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SJC-13045, Commonwealth versus Michael A. Noguera.
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Attorney Sultan.
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Good morning, Madam Chief Justice,
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and may I please the court.
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Defendant Michael Noguera shot and killed Daniel Smith
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in a wooded area of Easton on November 8th, 2016.
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Noguera and Smith were friends and traveling companions,
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but it was an abusive relationship.
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Smith took away Noguera's cell phone,
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he threw away his medication, he pointed a gun at him,
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and in the days just preceding the killing,
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he repeatedly threatened Noguera and Noguera's family.
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Noguera went to trial in 2020,
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after the trial had been continued
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due to concerns about Noguera's mental health.
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And the filing of the court-ordered 15A report,
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which chronicled Noguera's long history of mental illness
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and mental health treatment.
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Noguera testified in his own defense at trial.
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He described his history of mental illness
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and Smith's abuse.
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He testified that he killed Smith in self-defense.
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On cross-examination of Noguera,
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the prosecutor challenged the defendant's claim
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of mental illness based upon the absence
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of any records corroborating that claim.
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Mr. Sultan, can we jump right into that?
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Because this does seem a little bit different
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than Solankis and the appeals court case that you cited.
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Certainly different than Commonwealth versus Gardner
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when there was cross-examination on manslaughter.
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The difference, the first difference,
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is that your client took the witness stand.
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And the second difference is in the Solankis,
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in the appeals court case, the name is escaping me,
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they were the victim's records,
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not the defendant's own records.
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So if you take those trilogy of cases,
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how do you reconcile those with the circumstances here
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where your client made a decision to take the stand,
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schizoaffective disorder was a key to the case,
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and yet he didn't have those records.
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How does that implicate improper cross-examination?
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Well, I agree with Your Honor
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that under this court's cases
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and Ivy and appeals court cases,
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it's a much closer question.
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And because he did take the stand,
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and I think it is somewhat analogous to situations
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where somebody decides to talk to the police
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and answer some questions and not others.
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So, frankly, that is not one of my two principal arguments.
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You know, I'm not waiving that argument,
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but I recognize especially where it wasn't objected
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to a trial where cross-examination obviously
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is within discretion of the trial judge.
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I'm not resting principally on that argument.
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But I think that that,
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it does jive with what are the two principle arguments,
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which are related,
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which we raise on this consolidated appeal,
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which are first that trial counsel was ineffective
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and deprived Noguera of a substantial defense
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by not obtaining and using at least four specific
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sets of records that would've blunted that argument.
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Let me ask you on that score, Mr. Sultan.
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As far as the judge's findings on the motion for new trial
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go in the record,
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what you didn't address in your brief
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was the examination by Dr. Selah, and then,
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the investigation that Mr. Kamera did with Selah and Brown,
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which used some of the records, not all of them.
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Could you please address or take the opportunity to address
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how those pretrial examinations and investigations
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by attorney Kamara would not be ineffective?
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I don't think that those are particularly germane,
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Your Honor, because defense counsel didn't call
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either of those experts at trial.
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But we have lots of case law that says when you,
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as obviously a very experienced defense attorney,
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the obligation
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is to look at the mental health when raised.
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And do an investigation of it,
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and we don't have an obligation to go down rabbit holes
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or raise spurious defenses.
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So at bottom, Kamera called two experts,
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had him examined and then said, we're not going there.
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So how does that jive with ineffective assistance?
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Well, Your Honor, it's because because the obligation
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is to make a reasonable investigation.
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And a reasonable investigation.
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I mean, to me, the case that's most directly on point
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is Alvarez, where, I mean, the defense in that case
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put on an expert, but the defense didn't obtain
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the full set of records that would've corroborated
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the defense, the NGI defense.
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And so what this court said is there was no strategic reason
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not to get those records.
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There was no strategic reason not to review those records.
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Those records would have assisted
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the presentation of the defense.
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So here, I mean, doesn't, I mean, frankly,
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if those experts opined without even seeing those records,
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I mean, what kind of an opinion is that?
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It's a standard part of what a lawyer's job
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is to get the records.
Can we challenge
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that point, though?
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I'm sorry, Your Honor?
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Can we just challenge that point for a minute?
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Sure.
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That the expert didn't review those records.
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I think you might be referring to Dr. Brown.
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Because there is a suggestion that the Suffolk jail records
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were reviewed, there's a suggestion that
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the Social Security Administration records
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were part of the Hackensack University Hospital records,
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and that those records were reviewed.
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Now, I don't know, I haven't taken the big dive in yet
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to know, but that's the suggestion that no, wait a minute,
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you said, and there was no review of those records.
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There's a suggestion from the Commonwealth
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that indeed a good enough amount of those records
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were reviewed to say, stop, don't go there,
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because this is going to step on your longstanding
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mental health schizo disorder defense.
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Well, let me address that, Your Honor.
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Well, first of all, as this court has said,
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going back decades,
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doing the investigation, including getting records,
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does not in any way create a discovery obligation.
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It doesn't require you to use those records.
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It's just part of the pretrial investigation.
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So let's talk about the four sets of records.
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So first, the military records,
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where the defendant made a serious suicide attempt,
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and the records also document earlier suicide attempts
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and a medical discharge.
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Trial counsel concedes, he never got those records.
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There was no request in the file.
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So the experts couldn't have them either.
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He never got them.
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The Social Security disability records.
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The man had been on Social Security disability.
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The disability dated back from 1989 to 2014,
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when he didn't submit updated records,
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so they took him off.
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So that's 25 years. He never obtained those records.
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The Commonwealth suggests, well, some of those records
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might have been someplace else,
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but the complete set of records,
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which documented a long disability,
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including a mental health disability,
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defense counsel never got those records,
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he had conceded he never did it.
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And so the experts never could have seen those records.
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So the third set, the Hackensack Medical Center,
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University Medical Center,
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emergency psychiatric hospitalization in 2010,
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which directly corroborates Noguera's testimony at trial.
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He was asked by the prosecutor,
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"When were you last hospitalized?"
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And he said, "Six to eight years ago."
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And that was six or eight years before the killing.
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Well, 2010 was six years before the killing.
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I mean, that exactly fits his testimony.
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Those records were never obtained.
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There's no suggestion that those Hackensack records
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were part of any other record.
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Now, during the evidentiary hearing, in his affidavit,
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trial counsel says,
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"I never sought or obtained those records."
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In his testimony, he said,
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"Well, I might have gotten those records."
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He had no recollection of ever reviewing them.
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So there's no reason to believe it.
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Just to be clear, Mr. Sultan,
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by those records you're referring to Hackensack.
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The Hackensack records, Your Honor,
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and then the fourth set, so the jail records.
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Upon his entry into the Suffolk County Jail
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in the summer of 2018, Noguera was evaluated.
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If you look at page 515 of the impounded appendix,
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the impression is schizoaffective,
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he's put on psychiatric meds.
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I mean, those records were important that,
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yes, just like in Alvarez, in Alvarez,
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the complete set were summonsed in
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at the prosecution's instigation,
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but the defense never looked at them.
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There's no evidence that Dr. Brown
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ever looked at those records.
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His 15A report came out like,
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two days after those records were summoned in.
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There's nothing in his report that refers to those records.
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There's no reason to believe
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he ever bothered to go to the clerk's office
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and looked at the records.
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And trial counsel admitted he never looked at the records.
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He didn't look at them. He didn't have them.
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He was not in a position to offer them a trial.
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That's negligence, Your Honor.
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I mean, that's...
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I understand that lawyers can't do everything,
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they can't go down every rabbit hole.
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This wasn't a rabbit hole.
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Noguera sent his lawyer a specific list of pages
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of all of the places he had been hospitalized,
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all the medication he'd been on.
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The material was there. It's hard to do.
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I respect that.
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Records seem important.
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I know the DA's gonna make the point that it's,
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obviously after the homicide.
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I appreciate they're gonna make that point.
