WEBVTT

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<v ->SJC-13161.</v>

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Commonwealth versus Philip Daniel Chism.

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<v ->Attorney Schneider.</v>
<v ->Good morning, Your Honors.</v>

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May it please the court,

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I represent the defendant appellant, Philip Chism.

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With me today is Attorney Ben Brooks.

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Let me begin by stating the obvious,

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which is that what occurred was obviously a senseless

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and horrific act.

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At trial, there was no question

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but that the defendant was the one who killed the victim.

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The main questions that were developed at trial was, first,

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whether this 14-year-old with a family history

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of severe mental disorders

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with evidence that he was suffering

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from a number of symptoms of disorders himself

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and with some clear brain anomalies

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was able to mount a full and fair insanity defense,

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or whether the judge's evidentiary rulings,

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in particular the admission of the brain scan evidence

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and the raw data materials

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and the forced disclosure of the raw data materials,

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interfered with the defendant's right

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to produce all proofs favorable to the defense.

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In addition, the other main question

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is whether evidence of the non-homicide offenses

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was sufficient to go to the jury.

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If I may, what I would like to do is address

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and focus on today the issues raised

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in the defendant's reply brief.

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With respect to the,

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I'll start with Point 4 in our main brief,

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which is the issue involving the raw testing data.

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<v Justice Gaziano>Before you get to that,</v>

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can I ask you on the Daubert-Lanigan issue...

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<v ->On the which, I'm sorry?</v>

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<v ->The Daubert-Lanigan issue.</v>
<v ->Sure.</v>

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<v ->Ultimately, the defense selected</v>

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or proffered the testimony of Dr. Satawaith, I'm sorry,

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<v ->Satterthwaite.</v>
<v ->Satterthwaite, okay.</v>

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The defense proffered that expert testimony,

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not Dr. Gher, correct?

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

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When we assess the sufficiency of reliability

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of the finding under Daubert-Lanigan,

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do we look at the testimony of Dr. Gher for that?

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And if we do, what do we do with the judge's finding

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that Dr. Gher was not credible?

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<v ->Well, first of all, I think credibility</v>

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under Roberio and Torres is not for the judge

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to be making at that particular juncture.

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That's an issue ultimately for the jury.

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<v ->So if an expert testifies in a Daubert-Lanigan</v>

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and the judge thinks that the expert is not credible,

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they have to consider that testimony?

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<v ->I believe that that's what Commonwealth versus Roberio</v>

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says quite clearly, that that's an issue...

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The judge is not supposed to intervene

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and make a determination.

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<v ->I thought Roberio was a case where a judge said that,</v>

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"I don't believe this testimony is relevant."

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I'm fairly familiar with Roberio.

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I don't know if it goes as far as that,

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but what do we do with that finding of credibility?

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So you think the judge couldn't have made that finding?

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<v ->First of all, I would submit that the testimony</v>

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of both Dr. Gher and Dr. Satterthwaite should be considered

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with respect to the proffer made by the defense.

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<v ->So your position is, consider both of their testimony.</v>

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<v ->That they should both be considered.</v>

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And I would add, one of the issues that arose

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with respect to Dr. Gher was that he was being examined

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at the Daubert hearing by Zoom.

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And there were scheduling issues

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that prevented him at the last minute

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from being present when the judge ordered him

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to be present in the courtroom for examination and cross.

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<v ->So your position is, consider both of their testimony.</v>

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And your position regarding the credibility determination,

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you think that was error.

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<v ->And I would submit that it was premature</v>

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for the judge to be making a credibility determination

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or to be looking at the quality of the science

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that was being proffered

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other than with respect to the 702 issues.

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<v ->But isn't part and parcel of determining</v>

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the quality of the science

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and whether it meets the standard of Daubert-Lanigan,

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part of that is the credibility

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of the witness proposing the science?

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<v ->Well, it's not at all clear.</v>

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So the judge did go back and forth

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when you actually look at his rulings.

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And I can cite the section of the transcript.

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But the four pages where he makes his ultimate rulings,

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he sort of goes back and forth on issues of credibility,

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reliability, relevance.

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<v ->And why is that an error?</v>
<v ->Right?</v>

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<v ->It's not necessarily an error,</v>

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but I would point out that the judge's findings,

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his ultimate rulings were sort of a mix

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of 401 relevance concerns and 702.

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<v ->Well, of course, you don't wanna have scientific evidence</v>

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that's not relevant.

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<v ->Sure, but one of the big issues that the judge found</v>

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and that was of concern to him,

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and the Commonwealth raises it in its brief,

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is that the defendant was ultimately not diagnosed

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with schizophrenia narrowly defined in "DSM-5".

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And so that ended up being a major part

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of his determination.

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And I would submit that was ultimately some mix

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of a 702 and a 401 issue.

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But I think that issue can be squarely met.

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And I think we tried to do that in our brief,

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which is to say that, you know,

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ultimately, the evidence was proffered

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to establish that the defendant was suffering

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from a mental disease or defect.

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<v ->So is it your position that if a party</v>

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presents non-credible expert testimony,

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the judge has to consider it in a Daubert-Lanigan hearing?

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<v ->Well, I may not go so far.</v>

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If you look at the way the judge framed his rulings,

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he was concerned

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about Dr. Gher not being sort of clear in his testimony,

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whether his ultimate finding constituted a finding

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that he was simply incredible with respect to the science-

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<v ->He says it; he goes, "I find him not credible."</v>

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<v ->Well, he does end up there.</v>

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It's interesting though.

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If you go back, lemme see if I can find the citation.

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I think it's record appendix 3471 but I'm not certain.

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He initially seems to make a finding

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of gatekeeper reliability.

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And then when he goes later into the analysis

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after hearing further argument,

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backtracks and seems to make a finding.

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<v ->Well, I don't know if it's backtracking.</v>

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He says "It's layered."

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He says, "I find you haven't satisfied

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"gatekeeper reliability."

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And then the alternative, "I find it doesn't meet 403."

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It's layered.

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<v ->He does mention 403, which is the balancing</v>

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of obviously probative value and prejudice.

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He does go there.

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And I would submit that argument doesn't hold water

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because the defense ultimately wasn't,

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pursuant to the consensus guidelines,

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wasn't introducing the actual fancy pictures.

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They weren't gonna introduce

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the actual brain scans themselves,

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which I can understand would be prejudicial.

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The defense was simply-

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<v ->Isn't the prejudice that a jury would say</v>

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that this is essentially evidence of schizophrenia

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when the testimony really is it's an indication,

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or could be an indication of schizophrenia.

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<v ->So first of all, the judge could have issued,</v>

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could have sua sponte

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'cause it wasn't specifically requested,

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given a limiting instruction and said,

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"This is only to be considered for the first prong

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"of the McCool test, whether the defendant was suffering

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"from a mental disease or defect."

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If you actually look at the defendant's motion in limine,

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counsel was pretty clear that she was offering it

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for the essential issue at trial,

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which is whether or not the defendant was suffering

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from a mental disease or defect.

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That was essentially the thrust

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of the Commonwealth's case that he wasn't,

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and that he was just malingering.

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This evidence would've been critical objective support.

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The Commonwealth got to introduce its psychological tests

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that were also conducted two years later,

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that Dr. Dudley-

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<v ->But just to be clear, the fact that the Commonwealth tests</v>

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were conducted two years later

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was actually pertinent to the issue of malingering.

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Right, the question was, was the defendant lying now,

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not whether he lied when he committed the crime.

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Whereas the mental health issue was,

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the relevancy of the mental health diagnoses

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was when he committed the crime, at the time of the offense.

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<v ->But if you look closely enough</v>

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at Dr. Nancy Hebben's testimony,

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you'll see that she also used it to confirm her opinion

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that the defendant wasn't suffering,

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wasn't showing any signs of psychosis when she-

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<v ->When you say, "she used it," what do you mean?</v>

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<v ->I'm sorry, she used the discrepancy</v>

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in the raw testing data,

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the fact that in 2014, the defendant had scored

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average to high on cognitive tests,

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whereas in June, 2015 when the test was re-administered-

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<v ->But that was a small part of her testing.</v>

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The major part of the test is the test that she did.

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We're getting into your other issue, but like let's-

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<v ->Except that I would point out that</v>

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she also said that when she looked at-

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<v ->We'll get to that issue.</v>

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Let's continue to talk about Daubert-Lanigan for a second.

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The proffer in Gher's testimony,

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or at least his written proffer,

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is something like, "These abnormalities,

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"these volumetric abnormalities are indicative

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"of a mental illness such as schizophrenia or TBI."

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And then later. he says, "and/or TBI."

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Isn't that incredibly broad

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to say "it's mental illness such as."

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There's lots of mental illnesses.

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<v ->Well, in the motion in limine,</v>

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counsel specifically mentions four grounds.

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One of them was the most essential issue,

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that "the defendant was suffering

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"from a mental disease or defect, a psychotic disorder."

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Dr. Dudley went on to give a very nuanced diagnosis.

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Remember, this is all in the context

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of a 14-year-old being diagnosed where even Dr. Kinscherff,

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the Commonwealth's expert, testified-

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<v ->It says "They are consistent</v>

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"with a major psychiatric disorder

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"such as schizophrenia or TBI."

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<v ->And then if you go on, Point #4 is,</v>

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in its simplest form, the evidence is relevant

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to establish that the defendant

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was suffering from a mental disease or defect,

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which was, of course, directed

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at the most important part of the defense

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and the thing that was most directly confronted

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by the Commonwealth's expert.

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And so it should have been relevant for that limited purpose

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of simply providing some objective evidence

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that the defendant was in fact

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suffering from a real mental disease or defect.

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This was not just simply a minor mood disorder.

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<v ->And then we get to 403</v>

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and the judge's discretion, correct?

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<v ->Well then we get to 403,</v>

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and the judge certainly does have discretion,

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although I would submit the issue is preserved

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and the standard is abuse of discretion.

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And the judge did abuse his discretion

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because, ultimately,

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ultimately, this was relevant.

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The defendant was not proffering,

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the fancy pictures was not proffering the actual images.

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There was one guideline that matters most

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out of the consensus guidelines.

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And that's the issue of whether or not

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that the images should not be used

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to establish a behavioral link.

