-: SJC 13040, Commonwealth v Stanley Donald.
-: [Chief Justice Budd] Okay. Attorney Gaffney.
-: Thank you, your honor.
Good morning, your honors, my name is Edward Gaffney
and I represent the defendant, Stanley Donald.
Mr. Donald is here this morning before the court
on the issue of whether the lower court erred
in denying his motion under chapter 278(a)
for testing of bloodstains found on the cement floor
of the parking garage of the apartment complex
where the victim lived in this case.
-: Counsel, before you get into your argument on that,
can you just address for me the status of the motion,
the piece of the motion regarding the rape kit forms
or the forms that he was looking for.
The rape kit paper. Do you know what I mean?
-: Yes, as I understand it, your honor,
the defendant's motion was entirely denied
at the trial level.
He appealed that and the appeals court
affirmed the denial
and then I sought a further appellate review
and that further appellate review was allowed
but only on the issue that's before the court now
which is with respect to the 278(a) testing of the blood.
So as far as the rape kit and all of that other stuff,
that has been, as I understand it,
it's been denied by the trial court
and that denial was affirmed by the appeals court
and this court. -: Okay.
-: As we're not addressing it in this-
-: Terrific. Thanks. -: Proceeding.
-: You can go ahead.
-: Thank you.
The crux of the Commonwealth, I'm sorry,
the crux of the defendant's position here
is that the lower court erred
because the defendant has, under 278(a),
has presented sufficient information
to establish that a test of the blood on the garage floor
would have the potential to generate evidence
that the crime did not occur.
The crime at issue is assault-
-: When you say that, counsel, you're talking
about the preliminary threshold to get a hearing,
is that correct?
-: That's right.
We're at the section three part of the the statute
and the motion was denied at that stage.
Justice Cypher: Okay.
-: The crime at issue is assault and battery
by means of a dangerous weapon,
that is the cement floor of the parking garage.
The trial evidence was
that the defendant tackled the victim,
smashed her face into the floor, breaking her nose,
and then she bled profusely onto the floor of the garage.
-: All right. I have a factual question
and I'm sorry, Justice Gaziano, go ahead.
-: No, please continue, Justice Cypher.
-: I was just rereading the facts this morning
and there was a notation somewhere
that the napkin that was found in the yard
was saturated with her blood.
-: That's right.
-: Was that tested or was that just an assumption
that that was her blood in the yard?
-: There was, yeah, there was no,
the only tests that were done on the blood,
as I remember, if I remember right,
was a test to establish that it was human blood
and that test was done on the blood
on the floor of the garage.
-: I don't think- -: Okay, so the napkin,
but you're not disputing the napkin.
You're not looking for testing of the napkin.
None of that's involved in this.
At this point, it's agreed that that napkin in the backyard
had her blood on it.
-: Well, it's, (chuckles)
I wouldn't go so far as it's agreed to.
-: Okay. -: I would certainly,
I will certainly acknowledge
that that's what the trial evidence was
and that's what the jury found.
Justice Cypher: Okay.
-: The only blood though that we are dealing with
in this issue is-
-: The cement floor. -: Is on the cement floor.
-: Okay. -: Specifically
because the crime at issue
is assault and battery by means of a dangerous weapon,
the cement floor. -: Right.
Justice Gaziano: DNA testing was available
at the time of the crime, correct?
-: Yes, DNA testing actually was done
with respect to- -: Right.
-: Semen but not blood.
-: Right, so the question is under section 3(b)(5),
if a lawyer would not have gone into this
and given the nature of this assault
it seems to me that a reasonable defense attorney
wouldn't get into this blood.
-: Well, actually the defendant did not,
well, my argument and my position-
-: So let me give you a hypothetical.
So if you go to a crime scene
and someone's been brutally shot to death
and their blood splattered all over the place,
nobody's going to test all the blood spatter on the wall
and nevermind blood spatter 60
versus blood spatter 39, correct?
-: That's right, your honor.
-: 'Cause that doesn't exist to say,
"Let's go back.
If there's any biological evidence whatsoever,
we're gonna give the defendant a crack at it."
That's not the statute.
-: Well, okay.