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But the records are important,
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because that's where you have a potential diagnosis,
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schizo diagnosis.
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So they are important records.
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Is there any resolution in the factual findings,
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or anything that we can look to as to whether or not
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Dr. Brown did review those records?
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Well, there isn't, Your Honor, because,
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the trial counsel didn't keep a record
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of what he had sent to Dr. Brown.
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He didn't keep a copy of what he sent to Dr. Brown.
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And Dr. Brown reported during my investigation
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that he had destroyed the records when he moved offices.
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So there's really no way of knowing what he looked at.
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What we do know is that what about there's no reason
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to believe that counsel had them at trial.
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What does the record reveal, Mr. Sultan about,
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the records reviewed, if any, by Selah?
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There's no evidence anywhere about what Dr. Selah
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saw or didn't see.
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He was retained very early in the case,
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and there's really no information about what he did,
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what he saw, what he didn't see.
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There's no transmittal letters or anything.
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Nothing of any kind of the record.
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And so I can't, we don't really know anything about, but...
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But he couldn't have seen records that defense counsel
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never sought and obtained.
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And that's what we're talking about here.
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And so to me, the issue is really,
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I mean, to me it's a clear case of negligence.
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And the issue really is the issue of prejudice.
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To me, that's really where the rubber should meet the road
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in this case.
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Because I think any lawyer has an obligation,
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where he's told, he was told by Noguera,
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"Get my Social Security disability records.
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They're really important."
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He never did that. So to me, the issue is prejudice.
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And on the issue of prejudice to me,
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where the trial judge said that counsel made
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a reasonable strategic decision not to use these records.
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And I don't see how you can make
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a reasonable strategic decision whether to use or not use
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something that you don't have, that you've never looked at.
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It's not a strategic decision. It just isn't.
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And so I think that that finding is clearly erroneous.
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I mean, whether or not he decides to use them is obviously,
263
00:13:10.050 --> 00:13:11.670
that is a strategic decision.
264
00:13:11.670 --> 00:13:14.790
But you have to be able to see them to make the choice.
265
00:13:14.790 --> 00:13:18.120
Is that coupled with the decision to put his client
266
00:13:18.120 --> 00:13:20.580
on the stand to talk about his mental illness,
267
00:13:20.580 --> 00:13:22.470
and then without the cooperation?
268
00:13:22.470 --> 00:13:24.060
I think that's a really good point, Your Honor.
269
00:13:24.060 --> 00:13:26.370
It is because you're putting him up there, basically,
270
00:13:26.370 --> 00:13:28.320
you're hanging him out to dry.
271
00:13:28.320 --> 00:13:31.387
So if one of your clients had another defense,
272
00:13:31.387 --> 00:13:35.250
"I didn't do it," right, and they'd ride that horse.
273
00:13:35.250 --> 00:13:37.615
That's a different story of a prejudice.
274
00:13:37.615 --> 00:13:38.670
Well, and here he puts on, I mean,
275
00:13:38.670 --> 00:13:42.450
what I would frankly submit was a rather lame
276
00:13:42.450 --> 00:13:46.200
self-defense claim where the decedent was shot
277
00:13:46.200 --> 00:13:47.190
in the back of the head.
278
00:13:47.190 --> 00:13:49.350
I mean, and he argued, I mean,
279
00:13:49.350 --> 00:13:51.990
his mental health was a important issue at trial,
280
00:13:51.990 --> 00:13:54.240
it wasn't just his testimony.
281
00:13:54.240 --> 00:13:57.330
Veronica Suarez, his longtime girlfriend,
282
00:13:57.330 --> 00:13:59.883
testified about his hallucinations,
283
00:14:01.320 --> 00:14:02.970
his symptoms.
284
00:14:02.970 --> 00:14:05.130
Ed Jacobs, an important witness,
285
00:14:05.130 --> 00:14:08.130
testified that he was acting erratically,
286
00:14:08.130 --> 00:14:10.200
that he'd lost it after Smith
287
00:14:10.200 --> 00:14:12.210
kicked him out of their hotel room.
288
00:14:12.210 --> 00:14:15.810
The defense counsel argued mental illness
289
00:14:15.810 --> 00:14:17.250
in his closing argument.
290
00:14:17.250 --> 00:14:20.710
The judge instructed the jury that they could consider
291
00:14:21.600 --> 00:14:23.580
credible evidence of mental illness.
292
00:14:23.580 --> 00:14:27.360
So this was not some throw-in, this was an important,
293
00:14:27.360 --> 00:14:30.090
and the prosecutor argued in closing,
294
00:14:30.090 --> 00:14:33.240
that he's fabricating this, this is self-serving.
295
00:14:33.240 --> 00:14:35.460
There's no documents to back it up.
296
00:14:35.460 --> 00:14:37.230
So if you don't, you shouldn't believe this.
297
00:14:37.230 --> 00:14:39.960
And by inference, you shouldn't believe anything he says.
298
00:14:39.960 --> 00:14:43.320
At one point, you were saying that you're not relying
299
00:14:43.320 --> 00:14:45.690
as much on the cross,
300
00:14:45.690 --> 00:14:47.790
you're relying on two different things,
301
00:14:47.790 --> 00:14:50.488
and the first one you've addressed.
302
00:14:50.488 --> 00:14:52.500
And the second one, I'm not sure if you're gonna address
303
00:14:52.500 --> 00:14:55.773
33 or the closing as it relates to it.
304
00:14:55.773 --> 00:14:57.300
It's 33, your Honor, because I think,
305
00:14:57.300 --> 00:14:59.823
to me, these two things go together.
306
00:15:01.049 --> 00:15:04.080
This was a man with a serious longstanding mental illness.
307
00:15:04.080 --> 00:15:06.813
He was a victim of abuse.
308
00:15:08.229 --> 00:15:09.960
And he killed.
309
00:15:09.960 --> 00:15:13.740
And to me, the combination of his lawyer
310
00:15:13.740 --> 00:15:18.740
not presenting the records that would corroborate
311
00:15:18.780 --> 00:15:21.390
his mental illness to give the jury a fair chance
312
00:15:21.390 --> 00:15:26.390
to assess it, combined with just the fact that those,
313
00:15:26.700 --> 00:15:28.980
the combination of mental illness and abuse
314
00:15:28.980 --> 00:15:30.240
is kind of a combination.
315
00:15:30.240 --> 00:15:31.830
And I know every case is different.
316
00:15:31.830 --> 00:15:34.350
But this court in the past, in cases like Colleran
317
00:15:34.350 --> 00:15:37.057
and Barry and other cases have looked at that and said,
318
00:15:37.057 --> 00:15:37.983
"Look, you know,
319
00:15:38.896 --> 00:15:39.930
maybe there should be some mitigation here."
320
00:15:39.930 --> 00:15:41.460
Well let's see where it goes to though,
321
00:15:41.460 --> 00:15:44.850
because it's not a criminal responsibility case.
322
00:15:44.850 --> 00:15:48.510
So is it, does it go to diminished capacity?
323
00:15:48.510 --> 00:15:49.950
Does it go to the lack of capacity
324
00:15:49.950 --> 00:15:53.490
to formulate the requisite intent?
325
00:15:53.490 --> 00:15:54.600
I think that's right, your Honor.
326
00:15:54.600 --> 00:15:57.005
I think it's diminished capacity.
327
00:15:57.005 --> 00:15:59.013
I think that it's acting,
328
00:16:00.030 --> 00:16:03.450
that it's acting impulsively based on his, you know,
329
00:16:03.450 --> 00:16:05.700
messed up, mentally ill mind,
330
00:16:05.700 --> 00:16:09.210
combined with a feeling of paranoia and fear,
331
00:16:09.210 --> 00:16:12.300
based on all of these threats that are laid out
332
00:16:12.300 --> 00:16:15.480
in the text messages that are quoted in the brief.
333
00:16:15.480 --> 00:16:17.580
He's gonna hurt him, he's gonna hurt his family,
334
00:16:17.580 --> 00:16:19.650
he's gonna hurt his son, he knows where they live.
