-: SJC 13080, Commonwealth versus Nickolas Lacrosse.
-: Okay, Attorney Caddick. -: Yes.
May it please the court,
Elizabeth Caddick for Nickolas Lacrosse.
In this case, Mr. Lacrosse raised a mental health defense.
That defense was supported by two expert witnesses,
a neuropsychologist and a psychiatrist,
who stated that he had an episode
of dissociative amnesia at the time of the crime.
This was supported by previous instances
of dissociative amnesia by Mr. Lacrosse prior to this crime.
There were witnesses who testified at trial
and witnesses that the experts had spoken to personally.
So in order to defeat this,
the Commonwealth called two jailhouse informants,
and what the jury was not told
is that these jailhouse informants
had previously made contradictory statements
to investigators beforehand and that they had collaborated
with each other and had spoken
about Mr. Lacrosse and the crime.
-: What do we do with the ineffective assistance argument
where the very experienced defense attorney says,
essentially, "Well," he said,
"I didn't want to beat a dead horse," you know, his words,
and he also says that, and we look at the record,
we have lots of impeachment
of both these witnesses in multiple areas,
and then we have the trial judge saying
that what the trial lawyer did was reasonable,
and you have a tough row to hoe for failure to impeach.
So- -: I disagree.
What the lawyer did was he impeached
with their prior convictions,
which is, you know, standard fare,
and, of course, we know they're in jail.
They have convictions.
What he didn't do is impeach them
with their contradictory statements
that they had made before.
And their statements at trial,
which were different than their previous statements,
were much more prejudicial, much more detailed,
and now matched each other's testimony whereas before,
they contradicted each other when they
were speaking with investigators at different times.
-: When you say much more contradictory,
did he cross-examine
with prior inconsistent statements at all,
or just not -: No.
-: to the extent that- -: well, okay.
He cross-examined them, but he didn't impeach them.
What he did is he asked Gomez,
"Well, you never told the investigators before
that the Lacrosse said he was going to play the crazy card,"
and Gomez said, "Oh, yes I did,"
and the defense attorney didn't perfect the impeachment
by asking the investigator who interviewed Gomez
and had written the report, and it was in the transcript.
So there was a written report
and then a later interview that was on a transcript.
He never said that,
and so he didn't complete the impeachment
by saying to the investigator who was there both times,
"Well, he never said that Lacrosse
was going to play the crazy card."
So he may have questioned him about it.
It was worse than if he hadn't asked it
because Gomez was allowed to self corroborate and say,
"Oh, yes, I did say it before."
He did the same thing with Santiago.
He had asked Santiago about whether he had said something
before that was contradictory to what he testified.
-: Well, Santiago had previously said he
was going to play the crazy card, right?
-: Right, right. -: Unlike Gomez,
Santiago had actually made the point.
He was testifying consistently on that point, right?
-: Right, right, and when he was asked a question
by the defense attorney about,
"Well, didn't you speak with Gomez about this?"
Or he had asked him something that, clearly,
he had said differently at trial, and Santiago said,
"Oh, no, I had said that," and again,
the defense attorney didn't perfect the impeachment
by asking the investigator who testified later
to confirm the impeachment of Santiago.
So he not impeach the witnesses
with their prior inconsistent statements,
which is the most powerful way and really the only way
to defeat the jury's belief that jailhouse informants
are testifying truthfully.
-: But where does that come from?
What's that grounded in, statement that you just made,
that juries generally believe jailhouse informants?
-: Absolutely.
There's multiple areas of research that show
that juries believe jailhouse informants.
Three main reasons.
One is they believe they're already vetted
by the Commonwealth.
The Commonwealth would never put them
on the stand unless they were vetted.
The other is because they believe,
even though they're told that they
may have some consideration
by the Commonwealth for their testimony,
of course, they're never told they're going to have,
definitely gonna have some benefit,
and so the jury believes what they say.
Both of these jailhouse informants said
what most jailhouse informants say.
"Oh, I'm just doing it
because I believe the crime was terrible
and I'm doing it to help society,"
and not that they're doing it for selfish reasons.
And the third reason is because jurors
don't have the ability
to detect deception any better than chance,
and so they need the assistance of proper cross-examination,
not just cross-examination but proper cross-examination.
And the other main reason
that juries believe jailhouse informants
is because they tend to have information about the facts
that lend credibility to their testimony.