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<v ->Are you talking about the Emory study?</v>

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00:12:21.144 --> 00:12:21.977
That's the consensus.

257
00:12:21.977 --> 00:12:23.460
<v ->The Emory Consensus Study.</v>

258
00:12:23.460 --> 00:12:26.730
Gher himself participated in that study

259
00:12:26.730 --> 00:12:29.430
and testified, I believe, that he complied

260
00:12:29.430 --> 00:12:31.593
with the strictures of that study.

261
00:12:34.140 --> 00:12:35.880
While the Commonwealth in its brief

262
00:12:35.880 --> 00:12:38.220
refers to a number of different guidelines,

263
00:12:38.220 --> 00:12:41.130
there was one guideline that was perhaps most significant,

264
00:12:41.130 --> 00:12:44.400
and that was experts when they testify

265
00:12:44.400 --> 00:12:49.140
should not be connecting the images

266
00:12:49.140 --> 00:12:52.770
to any particular behavioral implications

267
00:12:52.770 --> 00:12:56.160
for a specific defendant.

268
00:12:56.160 --> 00:12:59.220
And neither Gher not Satterthwaite did that.

269
00:12:59.220 --> 00:13:01.110
I would point out again on the credibility issue

270
00:13:01.110 --> 00:13:03.840
that Satterthwaite essentially recapitulated

271
00:13:03.840 --> 00:13:06.930
most of the testimony that Gher had offered.

272
00:13:06.930 --> 00:13:09.090
And his testimony was completely in line.

273
00:13:09.090 --> 00:13:11.190
They were in fact working as a team.

274
00:13:11.190 --> 00:13:13.140
They had similar backgrounds

275
00:13:13.140 --> 00:13:15.990
both with respect to structural MRI,

276
00:13:15.990 --> 00:13:18.510
the use of the FreeSurfer program.

277
00:13:18.510 --> 00:13:23.510
And they had deep knowledge of psychotic disorders.

278
00:13:23.880 --> 00:13:24.990
<v Justice Georges>Counsel, could I just go back</v>

279
00:13:24.990 --> 00:13:26.512
to Justice Gaziano's point?

280
00:13:26.512 --> 00:13:29.370
'Cause I wanna make sure I have your position on this right.

281
00:13:29.370 --> 00:13:31.560
<v ->Yes, Your Honor.</v>
<v ->Even before the 403,</v>

282
00:13:31.560 --> 00:13:34.290
which is back at the Daubert-Lanigan

283
00:13:34.290 --> 00:13:36.540
determination by the judge,

284
00:13:36.540 --> 00:13:41.400
your view is that the trial judges

285
00:13:41.400 --> 00:13:44.400
don't have the ability or the discretion

286
00:13:44.400 --> 00:13:48.840
to consider the credibility of the proffered expert

287
00:13:48.840 --> 00:13:52.773
in making the Daubert-Lanigan threshold inquiry.

288
00:13:54.330 --> 00:13:56.490
<v ->I would suggest that to the...</v>

289
00:13:56.490 --> 00:14:01.110
First of all, my understanding is that Roberio and Torres

290
00:14:01.110 --> 00:14:03.180
really address that issue and say

291
00:14:03.180 --> 00:14:05.610
that judges should not be intervening in deciding

292
00:14:05.610 --> 00:14:09.390
whether a particular expert's testimony is credible.

293
00:14:09.390 --> 00:14:10.776
But to the extent that they can-

294
00:14:10.776 --> 00:14:11.728
<v Justice Georges>Hold on-</v>

295
00:14:11.728 --> 00:14:13.410
<v ->That was ineffective assistance.</v>

296
00:14:13.410 --> 00:14:16.560
And the judge says, "Ah, there's no ineffective assistance."

297
00:14:16.560 --> 00:14:18.033
You know, he was fine.

298
00:14:18.870 --> 00:14:20.880
<v ->But I would submit to the extent that a judge...</v>

299
00:14:20.880 --> 00:14:23.760
<v ->But still with the credibility question though,</v>

300
00:14:23.760 --> 00:14:25.950
because I don't wanna go too far afield

301
00:14:25.950 --> 00:14:29.070
to not the threshold question for the trial judge,

302
00:14:29.070 --> 00:14:32.670
is is this expert going to be helpful?

303
00:14:32.670 --> 00:14:34.020
Is it going to be helpful?

304
00:14:34.020 --> 00:14:35.760
That's where the judge starts

305
00:14:35.760 --> 00:14:39.840
when there's a proffer of an expert.

306
00:14:39.840 --> 00:14:42.600
And so in the helpfulness of,

307
00:14:42.600 --> 00:14:45.600
and whatever features that go into that,

308
00:14:45.600 --> 00:14:48.540
is it your position that the judge

309
00:14:48.540 --> 00:14:53.540
can't consider the credibility of the proffered expert

310
00:14:54.540 --> 00:14:57.450
engaging the helpfulness to the jury

311
00:14:57.450 --> 00:15:01.110
that before they even get to the substantive testimony,

312
00:15:01.110 --> 00:15:04.320
just whether or not this person has anything to say

313
00:15:04.320 --> 00:15:07.200
that would be helpful to the jury's determination,

314
00:15:07.200 --> 00:15:09.210
that you are saying that Roberio says

315
00:15:09.210 --> 00:15:11.457
we can't consider credibility?

316
00:15:11.457 --> 00:15:13.680
<v ->No, I certainly wouldn't go that far.</v>

317
00:15:13.680 --> 00:15:15.990
What I would suggest is, first of all,

318
00:15:15.990 --> 00:15:19.290
there's no question that experts were required

319
00:15:19.290 --> 00:15:23.790
to give their opinions about scientific issues

320
00:15:23.790 --> 00:15:25.890
that were way beyond the ken of the jury.

321
00:15:25.890 --> 00:15:28.410
And in that sense, the second prong

322
00:15:28.410 --> 00:15:33.410
of Mass. Guide to Evidence 702 was satisfied.

323
00:15:34.410 --> 00:15:36.450
With respect to the issue of credibility,

324
00:15:36.450 --> 00:15:39.630
I think what Roberio is really driving at is

325
00:15:39.630 --> 00:15:44.630
that the judge shouldn't be determining the credibility

326
00:15:44.880 --> 00:15:47.890
of the actual opinions that are being given

327
00:15:48.796 --> 00:15:51.150
by the scientific expert.

328
00:15:51.150 --> 00:15:52.080
And it's not clear

329
00:15:52.080 --> 00:15:56.640
exactly what the judge's credibility issue here is.

330
00:15:56.640 --> 00:15:59.970
He seemed to be concerned that Dr. Gher was primarily

331
00:15:59.970 --> 00:16:02.643
not being clear enough in his testimony.

332
00:16:03.480 --> 00:16:06.240
But certainly, a judge is able to make a finding

333
00:16:06.240 --> 00:16:10.890
that the evidence proffered needs to assist the jury.

334
00:16:10.890 --> 00:16:14.760
And he certainly found Satterthwaite credible.

335
00:16:14.760 --> 00:16:16.560
Satterthwaite's testimony, as I say,

336
00:16:16.560 --> 00:16:20.520
recapitulated pretty much everything that Dr. Gher did.

337
00:16:20.520 --> 00:16:22.270
But I also would submit that

338
00:16:23.280 --> 00:16:26.220
it wasn't just Gher's testimony that was before the judge

339
00:16:26.220 --> 00:16:27.540
at the Daubert hearing.

340
00:16:27.540 --> 00:16:29.370
It was also the two exhibits,

341
00:16:29.370 --> 00:16:32.460
the report and the addendum that he submitted.

342
00:16:32.460 --> 00:16:35.010
It was the five articles that were submitted

343
00:16:35.010 --> 00:16:37.350
in support of the motion in limine.

344
00:16:37.350 --> 00:16:39.720
And that all those articles,

345
00:16:39.720 --> 00:16:42.570
the entire proffer put forward by the defense

346
00:16:42.570 --> 00:16:45.510
was more than sufficient to establish the credibility,

347
00:16:45.510 --> 00:16:48.720
the reliability of the evidence now.

348
00:16:48.720 --> 00:16:50.940
And I would submit, in a case like this,

349
00:16:50.940 --> 00:16:54.270
and ever since McCool, the court has recognized

350
00:16:54.270 --> 00:16:59.100
that defendants mounting an insanity defense

351
00:16:59.100 --> 00:17:03.753
should be given a lot of leeway in presenting anything.

352
00:17:05.010 --> 00:17:10.010
It doesn't necessarily even require a formal DSM diagnosis

353
00:17:10.500 --> 00:17:13.360
or any kind of evidence about what the etiology

354
00:17:14.866 --> 00:17:17.460
of a defendant's disorders may be.

355
00:17:17.460 --> 00:17:21.510
And even lay testimony about interactions with the defendant

356
00:17:21.510 --> 00:17:22.980
on the day of an incident may be sufficient.

357
00:17:22.980 --> 00:17:24.360
<v Justice Gaziano>But does that include</v>

358
00:17:24.360 --> 00:17:26.310
unreliable expert testimony?

359
00:17:26.310 --> 00:17:28.350
<v ->But I would submit that when you look at...</v>

360
00:17:28.350 --> 00:17:30.960
First of all, Satterthwaite's was not unreliable.

361
00:17:30.960 --> 00:17:33.210
<v ->No, but you just said that it should be given leeway.</v>

362
00:17:33.210 --> 00:17:35.550
And I understand that it can be raised

363
00:17:35.550 --> 00:17:36.993
without expert testimony.

364
00:17:38.220 --> 00:17:42.540
<v ->I would not disagree that 401 considerations</v>

365
00:17:42.540 --> 00:17:44.457
as well as 702 considerations and 403

366
00:17:44.457 --> 00:17:45.840
all need to be satisfied.

367
00:17:45.840 --> 00:17:48.430
<v ->We still have trials; we still have rules of evidence.</v>

368
00:17:48.430 --> 00:17:50.880
<v ->And I would submit, in this case,</v>

369
00:17:50.880 --> 00:17:53.550
this evidence was incredibly important to the defendant.

370
00:17:53.550 --> 00:17:55.620
Because the Commonwealth went so far

371
00:17:55.620 --> 00:17:57.840
as to suggest the defendant was not suffering

372
00:17:57.840 --> 00:18:01.200
from any kind of mental disease or defect.

