the science has to be looked at,
and this court has also said that
the court can take notice of the science
and the state that it's in and I'm giving you that.
But by the site
to be updated September 2017 report, Your Honor.
-: Mr. Mirsky, and it's not in your brief,
but the photos of the surveillance video
that were admitted in evidence,
the judge gave a limiting instruction when that came in,
that those were only admitted on Boden
if they are related to the investigation,
how does that change your argument on any of your issues?
-: All I'd say, your honor,
is that the judge acknowledged there was no identification.
That's why no identification instruction was given,
that's what she said.
-: I'm sorry, you know,
how there was the video evidence
that came in only under Boden,
that there were photos from the surveillance as well,
that were admitted.
I'm not talking about the comparisons at this point,
I'm talking about, but when,
when the photos came in from the video,
those photos came in with a limiting instruction
that they were only admitted under Boden,
how does that change your argument?
-: If they're not admitted to identify the defendant,
what's the point?
What is the point of that, photos?
We have, I have an issue on a witness
who claimed he was, claimed he wasn't altering photos.
However, on the, in the Commonwealth's brief,
the Commonwealth acknowledges that he altered photos
and that when he did that, he was trying,
as would be done.
He, by a prosecution employee, he was trying
to focus on making it look like a certain person
from a very distorted image
and you don't have these identifications, Your Honor.
and, but if Boden doesn't change what I'm saying,
I don't need to say it,
I don't need to criticize the police.
They don't have the evidence, okay?
The prosecutor said they don't have it,
they didn't have it.
And unless there are any other questions, Your Honor,
I'll rest on my briefs,
both my principal brief and my reply brief,
and my record appendix, thank you, Your Honors.
-: Okay, thank you very much.
-: Attorney Jordan.
-: Good morning, may I please record?
It's Darcy Jordan on behalf have the Commonwealth
and with us via zoom is the trial prosecutor,
ADA in Pollen Bum.
The Commonwealth is asking that you affirm
the defendant's convictions here
and his part in executing Romeo McCubbin
on December 14th, 2013.
I just wanna point to the fact
that the Commonwealth does think
that the first issue is waived
regarding the defendant's failure to appeal
to the single justice
after his motion to dismiss was denied by Judge Sunders.
The case beside my brother,
Clark and Barry are all decided in 1985.
This court later in 1987,
clarified what the proper procedure was
in Chatfield Taylor which is at 399 mass one
pin site 3 1987.
So if I can read from it,
the court says the appropriate procedure
to obtain review of the denial.
The motion to dismiss on the grounds of double jeopardy
is petition for relief
from the single justice pursuant to 2113
and also just to compare and contrast
all the cases cited by my brother
that's Barry Clark and Preston.
In those instances, a 211 3 was filed
and all of those instances
and the procedural history is different
in some of those cases and I think it's Preston.
The initial motion to dismiss was actually decided
on rural criminal procedure, 2025.
So when it came upon review,
there was a procedural difference there
and in Berry,
the single justice after reviewing the 211 3 petition
actually appealed it to the full court without,
without an opinion
and subsequently the defendant was tried again
in the second trial.
So, I just think procedurally it's different
and that's the side I say to you but all that being said,
even if the court were to address the merits of the case,
it is clear that there was sufficient evidence
in the first case to prove the defendant's identity
as the first shooter and I do want to point out the evidence
is very similar, almost identical
in the first and second trials.
And my brother focuses on the testimony of Takara Rice,
who did view photos.
And as I explained in the brief,
Takara Rice knew the defendant prior to this case
had personal knowledge of him,
had explained to the jury she had known him,
I think had met him in the past,
I think seven years through,
through basically a boyfriend
and that her awareness of the defendant
being present at the club before the murder,
she herself was looking through Facebook photos
and it came to her own attention.
So this wasn't an instance where the,
as I think my brother tries to paint
where the government
was feeding Ms. Rice the identity of the defendant
as the person in the club photos, which again,
the Commonwealth then collaborates
as the shooter through the booking photos
and the surveillance.
Moreover, there's a lot of corroborating evidence
that it was defendant, that was the shooter.
We have the fact that he and the defendant spoke,
collaborated, were together at the club beforehand.
We have the defendant's association with the MRX,
the SUV driven by Watson
in the moments before the murder with the RAV4,
which Commonwealth thinks,
basically they were doing surveillance
to see where the victim was parking
and then moments later we see, Watson drive the defendant
up to the victim who's sitting unsuspectingly in the car
and reeled him with nine bullets and get back in that car.
And we know that the there's fingerprints,
associated with all four of the co-defendants as well, yes.
-: On that point, on the third day of impediment,
Commonwealth versus Fulgor came out
and what Commonwealth vs Fulgor said,
is it must come out clearly
through the expert's testimony.
That this is a subjective opinion and saying, we can close
or individualized,
does not clearly indicate this is the subjective opinion.
Now I recognize that very shortly,
before that we had Commonwealth vs Drake,
and that would, and the grand blower language
comes from the concurrence.
So, I understand that it's not crystal clear
what our fingerprint evidence was,
but on, during impalement,
we're hearing clearly indicate
that this is a subjective opinion.
