-: SJC-12925, Joshua Perrier v. Commonwealth.
-: Matteson.
-: Good morning Your Honors
and may it please the court,
Nicholas Matteson for Joshua Perrier.
This case raises the issue of the extent of protection
that's available to a criminal defendant
whose trial is terminated
by the misconduct of the Commonwealth.
The Kennedy Rule set out by the Supreme Court
in Oregon v. Kennedy sets out a minimum of protection
under the 5th and 14th amendments,
but as I point out in my brief,
has been widely acknowledged, the Kennedy Rule
as the totality of double jeopardy protection
in this scenario where a defendant's trial
has been terminated by Commonwealth misconduct
is woefully under inclusive and woefully inadequate
to protect legitimate double jeopardy rights.
And so I am asking the court to recognize
broader double jeopardy rights in the context of
where a defendant's trial is terminated
by prosecutorial misconduct
or negated by prosecutorial misconduct.
-: Isn't Donovan pretty clear that we're not
going to provide that extra protection?
And it's done in the context,
I mean the U.S. Supreme Court issues the Oregon case,
sends it back to Oregon.
Oregon actually creates a greater protection
under its own law, and it's sort of a famous state case.
And then we don't do it.
We do the opposite.
We say expressly, we're following Donovan
and we're not providing greater protection.
Isn't that kind of the end of the story?
We thought about it,
we have a very good decision from Oregon
if we want to provide greater protection.
We don't do it.
-: Certainly Judge. Well, I would say that by its nature,
the common law evolves with the time,
and one thing that this court could certainly consider
in the 20 some odd years that's passed since Donovan
is that both lower federal courts, federal appellate courts,
and a number of state courts have,
even in the time since Donovan,
recognized that the Kennedy Rule
is not sufficiently protective.
And so, while certainly there is language in Donovan
that is relatively clear that at that time,
given the facts of that case, that they are not prepared
to recognize any broader protection,
I would say that the court can certainly
adapt the common law as there's more experience,
both within and without the Commonwealth
in dealing with these issues.
-: Council, does it at all matter that the predicate
isn't in there of a mistrial being ordered
by the trial judge?
Matteson: I'm sorry, Judge, I miss that. Could you?
-: Sure, does it that the trial judge,
when you were asking for the more expansive protections,
does it matter that the mistrial was not ordered
by the trial judge?
-: No, it does not, Your Honor.
And the reason for that is,
and this has been pointed out by several of
the state court cases, particularly I would refer the court
to the Batts case, which is a California case
cited in my brief, where they note that,
cases where a mistrial has been granted
do not exhaust the possibilities of a violation
of double jeopardy.
There can certainly be violations of double jeopardy,
where the Commonwealth, for instance, you could have,
if you imagine the prototypical Kennedy situation
where a district attorney with intent to goad
a defendant into a trial, into a mistrial, excuse me,
commits misconduct.
If that mistrial motion is allowed,
there's double jeopardy protection.
If it's not, but the prosecutor prejudices the defendant
in front of the jury such that the jury acquits,
excuse me, that the jury convicts where they might not have,
you still have the defendant being deprived,
wrongly deprived of the finality of acquittal,
which is what writ large, the double jeopardy principals
are trying to protect.
So if double jeopardy is limited to only those situations
where a mistrial has been granted,
the result would be under inclusive
and arbitrary enforcement of double jeopardy protections
so it needs to be broader than that.
-: Well then going backwards from that then,
if you're looking at the triggering conduct,
the cases that you rely on, they're not this,
they're not this case.
So I'm a little bit troubled by looking at the record
of what happened here,
where it seemed to be a really just an innocent
misunderstanding of the trial judge's ruling
that the trial judge considered and made findings
that it wasn't intentional, it wasn't trying to goad
into a mistrial, that it was just a misunderstand,
it was a mistake.
-: Respectfully Judge, I would suggest that the trial judge
did not find that the argument was unintentional
in so far as it was a product of mistake or accident.
And I think that the judge had found that,
which I don't believe he did,
intentionally in general intent sense, in the sense that
the content of the argument was intentional.
I don't think the judge found that and if the judge had,
I think that would be clearly erroneous
given the facts of this case.
There was a clear motion in limine
the district attorney said at the time,
"Here's what I want to argue in closing.".
The judge said, "I hear, I understand you.