373
00:18:01.200 --> 00:18:02.610
Even on Kinscherff's own test,

374
00:18:02.610 --> 00:18:04.860
and I understand there's a malingering issue,

375
00:18:04.860 --> 00:18:07.500
but it's interesting that he happened

376
00:18:07.500 --> 00:18:11.280
to score extremely high both on the psychoticism scale

377
00:18:11.280 --> 00:18:15.510
and also on the dissociative experiences scale.

378
00:18:15.510 --> 00:18:18.180
And that's critical because Dudley's testimony was

379
00:18:18.180 --> 00:18:21.240
that the defendant was suffering from a psychotic disorder,

380
00:18:21.240 --> 00:18:24.660
not otherwise specified, with traumatic traits.

381
00:18:24.660 --> 00:18:28.440
With respect to the issue of TBI, it was proffered.

382
00:18:28.440 --> 00:18:30.900
The Commonwealth was on notice.

383
00:18:30.900 --> 00:18:34.140
Satterthwaite testified that there was a huge asymmetry

384
00:18:34.140 --> 00:18:36.160
in the superior temporal sulcus

385
00:18:38.234 --> 00:18:40.470
on the left side as opposed to the right side

386
00:18:40.470 --> 00:18:43.320
of greater than three and a half standard deviations.

387
00:18:43.320 --> 00:18:45.240
It's my understanding that that would put him

388
00:18:45.240 --> 00:18:49.170
in less than 0.2% of the general population.

389
00:18:49.170 --> 00:18:52.960
And that this dramatic, huge asymmetry was evidence

390
00:18:54.420 --> 00:18:56.880
of traumatic brain injury.

391
00:18:56.880 --> 00:18:59.580
Dudley himself testified that the defendant,

392
00:18:59.580 --> 00:19:03.090
that he saw evidence of traumatic symptoms.

393
00:19:03.090 --> 00:19:05.910
And this was evidence that the defendant

394
00:19:05.910 --> 00:19:08.343
in fact had suffered some kind of trauma.

395
00:19:10.110 --> 00:19:12.210
<v ->There's a difference between traumatic</v>

396
00:19:12.210 --> 00:19:14.223
and being traumatized, and TBI.

397
00:19:15.834 --> 00:19:18.070
TBI is a blow to the head

398
00:19:18.990 --> 00:19:20.640
versus traumas.

399
00:19:20.640 --> 00:19:21.473
You can't really,

400
00:19:21.473 --> 00:19:23.640
that's really deceptive to say

401
00:19:23.640 --> 00:19:27.930
that Dudley's testimony aligned with TBI.

402
00:19:27.930 --> 00:19:30.300
<v ->Except that physical abuse</v>

403
00:19:30.300 --> 00:19:32.340
as well as emotional and sexual abuse

404
00:19:32.340 --> 00:19:34.890
can lead to very similar-

405
00:19:34.890 --> 00:19:39.890
<v ->So emotional abuse is evident in brain scans for TBI?</v>

406
00:19:39.960 --> 00:19:43.230
<v ->No, and that's not what Dr. Satterthwaite testified.</v>

407
00:19:43.230 --> 00:19:45.090
He testified that there was evidence

408
00:19:45.090 --> 00:19:47.357
that there was such a huge asymmetry.

409
00:19:47.357 --> 00:19:51.720
<v ->You're trying to align the MRI with Dudley's testimony.</v>

410
00:19:51.720 --> 00:19:55.620
And you said that Dudley's testimony that there was trauma,

411
00:19:55.620 --> 00:19:59.853
right, which I read to be the trauma of his childhood.

412
00:20:00.777 --> 00:20:04.230
Is that fair, that was Dudley's testimony?

413
00:20:04.230 --> 00:20:05.940
<v ->I think Dudley was unable</v>

414
00:20:05.940 --> 00:20:07.050
to get enough out of the defendant.

415
00:20:07.050 --> 00:20:09.810
The defendant wasn't really able to assist him.

416
00:20:09.810 --> 00:20:11.763
<v ->But follow my question.</v>
<v ->Yes.</v>

417
00:20:12.600 --> 00:20:15.730
<v ->Dudley testifies that there was trauma-based</v>

418
00:20:17.400 --> 00:20:20.493
brain injury, or a psychosis, correct?

419
00:20:21.450 --> 00:20:24.450
<v ->He testified that he saw evidence of traumatic traits.</v>

420
00:20:24.450 --> 00:20:26.407
<v ->Traumatic traits.</v>
<v ->Traumatic symptoms, yes.</v>

421
00:20:26.407 --> 00:20:31.407
<v ->Then when I asked you about the Gher report that says TBI,</v>

422
00:20:33.300 --> 00:20:36.690
as I take it, TBI means brain injury.

423
00:20:36.690 --> 00:20:37.920
<v ->It does.</v>
<v ->Physical injury.</v>

424
00:20:37.920 --> 00:20:39.180
<v ->It does.</v>
<v ->All right.</v>

425
00:20:39.180 --> 00:20:41.400
So how do those correlate?

426
00:20:41.400 --> 00:20:42.420
<v ->So I would submit that</v>

427
00:20:42.420 --> 00:20:45.090
it shouldn't even necessarily matter

428
00:20:45.090 --> 00:20:46.710
that there was no alignment

429
00:20:46.710 --> 00:20:48.690
between what the brain scan showed

430
00:20:48.690 --> 00:20:50.850
and specifically what Dr. Dudley showed.

431
00:20:50.850 --> 00:20:52.860
If there was evidence that the defendant

432
00:20:52.860 --> 00:20:56.370
had this huge hole in his head or this huge asymmetry,

433
00:20:56.370 --> 00:20:59.040
that's evidence that would've been extremely relevant

434
00:20:59.040 --> 00:20:59.970
to the jury.

435
00:20:59.970 --> 00:21:01.620
And they should have heard it to determine

436
00:21:01.620 --> 00:21:03.660
whether or not the defendant was suffering

437
00:21:03.660 --> 00:21:04.950
from a mental defect.

438
00:21:04.950 --> 00:21:06.960
There are a lot of cases...

439
00:21:06.960 --> 00:21:10.350
This court has recognized that in the Philbrook case

440
00:21:10.350 --> 00:21:13.830
and in other cases that brain defects

441
00:21:13.830 --> 00:21:16.890
are inherently mental defects.

442
00:21:16.890 --> 00:21:21.660
And the Fifth Circuit in Lyons was quite explicit about it,

443
00:21:21.660 --> 00:21:24.720
that evidence of brain damage is directly relevant

444
00:21:24.720 --> 00:21:27.540
to the issue of whether or not the defendant is suffering

445
00:21:27.540 --> 00:21:29.400
from a mental disease or defect.

446
00:21:29.400 --> 00:21:32.220
<v ->On the issue you wanted to start with, the raw data,</v>

447
00:21:32.220 --> 00:21:33.470
can I ask you about that?

448
00:21:35.850 --> 00:21:38.070
As I understand it from the record,

449
00:21:38.070 --> 00:21:40.233
and please correct me if I'm wrong,

450
00:21:43.140 --> 00:21:48.140
is the defense hires a psychologist

451
00:21:49.710 --> 00:21:52.050
to conduct some type of testing.

452
00:21:52.050 --> 00:21:55.800
And it turns out to be this intelligence quote testing.

453
00:21:55.800 --> 00:22:00.800
That was, as I understand it, not associated with Dudley.

454
00:22:04.230 --> 00:22:05.790
Then the prosecution,

455
00:22:05.790 --> 00:22:09.690
when they do under Rule 14 their reciprocal discovery,

456
00:22:09.690 --> 00:22:14.690
they reach out and they find that he had been tested again

457
00:22:16.080 --> 00:22:19.260
unrelated to Dudley.

458
00:22:19.260 --> 00:22:24.260
So if Dudley had authorized the psychological testing,

459
00:22:27.000 --> 00:22:28.297
it'd be a different issue, correct?

460
00:22:28.297 --> 00:22:29.760
<v ->[Attorney Schneider] That's correct.</v>

461
00:22:29.760 --> 00:22:32.790
<v ->'Cause it'd be part and parcel of a testifying expert.</v>

462
00:22:32.790 --> 00:22:33.990
<v ->That's correct.</v>
<v ->Okay.</v>

463
00:22:33.990 --> 00:22:35.730
<v ->And if he had reviewed it and relied on it.</v>

464
00:22:35.730 --> 00:22:37.230
But in this case, he didn't.

465
00:22:37.230 --> 00:22:38.820
<v ->Well, I was just wondering if he didn't rely on it</v>

466
00:22:38.820 --> 00:22:40.290
because he didn't wanna rely on it

467
00:22:40.290 --> 00:22:43.627
because the defense attorney said, "Whoa, this isn't good.

468
00:22:43.627 --> 00:22:45.120
"Let's not give it to Dudley."

469
00:22:45.120 --> 00:22:47.550
<v ->It's my understanding it wasn't disclosed to him</v>

470
00:22:47.550 --> 00:22:50.253
until after the judge issued the order.

471
00:22:51.120 --> 00:22:52.197
<v ->That was the question I had was</v>

472
00:22:52.197 --> 00:22:54.690
how did this issue arise basically?

473
00:22:54.690 --> 00:22:56.100
<v ->And the issue was litigated</v>

474
00:22:56.100 --> 00:22:57.990
up through the Single Justice and sent back

475
00:22:57.990 --> 00:23:01.740
because it wasn't appropriate for resolution at that time.

476
00:23:01.740 --> 00:23:02.640
<v ->Okay.</v>

477
00:23:02.640 --> 00:23:05.190
So how are you prejudiced by...

478
00:23:05.190 --> 00:23:07.940
If we find this is error, how are you prejudiced by it?

479
00:23:09.360 --> 00:23:11.250
<v ->Well, the evidence of the raw data</v>

480
00:23:11.250 --> 00:23:15.660
was obviously used to support Hebben's testimony

481
00:23:15.660 --> 00:23:18.510
that the defendant was just malingering,

482
00:23:18.510 --> 00:23:21.213
and ultimately to Kinscherff's testimony

483
00:23:21.213 --> 00:23:26.213
that he was just malingering and was not suffering

484
00:23:26.280 --> 00:23:28.380
from a mental disease or defect,

485
00:23:28.380 --> 00:23:32.160
which was the critical issue for the defense

486
00:23:32.160 --> 00:23:34.233
and for the prosecution in this case.

