Announcer: SJC-12953
Commonwealth V Adrian B. Hinds.
-: Looks like we're waiting for Ms. Fronhofer.
You're on mute and we can't see you.
There you are, okay. Fronhofer: Thank you.
-: Morning?
Fronhofer: Good morning.
Shall I begin your honor?
-: Yes, please.
-: Thank your honors.
Elaine Fronhofer for Adrian Hinds.
My goal is to have time to discuss
at least the tuition port requested Amicus briefs on
and I'm gonna begin with the trial judge's refusal
to allow Mr. Hinds to exercise
his final peremptory challenge.
At the very beginning of trial
the judge informed the parties
of how the stages of empanelment would proceed
including stating, "We'll seat 24 or so people",
in other words, not a specific number.
And so the judges general statement
about the order of empanelment,
his statement about the approximate number
of potential jurors that would be seated,
his related comment about the possibility
of a second round of peremptory challenges
and especially the speed with which trial counsel
requested the final peremptory when she realized
the judge was not going to seat any more jurors,
which was really almost immediately
after she exercised her final or prior peremptory challenge
when really nothing of any significance
had happened in the trial and before,
well, before the jury was sworn.
All of these factors taken together
establish that the trial judge erred,
when he denied Mr. Hinds his ability
to exercise his final peremptory challenge.
Fundamentally, the statements by the trial judge that
-: Counsel, can I interrupt you on that?
-: Yes.
-: Should we not at all focus on the juror that counsel
was seeking to exercise the peremptory challenge to?
And I mean that, the reason why I'm asking you that is,
why the multiple opportunities for counsel
to strike this particular juror and it just didn't happen?
-: Multiple opportunities or not, I mean
-: There were multiple opportunities to exercise
a peremptory to this particular juror, wasn't it?
-: No, I don't think so.
I think the judge, I mean, the judge did lay
out this much clear that there was gonna be
an opportunity after attorney Voir Dire.
So he turned and said, you know like you have you know,
to ask the Commonwealth to exercise theirs
and then ask the defendant to exercise theirs.
There was only
that one opportunity to exercise peremptories.
-: Okay, don't mean that they,
my reading of the record was that
there were plenty of opportunities
for this particular jury, juror to have
the attorney have an opportunity to exercise peremptory
to strike this particular juror.
Am I wrong about that?
-: Yeah, I think you are.
I don't understand
why there would have been another opportunity.
The judge, as he laid out in the beginning here, you know
what the different opportunities, sorry, what the order
of the empanelment would be, he only said there was gonna be
an opportunity to exercise peremptories
after you know,
you've been through getting all the jurors
after attorney Voir Dire and then there could be
another opportunity if there was gonna be
another round of jurors.
So then this was the only
-: I'm confused then, because I, like Justice Georges
I thought that when the defendant
struck five out of the six jurors
he had a, there was an opportunity
to strike this juror and that wasn't taken.
And then a couple of minutes later, there was a,
an attempt to back strike the juror that was passed over.
-: Correct, no.
That is exactly right, excuse me.
-: So I guess my understanding
was the same as Justice Georges.
-: Well, like I may be misunderstanding
what Justice George was saying.
Like, there was, there's this discrete time after, you know
two full days of empanelment had gone by,
and the judge said to the Commonwealth
to exercise their peremptories
and then turn to, and then there was a source challenge
and then become towns counsel call, was called up.
She exercised the five and then she,
and then at that point the Commonwealth exercise
interjected a source challenge.
And then the judge said, "Okay."
And then the clerk started to read the numbers
as if this was gonna be the jury.
And that's when she realized it was literally
it would have been within
seconds of her final peremptory challenge
but it was all within this like couple of minutes.
And again, nothing of significance was happening.
There wasn't, the Commonwealth didn't
objection, object to this.
It was just, I guess the,
yes, there was an opportunity when she exercised
the five but that's kinda the whole point of this
that was just that one opportunity.
And it wasn't too far off.
And it was not an explicit statement
that it was so clear to the parties, to the litigants
that this was gonna be their only opportunity.
-: Oh, well.
-: Counsel, can you help me with the record a little bit?
I thought what happened was that
after the defense counsel exercised her five peremptories
then she, then the clerk started reading
who would actually serve on the jury.