335
00:16:19.650 --> 00:16:23.590
All of that stuff combined to operate on this man's
336
00:16:25.380 --> 00:16:30.240
distorted, diseased mind to result in this tragedy.
337
00:16:30.240 --> 00:16:33.180
So the layers you're asking us to reach are,
338
00:16:33.180 --> 00:16:35.040
it's ineffective assistance of counsel.
339
00:16:35.040 --> 00:16:37.950
There's clear negligence, there's prejudice, new trial.
340
00:16:37.950 --> 00:16:41.610
If we don't go there, 33, mitigation.
341
00:16:41.610 --> 00:16:42.600
I think that's right, Your Honor.
342
00:16:42.600 --> 00:16:43.830
But I think,
343
00:16:43.830 --> 00:16:47.640
and I think Your Honor really kind of put a gloss on it
344
00:16:47.640 --> 00:16:50.010
that I didn't do as effectively as Your Honor did,
345
00:16:50.010 --> 00:16:52.830
which is he really did hang Noguera out to dry.
346
00:16:52.830 --> 00:16:55.110
By putting him on the stand to testify
347
00:16:55.110 --> 00:16:58.230
about his mental illness without anything,
348
00:16:58.230 --> 00:16:59.790
anything to back it up,
349
00:16:59.790 --> 00:17:01.530
even though these records were available.
350
00:17:01.530 --> 00:17:02.550
I got these records.
351
00:17:02.550 --> 00:17:06.030
I mean, it wasn't that difficult to get them,
352
00:17:06.030 --> 00:17:09.000
without ever bothering to read the Suffolk County records.
353
00:17:09.000 --> 00:17:10.830
It is like Alvarez.
354
00:17:10.830 --> 00:17:13.600
Just like in Alvarez, the records didn't
355
00:17:15.660 --> 00:17:20.070
correlate perfectly with the defendant's testimony.
356
00:17:20.070 --> 00:17:23.010
I agree with the Commonwealth when they point that out.
357
00:17:23.010 --> 00:17:28.010
In Alvarez, the defendant had told the defense expert
358
00:17:28.380 --> 00:17:30.420
that she was in a coma for months
359
00:17:30.420 --> 00:17:32.490
and had a steel plate in her head
360
00:17:32.490 --> 00:17:34.173
as a result of an accident.
361
00:17:36.423 --> 00:17:38.400
There was nothing in the records about a steel plate.
362
00:17:38.400 --> 00:17:39.630
In fact, she was in a coma
363
00:17:39.630 --> 00:17:42.390
for maybe several weeks, not months.
364
00:17:42.390 --> 00:17:45.690
But this court said those details don't matter.
365
00:17:45.690 --> 00:17:50.010
The records still would've corroborated the overall picture
366
00:17:50.010 --> 00:17:54.930
that this was somebody who had severe repercussions
367
00:17:54.930 --> 00:17:56.160
as a result of that accident.
368
00:17:56.160 --> 00:17:59.250
Similarly here, even though they don't correlate perfectly
369
00:17:59.250 --> 00:18:03.030
with his testimony, the records would have corroborated,
370
00:18:03.030 --> 00:18:06.030
this was a man with a longstanding history
371
00:18:06.030 --> 00:18:08.280
of mental illness and treatment,
372
00:18:08.280 --> 00:18:11.880
and they would've at least seriously blunted
373
00:18:11.880 --> 00:18:15.150
the prosecution's extremely effective attack
374
00:18:15.150 --> 00:18:17.610
on his credibility based on the absence
375
00:18:17.610 --> 00:18:18.660
of any records at all.
376
00:18:18.660 --> 00:18:22.203
How does his cocaine use or drug use come into play?
377
00:18:23.670 --> 00:18:24.720
I'm not sure, Your Honor.
378
00:18:24.720 --> 00:18:26.340
I mean there was really,
379
00:18:26.340 --> 00:18:29.280
there was no testimony about drug use
380
00:18:29.280 --> 00:18:31.473
around the time of the killing.
381
00:18:33.272 --> 00:18:37.380
Many mentally ill people self-medicate with drugs.
382
00:18:37.380 --> 00:18:39.600
That's not an excuse, but that's what happens.
383
00:18:39.600 --> 00:18:42.573
I don't really think it particularly enters into it.
384
00:18:43.530 --> 00:18:46.230
This was not an intoxication defense.
385
00:18:46.230 --> 00:18:47.850
There was no evidence he had been drinking
386
00:18:47.850 --> 00:18:51.750
or using drugs within 24 hours of the killing,
387
00:18:51.750 --> 00:18:56.010
so while that certainly is part of who he was,
388
00:18:56.010 --> 00:18:58.020
I don't believe that's directly relevant
389
00:18:58.020 --> 00:19:00.420
to the arguments that I'm making in this appeal.
390
00:19:01.920 --> 00:19:02.880
If there are no further questions,
391
00:19:02.880 --> 00:19:04.740
I thank the court for its time.
392
00:19:04.740 --> 00:19:05.573
Thank you.
393
00:19:08.160 --> 00:19:09.743
Okay, Attorney Lee.
394
00:19:13.290 --> 00:19:14.310
Good morning.
395
00:19:14.310 --> 00:19:16.260
May it please the court, Mary Lee,
396
00:19:16.260 --> 00:19:17.340
assistant district attorney
397
00:19:17.340 --> 00:19:20.190
from the Bristol District for the Commonwealth.
398
00:19:20.190 --> 00:19:22.920
Because this is 33, I'm happy to attempt to answer
399
00:19:22.920 --> 00:19:25.380
any questions that you have on any topic.
400
00:19:25.380 --> 00:19:26.760
But if you don't have immediate questions,
401
00:19:26.760 --> 00:19:28.650
I'd like to go back to a couple of questions
402
00:19:28.650 --> 00:19:29.483
my brother asked.
403
00:19:29.483 --> 00:19:30.800
I have an immediate question.
404
00:19:31.719 --> 00:19:34.323
On Mr. Sultan's point, which is,
405
00:19:35.310 --> 00:19:37.980
how can it something be strategic
406
00:19:37.980 --> 00:19:39.573
if it hasn't been reviewed?
407
00:19:40.860 --> 00:19:42.260
Right, so...
408
00:19:45.000 --> 00:19:46.290
From that, the answer is no.
409
00:19:46.290 --> 00:19:49.380
If you haven't reviewed anything, it can't be strategic.
410
00:19:49.380 --> 00:19:52.140
And the Commonwealth's position is the defense counsel here
411
00:19:52.140 --> 00:19:55.470
did review things, and he did talk to two experts,
412
00:19:55.470 --> 00:19:57.510
and therefore did make a strategic decision,
413
00:19:57.510 --> 00:19:58.410
but you're correct.
414
00:19:58.410 --> 00:20:01.110
If he didn't review anything,
415
00:20:01.110 --> 00:20:04.410
and these records were helpful to the defendant,
416
00:20:04.410 --> 00:20:06.450
then that can't be a strategic decision.
417
00:20:06.450 --> 00:20:09.300
But here, we don't have that.
418
00:20:09.300 --> 00:20:11.976
I don't wanna step on Justice Lowy's question,
419
00:20:11.976 --> 00:20:15.330
but could you go through the four categories of records?
420
00:20:15.330 --> 00:20:16.163
The...
421
00:20:21.450 --> 00:20:23.250
I'm sorry, the first set of records,
422
00:20:23.250 --> 00:20:24.850
I can't read my own handwriting.
423
00:20:26.100 --> 00:20:29.910
I'm sorry, military, that's what that word says, I'm sorry.
424
00:20:29.910 --> 00:20:32.100
The military records, the SSI records,
425
00:20:32.100 --> 00:20:33.990
the Hackensack records and the Joe records.
426
00:20:33.990 --> 00:20:36.270
And what, in your view, the evidence shows
427
00:20:36.270 --> 00:20:37.560
about review of those?