487
00:23:35.100 --> 00:23:38.583
<v ->Given that Hebbens relied on other tests,</v>

488
00:23:39.990 --> 00:23:43.620
not this raw data alone,

489
00:23:43.620 --> 00:23:46.230
how do we weigh that in determining the prejudice

490
00:23:46.230 --> 00:23:47.280
to your client?

491
00:23:47.280 --> 00:23:49.320
<v ->Well, I do think you have to look at her testimony</v>

492
00:23:49.320 --> 00:23:53.520
where she says that when she saw the discrepancies

493
00:23:53.520 --> 00:23:57.303
between the 2014 test and the 2015 IQ test,

494
00:23:59.122 --> 00:24:02.553
that this was one of the most important pieces of evidence.

495
00:24:03.630 --> 00:24:05.580
And by the time she testifies,

496
00:24:05.580 --> 00:24:08.310
one of the most important things that she looked at,

497
00:24:08.310 --> 00:24:12.090
and if Your Honor wishes, I could certainly submit

498
00:24:12.090 --> 00:24:13.990
a 28(j) letter to address that

499
00:24:15.780 --> 00:24:17.370
to point out exactly where that occurred

500
00:24:17.370 --> 00:24:18.720
although I think it's cited.

501
00:24:18.720 --> 00:24:19.553
<v Justice Gaziano>No, I think your brief</v>

502
00:24:19.553 --> 00:24:22.650
is quite extensive, so we don't need anything else.

503
00:24:22.650 --> 00:24:26.307
<v ->Yes, apologize for the extra reading, but yes.</v>

504
00:24:26.307 --> 00:24:27.933
<v ->No, no, appropriately so.</v>

505
00:24:29.250 --> 00:24:31.530
<v ->But this was a complicated case.</v>

506
00:24:31.530 --> 00:24:32.363
<v ->Well, let me ask you.</v>

507
00:24:32.363 --> 00:24:34.200
On those same lines as Justice Wendlandt asked you

508
00:24:34.200 --> 00:24:35.190
about prejudice,

509
00:24:35.190 --> 00:24:37.800
and Hebben's testimony about the other tests.

510
00:24:37.800 --> 00:24:42.603
Hebben also through skillful cross-examination, I think,

511
00:24:43.560 --> 00:24:47.730
admits that malingering could take two different forms.

512
00:24:47.730 --> 00:24:49.200
It could be pure malingering

513
00:24:49.200 --> 00:24:50.910
or I think she called it partial malingering

514
00:24:50.910 --> 00:24:54.180
where the person actually does have a mental illness

515
00:24:54.180 --> 00:24:56.850
but they're exaggerating the symptoms.

516
00:24:56.850 --> 00:24:59.433
Does that go into the prejudice analysis as well?

517
00:25:01.650 --> 00:25:04.410
<v ->Well, it's hard to say</v>

518
00:25:04.410 --> 00:25:06.690
'cause I think the Commonwealth's main expert

519
00:25:06.690 --> 00:25:10.860
was Dr. Kinscherff who testified that the defendant

520
00:25:10.860 --> 00:25:12.813
was just malingering.

521
00:25:15.300 --> 00:25:16.680
He specifically testified

522
00:25:16.680 --> 00:25:18.150
the defendant was just malingering

523
00:25:18.150 --> 00:25:20.940
and not suffering from a mental disease or defect.

524
00:25:20.940 --> 00:25:23.820
I think the thrust of the defense evidence was

525
00:25:23.820 --> 00:25:26.880
that even if there was some evidence of malingering,

526
00:25:26.880 --> 00:25:29.010
at least with respect to that IQ test,

527
00:25:29.010 --> 00:25:33.390
and frankly by 2015 the defendant had been tested so often

528
00:25:33.390 --> 00:25:35.730
that maybe he simply wasn't responding.

529
00:25:35.730 --> 00:25:36.870
But in any event...

530
00:25:36.870 --> 00:25:39.180
<v ->Let me ask you about-</v>
<v ->Yeah.</v>

531
00:25:39.180 --> 00:25:41.340
<v ->Say we agree with you in amici</v>

532
00:25:41.340 --> 00:25:44.190
regarding the interpretation of Rule 14

533
00:25:44.190 --> 00:25:48.543
on that one line and that footnote in Hanright, et cetera,

534
00:25:51.240 --> 00:25:54.810
is it authorized for the Commonwealth to get a list

535
00:25:54.810 --> 00:25:59.100
of tests that were done so they're not repeated?

536
00:25:59.100 --> 00:26:02.050
I understand raw data is different than the types of tests.

537
00:26:03.854 --> 00:26:05.580
How do we handle that?

538
00:26:05.580 --> 00:26:08.948
<v ->That's a good question going forward 'cause of the court.</v>

539
00:26:08.948 --> 00:26:10.020
<v Justice Gaziano>Well, help me out on that then.</v>

540
00:26:10.020 --> 00:26:10.853
What do we say?

541
00:26:12.930 --> 00:26:17.930
<v ->I think that because of the right to counsel issues</v>

542
00:26:18.240 --> 00:26:20.850
that are implicated by the Commonwealth

543
00:26:20.850 --> 00:26:25.380
being made aware of defense investigatory processes

544
00:26:25.380 --> 00:26:28.140
and consulting with experts

545
00:26:28.140 --> 00:26:31.590
that that's material that probably should not.

546
00:26:31.590 --> 00:26:36.270
Even though it may enhance the truth determining function,

547
00:26:36.270 --> 00:26:41.270
which is what Hanright understandably was addressing,

548
00:26:43.560 --> 00:26:45.780
I think the court has to remember

549
00:26:45.780 --> 00:26:48.690
that we're operating within the context, of course,

550
00:26:48.690 --> 00:26:50.670
of an adversarial system

551
00:26:50.670 --> 00:26:52.560
where defendants have a right to counsel

552
00:26:52.560 --> 00:26:54.990
that involves a right to zealous investigation,

553
00:26:54.990 --> 00:26:57.990
a right to explore all possible defenses,

554
00:26:57.990 --> 00:26:59.010
especially important

555
00:26:59.010 --> 00:27:02.853
in a complicated mental health situation like this one.

556
00:27:03.810 --> 00:27:08.490
When a case like this comes across a defense counsel's desk,

557
00:27:08.490 --> 00:27:11.790
the first thing they have to do is to try and figure out

558
00:27:11.790 --> 00:27:13.770
and understand what they're dealing with,

559
00:27:13.770 --> 00:27:17.040
and what are the different kinds of potential defenses

560
00:27:17.040 --> 00:27:18.240
that are available.

561
00:27:18.240 --> 00:27:21.450
And I think that the communications that the defendant,

562
00:27:21.450 --> 00:27:25.470
that the defense counsel has with the defendant

563
00:27:25.470 --> 00:27:27.150
and with defense experts,

564
00:27:27.150 --> 00:27:29.970
and between the defense experts and the defendant

565
00:27:29.970 --> 00:27:33.570
all have to be protected by the attorney client privilege.

566
00:27:33.570 --> 00:27:36.570
And I think that all falls within the right to counsel.

567
00:27:36.570 --> 00:27:38.252
So I would submit-

568
00:27:38.252 --> 00:27:40.020
<v ->At the sake of perhaps the issues</v>

569
00:27:40.020 --> 00:27:41.523
that are raised in Hanright?

570
00:27:42.600 --> 00:27:43.800
<v ->There might be some loss.</v>

571
00:27:43.800 --> 00:27:45.210
And there are other situations

572
00:27:45.210 --> 00:27:48.510
that I'm not sure I'm prepared to indicate,

573
00:27:48.510 --> 00:27:51.240
in which the truth determining function of trials

574
00:27:51.240 --> 00:27:55.170
has to give way to the rights of criminal defendants,

575
00:27:55.170 --> 00:27:57.990
the adversarial system, and the whole structure

576
00:27:57.990 --> 00:28:01.263
of the criminal justice system under our Constitution.

577
00:28:02.100 --> 00:28:07.100
And so I'm not sure that defense counsel should be required

578
00:28:07.620 --> 00:28:12.107
even to list the particular tests or the particular experts

579
00:28:14.310 --> 00:28:17.460
that she or he uses.

580
00:28:17.460 --> 00:28:20.400
<v ->As long as they're not adjacent to a testifying witness.</v>

581
00:28:20.400 --> 00:28:24.270
<v ->As long as they're not reviewed by and relied upon</v>

582
00:28:24.270 --> 00:28:25.890
the testifying witness.

583
00:28:25.890 --> 00:28:26.790
I think that's-

584
00:28:26.790 --> 00:28:28.467
<v ->Or at least, well, I don't know if relied upon,</v>

585
00:28:28.467 --> 00:28:29.670
but at least reviewed by.

586
00:28:29.670 --> 00:28:30.780
Because if they're reviewed by,

587
00:28:30.780 --> 00:28:32.624
then we have the cherry picking issue.

588
00:28:32.624 --> 00:28:33.660
<v ->[Attorney Schneider] At least reviewed by.</v>

589
00:28:33.660 --> 00:28:34.680
<v ->Reviewed by.</v>
<v ->For sure.</v>

590
00:28:34.680 --> 00:28:38.340
And I think that that's consistent with what Hanright said.

591
00:28:38.340 --> 00:28:40.830
I mean, obviously, Hanright only addressed

592
00:28:40.830 --> 00:28:44.190
prior treatment records and only if reviewed by

593
00:28:44.190 --> 00:28:46.110
the testifying defense expert.

594
00:28:46.110 --> 00:28:50.940
And I think the amicus brief elaborates even further

595
00:28:50.940 --> 00:28:52.120
in a very nice way

596
00:28:55.393 --> 00:28:56.790
on some of the points that we make

597
00:28:56.790 --> 00:28:59.373
in our brief on that issue.

598
00:29:01.890 --> 00:29:04.053
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

599
00:29:10.410 --> 00:29:11.673
<v ->Attorney O'Sullivan.</v>

600
00:29:16.290 --> 00:29:17.123
<v ->Good morning.</v>

601
00:29:17.123 --> 00:29:18.420
May it please the court, David O'Sullivan

602
00:29:18.420 --> 00:29:20.070
for the Commonwealth.

