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<v ->SJC-13078, Commonwealth versus Mark O'Brien.</v>

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<v ->[Justice Wendlandt] Okay, Attorney Essington,</v>

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whenever you're ready.
<v ->Thank you.</v>

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Good morning. May it please the court.

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Katherine Essington on behalf of the defendant,

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Mark O'Brien.

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I'd like to start with the first issue in my brief.

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Trial counsel was ineffective

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and made a manifestly unreasonable decision

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in waiving an involuntary manslaughter instruction.

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The instruction must be given if any view of the evidence,

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any reasonable view of the evidence would support it.

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Here, there were multiple ways that the jury

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could have found Mr. O'Brien guilty

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of involuntary manslaughter.

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First and foremost, they could have found that Mr. McKenna

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died as a result of going through the window

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as a result of a misdemeanor assault

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or that he died as a result of the reckless

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and wanton conduct of the burglars

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in breaking into his house at night.

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<v Justice Gaziano>What were the injuries?</v>

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<v ->I'm sorry. What were the injuries?</v>

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<v ->What were the injuries to Mr. McKenna?</v>

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<v ->Well, obviously, he had a fatal injury to his arm</v>

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that was a transection of an artery

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as well as some major veins.

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Beyond that, he had

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<v ->What was the cause-</v>
<v ->scalp wounds.</v>

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<v ->What was the cause of death?</v>

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<v ->The cause of death was his bleeding out, primarily,</v>

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I would argue, from the injury to the arm,

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but the medical examiner did testify

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that the scalp injuries were a contributing cause.

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<v ->Okay, so we got injury to the arm,</v>

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and what other injuries?

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<v ->He had bruising in various places throughout his body,</v>

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I think on his face, on his torso,

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and perhaps arms and legs.

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I can't exactly recall,

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but there was bruising in various places in his body.

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<v ->How would all that be consistent</v>

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with wanton and reckless conduct?

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I mean, this was a pretty savage beating.

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I mean, how would a reasonable view

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of the evidence here support that?

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<v ->Well, again, his cause of death</v>

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was going through the window, I would submit,

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and while it does appear that there was a struggle

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and he sustained injuries in that struggle,

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there was no direct evidence

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that Mr. O'Brien participated in that assault,

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and furthermore, I would argue that the jury

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could have found that there was a misdemeanor assault

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with respect to what happened just before his

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going through the window.
<v ->Can I ask something</v>

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more fundamental?

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I'm sorry, Justice Gaziano.

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<v ->Oh, I he was a joint venturer.</v>

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It was a joint venture theory, right?

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<v ->That's correct, your Honor, but-</v>

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<v ->You want us to separate out his involvement,</v>

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but he's a joint venture and then separate out one injury

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from a cluster of injuries?

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<v ->Well, with respect to the first part of your question,</v>

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I would argue that under the pursuant to Brown,

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that the jury has to find malice

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with respect to each co-venturer.

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<v ->Well, no, you have to show shared intent.</v>

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<v ->Yes, the shared intent and shared malice, essentially.</v>

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<v ->Right.</v>

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You don't think this is at least third prong malice?

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<v ->The jury did not have to conclude</v>

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that Mr. O'Brien participated

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in any kind of a felony assault here.

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There was no DNA or fingerprints

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of Mr. O'Brien in the house.

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<v ->Well, that just argues for the reasonableness</v>

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of counsel's decision to lay the defense

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on O'Brien wasn't the third actor, right?

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But in connection with asking for a jury instruction

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on involuntary manslaughter, you'd have to at least agree

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with the proposition that O'Brien was the third actor,

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and once you're there,

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all of those injuries inflicted to the victim,

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I don't understand how you can separate them

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from O'Brien if he is, in fact, the third actor.

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<v ->Well, with respect to sort of the first part</v>

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of your question,

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I'm not arguing that counsel's theory of the case

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or his primary theory of the case was unreasonable,

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and I don't think the court has to find that.

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But I don't think it's unusual at all

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for defense counsel to argue alternate theories here.

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<v ->Right, but in the alternate universe</v>

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where O'Brien is the third actor,

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I don't see the injuries here, to Justice Gaziano's point,

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or at least explain to me how the injuries

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to this particular victim are consistent

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with lack of malice.

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<v ->Well, again, your Honor, I would argue that,</v>

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obviously, there was a struggle.

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We know that, but we don't know-

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<v ->A vicious beating, really,</v>

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'cause it's the head, the face, the torso,

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and the bleeding out from the arm and the head.

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<v ->Well, again, the arm injury was not caused by any beating.</v>

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That was caused by his going through the window,

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Again, the standard really is important here.

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Is there any reasonable view of the evidence

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from which the jury could have concluded that-

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<v ->So your reasonable view of the evidence would be yes,</v>

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O'Brien was the third party,

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but he was not involved in the beating?

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<v ->That's correct, your Honor.</v>

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I don't think there was any direct evidence

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that he was involved in the beating.

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Again, there was no forensic evidence tying him

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to the inside of the house.

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There was-
<v ->No, no,</v>

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but on this theory where you're asking for the instruction,

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he was in the house.
<v ->Sure.</v>

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The instruction would assume a sort of fallback,

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what I would characterize as a fallback position,

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that if the jury found that he was in the house,

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that they could reach this manslaughter conviction.

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<v ->We have a lot of cases where there are these types</v>

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of beatings or a type of injuries like this,

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and we say, "Well, there was no grounds for involuntary

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because it was, at a minimum, third prong malice."

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What's your best case in a cluster of beatings

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or injuries type case where we've said the proposition you

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urge us to take?

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<v ->Sorry, hang on a minute.</v>

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I don't know if I have a specific case,

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and I'll get back to that,

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but I think this is different from a lot of those cases

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in that this was, first of all, an unarmed robbery,

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and there was no clear intent shown to cause the death of-

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<v ->They came back on both.</v>

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They came back on atrocity and cruelty and felony murder.

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Correct? Post-Brown felony murder.

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<v ->Yes, yes.</v>

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They came back on extreme atrocity and cruelty,

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which, again, I would argue was partly as a result

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of the prosecutorial misconduct in this case

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in terms of arguing that they stepped on him

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as he was bleeding out in addition to arguing

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that leaving him to bleed out was malice

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or extreme atrocity and cruelty,

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and I don't think the case law supports that at all.

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<v ->Well, if you look at Castillo</v>

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in the atrocity cruelty factors,

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this certainly is sufficient, right?

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<v ->I disagree that leaving someone</v>

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without preventing them from seeking aid is in

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and of itself extreme atrocity and cruelty.

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<v ->If you look at what we said in Castillo, right,</v>

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and we modified the Hunter standards,

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I thought that this case lines up fine.

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There's no sufficiency argument,

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and you didn't raise a sufficiency argument

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on atrocity and cruelty.

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<v ->Yes.</v>
<v ->It's different.</v>

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It's different from what you-
<v ->But yeah, I would argue-</v>

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<v Justice Gaziano>On closing argument, of course.</v>

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<v ->Yes, I would argue that that contributed</v>

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to that verdict, and, again,

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I would just stress the standard here,

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which is the evidence must be viewed

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in the light most favorable to the defendant.

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If there's any reasonable basis to support the instruction,

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then it must be given,

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and it's reversible error not to do so.

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Again, we have a situation which is unusual,

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I would argue, in this case,

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that the jury could have reasonably found

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that he did not die as a result

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of any beating by the defendants,

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that he died because of a freak accident, essentially,

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of going through the window and severing an artery,

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which caused him to bleed out.

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<v ->But you said that it was both the arm</v>

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and the injuries to the back of the head, right?

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<v ->And</v>
<v ->Well,</v>

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the medical examiner testified that the back

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of the head was a contributing cause,

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but I think there's substantial evidence

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that Mr. McKenna lived for a substantial period of time

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after the blows to the back of the head,

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and she acknowledged in her testimony

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that that likely wouldn't have killed him,

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that the bleeding could have slowed down,

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that that was just sort of a contributing factor

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in terms of blood loss.

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<v ->That doesn't help you though.</v>

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The fact that he's suffering for that extended period

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of time doesn't help you when saying it was a freak injury

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when he's beaten.

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The arm injury. Then he's beaten with a fry pan, right?

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Dent in a fry pan. That's kind of severe.