428
00:20:37.560 --> 00:20:39.031
Yes.
429
00:20:39.031 --> 00:20:39.987
So the Fort Dix record,
430
00:20:39.987 --> 00:20:43.650
and the only records that date back 30 years,
431
00:20:43.650 --> 00:20:46.980
the defendant claimed not just that he had a mental illness,
432
00:20:46.980 --> 00:20:49.620
but that he had a 30 year diagnosis
433
00:20:49.620 --> 00:20:51.660
of schizoaffective disorder,
434
00:20:51.660 --> 00:20:55.080
and a 30 year diagnosis of bipolar disorder.
435
00:20:55.080 --> 00:20:58.470
And he testified about that in his direct examination.
436
00:20:58.470 --> 00:21:03.359
And the defense on appeal claims, the Fort Dix records,
437
00:21:03.359 --> 00:21:06.030
which show that, you know, that he was discharged
438
00:21:06.030 --> 00:21:07.770
because there was a suicide attempt.
439
00:21:07.770 --> 00:21:09.090
But those records don't show
440
00:21:09.090 --> 00:21:10.710
that he had schizoaffective disorder.
441
00:21:10.710 --> 00:21:12.450
They don't show that he had bipolar disorder,
442
00:21:12.450 --> 00:21:14.970
they actually have a different diagnosis
443
00:21:14.970 --> 00:21:17.430
of borderline personality disorder.
444
00:21:17.430 --> 00:21:19.893
And so those contradict his claim.
445
00:21:21.060 --> 00:21:24.960
I'm sorry, no dispute, he didn't get the military records.
446
00:21:24.960 --> 00:21:26.430
He did not get those records.
447
00:21:26.430 --> 00:21:28.680
He attempted to, his notes show that he made attempts
448
00:21:28.680 --> 00:21:29.910
to get those records.
449
00:21:29.910 --> 00:21:32.820
There was communication with the military,
450
00:21:32.820 --> 00:21:35.250
but he did not achieve those records.
451
00:21:35.250 --> 00:21:36.660
He did not review those records.
452
00:21:36.660 --> 00:21:38.220
And so the Commonwealth's claim here
453
00:21:38.220 --> 00:21:41.310
is that they don't help the defense at all
454
00:21:41.310 --> 00:21:43.470
because they contradict the defendant's claim.
455
00:21:43.470 --> 00:21:46.500
They do show that he had mental illness back then.
456
00:21:46.500 --> 00:21:47.850
Because it's really important
457
00:21:47.850 --> 00:21:51.480
to go through these four different categories.
458
00:21:51.480 --> 00:21:53.040
Right, yes.
459
00:21:53.040 --> 00:21:54.570
Each one stands on its own, yes.
460
00:21:54.570 --> 00:21:56.610
And then we look at the whole thing.
461
00:21:56.610 --> 00:21:59.310
So going back to Fort Dix and the army.
462
00:21:59.310 --> 00:22:01.950
And Mr. Sultan's point about Alvarez, well, yeah,
463
00:22:01.950 --> 00:22:03.150
it's not a perfect fit,
464
00:22:03.150 --> 00:22:05.850
but at least he gets to go to the witness stand with records
465
00:22:05.850 --> 00:22:08.250
that says this is longstanding.
466
00:22:08.250 --> 00:22:11.940
Right, so one, it cannot go to his mental health
467
00:22:11.940 --> 00:22:14.061
at the time of the crime,
468
00:22:14.061 --> 00:22:16.110
because they predate the crime by 30 years,
469
00:22:16.110 --> 00:22:17.970
and that's Commonwealth versus Sprae.
470
00:22:17.970 --> 00:22:21.930
But also these records, as I said,
471
00:22:21.930 --> 00:22:25.350
here, you can see the prosecutor going right to the point,
472
00:22:25.350 --> 00:22:27.630
you know, when those were the first questions
473
00:22:27.630 --> 00:22:29.190
that she asked on cross-examination,
474
00:22:29.190 --> 00:22:32.460
if these records were presented to the jury,
475
00:22:32.460 --> 00:22:34.747
the prosecutor would be going at them saying,
476
00:22:34.747 --> 00:22:36.540
"Where's the schizoaffective disorder?
477
00:22:36.540 --> 00:22:38.340
Where's the bipolar disorder?
478
00:22:38.340 --> 00:22:40.110
Where's the mental health treatment?
479
00:22:40.110 --> 00:22:43.440
He was in the Army. He had a suicide attempt.
480
00:22:43.440 --> 00:22:45.960
They reviewed him, made a medical diagnosis,
481
00:22:45.960 --> 00:22:48.150
and he went on his way."
482
00:22:48.150 --> 00:22:51.450
This does not show a 30 year history of treatment records,
483
00:22:51.450 --> 00:22:54.960
which is what her point was in her cross-examination.
484
00:22:54.960 --> 00:22:57.750
Where is this history of treatment records?
485
00:22:57.750 --> 00:23:00.900
So this doesn't disprove the prosecutor's point,
486
00:23:00.900 --> 00:23:04.170
and it contradicts the defendant's testimony.
487
00:23:04.170 --> 00:23:09.170
Now, if we look at what the trial strategy of counsel was,
488
00:23:10.257 --> 00:23:14.493
and this is in his testimony at the motion for new trial,
489
00:23:14.493 --> 00:23:16.770
he was concerned after speaking to the two experts
490
00:23:16.770 --> 00:23:19.020
and reviewing some records that the defendant
491
00:23:19.020 --> 00:23:21.960
was embellishing his mental illness,
492
00:23:21.960 --> 00:23:25.680
that he was overstating it for the purposes of his defense.
493
00:23:25.680 --> 00:23:29.250
And I would suggest the Fort Dix records
494
00:23:29.250 --> 00:23:31.080
are exactly the problem
495
00:23:31.080 --> 00:23:33.600
that defense counsel was worried about.
496
00:23:33.600 --> 00:23:35.790
The defense counsel didn't want it to look
497
00:23:35.790 --> 00:23:38.730
like he was embellishing his claims
498
00:23:38.730 --> 00:23:41.400
in order to get rid of this murder charge.
499
00:23:41.400 --> 00:23:42.930
And Fort Dix goes to that,
500
00:23:42.930 --> 00:23:45.090
because he didn't have a 30 year history
501
00:23:45.090 --> 00:23:46.230
of schizoaffective disorder.
502
00:23:46.230 --> 00:23:49.290
He didn't have a 30 year history of bipolar disorder.
503
00:23:49.290 --> 00:23:51.790
And so defense counsel was steering clear of that.
504
00:23:52.980 --> 00:23:54.180
The absence of those records
505
00:23:54.180 --> 00:23:56.160
is consistent with the strategy, I'm sorry, your Honor.
506
00:23:56.160 --> 00:23:58.200
Yeah, it's tough to be strategic when he doesn't know.
507
00:23:58.200 --> 00:24:01.677
But let's go to the next category, the SSI records.
508
00:24:01.677 --> 00:24:05.550
So, I agree, the defendant specifically asked
509
00:24:05.550 --> 00:24:08.310
his attorney to get the Social Security
510
00:24:08.310 --> 00:24:10.020
administration records.
511
00:24:10.020 --> 00:24:11.760
It's in his letter to counsel.
512
00:24:11.760 --> 00:24:14.943
And he said, "That is where you'll see my,
513
00:24:16.140 --> 00:24:18.750
the most comprehensive list of my treatment records."
514
00:24:18.750 --> 00:24:21.330
And counsel went to get every list
515
00:24:21.330 --> 00:24:24.450
of every set of treatment records that were in that list.
516
00:24:24.450 --> 00:24:27.750
So he never got the SSI, never attempted to get
517
00:24:27.750 --> 00:24:29.667
the Social Security administration records.
518
00:24:29.667 --> 00:24:32.057
And so he should have done that.