603
00:29:20.070 --> 00:29:23.040
With leave of the court, I'll start with the scans issue

604
00:29:23.040 --> 00:29:25.990
and hopefully address a question that Justices Gaziano,

605
00:29:25.990 --> 00:29:28.560
Wendlandt, and Georges were alluding to

606
00:29:28.560 --> 00:29:30.720
with respect to the credibility determination

607
00:29:30.720 --> 00:29:31.833
that the judge found.

608
00:29:32.880 --> 00:29:35.190
So what the judge can do,

609
00:29:35.190 --> 00:29:39.990
in fact the judge must do from cases back to Canavan

610
00:29:39.990 --> 00:29:43.530
is when he or she is determining

611
00:29:43.530 --> 00:29:45.870
whether the Daubert-Lanigan standard is met

612
00:29:45.870 --> 00:29:48.210
to exercise credibility determinations.

613
00:29:48.210 --> 00:29:49.620
What a judge may not do,

614
00:29:49.620 --> 00:29:52.320
and I would suggest what was not done in this case,

615
00:29:52.320 --> 00:29:54.330
is make a credibility determination

616
00:29:54.330 --> 00:29:56.160
with respect to the ultimate opinion

617
00:29:56.160 --> 00:29:58.470
that's offered by a defense expert

618
00:29:58.470 --> 00:30:02.160
and exclude it based on disagreement with that opinion.

619
00:30:02.160 --> 00:30:07.020
But our system assumes the need for a judge

620
00:30:07.020 --> 00:30:08.850
to exercise credibility determinations

621
00:30:08.850 --> 00:30:11.190
in getting to the point of, you know,

622
00:30:11.190 --> 00:30:12.840
the Daubert-Lanigan standard.

623
00:30:12.840 --> 00:30:14.160
<v Justice Gaziano>What case do you cite</v>

624
00:30:14.160 --> 00:30:15.180
for that proposition?

625
00:30:15.180 --> 00:30:16.920
<v ->So Hines is the one we cite.</v>

626
00:30:16.920 --> 00:30:19.734
But I think where my brother is citing Roberio,

627
00:30:19.734 --> 00:30:23.557
it helps to actually quote what they said in Roberio.

628
00:30:23.557 --> 00:30:26.107
"Once the expert's qualifications were established,

629
00:30:26.107 --> 00:30:29.587
"and assuming the expert's testimony met the standard

630
00:30:29.587 --> 00:30:33.120
"of Lanigan, the issue of credibility was for the jury."

631
00:30:33.120 --> 00:30:35.070
So when we get to that point,

632
00:30:35.070 --> 00:30:38.310
then the judge has to shut off any disagreement

633
00:30:38.310 --> 00:30:41.370
with the expert here.

634
00:30:41.370 --> 00:30:43.350
And I would submit that this mattered

635
00:30:43.350 --> 00:30:45.903
in this particular case for a couple of reasons.

636
00:30:47.366 --> 00:30:48.870
There were two experts that testified

637
00:30:48.870 --> 00:30:51.000
for the defense in the Daubert-Lanigan hearing,

638
00:30:51.000 --> 00:30:53.970
one of which was ultimately proffered by the defense.

639
00:30:53.970 --> 00:30:57.243
The testimony, to use my brother's term,

640
00:30:58.140 --> 00:31:02.550
of Dr. Gher was not recapitulated in the testimony

641
00:31:02.550 --> 00:31:05.790
of Dr. Satterthwaite, who was ultimately proffered.

642
00:31:05.790 --> 00:31:08.883
Dr. Satterthwaite's testimony was more measured.

643
00:31:09.720 --> 00:31:11.220
That may have been the reason, ultimately,

644
00:31:11.220 --> 00:31:14.640
they tactically decided to proffer his testimony.

645
00:31:14.640 --> 00:31:18.360
Because he simply came off as more credible.

646
00:31:18.360 --> 00:31:22.230
But he was more measured in several respects.

647
00:31:22.230 --> 00:31:25.940
First of all, he acknowledged that the number of scans,

648
00:31:25.940 --> 00:31:28.770
or the number of persons in the control group,

649
00:31:28.770 --> 00:31:33.060
limited the statistical power to detect abnormality.

650
00:31:33.060 --> 00:31:36.300
That was not something that Dr. Gher admitted.

651
00:31:36.300 --> 00:31:39.900
Second, he acknowledged that these types of scans

652
00:31:39.900 --> 00:31:43.710
are not in fact used for the purpose proffered here,

653
00:31:43.710 --> 00:31:47.580
that is in aid of diagnosis of a psychiatric condition here,

654
00:31:47.580 --> 00:31:49.860
particularly schizophrenia.

655
00:31:49.860 --> 00:31:51.600
And further, he went further than that.

656
00:31:51.600 --> 00:31:55.320
Not only are they not used as a standard of practice

657
00:31:55.320 --> 00:31:58.387
in the relevant field, they're not quote,

658
00:31:58.387 --> 00:32:01.020
"ready for such use."

659
00:32:01.020 --> 00:32:04.230
In fact, he said that the processing algorithms

660
00:32:04.230 --> 00:32:07.620
and the pattern recognition tools are not ready to be used

661
00:32:07.620 --> 00:32:10.230
for the purpose of clinical diagnosis.

662
00:32:10.230 --> 00:32:12.840
And so where that's the purpose

663
00:32:12.840 --> 00:32:14.400
that they're being offered here,

664
00:32:14.400 --> 00:32:19.230
I acknowledge that it is, you know, not the end-all, be-all

665
00:32:19.230 --> 00:32:21.870
whether it's used in clinical diagnosis.

666
00:32:21.870 --> 00:32:24.330
But where the purpose is to aid in a diagnosis,

667
00:32:24.330 --> 00:32:26.070
that becomes pretty important here

668
00:32:26.070 --> 00:32:29.070
and was certainly within the judge's discretion to consider.

669
00:32:30.120 --> 00:32:33.483
So as to the guidelines,

670
00:32:34.740 --> 00:32:36.780
you know, it's important to note that

671
00:32:36.780 --> 00:32:39.780
these don't reflect the opinion of one doctor,

672
00:32:39.780 --> 00:32:41.190
but rather are the results

673
00:32:41.190 --> 00:32:43.860
of a multidisciplinary consensus conference.

674
00:32:43.860 --> 00:32:45.840
And the guidelines that came out of that

675
00:32:45.840 --> 00:32:47.850
reflect that consensus.

676
00:32:47.850 --> 00:32:50.790
And so these guidelines which were submitted in connection

677
00:32:50.790 --> 00:32:52.860
with the Commonwealth's Daubert-Lanigan materials

678
00:32:52.860 --> 00:32:55.140
either provided a roadmap for the defense

679
00:32:55.140 --> 00:32:58.320
to provide a solid proffer

680
00:32:58.320 --> 00:33:03.270
on this novel use of this, you know, this technology

681
00:33:03.270 --> 00:33:04.740
for the purpose offered here,

682
00:33:04.740 --> 00:33:08.100
or a list of why the proffer was deficient.

683
00:33:08.100 --> 00:33:11.550
And I would say, what shook out was the latter.

684
00:33:11.550 --> 00:33:13.290
There was a catalog of the deficiencies

685
00:33:13.290 --> 00:33:16.743
that are noted in the guidelines.

686
00:33:18.000 --> 00:33:19.980
And, you know, one issue,

687
00:33:19.980 --> 00:33:24.980
to speak to Justice Georges' concerns regarding helpfulness,

688
00:33:25.200 --> 00:33:27.840
we would suggest that before we even get

689
00:33:27.840 --> 00:33:29.610
to the Daubert-Lanigan factors,

690
00:33:29.610 --> 00:33:32.160
there are issues of assistance to the trier of fact here

691
00:33:32.160 --> 00:33:34.290
that we would submit glaring

692
00:33:34.290 --> 00:33:37.290
even if they weren't expressly noted by the judge.

693
00:33:37.290 --> 00:33:40.950
The first being that as the guidelines made clear,

694
00:33:40.950 --> 00:33:44.220
that the scanners and the post-processing techniques

695
00:33:44.220 --> 00:33:48.390
and data interpretation are rapidly developing.

696
00:33:48.390 --> 00:33:51.030
And so we have, you know, these 61 scans

697
00:33:51.030 --> 00:33:53.760
taken from the Philadelphia cohort.

698
00:33:53.760 --> 00:33:56.580
And then we have these scans taken of the defendant

699
00:33:56.580 --> 00:34:00.630
in September of 2014 at MGH.

700
00:34:00.630 --> 00:34:04.620
There is no testimony in the proffer that the scanners,

701
00:34:04.620 --> 00:34:06.360
the post-processing techniques used,

702
00:34:06.360 --> 00:34:08.670
the data interpretation were the same

703
00:34:08.670 --> 00:34:09.960
even though the guidelines say

704
00:34:09.960 --> 00:34:12.990
that could make the results vary greatly.

705
00:34:12.990 --> 00:34:14.010
So in terms of whether

706
00:34:14.010 --> 00:34:16.110
there's an apples-to-apples comparison here,

707
00:34:16.110 --> 00:34:18.150
we would suggest that out of the gate,

708
00:34:18.150 --> 00:34:20.700
there was a problem in this proffer,

709
00:34:20.700 --> 00:34:22.850
even though that wasn't specified by the judge as a reason.

710
00:34:22.850 --> 00:34:25.890
<v ->So your position taken to its logical end</v>

711
00:34:25.890 --> 00:34:30.693
would mean that in order for MRI tests to be admissible,

712
00:34:36.060 --> 00:34:37.290
they would have to be,

713
00:34:37.290 --> 00:34:39.270
the study would've had to have been conducted

714
00:34:39.270 --> 00:34:41.940
on the same machine as the MRI test used

715
00:34:41.940 --> 00:34:45.420
on the person involved in the case.

716
00:34:45.420 --> 00:34:46.560
<v ->According to the guidelines,</v>

717
00:34:46.560 --> 00:34:49.824
that would certainly improve the quality of the proffer.

