-: SJC-13033
Leroy J Randolph V Commonwealth.
-: Good morning,
Mr. Traft.
-: Morning, may it please the court,
the mam chief justice,
and associate justices.
Michael Traft on behalf of Leroy Randolph.
I stand here on the appeal issue,
in a somewhat unusual posture.
Because all three parties in this case, agree,
that someone in my client's position,
should have an opportunity to appeal.
And the only question is,
does this statute permit it, or not?
And I think we've,
we've analyzed that in the briefs.
And the only thing I would add,
to what I've already written,
is that I think I've finally figured out,
the thing that confused me,
about the wording of the statute,
Section 18.
There's the first sentence that says it's a final order
and everybody can appeal.
And that, so presumably.
And then the second sentence says,
a defendant can appeal, after the motion is decided.
And I think what that means is,
where you have a defendant,
who is, raising multiple issues,
one being a test and one being other issues,
jury instructions or witnesses,
that they don't have to do a dual appeal.
If they denied a motion on the test,
they can raise all the rest of the other issues
and then raise it all together,
after there's been a final determination on the motion.
And that would mean,
that would, I think, reinforces my argument that,
the intent of the legislature here,
was to give anyone whose rights are affected,
And certainly my client's rights are affected,
by an order of this kind,
would have a right to appeal.
-: But what form does the appeal fall into?
That is, how do you square 33E review,
for murder ones, first degree murders,
and this right to appeal
that your client has under Section 18?
-: Well, I think 33E doesn't apply, because,
he's not the defendant or the Commonwealth,
and the restriction on 33E,
is really to avoid having multiple appeals,
that are,
are not meritorious.
-: Can you trust the language in 33E?
'Cause 33E says, before rescript,
motions for new trial,
of course can be remanded.
That's the precedent sentence.
So it specifically addresses motions for new trial.
And then it says,
after the rescript issues,
any motion,
is subject to gatekeeper.
It's the any motion, part,
that's problematic in this analysis,
versus, the motion for new trial.
So how do you get around,
that very broad language in 33E?
-: I think I get around it, by saying,
that the,
the review process doesn't apply to a third party,
when you're bringing in a third party-
-: And as you know,
and you can appreciate, Mr. Traft,
we're trying to look at this case globally
'cause it's gonna affect-
Traft: Right, absolutely.
-: You know, defendants who,
or the Commonwealth who,
appeal under 2788 orders,
Traft: Right.
-: Whether or not they apply to the gatekeeper.
So not to diminish your client,
but I'm looking at broadly saying,
you would carve out just third parties?
-: Yes.
I think the defendant or the Commonwealth,
would have to go through the gatekeeper process.
Justice Gaziano: Okay.
That was the answer to my question, thank you.
-: Right.
All right, so moving on,
the next issue,
that I'll address is the question is,
is this a constitutional search?
Now, the,
in initial blush,
you look at the Jansen case and say,
hasn't the SJC already decided this?
This isn't a search.
It's somebody else who's asking,
making the request.
But I think the statute,
is what makes the difference, here.
Because the statute says,
not only is this information,
gotta be supplied to the defendant for our analysis,
and that was a pre-trial order,
but it necessarily,
will be provided to the Commonwealth.
And there was no restriction,
on what the Commonwealth, can do with that,
at any time in the future.
In this case or in the future.
-: So we does that mean we have to,
do we have to reverse Jansen then?
If to adopt your position-
Traft: No.
-: How do we distinguish Jansen?
-: I think you distinguish Jansen
because it was a pretrial motion.
And, in Jansen, the court specifically said,
that, if you,
if the Commonwealth,
were to try to use this information,
in any way against Mr. Jansen,
then we have a different story.
You may have to use constitutional analysis.
They didn't have to deal with it,
because the question hadn't been raised.
So that's how you can distinguish Jansen,
and apply it in this way,
and say, this is a search.
-: So but that's going to be hard to do in the real world.
Isn't it, Mr. Traft?
So we're gonna find,
we're gonna have a much lower standard,
for,
the defendant to request this information.
I get that.
But then,
if that information is damning,
how do you put,
how do you,
unscramble the egg at that point,
and do the probable cause analysis
that you're requiring us to do?
I'm not sure how that's gonna work.
You're gonna ignore the results of this,
that, so we've got,
say this is not your client,
but say we have,
some compelling evidence that the,
third party is the murderer.
We acquired that,
the police acquired that,
through this process.
I mean, this process,
that produced that information.
We're just gonna ignore it?
-: No, I think that is involved,
in the probable cause analysis, actually.
-: But how do you do that-
-: You might say,
you've got this enough other evidence here,
to say that this search,
for that person that you're describing,
there would be probable cause, to,
conduct the test.
-: But are you allowed
to use the fruits of the information, or not?