519
00:24:32.057 --> 00:24:33.870
His client asked him to do it, he should have done that.
520
00:24:33.870 --> 00:24:36.180
So our argument on this one is prejudice.
521
00:24:36.180 --> 00:24:37.590
There's no prejudice here,
522
00:24:37.590 --> 00:24:41.760
because counsel did get the two sets of treatment records
523
00:24:41.760 --> 00:24:44.760
that are within the Social Security Administration records.
524
00:24:44.760 --> 00:24:48.843
Dr. Danishmond and Lahai, which are medical records.
525
00:24:49.713 --> 00:24:54.030
And he asked for 2013 to 14 for Dr, Danishmond.
526
00:24:54.030 --> 00:24:58.710
The Social Security Administration records had 2011 to 2014.
527
00:24:58.710 --> 00:25:00.810
Both sets of those records
528
00:25:00.810 --> 00:25:02.850
from Social Security Administration
529
00:25:02.850 --> 00:25:07.850
show a diagnosis of bipolar disorder beginning in 2011,
530
00:25:08.010 --> 00:25:10.170
so it's not a 30 year history.
531
00:25:10.170 --> 00:25:12.360
It does corroborate bipolar disorder,
532
00:25:12.360 --> 00:25:15.120
but nothing about schizoaffective disorder.
533
00:25:15.120 --> 00:25:16.470
So I would suggest one,
534
00:25:16.470 --> 00:25:19.290
and this is one of the points that I had originally
535
00:25:19.290 --> 00:25:21.753
wanted to make when my brother was arguing.
536
00:25:22.830 --> 00:25:25.590
Justice Lowy, I believe said that SSA
537
00:25:25.590 --> 00:25:26.910
was part of Hackensack.
538
00:25:26.910 --> 00:25:29.910
I think what you meant to say is that
539
00:25:29.910 --> 00:25:31.890
the Social Security Administration included
540
00:25:31.890 --> 00:25:34.983
the Danishmond records, not the Hackensack records.
541
00:25:36.720 --> 00:25:40.170
So the psychological treatment records
542
00:25:40.170 --> 00:25:43.680
that are within the Social Security Administration records.
543
00:25:43.680 --> 00:25:45.900
In fact, trial counsel had those,
544
00:25:45.900 --> 00:25:47.650
they're the Dr. Danishmond records.
545
00:25:48.540 --> 00:25:51.240
We have the letters to Dr. Danishmond.
546
00:25:51.240 --> 00:25:53.580
The defendant is not claiming he didn't get those.
547
00:25:53.580 --> 00:25:56.237
And those would be records that were sent to Dr. Brown
548
00:25:56.237 --> 00:25:57.780
and were later destroyed.
549
00:25:57.780 --> 00:26:00.660
And they would show a bipolar diagnosis,
550
00:26:00.660 --> 00:26:03.270
but not dating back 30 years.
551
00:26:03.270 --> 00:26:05.430
I would also just like to point out,
552
00:26:05.430 --> 00:26:08.680
this goes to a question that was earlier asked by
553
00:26:09.600 --> 00:26:12.060
Justice Gaziano, which was,
554
00:26:12.060 --> 00:26:17.060
how do we know what Dr. Zale and what what Dr. Brown saw?
555
00:26:19.470 --> 00:26:22.380
The Commonwealth in its original response
556
00:26:22.380 --> 00:26:23.430
to the motion for new trial,
557
00:26:23.430 --> 00:26:25.710
specifically asked for discovery
558
00:26:25.710 --> 00:26:28.050
about Dr. Brown and Dr. Zale.
559
00:26:28.050 --> 00:26:29.760
We wanted to call them as witnesses
560
00:26:29.760 --> 00:26:31.380
at the motion for new trial.
561
00:26:31.380 --> 00:26:33.573
That was preliminarily denied.
562
00:26:34.680 --> 00:26:37.650
After the Commonwealth's request by the trial judge,
563
00:26:37.650 --> 00:26:40.203
we presented the evidentiary hearing,
564
00:26:41.040 --> 00:26:43.410
and those witnesses were not called.
565
00:26:43.410 --> 00:26:45.690
And at the end of the hearing,
566
00:26:45.690 --> 00:26:48.960
I renewed my request to ask,
567
00:26:48.960 --> 00:26:50.490
to call Dr. Zale and Dr. Brown,
568
00:26:50.490 --> 00:26:52.710
so we could know exactly the answer to the question
569
00:26:52.710 --> 00:26:54.780
that Justice Gaziano has just asked.
570
00:26:54.780 --> 00:26:57.843
What records did you get? What advice did you get?
571
00:26:58.710 --> 00:27:01.110
What was the big danger in these records
572
00:27:01.110 --> 00:27:05.190
that you gave this advice to counsel and then he acted on it
573
00:27:05.190 --> 00:27:06.720
and made this strategy?
574
00:27:06.720 --> 00:27:08.580
And we could even ask Dr. Brown,
575
00:27:08.580 --> 00:27:11.070
do you have any recollection of what records you received?
576
00:27:11.070 --> 00:27:13.470
Did you get Hackensack, did you get Dr. Danishmond,
577
00:27:13.470 --> 00:27:15.990
did you get, you know, any of the other records?
578
00:27:15.990 --> 00:27:17.580
Did you look at Suffolk?
579
00:27:17.580 --> 00:27:19.950
But we don't know the answer to that question
580
00:27:19.950 --> 00:27:23.010
because defense objected to the Commonwealth
581
00:27:23.010 --> 00:27:24.630
getting to that point,
582
00:27:24.630 --> 00:27:26.520
and the judge didn't permit the Commonwealth
583
00:27:26.520 --> 00:27:28.844
to call those witnesses.
584
00:27:28.844 --> 00:27:31.470
And so if the hole in the evidence is there,
585
00:27:31.470 --> 00:27:34.530
that is the defendant's burden to show.
586
00:27:34.530 --> 00:27:36.630
If this court isn't satisfied,
587
00:27:36.630 --> 00:27:39.330
then that remedy would be a remand for a hearing,
588
00:27:39.330 --> 00:27:40.710
so we could call those witnesses
589
00:27:40.710 --> 00:27:42.300
and get right to that point.
590
00:27:42.300 --> 00:27:44.310
My point is, the defendant,
591
00:27:44.310 --> 00:27:46.800
by blocking us from getting that evidence,
592
00:27:46.800 --> 00:27:48.780
by not calling those witnesses,
593
00:27:48.780 --> 00:27:50.460
has not answered the question
594
00:27:50.460 --> 00:27:53.850
of exactly what information trial counsel had,
595
00:27:53.850 --> 00:27:55.440
and what information was given to him
596
00:27:55.440 --> 00:27:57.570
by Dr. Zale and Dr. Brown.
597
00:27:57.570 --> 00:27:59.910
And the Commonwealth was blocked by that ruling,
598
00:27:59.910 --> 00:28:02.073
and we objected at the hearing.
599
00:28:03.124 --> 00:28:04.950
So I would suggest that's not a reason
600
00:28:04.950 --> 00:28:07.440
to allow the defendant's motion
601
00:28:07.440 --> 00:28:09.810
that there is a hole in that evidence.
602
00:28:09.810 --> 00:28:12.295
It relates to the defendant's burden
603
00:28:12.295 --> 00:28:13.128
on the motion for new trial.
604
00:28:13.128 --> 00:28:15.873
Yes. He has to show justice has not been done.
605
00:28:17.040 --> 00:28:20.310
That's a heavy burden after a conviction by a jury.
606
00:28:20.310 --> 00:28:22.620
Additionally, the big problem
607
00:28:22.620 --> 00:28:24.510
with the Social Security records.
608
00:28:24.510 --> 00:28:26.179
Can you remind me, counsel,
609
00:28:26.179 --> 00:28:27.330
what was the basis of the denial
610
00:28:27.330 --> 00:28:29.043
of the Commonwealth's request?
611
00:28:29.970 --> 00:28:30.803
Privilege?