But research has found
that they generally get this information from other sources,
either outside sources and tell them what's in the newspaper
or from the defendant's own files,
and we know here that Santiago stole-
-: May I ask?
The two main points you're making on this, right,
are, one, that Gomez testified inconsistently
about playing the crazy card and that Gomez
and Santiago didn't talk to each other.
They testified at trial.
They didn't talk to each other or, I can't remember.
-: Right.
Santiago said they didn't talk to each other at trial,
but Gomez had said in his previous two statements,
"Yes, Santiago and I spoke about Lacrosse's case."
-: Those are the two significant failures
of cross-examination to you.
-: Well, I disagree because at trial,
the jury heard Gomez say,
"When Lacrosse slipped me the autopsy photo,
he threatened me.
He threatened me with my life. He threatened my life."
-: Correct me if I'm wrong,
the conversation they had amongst each other
with regard to the threat and the autopsy photographs,
right? -: Not just that
because what Gomez had said,
that's what the Commonwealth said,
but, in fact, what Gomez had said is that Santiago told him
that he'd spoken with authorities about Lacrosse
and the crime and that they were going to talk to,
what he said is, "I spoke to the authorities about Lacrosse,
about the photograph.
The authorities and my lawyer are going to talk to you."
Gomez had said after the photograph incident,
"Santiago and I spoke and that Santiago
was outside my cell all the time.
We spoke about Lacrosse and the crime multiple times."
So the defense attorney didn't impeach Santiago with this.
Also- -: You don't have anything
that suggests that they coordinated
playing the crazy card, right?
That's the- -: Oh, I do, I do,
because Gomez never said anything
about the crazy card. -: Does Gomez or Santiago
ever say they both talked about playing the crazy card?
-: Well, no, they didn't talk about specifically.
-: Oh, but that's the main issue.
That's the main purpose that it's significant, right?
-: I disagree because you have one saying the crazy card,
one not mentioning at all, and then by the time trial comes,
they have synced their testimony,
and we know that Santiago had said initially
to the investigators, "I got the photograph from Gomez,"
and they later questioned Gomez, and Gomez said,
"Oh, he didn't get it from me.
I don't know how he got it.
He probably got it from Lacrosse
because Lacrosse is always showing his discovery to people."
But by the time the trial came,
Santiago changed his testimony and said,
"Oh, I got it from Lacrosse because he had," okay?
So then we have- -: And back to the question
Justice Wendlandt asked you.
Are there other researchers
besides this particular researcher
who've made these points? -: Yes, yes.
There's Natapoff who's the, she's now at Harvard,
and she's produced probably the most research
on jailhouse informants. -: And she says
that people trust them despite the fact
that it's obvious they're testifying for deals?
They're -: Right, because first of all-
-: convicted felons. -: Right.
And then you have Santiago denying,
"Oh, they didn't promise me anything.
They only told me to tell the truth.
That's all I have to do. I'm not promised anything."
-: Yeah, but Santiago has got all kinds
of pending charges, right?
Gomez may not, but Santiago has tons of pending charges.
It's obvious, he's got huge stakes in this, right?
-: Yes, but research shows the jury still think the only time
that the jury will look
at the jailhouse informants critically
and find them unreliable is when it was pointed out to them
that they had lied previously in this very case,
not that they were criminals,
not that you might think that-
-: What was the sample size? -: For this-
-: For the research that you're concluding
that juries generally don't believe
-: Right, well- -: that jailhouse informants
are lying unless they lie in the particular case.
-: Right. Well, it- -: Was the sample size
for that conclusion? -: Okay.
There are multiple research articles that state that-
-: Right, and what was the sample size for that?
-: I don't remember -: because it's important
to make a generalization like that,
that juries generally believe jailhouse informants,
despite all of the things that Justice Kafker
was referencing. -: I agree,
but this research was published
in empirically validated journals, so-
-: Right, and so it may have been an accurate capturing
of their particular sample size,
but I'm just wondering how robust it is,
and it sounds like you don't know.
-: Well, I don't know, but, I mean,
I would take the time, -: The research-
-: but the- -: Does that research
include a Ciampa instruction?
-: No, because the instructions don't work.
There's also research
that shows the instructions -: Oh, so they-
-: don't work.
The only- -: The Ciampa instruction's
meaningless? -: No.
Well, yeah, because the- -: You should scrutinize
with great care what this person has to say?