'Cause that's going to be the tricky issue, right?
-: Right, I think potentially-
-: So let's play this out for a second.
So the test produces compelling, absolute evidence,
that the third party is the murderer.
Does the Commonwealth get to use this information
in it's probable cause, filing or no?
'Cause that is obviously probable cause,
but if it's not,
there isn't any probable cause, right?
-: Well, if they establish,
remember,
of course, we're conducting the search,
we don't know what the result is going to be, so-
-: I'm playing the next,
as Justice Gaziano says,
we're playing the real world out in the next case.
-: Yes, right.
-: So the next case is,
this produced, this compelling evidence
that someone's the murderer,
now how do we do the,
what happens next?
Is that information available
for the probable cause finding, or not?
-: That information is available,
to determine whether there's probable cause,
to do the test in the first place.
If you've got other,
other information,
that you can bring in,
that now identifies this person,
as the potential murderer-
-: No, but I don't.
I have, I had,
all I had to begin with was what you,
the limited amount of information we had,
like in this case.
But then it,
it produces the grand slam information,
which is, that the third party is the killer.
-: Can I just clarify something?
Aren't we talking about,
whether the,
sample can be taken in the first place,
and whether there's probable cause,
for the sample to be taken in the first place?
-: That seems what,
that's right.
-: So you don't have the,
Justice Kafker,
I don't think you have the results of the test
until you have probable cause, to get the sample.
-: Right.
And so I understand the problem,
because you don't want to be having a situation where-
-: But I thought we have a lower standard,
than probable cause at the first step.
-: Well, not for the third party, right?
Not for the third party,
who's being asked to give, you know,
who's being asked for the sample.
-: That's right.
You have a higher standard for the third party
to begin with,
but even the top of that,
I'm saying you have to have probable cause,
for the third party.
So you've got to have more, than-
-: So really you're adding something to the statute,
that you're saying is justifiably there,
because of the constitution.
-: Correct, that's right.
Justice Cypher: So it's really,
we're dealing with two tests.
-: Right.
-: That includes,
that skips a step that,
opposing counsel might disagree with.
You might be absolutely right.
But there is an argument to be made,
that,
there doesn't have to be a constitutional analysis,
because,
there's no state action.
Now, I'm not sure that's right,
considering that the courts have to enforce it.
You've got potential contempt.
The Commonwealth is going to get,
this,
the test results.
But,
if your view that for,
your view is that for a third party search,
there has to be a constitutional hurdle,
but that's not necessarily,
the view of the Commonwealth, or the defendant.
-: Well, I'm sure they'll argue opposite, correct.
But,
that's,
my view is that the constitution demands it.
-: I understand,
and that absolutely might be correct,
but if it isn't,
we've got to play out this whole thing.
-: Right, and that's where we get to the,
if you want to get to the next step of,
I still think you don't satisfy the statute.
Even if you disagree with my constitutional analysis,
you still don't satisfy the statute.
In the, the statute-
-: Can I ask you,
before you move to the statute, sorry counsel.
Traft: Sure.
-: Given that the statute requires,
a preponderance of the evidence, standard.
Doesn't that subsume,
the constitutional probable cause standard?
-: Not necessarily,
and I'll try to explain that,
in the context of this case.
In dealing with probable cause,
you have to deal with all of the circumstances.
Now, if this event had happened a month ago,
and you only had,
maybe one or two people who touched this knife,
and the police are a lot more aware,
and make sure that they don't potentially contaminate a DNA.
And you have a,
a person who has denied that he had any responsibility,
but you have two people,
who also said he did it,
that he admitted that he had thrown the knife.
So, and none of those witnesses have been tested.
In this case,
my client had testified at the trial.
He was cross-examined,
the two witnesses who claimed that,
he had thrown the knife,
also testified at the trial.
The jury finds beyond a reasonable doubt,
that the defendant was the murderer.
Now they couldn't have found that.
And you've just recently,
in the Colas case, reiterated this.
they couldn't have found,
that this person,
had committed the murder,
unless he had thrown the knife.
So they must've believed, my client,
and disbelieved these other two witnesses.
And then four more witnesses,
come up and talk about admissions by my client.
And the trial judge,
hears a motion for new trial, on that,
he sat, of course, through the trial.
So he's, evaluated the credibility,
and he's determined they're not credible.
So that changes the whole probable cause (indistinct).
-: The statute also,
it's preponderance of the evidence,
and statute,
unless I'm misremembering it,
the statute also requires,
that it be material to,
identification of the perpetrator, correct?
Traft: Yes.
-: So we have probable,
we have something more than, probable cause,
for legal standard plus materiality, right?
-: Right, that's right.
And so, and that's what,
I was gonna get to with the, statute.