And then she realized that she had miscounted
and so said, "Oops, your honor, I miscounted, can I,"
and you're saying that that requires
a reversal of the entire conviction?
-: Well, like the requires reversal of conviction
is that she was, Mr. Hinds was not allowed
to exercise his final peremptory challenge
which our courts are clear when you have
a valid peremptory challenge
that you don't get the right to exercise
without even establishing prejudice because this is
such a significant right that requires reversal.
And here, -: Now, even though
it was really her mistake
in miscounting the available jurors?
-: Yes, and I, but I mean, I do think that her saying,
"Oh you know, I'm sorry, that was my mistake."
Shouldn't be taken a little bit with a grain of salt.
I mean, she clearly doesn't wanna offend the judge,
but the judge didn't actually give an,
a clear statement of how, I mean
how she would have even known what is
a little bit confusing because he didn't,
it this is getting two days earlier when he
gives sort of a general order of events,
he says "We're gonna see 24 or so people."
So when she says, "Oh my mistake, I'm sorry.
I must've miscounted."
I'm not sure she's really being, you know
not just really trying to be a little bit diplomatic there.
-: Well, you know, there was some concern
that there might be a second panel
but I don't really think that there's much confusion.
Whether, what the judge may be should have done
as a matter of discretion is one thing.
But what happened here is empanelment is difficult
and now that this attorney who idea is very
pro protracted is quite honestly incredibly exhausting.
And we've reached a point at the trial
where the defendant has passed over this particular juror,
and made the decision about the peremptories
and trial attorneys understand well,
okay now we're at the end of the empanelment
that the jurors has been passed over.
Everyone is indifferent, let's stop.
And you laid out pretty carefully in your brief,
the timing I think you had a five minute delay-in
between the last peremptory and the judge's denial
of additional peremptory.
What, might've been the perfect thing to have done
is one thing, but I just don't see where there was
an error here and was referenced by Justice Midland,
I mean, we gonna reverse the conviction
because the lawyer passed over this juror,
seems like you had an indifferent jury
and then she wants to exercise it later and judged us later.
And now we're going to reverse the conviction?
-: Well, I think the important issue is, you know
you say five minutes later, but I wanna point out
that almost all that time was taken out
because they Commonwealth interjected a source challenge.
So really she said it, the source challenge, they,
and within seconds of her realizing
that there's gonna be the jury
and there's not a second panel, she interjects.
So I do think it was an abusive discretion
not to give no leeway when the, you know
what rule six four says is that,
a judge can require a specific time.
But I think given how significant this right is
that requirement should be explicit
and it shouldn't, and then there's that
and then it wasn't a specific, an explicit requirement.
And then the other end, the timeframe
for when she exercised it, when she realized,
Oh, I this is my opportunity to do it,
I don't, I'm gonna exercise it.
It was so close to when she had exercised
her last peremptory.
Those two things taken together,
I think trials judges should, you know
if they're going to take away
this incredibly significant right that parties have,
they should require to have it
be a pretty explicit requirement.
It's not that much to ask to say, you know
at the beginning of trial,
this is gonna be your only opportunity
or when they're calling them,
this is your opportunity you know.
And then she said, I said, you know
there wasn't, do you wanna exercise your last one?
You know, nothing.
They did separate.
So I'll just say that, say
that you are focusing on the first conviction
-: You first abdicated expert testimony issues to address?
-: Yeah.
-: Let's turn to those.
Thank you, your honor.
So the first one I'm gonna address is the issue
of the trial judge's decision to preclude Mr. Hinds
from calling his experts who were going to testify
about the symbolic significance of the victim's
Nathaniel Cherniak's tattoo.
Hinds testified he had been the victim
of a series of seemingly racist acts by unknown persons.
-: Counsel before you get there, could you just address
that so, that seeming that there was an issue
about whether or not this should be subject at all
to Daubert-Lanigan.
Can you get to that issue
before you get to the substance of it?
Do you think that this is the kind
of thing that needs to be subjected
to Daubert-Lanigan hearing?
-: You know, I was the one who raised that
because I couldn't find any cases where
it said Daubert Lanigan applied to this person, testifying
about the significance of meaning of a tattoo.