No, I would acknowledge that's not the statute,
but I would say that this court has regularly established
the fact that the statute is to be read liberally
and with generosity toward the moving party.
In this case, and without regard,
especially at the section three stage,
without regard to trial strategy
or why a defense attorney might not have ordered
or sought testing.
-: This is- -: So is your position
that that would be relevant for section seven,
once you got past section three?
-: Well, it's relevant in section seven
because the defendant has a burden to reach,
to convince by a preponderance of the evidence
that the evidence he's seeking would have the potential
to generate evidence that, in this case,
the crime of ABDW, a cement floor, did not occur
and his claim is that if it's not the victim's blood,
then it didn't occur.
Justice Cypher: I understand that.
-: But counsel, that assumes that that is the conclusive
of the issue, but the victim testified to it, right?
And the area in which the victim claimed the attack happened
between parking spaces two and three,
or I may have the number wrong,
that was corroborated by the detective
that went out to the scene and photographed all this.
So even if, you know,
the blood says what you think it might say,
that it's not from the victim,
that doesn't necessarily advance the ball downfield
in your favor, does it?
-: Well, actually, it does advance the ball down the field.
It doesn't conclusively, you know,
it doesn't erase all of the evidence.
In other words, the victim testified this happened.
Justice Cypher: Right.
-: But weren't there pictures as well of her face?
-: There were pictures of her face.
There were pictures of-
Justice Gaziano: Her face was smashed in too, right?
-: There was pictures of her face.
There was pictures of the blood on the floor.
There was evidence that there was blood in the car,
as well as in that napkin
that your honor asked about earlier.
But the issue isn't and 278(a) does not require
that a defendant seek, I'm sorry,
that the evidence has the potential to, you know,
change the outcome of the trial.
Justice Cypher: Right.
-: It's just limited to
whether this has the potential to generate evidence
that supports the claim of innocence.
So it supports the claim of innocence,
it does not prove him innocent.
-: The problem I'm having is that I think
that the statute is very specific and very lenient
and so, by those standards, you have a very good argument
that you're entitled to test whatever you want to test
that couldn't have been tested before,
or science has changed,
and arguably that's all we look at
in that first stage of the statute, correct?
Edward: Correct.
-: But the problem that is hard to get your head around
is the argument, that this is not a good argument
because he's not challenging the other offenses,
he's not trying to test anything else.
So this one small thing in the whole case,
I know it supports the charge,
but it's a piece of evidence, that's all it is,
is inconsistent with ultimately finding him innocent
in the real world, in a logical world.
But I know, and I think this is where we're at,
we just have to deal with section three
and how lenient it is
and whether those requirements are met.
Is that right?
-: That's right, your honor,
and I think that the court has, in both Mr. Donald's case,
which was back before the court in 2014,
as well as in one of the Wade cases, I believe,
and even as far as the Williams case,
yeah, the Williams case, which was a guilty plea,
it's not about him being able to wipe out all of the crimes
that he was convicted of.
In Williams, he was the-
-: Well, and it's not even about being able to wipe out
this crime necessarily.
It's- -: Well-
-: We don't end up looking at that, do we?
When we get to section seven,
we're just going to look at the potential.
-: Right.
Justice Cypher: We're not going to do these analyses.
-: Exactly, it's just potential.
It is unmistakably, Justice Georges, I believe, was,
who asked about, you know, the fact that there were other,
there is other evidence that this crime took place,
that is not disputed,
but if this is not the victim's blood,
that's a pretty big part of the testimony of the victim.
-: And I think where I get hung up
and my mind goes in a circle
is because this is a ridiculous argument.
-: I understand, on one level, I can understand that.
I absolutely can understand that, and yet-
-: So it can't be just if you claim third-party culprit,
you get to test anything.
Tell me where, in section 3(b)(5)
subparagraph four, you win.
-: Well, I'm not in subparagraph four, your honor,
I'm in subparagraph one.
-: Subparagraph one is
the analysis had not yet been developed
at the time of conviction.
-: Right, Identifiler had not yet been, you know,
at the time of this conviction,
back in '99, (indistinct)
they were doing DNA tests that had a one in,
in this case, it was a one in seven,
like they tested six locations on the molecule-
-: No, I was practicing back then, I remember it.