I hear that, but I'm allowing the motion in lim.".
The district attorney makes that exact argument
with a slightly different theory of how it was admissible
that I would say was an unreasonable interpretation
of the judge's...
-: I have the same issue that Justice Georges did
that I want to be able to apply the right factual predicate
'cause that's not my understanding at all.
But like Justice Georges', I thought that the trial judge
was saying that it was a mistake, it didn't constitute
deliberate, intentional, or egregious misconduct
and that's completely understandable response
because it was concern that someone 19 has a lower BT
and all she's doing in argument is drawing inferences
about conduct based on age.
And quite frankly, I'm not sure it fell
within the prohibition.
-: So Your Honor, I think it's important to...
Well, stepping back, if you look at the judge's findings,
he did make findings that it wasn't,
I think as he phrased it,
sufficiently intentional, deliberate, or egregious
to give rise to presumptive prejudice.
It wasn't sufficiently intentional, egregious
or deliberate to hold the Commonwealth in contempt,
and that it wasn't motivated by a specific intent
to goad the defendant into requesting a mistrial.
-: So then why isn't Justice Georges right,
that this is just not the right case to determine
whether you need to have that lam hue to goading
be a requirement of goading the defendant into a mistrial.
And these facts just don't raise the issue
as to whether we should revisit Donovan.
-: I think there's an important distinction here
between a general intent to make an offending argument
and a specific intent what's motivating that misconduct.
I think that the Batts case in California is a good example
because it's fairly analogous to the facts here.
In that case, there was a pretrial evidentiary ruling,
excluding certain evidence.
At some point, the district attorney in that case
felt that the defense attorney had exploited that ruling
to create an inaccurate representation to the jury.
So during a break in cross-examination,
the district attorney went to their witness,
who was on the stand,
and said, "I'm going to ask you, I'm going to elicit
from you this evidence that the judge excluded.".
-: You have a tough road to hoe given the clearly erroneous
standard and the judge's facts on the ground.
I mean, here we're dealing with the age of the defendant,
which the jury can see, right?
Does it hurt?
I mean, he said that he's a young kid who was impulsive
and guess what, in front of them is a young kid
who's on trial.
-: Yes, Your Honor, the distinction
and why the defense filed and argued the motion in limine
was to present the inference that there's a lower standard
that applies when somebody is under 21.
Certainly the jury can look at the juror and go,
that's a young gentlemen.
The difference though, between a 22 year old
or a 23 year old and a 20 or 19 year old
is not something I would expect the jurors
to be able to distinguish with that granular effect.
And that is where the prejudice lied in this case.
-: But your prejudice seems awful speculative,
given the serious nature of the allegations
you charge against the prosecutor.
-: Respectfully Judge, I disagree.
The judge found, there was a motion in limine.
The judge found that this would be under rule 403
that the prejudice would substantially outweigh
the probative value and the DA made that exact argument.
It's worth pointing out here that
if the district attorneys thought, "Hey trial judge,
your ruling was limited in this fashion,",
which is what she alleged in her brief,
which was not how the judge allowed the motion
or what the motion, the relief the motion asked for,
but if indeed, she thought that,
there would be a very simple expedient here,
which is, "Judge, can I approach sidebar?".
-: It's called a mistake, right?
And that's what happens at trials.
Mistakes happen.
-: Certainly Judge,
but this particular mistake where the judge makes a ruling
that certain evidence is prejudicial and importantly,
not able to be cured by a limiting instruction
because the Commonwealth asks for reconsideration
citing that argument and the judge rejected that.
If the district attorney then makes that exact argument,
putting those exact facts before the jury,
asking the jury to imply that the defendant is under 21,
based on not on the fact that you listed, but on...
-: No, I get your double jeopardy,
as Justice Kafker brought it out,
I get your double jeopardy argument in your
well-done brief that says we're not doing enough
in the scourge of prosecutorial misconduct.
The problem you've got is that's an awful lot to carry
on some facts that really aren't as troubled
as maybe you think they are.
-: I'm going to follow up with Justice Gaziano's point
because you were cut off before you were making your point.
You said this was analogous to Batts.
This is not analogous to Batts.
I mean the prosecutor made a concerted decision
to go to the witness and say,
"I'm going to ask you questions that are going to elicit
an answer that the judge told me that I cannot do,
and I'm going to do it because I'm annoyed that
the defense counsel seems to be taking advantage of it.".