Neither has the Commonwealth been able to find it
but it, I do actually agree with the Commonwealth
that Daubert-Lanigan should apply in order to show evidence.
The evidence is reliable.
It does require someone with some unique level of, you know
knowledge or training and an assessment
of how sound the reasoning is.
Georges: Thank you
-: But I do think it's important to note that Daubert
and Lanigan were both cases that were created to expand
or develop, I guess, to expand the body of relevant facts
that could even be introduced into evidence to allow
you know, novel, but reliable evidence to reach the jury.
And so I think that's one, an important point to make.
I'm gonna go back, probably some of that again
but I'll just say that here in this case,
the significance of the testimony
to the case is important to recognize.
So Hinds had this testimony that, you know
he was the victim, everything he did was in self-defense.
He was, you saw this Manchuria slash his tire.
He goes out to verbally confront Cherniak and..
-: What?
Can I stop you there for one second
'cause they've, the victim and the defendant
are one point friends, they're even talking
about starting a business together.
So is all of this just kind of nonsense,
because the, you know, they're, again they're friends,
this isn't sort of a, I mean it may have turned racist,
but it doesn't, they start out as buddies.
They have a falling out,
so why should we,
why should we be looking at whether he's got, you know
a racist tattoo on, 'cause it's gonna be inflammatory
and it may have nothing to do what's going on here.
And it probably doesn't
-: Well, that's one way of looking at it.
But another way of looking at it
from Mr. Hinds perspective, is that it does.
And it's, you know, what you're talking about is the wait.
And that's something for the jury.
-: I understood the judge didn't do a prejudicial
versus relevancy analysis of this.
He rather approached it through a Daubert.
-: Right, and the problem was that he didn't do
a prejudicial versus probative analysis,
but he inserted a prejudicial prong
into Daubert-Lanigan, but doesn't apply.
So that's just one of the problems
with his Daubert-Lanigan analysis.
The other is that, he basically, what he said was the,
sorry I lost my place, that the, I don't agree with what
your conclusion is that, that this tattoo is the same
as the, tattoos of the symbols that you have shown me
at these hearings, because the font doesn't match the font
on Mr. Cherniak's arm.
And of course, this is despite the fact
that both experts testified that there was not
one unique way at the, that the number was written
or tattooed, despite the fact that the evidence submitted
that photographs backed that testimony up.
And despite the fact that there was no evidence
to contradict that.
So it didn't even make sense is the judge
-: Can I?
Ms. Fronhofer I had to take away
and when they're two evidence professors
on the panel, besides me, and I'm not an evidence professor
but these they're both scholars, right.
They're both scholars of racist movements or, right?
-: I guess, after Bjork James more.
But yes, I was
-: And then during sort of traditional scholarship,
they're looking at documents, they're, you know
they're going through databases just seems like this is kind
of a weird Daubert-Lanigan case, but I may,
I will defer to the two experts,
but can you address, which I guess makes your point,
this is really a way to the evidence issue.
It's a traditional scholar,
doing a traditional kind of analysis
of documents and symbols.
Fronhofer: Right.
-: What I am talking about.
So this should have been a wait issue,
that's essentially, is that your argument?
-: Essentially yes, your honor.
Yes, I mean they, I mean, I just think that
for in a standard Daubert-Lanigan analysis,
I mean, I think the reason why it does never,
you can't find any cases
is that this evidence just comes in.
It's not that, it's not rocket science.
You know, like there are scholars, they look at,
they do the research, they read the FBI reports,
they look at the Southern Poverty Law Report.
They read whatever you know website that makes the pictures
and they say, you know, I'm a sociologist
or I'm a cultural anthropologist.
Yeah, that's what this tattoo means, I can tell you that.
That's not a typically would not
be something that would be present such an enormous problem.
So the second flaw that's important to note about
not letting it in is that he was so focused
on the gang affiliation that even though there was,
it was absolutely clear, you know,
the defense counsel could not have made clear
that he, that they were not going
to be alleging he's a gang member or not.
And even that, he's not even, he's a white supremacist
but the fact that he has a tattoo of a 211
that is affiliated with a group out of New York City,
that's a white supremacist group
where Mr. Cherniak comes from,
that's relative relevant evidence.
You know, I think..
-: Counsel, can I ask you a question about that?