-: Right, because it's not enough, and the research,
they looked at the strongest jury instruction
is in Connecticut.
You know, they have these mock juries,
and they give them the scenarios,
and then they give them this jury instruction,
and it doesn't help them.
Whether they have the jury instruction or don't,
the guilty findings are the same.
It's only impeachment,
and just to get back to just very quickly-
-: But back before you leave that though.
He doesn't put in all this science,
but is any court saying that the failure
to put in this kind of jailhouse science is ineffective?
Anyone around the country? -: No, no.
-: So are you asking us to make-
Elizabeth: I'm not asking-
-: Well, let me finish the question.
-: Sorry. I'm sorry. -: Are you asking us
to change the law here?
What is it that's gonna make this failure
to introduce this science in this case ineffective?
Is there a case law out there?
'Cause again, we have the Ciampa instruction.
We have lots of other things here. Go ahead.
-: Okay, first of all,
of course I didn't argue that he didn't put the research in.
I'm arguing he didn't properly impeach them.
-: Well, but without the research, it's not ineffective.
-: I'm sorry. Just to get the parameters.
You're arguing two things.
One is ineffective assistance
of counsel for failure to impeach,
but you're also arguing that the judge erred
in allowing the unreliable testimony into evidence.
-: I did not.
What I argued is that- -: But it is.
-: Okay, what I argued was that it was an unfair trial
to have unreliable jailhouse informants testify, and-
-: I was actually struck by your brief
'cause it was inadmissible
and the judge erred by allowed unreliable testimony.
-: No. -: Unless I read it wrong.
-: Oh, no.
It was that the trial attorney knew for over a year
that these jailhouse informants were going to testify.
He knew what their statements were before,
he knew their only purpose was to defeat his only defense,
which was the mental health defense,
and yet he still was not prepared
to properly impeach them with their lies.
-: Because you said it was the introduction
of unreliable jailhouse informant testimony
was a deprivation of due process,
and then you give the factors,
and then you go into ineffective assistance, right?
-: Right, right, and- -: I don't wanna split hairs.
The brief says what it says. -: Oh, okay. All right.
And the motion judge had said that,
"Well, it's up to, yes,
the crazy card testimony was very powerful and helpful to,"
I don't know if you said very powerful.
"It was helpful, very helpful to the Commonwealth,
but it's up to the jury
to determine the veracity of witnesses."
Well, the jury didn't have what they needed
to determine the veracity of these witnesses, and on 33E,
this court looks at whether the defense counsel's failure
to impeach could have had an effect
on the jury's conclusion. -: Right, just-
-: Well, it could have. We have research that shows that.
-: No matter how we look at it, whether it's unreliable,
your argument is it was ineffective,
and you are saying that,
because of inherent untrustworthiness
of the informant testimony, it was overly prejudicial.
-: Right, and we know how prejudicial it was
because of the research.
Right, that that's how you show prejudice.
-: Even though there were two expert witnesses
on the other side saying that he actually did have an issue?
-: Well, there was one expert for the Commonwealth.
-: Okay. -: So, right, Dr. Fife.
-: Okay, but Rosmarin said that he had-
-: That he did not suffer from dissociative amnesia.
She also said he didn't- -: Well, Fife did.
Fife. -: Rosmarin's-
-: Oh, Rosmarin and Deters had testified for Mr. Lacrosse.
-: Right, so two expert witnesses.
-: Right. Oh yeah. I'm sorry.
Yeah, and they had well-founded opinions
because of his prior instances,
and they had done extensive testing.
-: So the jury had that, had all of that information.
-: Right. (laughs)
Right, they did, and then they had the jailhouse informants
come and say,
"Oh, he said he was just gonna play the crazy card.
He hatched this up with his mother,"
and according to Gomez at trial,
"Oh, he told me his mother hid the knife,"
and yet before at the questioning,
he said he didn't know what happened to the knife,
and he was specifically asked,
"Did Lacrosse tell you what happened to the knife?"
"No, he didn't." -: Can I ask?
I understand on the failure to cross-examine Gomez.
I understand your point on that. I'm not sure it's there.
But what is there on Santiago that he could've used?
'Cause Santiago testifies consistently
that Lacrosse said he was gonna play the crazy card.
So what is it that should've been asked Santiago
that wasn't? -: Well,
to show that he lied about how he obtained the photo.
-: So what?
The photo doesn't deal with playing the crazy-
-: It shows he's a liar is what it does.
