-: SJC-12678, Commonwealth v. Jose Ramos.
-: Attorney Tumposky.
-: Good morning, members of the court.
Michael Tumposky for Jose Ramos.
The defendant is asking this court to reverse the decision
of the lower court denying Mr. Ramos access
to post-conviction DNA testing.
-: Yeah, counsel, can we assume for the purposes of argument
for a moment that you check all the boxes,
and the test is done,
and it comes back and it is in fact, the victim,
what does that prove?
-: If it comes back as the defendant's DNA?
-: Oh, I'm sorry, the defendant's, what does that prove?
-: Certainly, I'm happy to get right to that point.
So the question is whether that evidence would be material
and the Commonwealth concedes, it appears
that if it is material,
a reasonable attorney would have sought to have a tested.
So I'll focus my argument on the first point
about whether it's material.
And I wanna start by addressing, uh -
-: Well, show me how it's material.
-: Certainly, yes, absolutely.
So although there was strong evidence certainly
as to the defendant's guilt and we don't dispute that,
the evidence was not undisputed.
So the issue of what transpired between the two individuals
inside the shelter prior to any of the staff being involved,
and the issue of what transpired immediately
upon their exit from the shelter was not clear.
-: All right, but we do know that
there are two people involved.
The defendant and this victim.
-: [Attorney Tumposky] Yes.
-: And we have tape of some of it.
-: [Attorney Tumposky] Yes.
-: Um, and assuming it shows it's the defendant's DNA
under the victim's fingernails, what does that do for you
with regard to any of the defenses?
-: Absolutely.
So what it does, is it is additional evidence of
a physical fight between the two that could have,
based on the gaps in the video evidence,
could have taken place prior to the stabbing.
Justice Cypher: But how would that get you
beyond the issue of excessive use of force?
-: It may not.
-: Ah ha!(laughs)
-: However, the Commonwealth has never argued,
and the trial court never ruled, that
a defense of manslaughter is not
an available avenue to pursue a post-conviction DNA test.
-: Okay, so how would the,
how would the DNA under the fingernails
get you to a manslaughter?
-: [Attorney Tumposky] So the conviction being
first degree murder, our argument would be that
evidence of a fight
would be evidence of a potential manslaughter defense.
In that the Commonwealth will now have to disprove
either perhaps excessive force in self defense
or sudden combat.
Justice Gaziano: Under the Commonwealth's theory
was there ever a fight?
-: [Attorney Tumposky] The Commonwealth,
well, was there a fight? -: Yes.
-: Prior to the stabbing? -: Right.
-: I don't believe the Commonwealth believes
there was a fight prior to the stabbing, no.
-: So you, you're saying the potential DNA
under the fingernails would show a physical altercation
that we don't have other evidence of as it stands?
-: That, that's correct.
So what we have, and just, so to be clear what we do have
is we have evidence from the shelter employees
that Ramos approached, the defendant approached
the employees and complained that the victim was
antagonizing him, that he believed
that the victim was drunk.
And we have evidence from the defendant
after the fact that he believed
that the victim was usually armed with a weapon.
We have evidence that the two men
were in some sort of a dispute, a verbal dispute that day.
They weren't getting along, and that they went outside
for the purpose of fighting.
That was the evidence at trial and the
very reasonable inferences that could be drawn
from the evidence.
They went outside to fight,
'cause you can't fight inside the shelter,
obviously you would get kicked out.
So they went outside to fight.
And our argument would be that this,
that the presence of the defendant's DNA
under the victim's fingernails would be material
to the claim that they had engaged in a physical fight
in the gap between, on the video, between the time
they left the shelter and when the stabbing occurred.
-: Roll down to what you have to show.
Do you have to show that the evidence from fingernails
would show that the victim was the first aggressor
or show that the at some point in time used deadly force?
-: We do not, in order to get access
to post-conviction testing, it is our position
we do not need to show the victim used deadly force.
That simply showing that there was -
Justice Cypher: Well then how do you go past
the argument that it was excessive use of self defense?
-: Our position is we don't need to.
In the sense that if this evidence,
the defendant's DNA being present
under the victim's fingernails would be enough perhaps,
to mitigate even a murder conviction
down to a manslaughter. -: That's the same question.
That's the same question.
So what is it about the evidence that would in any way
demonstrate, so that the Commonwealth has to disprove
that the victim actually was the first aggressor
or that the victim used deadly force?