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<v ->Well, I would respectfully disagree</v>

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that it doesn't help me.

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I think it does show that that injury,

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the fry pan injury, which was, again,

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it was arguably severe, but it was an aluminum fry pan.

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There was substantial evidence that he walked

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over the fry pan and throughout the house

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after sustaining that injury, and-

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<v ->So that was not-</v>
<v ->we-</v>

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<v ->I'm sorry, after sustaining which injury?</v>

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The arm injury or the fry pan?

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<v ->The frying pan injury.</v>
<v ->Okay.</v>

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And the frying pan was dented?

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<v ->Correct.</v>
<v ->Okay.</v>

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<v ->And I'd like to turn, before I run out of time,</v>

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to the claims of prosecutorial misconduct in this case.

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Ronald King, in this case, who was a very important witness,

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gave blatantly false testimony with respect

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to what benefits and payments he had received.

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<v ->Defense counsel was able to draw out, though,</v>

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that this had been a cooperating witness

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with the Boston Police Department for years, right?

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<v ->Yes, he was, but-</v>
<v ->And that he had received</v>

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compensation throughout those years.

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<v ->Yes, but again, that's a different county, first of all,</v>

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and that those payments were in exchange

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for his drug work for them, essentially.

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<v ->But the $930 was disclosed.</v>

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<v ->It was disclosed, but I think under Ware</v>

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that the prosecutor has a duty to correct that.

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This court has said that very clearly in Ware,

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even if defense counsel is aware

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and that that duty was not performed here.

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In addition, he gave blatantly false testimony

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about whether he'd received money

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for prescription medication.

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He failed to disclose cash given to him

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for daily living expenses and other items,

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amounting to several hundred dollars,

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and the jury just never heard any of that based

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on the prosecutor's failure to correct that testimony,

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which was blatantly false.

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<v ->Well, assume that we give you a little bit of that</v>

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because it was cross-examined,

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maybe not the full extent of what the consideration was

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to the cooperating witness.

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Some of it was cross-examined, and it was brought out.

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So it wasn't as if the jury had no idea

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that this witness got something for their testimony,

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00:13:06.630 --> 00:13:08.790
but let me go to the more important issue

252
00:13:08.790 --> 00:13:10.838
that I'm struggling with.

253
00:13:10.838 --> 00:13:12.693
This was unpreserved, right?

254
00:13:13.793 --> 00:13:14.657
This was-
<v ->Correct.</v>

255
00:13:14.657 --> 00:13:18.000
<v ->Okay, so now get to the prejudice part for me because,</v>

256
00:13:18.000 --> 00:13:19.950
to me, even if I concede that,

257
00:13:19.950 --> 00:13:22.110
that's the part that I'm struggling with.

258
00:13:22.110 --> 00:13:26.274
Show me how, with an unpreserved claim like this,

259
00:13:26.274 --> 00:13:28.810
where there was some cross-examination,

260
00:13:28.810 --> 00:13:30.330
it wasn't like it wasn't brought up at all,

261
00:13:30.330 --> 00:13:33.870
how you meet the prejudice part.

262
00:13:33.870 --> 00:13:35.640
<v ->Sure, your Honor.</v>

263
00:13:35.640 --> 00:13:39.873
Again, the importance of this witness cannot be overstated.

264
00:13:40.786 --> 00:13:45.786
This was the only witness who put Mr. O'Brien in that house.

265
00:13:46.290 --> 00:13:50.343
There was zero forensic evidence putting him in that house.

266
00:13:52.021 --> 00:13:54.005
<v ->There certainly was circumstantial evidence, though,</v>

267
00:13:54.005 --> 00:13:55.063
that put him in that house.

268
00:13:56.694 --> 00:13:58.440
<v ->I would say there was circumstantial evidence</v>

269
00:13:58.440 --> 00:14:01.533
that put him with Mr. Ferguson,

270
00:14:02.872 --> 00:14:06.930
and there was forensic evidence that Mr. Ferguson

271
00:14:06.930 --> 00:14:08.453
was in the house.
<v ->Well, no,</v>

272
00:14:08.453 --> 00:14:13.453
because there was a glove that had a particular brand found

273
00:14:13.590 --> 00:14:16.050
in the house.

274
00:14:16.050 --> 00:14:20.926
That same branded glove was found in the defendant's car.

275
00:14:20.926 --> 00:14:23.122
<v ->Yeah, and that was an important point on it.</v>

276
00:14:23.122 --> 00:14:24.690
This is why I wanted the prosecutor

277
00:14:24.690 --> 00:14:27.573
to correct a misstatement in her brief on this issue.

278
00:14:29.100 --> 00:14:32.328
Mr. O'Brien had a pair,

279
00:14:32.328 --> 00:14:35.630
not one but a pair of similar gloves,

280
00:14:35.630 --> 00:14:36.870
which are very common work gloves.

281
00:14:36.870 --> 00:14:39.810
<v ->Right, but, I mean, I'm pushing back on this notion</v>

282
00:14:39.810 --> 00:14:44.810
that nothing else put Mr. O'Brien in that house, okay?

283
00:14:45.330 --> 00:14:48.060
So whether it was a pair or that,

284
00:14:48.060 --> 00:14:52.594
we're not saying that it was the second part of the pair,

285
00:14:52.594 --> 00:14:56.010
there was a mechanic's glove in Mr. O'Brien's car.

286
00:14:56.010 --> 00:14:58.230
There was a mechanic's glove in the house.

287
00:14:58.230 --> 00:15:00.371
<v ->There were two mechanic gloves</v>

288
00:15:00.371 --> 00:15:02.053
in his car.
<v ->Sure, sure.</v>

289
00:15:02.053 --> 00:15:06.240
But you also have evidence that the police seized his car,

290
00:15:06.240 --> 00:15:09.512
the car was clean, there was cleaner in there,

291
00:15:09.512 --> 00:15:11.370
there was occult blood that was found in the car.

292
00:15:11.370 --> 00:15:16.370
So I'm struggling to see how important this witness is

293
00:15:18.307 --> 00:15:21.690
to the fact that he was in the house,

294
00:15:21.690 --> 00:15:23.623
that there was evidence that he was in the house.

295
00:15:23.623 --> 00:15:25.140
<v ->I would respectfully disagree</v>

296
00:15:25.140 --> 00:15:27.802
that there was evidence in the house.

297
00:15:27.802 --> 00:15:30.540
Again, this was an extremely bloody scene,

298
00:15:30.540 --> 00:15:33.930
and there was no forensic evidence,

299
00:15:33.930 --> 00:15:36.870
unlike his two co-defendants

300
00:15:36.870 --> 00:15:41.151
who left DNA or had the victims blood-

301
00:15:41.151 --> 00:15:43.620
<v ->No, King was definitely an important witness, right?</v>

302
00:15:43.620 --> 00:15:48.176
But the defense counsel did impeach King.

303
00:15:48.176 --> 00:15:50.070
I guess the question on prejudice is really

304
00:15:50.070 --> 00:15:52.470
or substantial likelihood of a miscarriage of justice

305
00:15:52.470 --> 00:15:56.413
is whether this additional monetary contribution

306
00:15:59.100 --> 00:16:04.100
to King really undermined the ability of the defense counsel

307
00:16:04.689 --> 00:16:09.689
to further impeach King in the situation

308
00:16:10.590 --> 00:16:15.270
where the defense counsel actually had the information

309
00:16:15.270 --> 00:16:17.333
in his back pocket.

310
00:16:17.333 --> 00:16:18.750
So you could just explain to me

311
00:16:19.684 --> 00:16:24.053
how that further inability apparently to impeach him-

312
00:16:25.770 --> 00:16:27.087
<v ->Sure.</v>

313
00:16:27.087 --> 00:16:27.920
I would stress, again,

314
00:16:27.920 --> 00:16:32.570
that this was different from the situation where King worked

315
00:16:33.818 --> 00:16:37.216
as a paid informant for the Boston Police Department.

316
00:16:37.216 --> 00:16:39.459
Again, this was-
<v ->Wasn't that the theme</v>

317
00:16:39.459 --> 00:16:40.637
of the defense counsel?

318
00:16:40.637 --> 00:16:43.494
It was like this was, you know, a paid liar,

319
00:16:43.494 --> 00:16:46.232
I think is what they said in closing argument, you know,

320
00:16:46.232 --> 00:16:51.232
that he had for years been an informant for the police.