It shows he's a liar, and so then the jury can say.
He initially, after asking multiple times to speak
with the authorities at the House of Corrections,
he was asked, "What do you wanna talk to us about?"
And he said, he merely said,
"Lacrosse gave Gomez some autopsy photos.
This makes me think he may have killed that girl."
And yet, by the time he was interviewed two months later,
he said, "Oh, I spoke with Lacrosse
about the crimes 10 times, and he told me,"
and then he listed all these, "and he told me he killed her.
He told me he brought the knife with him,
and I wrote all these notes down contemporaneously,
you know, right after he confessed to me.
All these different times I wrote it down."
He was never impeached with the fact that he didn't,
after trying for multiple times
to get in touch with the authorities,
he never told Corporal Silva, "Oh, he confessed to me."
He just said, "There was this photograph,
and it makes me think," and-
-: In the cross-examination of Santiago,
does that get into the fact
that he's like a professional snitch,
you know, that he's done this multiple times?
-: He wasn't the professional snitch.
-: Gomez -: Gomez
-: was the professional, okay. was the professional snitch.
Santiago had the written agreement.
Gomez was facing jail time
at the time he gave the statements.
He was not facing-
-: Gomez was serving a sentence.
-: Yes, serving his sentence. -: Santiago was pretrial.
-: Right, right, exactly. Yeah, yeah.
And I do just wanna say that the mental health defense
was worsened by the improper oral closing argument
of the prosecutor where she mocked, without a basis,
Rosmarin's, Dr. Rosmarin's, you know, failure to say
that he saw something on the video that he didn't
and arguing that he's just pretending he didn't see it.
-: I didn't understand that argument.
I didn't understand what the prosecutor was trying to do,
and so I don't have a basis for analyzing the effect.
-: Okay, so what the prosecutor tried
to do during cross-examination-
-: Right, she showed him the video, says,
"Hey, can't you see"- -: "Can't you see
he's holding something in his hand?"
-: And and he says, "I don't know."
-: "I can't make that out in that grainy photo."
The objection was sustained.
She tried to ask him that again.
The second objection was against sustained.
She argued it as if that was evidence that he-
-: Well, can't she just say to the jury, "Look at the video"?
"If he's holding something, then he's not to be believed."
-: Right, but she mocked him instead
and made it sound like -: She said-
-: He was denying seeing something
that was so obvious when it-
-: Was it her sarcastic tone that's the problem?
-: Well, what we know is that she also argued that same time
that the two experts were pretending and not acknowledging
that Lacrosse had lied to the policeman.
He was being questioned afterwards,
and they intentionally ignore all that
because that's what they're paid to do.
They're paid to give the testimony they gave.
-: That they were paid for their opinion, right?
-: Right, and so what she said-
-: I mean, we've said, "You can't say the word."
The forbidden word is hired gun. You can dance around it.
-: Well, this was mocking them
and arguing facts not in evidence,
arguing that they never acknowledged that he lied when,
throughout their testimony, they said,
"Yes, he lied to the police.
He was trying to hide the fact he committed the crime-"
-: That's relevant to the criminal responsibility test.
-: Right, so she's arguing that they're pretending to,
they're ignoring important evidence in order to give a-
-: Right, but if you have an expert who chooses not
to believe that someone is being deceptive,
that they appreciate the wrongfulness
of their conduct by being deceptive, isn't that fair game?
-: That's not what she was saying though.
She was saying they ignored that he lied to the police.
She said he flat out lied to the police multiple times
and the experts ignored that.
-: Right, but that's- -: They didn't ignore it.
They explained why it had nothing to do
with his mental state at the time of the crime
and why they determined that when he was talking to them
and talking about his mental health history,
that he was not lying because they did all these tests
about whether he was malingering or not.
-: Okay. Thank you. -: Thank you.
-: Attorney Wendel.
-: Good morning. May it please the court.
ADA John Wendel on behalf of the Commonwealth.
Starting with the matter of the informants,
our law is very clear.
Informants are permitted to testify. They simply are.
-: Could you go through what was cross-examined
on these informants and what was left out?
-: (sighs) Well, so they're cross-examined.
Gomez is cross-examined extensively
regarding his memory problems
that he has as a result of a head injury,
his history as a professional snitch,
the fact that he is actually, at the time of trial,
in protective custody by the Commonwealth
because of a threat from one of these prior instances
of being a professional snitch.
