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SJC 13080, Commonwealth versus Nickolas Lacrosse.
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Okay, Attorney Caddick.
Yes.
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May it please the court,
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Elizabeth Caddick for Nickolas Lacrosse.
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In this case, Mr. Lacrosse raised a mental health defense.
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That defense was supported by two expert witnesses,
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a neuropsychologist and a psychiatrist,
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who stated that he had an episode
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of dissociative amnesia at the time of the crime.
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This was supported by previous instances
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of dissociative amnesia by Mr. Lacrosse prior to this crime.
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There were witnesses who testified at trial
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and witnesses that the experts had spoken to personally.
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So in order to defeat this,
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the Commonwealth called two jailhouse informants,
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and what the jury was not told
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is that these jailhouse informants
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had previously made contradictory statements
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to investigators beforehand and that they had collaborated
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with each other and had spoken
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about Mr. Lacrosse and the crime.
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What do we do with the ineffective assistance argument
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where the very experienced defense attorney says,
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essentially, "Well," he said,
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"I didn't want to beat a dead horse," you know, his words,
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and he also says that, and we look at the record,
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we have lots of impeachment
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of both these witnesses in multiple areas,
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and then we have the trial judge saying
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that what the trial lawyer did was reasonable,
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and you have a tough row to hoe for failure to impeach.
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So-
I disagree.
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What the lawyer did was he impeached
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with their prior convictions,
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which is, you know, standard fare,
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and, of course, we know they're in jail.
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They have convictions.
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What he didn't do is impeach them
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with their contradictory statements
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that they had made before.
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And their statements at trial,
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which were different than their previous statements,
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were much more prejudicial, much more detailed,
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and now matched each other's testimony whereas before,
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they contradicted each other when they
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were speaking with investigators at different times.
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When you say much more contradictory,
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did he cross-examine
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with prior inconsistent statements at all,
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or just not
No.
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to the extent that-
well, okay.
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He cross-examined them, but he didn't impeach them.
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What he did is he asked Gomez,
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"Well, you never told the investigators before
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that the Lacrosse said he was going to play the crazy card,"
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and Gomez said, "Oh, yes I did,"
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and the defense attorney didn't perfect the impeachment
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by asking the investigator who interviewed Gomez
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and had written the report, and it was in the transcript.
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So there was a written report
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and then a later interview that was on a transcript.
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He never said that,
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and so he didn't complete the impeachment
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by saying to the investigator who was there both times,
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"Well, he never said that Lacrosse
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was going to play the crazy card."
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So he may have questioned him about it.
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It was worse than if he hadn't asked it
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because Gomez was allowed to self corroborate and say,
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"Oh, yes, I did say it before."
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He did the same thing with Santiago.
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He had asked Santiago about whether he had said something
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before that was contradictory to what he testified.
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Well, Santiago had previously said he
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was going to play the crazy card, right?
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Right, right.
Unlike Gomez,
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Santiago had actually made the point.
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He was testifying consistently on that point, right?
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Right, right, and when he was asked a question
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by the defense attorney about,
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"Well, didn't you speak with Gomez about this?"
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Or he had asked him something that, clearly,
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he had said differently at trial, and Santiago said,
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"Oh, no, I had said that," and again,
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the defense attorney didn't perfect the impeachment
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by asking the investigator who testified later
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to confirm the impeachment of Santiago.
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So he not impeach the witnesses
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with their prior inconsistent statements,
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which is the most powerful way and really the only way
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to defeat the jury's belief that jailhouse informants
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are testifying truthfully.
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But where does that come from?
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What's that grounded in, statement that you just made,
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that juries generally believe jailhouse informants?
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Absolutely.
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There's multiple areas of research that show
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that juries believe jailhouse informants.
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Three main reasons.
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One is they believe they're already vetted
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by the Commonwealth.
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The Commonwealth would never put them
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on the stand unless they were vetted.
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The other is because they believe,
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even though they're told that they
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may have some consideration
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by the Commonwealth for their testimony,
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of course, they're never told they're going to have,
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definitely gonna have some benefit,
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and so the jury believes what they say.
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Both of these jailhouse informants said
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what most jailhouse informants say.
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"Oh, I'm just doing it
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because I believe the crime was terrible
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and I'm doing it to help society,"
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and not that they're doing it for selfish reasons.
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And the third reason is because jurors
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don't have the ability
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to detect deception any better than chance,
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and so they need the assistance of proper cross-examination,
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not just cross-examination but proper cross-examination.
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And the other main reason
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that juries believe jailhouse informants
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is because they tend to have information about the facts
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that lend credibility to their testimony.
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But research has found
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that they generally get this information from other sources,
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either outside sources and tell them what's in the newspaper
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or from the defendant's own files,
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and we know here that Santiago stole-
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May I ask?
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The two main points you're making on this, right,
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are, one, that Gomez testified inconsistently
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about playing the crazy card and that Gomez
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and Santiago didn't talk to each other.
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They testified at trial.
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They didn't talk to each other or, I can't remember.
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Right.
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Santiago said they didn't talk to each other at trial,
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but Gomez had said in his previous two statements,
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"Yes, Santiago and I spoke about Lacrosse's case."
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Those are the two significant failures
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of cross-examination to you.
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Well, I disagree because at trial,
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the jury heard Gomez say,
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"When Lacrosse slipped me the autopsy photo,
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he threatened me.
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He threatened me with my life. He threatened my life."
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Correct me if I'm wrong,
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the conversation they had amongst each other
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with regard to the threat and the autopsy photographs,
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right?
Not just that
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because what Gomez had said,
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that's what the Commonwealth said,
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but, in fact, what Gomez had said is that Santiago told him
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that he'd spoken with authorities about Lacrosse
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and the crime and that they were going to talk to,
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what he said is, "I spoke to the authorities about Lacrosse,
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about the photograph.
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The authorities and my lawyer are going to talk to you."
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Gomez had said after the photograph incident,
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"Santiago and I spoke and that Santiago
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was outside my cell all the time.
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We spoke about Lacrosse and the crime multiple times."
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So the defense attorney didn't impeach Santiago with this.
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Also-
You don't have anything
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that suggests that they coordinated
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playing the crazy card, right?
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That's the-
Oh, I do, I do,
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because Gomez never said anything
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about the crazy card.
Does Gomez or Santiago
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ever say they both talked about playing the crazy card?
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Well, no, they didn't talk about specifically.
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Oh, but that's the main issue.
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That's the main purpose that it's significant, right?
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I disagree because you have one saying the crazy card,
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one not mentioning at all, and then by the time trial comes,
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they have synced their testimony,
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and we know that Santiago had said initially
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to the investigators, "I got the photograph from Gomez,"
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and they later questioned Gomez, and Gomez said,
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"Oh, he didn't get it from me.
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I don't know how he got it.
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He probably got it from Lacrosse
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because Lacrosse is always showing his discovery to people."
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But by the time the trial came,
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Santiago changed his testimony and said,
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"Oh, I got it from Lacrosse because he had," okay?
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So then we have-
And back to the question
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Justice Wendlandt asked you.
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Are there other researchers
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besides this particular researcher
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who've made these points?
Yes, yes.
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There's Natapoff who's the, she's now at Harvard,
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and she's produced probably the most research
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on jailhouse informants.
And she says
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that people trust them despite the fact
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that it's obvious they're testifying for deals?
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They're
Right, because first of all-
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convicted felons.
Right.
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And then you have Santiago denying,
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"Oh, they didn't promise me anything.
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They only told me to tell the truth.
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They only told me to tell the truth.