It seems like at least expert De La Cruz,
found that out by Googling, is that a reliable method?
I'm just, I was a little confused by why
that expert was not kicked out on reliability.
That is that there was some recollection of the 211
and so she goes on Google or he goes on Google
and you know, and says, "Oh yeah, that's right.
That's that crew out of Colorado."
And maybe there's some experience with that crew
but then the extension to the "Bootboys,"
I guess in, New York City?
That all comes from Google searching, is that..
-: No, he didn't say that all came from Google searching.
What he said, was he, sorry again, let me do it
What he said was I did Google it.
And I wanna say that Google is a powerful search engine.
You know, what if I'm trying to remember the name of a case
and I just remember like a phrase I could just Google it.
And then I go into Westlaw and, you know
I can do my Westlaw research it's just that the fact
that somebody might Google something to, you know,
get to the Southern Poverty Law Report
or get to the FBI report or get to, you know,
the myriad sources where these people
you know, share information.
I don't think that negates the validity of your research.
And that's, and I don't think he said that
but even if he said that, and you could kick out
Dr. De La Cruz on because he used,
cause he said the word Google or use Google,
which I don't think is an appropriate way to kick him out.
I think that that's certainly not what
Dr. Bjork James testified to.
So I think that at least that should've come in
and, you know, I think here, the point is that this
was not a slam dunk case for the government.
He, Mr. Hinds was acquitted of four of the six charges.
He, the independent eyewitnesses accounts,
were not consistent with what the victim's alleged.
Here he was the only witness in his defense,
the government put on 17 witnesses,
this depriving him of this information you know,
definitely could have tipped the balance in this case.
It, you know, we didn't, we don't have to prove
that he wasn't would've won the case at this point.
We don't know
-: Chief may I ask another area in the
expert testimony. -: Yeah, quick.
-: Thank you.
I think what you need to take a big step back
because everyone's, you don't start
with expert testimony you start with relevance.
And the relevance from the defendant's perspective
points out why the Commonwealth brief makes this the point.
because they are focused on whether or not
the symbol allows testimony as to whether
or not the victim is a gang member.
And that's just not why you're offering the evidence.
You're offering the evidence to, on the issue
of self-defense and who is the first aggressor
and the reasonableness of the response, correct?
Fronhofer: Correct.
-: So if that's the case,
was there testimony that your client had any knowledge
all the tattoo and what it meant?
Fronhofer: No.
And, but I wanna say this about that.
-: But that's the problem, isn't it?
-: No, it's not.
I don't think so.
And I'll tell you why.
I think this is akin to the situation of where
the courts now allow evidence of,
in a self-defense case like this,
evidence of the victim's prior act of violence.
-: I have looked everywhere for an adjutant case
and adjutant is not cited in your brief.
It's not cited in your reply book.
I assume it wasn't presented to the judge.
What you're saying is you wanna put on
evidence of the alleged victim's character
for propensity purposes to make it more likely
that he was the first aggressor.
That's Commonwealth versus Ajiton.
Not only is it not mentioned in your brief
or your reply brief, was that theory?
By the way, not a bad theory.
Was that theory in any way presented to the judge.
And was there any argument made
that if there is no prior bad act of violence, it's a symbol
was really suggestion that adjutant
would reach that far which we've never done?
-: I think that your, yet and your honor
that's just my filing that I didn't think
about adjutant until after I file my reply brief.
So, but..
-: I know but I'm not concerned about that.
I'm not concerned about that.
I'm concerned that the trial judge,
the defense attorney never presented this
to Judge Ricciardone, this is complicated.
I mean, we don't have time to get
into all the complexities that have been touched
upon on the expert testimony
but this is incredibly complicated on relevance
and on the alleged victim's character for propensity.
That theory that you didn't mention in your brief
that you're mentioning now, that's very interesting
was never presented to the trial judge to analyze.
-: Well, I don't know that it was never presented.
I think that, that was, you know, I think that's implicit
in what you, why you would want the jury to know
that the victim has a 211 tattoo.
There's not, they're not really too many other ways
to read that, you want us you, it obviously is mean
he said, I understand what you're trying to say.