There's extensive discussion of his criminal history.
He is questioned about making prior inconsistent statements.
He denies having done so-
-: But there's no follow up impeachment?
-: There is no follow up impeachment specifically
regarding those prior inconsistent statements with another.
I do acknowledge that. -: So that key statement
that Gomez doesn't bring up the crazy card
with the police officer, but then he testifies to it,
there's no cross-examination on that point?
-: I don't recall what specifically was asked about that.
In any case, he is questioned. He is impeached very heavily.
He's not impeached specifically
about prior inconsistent statements
except for the abort of attempts, but he is impeached,
and our law is very clear, again,
that in failure to impeach at all
is generally not ineffective.
It is generally- -: Well, it depends.
We have Commonwealth versus Ly, L-Y,
Commonwealth versus Lane.
-: Right, there are circumstances in which failure
to impeach may be ineffective,
but that is failure to impeach in any regard at all.
Where an attorney undertakes impeachment,
they're not required to impeach
in a particular means by a particular manner.
So because trial counsel impeached
through use of the prior convictions
of prior criminal history in Gomez's case,
the lack of memory, and I'll note with Santiago,
he was impeached through use of his own notes,
which he said he had taken several notes
regarding these conversations he had with the defendant.
He was impeached with those notes,
the fact that they didn't mention certain details.
He was questioned. "Well, why doesn't it say this?
Why doesn't it say this?
It doesn't say that anywhere, does it?"
So he was impeached through use
of his prior inconsistency statements.
-: Right, but they've upped the ante a little bit
with the science.
They're saying, "Okay."
I haven't read these these studies yet,
but so they're saying, "Okay, jailhouse snitches,
despite sort of the obvious and despite Ciampa,
are credited unless you show they're lying about the case,"
and here, there's something significant
to have two different snitches who supposedly
haven't talked to each other bring up the crazy card, right?
But they have talked to each other,
but there's no cross-examination on that, right?
-: They've talked to each other
regarding the incident with the photographs.
There's no evidence anywhere that they talk
to each other about anything else, and-
-: I've read her reply brief, and, again,
I haven't read the whole record here.
So she suggests that Gomez, I think,
says they talk all the time 'cause,
is that right or not right? -: Well, they do talk.
There's no discussion of what they talk about.
He merely says that they talk.
Excuse me a moment. Page 187 of the record appendix.
Question. "Then you had a conversation after Nick left.
You had a conversation with Melvin."
Answer, "Yeah." Response, "Okay."
Further comment, "Me and Melvin,
Melvin usually used always be by my door talking to me."
He's talking about how he speaks
with Melvin Santiago on occasions.
He then gets into a discussion of things
that the defendant has told him,
and then in the defendant's-
-: But doesn't one of them testify at trial,
"We've never talked"?
-: No. -: Okay, don't say that
'cause that's what her brief suggests.
-: Santiago says, "We never talked about the case."
He agrees that they talked about the defendant,
but he says they never really talked
that much about the case aside
from this particular incident with the photographs.
-: You don't need to cross-examine the defendant,
the person who's testifying to that help,
but you talk all the time,
and you see each other all the time,
and you're both testifying in this case.
So really?
You never really talked about the crazy card before?
-: There's- -: I'm just asking.
-: There's a discussion of the manner
of what they speak about, and they both agree
that they speak about Lacrosse sometimes,
that they spoke about the photograph incident,
that Santiago warned Gomez that someone was going
to come and speak to him about the photograph incident.
All of that is brought out,
and there's no evidence that they have ever talked
about the case any further than that,
and I'll note in the reply brief-
-: Even though they're both gonna be witnesses,
both gonna be bringing up sort of critical testimony
that this thing is made up, they never talk about that.
-: There's no evidence for that.
-: I know, but the cross-examination you still think
is gonna be adequate on this point, despite,
we'll get to the science later,
but we don't have any cross-examination
that shows they did actually talk all the time,
and this crazy card thing is made up for the first time,
not made up.
Gomez brings it up at trial,
even though he has not brought it up previously,
or I can't remember, Santiago, I may have them backwards.
-: Santiago did bring it up previously.
The cross-examination trial counsel expressed his opinion
that there was really nothing else to do with these two
because it was so obvious to him
that they were so completely non-credible,
he couldn't see how any juror
could ever believe these individuals, and that's-
-: Then that takes us to the science that, again,
why don't you comment a little on the science.