Doesn't that require,
the prosecutor to proactively point out if the,
if the witness, doesn't say it with some sort of question,
you are giving an opinion here, a subjective opinion here.
-: I, of course that would be great,
I don't disagree with Your Honor whatsoever that,
of course it would be best case scenario
for the prosecutor do that but as you pointed out,
this happened during, during the course of the trial and I,
by no mean excuse that,
but I think the facts
how the testimony does come in
is that even if she uses, actually,
I should also mentioned
that the word individualize
is actually not introduced by Kirshorik,
it's actually introduced by the prosecutor.
I know that's splitting hairs,
but I do think in a way
that's kind of goes to the point
that this was the language being used
essentially at the time of trial
and being used appropriately.
Kirshorik only says concludes
and on volume 12 pages 218 and 219,
she does a very good job of explaining
this defendant's fingerprints
and how she looked at which swirls and which not.
So I don't think it's necessarily,
I don't think it'd be ambiguous that Kirshorik
as the expert, what she did.
So even if maybe we're not using the buzz language
in the way that Fullam eventually says is, you know,
Almost shows up, Bambora,
I don't think at the time of this trial,
that it was erroneous.
And I also want to point out that,
Kirshorik never says, I look at these
and I exclude everybody else.
There's none of that, if you will absolute
or concrete kind of affirmative language
that before falls on the court,
this court frowned upon.
So, in some,
I couldn't find a case
where it was just the word individualized
with no other words, except for Drayton.
And I think the fact of the matter is that
Kirshorik's ability to explain her opinion
again removes what she did.
So it's almost like not who cares what the words are,
the words are obviously meaningful,
but the fact that she explains
how she comes to her conclusion,
I think is meaningful in the way we, this,
this evidence is viewed.
And I do want to point out that she does explain
that the fingerprints are fallible.
I think there was no contemporary objections
and there was no vigorous cross examination
and I bring that up.
-: That doesn't really help, it doesn't really help
because there sure wasn't the first trial.
And it seems like the judges tried rushing
at the end of a murder trial,
they were rushing at the end of a murder trial
if you read this transcript, never a good idea.
So the fact that there's no cross examination,
doesn't help the Commonwealth in the analysis.
-: But, I think,
I appreciate bring up that point
because I do think if you compare how the,
how all the forensic evidence came into the first trial,
if you compare it to how the fingerprint evidence
is treated in the second trial,
I suggest if you really read through the whole transcript,
what this was, what the strategy was, was to,
if you will prop up all the forensics experts,
the gunshot residue expert,
the fingerprint expert as comparative
to the ballistic evidence,
which was admitted by detective Martin Leiden,
who did not have a college degree
who didn't have all this kind of science
and aura around him that they did.
So I suggest this was actually strategic
and to kind of not,
to kind of not challenge all this other forensic
to compare and contrast in order to really hit home.
The ineptitude is as I think that they argue
especially Attorney Scapicchio argued
regarding the ballistics and the weight given to that.
So I think in a way it's strategic
and I think the only way to kind of understand
that contextually as strategic
is by looking and comparing it to the first.
So an end, which is...
-: I'm sorry,
I should've asked you this first
was the expert testimony objection preserved.
-: My reading of the transcripts,
that's the only thing that was observed
as you asked my brother,
was the Jobert Lanigan challenge
based on the language.
I'm sorry, the NAS,
I'm probably messing that up, study.
My reading of the,
and this was heavily litigated and emotion eliminate,
and there was no objection contemporaneous with this,
any of this language, individualized of concluding,
or if the, at the end,
in conclusion of Mr. Kirshorik's testimony,
there was no motions to strike or anything of the kind.
And that's again why I bring up maybe the strategy
and then looking at the closing arguments,
how at least Mr. Robertson's attorney argued fingerprints,
it's not this heavy hitted home thing.
This, this is almost a blip
because as we've already discussed,
there's much other collaborating evidence
that this is the defendants as the shooter,
we have the photos,
we have the call made from Dayton calling SP
after he's been arrested,
we have the defendant canceling his phone
the day after the murder.
We have the images of him shooting, comparing his clothing,
his facial hair.
So I think when we look at this bigger picture, yes,
this is absolutely strong evidence for the Commonwealth,
but this isn't the only evidence of identity.
And I think if we look at it from the strategic point,
as I pointed out as well,
that I don't think the prejudice is a strong,
that this would require a reversal of the convictions.
-: What legal authority are you relying on
for the notion that we should compare the first trial
and that strategy to this trial and this strategy
in order to determine
whether there's a substantial likelihood
of a miscarriage of justice?
-: I, that's a fair question,
I don't have a legal authority
that was more me preparing for these cases
and the argument and no,
and having argued the other cases in front of this court.
So, I don't necessarily have an argument
to maybe contrast and compare, but I think if, you know,
if this was presented as an ineffective assistance claim,
then we could look at it that way.
So, I don't see how this court can look at a strategy,
even if in isolation,
even if we just looked at this transcript,
you can still compare
how they treat Detective Leiden's testimony.