718
00:34:49.824 --> 00:34:50.910
<v ->[Justice Wolohojian] Would it be required?</v>

719
00:34:50.910 --> 00:34:53.010
<v ->I don't know if it would be required, Your Honor,</v>

720
00:34:53.010 --> 00:34:54.450
but it would definitely be something

721
00:34:54.450 --> 00:34:57.390
that ought to be addressed in the proffer itself.

722
00:34:57.390 --> 00:35:01.320
Either it could be had the defendant been

723
00:35:01.320 --> 00:35:05.460
or had Dr. Satterthwaite been asked this question

724
00:35:05.460 --> 00:35:06.293
that he would've said,

725
00:35:06.293 --> 00:35:08.310
"It doesn't matter for X, Y and Z reasons."

726
00:35:08.310 --> 00:35:10.830
But here, we just have a gap in the proffer

727
00:35:10.830 --> 00:35:13.080
on which the defendant carried the burden.

728
00:35:13.080 --> 00:35:14.880
And that's important here.

729
00:35:14.880 --> 00:35:16.800
To the extent there are gaps in this proffer,

730
00:35:16.800 --> 00:35:20.250
the burden was on the defendant to show its compliance

731
00:35:20.250 --> 00:35:22.800
with the Daubert-Lanigan standards.

732
00:35:22.800 --> 00:35:26.910
So the other reason is that

733
00:35:26.910 --> 00:35:29.730
although this might not be sufficient on its own,

734
00:35:29.730 --> 00:35:32.540
is that this evidence was proffered on the issue

735
00:35:32.540 --> 00:35:35.730
of the defendant's mental state at the time of the crime,

736
00:35:35.730 --> 00:35:38.670
which was, of course, two years before the scans

737
00:35:38.670 --> 00:35:39.780
were ultimately taken.

738
00:35:39.780 --> 00:35:42.810
<v ->I guess that leads to another logical question</v>

739
00:35:42.810 --> 00:35:44.580
for us when we talk about this.

740
00:35:44.580 --> 00:35:47.760
Because as your opposing counsel mentioned,

741
00:35:47.760 --> 00:35:50.190
this happens in all of these cases, right,

742
00:35:50.190 --> 00:35:51.330
that it's after the fact.

743
00:35:51.330 --> 00:35:56.280
So how are we to evaluate the issues

744
00:35:56.280 --> 00:35:59.100
with Daubert-Lanigan retroactively?

745
00:36:02.130 --> 00:36:06.780
I mean, how are we supposed to meaningfully give guidance

746
00:36:06.780 --> 00:36:10.680
to trial judges where this is what you're going to find?

747
00:36:10.680 --> 00:36:13.620
It's the state of affairs all the time.

748
00:36:13.620 --> 00:36:15.900
And how are we supposed to do that?

749
00:36:15.900 --> 00:36:18.660
<v ->Well, I think it makes sense</v>

750
00:36:18.660 --> 00:36:21.780
to look at the particular technology

751
00:36:21.780 --> 00:36:23.703
or evidence that's being offered.

752
00:36:25.230 --> 00:36:27.090
And maybe it makes sense here to compare it

753
00:36:27.090 --> 00:36:29.280
to the psychometric tests utilized

754
00:36:29.280 --> 00:36:32.580
by the Commonwealth experts, particularly Dr. Hebben.

755
00:36:32.580 --> 00:36:36.150
So in one case, the scans...

756
00:36:36.150 --> 00:36:38.880
As we know, an sMRI scan is a snapshot

757
00:36:38.880 --> 00:36:43.080
of the defendant's structural brain, you know, qualities

758
00:36:43.080 --> 00:36:44.310
at a moment in time,

759
00:36:44.310 --> 00:36:47.220
literally at the second the scan is taken.

760
00:36:47.220 --> 00:36:49.440
So it's chiefly relevant to the brain state

761
00:36:49.440 --> 00:36:51.300
at that period in time.

762
00:36:51.300 --> 00:36:53.610
It may be through testimonial linkage

763
00:36:53.610 --> 00:36:56.227
that a good Dopp Air showing could say,

764
00:36:56.227 --> 00:36:58.357
"Okay, well, we find this characteristic

765
00:36:58.357 --> 00:36:59.527
"significant in the brain.

766
00:36:59.527 --> 00:37:03.817
"And also, we find, or we aver that, you know,

767
00:37:03.817 --> 00:37:07.050
"two years before, this was likely to have also existed."

768
00:37:07.050 --> 00:37:10.140
'Cause recall that the scans were taken

769
00:37:10.140 --> 00:37:12.090
not only at a moment in time,

770
00:37:12.090 --> 00:37:14.310
but amid a time of, (hits mic accidentally) excuse me,

771
00:37:14.310 --> 00:37:17.580
of rapid volumetric change.

772
00:37:17.580 --> 00:37:19.470
And so when you're ascribing significance

773
00:37:19.470 --> 00:37:21.210
to a physical characteristic

774
00:37:21.210 --> 00:37:23.950
and you're measuring that characteristic amid a period

775
00:37:24.960 --> 00:37:28.770
that you know is one of rapid volumetric change,

776
00:37:28.770 --> 00:37:32.913
you'd better have some linkage to the time of the crime.

777
00:37:34.230 --> 00:37:36.660
And the defense seemed to understand

778
00:37:36.660 --> 00:37:37.920
that this was a necessary link,

779
00:37:37.920 --> 00:37:39.930
because their motion in limine mentions it

780
00:37:39.930 --> 00:37:42.000
and their opening argument mentions it.

781
00:37:42.000 --> 00:37:43.230
<v ->How do you address the fact</v>

782
00:37:43.230 --> 00:37:47.580
that this has been admissible in many mitigation cases

783
00:37:47.580 --> 00:37:49.410
in the federal courts?

784
00:37:49.410 --> 00:37:52.293
<v ->Well, mitigation is different.</v>

785
00:37:54.180 --> 00:37:57.003
You know, the evidentiary standards are looser there,

786
00:37:57.930 --> 00:37:58.763
typically,

787
00:37:58.763 --> 00:38:01.550
particularly when we're talking about death penalty cases.

788
00:38:02.490 --> 00:38:06.450
But I would submit that here where it's proffered

789
00:38:06.450 --> 00:38:09.180
on the issue of criminal responsibility

790
00:38:09.180 --> 00:38:10.920
and where there's particular power

791
00:38:10.920 --> 00:38:12.720
to this type of testimony,

792
00:38:12.720 --> 00:38:15.450
both that we could understand sort of in a common sense way

793
00:38:15.450 --> 00:38:19.050
and as the guidelines particularly, you know, reference

794
00:38:19.050 --> 00:38:20.190
where there's peculiar power

795
00:38:20.190 --> 00:38:22.590
to the idea of, "Oh, we don't need..."

796
00:38:22.590 --> 00:38:25.560
<v Justice Gaziano>That's a 403 argument, correct?</v>

797
00:38:25.560 --> 00:38:30.560
<v ->It folds into 403, but I think it's relevant as well to,</v>

798
00:38:32.370 --> 00:38:35.610
yeah, it really is a 403 argument

799
00:38:35.610 --> 00:38:39.900
with respect to the particular power of this testimony.

800
00:38:39.900 --> 00:38:41.460
When you're looking at it and we're saying,

801
00:38:41.460 --> 00:38:45.810
Okay, you know, an average juror could look at this

802
00:38:45.810 --> 00:38:48.457
and say, "Okay, well, we have a picture of the brain.

803
00:38:48.457 --> 00:38:52.357
"Oh, isn't this a wonderful enticing window

804
00:38:52.357 --> 00:38:53.317
"into the defendant's brain,

805
00:38:53.317 --> 00:38:56.167
"which will obviate the need to look any further.

806
00:38:56.167 --> 00:38:58.027
"After all, look at this brain characteristic.

807
00:38:58.027 --> 00:38:59.517
"That explains it."

808
00:39:00.360 --> 00:39:02.190
You know, I think, frankly, the experts

809
00:39:02.190 --> 00:39:05.004
who created the guidelines did a public service.

810
00:39:05.004 --> 00:39:06.930
<v ->[Justice Wendlandt] But I thought</v>

811
00:39:06.930 --> 00:39:08.823
the photos weren't gonna come in.

812
00:39:10.170 --> 00:39:11.940
<v ->Correct, the photos weren't going to come in, but I-</v>

813
00:39:11.940 --> 00:39:14.190
<v ->But you wouldn't have the problem of these,</v>

814
00:39:14.190 --> 00:39:19.190
you know, suddenly scientists that jurors can become

815
00:39:19.650 --> 00:39:22.140
when they see, "Aha, this brain looks different."

816
00:39:22.140 --> 00:39:25.170
<v ->Right, and just to be clear, they're not photos,</v>

817
00:39:25.170 --> 00:39:27.630
but they would be graphical representations

818
00:39:27.630 --> 00:39:29.700
of the volumetric differences of the brain

819
00:39:29.700 --> 00:39:31.710
represented by colors.
<v ->Understood, yes.</v>

820
00:39:31.710 --> 00:39:33.480
<v ->But to your point, Your Honor,</v>

821
00:39:33.480 --> 00:39:37.410
I think the same danger of oversimplification

822
00:39:37.410 --> 00:39:41.250
and perceived objectivity would enure from testimony

823
00:39:41.250 --> 00:39:42.660
as it would enure from the pictures.

824
00:39:42.660 --> 00:39:44.970
If you're testifying to the same facts

825
00:39:44.970 --> 00:39:46.980
that would be in the picture,

826
00:39:46.980 --> 00:39:50.400
then I think, and a fair reading of the guidelines is,

827
00:39:50.400 --> 00:39:53.410
that that sort of testimony carries the same dangers

828
00:39:55.440 --> 00:39:56.970
as does the pictures themselves.

829
00:39:56.970 --> 00:39:59.943
So it's not only the pictures we're complaining about.

830
00:40:01.080 --> 00:40:04.110
It would be the testimony to the effect

831
00:40:04.110 --> 00:40:07.080
that there were, you know, "clinically significant..."

832
00:40:07.080 --> 00:40:08.430
And I'm putting that in quotes.

833
00:40:08.430 --> 00:40:11.190
Anytime I say "abnormality" in this oral argument

834
00:40:11.190 --> 00:40:13.770
or "clinically significant volumetric difference,"

835
00:40:13.770 --> 00:40:15.063
I would be in quotes.