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That's all I have to do. I'm not promised anything."
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Yeah, but Santiago has got all kinds
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of pending charges, right?
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Gomez may not, but Santiago has tons of pending charges.
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It's obvious, he's got huge stakes in this, right?
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Yes, but research shows the jury still think the only time
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that the jury will look
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at the jailhouse informants critically
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and find them unreliable is when it was pointed out to them
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that they had lied previously in this very case,
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not that they were criminals,
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not that you might think that-
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What was the sample size?
For this-
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For the research that you're concluding
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that juries generally don't believe
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Right, well-
that jailhouse informants
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are lying unless they lie in the particular case.
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Right. Well, it-
Was the sample size
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for that conclusion?
Okay.
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There are multiple research articles that state that-
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Right, and what was the sample size for that?
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I don't remember
because it's important
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to make a generalization like that,
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that juries generally believe jailhouse informants,
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despite all of the things that Justice Kafker
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was referencing.
I agree,
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but this research was published
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in empirically validated journals, so-
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Right, and so it may have been an accurate capturing
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of their particular sample size,
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but I'm just wondering how robust it is,
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and it sounds like you don't know.
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Well, I don't know, but, I mean,
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I would take the time,
The research-
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but the-
Does that research
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include a Ciampa instruction?
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No, because the instructions don't work.
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There's also research
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that shows the instructions
Oh, so they-
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don't work.
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The only-
The Ciampa instruction's
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meaningless?
No.
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Well, yeah, because the-
You should scrutinize
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with great care what this person has to say?
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Right, because it's not enough, and the research,
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they looked at the strongest jury instruction
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is in Connecticut.
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You know, they have these mock juries,
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and they give them the scenarios,
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and then they give them this jury instruction,
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and it doesn't help them.
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Whether they have the jury instruction or don't,
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the guilty findings are the same.
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It's only impeachment,
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and just to get back to just very quickly-
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But back before you leave that though.
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He doesn't put in all this science,
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but is any court saying that the failure
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to put in this kind of jailhouse science is ineffective?
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Anyone around the country?
No, no.
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00:12:59.115 --> 00:13:00.450
So are you asking us to make-
266
00:13:00.450 --> 00:13:01.419
I'm not asking-
267
00:13:01.419 --> 00:13:02.252
Well, let me finish the question.
268
00:13:02.252 --> 00:13:03.085
Sorry. I'm sorry.
Are you asking us
269
00:13:03.085 --> 00:13:05.163
to change the law here?
270
00:13:07.667 --> 00:13:09.717
What is it that's gonna make this failure
271
00:13:10.680 --> 00:13:14.790
to introduce this science in this case ineffective?
272
00:13:14.790 --> 00:13:15.960
Is there a case law out there?
273
00:13:15.960 --> 00:13:19.296
'Cause again, we have the Ciampa instruction.
274
00:13:19.296 --> 00:13:21.458
We have lots of other things here. Go ahead.
275
00:13:21.458 --> 00:13:22.590
Okay, first of all,
276
00:13:22.590 --> 00:13:26.593
of course I didn't argue that he didn't put the research in.
277
00:13:30.420 --> 00:13:33.237
I'm arguing he didn't properly impeach them.
278
00:13:33.237 --> 00:13:37.020
Well, but without the research, it's not ineffective.
279
00:13:37.020 --> 00:13:39.090
I'm sorry. Just to get the parameters.
280
00:13:39.090 --> 00:13:41.337
You're arguing two things.
281
00:13:41.337 --> 00:13:42.689
One is ineffective assistance
282
00:13:42.689 --> 00:13:44.100
of counsel for failure to impeach,
283
00:13:44.100 --> 00:13:46.470
but you're also arguing that the judge erred
284
00:13:46.470 --> 00:13:49.743
in allowing the unreliable testimony into evidence.
285
00:13:51.300 --> 00:13:52.133
I did not.
286
00:13:53.117 --> 00:13:54.101
What I argued is that-
But it is.
287
00:13:54.101 --> 00:13:57.870
Okay, what I argued was that it was an unfair trial
288
00:13:57.870 --> 00:14:02.870
to have unreliable jailhouse informants testify, and-
289
00:14:04.792 --> 00:14:05.625
I was actually struck by your brief
290
00:14:05.625 --> 00:14:07.980
'cause it was inadmissible
291
00:14:07.980 --> 00:14:11.310
and the judge erred by allowed unreliable testimony.
292
00:14:11.310 --> 00:14:13.733
No.
Unless I read it wrong.
293
00:14:13.733 --> 00:14:15.180
Oh, no.
294
00:14:15.180 --> 00:14:20.180
It was that the trial attorney knew for over a year
295
00:14:21.420 --> 00:14:24.270
that these jailhouse informants were going to testify.
296
00:14:24.270 --> 00:14:27.270
He knew what their statements were before,
297
00:14:27.270 --> 00:14:30.420
he knew their only purpose was to defeat his only defense,
298
00:14:30.420 --> 00:14:33.050
which was the mental health defense,
299
00:14:33.050 --> 00:14:34.650
and yet he still was not prepared
300
00:14:34.650 --> 00:14:39.480
to properly impeach them with their lies.
301
00:14:41.992 --> 00:14:43.440
Because you said it was the introduction
302
00:14:43.440 --> 00:14:45.960
of unreliable jailhouse informant testimony
303
00:14:45.960 --> 00:14:47.760
was a deprivation of due process,
304
00:14:47.760 --> 00:14:49.260
and then you give the factors,
305
00:14:49.260 --> 00:14:52.536
and then you go into ineffective assistance, right?
306
00:14:52.536 --> 00:14:55.242
Right, right, and-
I don't wanna split hairs.
307
00:14:55.242 --> 00:14:57.614
The brief says what it says.
Oh, okay. All right.
308
00:14:57.614 --> 00:15:02.614
And the motion judge had said that,
309
00:15:03.279 --> 00:15:04.350
"Well, it's up to, yes,
310
00:15:04.350 --> 00:15:09.350
the crazy card testimony was very powerful and helpful to,"
311
00:15:10.848 --> 00:15:11.982
I don't know if you said very powerful.
312
00:15:11.982 --> 00:15:13.800
"It was helpful, very helpful to the Commonwealth,
313
00:15:13.800 --> 00:15:15.150
but it's up to the jury
314
00:15:15.150 --> 00:15:17.730
to determine the veracity of witnesses."
315
00:15:17.730 --> 00:15:20.460
Well, the jury didn't have what they needed
316
00:15:20.460 --> 00:15:24.157
to determine the veracity of these witnesses, and on 33E,
317
00:15:26.612 --> 00:15:31.067
this court looks at whether the defense counsel's failure
318
00:15:33.120 --> 00:15:37.650
to impeach could have had an effect
319
00:15:37.650 --> 00:15:39.825
on the jury's conclusion.
Right, just-
320
00:15:39.825 --> 00:15:41.790
Well, it could have. We have research that shows that.
321
00:15:41.790 --> 00:15:45.033
No matter how we look at it, whether it's unreliable,
322
00:15:46.215 --> 00:15:48.090
your argument is it was ineffective,
323
00:15:48.090 --> 00:15:50.160
and you are saying that,
324
00:15:50.160 --> 00:15:52.570
because of inherent untrustworthiness
325
00:15:53.852 --> 00:15:56.850
of the informant testimony, it was overly prejudicial.
326
00:15:56.850 --> 00:15:59.514
Right, and we know how prejudicial it was
327
00:15:59.514 --> 00:16:00.347
because of the research.
328
00:16:00.347 --> 00:16:02.793
Right, that that's how you show prejudice.