He, Detective Leiden is extremely vigorously
for volumes almost, cross-examined on, on the ballistics.
And here we have this unobjected to
no motions described
in the Leiden and Fryer expert's testimony.
So I, so that's as best as I can answer
Your Honor's question.
-: Thank you.
-: If you go to the comparison of the enhanced photographs
and the points of comparison,
it's true that most of the testimony
is a juxtaposition of the two
and the judge gives an instruction
that the experts not to give an opinion,
and the prosecutor has prefatory comments in his questions.
But despite all of that,
the witness says at one point,
"I was looking for similar features in each pitch."
You can't do that,
that's what the jury does, what about that issue?
-: Well, I think I did read that his as his testimony,
and I think if I remember correctly
that might've been on cross examination where he was...
-: Oh no, the prosecutor is, it says,
and it's true now we can't get
into whatever your opinions might be,
that's ultimately for the jury
but we are looking to juxtapose certain points of comparison
in the picture perfectly permissible question at,
on 515 on page 88 but the answer is,
"I was looking for similar features in each picture."
That's what the jury does.
-: I don't disagree with you,
I think if anything maybe that was not eloquently said,
I think the jury knows that John Green was not,
doesn't know these people
that John Green was given photos and was,
and I think he testifies, they just gave me the photos.
I think he himself is looking for similar points
and not necessarily, you know,
fed by the police or the prosecutor,
what those similarities are.
I think the way I understand that
is that I looked at similarities
to try to figure out if this is even make sense
to ears helpful for the jury.
Is this even, that's more to me and I'd say,
"I was looking for whether or not things are relevant,
do they even contrast."
So, and I think the language,
I know like the languages around these photos,
enhanced, altered, it's almost we use it colloquially
but I think when we,
when you really think about and the experts testify this
it's like the old fashioned TV
where you're turning up the contrast and down
where you're not changing the image that NBC put on,
but you're really just changing it on your monitor.
So I just kinda want to be clear on that.
-: But your points so I can make sure I understand it,
you're saying that when the witnesses
I was looking for similar features in each picture,
Mr. Green's not saying, well,
I was looking in the left arm matches
and the wrist tattoo matches and the clothings match.
He, your, your view is that testimony
is that he's just saying, well,
I was going back and forth
and looking to see if there was similar as a foundation.
-: Yes, saying...
-: But don't we have arrows,
add other arrows in the photograph
-: So, yes, I agree with your first point
that he wasn't saying,
you know, the hairline here matches with the hairline here.
He was saying, what I did was zoom in on the head,
to focus on the hairline.
So I agree with, with that,
he wasn't making a conclusive statement
that these indeed are similarities.
And I'm sorry, what was the, the (chuckles)
-: With the arrows pointing.
-: Oh, the arrows,
the arrows were admitted as identification.
they were not published to the jury.
So I think, they were more illustrative
of this is the methodology that Mr. Green was using.
And to illustrate his point was I looked at similarities
here and here, as opposed to, I mean, as opposed to saying,
you know, it's up to you, you can figure it out.
I mean, again, the jury had all these photos
and can compare or contrast or not use them at all.
They could have just used the photo from booking
and not, and disregarded all of Mr. Green's testimony
and still came to the same, the same conclusions.
With none of the, if you will, you know, contrasted photos.
-: Well, the re-enactment photos from,
from the video they came in, when,
when I think Judge Giles first talked about it,
talked about them being admitted.
They were different than the Boden under surveillance,
but when they were admitted,
she gave the limiting instruction
that the reenactment photos weren't in for,
they were only in on the Boden for the investigation,
does that change any of the defendant's arguments?
-: And I'm sorry, you, by the re-enactment photos,
are we talking about the photo
or the video that was taken four days after the murder?
-: Right.
-: Okay, does it change it if it's only for Boden?
I would suggest that it doesn't really change
how if the Commonwealth is only, I mean,
the jury is only allowed to use it for the purposes
of what the detectives did next.
I guess, that could alter how they use the,
that video but if I remember correctly, then she didn't,
did she, I have to say.
-: She didn't mention it in the final charge,
I guess there is two things.
One is it's argued in the closing, I think briefly,
the enhanced photos so that's an issue to,
to think about, I guess.
-: You know, I think at the end of the day, even, you know,
even if we have this advanced,
let's say it's only used for Boden, it's still,
it educates what the detectives did next
and I think the jury can take into consideration
that even if they don't see those videos,
they hear testimony
that the MRX was later linked via a rental agreement
back to the defendant.
They also hear evidence that the RAV4
belongs to Boden's sister Sophia,
and she testifies that that's her car.
So even if there's limited to, you know,
what the jury could properly use it for,
I think there's other evidence
that would collaborate that these cars
that you know, were identified by the police.
So even if the,
I guess my point is even if the police did the,
the enhance, this re-enact or not re-enact,
or this purposeful drive using the same video cameras,
using the same, you know,
lighting or, you know, with a slight variance
that if that was meaningful for the detectives,
to then later make those connections back to Watson
and back to Vaugner through other chains of evidence
then I would think that would be not,
that would be permissible and proper.
I know that was a long way to answer(chuckles)
your question.