612
00:28:30.803 --> 00:28:34.890
My brother stated that that wasn't the point of his motion
613
00:28:34.890 --> 00:28:38.883
and that it was part of the defense privilege.
614
00:28:40.350 --> 00:28:42.600
And they have privilege to keep stuff away from us,
615
00:28:42.600 --> 00:28:44.880
but they can't then use it to say,
616
00:28:44.880 --> 00:28:48.000
too bad you don't know this information. (laughs)
617
00:28:48.000 --> 00:28:49.401
It's their burden,
618
00:28:49.401 --> 00:28:53.790
You waive your privilege in order to meet your burden
619
00:28:53.790 --> 00:28:56.100
when you're claiming ineffective assistance of counsel,
620
00:28:56.100 --> 00:28:59.373
and I was blocked after two requests and an objection.
621
00:29:01.140 --> 00:29:02.880
The Hackensack records?
622
00:29:02.880 --> 00:29:04.080
Could I make one more point
623
00:29:04.080 --> 00:29:05.326
about the social security records?
624
00:29:05.326 --> 00:29:06.159
Certainly.
625
00:29:06.159 --> 00:29:06.992
The Social Security records
626
00:29:06.992 --> 00:29:08.790
then actually make the Commonwealth's point.
627
00:29:08.790 --> 00:29:11.100
In 2014, the defendant asked for benefits.
628
00:29:11.100 --> 00:29:14.070
He claimed he had schizoaffective disorder.
629
00:29:14.070 --> 00:29:16.380
He has never, in the Social Security records
630
00:29:16.380 --> 00:29:18.930
have a finding of schizoaffective disorder
631
00:29:18.930 --> 00:29:20.820
all the way up to 2014.
632
00:29:20.820 --> 00:29:23.670
But in 2014, the Social Security Administration
633
00:29:23.670 --> 00:29:25.440
said you're losing your benefits because you haven't
634
00:29:25.440 --> 00:29:27.780
provided record information that supports your claim
635
00:29:27.780 --> 00:29:31.020
of any mental illness including bipolar disorder,
636
00:29:31.020 --> 00:29:33.690
and his benefits were cut off in January,
637
00:29:33.690 --> 00:29:36.540
his last benefits were January, 2015.
638
00:29:36.540 --> 00:29:39.570
The murder is in November, 2016.
639
00:29:39.570 --> 00:29:42.360
So that exactly shows the prosecutor's point.
640
00:29:42.360 --> 00:29:44.520
You're claiming you have all these mental illnesses.
641
00:29:44.520 --> 00:29:46.710
Give us the proof of it. He didn't.
642
00:29:46.710 --> 00:29:48.681
That was the prosecutor's cross-examination.
643
00:29:48.681 --> 00:29:49.514
I dunno what to do with this comment.
644
00:29:49.514 --> 00:29:51.630
But sometimes people with mental illnesses
645
00:29:51.630 --> 00:29:55.260
don't have the ability to get what they need to get
646
00:29:55.260 --> 00:29:56.730
to affirm their mental illness
647
00:29:56.730 --> 00:29:58.590
because they have mental illness.
648
00:29:58.590 --> 00:30:00.960
And if you wanted to present that,
649
00:30:00.960 --> 00:30:03.540
you would have to call an expert on that.
650
00:30:03.540 --> 00:30:05.190
That's not a matter of common knowledge.
651
00:30:05.190 --> 00:30:06.450
I agree with you.
652
00:30:06.450 --> 00:30:10.170
My experience as a prosecutor, I've seen that,
653
00:30:10.170 --> 00:30:12.540
that people don't go and get the help they need
654
00:30:12.540 --> 00:30:15.210
and they are blockaded from getting the help they need.
655
00:30:15.210 --> 00:30:17.790
We don't have that evidence about this defendant
656
00:30:17.790 --> 00:30:19.110
from an expert in this case,
657
00:30:19.110 --> 00:30:21.480
and that's not something that we can just presume
658
00:30:21.480 --> 00:30:23.160
from the record in this case,
659
00:30:23.160 --> 00:30:26.040
particularly where the experts were not called.
660
00:30:26.040 --> 00:30:27.360
The Hackensack records.
661
00:30:27.360 --> 00:30:30.570
The Commonwealth maintains that the defense attorney
662
00:30:30.570 --> 00:30:32.190
requested the Hackensack records,
663
00:30:32.190 --> 00:30:33.990
the letters are in the record appendix,
664
00:30:33.990 --> 00:30:37.050
and that his notes marked that they were received.
665
00:30:37.050 --> 00:30:38.580
Because we couldn't call Dr. Brown,
666
00:30:38.580 --> 00:30:41.220
we couldn't substantiate that Dr. Brown actually saw them.
667
00:30:41.220 --> 00:30:42.810
But we have a finding from the judge
668
00:30:42.810 --> 00:30:44.970
that the Hackensack records were received.
669
00:30:44.970 --> 00:30:47.730
That's a 2010 hospitalization.
670
00:30:47.730 --> 00:30:49.020
Now, the defendant had testified
671
00:30:49.020 --> 00:30:51.450
he had a 30 year history of hospitalizations.
672
00:30:51.450 --> 00:30:54.390
This is the only record that shows a hospitalization.
673
00:30:54.390 --> 00:30:57.210
He did say the last time he had a hospitalization
674
00:30:57.210 --> 00:30:58.380
was in that time period,
675
00:30:58.380 --> 00:31:00.990
so it would've corroborated him on that.
676
00:31:00.990 --> 00:31:03.450
But what's the problem with the Hackensack records?
677
00:31:03.450 --> 00:31:05.610
It's exactly what we've been talking about.
678
00:31:05.610 --> 00:31:08.460
There's no reference to schizoaffective disorder,
679
00:31:08.460 --> 00:31:11.970
only bipolar disorder and borderline personality disorder.
680
00:31:11.970 --> 00:31:14.940
Those records show the exact problem
681
00:31:14.940 --> 00:31:17.910
that the defendant is exaggerating his symptoms,
682
00:31:17.910 --> 00:31:21.300
and he's doing it for the purposes of this case.
683
00:31:21.300 --> 00:31:24.900
And trial counsel would've been perfectly within his,
684
00:31:24.900 --> 00:31:26.523
under Commonwealth versus Dawn,
685
00:31:27.518 --> 00:31:29.250
trial counsel's strategic decisions are given deference.
686
00:31:29.250 --> 00:31:31.290
Under Commonwealth versus Tevlin,
687
00:31:31.290 --> 00:31:34.743
We consider that the defendant's trial strategy.
688
00:31:35.592 --> 00:31:37.710
So the record as it stands,
689
00:31:37.710 --> 00:31:39.750
he requested the Hackensack records,
690
00:31:39.750 --> 00:31:42.900
he got the Hackensack records, he showed them to an expert.
691
00:31:42.900 --> 00:31:45.420
He talked to the expert more than once,
692
00:31:45.420 --> 00:31:47.970
and he made a decision to stay away from it
693
00:31:47.970 --> 00:31:49.410
because he didn't feel it would help.
694
00:31:49.410 --> 00:31:51.450
That was a psychiatric hospitalization, correct?
695
00:31:51.450 --> 00:31:52.283
Yes.
696
00:31:52.283 --> 00:31:55.440
All right, so when this cross-examination
697
00:31:55.440 --> 00:31:59.127
of you have no records of psychiatric hospitalization,
698
00:31:59.127 --> 00:32:02.520
and the defense attorney says, "Aha, I do."
699
00:32:02.520 --> 00:32:05.247
I could have gone and got Hackensack, but he didn't.
700
00:32:05.247 --> 00:32:06.930
But he doesn't raise that as an issue.
701
00:32:06.930 --> 00:32:09.990
He doesn't raise that in rebuttal, correct?
702
00:32:09.990 --> 00:32:11.400
He does not.
703
00:32:11.400 --> 00:32:13.590
And he didn't ask for continuance to go get them.