I think, first of all,
I wanted to clarify one issue that's been raised,
with respect to, what my client can challenge.
There's the 7B analysis, that,
has a list of six items,
that must be established
and it's at a lower standard.
And the argument has been that,
that he doesn't,
he has no standing to challenge,
the judge's earlier decision.
Well, I think since he hasn't been notified,
or been allowed to participate about it,
if there is any flaw in meeting those conditions,
he has a right to challenge those,
when he's had an opportunity to be in the case.
And certainly the judge can be-
-: But yeah, I had a question about that.
It is your client's position that the testing of the knife
shouldn't have happened to begin with,
because 7B was not met,
or is it in the context of 7C, you're saying,
that the 7B factors are relevant?
-: Right, I think you have to look at two different tests.
There's one standard perhaps for the test,
to see if,
the defendant's DNA is on this knife.
And a second,
a different evaluation is required,
when looking at the third party.
-: Right, and which one are you arguing?
Are you saying that the,
the test of the defendant's DNA,
was not appropriately allowed?
-: No, I'm not contesting that.
I'm only contesting applying it,
in the context of my client.
-: But again,
this has to be a materiality.
So if you're arguing that the,
Section 7 standards weren't met,
say for instance,
that, it wasn't stored properly,
or everybody and his brother
and the jury grabbed the knife,
and the DAs,
and the defense attorney grabbed the knife.
That's one thing,
but you could argue,
or your client could argue,
that it's not material.
The testing wouldn't be material,
wouldn't lead to reliable results,
because it was mishandled or not stored properly.
So that would be subsumed,
in the materiality analysis, correct?
-: It would be, yes.
-: Would also, on that line,
attorney Kraft,
would that also,
include the reliability factor,
of this true allele issue?
Would that end up,
bumping into the materiality,
the materiality analysis also?
-: Yes, that's correct.
Because what you're talking about,
is the kind of test,
and you have to look at the kind of test,
in the context of what you're dealing with.
-: But that fits into what the other side says,
because,
your client's not part of the Section 7 analysis.
He is part, of course,
of the materiality part of it,
so that he can participate in,
he has the ability to protect his rights,
by arguing it's not material.
He has no say in,
the discovery parts of this motion.
Traft: No, I think he-
-: That horse is out of the barn.
-: No, I don't think so,
because,
you're talking about a new test.
Every test has to be evaluated,
as to which,
whether that test is appropriate or not.
-: So your client can go back in time
and say, you should never,
you never have gotten the discovery.
-: No,
I am not really saying that.
And I, and as I said,
I'm not really challenging,
whether they did the test appropriately,
for the defendant's DNA.
What I'm saying is,
when you want to bring in a third party,
you have to look at all,
you have to re-look at,
all of those issues again,
and say, is it going to be material?
-: We may be saying the same thing.
Cause it might be in the context of materialities.
So, I don't wanna waste your time, with that.
-: Right. I mean,
and it's this isn't easy.
And I understand,
the concern the court has,
to try to struggle with this.
But I,
I think I would suggest,
in terms of looking at,
the reliability of this test.
The (indistinct) Tanner case,
gives a good,
summary.
It's a great,
analysis by the judge.
I don't know if you've had a chance to,
to read it,
to read that thoroughly.
It's it takes a while,
for those of us who aren't scientists-
-: So the motion judge didn't spend,
any time on this or much time on this,
but we have to defer,
to those findings, correct?
-: Right.
That's right.
I mean, we didn't have it,
when we didn't have any experts,
who testified,
that this was just,
the request.
But I think this is a preliminary request,
in that sense.
And that's where I get into my,
and also suggest that,
that the sixth circuit,
has an excellent oral arguments worth hearing.
If you haven't had a chance to do that,
that discusses all of the,
the issues about the test.
But,
if you don't agree with any of what I've said,
and you want to go forward with the test,
I,
would request,
that the court issues a protective order,
for this defendant in this circumstance,
in this case.
That doesn't necessarily have to apply,
to any other cases-
Justice: Did you mean to say this defendant?
-: Yes I'm sorry,
my client, not the...
-: Well, well,
can we go back to that for a minute?
Like,
and think about other cases,
the statute,
does the statute have any limitation,
on what kinds of cases it can apply to?
-: It doesn't have any limitation,
except that it,
I think it does (indistinct),
require,
that it applies to a criminal case, but-
-: A criminal case,
but so for example,
it could apply to a rape case.
Traft: Oh, absolutely.
-: So theoretically, you could have,
years and years later,
requests that,
because of new technology,
that a victim be retested,
for some kind of something.
-: Yes, that's correct.
-: Are you asking that to not into any type of registry?
Is that the protective order?
-: Well, certainly yes.