321
00:16:52.800 --> 00:16:54.540
<v ->I certainly would agree that that</v>

322
00:16:54.540 --> 00:16:56.596
was a theme.
<v ->So how does</v>

323
00:16:56.596 --> 00:16:59.410
this additional $900 really further that

324
00:17:00.480 --> 00:17:03.390
in the sense of creating a substantial likelihood

325
00:17:03.390 --> 00:17:05.812
of a miscarriage of justice?

326
00:17:05.812 --> 00:17:07.260
<v ->Because it was direct payment</v>

327
00:17:07.260 --> 00:17:10.683
for his testimony in this case,

328
00:17:11.526 --> 00:17:15.630
and I think that is a crucial distinction between his work

329
00:17:15.630 --> 00:17:19.909
for the Boston Police Department as a paid informant.

330
00:17:19.909 --> 00:17:24.300
It was an exchange for his testimony in this case,

331
00:17:24.300 --> 00:17:28.230
and, again, he testified that my client, Mr. O'Brien,

332
00:17:28.230 --> 00:17:33.230
confessed to him that he was the third person in this house.

333
00:17:34.203 --> 00:17:37.110
There couldn't have been more damaging testimony

334
00:17:37.110 --> 00:17:38.883
than that testimony.

335
00:17:40.410 --> 00:17:43.830
Again, I think that his testimony

336
00:17:43.830 --> 00:17:47.790
was a key part of this case, and, again, there was a long,

337
00:17:47.790 --> 00:17:49.380
if you go through the transcripts,

338
00:17:49.380 --> 00:17:54.380
there was a long discussion or motions and hearings

339
00:17:54.870 --> 00:17:58.230
about whether defense counsel would be allowed

340
00:17:58.230 --> 00:18:03.120
to get in the fact that testimony that King gave

341
00:18:03.120 --> 00:18:06.690
in another case in a cold murder case

342
00:18:06.690 --> 00:18:10.050
in Suffolk County had proved to be unreliable.

343
00:18:10.050 --> 00:18:13.260
And ultimately, he was not allowed to get that

344
00:18:13.260 --> 00:18:15.153
in front of the jury, but again,

345
00:18:16.272 --> 00:18:20.520
that prolonged debate about whether that testimony

346
00:18:20.520 --> 00:18:21.870
would be allowed or not,

347
00:18:21.870 --> 00:18:24.450
which the Commonwealth opposed, of course,

348
00:18:24.450 --> 00:18:29.450
shows how important Ron King's credibility was in this case,

349
00:18:31.086 --> 00:18:34.320
and discrediting him was a key part

350
00:18:34.320 --> 00:18:37.083
of the strategy in this case.

351
00:18:38.940 --> 00:18:42.667
<v ->Can I ask you to address the sequence of the injuries and,</v>

352
00:18:42.667 --> 00:18:44.586
you know, the evidence or lack thereof?

353
00:18:44.586 --> 00:18:45.419
<v ->Yes, your Honor.</v>

354
00:18:46.348 --> 00:18:49.375
Again, that my second claim of prosecutorial misconduct,

355
00:18:49.375 --> 00:18:53.223
which was, you know, raised sua sponte by Judge Locke,

356
00:18:54.342 --> 00:18:57.210
was the prosecutors arguing that the blows

357
00:18:57.210 --> 00:19:00.960
from the prying pan occurred after the victim went

358
00:19:00.960 --> 00:19:05.766
through the window while he was bleeding out,

359
00:19:05.766 --> 00:19:07.563
that they were intending to-

360
00:19:09.006 --> 00:19:10.343
<v ->Didn't you just argue that to us?</v>

361
00:19:11.912 --> 00:19:14.513
<v ->I'm sorry, no, I don't, I-</v>
<v ->You just tell us that?</v>

362
00:19:15.516 --> 00:19:17.255
<v ->I don't think I said that the blows</v>

363
00:19:17.255 --> 00:19:18.772
from the frying pan occurred

364
00:19:18.772 --> 00:19:20.299
after he went through the window.

365
00:19:20.299 --> 00:19:22.245
I don't think that makes any sense

366
00:19:22.245 --> 00:19:24.115
<v ->I thought you said</v>
<v ->In terms of the evidence.</v>

367
00:19:24.115 --> 00:19:27.720
<v ->the fatal wound was the accidental thing from the window,</v>

368
00:19:27.720 --> 00:19:30.900
and then he was beaten.
<v ->If I did, I misspoke.</v>

369
00:19:30.900 --> 00:19:35.283
I don't believe I did, but no, the fatal arm injury-

370
00:19:36.821 --> 00:19:40.397
<v ->I know it's difficult to sequence injuries, right?</v>

371
00:19:43.127 --> 00:19:45.426
And lawyers do it all the time.

372
00:19:45.426 --> 00:19:47.580
So you're saying this was prosecutorial misconduct

373
00:19:47.580 --> 00:19:50.746
to sequence logically the injuries?

374
00:19:50.746 --> 00:19:54.433
<v ->Yes, because there was no evidence to support that theory,</v>

375
00:19:56.355 --> 00:19:58.860
and, in fact, the evidence plainly

376
00:19:58.860 --> 00:20:00.780
was contradictory to that theory,

377
00:20:00.780 --> 00:20:04.925
and in Mr. Ferguson's case, in the co-defendant's case,

378
00:20:04.925 --> 00:20:07.467
the prosecutor conceded that, you know,

379
00:20:09.375 --> 00:20:12.026
the view of the evidence that made the most sense was,

380
00:20:12.026 --> 00:20:13.338
in fact, the reverse,

381
00:20:13.338 --> 00:20:15.900
that the frying pan injury happened before,

382
00:20:15.900 --> 00:20:18.892
and the blood on the frying pan,

383
00:20:18.892 --> 00:20:21.492
including the blood on the handle of the frying pan,

384
00:20:22.877 --> 00:20:25.290
clearly showed that the victim had walked

385
00:20:25.290 --> 00:20:28.570
over the frying pan while bleeding

386
00:20:29.677 --> 00:20:32.010
and that there was no evidence to support

387
00:20:32.010 --> 00:20:36.420
that that occurred after he was laying on the ground

388
00:20:36.420 --> 00:20:38.193
after he'd gone through the window.

389
00:20:39.810 --> 00:20:41.790
<v ->You know the record better than I do.</v>

390
00:20:41.790 --> 00:20:44.010
So tell me, what is the difference

391
00:20:44.010 --> 00:20:49.010
between the impact splatter and the cast-off splatter?

392
00:20:49.118 --> 00:20:53.290
Because there was some testimony by the blood expert

393
00:20:54.768 --> 00:20:57.570
about impact splatter, which seemed to suggest

394
00:20:57.570 --> 00:21:00.450
or support an inference that the sequence

395
00:21:00.450 --> 00:21:02.763
was as argued by the prosecutor.

396
00:21:04.335 --> 00:21:08.513
<v ->There was some testimony about impact splatter,</v>

397
00:21:08.513 --> 00:21:11.880
but the blood expert did not testify about sequence

398
00:21:11.880 --> 00:21:13.683
nor did the medical examiner,

399
00:21:14.524 --> 00:21:17.760
but I actually think it supports the opposite view.

400
00:21:17.760 --> 00:21:22.760
The only, I think, impact splatter that she testified about

401
00:21:24.330 --> 00:21:28.934
was in the hallway right outside the master bedroom.

402
00:21:28.934 --> 00:21:31.710
The frying pan was found in the master bedroom.

403
00:21:31.710 --> 00:21:36.710
The window that was broken was in the spare bedroom in this-

404
00:21:36.900 --> 00:21:40.199
<v ->If it's arguable, that's all it needs to be, right?</v>

405
00:21:40.199 --> 00:21:41.904
Just a reasonable inference from the evidence.

406
00:21:41.904 --> 00:21:42.737
<v ->But it has to be reasonable,</v>

407
00:21:42.737 --> 00:21:44.822
and I would argue in this case it

408
00:21:44.822 --> 00:21:47.940
was not reasonable based on all of the evidence,

409
00:21:47.940 --> 00:21:52.110
and the prosecutor acknowledged as much in the testimony

410
00:21:52.110 --> 00:21:54.900
in her statements in the co-defendant's trial,

411
00:21:54.900 --> 00:21:56.553
Mr. Ferguson's trial.