329
00:16:03.810 --> 00:16:06.671
Even though there were two expert witnesses
330
00:16:06.671 --> 00:16:10.113
on the other side saying that he actually did have an issue?
331
00:16:11.130 --> 00:16:14.400
Well, there was one expert for the Commonwealth.
332
00:16:14.400 --> 00:16:16.860
Okay.
So, right, Dr. Fife.
333
00:16:16.860 --> 00:16:21.090
Okay, but Rosmarin said that he had-
334
00:16:21.090 --> 00:16:25.077
That he did not suffer from dissociative amnesia.
335
00:16:25.077 --> 00:16:26.430
She also said he didn't-
Well, Fife did.
336
00:16:26.430 --> 00:16:28.290
Fife.
Rosmarin's-
337
00:16:28.290 --> 00:16:33.290
Oh, Rosmarin and Deters had testified for Mr. Lacrosse.
338
00:16:35.940 --> 00:16:38.190
Right, so two expert witnesses.
339
00:16:38.190 --> 00:16:40.258
Right. Oh yeah. I'm sorry.
340
00:16:40.258 --> 00:16:44.170
Yeah, and they had well-founded opinions
341
00:16:46.260 --> 00:16:49.950
because of his prior instances,
342
00:16:49.950 --> 00:16:52.870
and they had done extensive testing.
343
00:16:52.870 --> 00:16:54.840
So the jury had that, had all of that information.
344
00:16:54.840 --> 00:16:55.710
Right. (laughs)
345
00:16:55.710 --> 00:16:58.710
Right, they did, and then they had the jailhouse informants
346
00:16:58.710 --> 00:17:00.148
come and say,
347
00:17:00.148 --> 00:17:02.866
"Oh, he said he was just gonna play the crazy card.
348
00:17:02.866 --> 00:17:06.090
He hatched this up with his mother,"
349
00:17:06.090 --> 00:17:10.725
and according to Gomez at trial,
350
00:17:10.725 --> 00:17:13.169
"Oh, he told me his mother hid the knife,"
351
00:17:13.169 --> 00:17:16.770
and yet before at the questioning,
352
00:17:16.770 --> 00:17:18.840
he said he didn't know what happened to the knife,
353
00:17:18.840 --> 00:17:20.347
and he was specifically asked,
354
00:17:20.347 --> 00:17:22.897
"Did Lacrosse tell you what happened to the knife?"
355
00:17:22.897 --> 00:17:24.423
"No, he didn't."
Can I ask?
356
00:17:26.712 --> 00:17:30.220
I understand on the failure to cross-examine Gomez.
357
00:17:30.220 --> 00:17:31.560
I understand your point on that. I'm not sure it's there.
358
00:17:31.560 --> 00:17:36.328
But what is there on Santiago that he could've used?
359
00:17:36.328 --> 00:17:38.290
'Cause Santiago testifies consistently
360
00:17:39.460 --> 00:17:42.600
that Lacrosse said he was gonna play the crazy card.
361
00:17:42.600 --> 00:17:47.600
So what is it that should've been asked Santiago
362
00:17:47.701 --> 00:17:48.810
that wasn't?
Well,
363
00:17:48.810 --> 00:17:52.590
to show that he lied about how he obtained the photo.
364
00:17:52.590 --> 00:17:54.225
So what?
365
00:17:54.225 --> 00:17:56.804
The photo doesn't deal with playing the crazy-
366
00:17:56.804 --> 00:17:58.440
It shows he's a liar is what it does.
367
00:17:58.440 --> 00:18:01.413
It shows he's a liar, and so then the jury can say.
368
00:18:03.008 --> 00:18:07.380
He initially, after asking multiple times to speak
369
00:18:07.380 --> 00:18:12.003
with the authorities at the House of Corrections,
370
00:18:14.171 --> 00:18:17.160
he was asked, "What do you wanna talk to us about?"
371
00:18:17.160 --> 00:18:19.653
And he said, he merely said,
372
00:18:21.151 --> 00:18:23.880
"Lacrosse gave Gomez some autopsy photos.
373
00:18:23.880 --> 00:18:28.237
This makes me think he may have killed that girl."
374
00:18:28.237 --> 00:18:32.792
And yet, by the time he was interviewed two months later,
375
00:18:32.792 --> 00:18:34.620
he said, "Oh, I spoke with Lacrosse
376
00:18:34.620 --> 00:18:39.405
about the crimes 10 times, and he told me,"
377
00:18:39.405 --> 00:18:41.730
and then he listed all these, "and he told me he killed her.
378
00:18:41.730 --> 00:18:43.923
He told me he brought the knife with him,
379
00:18:45.780 --> 00:18:49.811
and I wrote all these notes down contemporaneously,
380
00:18:49.811 --> 00:18:51.120
you know, right after he confessed to me.
381
00:18:51.120 --> 00:18:53.460
All these different times I wrote it down."
382
00:18:53.460 --> 00:18:57.600
He was never impeached with the fact that he didn't,
383
00:18:57.600 --> 00:18:59.820
after trying for multiple times
384
00:18:59.820 --> 00:19:01.530
to get in touch with the authorities,
385
00:19:01.530 --> 00:19:05.640
he never told Corporal Silva, "Oh, he confessed to me."
386
00:19:05.640 --> 00:19:07.950
He just said, "There was this photograph,
387
00:19:07.950 --> 00:19:11.386
and it makes me think," and-
388
00:19:11.386 --> 00:19:12.330
In the cross-examination of Santiago,
389
00:19:12.330 --> 00:19:13.860
does that get into the fact
390
00:19:13.860 --> 00:19:16.895
that he's like a professional snitch,
391
00:19:16.895 --> 00:19:18.120
you know, that he's done this multiple times?
392
00:19:18.120 --> 00:19:19.590
He wasn't the professional snitch.
393
00:19:19.590 --> 00:19:21.082
Gomez
Gomez
394
00:19:21.082 --> 00:19:22.050
was the professional, okay.
was the professional snitch.
395
00:19:22.050 --> 00:19:24.840
Santiago had the written agreement.
396
00:19:24.840 --> 00:19:27.180
Gomez was facing jail time
397
00:19:27.180 --> 00:19:29.313
at the time he gave the statements.
398
00:19:30.574 --> 00:19:31.860
He was not facing-
399
00:19:31.860 --> 00:19:33.300
Gomez was serving a sentence.
400
00:19:33.300 --> 00:19:35.087
Yes, serving his sentence.
Santiago was pretrial.
401
00:19:35.087 --> 00:19:38.523
Right, right, exactly. Yeah, yeah.
402
00:19:40.348 --> 00:19:45.348
And I do just wanna say that the mental health defense
403
00:19:48.811 --> 00:19:53.811
was worsened by the improper oral closing argument
404
00:19:53.940 --> 00:19:58.413
of the prosecutor where she mocked, without a basis,
405
00:20:03.023 --> 00:20:06.060
Rosmarin's, Dr. Rosmarin's, you know, failure to say
406
00:20:06.060 --> 00:20:08.940
that he saw something on the video that he didn't
407
00:20:08.940 --> 00:20:13.110
and arguing that he's just pretending he didn't see it.
408
00:20:13.110 --> 00:20:14.910
I didn't understand that argument.
409
00:20:17.670 --> 00:20:20.687
I didn't understand what the prosecutor was trying to do,
410
00:20:20.687 --> 00:20:23.430
and so I don't have a basis for analyzing the effect.
