-: SJC-13048 Commonwealth, a Christopher Henry.
-: Okay, Attorney... Codinyoni?
-: [Attorney Codagnone] Morning.
-: May I please-- -: Did I say it right?
-: [Attorney Codagnone] Oh, I'm sorry.
-: Did I say it right?
-: [Attorney Codagnone] It's Codagnone, Your Honor.
-: Sorry.
-: [Attorney Codagnone] I think that was pretty correct.
-: Okay (laughs) Please proceed.
-: [Attorney Codagnone] Thank you.
May it please the court,
Amy Codagnone on behalf of Mr. Christopher Henry.
This court should vacate the denial of
Mr. Henry's motion to withdraw his guilty plea.
Turning first to the due process argument,
I would ask that this court affirm the plain language
of the Commonwealth v. Scott decision and overrule
the appeals court's decision limiting
due process relief
if the defendant can show a charge specific,
I apologize, a drug certificate per charge.
I would suggest to the court that
the Commonwealth v. Scott decision
and the Ferrara decision upon which it realized
suggests that the inquiry is one of due process.
It's one of whether the defendant can show
that he's pleased, knowing, voluntary, and intelligent.
And there are certainly circumstances
as the Massachusetts appeals court
in the Henry decision
considered and recognized
in which a defendant can
have a Dookhan drug charge within his case
that can materially
affect his decision to plead guilty.
-: That's true Counsel, but if I could interrupt you
on this one, because one of the things that you allude
to in your papers is that the
the drug charges
were really what was driving the plea in this case.
But if you look at the way that the case unfolded,
it was really the firearms investigation
and the firearms prosecution that led
to the ancillary charges that came
up as result of
of the drugs.
So you had a case where the firearms,
and there was the robbery, and you had a motion to
suppress the identification, that was denied.
All of that stuff was gonna come in at trial.
So help me explain the, help me understand your argument
under the first factor, because I just don't,
help me understand how you go
from the power of the firearms charges
to making the argument, that what was really
driving the bus here were the drugs.
-: Sure. So I think that,
I think that those in my view are sort
of two separate issues with regard to the first prong
which is what sort of gets him
in the door in terms of this due process claim.
I think the drug cert alone, and I would argue to this court
that the drug cert alone should do that with regard to,
I think the court's question, I would suggest
that that's more appropriate, more appropriately considered
in the reasonable probability prong,
because the question of what drove his decision making
to plead guilty is I think a little bit different
from how the police investigation unfolded.
And so you are correct that the police investigation was
was driven by this afforded armed robbery.
And this drug, I felt like it was this gun charge
and that it sort of just happened that he had drugs
in his pocket, in a school zone when he was arrested.
But when he was making the decision
of whether or not to plead guilty,
and what was driving his decision making was
that he was facing at least three years on the drug charges.
And he had no defenses to those charges,
but he did have defenses to the armed robbery charge,
and to the firearm charge that went
along with the armed robbery charge,
and he had strong defenses to those claims.
And so when he's considering sort of the totality
of the circumstances of his plea, he's considering
whether he has defenses to any of the charges,
he's looking at already three years
on the drug charges to which he has no defense.
And so he made the decision that
that he made based upon the information that he had.
And that's why I would suggest
to the court that having the misconduct
in this case is enough to meet the first prong of the
of the Scott analysis, which is the plain language
of the Scott Case says the defendant's case.
It doesn't say "per charge."
And the reason I would suggest that that is,
and the reason looking back at the Ferrara case
that I would suggest that that is
is because the court is looking
to what motivated the defendant to plead guilty and
what was material to his decision.
And so if this court agrees that
that there is no conclusive presumption
in this case, I would agree that that sort of inquiry
as to what drove his decision making needs to happen
in the first prong.
But otherwise I would suggest, as the lower court did
that it's more appropriately done during the second prompt.
Justice Gaziano: Can--
-: Can I answer the first question?
Justice Gaziano: Oh, I'm sorry.
-: [Justice Georges Jr.] You did, thank you.
-: Can I ask you so the,
the Ferrara case talks about the integrity
of the prosecution, and I think you're wise of course
to break it down into the two parts of the Ferrara prong
and what drives the buses prong two, right.
So let's talk about prong one.
If we had a case where a defendant was arrested
for murder one, and he just had two rocks
of crack cocaine found in his pocket,
and it was a, you know, month long investigation of murder,
and then he pleads guilty to manslaughter.