412
00:21:59.393 --> 00:22:01.710
Unless there are any other questions,

413
00:22:01.710 --> 00:22:03.274
my time is up, I think.

414
00:22:03.274 --> 00:22:04.107
Thank you.
<v ->Thank you.</v>

415
00:22:06.070 --> 00:22:07.493
Okay, Attorney Kiggen.
<v ->Thank you.</v>

416
00:22:10.730 --> 00:22:11.933
May it please the court.

417
00:22:11.933 --> 00:22:12.766
Christine Kiggen representing

418
00:22:12.766 --> 00:22:17.021
the Commonwealth Plymouth County District Attorney's Office.

419
00:22:17.021 --> 00:22:18.060
I was trial counsel for this case

420
00:22:18.060 --> 00:22:19.680
as well as the co-defendants.

421
00:22:19.680 --> 00:22:22.470
I'd also like to acknowledge the presence

422
00:22:22.470 --> 00:22:25.510
of the trial team in the front row here

423
00:22:26.667 --> 00:22:29.223
for all four of these trials.

424
00:22:29.223 --> 00:22:30.269
There were three defendants.

425
00:22:30.269 --> 00:22:32.833
There were four trials because one of them mistried.

426
00:22:32.833 --> 00:22:35.970
<v ->So can you then address why apparently there</v>

427
00:22:35.970 --> 00:22:38.760
was a concession in the Ferguson trials

428
00:22:38.760 --> 00:22:41.220
at the sequence?

429
00:22:41.220 --> 00:22:43.560
It was not reasonable to argue

430
00:22:43.560 --> 00:22:46.260
that the frying pan injuries happened

431
00:22:46.260 --> 00:22:49.743
after the cut on the arm through the window.

432
00:22:51.628 --> 00:22:54.142
<v ->Respectfully, I wouldn't agree that it was a concession.</v>

433
00:22:54.142 --> 00:22:55.290
I believe what I stated

434
00:22:55.290 --> 00:22:57.984
was that we don't know the order of events,

435
00:22:57.984 --> 00:22:58.817
and as I stand here today,

436
00:22:58.817 --> 00:23:00.363
we don't know the order of events.

437
00:23:01.399 --> 00:23:02.232
It was
<v ->Okay,</v>

438
00:23:02.232 --> 00:23:04.764
so what made the argument reasonable in this case?

439
00:23:04.764 --> 00:23:06.120
<v ->It was reasonable inferences from the evidence.</v>

440
00:23:06.120 --> 00:23:08.620
<v ->Because you don't know.</v>
<v ->'Cause we don't know.</v>

441
00:23:09.462 --> 00:23:10.295
It was a chaotic-
<v ->There was nothing</v>

442
00:23:10.295 --> 00:23:11.880
that you were relying on in terms

443
00:23:11.880 --> 00:23:13.833
of the blood splatter expert.

444
00:23:16.164 --> 00:23:16.997
You were just,

445
00:23:16.997 --> 00:23:19.440
"We don't know whether that happened before or after,

446
00:23:19.440 --> 00:23:21.630
so I'm just gonna argue that it happened after

447
00:23:21.630 --> 00:23:23.937
because that's more extreme and cruel."

448
00:23:24.971 --> 00:23:26.131
<v ->Absolutely not.</v>
<v ->Okay.</v>

449
00:23:26.131 --> 00:23:27.266
So what was the argument then?

450
00:23:27.266 --> 00:23:30.333
<v ->Well, as you asked earlier about the impact spatter,</v>

451
00:23:31.365 --> 00:23:32.198
there was testimony.

452
00:23:32.198 --> 00:23:33.900
The Commonwealth was limited

453
00:23:33.900 --> 00:23:37.028
in their blood stain expert's testimony.

454
00:23:37.028 --> 00:23:40.290
The judge limited in the trial what exactly they

455
00:23:40.290 --> 00:23:42.813
could testify to in terms of opinion testimony.

456
00:23:43.712 --> 00:23:47.260
However, they were able to give explanatory testimony

457
00:23:48.214 --> 00:23:50.050
about the difference between the two spatters

458
00:23:50.050 --> 00:23:53.493
and the impact spatter being what it sounds like,

459
00:23:55.029 --> 00:23:58.440
that it's more consistent that there was spatter coming

460
00:23:58.440 --> 00:24:03.440
from a violent impact upon the subject.

461
00:24:03.540 --> 00:24:05.430
There was plenty of that evidence.

462
00:24:05.430 --> 00:24:08.936
The house was replete with blood evidence.

463
00:24:08.936 --> 00:24:09.769
There was smear evidence.

464
00:24:09.769 --> 00:24:11.825
There were footprints all over the house.

465
00:24:11.825 --> 00:24:14.070
There was blood from the master bedroom all the way down

466
00:24:14.070 --> 00:24:16.567
to the kitchen where he was found, but there was-

467
00:24:16.567 --> 00:24:18.240
<v ->Yeah, but I'm just gonna ask you to focus on the sequence.</v>

468
00:24:18.240 --> 00:24:21.210
So it's your position that it

469
00:24:21.210 --> 00:24:24.490
was the impact blood stain splatter

470
00:24:26.036 --> 00:24:27.270
as opposed to the cast-off splatter

471
00:24:27.270 --> 00:24:30.810
that supported the argument that the frying pan injuries

472
00:24:30.810 --> 00:24:33.273
happened after the window injury?

473
00:24:35.286 --> 00:24:36.119
<v ->I think it was many things.</v>

474
00:24:36.119 --> 00:24:38.001
I think that that's just one-

475
00:24:38.001 --> 00:24:39.780
<v ->And what else besides the impact splatter?</v>

476
00:24:39.780 --> 00:24:44.084
<v ->So the arterial bleed caused the most bleeding,</v>

477
00:24:44.084 --> 00:24:45.660
and, to be clear, Dr. Mindy Hull,

478
00:24:45.660 --> 00:24:48.081
the medical examiner in this case,

479
00:24:48.081 --> 00:24:50.370
testified that the cause of death was not just the arterial,

480
00:24:50.370 --> 00:24:53.130
the bleed out from the arterial bleed under the arm.

481
00:24:53.130 --> 00:24:56.242
It was also those injuries from the back of the head,

482
00:24:56.242 --> 00:24:58.230
which inferentially came from the frying pan beating.

483
00:24:58.230 --> 00:25:01.293
<v ->Right, so just sticking with the sequence of the injuries.</v>

484
00:25:02.563 --> 00:25:04.013
So there's the impact splatter.

485
00:25:05.049 --> 00:25:06.990
<v ->So where I'm going with this, Justice,</v>

486
00:25:06.990 --> 00:25:09.240
is that there was blood,

487
00:25:09.240 --> 00:25:12.060
copious amounts of blood in the master bedroom

488
00:25:12.060 --> 00:25:14.193
where the frying pan was found.

489
00:25:16.020 --> 00:25:20.310
That permits a fair and reasonable inference that,

490
00:25:20.310 --> 00:25:24.510
after Mr. McKenna sustained the arterial bleed to his arm,

491
00:25:24.510 --> 00:25:27.570
given the amount of blood on that master bedroom floor,

492
00:25:27.570 --> 00:25:29.470
that the jury saw those pictures

493
00:25:30.713 --> 00:25:34.650
that Mr. McKenna was in that master bedroom bleeding out

494
00:25:34.650 --> 00:25:37.274
with those copious amounts of blood,

495
00:25:37.274 --> 00:25:39.335
and that's where the frying pan is found.

496
00:25:39.335 --> 00:25:41.807
And the frying pan is coated in blood,

497
00:25:41.807 --> 00:25:44.705
and there is spatter on top of the frying pan,

498
00:25:44.705 --> 00:25:46.613
as counsel pointed out in her brief,

499
00:25:46.613 --> 00:25:50.370
and counsel speculated on her appellate brief

500
00:25:50.370 --> 00:25:53.220
that that must have meant that the frying pan came first.

