-: SJC-13091, Commonwealth free William McDermott.
-: Great, Attorney Barnwell.
-: Good morning, may it please the court,
Hayne Barnwell on behalf of William McDermott.
I just wanna make sure that you can hear me all right.
Okay, in Nash, this court held in part
that because the COVID-19 pandemic changes so quickly,
courts must weigh factors
like the absence of active cases in a facility
with great caution and--
-: Far down the road on Barnwell.
Ms. Barnwell, before you go too far down the road on Nash,
-: Yes.
-: Very impressive in your applied brief
that you were able to respond to Pope
as quickly as you did
and Harris as quickly as you did, thank you.
But as you know, we're not simply dealing with Nash here.
We're dealing with extraordinary circumstances
in Charles here.
So my first question is,
without the benefit of Harrison Pope,
Judge Milkey did a pretty darn good job
but what does extraordinary circumstances mean?
He referred to it as a special circumstances.
And how do you differentiate extraordinary circumstances
from likelihood of success on appeal?
-: Well, I believe when he was,
I mean, I obviously don't know what he was thinking
when he said special circumstances,
but he did cite to Charles,
so he knew that Charles spoke specifically
about extraordinary circumstances.
And so I think that there is a procedural difference
so that this court could just procedurally
dispose of this issue because unlike in Harris,
Pope in Hamilton,
the single Justice did find special circumstances.
He did find a reasonable likelihood of success,
and because he found a reasonable
likelihood of success on appeal, he found,
again, unlike the other cases that that cast doubt,
you know, pursuant to this court's decision in Harris,
that cast doubt on the justice of this conviction.
If you're going to review it beyond
to the procedural difference
and you're gonna go more substantively on this issue,
there are extraordinary circumstances here
beyond the COVID-19 pandemic.
He is particularly vulnerable to COVID-19 for one,
and for two, this is not your garden variety error
that the single Justice homed in on.
This is about a prosecutor riling up anti-gay prejudice
to get the jury or to persuade the jury
to discredit both Mr. McDermott and,
but especially the critical defense witness, Peter Warner,
who corroborated some details of Mr. McDermott's testimony.
This is the only case--
-: That regard because you know, child was dealing with
the implications of Annie Duke
and is clearly talking about issues beyond
the particular case
when we talk about extraordinary circumstances.
When Judge Milkey is talking about special circumstances,
he seems to be referring to concerns in a closing in 1982.
And I'll agree with you.
It's striking to read some of the comments.
I'll just make one reference to it.
It's like an adultery plus comment that's going on
and I hear you loud and clear on that issue.
But we really haven't faced
what extraordinary circumstances means.
And a lot of your argument seems to be that
well, we really would have a good chance on appeal,
and that can't just be what extraordinary circumstances is
because that's just one of the factors in rule six.
-: Understood, I think,
well, let me get to the substance of it
and then I'll pose it,
now that I've thought about it more
even since the reply brief,
I wanna ask for an alternative remedy here.
As for the substance in trials,
if you go look at trials, they cite to a case,
I believe it's Blankenburg.
And in Blankenburg,
it talks about extraordinary circumstances
in terms of does,
in other words, in my mind, it's like
this isn't a garden variety error goes to the function,
the maintenance of the court's authority.
And I think that you can view this error in that way
because especially the homophobic tainting this trial
because it hits at the integrity of the entire system.
If the courts never, from start to finish,
from 1982 to 2021, if the courts never remedy
or even really address anti-gay prejudice
infecting the trial that hits at,
not only the integrity of the system,
but the court's main function
which is to provide both justice and equality under the law.
And I don't know if your Honor has had a chance
to listen to the superior courts hearing,
but I did talk about that.
I'm like this is just,
I mean it really smacked me across the face, frankly,
when I first read the prosecutor's closing argument.
I thought to myself, even for 1982,
this is outrageous and it went completely unlimited.
-: Let me take a step on this issue, because again,
I don't know how you got it in so quickly
but in the reply brief,
I think you have reference to in Nash,
you know, we obviously talk about the pandemic situation
can never hurt the defendant in a state situation.
But in Harris, we talk about
the pandemic is not extraordinary circumstances
for the purposes of our case.
Obviously, it's extraordinary circumstances, the pandemic,
for what we mean by extraordinary circumstances.
Nonetheless, we do say that
the pandemic could be a plus
for the purposes of extraordinary circumstances.
-: Yes. -: Right?
So, then you go to judge Milkey's findings
and again, this is interesting.
Not findings, his memorandum and order.