And then in possession of B,
based upon these two rocks that are found in his pocket,
Dookhan, or Farrokh,
or whoever analyzes the two rocks of cocaine,
how can the integrity of your prosecution
as a whole be impacted
by someone who is charged with a throw-in possession crime?
-: Well, so I would suggest that the integrity
of the prosecution is impacted because there's egregious
and impermissible misconduct
as the court has recognized that--
-: Right. And the court has vacated the two rocks
of cocaine
-: [Attorney Codagnone] Right, and--
-: As a remedy, right?
-: And so I would suggest that the sort of... the issue is
whether that defendant should be permitted to
withdraw a plea to manslaughter.
Justice Gaziano: Right.
-: And I think that that's appropriately determined
within the second prong, but I would suggest--
-: But wait, before we get there though, I know that's
driving the bus language, right.
We have to talk about the integrity
of the prosecution again, how has the integrity
of the manslaughter of the murder prosecution impacted
by these two rocks of cocaine found in someone's pocket?
-: Well, because you have a chemist who has falsified
drug certificates and tampered with evidence, and--
-: All real bad in those towns have vacated.
-: Sure. Well, so, but at the time that
that defendant is pleading guilty,
she is proffering evidence within his case.
And she would be a testifying witness within his case.
-: Let me ask you another question.
Cause you rely on a plain language
of Scott and appropriately, so Scott's says "case," right?
And that's, I think that's the plain language
of Scott that you discuss,
and Bridgeman,
which is the,
which is many years after Scott and is the end of Scott.
What we wrote in that case, by footnote 26,
is that where the defendant... and this is, as you know
in Bridgeman we're talking about all these second letters.
And so, in Bridgeman we wrote,
when the defendant pleads guilty
to multiple charges or is convicted of multiple charges,
the vacatur of drug charges
with prejudice will not affect any non-drug convictions
or convictions where do consign the drug certificate.
So, the Bridgeman protocol itself takes non-drug offenses
off the table for later remedy.
How do you reconcile that with your position today?
-: Well, so, what Mr. Henry is not asking for is that his,
per the Bridgman protocol, that his case just be vacated,
that's not what he's asking for.
He's asking for the opportunity to show
that his due process rights were violated
and the way in which he would do that is
by the Scott and Ferrara two-step process.
-: But we separated out in Bridgeman drug cases
and non-drug cases, and same holds true
with Farrokh where we discussed at length
"drug convictions, drug convictions,"
never said "convictions."
-: [Attorney Codagnone] Right.
-: So at the end of the day, under Farrokh and Bridgeman,
we made a distinction between drug cases and non-drug cases.
So again, so how has the integrity
of the prosecution impacted where we've separated
out drug cases from non-drug cases in these...
in our remedy?
-: Your honor, I would respectfully suggest that there are
certain circumstances where a defendant's choice
could be dictated by a drug charge and probably not
in Your Honor's example of the manslaughter
and two rocks of crack cocaine--
Justice Gaziano: But, but--
-: But there are certainly circumstances.
-: But you would also have the...
so what we're arguing about,
and as you appropriately framed it is whether or not the
the Scott conclusive presumptions comes in.
It would always be open
to a defendant to come before a court,
and to say, my plea was not voluntary because of that.
You just wouldn't get the Scott presumption, correct?
-: Well, "No" is my answer to that because
of the way in which the Henry decision
and the Lewis decision are written,
they cut off the inquiry.
If you cannot show a drug certificate,
bearing Dookhan's name
to the charge that you are challenging, you have
no foot through the door. -: I don't think, I think,
I don't think that's true, with respect to Justice
[Inaudible 00:09:11] discussion of the case
in Lewis.
I think he said he could all... it's always open
to a defend to say it wasn't divisible, and you can come in
and say, as Justice George's friend did,
what was driving the train was a drug case.
-: So that's not how I read the Lewis decision, Your Honor,
the way in which I read the Lewis decision is
that Justice [Inaudible 00:09:31] indicated that a defendant
at the time of the plea would have had to have declared
that it was indivisible with the ascent of the plea judge.
And quite frankly, that's not the practice that I've seen
in the superior court to the district courts
that a defendant who is pleading guilty
to a multi-count indictment would declare with the ascent
of the plea judge that the plea was indivisible.
I would suggest to the court that if it were that--
-: What the case is, nor do we foreclose the possibility
that a motion judge, especially
where the trial judge was also the plea judge,
might discern from other addition that
the parties intended the... I'm sorry, the guilty pleas
to be indivisible, right?
So if you opened with defendant to convince the judge
the reason why I pled guilty was because of drug charges
not withstanding the fact that I was charged
with these firearm offenses that had all sorts
of enhancements and got a break on them.