She's saying we've got multiple experts,
I don't know the extent of these studies,
that show that jailhouse snitches
are credited despite instructions,
although I don't know if they say despite instructions,
unless they're shown to be lying in the case.
-: Well, so the fundamental problem with that,
the evidence that we have for that-
-: I'm just talking about the science.
Do you wanna address the science a little bit or no?
-: Well, the only answer I can give regarding the science
is that the only evidence we have regarding
what the science is the testimony of Dr. Neuschatz,
and Dr. Neuschatz's own credibility is in question.
I cross-examined him extensively regarding his bias.
He's uninformed. He stated that-
-: I don't know. I read again.
He's a professor where? Sorry, he's a-
-: Alabama.
Huntsville, Alabama. -: So he's Alabama,
Huntington, I mean Birmingham.
He's published a bunch of articles.
Just because he testifies always for the defense,
he feels the science shows
that jailhouse snitches are misunderstood.
Isn't he testifying consistent with his science?
-: He's also uninformed regarding the law of Massachusetts.
He has no idea what Ciampa says.
He has no idea if his instruction that he gave
in these experimental scenarios has any correlation
to the Ciampa instruction,
which was given in this case regarding Santiago,
and I'll note regarding Gomez,
Gomez was not a cooperating witness,
and Dr. Neuschatz believed he was.
-: When asked about Ciampa, what did he say about Ciampa?
-: He said he was not familiar with it.
-: And I take it you read it to him.
Is that the instruction he wants given or not?
-: I didn't actually read it to him.
I asked him if he was familiar with it, asked him if he was,
he said there was something about Connecticut cases.
I asked him which cases from Connecticut.
He could not recall what the cases were from Connecticut.
There was effectively no information at this hearing
that we had regarding what instruction was actually given.
We don't know fundamentally from Dr. Neuschatz,
and I'll say even assuming that the trial judge
was required to credit Dr. Neuschatz,
which he was not required to credit Dr. Neuschatz,
he had the right to discredit his testimony.
-: He didn't make a finding either way on that, right?
-: He didn't.
-: Judge Mason, he doesn't say anything about that.
He just says, "The issue of credibility
of snitches is for the jury," right?
-: Yes. -: Which may be our law
as long as you give the Ciampa instruction.
-: Yeah. That that is our law.
-: But she's got a two-part argument.
I think she's saying it was ineffective,
I guess not to bring up the science at trial
and cross-examine consistent with the science.
-: Well, again,
that goes back to the ordinary fallible attorney,
and there is no clairvoyance requirement.
He's going off of the law as the law is,
and the law as it is that informants
are permitted to testify,
that credibility of any witness is for the jury.
We do not have credibility hearings
to determine preliminarily
whether the witness is testifying credibly,
and impeachment may be done by any of a number of means
and is a strategic decision left to trial counsel.
-: I don't know if you're done.
-: Go ahead. -: Can I ask
about the closing argument? -: Yes.
-: There was one portion of the closing argument
that seems problematic,
the cross-examination of the defendant.
He testifies to this dissociative period,
and he snaps out of it at one point after the murder
and then when he appears on the surveillance tape.
And the prosecutor says, well,
something like, "Well, isn't that convenient?
It matches the video,"
and the problem with that is the inference
that the defendant who has a right to be present at trial,
is tailoring his testimony to the trial evidence.
-: Right.
The requirement that we avoid arguments about tailoring,
we're allowed to make that argument
if there's an evidentiary basis for that.
The cases where tailoring is said to be improper
is where there is no evidence that the defendant had access
to the discovery prior to trial, where there's no evidence
that the defendant's statement has modified over time.
Where there is evidence that the defendant had access
to the discovery, which both Dr. Fife
and Dr. Rosmarin testified that yes,
the defendant had access to the discovery
in this case prior to speaking to us.
Where there's evidence of that and evidence
of the statement modifying over time,
we are permitted to argue that the defendant
has tailored his testimony in some respect-
-: What modified over time?
'Cause the only other statement he gives
is the one to the police where he denies everything.
-: He gives fundamentally, I would say,
five statements that are at issue here.
He gives the statement to the police,
which itself modifies over the course of the interview.
He starts with, "I wasn't there.
I haven't seen her in weeks. I shaved three days ago.
I don't know what you're talking about.
What do you mean you saw a video of me with a beard?"