704
00:32:13.590 --> 00:32:16.320
He didn't ask for a continuance to call Dr. Brown,
705
00:32:16.320 --> 00:32:18.480
or to see if Dr. Brown still had the records.
706
00:32:18.480 --> 00:32:21.090
It would appear the records probably existed
707
00:32:21.090 --> 00:32:23.550
at that time period from Dr. Brown's email,
708
00:32:23.550 --> 00:32:24.600
which is part of this record,
709
00:32:24.600 --> 00:32:26.550
it looks like he was moving his office
710
00:32:26.550 --> 00:32:27.750
during Covid lockdown.
711
00:32:27.750 --> 00:32:29.550
This was one of the last trials
712
00:32:29.550 --> 00:32:31.260
in our county before lockdown.
713
00:32:31.260 --> 00:32:34.170
It was in February, 2020.
714
00:32:34.170 --> 00:32:36.780
So those records may have even existed
715
00:32:36.780 --> 00:32:38.640
at Dr. Brown's office at the time.
716
00:32:38.640 --> 00:32:41.850
But trial counsel's strategy was to stay away from that.
717
00:32:41.850 --> 00:32:46.290
He felt that it hurt the defendant's case after-
718
00:32:46.290 --> 00:32:47.610
That's sort of the question.
719
00:32:47.610 --> 00:32:51.270
So the cross is over, now it's redirect.
720
00:32:51.270 --> 00:32:54.320
If the Hackensack records were at your fingertips,
721
00:32:56.760 --> 00:32:59.940
then you make a craft of advocacy determination
722
00:32:59.940 --> 00:33:00.990
of whether to redirect.
723
00:33:00.990 --> 00:33:02.793
Oh no, actually there you go.
724
00:33:04.151 --> 00:33:06.540
Or, you don't know, you haven't looked at 'em,
725
00:33:06.540 --> 00:33:09.480
and it's not strategic because you can't make
726
00:33:09.480 --> 00:33:11.850
a craft decision about what you haven't seen,
727
00:33:11.850 --> 00:33:13.020
so which one is it?
728
00:33:13.020 --> 00:33:17.700
So he received them and he said that he's not a doctor,
729
00:33:17.700 --> 00:33:19.080
he relies on experts.
730
00:33:19.080 --> 00:33:21.660
So he sent them what records he received to Dr. Brown
731
00:33:21.660 --> 00:33:22.980
and then talked to Dr. Brown about it,
732
00:33:22.980 --> 00:33:24.870
and I think that's perfectly reasonable.
733
00:33:24.870 --> 00:33:26.130
My reading of Hackensack
734
00:33:26.130 --> 00:33:28.260
is not an expert reading of Hackensack,
735
00:33:28.260 --> 00:33:31.200
as well as this courts, regardless of, you know,
736
00:33:31.200 --> 00:33:32.490
how experienced you are,
737
00:33:32.490 --> 00:33:36.210
you're not psychiatric experts in this case
738
00:33:36.210 --> 00:33:37.290
to look at those records.
739
00:33:37.290 --> 00:33:40.650
And so I think it was smart of him to send them to an expert
740
00:33:40.650 --> 00:33:42.300
and he made a decision and stuck with it.
741
00:33:42.300 --> 00:33:43.950
But what may not be smart
742
00:33:43.950 --> 00:33:47.160
is if you're being cross-examined and grilled and saying,
743
00:33:47.160 --> 00:33:50.160
if you were hospitalized in a mental institution,
744
00:33:50.160 --> 00:33:52.290
we'd know it, we'd have records
745
00:33:52.290 --> 00:33:54.360
And then you sit on your hands and say,
746
00:33:54.360 --> 00:33:57.000
oh, well I guess Hackensack, but maybe not,
747
00:33:57.000 --> 00:33:58.200
so I say nothing?
748
00:33:58.200 --> 00:34:00.690
So he said he anticipated the question
749
00:34:00.690 --> 00:34:02.610
from the prosecutor.
750
00:34:02.610 --> 00:34:04.890
He thought that the defendant testified well.
751
00:34:04.890 --> 00:34:07.020
There's no objection on the record at that point.
752
00:34:07.020 --> 00:34:08.670
Then the prosecutor makes a statement.
753
00:34:08.670 --> 00:34:10.860
She did not say, my brother said,
754
00:34:10.860 --> 00:34:14.130
she said he was fabricating, she did not say fabricating.
755
00:34:14.130 --> 00:34:17.767
She said, again, I think I quoted it, but she said,
756
00:34:17.767 --> 00:34:19.920
"Now first of all, with respect to his mental condition,
757
00:34:19.920 --> 00:34:21.570
all we have ladies and gentlemen are the defendants
758
00:34:21.570 --> 00:34:23.250
self-serving statements that for 30 years
759
00:34:23.250 --> 00:34:25.080
he suffered from schizoaffective disorder
760
00:34:25.080 --> 00:34:26.100
and from bipolar disorder.
761
00:34:26.100 --> 00:34:28.170
Same from his girlfriend Veronica Suarez.
762
00:34:28.170 --> 00:34:30.510
Yet he was unable to produce one single record
763
00:34:30.510 --> 00:34:32.970
to support the proposition that he was in fact suffering
764
00:34:32.970 --> 00:34:34.140
from any type of mental illness,"
765
00:34:34.140 --> 00:34:36.300
that's at transcript 17, 57 to 58,
766
00:34:36.300 --> 00:34:38.220
so she didn't use the word lie or fabricate.
767
00:34:38.220 --> 00:34:42.270
But, she points out that one sentence.
768
00:34:42.270 --> 00:34:45.090
That's all she says about it. And what does counsel do?
769
00:34:45.090 --> 00:34:47.760
Because that was evidence, she's allowed to comment on it.
770
00:34:47.760 --> 00:34:50.940
He objects, he gets that essentially stricken.
771
00:34:50.940 --> 00:34:53.400
The trial judge then says, defendant's under no burden.
772
00:34:53.400 --> 00:34:54.990
He doesn't have to produce any records.
773
00:34:54.990 --> 00:34:56.520
So her point is then undermined.
774
00:34:56.520 --> 00:34:59.043
And counsel said that he felt, on cross,
775
00:35:00.040 --> 00:35:01.800
in the motion for new trial hearing,
776
00:35:01.800 --> 00:35:04.440
he said he felt that that was sufficient
777
00:35:04.440 --> 00:35:06.270
to remedy the defendant's rights.
778
00:35:06.270 --> 00:35:08.547
And then he didn't have to open the door to these records
779
00:35:08.547 --> 00:35:11.520
and this expert evidence that he thought was so harmful
780
00:35:11.520 --> 00:35:13.740
after investigation to the defendant.
781
00:35:13.740 --> 00:35:14.880
That was in the closing argument.
782
00:35:14.880 --> 00:35:15.810
That's the closing argument.
783
00:35:15.810 --> 00:35:17.665
Right, but the question
784
00:35:17.665 --> 00:35:18.690
had been asked in cross though, right?
785
00:35:18.690 --> 00:35:20.070
There's three questions on cross
786
00:35:20.070 --> 00:35:23.077
that's at transcript 15, 208 to 209.
787
00:35:23.077 --> 00:35:25.560
"And do you have any of these records supporting a claim
788
00:35:25.560 --> 00:35:27.330
that you have been hospitalized multiple times
789
00:35:27.330 --> 00:35:28.410
over a 30 year period?"
790
00:35:28.410 --> 00:35:30.060
Hackensack wouldn't address that.
791
00:35:30.060 --> 00:35:32.610
That's what Justice Lowy was intimating,
792
00:35:32.610 --> 00:35:35.030
that could have been redirect, if in...
793
00:35:36.690 --> 00:35:38.810
If he had them in his trial bag, and he just didn't.
794
00:35:38.810 --> 00:35:41.850
It could have been if that was his strategy.