I understand you're trying to say
that he's got this 211 tattoo, but that's, you know
that's pretty prejudicial and I, how else would you,
why else would you want it that, you know,
and she never said that Hinds knew that, you know
the two that he had a 211 tattoo
or what it meant, most people don't.
So I don't think
that this is such a out of left field thing
that the judge wouldn't (coughing)have understood
that that's why it was presented.
-: You understand, I hear you.
You understand though and you would agree that,
this is not an issue that's preserved the argument
that you're making now that it's a substantial risk
of miscarriage of justice analysis that we have to do.
-: I, well, sorry, I guess I would say that
was preserved, that we wanted to present this evidence
that it was crucial to the defense,
that it tied into the defense as to why
the whole self-defense argument
was, it corroborated Hind's accounts.
And so I don't think it wasn't preserved, no I..
-: Counsel, I just wanna make sure I understand
this particular part, not the notice part.
But are you saying that there's no dispute
between you and the Commonwealth,
that the trial judge better finding that it least
with respect to the first expert, that they were qualified
as an expert under Daubert-Lanigan, and it's the other part
that the disagreement with the conclusion
that you say was the abuse of discretion?
-: Yeah, I'm sorry.
Might not have understood your question.
-: The justice Wendlandt's point,
are you saying that the judge made a determination
that the former gang member?
I can't remember his last name is it DeLaCruz?
-: Yes.
-: Okay that Mr. De LA Cruz met the test
of Daubert-Lanigan to be of age to the jury?
-: Yes.
-: You say you're conceding that there's at least,
no dispute about that.
-: Well there's no dispute.
He said he's an expert, I agree he's an expert.
He just doesn't agree
with their methodology. -: Okay.
-: But in fact, he's saying, I don't use you
he does the same thing with Dr. Bjork James.
-: All right, thank you.
That's what I just wanted to make sure
that we were on the same page with that.
-: And I just wanna say
that the error on this part of the judge
on this part of excluding that important evidence
to the defendant's case should be viewed in combination
with the other evidentiary errors that the judge made
where he kept the Dr. Zeizel out
without doing the proper analysis of the psychologist
and the preclusion of other evidence coming
that they were not an exception to the hearsay
when it clearly were an exception to the hearsay.
And I guess I wanna say this once I go
about prejudice versus probative.
In this case, the government was allowed
to present evidence that of nine month old text messages
that Mr. Hinds sent to Cherniak.
These were pretty prejudicial, but if,
and pretty remote in terms of probative value.
So that just, it just seemed that the judge was, you know
had this heightened concern about the prejudice
of this testimony and inserted it
into his Daubert-Lanigan analysis improperly.
And yet all sorts of prejudicial information
was going in against the defendant.
It really deprived him of his defense.
And I wanna say, just in a broader space
that defendants are gonna always be
at a significant disadvantage when getting
this information in.
And all of the cases we can find,
it's only the prosecution that gets to put this evidence on.
So to create this new and higher standard
just for defendants is kind of unfair.
And I think that it's not completely legitimate,
but it's not, but I certainly think
there should be some recognition
that defendants need to put their defense on.
And in all these other cases, these, it was pretty
much police officers who defendants don't get to call.
And so
-: Just to ask you what you mean by new and higher standard
for defendants wanting when they want it?
-: That it has basic, I mean
I say new and higher standard
but really what I'm saying is not the erroneous standard
that the judge used, which was
that I need to agree with your conclusion,
which is really should it be for the jury.
And I, and I need, you need to show me
that you can prove he was a gang member,
even though you're not saying he's a gang member
and you need, it needs to not be so prejudicial
even though that's not part of the job.
-: But Obviously that's not the, that wouldn't be
the correct way to do it for him either or anybody?
-: Correct.
-: Okay, very good.
Thank you.
Okay, Mr. Coliflores.
-: Morning, and may it please the court
Joseph Coliflores for the Commonwealth.
I'd like to begin by addressing the experts appeal.
Daubert-Lanigan has long applied since Kumho
and most recently in November, in earnest.
In which this court held that Daubert-Lanigan applies
both the hard and soft sciences.
Therefore when judge Ricciardone looked
at these two experts after two days of evidentiary hearings,
he was well within his discretion to find
that there was no reliable methodology underpinning
either of the experts opinion that Mr. Cherniak had in.