But DNA analysis was available back then, correct?
-: And as I mentioned, it was done.
-: We have multiple blood samples.
-: Right? -: Correct, correct.
Justice Gaziano: And you're saying
that you couldn't do RFLP on that?
-: They could have,
but what I understand the statute to require
is that, if now we're seeking testing
that wasn't available at the time,
the testing now is, you know, 16 locations, not six,
he's entitled to that because it's vastly more improved,
vastly, you know, improved- -: And you're saying
that's true, even if no reasonable defense attorney,
at the time, would have said,
"Let's do a DNA test, as we have it now,
with only seven locations or with six or whatever it is."
No reasonable defense attorney
would have bothered with this.
-: I think that that's addressed directly in the Wade,
the first of the, I think it's Wade two,
the court specifically says
it's not about what the defense attorney was thinking,
whether he strategically chose not to test.
That's irrelevant with respect to
this particular statute. -: But it is relevant
whether he could have tested, as Justice Gaziano says,
he could have tested.
-: Yeah, but, well, no.
If he could have tested-
-: The test could have been run on the cement.
-: If he could have tested
but he chose not to for strategic reasons,
it's not relevant to this conversation,
unless the claim is being made under subsection four.
If the claim is made under subsection four,
then you have to get into
what would a reasonable attorney have done.
But when you're dealing with- -: I'm confused.
-: I'm sorry. -: I'm confused a little bit
by the question,
your answer to Justice Gaziano and Cypher's question.
So if the old test would have excluded, you know,
would have done one in 200 million people have this standard
and the new test would be one in a trillion,
does that get you anywhere?
I'm confused.
What would the old, the old test, you said,
tested seven locations, this tests 11,
but if seven locations was going to be incredibly damning,
do you still get to test for 11?
-: Well, I think you do, your honor.
-: In which case, does that,
'cause that seems, back to Justice Cypher's point,
that we're kind of fighting the ridiculous.
So go ahead. -: Understood, understood.
The first Donald case, Mr. Donald's case back in 2014,
speaks specifically to this set of tests
which tested six locations.
At that time, Mr. Donald was asking for
what's called a profiler COfiler test
or something like that
and that test addressed,
I think, 13 locations and this court said that
that was a dramatically significant and important
significantly different level of certainty in the test.
The test that was done in this case had a one in 7,800,
I think that was the number.
Now we're in the trillions and quadrillions, you know,
it's way beyond where we were back then.
So that's my position on that. That's my argument on that.
That in fact this court has already addressed that,
that specific argument, your honor.
-: Can I ask you a hypothetical,
we'll go back to a homicide, in the year 2000.
A victim's shot. There's 30 bloodstains on a white wall.
So you can see it clearly, right?
No test is done because no defense attorney is going to ask
that the bloodstains that come from the victim be tested.
A 278(a) eight motion's filed,
claiming there's a third-party culprit.
Test those blood samples,
it's gonna show the third party did it,
and you're saying that would satisfy 3(b)(5)?
-: Actually, your honor, no, that's not what I'm saying.
That third-party culprit argument has been rejected
by this actually by Justice Link, I think,
in a single Justice setting,
but that argument,
the third-party culprit argument is not at play here.
The argument that the defendant's making here is
that if we test the blood and it's not the victim's blood,
then ABDW cement floor is much less likely to have happened.
It's not that- -: It's just happenstance
that she happened to get her head bashed in
in a parking garage where someone else bled out?
-: Well, there is human blood on the floor. They found it.
If it's hers, but if it's not hers then-
-: That was her apartment garage for her building?
-: Yes, it was her apartment garage.
It is what her testimony was.
There's no question about- -: I understand.
-: About these pieces of evidence. They are there.
But as I argue, possibly, (chuckles) ad nauseum.
-: So if you change my hypothetical,
instead of saying third-party culprit
the defendant now argues,
"I don't think she was actually shot there,"
do you get the testing?
-: I don't think she was actually shot there?
-: Yeah. -: No, your honor,
I don't think so. -: It could have been
someone else in the apartment who got shot.