795
00:35:41.850 --> 00:35:42.683
The other one-
796
00:35:42.683 --> 00:35:45.690
Question, you know, what comes first?
797
00:35:45.690 --> 00:35:50.690
Because it's fine not to redirect on that
798
00:35:51.090 --> 00:35:53.283
as a strategic decision.
799
00:35:54.660 --> 00:35:57.960
What's not fine is not to have the option
800
00:35:57.960 --> 00:36:01.110
because you didn't investigate.
801
00:36:01.110 --> 00:36:02.473
Right.
802
00:36:02.473 --> 00:36:04.290
I don't think that applies to Hackensack respectfully,
803
00:36:04.290 --> 00:36:07.230
because the record shows he got Hackensack, looked at them,
804
00:36:07.230 --> 00:36:10.830
sent them to Dr. Brown, talked about all the records he sent
805
00:36:10.830 --> 00:36:12.750
to Dr. Brown with Dr. Brown,
806
00:36:12.750 --> 00:36:14.700
and then anticipated this question,
807
00:36:14.700 --> 00:36:15.750
and then used the strategy
808
00:36:15.750 --> 00:36:17.430
to undercut the prosecutor's closing argument.
809
00:36:17.430 --> 00:36:19.980
And before you conclude,
810
00:36:19.980 --> 00:36:22.263
not to rush you off in your two minutes,
811
00:36:22.263 --> 00:36:25.080
but the Suffolk County records.
812
00:36:25.080 --> 00:36:29.610
Right, so the Suffolk County records are post-crime.
813
00:36:29.610 --> 00:36:33.060
So they are difficult for the defendant,
814
00:36:33.060 --> 00:36:38.040
because he's already got his motive to create a record.
815
00:36:38.040 --> 00:36:42.693
His diagnosis was based on his statements to the counselor.
816
00:36:43.620 --> 00:36:45.930
And those records were,
817
00:36:45.930 --> 00:36:48.960
half of those records up to April, 2018
818
00:36:48.960 --> 00:36:53.190
were summonsed into the court records
819
00:36:53.190 --> 00:36:55.710
for the purposes of Dr. Brown to be able to review,
820
00:36:55.710 --> 00:36:59.100
it was the judge, Judge McGuire, who summons them in.
821
00:36:59.100 --> 00:37:01.950
And the docket shows that those
822
00:37:01.950 --> 00:37:04.710
were psychiatric records that came in.
823
00:37:04.710 --> 00:37:07.140
And in that time period
824
00:37:07.140 --> 00:37:10.060
it has schizoaffective disorder, it has
825
00:37:12.210 --> 00:37:15.420
the medications he was prescribed.
826
00:37:15.420 --> 00:37:17.857
And Dr. Brown, I understand my brother is saying,
827
00:37:17.857 --> 00:37:19.200
"Well, we don't know that Dr. Brown
828
00:37:19.200 --> 00:37:20.220
reviewed them or didn't,"
829
00:37:20.220 --> 00:37:21.690
aside from the fact that I couldn't
830
00:37:21.690 --> 00:37:23.730
call Dr. Brown to determine that.
831
00:37:23.730 --> 00:37:26.610
Dr. Brown's preliminary report, which is part of the record,
832
00:37:26.610 --> 00:37:28.500
does note schizoaffective disorder
833
00:37:28.500 --> 00:37:30.270
and does note his prescriptions,
834
00:37:30.270 --> 00:37:33.450
so I would suggest that preliminary report would indicate
835
00:37:33.450 --> 00:37:35.730
that he was familiar with these records
836
00:37:35.730 --> 00:37:37.860
that had been summoned in for the purposes
837
00:37:37.860 --> 00:37:38.790
of him to look at them.
838
00:37:38.790 --> 00:37:41.910
What was the purported strategic reason
839
00:37:41.910 --> 00:37:43.350
for keeping these out?
840
00:37:43.350 --> 00:37:45.150
Can you just articulate that for me?
841
00:37:47.651 --> 00:37:48.870
Strategic reason for keeping out the Suffolk records?
842
00:37:48.870 --> 00:37:51.840
Why would you not bring in the Hackensack record
843
00:37:51.840 --> 00:37:54.000
or the military or the social security?
844
00:37:54.000 --> 00:37:54.833
What would be the...
845
00:37:54.833 --> 00:37:57.990
Counsel felt that the records showed
846
00:37:57.990 --> 00:38:02.990
would support the defendant embellishing his statements,
847
00:38:05.940 --> 00:38:08.040
about his mental illness, and that it would hurt-
848
00:38:08.040 --> 00:38:11.520
Because they said bipolar and not schizoaffective,
849
00:38:11.520 --> 00:38:15.090
or because it was X number of years, and it goes to 30.
850
00:38:15.090 --> 00:38:17.910
He didn't give the reasons, he said there were things
851
00:38:17.910 --> 00:38:19.290
he didn't want the Commonwealth to see.
852
00:38:19.290 --> 00:38:22.230
I tried to be very careful of the defendant's privilege
853
00:38:22.230 --> 00:38:25.680
regarding that thought process when I was questioning him,
854
00:38:25.680 --> 00:38:27.270
but he said there's stuff in there
855
00:38:27.270 --> 00:38:28.350
he didn't want the Commonwealth to see.
856
00:38:28.350 --> 00:38:30.150
He thought it would hurt his client.
857
00:38:30.150 --> 00:38:31.950
And so...
858
00:38:31.950 --> 00:38:35.400
So we know that counsel saw Dr. Brown's preliminary report,
859
00:38:35.400 --> 00:38:36.500
which does...
860
00:38:38.708 --> 00:38:41.070
I didn't look at that right before argument,
861
00:38:41.070 --> 00:38:45.180
but I'm very confident that it showed
862
00:38:45.180 --> 00:38:46.830
that there was a diagnosis,
863
00:38:46.830 --> 00:38:49.800
a long-term diagnosis written in the preliminary report.
864
00:38:49.800 --> 00:38:52.050
I don't know where Dr. Brown got that from.
865
00:38:52.050 --> 00:38:55.080
I can't prove that Dr. Brown read the Suffolk records.
866
00:38:55.080 --> 00:38:58.410
PTSD, anxiety, paranoia, disassociation.
867
00:38:58.410 --> 00:39:00.134
Oh, it doesn't have schizoaffective in it.
868
00:39:00.134 --> 00:39:02.370
No, I think it's depression and hallucinations.
869
00:39:02.370 --> 00:39:04.170
Oh, and bipolar.
870
00:39:04.170 --> 00:39:05.003
Bipolar.
871
00:39:06.960 --> 00:39:08.226
Well, and then that we'll cut-
872
00:39:08.226 --> 00:39:09.782
Oh, I'm sorry, and schizoaffective.
873
00:39:09.782 --> 00:39:11.131
Yeah, schizoaffective disorder, okay.
874
00:39:11.131 --> 00:39:11.964
Let's get everything in there.
875
00:39:11.964 --> 00:39:12.870
I was worried about my memory there.
876
00:39:12.870 --> 00:39:14.310
I'm sorry I'm running outta time.
877
00:39:14.310 --> 00:39:16.740
My point is, we know counsel
878
00:39:16.740 --> 00:39:19.170
had Dr. Brown's preliminary report,
879
00:39:19.170 --> 00:39:22.323
so we know he knew about those diagnoses.
880
00:39:23.438 --> 00:39:24.630
And those records were brought in
881
00:39:24.630 --> 00:39:26.100
specifically for Dr. Brown.
882
00:39:26.100 --> 00:39:28.380
I can't tell you that Dr. Brown looked at them
883
00:39:28.380 --> 00:39:31.200
because we didn't get to call Dr. Brown.
884
00:39:31.200 --> 00:39:34.110
My time is up. I apologize for going over.
885
00:39:34.110 --> 00:39:36.660
I would ask this court to affirm the defendant's conviction
886
00:39:36.660 --> 00:39:39.220
except for the firearm charge because of Gordata.