-: Let me jump in on that, because that's the reason
why I was asking your sister about the issue of whether
or not they met the test for being qualified as an expert.
So if that's the case,
why are we looking at the reliability?
Because it would seem to be baked in to the fact
that the judge made the determination that they are experts.
And the point that your sister was making was
we're past that with the trial judge
that he made, the determination
that they met the test of 702.
But it's the conclusion that they had the problem with.
Well, if the reliability was faulty
doesn't that go into the threshold question
of whether or not you have anything to offer?
-: Yes, your honor.
And when we're looking at the common law guidelines,
there are certain factors that an expert has to meet
before that person is qualified to give an opinion at trial.
Part of that
yes is being a well-educated expert within their field.
But also part of that is looking at the underlying theory
and data and knowledge that is used
and then how it is applied to the matter at hand.
Now, Judge Ricciardone gave his findings after a full day
and he gave it orally at the end of the day.
So I believe that
while he may have said some things that may cross line
to of the ultimate opinion, not agreeing with it.
When we're looking at the totality of his findings
he majorly disagrees
with the underpinnings of that conclusion.
So he really is finding no reliability
to how they researched
and how they applied that research to these two experts.
So I would disagree with counsel that
Judge Ricciardone is, or the Amicus question
that he might be conflating the issue of reliability
of theory and reliability of the ultimate conclusion.
When we're looking at let's start with Dr. De La Cruz.
He talked about eight factors and he referenced this
both in his thesis as well I believe in DOJ gang criteria.
These factors include an interview
and general history of the defendant,
the educational background, prior criminal history,
criminogenic family history, substance abuse
association with known gang members,
employment, and lastly tattoos.
Now it was a long Daubert hearing
for Mr. De La Cruz and ultimately,
and I just wanna read this quote out to you.
"I haven't had the opportunity to do any of the things
that I usually do in a court case, right?
So I, I have to just base it on the tattoo."
That answer was given on redirect
after questioned by the defense counsel.
-: To determine what?
-: To de..
-: To determine what?
-: The question or ultimate?
To, the answer is to determine
whether or not he's a white supremacist.
-: No, to see whether he's a gang member, right?
-: Yes, In my mind..
-: Two different things.
Two totally different things.
This is not what the defendant theory is.
You're arguing something that's not the defendant's theory.
The defendant's theory,
you just pointed out the criteria
for whether or not somebody is a gang member or not.
And tattoos is one ingredient that an expert
might indicate goes into the analysis
as to whether somebody is a member of a gang.
That's not their theory of admissibility, nor is it
their reason for offering expert testimony.
They point this out in the reply brief.
So, that's not, maybe what you're gonna say is,
"Oh, this is a new theory."
They didn't tell this to the judge.
But what they are saying is that
the tattoo is evidence that he is a white supremacist
and that this is a racial incident
and it makes it more likely
than without the evidence that he is the first aggressor
under Commonwealth versus Ajit.
So when you talk about whether tattoos
are only one out of the factors,
will you talk about whether or not this tattoo
would show that that they are gang members.
That's not answering the theory
of admissibility on which the gang member,
in which the evidence was being offered
according to the defendant's brief.
Now you can dispute it and say, no, that's not
what was litigated at trial, that's new.
And if that's the case, I'm really interested in hearing it.
But the issue is not whether or not the expert's testimony
satisfied gatekeeper reliability
that he was, he's the victim of a gang member.
That's just not their theory on appeal.
-: And I tend to agree, your honor.
When we're looking at the Daubert-Lanigan gatekeeper,
these factors are going to whether
or not he is a gang member.
And I think that is a major problem with this expert.
Whether or not there is a relevancy
to a self-defense claim where a defendant
leaves his apartment to engage in somebody
or whether or not there's a defense of property
or if there's adjutant evidence, is another question.
When we're looking at this,
this is Dr. De La Cruz, is from California
and he spends at length and including his thesis discussion
discussing these eight factors.
And so the totality of that
is that he's looking whether or not it's a gang member.
Now, he only, admittedly he only looks at one
and there's been a lot of discussion of this tattoo
and the 211 numerals on it.
But I would argue that, and I think this is what
Judge Ricciardone was trying to get at.
It's a 211 tattoo.
And the matter of brief, I believe goes after the fact
that he's mixing up the conclusion.