He says, "I agree with the judge that concerns
"do not require a different result
"given the defendant already now both has had COVID-19
"and has been vaccinated"
And I really don't know how to take that
because the fact that somebody had COVID-19
or had been vaccinated, that can't be a negative.
It can't hurt the person requesting a stay.
On the other hand, he's saying that he agrees that
such concerns don't require a different result,
which might mean that he's saying,
Okay, it's not a negative,
he's just not getting a plus here.
And I don't know what that means.
Maybe you can help me.
And if you can't, do we need clarification?
-: I unfortunately cannot help you
because we did not get a hearing.
And that's where I was gonna go
with the alternative, your Honor.
If this court is understandably hesitant
to do a final ruling on his motion to stay
for that reason or any other reason,
then you could remand it
with whatever guidance this court has about
for example, the COVID-19 factor
which is of course mainly before the court today,
you know, where a person has been vaccinated
or has had a prior infection sort of,
give the single Justice that guidance, and then say,
now with that guidance, you know, what did you mean?
Or come up with a more clarifying decision
with that guidance in mind,
is what I would suggest as an alternative.
-: Thank you.
-: Yes.
But going to the,
unless there're any other questions about that,
I would turn to the main issue before the court that
because the COVID-19 pandemic changes so quickly,
courts as this court held Nash,
factors like absence of active cases in a facility
must be with great caution, only appropriate cases,
and this court should hold the same
where an incarcerated person has suffered COVID-19 infection
or has been in, excuse me, has been vaccinated.
Mr. McDermott's case is not an appropriate case
to use his prior infection
or his full vaccination negatively against him
for three primary reasons.
One is the CDC itself States,
"We don't yet know how effective the vaccines are
"for people with weakened immune systems
"like Mr. McDermott."
Two, the CDC also States that,
"We don't know how long any immunity
"confirmed by vaccination lasts"
And third, other uncertainties are bound
due to the sharp decline in the vaccination rate.
Around half of DOC staff's refusal to get vaccinated
and the fact that the coronavirus is rapidly mutating
and producing variants of concerned,
at least several of which appear to make
the vaccines less effective.
-: There was the question I had, was,
you know, those three things are
absence of information, right?
We don't know.
And I'm wondering how the third factor in your opinion
works when there's an absence of information.
-: When there's an absence of information,
then there's still risk.
-: I think you should just say
we should weigh that as a plus.
And I'm wondering why that's consistent
with our prior cases.
-: It's the application of the precautionary principle
which really compliments Nash itself.
And so in Nash, the court said, you know,
maybe the risk is going,
or I don't know if it exactly said it this way,
but the way I read is you know,
maybe that instinctive approach is going to be corrected
because there are no current cases in a facility
or the way that facility is set up,
it's set up very well ventilated, for example,
maybe it will turn out to be the case
that no cases come into that facility
but we're still not gonna use that negatively
against an incarcerated person.
-: (mumbles) Negatively, I'm wondering why
it should be positively used in favor of your client.
-: Because--
-: I don't find any ambiguity in judge Milkey's order.
He cites Nash.
He obviously knew the case law
and that it can't be used against your client.
So I'm gonna assume that he as an appellate judge,
applied it correctly.
Why though should he have applied it positively?
He seems to say it's awash.
-: He does state it's awash.
But the problem is that Mr. McDermott in particular
has a weakened immune system.
He's trapped in a--
-: We all know, given his weakened immunity,
his prior COVID infection, his vaccination,
the environment that he exists in,
we don't know if he's at any particular risk about that--
-: Correct, and therefore,
uncertainty should be a plus
because, you know, again, like in Nash,
even at the time, prior to vaccinations,
it may very well have been that, for example,
NCCI Gardner didn't have cases for months and months,
and Judges were taking that instinctively saying,
"Look, this is evidence that
"the risk is basically negligible or completely absent."
But then of course the coronavirus had other ideas
and took over the prison.
And so when we do have that level of uncertainty,
the benefit of that sort of uncertainty, that risk,
needs to go in favor of the incarcerated person.
-: It's in the overall goal to get less people
in this type of setting
that those people who deserve to have stays
should she be released
so it decreases the number of people in prison?
-: Yeah, so that is also an overall goal
that this court noted in Nash that--
-: In the contrary rule in your case would also
create a perverse incentive not to be vaccinated.
-: Yes, that is exactly what CPCS points out
in it's Amicus brief
and I think that's an excellent point.
We don't want incarcerated people
having this Hobson's choice.
Well, get vaccinated, don't get your freedom.
Don't protect yourself, but maybe get your freedom.