-: [Attorney Tumposky] I'm sorry.
Can you repeat the question please.
-: You just said there has to be, it has to in some way help,
in a light most favorable to the defendant,
to get the manslaughter instruction, right?
-: [Attorney Tumposky] To get a manslaughter verdict, yes.
-: Right. To get, so, in that case, don't
you have to show that this would've been some evidence that
that the victim initiated the violence or
that the victim was the first to use deadly force?
-: I think it would be, well, do we have to show
that the victim was the first to use deadly force?
No, I don't think we do.
Do we have to show that there was some sort
of physical altercation between the two,
a non-deadly physical altercation
before the deadly altercation?
I suppose yes. And I think this does, this would do that
if in fact, the defendant's DNA were found
under the victim's fingernails, it would provide evidence
of a physical fight, a non-deadly physical fight, prior
to the use of deadly force which could have
raised a defense of, of manslaughter.
-: You're trying to increase the mitigation
evidence to try to get some type of sudden combat
or heat of passion, correct?
-: That would be what this evidence could develop would be a
a, the defense at trial was self defense.
-: Right. But if, if you get hand-to-hand combat,
you have more mitigation to work with.
-: That, that's exactly right.
And that, and that's what this DNA evidence could reveal
which is more evidence of mitigation,
more evidence of physical combat prior to the stabbing.
-: Can we ask you about the next step then?
How do you get DNA under your fingernails
if there's a, if someone punches someone?
-: (laughs) Well, that, that, I don't know
if this is in the record, but I, I'm happy to
demonstrate how that might happen, grabbing on the arms or,
or something like that, um -
Justice Gaziano: But were there evidence of scratches?
-: Um, I don't believe that there was, no.
Not that I recall from the records.
-: And that, that wasn't part of
Judge Wilkins' decision though, correct?
-: [Attorney Tumposky] It didn't focus on that, no.
Uh, I think it was -
-: I found it curious but I didn't see it in the record.
-: Yeah, no, I don't think there was any discussion of
of how the DNA might have gotten there.
I think all parties, perhaps, were under the assumption,
mistaken or not, that if there was a physical altercation
that we could imagine -
-: But we don't know if there's DNA material under the
fingernails, we just know there are fingernail clippings
that weren't tested.
-: We don't know, we don't know.
Right. Exactly.
We just know that the clippings were taken at the autopsy,
they were preserved and nobody tested them.
So I think it's important, and the judge seemed to focus,
um, and, a couple things - the judge first of all
applied the wrong standard and I think the Commonwealth
even agrees that the judge applied the wrong standard,
applied essentially an ineffective assistance of counsel,
a constitutional standard, where the judge said, 'Well
it came down to a strategic decision and because it was
strategic, you don't get post-conviction DNA testing.'
I think the Commonwealth can see -
-: So I understand that the statute says 'reasonable
attorney' and that's different necessarily
than the Saferian test, but what exactly in that
is different, I mean, how is a reasonable attorney judged
as opposed to an attorney that made a tactical choice
or something like that, which would be this affair,
what's the difference between those two tests?
-: So I was trying to formulate that actually.
And I think what, what the Saferian test would say is
that essentially every reasonable attorney should have
followed the course that wasn't taken.
And if every reasonable attorney should have
followed one course, and the trial attorney
followed another course that trial attorney was ineffective.
In this case, it's the question is whether a reasonable
attorney would follow the course to test the fingernail
clippings and I think another way to think about that is -
-: What's the difference between those two questions -
-: Would it be, well, I think, would it be unreasonable
to test the fingernail clippings?
I guess is how I would phrase it.
And if the answer to that is no, then a reasonable attorney
would've tested them.
So it's sort of the inverse or converse -
-: If you will, on a mile high level,
we're fairly strict, the courts are fairly strict
at ineffective assistance,
less so on post-conviction testing.
It's completely opposite.
-: And this court's decisions have made very clear
that it's to be read liberally with an eye towards
granting testing if, in closed questions the results should
favor the defendant because we're not asking for new trial
we're simply asking for a test which could reveal evidence
perhaps that would develop into a new trial motion but
that is obviously not where we are right now.
And the court has said that even in cases where,
and the Clark case said this, and the appeals court has said
it also, even in cases where the evidence for the
Commonwealth is overwhelming, the defendant could still
be entitled to DNA testing if there would be some evidence
that would develop on his behalf potentially by the results.