411
00:20:23.430 --> 00:20:25.980
Okay, so what the prosecutor tried
412
00:20:25.980 --> 00:20:27.930
to do during cross-examination-
413
00:20:27.930 --> 00:20:29.377
Right, she showed him the video, says,
414
00:20:29.377 --> 00:20:30.750
"Hey, can't you see"-
"Can't you see
415
00:20:30.750 --> 00:20:32.850
he's holding something in his hand?"
416
00:20:32.850 --> 00:20:34.567
And and he says, "I don't know."
417
00:20:34.567 --> 00:20:38.130
"I can't make that out in that grainy photo."
418
00:20:38.130 --> 00:20:39.480
The objection was sustained.
419
00:20:39.480 --> 00:20:41.922
She tried to ask him that again.
420
00:20:41.922 --> 00:20:43.410
The second objection was against sustained.
421
00:20:43.410 --> 00:20:47.880
She argued it as if that was evidence that he-
422
00:20:47.880 --> 00:20:51.627
Well, can't she just say to the jury, "Look at the video"?
423
00:20:53.920 --> 00:20:56.610
"If he's holding something, then he's not to be believed."
424
00:20:56.610 --> 00:20:58.320
Right, but she mocked him instead
425
00:20:58.320 --> 00:21:00.570
and made it sound like
She said-
426
00:21:02.955 --> 00:21:03.810
He was denying seeing something
427
00:21:03.810 --> 00:21:05.403
that was so obvious when it-
428
00:21:06.334 --> 00:21:08.526
Was it her sarcastic tone that's the problem?
429
00:21:08.526 --> 00:21:12.120
Well, what we know is that she also argued that same time
430
00:21:12.120 --> 00:21:17.120
that the two experts were pretending and not acknowledging
431
00:21:19.740 --> 00:21:22.593
that Lacrosse had lied to the policeman.
432
00:21:22.593 --> 00:21:24.240
He was being questioned afterwards,
433
00:21:24.240 --> 00:21:26.790
and they intentionally ignore all that
434
00:21:26.790 --> 00:21:28.773
because that's what they're paid to do.
435
00:21:30.171 --> 00:21:32.640
They're paid to give the testimony they gave.
436
00:21:32.640 --> 00:21:34.620
That they were paid for their opinion, right?
437
00:21:34.620 --> 00:21:36.791
Right, and so what she said-
438
00:21:36.791 --> 00:21:39.545
I mean, we've said, "You can't say the word."
439
00:21:39.545 --> 00:21:43.560
The forbidden word is hired gun. You can dance around it.
440
00:21:43.560 --> 00:21:46.180
Well, this was mocking them
441
00:21:47.499 --> 00:21:49.260
and arguing facts not in evidence,
442
00:21:49.260 --> 00:21:54.260
arguing that they never acknowledged that he lied when,
443
00:21:55.642 --> 00:21:56.917
throughout their testimony, they said,
444
00:21:56.917 --> 00:22:00.127
"Yes, he lied to the police.
445
00:22:00.127 --> 00:22:03.120
He was trying to hide the fact he committed the crime-"
446
00:22:03.120 --> 00:22:06.690
That's relevant to the criminal responsibility test.
447
00:22:06.690 --> 00:22:11.289
Right, so she's arguing that they're pretending to,
448
00:22:11.289 --> 00:22:14.866
they're ignoring important evidence in order to give a-
449
00:22:14.866 --> 00:22:17.640
Right, but if you have an expert who chooses not
450
00:22:17.640 --> 00:22:21.840
to believe that someone is being deceptive,
451
00:22:21.840 --> 00:22:23.490
that they appreciate the wrongfulness
452
00:22:23.490 --> 00:22:27.772
of their conduct by being deceptive, isn't that fair game?
453
00:22:27.772 --> 00:22:28.919
That's not what she was saying though.
454
00:22:28.919 --> 00:22:32.780
She was saying they ignored that he lied to the police.
455
00:22:32.780 --> 00:22:36.180
She said he flat out lied to the police multiple times
456
00:22:36.180 --> 00:22:39.887
and the experts ignored that.
457
00:22:39.887 --> 00:22:41.536
Right, but that's-
They didn't ignore it.
458
00:22:41.536 --> 00:22:44.310
They explained why it had nothing to do
459
00:22:44.310 --> 00:22:47.100
with his mental state at the time of the crime
460
00:22:47.100 --> 00:22:50.770
and why they determined that when he was talking to them
461
00:22:51.635 --> 00:22:54.210
and talking about his mental health history,
462
00:22:54.210 --> 00:22:57.640
that he was not lying because they did all these tests
463
00:22:58.813 --> 00:23:00.813
about whether he was malingering or not.
464
00:23:02.460 --> 00:23:04.143
Okay. Thank you.
Thank you.
465
00:23:09.458 --> 00:23:10.958
Attorney Wendel.
466
00:23:14.162 --> 00:23:14.995
Good morning. May it please the court.
467
00:23:14.995 --> 00:23:17.253
ADA John Wendel on behalf of the Commonwealth.
468
00:23:19.028 --> 00:23:21.173
Starting with the matter of the informants,
469
00:23:22.562 --> 00:23:23.731
our law is very clear.
470
00:23:23.731 --> 00:23:26.640
Informants are permitted to testify. They simply are.
471
00:23:26.640 --> 00:23:30.420
Could you go through what was cross-examined
472
00:23:30.420 --> 00:23:32.853
on these informants and what was left out?
473
00:23:33.857 --> 00:23:36.810
(sighs) Well, so they're cross-examined.
474
00:23:36.810 --> 00:23:39.270
Gomez is cross-examined extensively
475
00:23:39.270 --> 00:23:41.670
regarding his memory problems
476
00:23:41.670 --> 00:23:43.803
that he has as a result of a head injury,
477
00:23:45.204 --> 00:23:47.054
his history as a professional snitch,
478
00:23:48.120 --> 00:23:50.160
the fact that he is actually, at the time of trial,
479
00:23:50.160 --> 00:23:53.280
in protective custody by the Commonwealth
480
00:23:53.280 --> 00:23:57.270
because of a threat from one of these prior instances
481
00:23:57.270 --> 00:23:59.163
of being a professional snitch.
482
00:24:00.337 --> 00:24:02.933
There's extensive discussion of his criminal history.
483
00:24:04.694 --> 00:24:07.650
He is questioned about making prior inconsistent statements.
484
00:24:07.650 --> 00:24:09.003
He denies having done so-
485
00:24:10.986 --> 00:24:12.519
But there's no follow up impeachment?
486
00:24:12.519 --> 00:24:14.370
There is no follow up impeachment specifically
487
00:24:14.370 --> 00:24:17.952
regarding those prior inconsistent statements with another.
488
00:24:17.952 --> 00:24:21.030
I do acknowledge that.
So that key statement
489
00:24:21.030 --> 00:24:25.570
that Gomez doesn't bring up the crazy card
490
00:24:27.595 --> 00:24:30.423
with the police officer, but then he testifies to it,
491
00:24:31.890 --> 00:24:34.053
there's no cross-examination on that point?
492
00:24:35.520 --> 00:24:40.520
I don't recall what specifically was asked about that.
493
00:24:43.893 --> 00:24:48.520
In any case, he is questioned. He is impeached very heavily.
494
00:24:50.559 --> 00:24:51.450
He's not impeached specifically
495
00:24:51.450 --> 00:24:53.370
about prior inconsistent statements
496
00:24:53.370 --> 00:24:57.960
except for the abort of attempts, but he is impeached,
497
00:24:57.960 --> 00:24:59.640
and our law is very clear, again,
498
00:24:59.640 --> 00:25:04.640
that in failure to impeach at all
499
00:25:04.788 --> 00:25:06.124
is generally not ineffective.