501
00:25:54.476 --> 00:25:56.460
But there's no way of knowing what the blood

502
00:25:56.460 --> 00:25:58.020
that's on the floor in the bedroom,

503
00:25:58.020 --> 00:26:00.210
that suggests that Mr. McKenna

504
00:26:00.210 --> 00:26:02.890
was in their master bedroom bleeding out

505
00:26:03.858 --> 00:26:04.691
and that the frying pans found

506
00:26:04.691 --> 00:26:07.625
in that location in the master bedroom,

507
00:26:07.625 --> 00:26:09.534
and there's spatter on top of it.

508
00:26:09.534 --> 00:26:10.740
So there's nothing to suggest

509
00:26:10.740 --> 00:26:12.930
that the frying pan was used first.

510
00:26:12.930 --> 00:26:14.760
It's more reasonable, I would suggest,

511
00:26:14.760 --> 00:26:16.260
with the amount of blood that's found

512
00:26:16.260 --> 00:26:18.690
on the floor in the master bedroom,

513
00:26:18.690 --> 00:26:20.590
that it was used in the master bedroom

514
00:26:22.134 --> 00:26:23.336
given the amount of blood,

515
00:26:23.336 --> 00:26:26.036
not the cast-off and not the impact, as you're asking.

516
00:26:26.942 --> 00:26:29.580
I'm suggesting the amount of blood

517
00:26:29.580 --> 00:26:31.680
and the placement of the frying pan.

518
00:26:31.680 --> 00:26:35.943
The cast-off and the impact is all over the house, Judge.

519
00:26:37.891 --> 00:26:38.941
It's in the hallways.

520
00:26:40.437 --> 00:26:41.940
It's in the area of where we believe he

521
00:26:41.940 --> 00:26:43.923
was struck with the frying pan.

522
00:26:45.912 --> 00:26:47.866
But Mr. McKenna is found,

523
00:26:47.866 --> 00:26:49.620
his final resting point is in the kitchen,

524
00:26:49.620 --> 00:26:53.050
but the amount of blood is not any less

525
00:26:53.972 --> 00:26:57.086
in that master bedroom, which suggests that,

526
00:26:57.086 --> 00:26:59.343
after he was bleeding out from the window,

527
00:27:00.416 --> 00:27:02.254
the arterial bleed under the arm,

528
00:27:02.254 --> 00:27:03.730
he was in that master bedroom,

529
00:27:03.730 --> 00:27:05.415
which is where the frying pan's found.

530
00:27:05.415 --> 00:27:09.204
So that is why I suggest that it is a fair

531
00:27:09.204 --> 00:27:10.590
and reasonable inference to suggest

532
00:27:10.590 --> 00:27:12.900
that he was struck with the frying pan

533
00:27:12.900 --> 00:27:15.607
after he was bleeding out from the window.

534
00:27:15.607 --> 00:27:17.063
<v ->Is that obvious?</v>

535
00:27:17.063 --> 00:27:19.017
<v ->I don't know that that's obvious, and that's what I-</v>

536
00:27:19.017 --> 00:27:20.063
<v ->But isn't that what you said?</v>

537
00:27:20.990 --> 00:27:21.823
<v ->I didn't say that.</v>

538
00:27:21.823 --> 00:27:23.522
I said that it's a fair and reasonable inference.

539
00:27:23.522 --> 00:27:24.840
<v ->No, I mean at closing argument.</v>

540
00:27:24.840 --> 00:27:26.090
Isn't that what you said,

541
00:27:26.936 --> 00:27:28.686
that he was obviously bleeding out?

542
00:27:29.892 --> 00:27:31.332
<v ->He-</v>
<v ->And I suggest to you-</v>

543
00:27:31.332 --> 00:27:33.695
<v ->Oh, that he was bleeding out? Oh yes, that he-</v>

544
00:27:33.695 --> 00:27:36.637
<v ->And I suggest to you is evidence of malice.</v>

545
00:27:36.637 --> 00:27:39.723
<v ->Yes, obviously bleeding out, the spurts, yes.</v>

546
00:27:42.250 --> 00:27:43.920
I mistook your question as to was it obvious

547
00:27:43.920 --> 00:27:45.030
as to the sequence.

548
00:27:45.030 --> 00:27:47.070
No, as to him bleeding out, your Honor,

549
00:27:47.070 --> 00:27:50.004
absolutely it was obvious that he was bleeding out.

550
00:27:50.004 --> 00:27:52.560
<v ->Because his blood stained in the bedroom floor.</v>

551
00:27:53.675 --> 00:27:56.260
<v ->All over the bedroom floor and the walls</v>

552
00:27:56.260 --> 00:27:57.300
and the thresholds of the doors,

553
00:27:57.300 --> 00:27:59.970
all along the hallways leading to the second bedroom.

554
00:27:59.970 --> 00:28:02.720
<v ->Which would be consistent with an arterial bleed.</v>

555
00:28:02.720 --> 00:28:05.073
<v ->Yes. So in that sense, absolutely.</v>

556
00:28:06.347 --> 00:28:08.592
It was obvious he was obviously bleeding out.

557
00:28:08.592 --> 00:28:11.820
And so I think the big issue in this case is malice,

558
00:28:11.820 --> 00:28:13.876
and I argued it in my brief,

559
00:28:13.876 --> 00:28:16.635
but this is not an involuntary manslaughter case.

560
00:28:16.635 --> 00:28:17.970
Commonwealth versus Fitzmeyer tells us

561
00:28:17.970 --> 00:28:20.490
that the law of the Commonwealth is that a battery

562
00:28:20.490 --> 00:28:22.880
not amounting to a felony where there

563
00:28:27.298 --> 00:28:29.348
should be an awareness of a risk of death

564
00:28:30.898 --> 00:28:31.731
could be an involuntary manslaughter

565
00:28:31.731 --> 00:28:33.690
under a wanton and reckless theory.

566
00:28:33.690 --> 00:28:36.210
These facts couldn't be any further from a wanton

567
00:28:36.210 --> 00:28:38.310
and reckless theory.
<v ->It's two different things.</v>

568
00:28:38.310 --> 00:28:42.165
There's battery leading to death resulting in manslaughter,

569
00:28:42.165 --> 00:28:44.040
and then there's wanton reckless conduct,

570
00:28:44.040 --> 00:28:45.072
which is involuntary manslaughter.

571
00:28:45.072 --> 00:28:46.867
<v ->Correct, correct.</v>
<v ->But either way,</v>

572
00:28:46.867 --> 00:28:47.700
it doesn't fit the bill.

573
00:28:47.700 --> 00:28:50.864
<v ->Either way, the Commonwealth's position, your Honor,</v>

574
00:28:50.864 --> 00:28:51.810
is that it does not fit the bill.

575
00:28:51.810 --> 00:28:56.810
The evidence, there were over two or 300 exhibits,

576
00:28:57.614 --> 00:29:00.240
in this case, 160 of them photographs of all the blood

577
00:29:00.240 --> 00:29:04.110
in the house and of the victim's injuries.

578
00:29:04.110 --> 00:29:07.380
Counsel was asked during her argument about the injuries.

579
00:29:07.380 --> 00:29:09.780
This wasn't a case, your Honors,

580
00:29:09.780 --> 00:29:14.700
where Mr. McKenna sustained a bleed under his arm

581
00:29:14.700 --> 00:29:17.010
and had a few scrapes and scratches.

582
00:29:17.010 --> 00:29:22.010
I suggest he was covered from head to toe with bruises,

583
00:29:22.359 --> 00:29:26.410
abrasion, scratches underneath his lip,

584
00:29:28.350 --> 00:29:30.827
all around his forehead,

585
00:29:30.827 --> 00:29:33.030
forceful blows to the back of the head,

586
00:29:33.030 --> 00:29:36.153
which caused bleeding and contributed to his death.

587
00:29:37.232 --> 00:29:38.940
The evidence in the reasonable inferences showed

588
00:29:38.940 --> 00:29:43.291
that there was a beating of this man three on one,

589
00:29:43.291 --> 00:29:46.080
and the three on one is because of the footprints.

590
00:29:46.080 --> 00:29:49.455
There are three distinct sets of footprints,

591
00:29:49.455 --> 00:29:51.855
and Trooper Bankston in this case did a diagram.