But I would argue that to go, to let this opinion
in on this kind of basis
where we're discussing gang affiliations,
where at trial, the defendant states
that the victim admitted he was a member of the gang
but trial counsel says we're not arguing he's a gang member.
I'm not certain that a jury can tease out the difference
between some, a defendant saying he's a gang member
and the admission for not being a gang member
being the basis for the expert opinion
on a tattoo for being a white supremacist.
-: Is the defendant's theory on appeal,
not what happened at trial?
I have no idea, I haven't read the whole trial transcript
but what they're saying is,
let me say it more straightforward.
They're saying that they've got expert testimony
that 211 means white supremacist.
And that the fact in these circumstances
of this relationship, white supremacists makes it more
likely than without the evidence
that he's the first aggressor.
And that if you look at the foundation for not
that they're a gang member, but that 211
is white supremacist that the judge is deciding
whether he thinks that.
So as opposed to whether or not there's enough evidence
to satisfy gatekeeper liability for that opinion.
And that's what they're telling us now on appeal.
If that's not what happened at trial and that theory
of relevance to apply the expert testimony
to is not what happened at trial
I'm interested in knowing that the defense says it was.
-: In my review of the transcripts,
I do not recall any adjutant evidence being
discussed or offered up
for admission anywhere in the trial or pre-trial stages.
-: Isn't that the whole point of,
wasn't that the whole point of the case?
Okay, wasn't that the defense?
-: On defense, that was the point of the defense, right?
Was that Hinds was concerned and had been the subject
of what he thought was racially motivated action beforehand.
And therefore, that's why he
did whatever he was convicted of doing.
It was in reaction to that.
And that attitude, that belief
-: The word adjutant was never argued.
And I think it is inherently
-: No, let me ask you this,
how is this not about the wait
of the evidence versus the admissibility of the evidence?
And that's really the only question I think is outstanding.
I understand that you're saying, Oh, you know,
the judge was correct, but everything that the judge said
about the evidence goes to the wait
and why a jury may or may not believe what the expert says.
Not whether the jury should hear it at all.
-: Your honor, I respectfully disagree.
If it were admitted if these arguments would be made
for the wait, but a judge has to act as gatekeeper
to ensure that an opinion is relatively
reliable before it gets to the jury
-: Counsel, that's why I keep getting confused.
And I hate to sound like I don't understand
what you're saying, but if that was the case,
wouldn't that militate the conclusion that Mr De La Cruz
would not be qualified as an expert?
Go back to Justice Wendlandt's point.
The whole point about being an expert is
you've got something that the average lay person
in the jury doesn't have.
And if the average lay person
in the jury can go to a website, look at a numeral
that's the tattoo that's ostensibly affiliated
with a white supremacist group, or go
to the Southern Poverty Law Center's website
and do that own kind of analysis
and look at what's on the victim complainant
versus what are some of the other images that exist
for members that are affiliated
with this white supremacist group.
What is special about doing that
that the average person can't do.
And so if Mr. De La Cruz did that,
and it satisfied the trial judge
that that was reliable methodology
to conclude one way or the other.
But then he says, "I don't conclude that."
Doesn't that directly go to the issue of wait
'cause he's already made the determination
that he can testify as an expert?
-: I don't necessarily think that he's made
the ultimate conclusion that he can testify.
When we're looking at the common law factors
to look at the admission,
the first one is that his expert testimony will assess.
Let let's just assume that if you were to be,
it would assist that eventually,
but he has to be qualified as an expert,
and the facts have to be reasonably reliable.
And the application has to be reasonable reliable.
All of these factors have to be found.
-: Sure.
-: Dr. De La Cruz, yes.
-: So are you, that's what I'm asking.
Are you contesting that the trial judge concluded
that Mr. De La Cruz met the test of being an expert?
-: Well, I don't think the answer
to that question is conclusive.
He found that he was knowledgeable in the area, yes.
But it's just because he can Google it.
He needs to have a further application that qualifies him,
his research as reliable.
So I believe sister counsel mentioned
that she can Google and then goes to Westlaw.
Mr. De La Cruz can Google the information
and then he has to buck-stop it
with something more professional here.