-: Well, in this case, Your Honor, the court,
the appeals court below doesn't do that inquiry,
what the appeals court did is,
they look at whether he meets
the conclusive presumption charge,
or prong rather, determine it's charge specific,
which is in contradiction to the Scott's plain language,
And then they address sort of
whether he can meet the prong anyway,
but the way in which they address it is
by looking specifically at whether or not he can prove
that the drug charges here are tainted
by Dookhan's misconduct, as opposed to
whether or not it drove his decision making.
And I would suggest--
-: And by you say the dictates of Scott you say that
because Scott said the case, -: Yes.
-: And not the drug charge. -: Yes.
-: that was standing that we said
the drug charge in Bridgeman, right?
-: My understanding in Bridgeman is that the court
was looking to fashion a global remedy
for all of these drug charges and understanding that
there were some mixed cases that still existed.
The ones that would be dismissed
with prejudice are the ones that would be re-litigated
or however they fell on those lists,
weren't going to be impacted
by the courts sort of sweeping remedy.
And that would be up to a defendant to bring a motion
to withdraw a guilty plea at some point in the future.
And my argument to this court is that the way
in which the Henry decision is written,
in the way in which the Lewis decision is written,
is that it cuts off the defendant's ability to sort of
even enter the door on a due process claim
by saying that if you can't produce a drug certificate
as to your charges,
regardless of whether or not
it was material to your decision-making,
and regardless as to whether or not
it drove your decision to plead guilty
you can't meet the first prong,
and so the analysis is done.
-: I don't know.
It seems to me that there's plenty of room
in those decisions where you have a situation
with somebody pled guilty with Dookhan drug certs
to trafficking, and a large amount within the school zone.
And there's a stray thought and battery case
where the alleged victim wasn't testifying
and he pled guilty on that to a guilty file.
There's nobody who's going to say
that prong one is not satisfied there, right?
-: Respectfully, Your Honor,
I think that that's what these decisions have,
sort of, dictated because
the focus is solely on the drug charges.
And with regard to the Lewis decision, I understand that
Justice Gaziano and I have sort of differed,
but my recollection is that
the court stated that it needs to be declared indivisible
at the time of the play.
And here... there, we have a situation
where Mr. Henry moved to withdraw
his plea in front of a judge that was not the plea judge
because the plea judge had retired.
And so that sort of analysis,
I think, gets a little bit sticky.
And I would ask that this court clarify that
that it is open to make a due process challenge
for a defendant who is asserting that
Dookhan drug charge
drove his decision to plead guilty.
And I think that the Commonwealth v. Claudio decision
that came out of this court last year
allows for that possibility
that a non-drug charge can be impacted
by a Dookhan charge.
But I think that the Henry decision,
which is a published appeals court decision,
makes that very difficult for defendants
that are trying to litigate these motions at this point.
-: So you're relying
on the sentence that "We do not foreclose the possibility
that the parties could at the time of the plea comically
and with the scent of the plea judge state
that the guilty pleas are indivisible"
as that's the only way you get into indivisibility,
is that your reading of what Henry says?
-: Yes. I think that's the Lewis decision, Your Honor.
-: Excuse me, the Lewis case, yeah okay.
-: And again, as I stated,
I don't think that it's the practicing courts for,
where you have a case that is multiple indictments
within the same case for, you know, attorneys to foresee
that there might be this type of issue in the future,
and to require that type of clairvoyance, that in 2011,
Mr. Henry's counsel declared the plea indivisible.
I think is unfair for him to be held to that requirement.
-: If we clarify the point that you're disagreeing
with Justice Gaziano on,
and say that indivisibility is always subject to review,
are you contented with that?
Or we still need to go further than that?
-: So I would be happy with that,
if indivisibly was subject to review,
and I understand that there are certain circumstances
where it may have been the intent
of the parties to have a divisible, or what have you,
but I do think that there needs to be some inquiry
into the sort of totality of the circumstances
as to what the parties intended without requiring
that there have been 10 years ago, some declaration
by the court and the parties that it was indivisible.
-: Okay. Any further questions?
Alrighty, thanks so much.
-: [Attorney Codagnone] Thank you very much.
-: Attorney Lynn, you have double duty.
-: (laughs) Yes I do.
Once again, good morning, Your Honors.
May it please the court, Paul Linn for the Commonwealth.
I would first emphasize that this court is reviewing
the trial court judge's decision,
not the appeals court's decision.
So the ultimate question is
whether that decision was correct.