592
00:29:53.964 --> 00:29:54.797
There were more than 27,

593
00:29:54.797 --> 00:29:58.140
but he diagrammed out 27 separate shoe prints

594
00:29:58.140 --> 00:30:02.190
and showed them to the jury all over the house,

595
00:30:02.190 --> 00:30:03.480
and then in and among them,

596
00:30:03.480 --> 00:30:05.490
there were the barefoot impressions,

597
00:30:05.490 --> 00:30:08.580
all of this leading to a fair, reasonable,

598
00:30:08.580 --> 00:30:12.240
permissible inference that these three individuals

599
00:30:12.240 --> 00:30:17.240
were attacking the victim or about his house as he bled out.

600
00:30:20.144 --> 00:30:22.944
The footprints in the blood, as I stated, were distinct,

601
00:30:24.040 --> 00:30:26.840
and they were in close proximity to his bare footprints.

602
00:30:27.895 --> 00:30:29.730
The evidence and the reasonable inferences displayed a kind

603
00:30:29.730 --> 00:30:33.063
of risk that could only lead to a finding of malice,

604
00:30:34.372 --> 00:30:36.600
and as I said in my brief, there's simply no version

605
00:30:36.600 --> 00:30:39.520
of the facts in this particular case

606
00:30:41.010 --> 00:30:42.630
that would support a finding that the victim

607
00:30:42.630 --> 00:30:45.780
was subjected to a battery not amounting to a felony.

608
00:30:45.780 --> 00:30:47.703
In the co-defendants' trials,

609
00:30:48.573 --> 00:30:50.520
a different judge heard largely the same evidence.

610
00:30:50.520 --> 00:30:53.700
He declined to instruct on an involuntary manslaughter.

611
00:30:53.700 --> 00:30:57.420
I suggest what trial counsel did in this case

612
00:30:57.420 --> 00:30:59.236
was he was candid.

613
00:30:59.236 --> 00:31:00.930
When Judge Locke asked him, "What is the evidence

614
00:31:00.930 --> 00:31:03.330
that would support an involuntary manslaughter?"

615
00:31:04.200 --> 00:31:07.290
He answered candidly, "I don't see a view.

616
00:31:07.290 --> 00:31:08.757
I don't see evidence of it."

617
00:31:09.707 --> 00:31:10.966
And what he did instead

618
00:31:10.966 --> 00:31:14.340
was he focused reasonably his defense

619
00:31:14.340 --> 00:31:17.520
on Mr. O'Brien not being there,

620
00:31:17.520 --> 00:31:20.656
and he did a good job of that, I suggest.

621
00:31:20.656 --> 00:31:23.147
And I looked at his closing argument,

622
00:31:23.147 --> 00:31:24.360
and from beginning to end,

623
00:31:24.360 --> 00:31:27.930
there was a consistent theme that they

624
00:31:27.930 --> 00:31:30.123
can't show that Mr. O'Brien was there.

625
00:31:31.051 --> 00:31:32.970
He started with the neighborhood observations

626
00:31:32.970 --> 00:31:35.820
where he said that one of the neighbors saw a black vehicle

627
00:31:35.820 --> 00:31:37.350
in the victim's driveway consistent

628
00:31:37.350 --> 00:31:39.721
with the co-defendant, Michael Moscaritolo.

629
00:31:39.721 --> 00:31:41.171
<v ->Counsel, I don't mean to interrupt you,</v>

630
00:31:41.171 --> 00:31:43.260
but it is a natural segue into the discussion

631
00:31:43.260 --> 00:31:45.693
about the informant, right?

632
00:31:46.945 --> 00:31:50.910
So the counsel, as you just alluded to,

633
00:31:50.910 --> 00:31:53.730
really focused on nothing puts him there,

634
00:31:53.730 --> 00:31:57.960
and really, the central piece of evidence or witnesses

635
00:31:57.960 --> 00:32:00.213
that puts him there is the informant.

636
00:32:02.447 --> 00:32:05.250
Do you concede that all of that stuff didn't come out

637
00:32:05.250 --> 00:32:06.500
and should have come out?

638
00:32:08.128 --> 00:32:10.353
The $922 or whatever the amount was?

639
00:32:13.822 --> 00:32:16.220
<v ->The actual dollar amounts, correct, did not come out,</v>

640
00:32:16.220 --> 00:32:18.720
and the $50 in asthma medication did not come out.

641
00:32:21.742 --> 00:32:25.329
I questioned him. Trial counsel questioned him.

642
00:32:25.329 --> 00:32:27.000
"Again, what about those medications?"

643
00:32:27.000 --> 00:32:30.150
He didn't recall, and I cited to Commonwealth versus Moore

644
00:32:30.150 --> 00:32:32.850
in this case where this court found that it

645
00:32:32.850 --> 00:32:36.406
is not up to the Commonwealth to impeach their own witness

646
00:32:36.406 --> 00:32:38.250
because there are occasions,

647
00:32:38.250 --> 00:32:41.167
which I suggest this is one, where a witness,

648
00:32:41.167 --> 00:32:42.990
due to the passage of time or confusion,

649
00:32:42.990 --> 00:32:45.420
just simply makes a mistake.

650
00:32:45.420 --> 00:32:50.064
I disagree, the Commonwealth disagrees that Ron King got up

651
00:32:50.064 --> 00:32:52.260
and gave blatantly false testimony.

652
00:32:52.260 --> 00:32:55.680
The key in the Moore case and the other cases

653
00:32:55.680 --> 00:32:59.850
that focus on this kind of situation was,

654
00:32:59.850 --> 00:33:03.745
was defendant provided with all of these materials?

655
00:33:03.745 --> 00:33:04.650
And he 100% was.

656
00:33:04.650 --> 00:33:06.937
I included that as a footnote,

657
00:33:06.937 --> 00:33:08.880
and I don't know if I put it in a record appendix,

658
00:33:08.880 --> 00:33:11.370
but there was, early on,

659
00:33:11.370 --> 00:33:13.680
a lot of discovery regarding this individual.

660
00:33:13.680 --> 00:33:15.580
There was a lot of pretrial litigation

661
00:33:16.629 --> 00:33:19.745
over what was going to be produced,

662
00:33:19.745 --> 00:33:21.475
and then we reargued what was admissible

663
00:33:21.475 --> 00:33:22.683
before Judge Locke,

664
00:33:22.683 --> 00:33:26.328
and trial counsel had every bit of the impeachment evidence,

665
00:33:26.328 --> 00:33:28.830
right up to the $30,000 plus that was paid to him

666
00:33:28.830 --> 00:33:30.330
by the Suffolk County DA's Office

667
00:33:30.330 --> 00:33:32.490
when he worked for them as an informant.

668
00:33:32.490 --> 00:33:34.260
And I would suggest in this case,

669
00:33:34.260 --> 00:33:36.450
Mr. King wasn't an informant,

670
00:33:36.450 --> 00:33:37.770
and I wanna make that distinction

671
00:33:37.770 --> 00:33:41.370
'cause I know that counsel called Mr. King in brief

672
00:33:41.370 --> 00:33:43.950
and in your Honor as well.

673
00:33:43.950 --> 00:33:46.623
He's a fact witness in this case.

674
00:33:47.525 --> 00:33:51.433
Yes, he's been an informant his whole adult lifetime

675
00:33:51.433 --> 00:33:53.130
and potentially made a career out of it.

676
00:33:53.130 --> 00:33:55.530
The jury heard all of that.

677
00:33:55.530 --> 00:33:58.440
All of that that was brought out by Mr. Murphy

678
00:33:58.440 --> 00:34:01.710
was absolutely ample impeachment evidence

679
00:34:01.710 --> 00:34:04.950
for the jury to assess Mr. King's credibility.

680
00:34:04.950 --> 00:34:08.688
I suggest that a $50 worth of asthma medication

681
00:34:08.688 --> 00:34:10.320
that I think he just either didn't know,

682
00:34:10.320 --> 00:34:12.024
'cause those things happen.

683
00:34:12.024 --> 00:34:12.990
They don't even know what they're getting sometimes.

684
00:34:12.990 --> 00:34:17.426
They just know that their expenses are getting taken care of

685
00:34:17.426 --> 00:34:19.402
and they don't know all the details.

686
00:34:19.402 --> 00:34:21.372
Whether he just didn't remember it

687
00:34:21.372 --> 00:34:22.740
or he just didn't know it,

688
00:34:22.740 --> 00:34:26.161
I don't think that that $50 payment

689
00:34:26.161 --> 00:34:28.193
of asthma medication was gonna sway the jury.