And of course it's potential evidence.
So the other thing that the judge said was, 'well
the DNA results might have come back with the defendant's
DNA under the victim's fingernails
and they might not have.'
(laughs) Well, of course that's always true.
And that's why the statute says 'has the potential to'
so we don't examine, sort of the worst case scenario
where nothing comes back at all, we look at what potentially
could come back, and if there's potential for the
defendant's DNA, then that would be enough.
So the judge made a few errors in his analysis, the standard
of review, the sort of potential ignoring the language,
the potential language in the statute.
And so I think the Commonwealth points out correctly
that perhaps 'cause this court's review is De novo,
that that wouldn't necessarily alone be grounds for
reversal but I think it's an important lens to view
the trial court's opinion with, which is that it
seems to be a bit, a bit misguided.
I would also just like to briefly address some
of the claims that the Commonwealth has made.
Particularly one, they say that the evidence
was not material, that the potential for DNA under
the victim's fingernails was not material
because even if, they say, even if the defendant's DNA
was there, it might have been from a fight or
it might have been from some other time and we don't know.
Well, evidence doesn't lack materiality because there's
competing inferences that could be drawn from it.
Certainly the Commonwealth would be free to argue
in their closing, if there was another trial,
that the presence of the defendant's DNA under the victim's
fingernails came from some other time,
from some other circumstance, and the defense could
argue that the DNA was placed there during the altercation
and the jury would sort it out.
But the fact that there's competing inference -
-: That gets played out in the motion for new trial though
because then you look to whether or not the new evidence
would have impacted the jury, correct?
-: And that would be the standard at that time.
Whether essentially -
-: You're skipping a step, you getting to a trial.
-: (laughs) Well, perhaps I'm being overly optimistic.
Yes. But I guess my point is that the Commonwealth's
argument that it's not relevant because a couple different
things could be inferred from it,
is not what relevance means.
Relevance means 'could something be inferred that helps
the party that's offering it',
not 'is there only one inference that we can draw
from the evidence?'
That's not the standard for materiality or relevance.
-: But, yeah, so that's my last, my question is
you seem to say that the evidence might be relevant
but isn't the test materiality?
-: And this court has never exact said what the difference is
between relevance and materiality, I don't think.
-: Well, relevance is broad.
-: [Attorney Tumposky] It is.
-: Yeah, so, so you're suggesting that under this
forensic testing, it is relevance,
that the materiality is relevance.
-: I think that's a fair way to interpret the statute,
that materiality is relevance, wouldn't it?
And I think relevance in the sense, perhaps it could be
restricted a bit further, relevance in that it develops
the specific defense that was raised at trial, not relevance
in perhaps the broader sense that that word might be used.
You know, for things that often are allowed in a trial that
don't necessarily go directly to the critical issue,
but relevant to the critical issue, the defendant's identity
as the perpetrator of the first degree murder in this case,
I think materiality is nicely defined, neatly defined
as simply relevant.
The Commonwealth cites another case, the Brady case,
and says that that's the standard.
The court has never said that the Brady materiality standard
is what controls for post-conviction DNA testing.
And I would ask the court not to adopt the Brady test
for these purposes because that, again, that's more in the
context of getting a new trial not getting evidence that
could or could not perhaps lead to a new trial
and the standard should be more relaxed in the context of
278 A.
If there are no further questions, I'll rest on my brief.
Judges: Thank you.
-: Perfect timing.
Okay. Attorney Baker.
-: Hold on one second.
Let's see if we can, uh, raise the volume a little bit.
-: Okay. Thank you. I apologize for the delay.
So I would like to address a few points that came up
(indistinct)
I'd like to begin by addressing the period to which
he thinks the evidence is relevant which is
what he referred to as a gap in the evidence.
(indistinct) Counsel indicated there was some of the
fight that was caught on surveillance video and there
was some of the fight that was observed by witnesses.
Now, with regard to the surveillance video, the video
inside the homeless shelter in which the defendant and
the victim can be seen leaving the shelter, they're
walking the hallway to exit.
At that point, the victim is in front of the defendant
and you can see the defendant stop and allow the victim
to go out first.
As they then leave the building, the surveillance footage
is in the parking lot in which you see the victim and the
defendant walking.