836
00:40:16.860 --> 00:40:21.483
You know, that would have peculiar power to a jury.

837
00:40:23.220 --> 00:40:25.290
Because it would be attached to some number

838
00:40:25.290 --> 00:40:27.480
that it was alleged to have particular significance

839
00:40:27.480 --> 00:40:28.500
in the case.

840
00:40:28.500 --> 00:40:32.160
And in the reply brief, there's a suggestion

841
00:40:32.160 --> 00:40:36.180
that we are attacking the use of Z-Scores,

842
00:40:36.180 --> 00:40:37.890
which is not the case.

843
00:40:37.890 --> 00:40:39.780
We recognize that Z-Scores

844
00:40:39.780 --> 00:40:43.590
are a standard statistical measure that are used.

845
00:40:43.590 --> 00:40:47.100
The problem is more in the monikers

846
00:40:47.100 --> 00:40:49.110
that were used for, for example,

847
00:40:49.110 --> 00:40:52.290
from one to two standard deviations from the mean

848
00:40:52.290 --> 00:40:55.023
that was termed as clinically significant.

849
00:40:56.430 --> 00:40:57.930
You'd be hard pressed to say

850
00:40:57.930 --> 00:41:00.510
where you've also admitted in the same proffer

851
00:41:00.510 --> 00:41:04.320
that these types of scans are not used clinically,

852
00:41:04.320 --> 00:41:06.870
that this is clinically significant.

853
00:41:06.870 --> 00:41:10.530
So, you know, we would suggest that serious prejudice

854
00:41:10.530 --> 00:41:12.420
would enure from that type of testimony.

855
00:41:12.420 --> 00:41:17.420
<v ->Can I ask you to address the raw data issue?</v>

856
00:41:18.090 --> 00:41:19.440
<v ->Sure.</v>

857
00:41:19.440 --> 00:41:24.440
So we would submit, and I think it probably makes sense

858
00:41:25.020 --> 00:41:28.143
to map out how it actually happened at trial.

859
00:41:29.310 --> 00:41:32.400
Obviously, the Commonwealth has the right

860
00:41:32.400 --> 00:41:35.950
to conduct whatever tests it deems necessary

861
00:41:36.960 --> 00:41:40.380
in order to serve the court-appointed examiner's,

862
00:41:40.380 --> 00:41:43.200
you know, larger evaluation.

863
00:41:43.200 --> 00:41:44.247
In this case, there was-

864
00:41:44.247 --> 00:41:48.180
<v ->But why does the Commonwealth get to enter</v>

865
00:41:48.180 --> 00:41:53.180
into the strategic decisions of trial counsel

866
00:41:53.880 --> 00:41:56.820
in retaining a consulting expert

867
00:41:56.820 --> 00:42:00.810
to determine whether any particular defense

868
00:42:00.810 --> 00:42:02.043
should be marshaled?

869
00:42:02.880 --> 00:42:04.980
<v ->In your average case, it wouldn't</v>

870
00:42:04.980 --> 00:42:08.280
where the defendant didn't ultimately decide

871
00:42:08.280 --> 00:42:10.050
to proffer the defense.

872
00:42:10.050 --> 00:42:11.097
But the court's concern-

873
00:42:11.097 --> 00:42:14.970
<v ->The defense or that particular consulting expert?</v>

874
00:42:14.970 --> 00:42:16.170
<v ->So the defense.</v>

875
00:42:16.170 --> 00:42:21.170
And for the reasons that the court pointed up in Hanright.

876
00:42:21.630 --> 00:42:22.463
And there was a twofold-

877
00:42:22.463 --> 00:42:24.810
<v ->But Hanright was about treatment records.</v>

878
00:42:24.810 --> 00:42:28.150
This is about records created by trial counsel

879
00:42:29.730 --> 00:42:32.730
in connection with figuring out whether or not

880
00:42:32.730 --> 00:42:34.560
to marshal a particular defense.

881
00:42:34.560 --> 00:42:38.310
I don't think Hanright is controlling here.

882
00:42:38.310 --> 00:42:41.640
<v ->Well, Hanright's facts, I would agree, Your Honor,</v>

883
00:42:41.640 --> 00:42:43.590
concerned prior treatment records.

884
00:42:43.590 --> 00:42:46.680
But Hanright did more than decide

885
00:42:46.680 --> 00:42:48.033
the narrow question before it.

886
00:42:48.033 --> 00:42:50.280
<v ->That's always the problem, isn't it,</v>

887
00:42:50.280 --> 00:42:53.380
when the court goes beyond what its narrow question is?

888
00:42:53.380 --> 00:42:57.030
<v ->Well, the court created its interim records rule,</v>

889
00:42:57.030 --> 00:42:59.160
it's interim same records rule.

890
00:42:59.160 --> 00:43:01.350
And then the court defined that rule.

891
00:43:01.350 --> 00:43:03.633
And I think the court's, you know,

892
00:43:04.680 --> 00:43:06.780
use of words is very important.

893
00:43:06.780 --> 00:43:08.730
It didn't say that the court-appointed examiners

894
00:43:08.730 --> 00:43:11.430
get the same records that the counsel elects

895
00:43:11.430 --> 00:43:14.010
to provide its own expert.

896
00:43:14.010 --> 00:43:17.010
It said it gets the records that counsel

897
00:43:17.010 --> 00:43:21.150
should have provided to its own experts.

898
00:43:21.150 --> 00:43:23.010
And it raised a dual concern

899
00:43:23.010 --> 00:43:26.340
with counsel making non-professional judgements

900
00:43:26.340 --> 00:43:28.530
about what records are forensically relevant

901
00:43:28.530 --> 00:43:30.630
to give to their own expert

902
00:43:30.630 --> 00:43:32.883
or to keep their expert in the dark about.

903
00:43:33.870 --> 00:43:35.193
And the dual concerns were this.

904
00:43:35.193 --> 00:43:36.450
<v ->Well, presumably, an expert,</v>

905
00:43:36.450 --> 00:43:37.890
if they're actually an expert,

906
00:43:37.890 --> 00:43:40.800
can figure out what records they want.

907
00:43:40.800 --> 00:43:41.880
And those records,

908
00:43:41.880 --> 00:43:45.570
so long as the defendant is putting the expert up,

909
00:43:45.570 --> 00:43:49.320
are freely available to the Commonwealth's expert as well

910
00:43:49.320 --> 00:43:50.153
or should be.

911
00:43:50.153 --> 00:43:52.140
<v ->Right, those as well.</v>

912
00:43:52.140 --> 00:43:54.960
But where there's a non-testifying expert consultant,

913
00:43:54.960 --> 00:43:57.120
in the defendant's phrase,

914
00:43:57.120 --> 00:44:00.210
those records also might be directly relevant

915
00:44:00.210 --> 00:44:04.650
to the defense examiner's evaluation

916
00:44:04.650 --> 00:44:06.143
and the court appointed-

917
00:44:06.143 --> 00:44:07.724
<v ->[Justice Wolohojian] Do you have a case-</v>

918
00:44:07.724 --> 00:44:08.557
<v ->[Chief Justice Budd] I'm sorry.</v>

919
00:44:08.557 --> 00:44:09.540
I was just gonna say,

920
00:44:09.540 --> 00:44:11.880
let's say we don't agree with you on that.

921
00:44:11.880 --> 00:44:14.160
Isn't there a problem here for the Commonwealth?

922
00:44:14.160 --> 00:44:15.330
<v ->I would submit no.</v>

923
00:44:15.330 --> 00:44:20.330
And to look at Sliech-Brodeur as a definite, you know, case

924
00:44:21.450 --> 00:44:24.270
where something very different happened there.

925
00:44:24.270 --> 00:44:27.060
And there were defense-generated materials,

926
00:44:27.060 --> 00:44:30.480
200 pages worth, were disclosed on order of the judge

927
00:44:30.480 --> 00:44:32.280
to the Commonwealth's expert.

928
00:44:32.280 --> 00:44:35.160
That included not only the limited amount

929
00:44:35.160 --> 00:44:36.420
that was at issue here,

930
00:44:36.420 --> 00:44:38.940
which is just the raw testing data,

931
00:44:38.940 --> 00:44:43.530
i.e., the defendant's answers to psychometric tests,

932
00:44:43.530 --> 00:44:47.280
but rather also the expert's notes from interviews,

933
00:44:47.280 --> 00:44:50.880
the interpretive notes from psychological testing results.

934
00:44:50.880 --> 00:44:55.650
So there's a much broader, you know, subset of materials

935
00:44:55.650 --> 00:44:58.260
of which the psychological testing raw data

936
00:44:58.260 --> 00:45:00.090
was just a small part.

937
00:45:00.090 --> 00:45:02.700
Even so, in that case,

938
00:45:02.700 --> 00:45:06.270
the court said that a foundational reason

939
00:45:06.270 --> 00:45:08.700
for the Commonwealth's expert's opinion

940
00:45:08.700 --> 00:45:13.440
was review of those notes of the interviews.

941
00:45:13.440 --> 00:45:16.650
And so there, there was a clear impact in the case.

942
00:45:16.650 --> 00:45:19.650
Here, Dr. Hebben's opinion was based

943
00:45:19.650 --> 00:45:22.920
on her own psychological testing results.

944
00:45:22.920 --> 00:45:25.380
And that was essentially a tag on at the end.

945
00:45:25.380 --> 00:45:27.900
And it wasn't emphasized in the Commonwealth's argument

946
00:45:27.900 --> 00:45:28.770
or anything like that.

947
00:45:28.770 --> 00:45:31.410
So it's a very different scenario.

948
00:45:31.410 --> 00:45:32.880
<v ->I don't remember the closing argument.</v>

949
00:45:32.880 --> 00:45:33.930
Did the Commonwealth,

950
00:45:35.280 --> 00:45:37.590
did the prosecutor raise that issue at closing arguments?

951
00:45:37.590 --> 00:45:38.670
<v ->No, no.</v>

952
00:45:38.670 --> 00:45:41.040
And also, Justice Gaziano,

953
00:45:41.040 --> 00:45:44.340
sorry, Dr. Kinscherff did,

954
00:45:44.340 --> 00:45:46.710
and I'm not sure my brother said this.