500
00:25:06.124 --> 00:25:07.743
It is generally-
Well, it depends.
501
00:25:07.743 --> 00:25:09.390
We have Commonwealth versus Ly, L-Y,
502
00:25:09.390 --> 00:25:11.622
Commonwealth versus Lane.
503
00:25:11.622 --> 00:25:13.860
Right, there are circumstances in which failure
504
00:25:13.860 --> 00:25:16.110
to impeach may be ineffective,
505
00:25:16.110 --> 00:25:19.800
but that is failure to impeach in any regard at all.
506
00:25:19.800 --> 00:25:23.073
Where an attorney undertakes impeachment,
507
00:25:25.120 --> 00:25:26.040
they're not required to impeach
508
00:25:26.040 --> 00:25:28.953
in a particular means by a particular manner.
509
00:25:29.967 --> 00:25:32.220
So because trial counsel impeached
510
00:25:32.220 --> 00:25:34.380
through use of the prior convictions
511
00:25:34.380 --> 00:25:37.380
of prior criminal history in Gomez's case,
512
00:25:37.380 --> 00:25:42.380
the lack of memory, and I'll note with Santiago,
513
00:25:42.390 --> 00:25:44.910
he was impeached through use of his own notes,
514
00:25:44.910 --> 00:25:49.421
which he said he had taken several notes
515
00:25:49.421 --> 00:25:51.413
regarding these conversations he had with the defendant.
516
00:25:52.338 --> 00:25:53.607
He was impeached with those notes,
517
00:25:53.607 --> 00:25:54.900
the fact that they didn't mention certain details.
518
00:25:54.900 --> 00:25:56.610
He was questioned. "Well, why doesn't it say this?
519
00:25:56.610 --> 00:25:57.480
Why doesn't it say this?
520
00:25:57.480 --> 00:25:59.736
It doesn't say that anywhere, does it?"
521
00:25:59.736 --> 00:26:01.123
So he was impeached through use
522
00:26:01.123 --> 00:26:01.956
of his prior inconsistency statements.
523
00:26:01.956 --> 00:26:04.011
Right, but they've upped the ante a little bit
524
00:26:04.011 --> 00:26:05.396
with the science.
525
00:26:05.396 --> 00:26:06.300
They're saying, "Okay."
526
00:26:06.300 --> 00:26:10.153
I haven't read these these studies yet,
527
00:26:10.153 --> 00:26:14.027
but so they're saying, "Okay, jailhouse snitches,
528
00:26:14.027 --> 00:26:16.694
despite sort of the obvious and despite Ciampa,
529
00:26:16.694 --> 00:26:21.694
are credited unless you show they're lying about the case,"
530
00:26:22.633 --> 00:26:25.140
and here, there's something significant
531
00:26:25.140 --> 00:26:29.132
to have two different snitches who supposedly
532
00:26:29.132 --> 00:26:32.253
haven't talked to each other bring up the crazy card, right?
533
00:26:33.427 --> 00:26:35.601
But they have talked to each other,
534
00:26:35.601 --> 00:26:37.790
but there's no cross-examination on that, right?
535
00:26:37.790 --> 00:26:39.290
They've talked to each other
536
00:26:40.609 --> 00:26:42.540
regarding the incident with the photographs.
537
00:26:42.540 --> 00:26:44.580
There's no evidence anywhere that they talk
538
00:26:44.580 --> 00:26:47.700
to each other about anything else, and-
539
00:26:47.700 --> 00:26:50.346
I've read her reply brief, and, again,
540
00:26:50.346 --> 00:26:51.683
I haven't read the whole record here.
541
00:26:52.834 --> 00:26:57.258
So she suggests that Gomez, I think,
542
00:26:57.258 --> 00:27:00.960
says they talk all the time 'cause,
543
00:27:00.960 --> 00:27:05.075
is that right or not right?
Well, they do talk.
544
00:27:05.075 --> 00:27:06.720
There's no discussion of what they talk about.
545
00:27:06.720 --> 00:27:08.853
He merely says that they talk.
546
00:27:16.438 --> 00:27:21.438
Excuse me a moment. Page 187 of the record appendix.
547
00:27:24.306 --> 00:27:27.003
Question. "Then you had a conversation after Nick left.
548
00:27:27.003 --> 00:27:27.960
You had a conversation with Melvin."
549
00:27:27.960 --> 00:27:31.887
Answer, "Yeah." Response, "Okay."
550
00:27:33.336 --> 00:27:34.169
Further comment, "Me and Melvin,
551
00:27:34.169 --> 00:27:38.157
Melvin usually used always be by my door talking to me."
552
00:27:40.256 --> 00:27:41.089
He's talking about how he speaks
553
00:27:41.089 --> 00:27:43.650
with Melvin Santiago on occasions.
554
00:27:43.650 --> 00:27:46.680
He then gets into a discussion of things
555
00:27:46.680 --> 00:27:48.633
that the defendant has told him,
556
00:27:49.712 --> 00:27:50.719
and then in the defendant's-
557
00:27:50.719 --> 00:27:53.403
But doesn't one of them testify at trial,
558
00:27:54.542 --> 00:27:55.592
"We've never talked"?
559
00:27:56.490 --> 00:27:58.009
No.
Okay, don't say that
560
00:27:58.009 --> 00:27:59.909
'cause that's what her brief suggests.
561
00:28:03.067 --> 00:28:08.067
Santiago says, "We never talked about the case."
562
00:28:08.100 --> 00:28:10.657
He agrees that they talked about the defendant,
563
00:28:10.657 --> 00:28:11.490
but he says they never really talked
564
00:28:11.490 --> 00:28:13.800
that much about the case aside
565
00:28:13.800 --> 00:28:16.320
from this particular incident with the photographs.
566
00:28:16.320 --> 00:28:20.370
You don't need to cross-examine the defendant,
567
00:28:20.370 --> 00:28:21.990
the person who's testifying to that help,
568
00:28:21.990 --> 00:28:23.553
but you talk all the time,
569
00:28:24.402 --> 00:28:27.091
and you see each other all the time,
570
00:28:27.091 --> 00:28:28.200
and you're both testifying in this case.
571
00:28:28.200 --> 00:28:29.965
So really?
572
00:28:29.965 --> 00:28:32.650
You never really talked about the crazy card before?
573
00:28:32.650 --> 00:28:34.170
There's-
I'm just asking.
574
00:28:34.170 --> 00:28:36.150
There's a discussion of the manner
575
00:28:36.150 --> 00:28:39.690
of what they speak about, and they both agree
576
00:28:39.690 --> 00:28:42.633
that they speak about Lacrosse sometimes,
577
00:28:43.805 --> 00:28:46.800
that they spoke about the photograph incident,
578
00:28:46.800 --> 00:28:50.160
that Santiago warned Gomez that someone was going
579
00:28:50.160 --> 00:28:53.043
to come and speak to him about the photograph incident.
580
00:28:54.193 --> 00:28:55.403
All of that is brought out,
581
00:28:56.250 --> 00:29:00.120
and there's no evidence that they have ever talked
582
00:29:00.120 --> 00:29:02.612
about the case any further than that,
583
00:29:02.612 --> 00:29:04.262
and I'll note in the reply brief-
584
00:29:05.548 --> 00:29:08.418
Even though they're both gonna be witnesses,
585
00:29:08.418 --> 00:29:12.660
both gonna be bringing up sort of critical testimony
586
00:29:12.660 --> 00:29:16.953
that this thing is made up, they never talk about that.