I would ask that,
that it wouldn't go into any registry,
for and,
if you'll indulge me,
I'll give a,
a slight example, of my own personal experience.
Let's say an intruder came into my,
personal residence,
and touch the handle that opens the door.
And like my wife and I lived there,
we've both touched it.
Our DNA will be on it.
Our sons visit us over the Christmas,
two sons,
their DNA would be on it.
We had two repair persons,
came into the house,
all in this last three month period,
for a short period of time,
their DNA would be on it.
Now, in order to do a DNA test of,
six or more people.
If you can get the DNA of people, you know,
might be on there,
you can eliminate them
and you might be able to,
identify the person much better.
So we would be happy,
to donate our DNA, my family, and I.
If we could find out who that intruder is,
but, not,
if I DNA now is going to be in the Commonwealth hands,
and could be used, as a registry forever.
And certainly I,
we had a young black person,
who was one of the people who was,
the, who came in to do the repair work.
He certainly doesn't want his,
he doesn't have no connection to this case,
to this situation.
He certainly doesn't want his DNA in there.
So there has to be a limitation,
on how you use the DNA.
It goes back to what I said about,
I think Justice Scalia-
-: And your client suggested,
the terms of a protective order, I assume.
And that's in the record.
-: No, we didn't.
We didn't get that far,
because the,
the only issue we are arguing,
is can you do the test at all-
-: Okay so your client,
did not argue in the alternative.
Don't put my, my DNA in the registry.
If you allow this motion.
-: Not specifically,
because we're focused on
whether he could do the motion at all-
-: And you're suggesting that doesn't constitute,
a waiver of that argument.
-: No, it doesn't because the judge said,
"now I'm gonna to order,"
"yes, they can do the test."
"You people can work out,"
"who you wanna do the test with,"
"make a decision."
"And then if you, if you disagree,"
"then you can come back."
So, I understood that, to mean,
that,
it's not that I wanted any restrictions,
on the use of how this test,
was going to be conducted by who
and what the use of it was,
are things that I could have,
could raise subsequently.
So that's the way I approached it.
I didn't consider that, a waiver at all.
I didn't want to get into that,
really because you,
then you get into,
do you need to have,
expert testimony about this,
or other issues,
that really weren't presented at that point?
-: Okay. Does anyone have any other questions?
-: (All) No.
-: Okay, great.
Thank you, so much.
Traft: Thank you.
-: Okay next, we have,
Attorney Knight.
-: Good morning.
And may it please the court,
Erin Knight on behalf of the Commonwealth.
I have a short time to speak to you today,
but I think, I think the merits,
of this case more, more,
much more time.
So I'll try to be brief.
This case demonstrates,
exactly why a third party,
should have the right to appeal,
under a statute.
That's required him,
to provide a DNA sample,
that could possibly become evidence against him.
-: So, do you agree with counsel for,
for the petitioner here,
that the rules for a third party,
are different?
Given the terms of rule 33 E,
than they would be for a defendant,
who wouldn't want it to appeal,
or the Commonwealth who wanted to appeal,
one of these forensic discovery orders?
-: I think the answer to that is actually,
in 278 A, section 18.
In that section,
it says that if,
the orders under this section,
are final and appealable.
And then it makes note of the defendant's ability,
to bring the motion, to bring the appeal.
I think because,
a first degree murder,
still falls under 278 A,
because that enumerated defendant,
portion of section 18,
is already in the statute.
I think that,
if a third party would be able to avoid,
33 E if he was also a numerated-
-: So about the third party,
I think you misunderstood my question.
My question is,
not this case,
but in a different case if the defendant is denied,
this discovery,
and the defendant is subject to,
is the defendant subject to the 33 E,
gatekeeper provision?
-: I think by the terms of 33 E,
that could be the case.
I, I do realize that 33 E says that-
-: I know it could be the case,
that's why I'm asking you the question is,
what is the Commonwealth's position?
-: I understand your honor,
I think where a 278 A,
a defendant under 278 A,
has been enumerated, right?
I think that no matter the crime,
it should be able to come,
under the appellate provision of 278 A,
but I do recognize the structures of,
33 E review and what 33 E says,
regarding after the rescript.
So,
I do believe that's something that,
this court should enumerate in this opinion,
if it,
if it would,
be so inclined.
But I do think that where,
it is enumerated,
in a section 18 of 278 A.
A defendant, even under a first degree conviction,
should be able to appeal, under 278 A.
-: But subject to the gatekeeper or not.
I guess I'm trying to figure out,
what the Commonwealth's position is on that issue.
Budd: She wants you to figure it out.
-: I understand-
-: I know that.
That's the purpose of oral argument,
is so that you'll help me figure that out.
And this is your opportunity,
on behalf of the Commonwealth,
to give me your position.
-: Thank you, your honor.