690
00:34:31.466 --> 00:34:32.770
<v ->Did Mr. Murphy bring out</v>

691
00:34:32.770 --> 00:34:34.893
that he got basically living expenses?

692
00:34:38.487 --> 00:34:39.413
<v ->I don't know that he did.</v>

693
00:34:41.616 --> 00:34:43.180
I asked him what he was receiving.

694
00:34:43.180 --> 00:34:47.123
I asked it very openly, according to the transcript.

695
00:34:47.123 --> 00:34:50.147
I said, "Are you receiving any benefit for testifying?"

696
00:34:50.147 --> 00:34:52.849
And he answered with a, "This is not a benefit,"

697
00:34:52.849 --> 00:34:54.484
because it was emotional for him.

698
00:34:54.484 --> 00:34:56.083
On cross examination,

699
00:34:56.083 --> 00:34:58.750
he agreed that he received payment for a hotel room,

700
00:34:58.750 --> 00:35:01.400
a one-way airline ticket to come to court to testify.

701
00:35:02.580 --> 00:35:04.650
On redirect, the prosecutor asked him if there

702
00:35:04.650 --> 00:35:07.470
were any other monies that were paid.

703
00:35:07.470 --> 00:35:10.070
So again, counsel's-
<v ->What was his answer to that?</v>

704
00:35:11.487 --> 00:35:12.900
<v ->No.</v>
<v ->He said $12</v>

705
00:35:12.900 --> 00:35:14.200
to change his phone number

706
00:35:15.118 --> 00:35:17.118
because I'm gonna just suggest to you.

707
00:35:17.118 --> 00:35:18.210
To Mr. King, that was more important

708
00:35:18.210 --> 00:35:20.460
than the $50 for his asthma medication,

709
00:35:20.460 --> 00:35:25.080
and that's my opinion coming from someone

710
00:35:25.080 --> 00:35:28.410
who's in the midst of dealing with these witnesses.

711
00:35:28.410 --> 00:35:30.810
But again, the case law recognizes

712
00:35:30.810 --> 00:35:33.450
that witnesses have frailties with their memories,

713
00:35:33.450 --> 00:35:35.523
whether it's confusion, passage of time,

714
00:35:36.390 --> 00:35:39.390
or they just didn't know.

715
00:35:39.390 --> 00:35:40.590
They just weren't aware.

716
00:35:42.000 --> 00:35:47.000
But the prosecutor, me on redirect, I asked him.

717
00:35:50.714 --> 00:35:53.970
So the suggestion in this case that I failed

718
00:35:53.970 --> 00:35:58.440
to correct Mr. King's blatantly false testimony,

719
00:35:58.440 --> 00:36:00.390
I specifically got up on redirect

720
00:36:00.390 --> 00:36:04.159
when Mr. Murphy didn't bring out all of that

721
00:36:04.159 --> 00:36:05.520
because I knew that there was more,

722
00:36:05.520 --> 00:36:07.870
and I asked him that question.

723
00:36:07.870 --> 00:36:09.400
"Was there anything else?"

724
00:36:09.400 --> 00:36:12.814
And he came up with the $12 to change his phone number.

725
00:36:12.814 --> 00:36:13.647
And then Mr. Murphy,

726
00:36:13.647 --> 00:36:16.316
I would suggest it then prompted Mr. Murphy to say,

727
00:36:16.316 --> 00:36:17.370
"Wait, he didn't get into everything else,"

728
00:36:17.370 --> 00:36:21.314
and then he got up on recross, and he said,

729
00:36:21.314 --> 00:36:22.170
"Did the Commonwealth pay for any medication?"

730
00:36:22.170 --> 00:36:24.813
And King answered not that he was aware of.

731
00:36:27.887 --> 00:36:28.720
First of all, I'm not sure that the court

732
00:36:28.720 --> 00:36:30.630
would've permitted a re-redirect.

733
00:36:30.630 --> 00:36:33.430
There are some judges who only allow us to do that once,

734
00:36:34.785 --> 00:36:38.040
but the point is that it was asked,

735
00:36:38.040 --> 00:36:41.308
it was re-asked, it was crossed,

736
00:36:41.308 --> 00:36:43.843
it was recrossed, and that was what we got,

737
00:36:43.843 --> 00:36:46.037
and I suggest that there's a far cry

738
00:36:46.037 --> 00:36:49.320
between the mistake maybe he made in his testimony

739
00:36:49.320 --> 00:36:51.663
and blatantly false testimony?

740
00:36:53.760 --> 00:36:57.099
<v ->Can I ask you about the all or nothing strategy?</v>

741
00:36:57.099 --> 00:36:59.370
Because it seemed like counsel actually did ask

742
00:36:59.370 --> 00:37:02.400
for sudden combat jury instruction

743
00:37:02.400 --> 00:37:05.400
and absence of mistake or accident.

744
00:37:05.400 --> 00:37:07.080
So it didn't seem like counsel

745
00:37:07.080 --> 00:37:09.933
was actually pursuing an all or nothing strategy.

746
00:37:12.095 --> 00:37:15.045
<v ->I agree based on the instructions that he was asking for,</v>

747
00:37:19.934 --> 00:37:20.767
and I have some thoughts on that

748
00:37:20.767 --> 00:37:22.170
that sort of go outside the record

749
00:37:22.170 --> 00:37:24.390
because there was a lot of pretrial litigation

750
00:37:24.390 --> 00:37:28.593
about the theories in this case and the burdens,

751
00:37:30.867 --> 00:37:33.243
the suggestions of the charges in this case.

752
00:37:34.697 --> 00:37:36.311
But when you look at the record,

753
00:37:36.311 --> 00:37:37.820
that's exactly what he argued.

754
00:37:37.820 --> 00:37:41.263
Again, in his closing argument, it was all or nothing.

755
00:37:41.263 --> 00:37:44.190
<v ->It was-</v>
<v ->Did Judge Locke decline</v>

756
00:37:44.190 --> 00:37:46.620
to instruct involuntary manslaughter?

757
00:37:46.620 --> 00:37:49.203
<v ->Yes, that's correct.</v>
<v ->What about accident?</v>

758
00:37:50.310 --> 00:37:51.660
<v ->There was no instruction on it.</v>

759
00:37:51.660 --> 00:37:54.903
<v ->Okay, so he had lost the jury instruction battle.</v>

760
00:37:56.035 --> 00:37:56.868
<v ->On voluntary at least,</v>

761
00:37:56.868 --> 00:37:58.259
and he withdrew-
<v ->Involuntary.</v>

762
00:37:58.259 --> 00:38:00.264
<v ->He withdrew, involuntary.</v>

763
00:38:00.264 --> 00:38:02.922
<v ->He did, he withdrew it, but again,</v>

764
00:38:02.922 --> 00:38:04.619
I think it was a moment of-

765
00:38:04.619 --> 00:38:05.452
<v ->But couldn't ride those two horses</v>

766
00:38:05.452 --> 00:38:08.520
'cause he didn't get an instruction on voluntary.

767
00:38:08.520 --> 00:38:09.353
<v ->Correct.</v>

768
00:38:12.736 --> 00:38:16.274
I think what counsel, in the brief, talked about, though,

769
00:38:16.274 --> 00:38:17.857
was earlier on in the trial,

770
00:38:17.857 --> 00:38:19.590
he had said that he wanted involuntary.

771
00:38:19.590 --> 00:38:21.330
But he changed his mind,

772
00:38:21.330 --> 00:38:24.134
and I suggest he was candid with Judge Locke

773
00:38:24.134 --> 00:38:26.871
when Judge Locke asked him what evidence supports it.

774
00:38:26.871 --> 00:38:28.080
<v ->Then he made whatever argument he could on voluntary</v>

775
00:38:28.080 --> 00:38:30.573
and he lost that argument.
<v ->Yes, that's true.</v>

776
00:38:32.010 --> 00:38:36.377
And for the all or nothing, Judge, he said,

777
00:38:36.377 --> 00:38:39.227
"No DNA of Mark O'Brien from a bloodstained crime scene."

778
00:38:40.284 --> 00:38:42.510
He attacked the credibility of the civilian witnesses,

779
00:38:42.510 --> 00:38:45.270
but he suggested other people as third party culprits,

780
00:38:45.270 --> 00:38:46.533
and that was reasonable.