We don't want those sort of perverse incentives.
-: So in Nash we say,
we don't mean to suggest that every incarcerated individual
faces the same danger for COVID-19.
Each defendant's wish should be evaluated
under the criteria we have outlined.
And then let me just add
as Justice Gaziano has pointed out
and I'm reference it as well.
When we look at that,
even if there's no cases and everybody's vaccinated,
that cannot hurt the defendant requesting a stay.
It can never be a negative.
That said, we do have to look at
the particular circumstances,
and as justice Windlandt pointed out,
there's certain things we don't know
about these circumstances.
-: Right, so like it Nash, you know, let's say it's a zero.
I don't think it is, but let's assume it's a zero.
It's awash as the spirit court said.
The problem with that analysis
and sort of ending the analysis there is that
it doesn't plus up the risk for Mr. McDermott.
And that's what the court was wrestling with there.
It's like, okay, there's uncertainty
but there're plus factors, right?
I believe it was Mr. Elbert actually,
was a Type 2 diabetic, like Mr. McDermott is,
and this court noted that pluses off the risk, right?
So even though, like, for example,
I'm fully vaccinated, but I'm out here in the world,
I feel like I can protect myself.
Mr. McDermott is fully vaccinated.
I'm so happy he is, but he's still in a congregate setting.
He still can't physically distance from his cellmate,
and all the other factors that I go through in the briefing.
-: Okay, any other questions?
Thank you.
-: Thank you very much, your Honor.
-: Attorney McGee.
-: Good, I believe it's still morning.
Good morning, Hi, Justice Budd.
Fellow Justices, may it please the court?
What is undisputed?
Is that on November 20th, 1981,
the defendant shot and killed 38 year old, Robert Kemp,
while he was at work.
He did not return home to his wife.
He was shot 11 times with a nine shot gun.
He was buried partially left by the 18 pole,
had his wedding ring, and other rings stolen from him
as well as his wallet,
and the defendant fled to Pennsylvania.
-: There's no doubt and even putting aside
the self-defense issue
and the jury instruction and burdens and all,
just putting that aside,
no matter how egregious the facts might be,
on appeal, there's going to be a review
of the closing argument.
And so if you look at what
Commonwealth versus Charles means
in these circumstances after Commonwealth vs Harris
and Pope versus the Commonwealth,
do we have extraordinary circumstances here
looking at that as it has to be
somewhat separate and distinct
from the likelihood of success on appeal?
-: They're focusing on COVID-19 itself, in and of itself,
as the court said in Pope and Harris.
It doesn't in and of itself
present an extraordinary circumstance.
And I think, and what I would suggest to the court is that
that general circumstance,
that COVID-19 should be readdressed.
Justice Lowy: So, I'm saying, one more--
-: Should be readdressed.
We have made progress as a State.
-: But before we get there, I'm sorry.
Before we get there, because we've already said that
extraordinary circumstances, it's hard to say
because the pandemic is extraordinary
and that's an understatement, but as a matter of law
for the purposes of what extraordinary circumstances mean
when you have a stay in the collateral appeal situation
as opposed to a direct appeal situation,
the question before we get to the pandemic
because it can be the pandemic cross,
but you gotta have extraordinary circumstances,
and why isn't the defendant right
that the closing is not extraordinary circumstances.
Why isn't she right that it is?
-: As opposed to something like the Annie Duke and--
-: Yeah, he's her fiance.
-: This trial error that's being raised 40 years
after the fact.
Additionally, the defendant raised these on direct appeal.
He raised them in a footnote and specifically
the quotations that defense counsel raises now
and the court addressed them,
and on 33 review reduced the defendants sentence.
-: I think that was on extreme atrocity
and cruelty with an instruction.
You know, Judge Milkey again in a very
Colton memorandum in a letter
makes a number of important points.
One of which was, I don't have the language exactly
but maybe in the initial appeal,
there wasn't a recognition of how, you know,
pernicious this might've been.
-: What Justice Milkey I believe said was
this could have laid in wait.
And what the Commonwealth would suggest to the court is that
this didn't lay and wait.
It was addressed to trial.
This was a self-defense argument that was based upon
the victim being a sexual predator.
And that was the central focus of the 183 pages
of transcripts that the defendant raised,
that the defendant and Mr. Warner spoke about.
It was addressed by the Supreme judicial court.
In their opinion, they declined to order a new trial.
However, on 33 review,
as one of the reasons that they reduced the sentence,
was this relationship that they believed may have existed.
And that the facts here did not warrant a new trial.