-: I'm sorry, say that again, your honor?
(indistinct)
If the defendant is saying what,
that someone else had been shot?
-: Yeah, you know, I'm calling into question
that she was actually shot in the apartment.
Do you get to test the blood then?
-: Oh.
I don't, actually, off the top of my head, I don't think so
because the defendant's, in that claim,
you see I can draw a line here, in this one,
I can draw a line, a direct line,
from the absence of the defend, I'm sorry,
the absence of the victim's blood on that cement floor
to the crime of assault and battery
with a dangerous weapon, cement floor.
That crime is not as anywhere nearly
as likely to have happened
if that victim's blood is not there.
If you've got a dead body
and you've got blood all over a wall
and the defendant said, "I didn't kill this victim
and I can prove that if you just test the blood on the wall
because I think it's somebody else's blood,"
I don't think that reaches the homicide part of it.
Here, I'm looking at the specific crime
of ABDW cement floor.
That's where she had her nose broken.
That's where her blood is.
But if it's not her blood,
then I don't think ABDW cement floor happened
or that's the argument.
-: Okay. Thank you very much.
-: Thank you, your honors.
-: [Chief Justice Budd] Attorney of state.
-: Good morning.
May it please the court, Hallie White-Speight,
assistant district attorney for Middlesex
on behalf of the Commonwealth.
The court's been asking
a lot of really interesting questions about the argument
that the defendant is now making
that testing the blood samples recovered
from the floor of the parking garage will somehow prove
that, if it doesn't match the victim,
the crime of ABDW cement floor didn't happen,
which is apparently that she made it up
and the photographs of her broken nose
and the medical records
and the testimony of the medical personnel
who treated her was all lies.
And I think, just as a side note,
I think that the hypothetical about the blood on the wall
where the murder took place is exactly on point.
If the argument is, test the blood,
if it doesn't doesn't match the victim,
that means the victim isn't really dead.
-: Right, but counsel,
isn't the argument that,
in the best light for the defendant,
that we're only at the preliminary stage here
and he's made out the the preliminary factors
that have to be shown to get a hearing under section seven?
-: Well, and here's the real issue in this case,
Justice Cypher, he hasn't.
Because this argument,
this argument that this is a Williams-type claim,
where he's seeking to prove
not that a third party did the crime
but that no crime happened,
was never raised in the superior court.
It was not- -: Counsel, (indistinct).
-: Before Justice (indistinct)-
Justice: You know,
I'm not sure I would agree with that, counsel.
Justice: This argument was raised, wasn't it?
-: It was.
-: It was raised in his brief on appeal.
His motions never- -: Counsel,
if you look at his eighth motion, second paragraph,
I forget, it's either page 43 of your record appendix,
or 67 depending on- -: In RA 67.
-: How it's numbered. Right.
The second paragraph says, is enough, I think, to say
that he's arguing the crime didn't occur.
-: I don't, I don't think it is.
I don't think that's a reasonable re-reading of this motion
where he says, and he says on page 67, the evidence,
the material to whether the bloodstains belong
to the defendant, the victim,
or the man a witness saw with a limp
at the time of the crime.
He's raising- -: Correct.
Now go to the next paragraph.
Counsel: Sorry?
-: Go to the next paragraph.
-: The next paragraph,
"Even more, if the bloodstains do not match the victim,
then the Commonwealth made a mistake
by not testing the bloodstains
and then the forensic test results
would be material evidence to establish Donald's innocence
since the Commonwealth represents
that Donald body-slammed victim onto the floor of the garage
and face smashing into the concrete."
-: Why isn't that enough?
-: Because it doesn't establish that what he's really arguing
is that the crime didn't occur,
if you read the motion as a whole.
You don't, I mean, even,
and leaving aside the question of whether reading,
whether you just take this motion in isolation
or whether you read it against the background
of the arguments that he's been making for the past 20 years
on this issue, which is a different question.