I do believe that,
a defendant should have to go through 33 E.
Only in cases of first degree though, obviously.
-: Just to swim on, are you content,
or do you have follow up?
-: I have my answer.
-: Okay.
Do you agree with Mr. Traft?
I'm just, I'm trying to understand what,
the statute,
such discovery may include items,
and biological materials,
that will, by a preponderance of the evidence,
provide evidence material,
to the identification of a perpetrator.
Does that mean, is that a problem?
Does that require probable cause?
What does it require?
Do you agree that, the,
you can't get the DNA or,
of a third-party,
without probable cause under that statute?
Is that your understanding,
of what that means?
-: My understanding,
if you look at section seven C,
it also States that,
the discovery from a third party,
is by a preponderance of the evidence.
So not only is the,
the section B of seven,
under preponderance of the evidence,
but so is section C so-
-: Right then I'm, I'm confused what,
because, and again,
I may be misremembering our cases,
but we've been very generous,
on trying to get,
this type of information,
'cause it helps exonerate, people.
But we haven't looked at it,
from the perspective of the third party before.
So is your understanding,
that this provides, probable,
at least probable cause protection,
of a third party before their DNA.
I'm just trying to understand, the next step.
And my colleagues may be way ahead of me,
and understand that,
but it's your sense that it's a probable cause protection.
So we don't have to worry about the,
constitutional issue,
that Janssen,
Janssen said there's no constitutional protection,
but it sounds like,
the statute may provide the probable cause protection.
Is that your understanding?
-: I would answer that with, yes, your honor.
I think because,
it is a preponderance of the evidence standard,
and therefore the motion judge has to,
evaluate for that standard.
I think the probable cause analysis,
is therefore built-in.
I would adjust-
-: But I'm confused by the backend of it.
The backend of that thing,
talks about,
material to exonerating the,
perpetrator.
Material to the identification,
maybe that's it.
Material to the identification perpetrator,
that protects the defendant and the third party.
Yeah, okay.
-: Correct.
And your honor,
if I may just elaborate a bit further,
I see my time has expired.
I would just point that,
in this case I think that this case is actually,
a perfect example of why that third party,
should be able to appeal,
because here you have two,
court ordered body tests,
that say, there was inconclusive results,
because of allelic dropout.
So what are we really going to get
by this petitioner's DNA sample?
We don't know-
-: I mean, clearly then he's gotta be able to appeal,
the question is, is it a 33 E?
I mean, is it a, you know,
a single justice,
or does the statute itself provide it?
I mean, you can't, I mean,
he's gotta be able to appeal it.
-: Correct.
And I would just say that my,
the Commonwealth's position here is through the statute,
because if you take a look at a 211(3)
and I know we are here on 211(3).
That doesn't escape me,
but, 211(3) analysis requires extraordinary review
and or, an extraordinary case.
And I think here,
this issue could come up,
before a single justice,
who believes it to be extraordinary
and who, or one who does not.
And so that doesn't get to the merits analysis,
every single time.
Which in this instance,
the order is based on the merits.
So if the order is based on the merits,
the third party should be guaranteed,
a merits review.
And 211(3), just doesn't secure that,
it doesn't guarantee that,
for that third party.
So by reading into the statute,
the ability to appeal,
where section 18,
already says that,
any order is final
an appealable under the section
and the section or under 278 A.
And that statute talks about, the third party.
That third party,
should have the ability to appeal through,
through the statute to be guaranteed,
a merits review.
-: Counsel, do you think there's,
go ahead.
-: Go ahead,
Justice Cypher.
-: Do you think there's any,
anything in the victim's bill of rights,
that would serve to protect this witness,
or give the witness some leverage?
-: I'm not sure about the victim's,
bill of rights,
in the applicability to a third party here,
I think it-
-: Let's talk about witnesses also in that,
in that roll out.
Knight: Correct, I think-
-: It does apply to witnesses.
-: I think if, if,
one of the court's examples earlier,
in my brother's argument,
was if a victim was,
to come back in for some sort of testing,
I think there definitely would be some,
there would need to be some,
careful consideration,
of the victim's bill of rights in that instance.
But I think,
along those same lines,
why not a third party being afforded,
the appellate rights he should already have.
He has constitutional protections.
He has the rights.
Why should a defendant have more rights,
than a third party,
under statute that's requiring DNA evidence,
from him, that is,
that is obviously intrusive,
that could lead to a possible prosecution.
I think here,
the crux of the real matter is,
the purpose of the statute.
We all you know are here,
because we support 278 A,
we have a significant interest,
in the validity of these convictions,
but we also have a significant interest in making sure,
that those third parties have,
their ability to be able to appeal,
a very intrusive order.
-: And along those lines, counsels,
do you agree that the issue of a protective order is,
to be decided still,
or is the failure,
of the petitioner to raise it a waiver?