587
00:29:18.425 --> 00:29:19.350
There's no evidence for that.
588
00:29:19.350 --> 00:29:22.470
I know, but the cross-examination you still think
589
00:29:22.470 --> 00:29:25.683
is gonna be adequate on this point, despite,
590
00:29:27.764 --> 00:29:29.152
we'll get to the science later,
591
00:29:29.152 --> 00:29:31.870
but we don't have any cross-examination
592
00:29:33.158 --> 00:29:35.553
that shows they did actually talk all the time,
593
00:29:36.866 --> 00:29:41.866
and this crazy card thing is made up for the first time,
594
00:29:43.830 --> 00:29:45.327
not made up.
595
00:29:45.327 --> 00:29:47.085
Gomez brings it up at trial,
596
00:29:47.085 --> 00:29:50.037
even though he has not brought it up previously,
597
00:29:50.037 --> 00:29:52.274
or I can't remember, Santiago, I may have them backwards.
598
00:29:52.274 --> 00:29:54.173
Santiago did bring it up previously.
599
00:29:56.929 --> 00:30:00.240
The cross-examination trial counsel expressed his opinion
600
00:30:00.240 --> 00:30:02.872
that there was really nothing else to do with these two
601
00:30:02.872 --> 00:30:03.990
because it was so obvious to him
602
00:30:03.990 --> 00:30:05.430
that they were so completely non-credible,
603
00:30:05.430 --> 00:30:07.560
he couldn't see how any juror
604
00:30:07.560 --> 00:30:11.430
could ever believe these individuals, and that's-
605
00:30:11.430 --> 00:30:16.080
Then that takes us to the science that, again,
606
00:30:16.080 --> 00:30:18.643
why don't you comment a little on the science.
607
00:30:18.643 --> 00:30:21.090
She's saying we've got multiple experts,
608
00:30:21.090 --> 00:30:23.202
I don't know the extent of these studies,
609
00:30:23.202 --> 00:30:25.020
that show that jailhouse snitches
610
00:30:25.020 --> 00:30:28.218
are credited despite instructions,
611
00:30:28.218 --> 00:30:30.143
although I don't know if they say despite instructions,
612
00:30:31.568 --> 00:30:34.525
unless they're shown to be lying in the case.
613
00:30:34.525 --> 00:30:36.330
Well, so the fundamental problem with that,
614
00:30:36.330 --> 00:30:38.280
the evidence that we have for that-
615
00:30:38.280 --> 00:30:40.126
I'm just talking about the science.
616
00:30:40.126 --> 00:30:42.021
Do you wanna address the science a little bit or no?
617
00:30:42.021 --> 00:30:45.780
Well, the only answer I can give regarding the science
618
00:30:45.780 --> 00:30:47.490
is that the only evidence we have regarding
619
00:30:47.490 --> 00:30:51.240
what the science is the testimony of Dr. Neuschatz,
620
00:30:51.240 --> 00:30:55.397
and Dr. Neuschatz's own credibility is in question.
621
00:30:55.397 --> 00:30:59.610
I cross-examined him extensively regarding his bias.
622
00:30:59.610 --> 00:31:02.670
He's uninformed. He stated that-
623
00:31:02.670 --> 00:31:04.443
I don't know. I read again.
624
00:31:07.085 --> 00:31:08.864
He's a professor where? Sorry, he's a-
625
00:31:08.864 --> 00:31:09.697
Alabama.
626
00:31:09.697 --> 00:31:11.179
Huntsville, Alabama.
So he's Alabama,
627
00:31:11.179 --> 00:31:12.679
Huntington, I mean Birmingham.
628
00:31:14.721 --> 00:31:16.471
He's published a bunch of articles.
629
00:31:17.968 --> 00:31:20.418
Just because he testifies always for the defense,
630
00:31:22.514 --> 00:31:23.673
he feels the science shows
631
00:31:23.673 --> 00:31:26.550
that jailhouse snitches are misunderstood.
632
00:31:29.508 --> 00:31:32.190
Isn't he testifying consistent with his science?
633
00:31:32.190 --> 00:31:36.750
He's also uninformed regarding the law of Massachusetts.
634
00:31:36.750 --> 00:31:38.430
He has no idea what Ciampa says.
635
00:31:38.430 --> 00:31:41.730
He has no idea if his instruction that he gave
636
00:31:41.730 --> 00:31:45.420
in these experimental scenarios has any correlation
637
00:31:45.420 --> 00:31:47.190
to the Ciampa instruction,
638
00:31:47.190 --> 00:31:50.130
which was given in this case regarding Santiago,
639
00:31:50.130 --> 00:31:51.720
and I'll note regarding Gomez,
640
00:31:51.720 --> 00:31:54.120
Gomez was not a cooperating witness,
641
00:31:54.120 --> 00:31:57.655
and Dr. Neuschatz believed he was.
642
00:31:57.655 --> 00:31:59.955
When asked about Ciampa, what did he say about Ciampa?
643
00:31:59.955 --> 00:32:00.960
He said he was not familiar with it.
644
00:32:00.960 --> 00:32:03.805
And I take it you read it to him.
645
00:32:03.805 --> 00:32:06.607
Is that the instruction he wants given or not?
646
00:32:06.607 --> 00:32:07.560
I didn't actually read it to him.
647
00:32:07.560 --> 00:32:10.742
I asked him if he was familiar with it, asked him if he was,
648
00:32:10.742 --> 00:32:12.150
he said there was something about Connecticut cases.
649
00:32:12.150 --> 00:32:14.490
I asked him which cases from Connecticut.
650
00:32:14.490 --> 00:32:17.340
He could not recall what the cases were from Connecticut.
651
00:32:18.748 --> 00:32:23.748
There was effectively no information at this hearing
652
00:32:25.825 --> 00:32:28.643
that we had regarding what instruction was actually given.
653
00:32:33.009 --> 00:32:36.540
We don't know fundamentally from Dr. Neuschatz,
654
00:32:36.540 --> 00:32:39.390
and I'll say even assuming that the trial judge
655
00:32:39.390 --> 00:32:41.160
was required to credit Dr. Neuschatz,
656
00:32:41.160 --> 00:32:44.701
which he was not required to credit Dr. Neuschatz,
657
00:32:44.701 --> 00:32:46.238
he had the right to discredit his testimony.
658
00:32:46.238 --> 00:32:47.758
He didn't make a finding either way on that, right?
659
00:32:47.758 --> 00:32:49.028
He didn't.
660
00:32:49.028 --> 00:32:50.640
Judge Mason, he doesn't say anything about that.
661
00:32:50.640 --> 00:32:53.130
He just says, "The issue of credibility
662
00:32:53.130 --> 00:32:55.726
of snitches is for the jury," right?
663
00:32:55.726 --> 00:32:56.940
Yes.
Which may be our law
664
00:32:56.940 --> 00:32:59.393
as long as you give the Ciampa instruction.
665
00:32:59.393 --> 00:33:01.050
Yeah. That that is our law.
666
00:33:01.050 --> 00:33:02.973
But she's got a two-part argument.
667
00:33:05.629 --> 00:33:08.313
I think she's saying it was ineffective,
668
00:33:09.240 --> 00:33:11.520
I guess not to bring up the science at trial
669
00:33:11.520 --> 00:33:16.353
and cross-examine consistent with the science.
670
00:33:17.424 --> 00:33:19.455
Well, again,
671
00:33:19.455 --> 00:33:23.163
that goes back to the ordinary fallible attorney,
672
00:33:24.600 --> 00:33:28.893
and there is no clairvoyance requirement.