Then later on, he admits that,
"Oh, no, actually, I shaved this morning."
So he changes his statement while speaking to the police.
He then gives statements to the three experts,
and those statements
are themselves different from each other,
and then he gives a slightly modified variation again
at trial.
So he gives fundamentally five different statements,
and there is evidence between the first statement
to the police, the later statement to Dr. Fife,
and then ultimately his statement at trial,
there is evidence that he is modifying his statement
and making it more self interested and, in some respects,
more consistent with the discovery.
So the argument of tailoring is permissible
in the particular circumstances.
And I'll just briefly mention with regard to the argument
that the experts are ignoring evidence,
there are multiple instances-
-: Before you leave Justice Gaziano's thing,
I'm not sure I understood how he conforms to the video.
Explain that a little bit. I just couldn't follow it, yeah.
-: He initially makes the statement, "I wasn't there.
You know, I was two miles away.
I had nothing to do with this.
I have no idea what you're talking about. I was home."
-: But there's something particular
to the timing of the video.
He does something in the video, and then his testimony,
I just couldn't follow it.
-: Well, the statement that he makes is that he leaves,
wakes up, if you will, on the corner,
realizes that something terrible must've happened,
and goes back inside. -: To pick up the knife.
-: Well, that's the statement to Dr. Fife is,
"I went back in to pick up the knife."
The statement to the other experts is,
"I went back in because I thought something terrible
must've happened."
-: And when the prosecutor in closing is talking
about the video and how he modifies his testimony
to be consistent with the video,
what is the prosecutor saying?
-: She doesn't actually say he's modifying his testimony
to be consistent with the video.
She says, you know, "He gives this statement.
Doesn't that just fit so perfectly
with the evidence that we have here?"
Which I don't recall. I apologize, I read it yesterday.
I don't recall her specifically referencing the video.
She just says, "Isn't this so convenient?
Doesn't it match the evidence so perfectly?
Remember, Dr. Fife told you he had access
to the evidence before trial," which that's an argument
that it's very convenient the way that his testimony now,
which is drastically different from the statement
that he made to the police,
meshes with the Commonwealth's evidence,
and hey, he had access to that evidence prior to trial.
He knew what we were gonna present.
You've heard testimony that he knew exactly
what we were gonna present."
So there's actually no direct argument
that he's modifying his statement.
It's an argument that it's convenient and it meshes,
which is permissible in the circumstances.
So just briefly regarding the two experts
in the argument that they're ignoring evidence,
that's a fair argument in the circumstances.
There are multiple things that they say that amount to,
"I chose not to factor that into my decision"-
-: It's an argument about cherry picking, in a sense.
-: Yes.
So, for example, Dr. Deters,
pages 125 to 126 of the May 16th transcript,
he's asked whether he asked the defendant
where he ever got the knife from, and he says,
"No, I didn't think it was relevant."
-: What about the testimony or the argument
about the defendant having something in his hand
where the questions were sustained?
-: So- -: So they were sustained.
They didn't come into evidence, correct?
-: The objections were sustained as to the questions.
"You didn't see him carrying anything,"
but he's asked, "Did you notice his hands?"
And he says, "No, I didn't notice anything about his hands."
And I know the court has a copy of that exhibit.
It was transferred.
The defendant's hands are,
with all due respect to the expert,
the most noticeable thing about that video.
Initially, his hands are up, then they're down by his sides,
and then they're up again later in the final clip, so-
-: The inference that he's carrying the knife?
-: That would be a permissible inference.
That is the inference that my colleague argued, certainly.
You know, "Doesn't this evidence
that he is carrying something away?"
"Oh, I didn't notice anything about his hands,"
is the statement, and his hands, they start up,
then they're down, then they're up again.
-: Why were the questions sustained?
-: I think in the circumstance-
-: Isn't it asked and answered a couple of times
and then the judge gets fed up?
I thought you- -: That is part of it.
I think there's also an argument being made
by trial counsel that this is a characterization
which we're permitted to make that characterization
in closing argument but aren't necessarily permitted
to do that in questioning a witness.
I read that and went,
and I don't know what the basis
for sustaining that objection was, to be honest.
I think it's because it's improper characterization-
-: Of a video. -: A video.
-: Improper narrative of a video?
-: That would be my understanding of the basis
for the objection that was sustained.
I see I'm nearly out of time,
unless there are any further questions.