-: Sure.
I do believe the way that the judge below,
was viewing the case was,
is in line with my brother's argument regarding,
him being able to come back and address it.
The parties are supposed to,
you know, after this appeal
or if this appeal hadn't,
hadn't been taken.
Come up with the way and how this is supposed to be.
The Commonwealth has taken no position
on the merits of the case.
And I think, as far as a protective order,
we would also probably step back here
and we'll leave that to argument,
between the two my two brothers.
Just because obviously we have an interest in,
the results and I don't want to,
possibly restrict what we would be able to,
do with those results.
Should they be material.
-: Can I just ask?
I just want to make sure I understand.
So you,
the Commonwealth does agree,
that this would be a search,
for on the third party,
who's being requested for the...
-: I, I would like to leave the merits to my brother.
I have taken no position in, in,
in the trial court level,
but I do believe that in (indistinct) Jansen,
Jansen is, is fairly,
explanatory here.
-: It says the opposite.
It says it's not a search.
-: Correct.
It is a third party order.
I think the government intrusion here,
the way that Jansen looks at,
a government intrusion is,
is the Commonwealth asking for this intrusion,
the Commonwealth being the prosecution ,
here we also are not.
But I do believe that,
whether or not this is,
necessarily a constitutional intrusion,
I think it's still an intrusion,
on probably one of the most sacred aspects,
of this third party's life.
And I think that,
it deserves the,
the protections that we can afford it.
-: Does the third party get to,
revisit the seven B factors, in their appeal?
-: I don't believe so, your honor.
And I would look at, both seven B
and seven C,
as they are read throughout the statute.
Seven B, talks about the original,
motion and the original burden on the defendant.
And then I think seven C goes into say,
then in comes the third party.
And again, that preponderance standard,
needs to be met.
So I would read it,
as I read it,
as almost two separate analysis.
And here, as the,
the petitioner did below,
the petitioner was given notice.
He was able to come in
and argue his side of the case
and especially where the Commonwealth,
took no position on the merits argument below.
I think that,
that then gives the judge another opportunity,
to look at that preponderance standard,
and the defendant showing.
-: Okay, thank you.
Attorney Shedd, your turn.
-: Thank you very much.
My name is Dennis Shedd
and I'm representing Richard Randolph.
I'm not planning to address the procedural issue,
unless the court has any questions,
for me on that.
As to the merits,
12 witnesses have provided evidence,
suggesting that Lee Randolph,
is the one who threw the knife.
Only one witness testified,
that Richard Randolph threw it.
And so the issue now,
before the court is whether,
comparison of Lee's DNA,
to the DNA that's been found on the knife,
will provide evidence material,
to the identification of the perpetrator.
And what I'd like to spend time,
doing today, if I can, is to,
focus on some new issues,
that were raised in the reply brief.
Lee cited two new cases,
to support his fourth amendment claim.
But neither of those cases raised fourth amendment issues.
The DeCicco case involved a,
a Daubert Lanigan challenge,
to an expert's interpretation of a DNA profile,
while the Cameron case,
involves the distinction between,
inconclusive and non exclusion DNA results,
and the necessity for statistical evidence,
for the latter.
So, no,
neither of those cases,
addresses the fourth amendment question
and (indistinct) is my position
that the Janssen case is dispositive
of the fourth amendment issue here.
-: So Mr. Shedd,
just to play that out for a second,
say you're,
you say you're right,
that your client didn't do it,
but the defendant did.
I mean, but the third party did.
If this test produces compelling evidence,
that he's the murderer.
So it's not a search,
just seems, there's a,
there's kind of a disconnect there.
And I understand exactly what Jansen said,
but how,
how was the third party protected?
Because normally we don't, you know
we don't allow searches.
So it does the statute provide the equivalent
of the constitutional protection for the third party?
-: Well, a couple of issues
a couple of points on that, your honor.
One is that,
the preponderance of the evidence standard,
I believe,
is a higher standard than probable cause.
That's point one.
The other point is that,
there's really two separate questions here-
-: So the statutory protection against this DNA search
or DNA investigation,
is higher than probable cause.
So this is-
-: Yeah you're showing by preponderance of the evidence,
this is material to the identification,
I think is a higher standard than probable cause.
And the Texas V Brown case I cited in reply,
is a case that pointed out that,
preponderance is in fact,
is a higher standard than probable cause.
But another point,-
-: Your,
your brothers and sisters,
in the defense bar,
are comfortable with this argument, that,
to get this information from a third party is,
is a higher standard than probable cause.
Cause I mean, you,
it sounds like you've got a good case for this.
You've got 11 witnesses.
The next case is not going to be 11 witnesses.
Shedd: Right.