But even if you read this motion as a whole,
back on page 65 of the record appendix,
where he says, he talks about,
he talks again about the man with the limp
and all the previous motions
that sought to test this blood argued-
-: Do you have any arguments, if we disagree with you
that in fact that paragraph, that you just read out loud,
which says specifically about testing the bloodstains
and whether or not they match the victim,
assuming that we read that literally
and the defendant has preserved this argument
and brought it forth expressly,
do you have any arguments against the hearing
at this preliminary stage?
-: I think if this court
wants to conclude
that the motion judge should have read the defendant's mind
and intuited what he really meant,
which is- -: No,
can you just answer my question?
My question is about- -: Yes, no, I don't have,
no, if that's your conclusion.
-: Can I ask my question
or are you not interested in hearing that?
-: No, please, I'm sorry, I was,
you were asking if it was appropriate
to send it back for a hearing, if that's what you conclude.
Is that the question? -: Right.
If we read the paragraph
that Justice Cypher had you read aloud
and conclude that the defendant therefore
has expressly preserved this argument,
what is the Commonwealth's argument
against having a hearing?
-: If that's the conclusion you reach,
then it should be sent back for a hearing.
-: Okay. -: But I submit that
that conclusion is utterly inconsistent
with the defendant's filings.
-: And in the event we conclude you're correct,
he (indistinct) file the motion again.
-: Exactly. There's absolutely no harm to the defendant.
From requiring him to raise the issue
with sufficient clarity. -: So what would be the harm.
I mean, if we're looking at efficiency
of judicial administration,
why not just answer the question now,
if it can arguably be interpreted in that motion?
-: Because I think that sets a precedent
where it reduces the level of clarity
with which a defendant is required to raise an issue.
I mean, the law is quite clear
that a judge has to be able to know
what the defendant is arguing,
and where the defendant has been arguing consistently,
over multiple motions,
that the reason to test the blood
is not that it proves the victim fabricated the assault
but that it belongs to the so-called,
the imaginary man with a limp,
the supposed real perpetrator of the crime.
That's what he's been saying consistently, including,
and I don't think there is anything in this eighth motion
that sufficiently distinguishes this as a new argument
to allow a judge of ordinary intelligence to understand
that that's what he's doing.
He doesn't cite Williams.
Williams was out when this motion was filed.
He doesn't cite it.
He doesn't say it proves the crime didn't occur.
He doesn't say it proves she made it up.
He in fact keeps up this this argument
about the man with the limp
and what is a judge, considering this motion,
particularly against the background of his previous motions,
particularly where this one is captioned renewed motion-
-: Right. -: For test.
-: Let's put that aside for a moment
because we all understand your position
and the defendant's position on that.
Can you address the argument
about the availability of DNA testing?
-: (sighs) That's a difficult question
and it's been, I thought it was easier
until we started talking (laughs) about it today
because the first, not the first Donald Case,
but the first Donald 278(a) case, back in 2014,
settled, I thought, pretty clearly
that where there is a material advance-
-: Right. -: In the accuracy
or the discrimination of a test,
that satisfies 3(b)(5) if the test was not available
or no, sorry, developed not available.
The statute says developed.
I argued, in that original Donald case,
that it in fact was developed
because it was being used in other jurisdictions
at the time of the defendant's crime.
But that's irrelevant now
because we've already gone two or three tests
beyond- -: Right.
-: What he wanted back then.
So you know, that is clear,
from this court's previous decisions,
that the material advance in accuracy
is sufficient to satisfy that.
But where the test was never done in the first place,
not because there wasn't a test that was accurate enough
but because there was no reason to do it,
I'm not sure how to respond to that
and I think there's a certain, (sighs) not an ambiguity,
but there's a sort of a weird kind of hole in the statute.
-: Well, yeah. -: Where,
you know, between the effective counsel question
and the test not developed criteria.
-: Right. And it seems to sort of
fall in between the two
and I don't have a good answer to that, I wish I did.
-: I'm confused because- -: I wish you did too. (laughs)
-: I mean, I know this,
you're tired of fighting this case
and you'll be tired of fighting the next case
that is filed in this case,
but if we have a request for the,
we have a conviction of assault and battery
with dangerous weapon, i.e., the concrete floor.
He's now arguing or he will be arguing in the next motion
that that blood is not hers, therefore,
and you now recognize
that this is a material advance in technology.