Lewis is a published case.
It's... dates based
on other published cases that you can divide out, please.
Now, I don't think even the Commonwealth...
Let me rephrase that.
The Commonwealth is not claiming
that this should be completely off the table.
I don't think that's what Lewis said.
I don't think that's what Lewis should say.
What it says is that the defendant is not entitled
to that first presumption of this God standard,
that there was egregious misconduct,
because the drug charges are gone.
The drug charges in this case have been dismissed.
They're gone forever.
So the Commonwealth's position is
that has remedied the Dookhan problem in this case.
But yes, a defendant can always claim
that his plea was involuntary,
based on information that was withheld from him.
And so, I think even under Lewis,
you look at the second prong
of the Scott standard essentially, or the second prong
of the Brady standard or the second prong
of the Gray standard,
regarding newly discovered evidence.
And you look to see,
and here's the language from Scott,
"that the defendant must demonstrate
a reasonable probability
that he would not have pleaded guilty
had he known of Doohkan's misconduct."
In this case, the judge, though
he was not the plea judge,
did hear evidence... did hear from the defendant himself.
And he simply disbelieved the defendant.
The defendant admitted on the stand
that he was expecting to get 20 years
in prison on the robbery and firearm charges.
Instead he got three years,
two of which he had already served.
-: Well, let me ask you Mr Linn,
on the Scott-Ferrara two prongs.
If the defendant does not
show governmental misconduct impact in the case
and there's no conclusive presumption
to even get to prong two?
-: I think you do on a voluntary [crosstalk 00:17:57]
-: That was just the problem that Justice Spina wrote,
given, you know, those...
the difficulties of litigating all these Doohkan matters,
that was the reason why there was a conclusive
presumption to bypass prong one and get to prong two.
So if you're telling us that
you can always get to prong two,
I just question that, because how do you even get there
if you don't get to prong one?
-: Well, you don't show egregious...
You don't have a presumption
of egregious government misconduct.
So you don't, you aren't really operating under Scott.
But you can look at it under Miller, or not Miller,
I've got Miller on the brain, I'm sorry, (laughs)
under Brady or Grace,
as something that was that was withheld from the defendant.
So I think you get to the second prong regardless.
-: How did Judge Locke in this case,
analytically get to that second prong
when he made the finding that, as Justice Georges said,
what was driving the train?
-: Yeah, well, he applied the Scott standard.
-: Did he apply the presumption or no?
-: He did apply the presumption.
So then he moved on to the second prong and under this end
of the second prong, he just disbelieved the defendant.
And I point out in my brief,
not only was the defendant facing this...
not only did the defendant testify
that he believed he was facing 20 years
on the robbery and firearm charges,
but when the prosecutor asked him several times,
"did you really think you would get the maximum sentence
for the tiny amount of drugs that you had on you?"
He wouldn't answer the question, he just said,
"It's possible. It's possible."
So the judge was, I mean,
not that it's a decision of credibility
by the trial court judge--
-: [Inaudible 00:19:56] was a school zone
that was now cross the dismissed
as part of the overall play.
-: That is correct.
-: And I think what the defendant would say here is "Okay,
I know my fingerprints were on the ammunition.
I know I got a concurrent with the probation violation,
but, you know, I didn't want to go to prison,
and I had a shot at, a serious shot at
this motion to suppress, and I wouldn't have,
I wouldn't have pled guilty.
It was that I knew I was going
for two years because of the school zone."
-: Yes, that's certainly what he said.
-: And why doesn't that ring true?
-: Well, it's first of all, because he was facing
he is... he testified that he was facing 20 years
on the robbery and firearm charges,
which is a huge difference.
And so, and second, the judge didn't have to believe him.
It's not a question of whether it rang true.
The question is whether the judge,
who heard and saw him testify, believed it.
And he didn't.
Also, as the defendant has never argued
his motion to suppress in these...
in this motion or his appeal,
the victim, the robbery victim identified him
from two blind arrays
conducted by someone who didn't know who the suspect was,
granted he was unsure of his identification,
but he still...
you have this evidence that he was...
that he identified the defendant from a very fair process.
The gun that matched the description
of Robber's gun was found in the same room,
the same bedroom the defendant came out of,
the same room in which the ammunition
with his fingerprints were found in.
-: Well, let me ask you a question, Mr. Linn,
if you think that we get there
under Brady or Grace,
and Judge Locke got there under Scott,
and to the ultimate question about,
was it, you know, what drove the train,
and I understand your arguments
and the deference we owe to Judge Locke
who heard the witnesses.