The defendant is about ten feet, I would say,
behind the victim at all times and, all of a sudden,
he races toward the victim, and he strikes the victim
in the back.
Justice Gaziano: Mr Baker, let me ask you,
I read the closing argument and the closing argument was
that there was no fist fight at all
and this was an ambush, correct?
-: Right. So the argument was exactly that -
Justice Gaziano: All right, so let me ask -
-: Both parties left intending to fight -
Justice Gaziano: Right.
-: The fight begins with the ambush -
Justice Gaziano: Okay. That's the Commonwealth's theory.
Let me ask you a question, though.
So, if they test the DNA under the fingernails and
it turns out to be the defendant's, wouldn't that show some
type of physical altercation which would make the evidence
different from what the Commonwealth posited?
-: I would say that it would not and here's my reasoning,
as came up when opposing (indistinct).
It's hard to see how striking someone with your fist
would result in DNA material under the fingernails.
And when we usually find that under DNA material,
is actually in defensive maneuver, like uh, say if I
were to strike someone with my fist, and then
they were to grab onto that arm like so, then that
material could be deposited under the fingernails.
And that's entirely consistent with no real
fight from the victim.
Justice Gaziano: Isn't that drawing too fine of a line
in a case where we basically have all the presumptions
go the defendant's way, and it's certainly nothing that
Judge Wilkins considered.
-: I'm sorry, could you repeat that?
Justice Gaziano: Right. That wasn't anything that the
judge below considered, correct?
-: The judge considered that?
Justice Gaziano: Did not.
-: Yes. Right. So, let me say this about the judge,
the motion judge and his ruling.
If it's argued that he applied the wrong standard,
that he's applied the Saferian standard rather than
the reasonably effective standard, (indistinct)
then Judge Cypher asked 'well, you know,
what really is the difference between these two standards?'
And I would guess it's very difficult to parse that out
just based on how the standards themselves are articulated.
And so you have to proceed (indistinct) and look at
what the case (indistinct) are those standards have
been applied.
And with a reasonably effective standard, it has been
applied in the way that the motion judge applied it
even though he articulated it differently.
Now I will call the court's attention here to
Commonwealth record (indistinct) 2009 case out of
this court (indistinct) and in that case, there was hair
that had not been analyzed and the motion judge had found it
(indistinct) and in that case, the court said that
'where evidence could be as inculpatory as exculpatory,
a reasonable effective attorney will not seek it.'
And again, the Commonwealth (indistinct) would stand for
the proposition that a reasonable effective attorney
did not have the ability to seek direct evidence
(indistinct) And so I think that the judge's finding
that a reasonable effective attorney would not have
thought that evidence is correct, even though he
articulated in terms of the Saferian standard,
if he had articulated it a little differently,
with the language that you'd expect from a reasonable
effective (indistinct) you would arrive at the same result.
I also wanted to bring up the issue of the difference
between materiality and relevance.
And for that, I rely on Commonwealth vs. Harwood.
I did my brief on page (indistinct) when considering
the entire record, decrees a reasonable doubt as to
the defendant's guilt does not otherwise
(indistinct)
and I also wanted to make the point that, as far as the
idea that evidence could be relevant when it is a
different (indistinct) well that's strictly true, whereas
(indistinct) could be excluded as irrelevant, however,
it has been said that if evidence
has to be
(indistinct)
proposition, neither of them
(indistinct)
but I would argue that that's
a solid general standard (indistinct) that if
you have (indistinct) proposition which are contrary, and
either of them would support -
Justice Lowy: That's not, you're citing, I think to,
you might be referencing Commonwealth versus Rhodes
which is not an admissibility case, it's a sufficiency
of the evidence case.
As we're dealing here in the context of materiality.
We're not dealing with sufficiency.
So I'm not sure that case is really helpful.
-: I appreciate what you're saying.
I would argue though that that articulation of materiality
or, you know, is generally good.
That being said, again, I would simply fall back on
the idea that either way that this analysis were to
(indistinct) it wouldn't be material to the issue that
he wanted it raise. (indistinct) exculpatory evidence
that that gap that he referred to, I mean it's a clear
inference that there was a fight that began immediately
after the defendant struck the victim in the back.
And the other thing is that the witnesses who viewed
the fight or after the fight never saw the defendant
strike the victim in the back - that's one point.