What are we supposed to do?
'Cause we're just gonna get this case two weeks from now.
So what is the answer to...
Does Justice Gaziano raise a different point
that because you wouldn't have,
because no self-respecting person would have tested it,
we don't have to do it.
But what is your view?
'Cause if it's not here this time,
it's gonna be here two weeks from now, so.
-: I understand that and it is,
and this court has always striven
to read the statute expansively,
but, you know, at some point,
common sense does have to come into the analysis and-
-: But it's not in the statute.
There's no common sense in the statute, counsel.
Counsel: I would agree with, Justice Cypher.
-: But I get, the purpose of the statute,
because we have the specific conviction,
that's what Mr. Gaffney is putting his hat on
with this point. -: Right.
-: Do we just test the, do we,
does the Commonwealth just want the blood tested?
'Cause it's gonna her blood, and then we can move on,
or is that? -: That is an option
-: Right. -: That is an option.
-: Then we won't have case 12 in this.
We'll have something different,
but it won't be that case, right?
-: It is something that we would, I think,
we would discuss in the office whether we should agree,
because we have, and we stand ready,
we have already agreed to retest the sperm fractions
from the samples from the victim's underwear.
-: And with what- -: We agreed to that
five years ago.
-: And I haven't read this record,
is the blood here on the concrete is available for testing?
-: The samples are at the crime lab.
There appears to be, according to the crime lab's case check
there is a known sample from the victim.
But I also just,
I don't think it's especially relevant to this case
because we do appear to have a known sample,
but I think this court needs to think carefully
before it speaks too cavalierly about just go ahead
and do the testing. -: Right.
-: Where we're talking about (indistinct).
-: Well, that's why I'm looking for
a principal reason why it's not done,
'cause I get a sense this is silly and absurd,
but you're not giving us one.
Woman: Well.
-: Besides that it's silly. (laughs)
But don't we need one?
-: I would just like to answer for,
(laughs) answer you in one way
and that is that if they had to go to a victim now,
after so many years, to get a sample,
I think we're in a whole different case.
-: I think we are.
-: If we have the sample, it's different.
-: Is that what this,
does the statute take into account
the burden on the victim somewhere in the statute?
'Cause then it may be a bad statute again,
but we don't get- -: I think.
-: Yeah. -: I'm sorry.
-: Go ahead. I'm done. (laughs)
-: Okay. I'm sorry.
It's so hard on Zoom.
Justice Cypher: I know.
-: The statute does provide,
and I can't remember what section this is in,
but there is a provision
that a sample shall not be compelled from a victim
without an express order from the judge.
So there is at least that recognition
that we need to tread carefully
if we're talking about taking a sample from the victim.
-: (indistinct) Just in this case, it sounds like
because there's so much evidence that he's guilty
and there's so much evidence related to the victim
that's been tested,
we're not gonna have this problem are we?
-: I'm not sure I understand the question.
-: We do have the victim's DNA, right, here?
-: The crime lab case check,
it lists a known sample from the victim.
So I assume it is there.
I assume it's been properly preserved.
But stuff happens and if that sample were not viable,
then I think we are in a very different territory.
I think, you know, we don't lightly compel
sticking a Q-tip into the mouth of a rape victim
and we should not. -: I totally agree with that,
except you got to use the statute,
you got to have a statutory,
'cause we also don't want to convict innocent people.
-: Also true.
Justice Kafker: So that's a whole different story here.
-: No, I understand the problem
and you know, if we have a viable sample,
maybe we don't have that problem in this case.
But it will come up someday.
And I think that is, it's something that the legislature
partially took into account,
but I'm not sure they thought it all the way through.
But my bottom line here is,
this court doesn't have to reach any of those questions
in this case because a reasonable common sense understanding
of the eighth motion does not sufficiently raise
the argument that he wants to prove
that this assault didn't happen.
He wants it to prove that somebody else did it,
the man with the limp who was bleeding,
and that's simply not enough.
That's already been dealt with.
Justice: Okay. Thank you very much.
Hallie: Thank you.
-: Thank you both.
-: Thank you, your honor. -: Thank you.