So this is apples and oranges to Batts.
This is if a trial judge said to me,
"At the time of the date of offense,
the defendant was 19 and defense counsel filed a motion,
said that I don't want any reference to
the defendant's age of being 19.",
and the judge sanctions that and says you're okay, allowed.
But then there's the prosecutor brings out testimony
that the defendant was young or looked young,
isn't that a good faith misunderstanding
that it's not just 19, but it's anything at all
that refers to the youth of the defendant?
And that's what happened here, isn't it?
-: Respectfully Judge, no.
What happened here was there was a clear ruling
that the motion was phrased as to preclude any reference
to the defendant's age as being any reference
to the defending age and arguing the motion,
defense counsel said, "Any time there's a reference
to my client being under 21, that rages prejudice.".
The judge allowed the motion, agreeing with
the defendant's argument and the DA in this case,
in theory, understanding all of that said,
"Well, the judge only allowed the motion
as to the age of 19.", which the judge never did.
If you look at the record,
he allowed the motion as it was phrased,
and as it was argued.
-: Right, but that's what I'm saying, I guess.
I guess we're just disagreeing on this
because somebody could say age, meaning the number,
the numerical number, and not any reference
to being young, inexperienced, youthful, whatever
that he allowed it as to the number.
And that's why I'm saying that this is a tough set of facts
to say that if we're not doing enough,
this is the case that we have to now say,
we're going to do more.
-: Well, Your Honor, what I would say to that is,
I don't think if you look at how the motion was phrased,
how the motion was litigated,
I don't think it would be reasonable for
the district attorney to understand that although
the age of 19 would be more prejudicial than probative,
particularly where the defense counsel raised the point
that the issue is references to him being under 21.
I don't think that the district attorney
could reasonably understand that while his specific age
is more prejudicial than probative,
I can explicitly ask the jury to infer that he's under 21
and avoid that prejudice.
I don't think if you look at the motion,
how the motion of lim was litigated, how it was argued,
I don't think that is a reasonable interpretation
of the judge's ruling.
And with my time running short,
I'll just raised one last issue,
which is even if the court declines to recognize
further protection under state law,
there's a sort of residual question about whether this court
under federal law should adopt the analysis
in the Wallet case, The Seventh Circuit in the Caton case
also recognize additional protections
where there is not a mistrial granted,
which would be the facts here.
Thank you, Your Honors.
-: Thank you, Mr. Matteson. Mr. Townsend.
-: May it please the court,
Thomas Townsend for the Commonwealth.
This was a mistake.
The defendant filed a motion in limine,
it's on page 14 of the record,
motion in limine to prevent reference
to the defendant's age.
The prosecutor took that to mean,
do not elicit testimony as to the defendant's age of 19.
And she took contemporaneous notes
on her copy of the motion, not to elicit testimony
as to age of 19.
In his opening statement, defense counsel
referred to the defendant as a young man.
The prosecutor later, in her closing argument,
referred to the defendant's youth.
There was an objection, went to sidebar
and the prosecutor immediately said,
it was almost an excited utterance,
"Your Honor, your ruling had to do with testimony,
this is argument.",
and the judge said, "No, no, no.
I meant to include any reference.".
The prosecutor said later on in the motion for new trial,
she explained how she made the mistake
and she said that the defendant's appearance is evidence.
I took that as I could argue his appearance
but I couldn't elicit testimony
and in my opposition to the motion for new trial,
which is in the record at page 323,
I cite a case law into the Massachusetts Guide of Evidence,
Section 1113, which says the appearance and demeanor
of a person in a courtroom is evidence
even if the person does not take the stand.
So it was an honest mistake by the prosecutor
and the judge so found.
The defendant says, well, there was no explicit finding.
I disagree with that.
On page two of his written decision,
denied the motion to dismiss,
which is located at page 37 of my addendum,
the judge explained why he was not going to
use double jeopardy bar to prevent a retrial in this case.
And he says, quote, "Even if in the event
the current rule was to be extended to include cases
which no mistrial was declared, The Supreme Judicial Court
has declined to extend it to include unintentional
prosecutorial mistakes.".
So that's what we have here,
an unintentional prosecutorial mistake.