And number two, the victim was wearing a jersey at the time
he was struck in the back which he then took off before
the fight or the altercation with the (indistinct) help.
And the stab wound in the victim's back lines up with a
tear in the jersey in exactly the same place.
So there is very strong evidence that that strike to the
victim in the back that was caught on camera
is the stabbing of the
victim in the back.
It needs to be explained to you, you know, you can't see
whether there's a knife.
But the inference (indistinct) is that the victim
was stabbed at that point so anything after that that
the victim might have done per the altercation is not
enough to overcome the fact that the defendant (indistinct)
established as the first aggressor and the first aggressor
(indistinct).
-: [Justice Wendlandt] Attorney Baker.
-: Yes?
-: [Justice Wendlandt] Um, testing pursuant to 278 A is
supposed to be relatively easy to get.
-: Yeah.
Justice Cypher: So what, why shouldn't he have it?
Why, what's the big, why does the Commonwealth
opposing this?
-: So, I mean, in all candor, I really do oppose
(indistinct) I agree, it is a very low standard and
I believe that (indistinct) hit rock bottom here where
there's, the evidence is not material, then I feel I have an
obligation under the statute to oppose it.
But certainly I agree it's a very low standard but it
has to be material evidence and if you look at,
for instance, (indistinct), in (indistinct), the question
whether or not DNA should have been done on some cigarettes
that were recovered from the murder scene -
-: [Justice Wendlandt] But here, but, but, just, just,
no, I understand, but this is a little different though,
because, I mean you, you, in answer to a question from
Justice Gaziano you said 'Well, DNA under the fingernails
is less likely, it's more likely to be defensive, uh, than
to be something that where the victim was the first
aggressor, but, I mean, that's, that's speculation, right?
You, you argue that later.
First you find out whether there's DNA there to begin with,
right?
-: Well, that's the thing though, even if it is present,
even if there is DNA under the fingernails, I still don't
think that that is material evidence and those who want -
Justice Gaziano: It, it contradicts, it contradicts
your argument at trial that there was no fight.
And it certainly isn't Moffitt, Moffitt was roadside trash.
-: Right. I don't, I don't agree that the trial prosecutor
argued that there was no fight.
Uh, it was clear there was -
Justice Gaziano: There was clearly a confrontation.
He argued, I'll check again, but my memory is he argued,
or my notes say, there was no fist fight.
There's no physical altercation.
Clearly there's an altercation.
You have two people leaving the homeless shelter
to go fight.
And then, then the Commonwealth's theory is one guy
ambushes the other guy before the fight.
-: Right. Right.
Well I would note that none of the others at any time
could judge anything like a fist fight.
There's a slight gap between that strike to the back
that's on surveillance and then the actual altercation is
observed and nobody at any time is saying this a
fist fight and then a knife comes out.
What is claimed is that there, to use the language of
the witnesses, they 'squared off' against each other,
they circled around each other like boxers before the
defendant stabbed the victim in the chest.
There was one witness, one witness claim that before the
stab to the chest, that the victim produced a screwdriver,
um, now that was only one of the witnesses testified that,
that would have occurred after the strike to the back
which was, you know, clearly a stab to the back and so
you wouldn't change the (indistinct) analysis because
it's not a matter of a fist fight that then escalated
by the production of a screwdriver.
Justice Lowy: I guess, what, what we should go back
to is the definition of materiality.
-: Sure.
-: And, and, and you, and you referenced Harwood I think
Harwood, which is a case dealing with missing evidence
and what the remedy should be.
And Chief Justice Budd referenced that this is a
low standard here.
Why, why shouldn't materiality just mean that the evidence
would be of consequence to the determination of the action
and that it has some probative value for the defendant?
And, and, and here, as Justice Gaziano referenced, well,
it has some probative value to the defendant because it
shows, inconsistent with the Commonwealth's closing,
that there was physical contact.
-: I understand the point you're making true is true,
but I would just say that there is nothing in that
evidence (indistinct) and there is the defendant's DNA
under the victim's fingernails and that is enough to
add an inference that there was physical contact
between the two of them.
That would only be physical contact in the sense of him
touching the defendant with his hand, which did not
escalate the situation where -
Justice Gaziano: That's a great argument for a motion for
a new trial.
-: Well even if he punched someone after being stabbed
(indistinct) I don't think it gets the defendant where
he wants to be.