673
00:33:31.000 --> 00:33:32.010
He's going off of the law as the law is,
674
00:33:32.010 --> 00:33:33.690
and the law as it is that informants
675
00:33:33.690 --> 00:33:35.313
are permitted to testify,
676
00:33:36.247 --> 00:33:40.188
that credibility of any witness is for the jury.
677
00:33:40.188 --> 00:33:41.940
We do not have credibility hearings
678
00:33:41.940 --> 00:33:43.950
to determine preliminarily
679
00:33:43.950 --> 00:33:46.140
whether the witness is testifying credibly,
680
00:33:46.140 --> 00:33:49.290
and impeachment may be done by any of a number of means
681
00:33:49.290 --> 00:33:52.173
and is a strategic decision left to trial counsel.
682
00:33:53.550 --> 00:33:55.243
I don't know if you're done.
683
00:33:55.243 --> 00:33:56.177
Go ahead.
Can I ask
684
00:33:56.177 --> 00:33:57.796
about the closing argument?
Yes.
685
00:33:57.796 --> 00:33:59.760
There was one portion of the closing argument
686
00:33:59.760 --> 00:34:01.823
that seems problematic,
687
00:34:01.823 --> 00:34:04.473
the cross-examination of the defendant.
688
00:34:05.798 --> 00:34:08.600
He testifies to this dissociative period,
689
00:34:08.600 --> 00:34:12.000
and he snaps out of it at one point after the murder
690
00:34:12.000 --> 00:34:15.243
and then when he appears on the surveillance tape.
691
00:34:17.280 --> 00:34:19.833
And the prosecutor says, well,
692
00:34:21.392 --> 00:34:22.225
something like, "Well, isn't that convenient?
693
00:34:22.225 --> 00:34:23.877
It matches the video,"
694
00:34:25.086 --> 00:34:28.320
and the problem with that is the inference
695
00:34:28.320 --> 00:34:32.282
that the defendant who has a right to be present at trial,
696
00:34:32.282 --> 00:34:35.970
is tailoring his testimony to the trial evidence.
697
00:34:35.970 --> 00:34:36.803
Right.
698
00:34:40.222 --> 00:34:42.953
The requirement that we avoid arguments about tailoring,
699
00:34:44.640 --> 00:34:46.140
we're allowed to make that argument
700
00:34:46.140 --> 00:34:48.947
if there's an evidentiary basis for that.
701
00:34:48.947 --> 00:34:51.820
The cases where tailoring is said to be improper
702
00:34:52.712 --> 00:34:56.310
is where there is no evidence that the defendant had access
703
00:34:56.310 --> 00:35:00.000
to the discovery prior to trial, where there's no evidence
704
00:35:00.000 --> 00:35:02.700
that the defendant's statement has modified over time.
705
00:35:04.406 --> 00:35:06.180
Where there is evidence that the defendant had access
706
00:35:06.180 --> 00:35:09.540
to the discovery, which both Dr. Fife
707
00:35:09.540 --> 00:35:12.270
and Dr. Rosmarin testified that yes,
708
00:35:12.270 --> 00:35:13.890
the defendant had access to the discovery
709
00:35:13.890 --> 00:35:17.100
in this case prior to speaking to us.
710
00:35:17.100 --> 00:35:19.290
Where there's evidence of that and evidence
711
00:35:19.290 --> 00:35:22.023
of the statement modifying over time,
712
00:35:23.280 --> 00:35:25.500
we are permitted to argue that the defendant
713
00:35:25.500 --> 00:35:27.630
has tailored his testimony in some respect-
714
00:35:27.630 --> 00:35:29.605
What modified over time?
715
00:35:29.605 --> 00:35:31.158
'Cause the only other statement he gives
716
00:35:31.158 --> 00:35:33.593
is the one to the police where he denies everything.
717
00:35:35.023 --> 00:35:36.180
He gives fundamentally, I would say,
718
00:35:36.180 --> 00:35:39.540
five statements that are at issue here.
719
00:35:39.540 --> 00:35:41.390
He gives the statement to the police,
720
00:35:42.291 --> 00:35:45.309
which itself modifies over the course of the interview.
721
00:35:45.309 --> 00:35:47.507
He starts with, "I wasn't there.
722
00:35:47.507 --> 00:35:51.137
I haven't seen her in weeks. I shaved three days ago.
723
00:35:51.137 --> 00:35:51.970
I don't know what you're talking about.
724
00:35:51.970 --> 00:35:54.220
What do you mean you saw a video of me with a beard?"
725
00:35:55.308 --> 00:35:56.692
Then later on, he admits that,
726
00:35:56.692 --> 00:36:00.330
"Oh, no, actually, I shaved this morning."
727
00:36:00.330 --> 00:36:03.570
So he changes his statement while speaking to the police.
728
00:36:03.570 --> 00:36:06.840
He then gives statements to the three experts,
729
00:36:06.840 --> 00:36:07.890
and those statements
730
00:36:07.890 --> 00:36:09.993
are themselves different from each other,
731
00:36:12.321 --> 00:36:15.480
and then he gives a slightly modified variation again
732
00:36:15.480 --> 00:36:16.383
at trial.
733
00:36:17.810 --> 00:36:19.920
So he gives fundamentally five different statements,
734
00:36:19.920 --> 00:36:23.318
and there is evidence between the first statement
735
00:36:23.318 --> 00:36:25.218
to the police, the later statement to Dr. Fife,
736
00:36:25.218 --> 00:36:27.692
and then ultimately his statement at trial,
737
00:36:27.692 --> 00:36:29.640
there is evidence that he is modifying his statement
738
00:36:29.640 --> 00:36:32.850
and making it more self interested and, in some respects,
739
00:36:32.850 --> 00:36:34.600
more consistent with the discovery.
740
00:36:35.726 --> 00:36:38.707
So the argument of tailoring is permissible
741
00:36:38.707 --> 00:36:40.073
in the particular circumstances.
742
00:36:42.348 --> 00:36:44.430
And I'll just briefly mention with regard to the argument
743
00:36:44.430 --> 00:36:47.010
that the experts are ignoring evidence,
744
00:36:47.010 --> 00:36:48.480
there are multiple instances-
745
00:36:48.480 --> 00:36:50.880
Before you leave Justice Gaziano's thing,
746
00:36:50.880 --> 00:36:55.590
I'm not sure I understood how he conforms to the video.
747
00:36:55.590 --> 00:36:59.973
Explain that a little bit. I just couldn't follow it, yeah.
748
00:37:01.638 --> 00:37:04.238
He initially makes the statement, "I wasn't there.
749
00:37:06.475 --> 00:37:09.444
You know, I was two miles away.
750
00:37:09.444 --> 00:37:11.070
I had nothing to do with this.
751
00:37:11.070 --> 00:37:13.947
I have no idea what you're talking about. I was home."
752
00:37:15.320 --> 00:37:16.153
But there's something particular
753
00:37:16.153 --> 00:37:17.040
to the timing of the video.
754
00:37:17.040 --> 00:37:20.223
He does something in the video, and then his testimony,
755
00:37:21.390 --> 00:37:22.743
I just couldn't follow it.
756
00:37:24.375 --> 00:37:28.127
Well, the statement that he makes is that he leaves,
757
00:37:30.350 --> 00:37:32.681
wakes up, if you will, on the corner,
758
00:37:32.681 --> 00:37:34.170
realizes that something terrible must've happened,
759
00:37:34.170 --> 00:37:37.890
and goes back inside.
To pick up the knife.