-: So I'm just,
you're speaking for the defense party,
that was serving.
So I'm just trying to make sure I,
understand that standard.
'Cause you're sort of having it both ways,
Janssen isn't as search,
but at the same time,
we don't need to worry
because there's plenty of protection up front.
-: Well,
yeah again,
I'd like to point out though,
there are two separate questions here.
One question is whether,
the acquisition of the DNA,
and the use of it in the case of,
Commonwealth V Richard Randolph,
implicates the fourth amendment.
And I believe Jansen answers that question, no.
It's a separate question then,
is whether the DNA obtained at this point,
could be used, in a subsequent prosecution,
of Leroy Randolph.
And I think Jansen leaves open,
that there could be fourth amendment concerns there.
And then those could be addressed in two ways.
One is in,
in effort to subsequently,
if the Commonwealth were to,
to indict and there could be an emotional suppress
in that subsequent prosecution,
or a protective order at this stage,
could also deal with that.
Should there be concerns that,
that would implicate the fourth amendment.
But I think as to the case of,
Commonwealth V Richard Randolph,
the fourth amendment is not implicated by,
I think Janssen answers that part of the question
and fourth minute is not implicated at this stage.
-: Right.
But it's, it's just,
it's just gets herring, when we're,
cause we got to think of how it's going to be used next.
So,
and,
if it's the compelling evidence
that he's committed the crime
and it's a lower standard,
than the constitutional standard,
we've got issues, don't we?
-: Yeah. Well, I mean, my,
my understanding has been,
the preponderance of the evidence,
is a higher standard than probable cause.
So if, if, if satisfied preponderance,
we've necessarily satisfied probable cause,
but again I think that's an issue,
that could be deferred to a further prosecution,
or be dealt with via a protective order at this stage.
-: It just seems like that's a little-
Justice Gaziano: Can I ask a different question?
-: Yeah, sure.
-: On the, on the materiality,
you're looking for handler DNA,
and the type of DNA analysis you're looking for, is,
is a bit, novel.
But on handler DNA,
you have,
a whole bunch of people who looked
at this evidence,
DA's defense attorneys,
jurors, perhaps.
How do you get around the concerns,
that we're expressing,
(indistinct) about the, the,
the handling of items,
that are gonna be subject to handler DNA?
-: Yeah.
Certainly.
I'd like to address that.
And that's actually dealt with,
somewhat,
by some of the articles that were cited in
in Lee Randolph's brief.
But first it certainly,
just to back up a step,
you know, Mr. Traft,
has looked at the photographs,
taken of the knife in 2017
and first from that,
well it's like,
you know the handle,
may have been handled directly during the trial.
I suggested that,
well, there's no exhibit tag, on the knife,
which suggests it was probably in some container,
need not have been directly handled.
But it's certainly the case,
that we can't be certain,
how the knife was handled at that stage.
We don't have a videotape of the trial,
but as to,
as to whether different people may have handled it,
it's not the case that,
if, I handle something,
and someone handles it after me,
that my DNA is gone.
And when this new DNA is there.
And, and that's the reason why,
when multiple people handle an item,
it's often the case that mixtures of DNA are found,
with multiple contributors.
And in fact, in this case, that's exactly what happened.
There's been DNA found on both the blade,
and the handle
and both have two or more contributors.
So the fact that it's been handled subsequently,
does not mean,
that the perpetrator's DNA,
is no longer present.
And in fact, in one of the cases,
one of those out of state cases,
that Mr. Traft cited in his brief,
(indistinct) case is,
interesting on that point.
There 40 years after a murder,
true allele excluded the defendant,
as a contributor to items,
that were used to tie up the victim.
The Georgia Supreme court,
affirmed the grant of a new trial
and in doing so, it noted that,
true allele can reliably,
interpret degraded DNA.
And, and in that case,
the DNA was found to have,
three or more contributors.
And it also noted that,
in that case,
there was no question,
the items had been subsequently handled.
And if,
and the court noted that the fact,
that they were subsequently handled,
did not mean,
that the perpetrator's DNA was no longer present.
And that's also addressed,
in some of the articles,
that Mr. Traft cited in his brief.
One of them is a 2018 article by
by Van (indistinct).
And at page 151,
refers to a couple of studies.
One notes that,
touch DNA,
has been successfully detected decades later.
And even with subsequent handling,
it found that the original handler's DNA,
could persist for a long time.
And on page 153 of that same study,
it described another study where,
they had groups of four people,
handle a knife in fact.
And subsequently they were able to detect,
on those knives,
the DNA of all four people in every instance.
So the fact that,
it had been subsequently handled,
did not mean the,
the original handler's DNA was no longer present.
-: That this wasn't, this wasn't the subject of,
of a factual finding, correct?