They were admitted to essentially uncontested facts
that he shot and killed the victim in this case.
And so, this was not something that had
laid in wait for 40 years.
It was addressed.
It was in front of the court.
It was in front of the jury, the jury rejected it,
and convicted him of first degree murder.
So that is the disagreement
I would say that the Commonwealth has
with justice Milkey's assessment
that this had somehow laid in wait.
It was in front of, it was eyes wide open,
this was in front of the jury.
And it was argued.
-: Judge Milkey, he seems to be talking about is,
and I understand it may well be with talking about it
and a chance of success on appeal,
which is, you know, the first factor
under a direct appeal stay.
But he's aware of the different standard
even before Harrison Pope.
He's tuned into that.
It seems that he's saying that, you know,
it's not just that the closing
was addressed before it said
a consciousness hadn't ripened enough
to just hear how bad it is
because there was a suggestion in the closing,
I read the whole closing of...
This is not just accusing him of adultery, and
you know, you can see
there's concerns in the languages used.
-: And what I would suggest to the court that there's,
and suing a Randolph and the substantial risk
of a miscarriage of justice standard
would be applied by the motion judge in this case.
And what I would suggest to the court is that
the defendant has that extraordinary circumstance
on a motion for new trial, hasn't been met here.
Not only did he have plenary review
and waived many of these issues,
he's argued these in the past,
he's argued the self-defense argument.
He's also gone before the parole board in 2012 and 2019
and said that all of these issues that he raises
were premised upon a lock.
He has said this under oath, testified under oath,
that he made all of this up
and that he worked with his counsel and Mr. Warner
to present this case.
-: Help me out.
I understand that if there's ever a motion
for new trial allowed,
that may well be an admission by a party opponent,
but help me out how his statement under oath
at the parole hearing, that this was all made up.
Factors into our analysis.
I'm just not sure I understand quite frankly how it does.
-: I would suggest to the court that
at the very core of a rule 30 motion
is that justice was not done.
In this case, how can justice not be done
if the defendant premises his entire argument on a lie
that he has admitted to,
even agreed was a lie
two weeks before he filed this motion for new trial.
-: This will be my last question on this issue
but it's important,
and I'm not quite getting it quite honestly.
If he did that, it's a horrible thing, no doubt about it.
But how does that impact
whether the trial he had
was a fair trial?
It's a serious question
and I'm not being rhetorical.
Help me out.
I'm not sure I understand the connection.
-: And what I would suggest to the court is that
he's arguing that he did not have a fair trial based upon
a self-defense argument that he believed was,
that he has now stated was false.
So it is contradictory for him to now say that
he was prejudiced.
There was a substantial risk of a miscarriage of justice,
that he was prejudiced by these errors.
One, these errors were created upon,
if they were errors, that they were created upon a lie.
The defendant had a fair trial.
The defendant also got the benefit of
the Supreme judicial courts 33 review,
and had his sentence reduced
from a first degree to a second degree.
He has had five opportunities before the parole board.
He has had the benefit of DIA Chanco.
He has available to him, medical parole.
He has all of these things available to him
despite the fact that his self-defense argument was
under oath and said twice now before the parole board
was based in premise upon something that he
coordinated with his defense counsel at trial.
And I would suggest based upon that,
it also goes to the risk factor of his flight.
Additionally, you know he's asking the court
to essentially take a chance with an individual
that has lied before the parole board.
I mean, lied before the court.
He's testified before the parole board.
He's five times been rejected by the parole board.
He, additionally has no ties to the community.
His brother's living California.
His parole plan is to go to California.
-: Well, judge Milkey agrees with,
I think it was judge Davis on the security risk
and under Christie and Nash
comes to the same position as the trial judge
did on this day.
But the defendant is saying that
neither of them considered many of the other
important enumerated factors as it relates to flighting.
None of them considered,
either of them considered
a number of the other enumerated factors
as it relates to the risk of flight.
-: And that is why Justices,
this defendant does not have that exceptional plus.
He does not reach these other factors.
His pattern here,
it took him 30 years to tell the parole board
what actually happened in this case.
And he's asking a trial Judge
that's hearing his motion for new trial after 40 years
of being incarcerated, to trust him in society
but he has no ties to the community.
He's asking the court to take that chance with somebody
that has attempted to be released
and has not been permitted.
And I would suggest to the court
that he doesn't meet any of these,
the three factors under Nash
and that this court affirm the single Justices
and the trial courts
denial of the defendant's motion to stay.
Any other questions?
I got a rest on my brief.
Justice: Okay, thank you very much counsel.