How's the government harmed, if we just go to prong two,
what's your stake in this?
What do you care?
-: If you go to prong two?
-: Yeah. If we just go to prong two,
if we agree with your sister and say we'll apply the Scott,
we'll use the broad Scott language,
we'll apply the presumption in Scott and go to prong two
in every case, how... what difference does it make to you?
-: I would object to
this court explicitly overruling Lewis,
that the court has to apply the Scott analysis,
but yes, I think you do go to the second prong,
even under Lewis.
-: But you just told me
we get to prong two under Brady and Grace,
and Locke got to prong two, and the right result happens,
So why are we... why do we care?
-: I suppose we don't care.
The decision regardless is affirmation
of the trial court judges, Judge Lockes' decision.
-: [inaudible 00:23:11] Manslaughter, hypothetical.
Would you care then?
-: One thing, I think under those circumstances,
it's the same situation, really,
it's just, in that case, you have a situation
in which it is clear beyond any doubt whatsoever
that the defendant would not have changed his play based
on the drug charges.
And again,
the question regarding, the only question regarding,
excuse me, I'm sorry?
-: I'm getting confused now.
So, Judge Locke,
in your view, Judge Locke should not have... he...
how would he get to... how does his analysis...
how does should his analysis have proceeded?
If we don't... if Henry and Lewis are right
and there isn't a prong one,
what is the second part of his analysis
and how does it work?
I mean, so I read Henry and Lewis to say, okay,
if you don't meet prong one, we don't go to prong two,
except for there's this indivisibility issue.
Does he have to do a totally different analysis?
Or is it the exact same analysis as prong two,
under the indivisibility analysis?
-: I think I'd better, I'd better go back a step.
I think the important thing to realize is that long
before the Dookhan-Farrokh scandals broke,
defendants were challenging their pleas on the grounds
that they were involuntary.
-: Right. I get it.
-: So, there was always the question of whether
there was some error that took place
that caused their plea to be involuntary.
So I think we're hung up on the...
discussing the second prong of Scott,
as opposed to just looking globally
at whether or not this error,
regardless of whether it was
egregious governmental misconduct,
made the defendant's plea involuntary and under--
-: You have to provide some guidance here, right?
Because there's some, there's some confusion
about what a trial judge...
I mean, we've got a very good trial judge here.
We've got some confusion about
if Henry and Lewis are correct,
that we don't have a prong one finding,
does that mean we move to a totally different,
the old form of analysis,
and we don't move to prong two of this,
we go back to the pre-, some different old test.
Is that what we're supposed to do?
I just want to know what we tell trial judges
if we agree that Henry and Lewis are correct
on this prong one analysis.
-: That's the Commonwealth's primary argument, is yes,
You tell the trial court judges to engage
in the same analysis regarding the intelligence
and voluntariness of a plea,
that they've been engaging in since time at Memorial.
In the alternative--
-: And how is that different from
what's happened under prong two, of--
-: Not much, that's what this court has said
in Scott is,
when you look at the pre-Dookhan standards of review for...
if you look at it under withholding under Brady,
if you look at it as new evidence under Grace,
the standard for materiality under those tests
is essentially the second prong of the Scott analysis.
And that's really what the courts have always looked at,
was the problem material to the defendant's decision.
And here, Judge Locke found as a matter of fact
and credibility that it was not.
-: You know, Mr. Linn, I just don't know
if that's how it works in the real world.
If you are sitting there looking at prong two of Scott,
as opposed to some other situation where you're determining
whether the plea actually was knowingly
and voluntarily made,
if you're the defendant,
you'd rather have gotten there
through Scott
and get to prong two of Scott
than otherwise it seems,
and maybe that intangible
isn't supported by doctrine
and you're completely right.
-: Yeah (laughs) I really can't answer that question more
than I have, and I am...
have less experience in the trial court than you do.
-: So Mr. Linn,
if we adopt your view, Judge Locke,
we don't need to re-man this to Judge Locke,
because he had basically
applied the same test through prong two
that he would have applied under the old standard,
Is that your view?
-: That's exactly right, yes.
This was the right decision, however he came to it,
whatever the law regarding this issue is.
-: [Hon. Scott Kafker] Okay.
-: The bottom line is he just believed the defendant.
-: [Hon. Scott Kafker] Right. I got you.
-: Hey, do we have any further questions?
-: [Justice Georges Jr.] No thank you, Chief.
-: Okay. Thanks so much.
-: Thank you.
-: [Chief Justice Budd] We'll take our morning break.