781
00:38:47.907 --> 00:38:50.732
So there's this witness, Thomas Gunning,

782
00:38:50.732 --> 00:38:53.886
and Thomas Gunning was, for lack of a better expression,

783
00:38:53.886 --> 00:38:56.730
the link between the defendants and the victim in this case.

784
00:38:56.730 --> 00:38:58.020
He had been in the victim's house,

785
00:38:58.020 --> 00:39:00.540
he had seen some things he liked, he was impressed by it,

786
00:39:00.540 --> 00:39:03.810
took some cell phone pictures, sent them out to the crowd.

787
00:39:03.810 --> 00:39:07.650
Somehow, the defendants were exposed to that

788
00:39:07.650 --> 00:39:09.500
and came up with the plan to rob him.

789
00:39:11.726 --> 00:39:14.356
So it was reasonable to suggest Thomas Gunning

790
00:39:14.356 --> 00:39:15.189
as a third party culprit.

791
00:39:15.189 --> 00:39:18.600
Also Tom Gunning, there was no DNA buccal swab taken

792
00:39:18.600 --> 00:39:20.247
from Tom Gunning.

793
00:39:20.247 --> 00:39:22.847
So it was reasonable for him to suggest Tom Gunning.

794
00:39:24.156 --> 00:39:25.863
He also, in his all or nothing,

795
00:39:28.668 --> 00:39:31.350
he sort of mocked the Commonwealth's presentation

796
00:39:31.350 --> 00:39:35.700
of witnesses by saying, "Hey, the first half of this trial,

797
00:39:35.700 --> 00:39:37.590
you heard from all these witnesses came in here.

798
00:39:37.590 --> 00:39:39.792
They don't even know Mark O'Brien.

799
00:39:39.792 --> 00:39:40.710
They've never even heard of Mark O'Brien.

800
00:39:40.710 --> 00:39:42.960
That's the evidence that the Commonwealth's giving you."

801
00:39:42.960 --> 00:39:44.250
But again, why is he doing that?

802
00:39:44.250 --> 00:39:46.830
Because he's putting together an all or nothing,

803
00:39:46.830 --> 00:39:49.080
trying to distance Mr. O'Brien

804
00:39:49.080 --> 00:39:52.335
from the other defendants in this case, and say,

805
00:39:52.335 --> 00:39:53.168
"You heard from all these witnesses

806
00:39:53.168 --> 00:39:54.480
that knew the other two guys.

807
00:39:54.480 --> 00:39:55.980
What'd you hear about my guy?"

808
00:39:57.868 --> 00:39:58.701
He said the Commonwealth didn't show

809
00:39:58.701 --> 00:40:01.110
that Mark O'Brien was part of the joint venture,

810
00:40:01.110 --> 00:40:04.350
couldn't show the intent that he had joined

811
00:40:04.350 --> 00:40:06.390
in the joint venture attack.

812
00:40:06.390 --> 00:40:09.600
He pointed out there were 43 separate items examined

813
00:40:09.600 --> 00:40:11.220
for DNA comparison,

814
00:40:11.220 --> 00:40:14.190
and not a single item pointed to Mark O'Brien.

815
00:40:14.190 --> 00:40:17.853
That was a reasonable decision to argue that.

816
00:40:19.600 --> 00:40:22.116
He also said, "Well, look at O'Brien's car.

817
00:40:22.116 --> 00:40:24.566
That was the only place where his DNA was found."

818
00:40:26.607 --> 00:40:27.960
He suggested Lauren Kalil,

819
00:40:27.960 --> 00:40:31.482
the girlfriend of the co-defendant, Michael Moscaritolo.

820
00:40:31.482 --> 00:40:32.850
She testified,

821
00:40:32.850 --> 00:40:36.933
and it was some statement that she gave to the police.

822
00:40:37.862 --> 00:40:39.300
"You don't think I was the other person in the house,

823
00:40:39.300 --> 00:40:40.836
do you?"

824
00:40:40.836 --> 00:40:41.669
Because one of the shoe prints

825
00:40:41.669 --> 00:40:43.563
was noticeably smaller than the others,

826
00:40:44.450 --> 00:40:46.727
and so he brought that up and said,

827
00:40:46.727 --> 00:40:47.560
"Maybe it was these other two defendants

828
00:40:47.560 --> 00:40:50.493
and maybe it was Lauren Kalil," distancing himself,

829
00:40:51.530 --> 00:40:53.780
distancing from Mark O'Brien, all or nothing.

830
00:40:56.784 --> 00:40:59.686
Again, this wasn't brought up today. Very important.

831
00:40:59.686 --> 00:41:00.519
It wasn't just Ron King

832
00:41:00.519 --> 00:41:03.840
and this other circumstantial evidence and inferences

833
00:41:03.840 --> 00:41:06.240
that put Mark O'Brien in that house.

834
00:41:06.240 --> 00:41:10.092
Lauren Kalil testified that the day after she saw,

835
00:41:10.092 --> 00:41:12.690
she identified Mark O'Brien in a photo array,

836
00:41:12.690 --> 00:41:14.670
showing up at the house with the co-defendant,

837
00:41:14.670 --> 00:41:18.210
James Ferguson, and opening up the back hatch of his car

838
00:41:18.210 --> 00:41:21.180
and carrying out a big bag.

839
00:41:21.180 --> 00:41:26.180
There was at least a big duffel bag of some sort.

840
00:41:28.777 --> 00:41:31.140
She also said that she knew James Ferguson.

841
00:41:31.140 --> 00:41:34.860
She didn't know the defendant, Mark O'Brien.

842
00:41:34.860 --> 00:41:36.660
She said that he was quiet, he kept his head down,

843
00:41:36.660 --> 00:41:40.669
but what she saw was a fresh cut under his eye

844
00:41:40.669 --> 00:41:42.658
that it took up almost under his eye.

845
00:41:42.658 --> 00:41:45.208
She said it looked like a red rug burn. It was red.

846
00:41:46.277 --> 00:41:48.112
That's fairly significant here,

847
00:41:48.112 --> 00:41:48.945
and when you pair that up

848
00:41:48.945 --> 00:41:52.320
with what Mr. Ron King testified to,

849
00:41:52.320 --> 00:41:53.557
that the defendant said to him,

850
00:41:53.557 --> 00:41:57.840
"I was the third guy, and things got ugly."

851
00:41:57.840 --> 00:42:00.150
So it's more than what was discussed earlier

852
00:42:00.150 --> 00:42:03.360
as to placing him in that house.

853
00:42:03.360 --> 00:42:07.140
That injury to his eye and him showing up

854
00:42:07.140 --> 00:42:10.110
at the scene the day after with this big bag

855
00:42:10.110 --> 00:42:12.010
that inferentially was the guns

856
00:42:13.311 --> 00:42:15.511
was very significant evidence.

857
00:42:15.511 --> 00:42:19.440
But Mr. Murphy was also, again, in his all or nothing,

858
00:42:19.440 --> 00:42:21.870
saying, "You can't believe Lauren Kalil's testimony

859
00:42:21.870 --> 00:42:24.750
about the cut under the eye and the showing up at the house

860
00:42:24.750 --> 00:42:27.210
with the big bag in the back of the car

861
00:42:27.210 --> 00:42:29.130
because she's gonna say anything she can

862
00:42:29.130 --> 00:42:30.507
to save her own skin."

863
00:42:32.298 --> 00:42:34.290
He told the jury to disregard her testimony

864
00:42:34.290 --> 00:42:36.985
because she was just working for the government.

865
00:42:36.985 --> 00:42:39.390
He told the jury to disregard everything Ron King said

866
00:42:39.390 --> 00:42:42.053
because he was a professional liar,

867
00:42:42.053 --> 00:42:46.350
and he also argued that the cell site location testimony

868
00:42:46.350 --> 00:42:49.650
did not put O'Brien in a southern location beyond Weymouth,

869
00:42:49.650 --> 00:42:52.170
and it didn't, so that was also a very strong point

870
00:42:52.170 --> 00:42:55.740
on the part of Mr. Murphy in arguing for his all or nothing.

871
00:42:55.740 --> 00:42:57.040
Mark O'Brien didn't do it.