Here he admitted that he does interviews of clients
and does background history before
he comes to any conclusions that somebody is a gang member
or whatever conclusion
that he is seeking to verify or disprove.
-: Okay, listen, I think you
I think we've covered this pretty well
and I think we get your point.
I wanna move you to the other issue
about the peremptory challenges
just because we're running out of time.
And I guess my question would be
I know a lot of times judges will say,
"Here's how peremptory challenges are gonna work.
You have to exercise your peremptory challenge
in such and such a manner."
And it sounds like that did not happen here.
Is that a fair statement?
-: I would point the court to the trial transcript on
I just lost my outline here.
On page one, volume one early on in the transcript.
I lost my page.
So I believe it was page eight.
He says that once they have a full panel
they would do the panel Voir Dire,
they would do the for cause
and then they would do the peremptories.
So at a baseline,
before any of the jury impediment begun,
counsel was aware that after
the for cause challenges was the time
to exercise any peremptory challenges.
So under superior court rule six,
that was the time that the trial judge designated
for peremptory challenges.
Now, I think there is a little bit of confusion
as to the ultimate timing of the last peremptory.
The defendant exercised five peremptories.
After looking at it, the judge and the clerk
both questioned whether or not the use,
that the attempted use
of a for cause challenge for one juror.
And then the non-use of peremptory
for that juror was by design.
Counsel said, "Yes, that was by design."
Indicating that she was aware
that she had that one peremptory left.
So when it moved on, that was the conclusion,
that was the time for superior court rule six,
to exercise peremptories.
A judge... -: You're saying,
all right, can you, I'm sorry.
I'm not understanding you.
So she tried to exercise for cause
and was not successful, or she was successful?
-: On, she exercises a number of for cause challenges
and there was some challenges to a source challenge.
She's, excuse me, she exercised for cause challenges.
And after that, she attempted to use the peremptories.
One of that was, it was for
a different juror than the question,
than the juror that's being questioned right now.
I believe it was 86.
-: Right, Counsel did you make sure 86 was the for cause.
And then the clerk said, "Hey when you exercise
the peremptories, you forgot jury six."
-: That's correct.
-: He said, "No, I didn't forget.
I did that on purpose."
-: And then the jury that was..
-: Then later on she she wanted to strike juror 59?
-: That is correct, your honor.
-: Okay.
-: So, that is the timing of it.
She attempts to use that peremptory after everything
in the middle of when the clerk is saying juror number
this go to this seat.
So they're in the process of seating the jurors.
She, she says, "Your honor, may I be heard?"
And he says, "Please wait."
And they finish attempting to seat.
And so it's literally at that last moment
when the defendant is attempting
to use that last peremptory.
Judges afforded wide discretion
in jury empanelment and where the judge off,
the judge offered and reminded
and the defendant had multiple opportunities
to use the peremptory.
There can't be a, an abusive discretion.
-: Go ahead.
-: Chief, go ahead please.
-: Yes, no, no, please.
-: So I'm on the transcript page
for volume one page eight and page nine
and the judge is explaining everything
and he says that you know,
we'll go through the group questioning,
the individual questioning,
attorney conducted whole idea, then I'll ask for cause
and then I'll ask you to use your peremptory challenges
and hopefully we'll get a jury empaneled with one panel.
And then he talks a little bit
and then he goes to a second panel and your position is
that he's clearly saying after everyone found in different
I've dealt with the cause
then you exercise your peremptories
and then we have the jury.
And you're saying that that was enough to lay out the plan.
-: Yes, your honor.
It's very clear here.
-: The ambiguity about what might happen.
And I'm not saying this is right.
I'm just asking your position.
The ambiguity about what might happen
with peremptories was if you got to a second panel.
Is that your view?
-: Yes, your honor.
And I believe the trial judge, and I apologize,
I wrote the citation to the transcript down
but in the middle of the second day,
towards the second half,
he states that as you may have noticed,
we've gone past the initial 24
that we had discussed, we've empaneled 28.
I believe that this will be sufficient to empanel a jury.
So from day one and from at least the middle of day two,
counsel was aware that this was more
than likely going to be the one panel necessary
to empanel for jury.
-: Any other questions?
Georges: No, thank you Chief.
-: Thanks so much, counsel.
-: Thank you, your honors.
Georges: Thank you.