-: No, it was not-
Justice Gaziano: Right, so-
-: You mean as far as the,
-: Right, as far as the motion judge goes.
-: No, that was not a subject of fact,
to have (indistinct) by the motion judge, no.
-: So this might,
this might be something where,
where it would have to be remanded,
to determine the materiality,
given what you just told me, correct?
-: Well, I think if anything,
this strengthens what was before the motion,
it doesn't weaken what was before the
motion judge originally.
You know the motion judge's,
the arguments about,
the subsequent handling were made,
before the motion judge.
That was certainly before her-
-: But we have no findings on that.
-: And she found that the material
materiality requirement had been satisfied.
So that, that was before her at that point.
So I don't think it is,
and this article,
you know, the point in this article,
just simply strengthens the argument that,
that I had below-
-: I understand your arguments.
She, she made the ultimate finding in materiality,
without addressing at any length,
this, this argument,
but I understand your argument.
-: Well, she did, again, she,
the argument about subsequent handling was before her,
at that point.
That is an argument that was made.
-: No, I understood you the first time.
I got it.
-: Okay, fine, fine.
Some other-
-: So, (indistinct) the motion.
The defendant has the 278 A motion.
Is, Daubert Lanigan gatekeeper liability.
The same standard as this 278 hearing,
as it would be at trial,
or is it a lower standard.
-: In terms of the admissibility,
I would think it's pretty similar.
I may question it,
in a pre-trial stage,
is whether the,
procedure is sufficiently reliable,
to be admissible at trial,
and here where the question is,
whether the evidence would be material,
to you to the identification of the perpetrator.
I think certainly the reliability of the,
technique being used is a factor,
in making that decision.
And, you know,
that was an, that was an issue.
And certainly-
-: That was, or was not an issue,
I didn't hear you.
-: No in the court below.
There was never a challenge,
to the reliability,
of the true ability of true allele to,
analyze,
the DNA that's been found in this case,
that was never challenged below.
-: Do you think it should have been challenged,
before,
the issue of whether the test could be conducted,
was challenged, or at the same time?
-: I think it's an issue that could have been raised
at that point, if it was, if we just believed
there was an issue is to rely,
with reliability.
There has been no-
-: Do you think it's waved at this point?
Do you think it's waved for future motions?
-: For the purposes of,
of obtaining the third parties DNA,
I would say yes.
It's not been raised below-
-: We're not obtaining it,
but say you obtain it.
Can the,
can the third party still raise reliability?
-: If we obtained the DNA,
I think the third party no longer,
has any standing to raise anything.
Justice Cypher: No standing, exactly.
-: Yeah, if the third party were to be,
tried on the,
you know, if the Commonwealth,
were to indict the third party,
as a result of these findings,
I think at that stage,
the third party could raise a Daubert Lanigan challenge
at that stage, certainly.
But I think once the third party,
if the (indistinct) is ordered,
to give a DNA sample here.
I think the third party has no,
no further role to play as far as that-
-: And so then let me take you backwards.
And do you think the third party should have
or could have raised reliability
and challenging materiality, in the initial stages?
-: Well, I mean,
it's my position that true allele,
had been validated as a reliable program.
I don't think there's any strong basis,
to challenge the reliability,
but I think
if he believed there was an issue-
-: But if there were,
if there were.
-: It could have been raised.
It could have been raised.
Certainly I believe it could have been raised there.
Justice Cypher: Okay.
-: Yeah. But it was not.
Justice Cypher: I know.
-: Okay.
-: I just wanna make sure.
Can I just ask a quick question,
before you wrap up,
which looks like we're gonna have to do.
-: Certainly.
-: I'm just trying to make sure I understand,
in terms of the materiality, is,
was there some evidence or did,
was, did,
the third party,
say that he had never touched the knife.
I'm just trying to figure out,
if there,
if there's,
what would happen if,
it turns out that there is some of,
the, of Leroy's,
DNA on the knife.
Is it that your client,
there is no DNA of your client,
on the knife,
right now?
-: There it, well.
My client was excluded,
as a contributor to the DNA on the handle.
He, his DNA has not yet been compared
to the profile that was subsequently found on the blade.
So what happened was I,
I requested to have,
test done on the blade,
after testing on the handle had been completed.
And, and after getting that test done,
I asked for the,
the also for the further DNA,
from Leroy Randolph.
And the plan was that,
if we get that we will then have a comparison,
of both Richard's DNA and Leroy's DNA,
to the DNA on the blade,
and also comparison of Leroy's DNA,
to the DNA that's already been found on the handle.
So Richard, at this point has been excluded
from the DNA on the handle.
His comparison has not been made to the DNA on the blade.
That's where the that's where things stand right now.
-: Okay.
Thanks.
Thanks very much.
-: Okay. Thank you very much.