760
00:37:37.890 --> 00:37:41.425
Well, that's the statement to Dr. Fife is,
761
00:37:41.425 --> 00:37:43.470
"I went back in to pick up the knife."
762
00:37:43.470 --> 00:37:45.513
The statement to the other experts is,
763
00:37:46.613 --> 00:37:47.970
"I went back in because I thought something terrible
764
00:37:47.970 --> 00:37:49.783
must've happened."
765
00:37:49.783 --> 00:37:51.210
And when the prosecutor in closing is talking
766
00:37:51.210 --> 00:37:54.210
about the video and how he modifies his testimony
767
00:37:54.210 --> 00:37:55.810
to be consistent with the video,
768
00:37:56.732 --> 00:37:58.133
what is the prosecutor saying?
769
00:38:00.108 --> 00:38:02.580
She doesn't actually say he's modifying his testimony
770
00:38:02.580 --> 00:38:04.293
to be consistent with the video.
771
00:38:05.556 --> 00:38:08.348
She says, you know, "He gives this statement.
772
00:38:08.348 --> 00:38:10.867
Doesn't that just fit so perfectly
773
00:38:10.867 --> 00:38:13.257
with the evidence that we have here?"
774
00:38:14.597 --> 00:38:18.381
Which I don't recall. I apologize, I read it yesterday.
775
00:38:18.381 --> 00:38:20.513
I don't recall her specifically referencing the video.
776
00:38:21.776 --> 00:38:22.830
She just says, "Isn't this so convenient?
777
00:38:22.830 --> 00:38:24.990
Doesn't it match the evidence so perfectly?
778
00:38:24.990 --> 00:38:27.000
Remember, Dr. Fife told you he had access
779
00:38:27.000 --> 00:38:32.000
to the evidence before trial," which that's an argument
780
00:38:32.820 --> 00:38:37.680
that it's very convenient the way that his testimony now,
781
00:38:37.680 --> 00:38:39.390
which is drastically different from the statement
782
00:38:39.390 --> 00:38:41.010
that he made to the police,
783
00:38:41.010 --> 00:38:43.353
meshes with the Commonwealth's evidence,
784
00:38:44.910 --> 00:38:48.990
and hey, he had access to that evidence prior to trial.
785
00:38:48.990 --> 00:38:50.740
He knew what we were gonna present.
786
00:38:52.530 --> 00:38:54.960
You've heard testimony that he knew exactly
787
00:38:54.960 --> 00:38:56.360
what we were gonna present."
788
00:38:58.770 --> 00:39:03.223
So there's actually no direct argument
789
00:39:03.223 --> 00:39:04.923
that he's modifying his statement.
790
00:39:06.292 --> 00:39:08.605
It's an argument that it's convenient and it meshes,
791
00:39:08.605 --> 00:39:10.833
which is permissible in the circumstances.
792
00:39:12.120 --> 00:39:15.240
So just briefly regarding the two experts
793
00:39:15.240 --> 00:39:17.910
in the argument that they're ignoring evidence,
794
00:39:17.910 --> 00:39:19.920
that's a fair argument in the circumstances.
795
00:39:19.920 --> 00:39:24.663
There are multiple things that they say that amount to,
796
00:39:25.515 --> 00:39:27.480
"I chose not to factor that into my decision"-
797
00:39:27.480 --> 00:39:29.580
It's an argument about cherry picking, in a sense.
798
00:39:29.580 --> 00:39:30.413
Yes.
799
00:39:31.248 --> 00:39:32.648
So, for example, Dr. Deters,
800
00:39:34.745 --> 00:39:38.853
pages 125 to 126 of the May 16th transcript,
801
00:39:39.883 --> 00:39:41.820
he's asked whether he asked the defendant
802
00:39:41.820 --> 00:39:45.963
where he ever got the knife from, and he says,
803
00:39:45.963 --> 00:39:47.130
"No, I didn't think it was relevant."
804
00:39:47.130 --> 00:39:49.860
What about the testimony or the argument
805
00:39:49.860 --> 00:39:52.840
about the defendant having something in his hand
806
00:39:54.101 --> 00:39:56.430
where the questions were sustained?
807
00:39:56.430 --> 00:39:57.840
So-
So they were sustained.
808
00:39:57.840 --> 00:39:59.923
They didn't come into evidence, correct?
809
00:39:59.923 --> 00:40:03.217
The objections were sustained as to the questions.
810
00:40:03.217 --> 00:40:05.550
"You didn't see him carrying anything,"
811
00:40:05.550 --> 00:40:07.470
but he's asked, "Did you notice his hands?"
812
00:40:07.470 --> 00:40:10.800
And he says, "No, I didn't notice anything about his hands."
813
00:40:10.800 --> 00:40:13.803
And I know the court has a copy of that exhibit.
814
00:40:14.712 --> 00:40:15.545
It was transferred.
815
00:40:17.811 --> 00:40:18.885
The defendant's hands are,
816
00:40:18.885 --> 00:40:21.210
with all due respect to the expert,
817
00:40:21.210 --> 00:40:24.810
the most noticeable thing about that video.
818
00:40:24.810 --> 00:40:27.900
Initially, his hands are up, then they're down by his sides,
819
00:40:27.900 --> 00:40:32.900
and then they're up again later in the final clip, so-
820
00:40:33.040 --> 00:40:34.313
The inference that he's carrying the knife?
821
00:40:35.148 --> 00:40:37.740
That would be a permissible inference.
822
00:40:37.740 --> 00:40:42.479
That is the inference that my colleague argued, certainly.
823
00:40:42.479 --> 00:40:43.470
You know, "Doesn't this evidence
824
00:40:43.470 --> 00:40:45.590
that he is carrying something away?"
825
00:40:45.590 --> 00:40:47.340
"Oh, I didn't notice anything about his hands,"
826
00:40:47.340 --> 00:40:50.205
is the statement, and his hands, they start up,
827
00:40:50.205 --> 00:40:51.293
then they're down, then they're up again.
828
00:40:53.659 --> 00:40:55.409
Why were the questions sustained?
829
00:40:56.460 --> 00:41:00.153
I think in the circumstance-
830
00:41:04.131 --> 00:41:05.370
Isn't it asked and answered a couple of times
831
00:41:05.370 --> 00:41:06.933
and then the judge gets fed up?
832
00:41:07.890 --> 00:41:10.503
I thought you-
That is part of it.
833
00:41:15.392 --> 00:41:17.062
I think there's also an argument being made
834
00:41:17.062 --> 00:41:21.543
by trial counsel that this is a characterization
835
00:41:22.474 --> 00:41:25.110
which we're permitted to make that characterization
836
00:41:25.110 --> 00:41:29.078
in closing argument but aren't necessarily permitted
837
00:41:29.078 --> 00:41:30.143
to do that in questioning a witness.
838
00:41:32.617 --> 00:41:33.971
I read that and went,
839
00:41:33.971 --> 00:41:35.460
and I don't know what the basis
840
00:41:35.460 --> 00:41:37.860
for sustaining that objection was, to be honest.
841
00:41:39.510 --> 00:41:42.596
I think it's because it's improper characterization-
842
00:41:42.596 --> 00:41:43.560
Of a video.
A video.
843
00:41:43.560 --> 00:41:45.510
Improper narrative of a video?
844
00:41:45.510 --> 00:41:48.420
That would be my understanding of the basis
845
00:41:48.420 --> 00:41:50.270
for the objection that was sustained.
846
00:41:53.287 --> 00:41:54.737
I see I'm nearly out of time,
847
00:41:55.604 --> 00:41:57.023
unless there are any further questions.