I think the record is clear on that
and it's not clearly erroneous.
This was the trial judge.
He heard the motion, both the motion for new trial
and the motion to dismiss.
He heard the prosecutor's explanation at sidebar
in the heat of the moment.
He heard the prosecutor's explanation at the motion
for new trial, where as an officer of the court,
she addressed the judge and explained
how she had made the mistake,
and that's what it was, a mistake.
And the double jeopardy bar was never
intended to reach mistakes.
That indeed was the exact argument that the litigant
in Donovan argued that too included
an unintentional prosecutorial mistake
and that was the argument citing the same cases
the defendant today cites and this court found
those cases to be not applicable because
they involved intentional misconduct,
whereas in Donovan, it was unintentional.
Here, likewise, it's unintentional.
And I agree it's a common law rule and can be adapted
to meet the evolving times and changing circumstances,
but there should be some showing that the current rule
is unworkable or has proven to be unworkable.
There were very few cases raising a Donovan claim.
I suggest that that shows that this is not
an unworkable rule.
I pretty much covered the waterfront in my brief,
pages 22 to 23 citing to those cases,
there's not a whole lot out there.
There's not a whole lot of claims.
-: There are a lot of out-of-state cases
that don't like the rule.
Where states have provided greater protection
on top of that.
I'm not saying we should do it,
but there is a lot of dissatisfaction out here
when we look at the case law.
-: Right, in the highest courts in those jurisdictions
may proceed a rule of prosecutorial overreach
and overzealousness and...
-: Can I asked you a separate question?
So you have a number of ways of winning.
You can win on just the basic fact-finding,
which seems to be very, very solid.
You can also...
Do we have to decide the issue of if it weren't granted,
if the motion for new weren't granted,
I think that's the sort of the trickiest issue,
at least from my perspective, at this point.
-: I understand Your Honor's question
and that's why I led with the factual issue.
There's no need to get to the legal issue,
which may and under the right set of facts in another case
present an interesting issue,
an interesting question for this court.
Here, the judge found is unintentional
prosecutorial mistake, and there's no reason...
-: I'm just trying to figure out...
Imagine a situation where the judge makes some comments,
I think you're trying to goad this, but I'm not granting it.
What do we do then or do we not decide that today?
-: Well, goading would fall right on the lap of the...
Kafker: But don't you have to get
your motion granted too? That's the...
-: That would be the question for the future case.
So if you do have a case where there is intentional goading,
but the mistrial is denied, it's not reserved
for post verdict, it's denied on the spot,
I would argue in Oregon vs. Kennedy would back this up,
that the right that's being protected
by the double jeopardy clause in that situation
is the right to have the defendants
have the panel jury decide the defendant's case.
So if it is denied, he's still getting
the panel jury to decide the case.
Whether it's guilty or not guilty or hung jury,
that's the right that's being protected
in Oregon vs. Kennedy.
And the Supreme Court was very clear about that.
Now there's other courts saying,
well, maybe we don't have an intent to goad,
but perhaps we have intent to torpedo a sure acquittal.
And there are certain cases we'll say,
well, if it's an opening statement error,
well there was no attempt to torpedo an acquittal there,
because it was the beginning of the trial,
or if there were a strong case for the prosecution,
there no intent there.
But all these issues can await a future case.
This is not the case.
I mean, Donovan has proven workable,
Massachusetts prosecutors to the credit
are not trying to goad mistrials.
There's really no viable Donovan claim
in the 24 years since Donovan.
The only case I can think of is where a judge actually found
Donovan as a bar was the Curtis case that went up to
the Appeals Court and Justice Lenk on the Appeals Court
reversed and said there was no intentional misconduct.
Other than that, I'm unaware of any prosecutorial goating
that would give rise to a double jeopardy bar
and certainly not present in this case.
And unless the court has any further questions,
I'm willing to rest my brief.
Gaziano: Thank you, Mr. Townsend.
-: Thank you very much.
Bailiff: All rise.
Hear ye, hear ye, hear ye.
All persons having anything to do for
the honorable justices of the Supreme Judicial Court
now sitting at Boston within and for the Commonwealth.
Their presence departs sitting of this court
is now adjourned.
God save the Commonwealth of Massachusetts.
Court is adjourned. Thank you.
Please remain standing as the justices exit.
Thank you.