955
00:45:46.710 --> 00:45:49.350
But just to be clear, Dr. Kinscherff did not testify

956
00:45:49.350 --> 00:45:53.220
to that intelligence testing difference.

957
00:45:53.220 --> 00:45:56.977
<v ->Dr. Kinscherff did say, "I took it in consideration,</v>

958
00:45:56.977 --> 00:45:59.400
"the testing regarding..."

959
00:45:59.400 --> 00:46:03.026
I think he said, "Hebben's testing regarding malingering."

960
00:46:03.026 --> 00:46:03.993
<v ->[Attorney O'Sullivan] Hebben's testing, correct?</v>

961
00:46:03.993 --> 00:46:04.826
<v ->Hebben's testing regarding malingering.</v>

962
00:46:04.826 --> 00:46:09.270
<v ->Yeah, yeah, but he did not testify as to this difference</v>

963
00:46:09.270 --> 00:46:11.820
between the cognitive tests

964
00:46:11.820 --> 00:46:14.010
that were taken of the defendant.

965
00:46:14.010 --> 00:46:16.170
But if I could go back for a second

966
00:46:16.170 --> 00:46:20.010
to the issue of how this sort of shook out.

967
00:46:20.010 --> 00:46:22.620
Initially, it was requested by Dr. Hebben

968
00:46:22.620 --> 00:46:27.620
to learn which tests were given for an important reason.

969
00:46:28.350 --> 00:46:29.760
This was a 14-year-old.

970
00:46:29.760 --> 00:46:32.250
There were few tests that were validated

971
00:46:32.250 --> 00:46:34.080
for kids down to that age.

972
00:46:34.080 --> 00:46:36.840
We needed to know which tests were done

973
00:46:36.840 --> 00:46:39.450
to account for the issue of practice effects.

974
00:46:39.450 --> 00:46:40.983
And so it was done in stages.

975
00:46:43.530 --> 00:46:46.410
The Commonwealth first moved to learn which tests happened.

976
00:46:46.410 --> 00:46:48.870
And then from that, after that,

977
00:46:48.870 --> 00:46:53.310
she selected the test for which she would need raw data

978
00:46:53.310 --> 00:46:57.270
and submitted in-camera an affidavit

979
00:46:57.270 --> 00:47:00.390
to establish her forensic need for that.

980
00:47:00.390 --> 00:47:03.270
And so it was a very limited data set that went out,

981
00:47:03.270 --> 00:47:05.429
nothing like what was disclosed in Sliech-Brodeur.

982
00:47:05.429 --> 00:47:06.690
<v ->Isn't that a contradiction though?</v>

983
00:47:06.690 --> 00:47:10.440
She said which tests and data she needed,

984
00:47:10.440 --> 00:47:13.173
but then said she didn't use it.

985
00:47:14.970 --> 00:47:19.970
<v ->So well, she needed to learn what testing she could do</v>

986
00:47:20.850 --> 00:47:23.550
and how to interpret those testing results.

987
00:47:23.550 --> 00:47:27.600
The affidavit, which lays out her reasons for that,

988
00:47:27.600 --> 00:47:31.500
which are sort of technical reasons of a neuropsychologist,

989
00:47:31.500 --> 00:47:33.570
are set forth in her affidavits,

990
00:47:33.570 --> 00:47:34.920
both the one that's not impounded

991
00:47:34.920 --> 00:47:37.440
and the one that is impounded and sealed.

992
00:47:37.440 --> 00:47:40.020
So, you know, I'd refer the court to those.

993
00:47:40.020 --> 00:47:41.017
<v ->Well, she testifies,</v>

994
00:47:41.017 --> 00:47:44.077
"I gave I think it was three or four tests.

995
00:47:44.077 --> 00:47:45.810
"These are the results."

996
00:47:45.810 --> 00:47:48.247
And then she says, "In addition,

997
00:47:48.247 --> 00:47:51.030
"he was subject to two IQ tests."

998
00:47:51.030 --> 00:47:52.950
And essentially, he did fine on one

999
00:47:52.950 --> 00:47:55.260
and he tanked the second one,

1000
00:47:55.260 --> 00:47:57.600
which is further evidence of malingering.

1001
00:47:57.600 --> 00:48:00.600
<v ->Right, it supported the idea of malingering.</v>

1002
00:48:00.600 --> 00:48:04.890
But she also conducted four tests on her own

1003
00:48:04.890 --> 00:48:06.720
for the purpose of convergent validity,

1004
00:48:06.720 --> 00:48:10.050
which themselves totally separate from that

1005
00:48:10.050 --> 00:48:11.970
yielded a result of almost, you know,

1006
00:48:11.970 --> 00:48:14.760
100% positive prediction of malingering.

1007
00:48:14.760 --> 00:48:17.283
<v ->I guess you're settling on the fact</v>

1008
00:48:17.283 --> 00:48:19.560
that essentially there wasn't any prejudice

1009
00:48:19.560 --> 00:48:21.930
to the defendant in this.

1010
00:48:21.930 --> 00:48:25.830
But just generally speaking, in a case like this with,

1011
00:48:25.830 --> 00:48:28.230
as you described a little bit earlier,

1012
00:48:28.230 --> 00:48:32.013
this really powerful mental health evidence,

1013
00:48:34.590 --> 00:48:38.010
how are we to define the outer limits

1014
00:48:38.010 --> 00:48:41.190
of what's fair discovery in the context

1015
00:48:41.190 --> 00:48:46.190
of these really complicated mental health defense cases?

1016
00:48:46.890 --> 00:48:51.453
Because this is only going to get more complicated.

1017
00:48:52.890 --> 00:48:56.160
The science is just going to get better and better.

1018
00:48:56.160 --> 00:48:59.943
How are we supposed to cabin this?

1019
00:49:00.840 --> 00:49:02.010
<v ->Particularly with regard</v>

1020
00:49:02.010 --> 00:49:04.650
to defense-generated materials, Your Honor?

1021
00:49:04.650 --> 00:49:07.050
<v ->I think that's part of it, right?</v>

1022
00:49:07.050 --> 00:49:08.790
Because if you are saying

1023
00:49:08.790 --> 00:49:13.230
that this was discoverable under Rule 14,

1024
00:49:13.230 --> 00:49:17.430
so what are the limits of fair discovery here?

1025
00:49:17.430 --> 00:49:19.140
<v ->So I would suggest that the court,</v>

1026
00:49:19.140 --> 00:49:22.290
when it adopted a month after this trial,

1027
00:49:22.290 --> 00:49:25.950
its raw data rule came down.

1028
00:49:25.950 --> 00:49:27.660
You know, after Sliech-Brodeur, you know,

1029
00:49:27.660 --> 00:49:29.670
they invited the Rules Committee

1030
00:49:29.670 --> 00:49:33.330
to consider particularly the issue of raw data.

1031
00:49:33.330 --> 00:49:36.120
And it came down, it drew a line.

1032
00:49:36.120 --> 00:49:39.540
And the line it drew was the raw data testing results,

1033
00:49:39.540 --> 00:49:41.670
i.e., the words from the defendant's mouth

1034
00:49:41.670 --> 00:49:44.040
in response to these psychometric tests

1035
00:49:44.040 --> 00:49:45.573
go over to the other side.

1036
00:49:46.590 --> 00:49:50.910
<v ->If we adopt the mQTL interpretation of that,</v>

1037
00:49:50.910 --> 00:49:54.150
that means raw data that supports

1038
00:49:54.150 --> 00:49:57.273
or were provided to a testifying expert, correct?

1039
00:49:58.140 --> 00:49:59.490
<v ->That's correct, yeah,</v>

1040
00:49:59.490 --> 00:50:01.530
but I would submit that that would be wrong

1041
00:50:01.530 --> 00:50:06.390
and would rip a giant loophole into the court's rule.

1042
00:50:06.390 --> 00:50:08.370
And that could be dangerous both

1043
00:50:08.370 --> 00:50:11.460
for the effective assistance of defendants

1044
00:50:11.460 --> 00:50:13.500
because counsel would be making those judgements

1045
00:50:13.500 --> 00:50:15.420
in a non-professional way.

1046
00:50:15.420 --> 00:50:18.750
<v ->Well, counsel will be relying on consulting experts</v>

1047
00:50:18.750 --> 00:50:21.780
who presumably would help counsel

1048
00:50:21.780 --> 00:50:24.270
make those informed decisions.

1049
00:50:24.270 --> 00:50:25.103
<v ->Yes.</v>

1050
00:50:25.103 --> 00:50:27.090
<v ->I mean, the rule as interpreted</v>

1051
00:50:27.090 --> 00:50:28.590
by the Commonwealth in this case

1052
00:50:28.590 --> 00:50:32.160
would discourage counsel from reaching out

1053
00:50:32.160 --> 00:50:34.570
to consulting experts for fear

1054
00:50:38.191 --> 00:50:42.480
of creating a record that might not be helpful

1055
00:50:42.480 --> 00:50:43.650
to the defendant.

1056
00:50:43.650 --> 00:50:47.670
<v ->Well, when the defendant ultimately does choose</v>

1057
00:50:47.670 --> 00:50:50.340
to offer the defense,

1058
00:50:50.340 --> 00:50:53.010
with all that in mind, having done that investigation,

1059
00:50:53.010 --> 00:50:55.590
at the end of that investigation essentially,

1060
00:50:55.590 --> 00:50:59.160
what I don't think the court's ruling in Hanright allows,

1061
00:50:59.160 --> 00:51:01.320
or a fair reading of the rule,

1062
00:51:01.320 --> 00:51:03.240
the current rules of the reporter's notes,

1063
00:51:03.240 --> 00:51:05.100
is to keep your expert in the dark

1064
00:51:05.100 --> 00:51:08.070
about potentially relevant psychometric testing data.

1065
00:51:08.070 --> 00:51:10.470
<v ->But wouldn't the expert have the expertise</v>

1066
00:51:10.470 --> 00:51:14.220
to determine the relevancy of tests that that expert needs?

1067
00:51:14.220 --> 00:51:18.360
Why do you presume that the testifying expert

1068
00:51:18.360 --> 00:51:22.893
would not figure out what tests that expert needs?

1069
00:51:24.870 --> 00:51:26.970
<v ->To your point, I think that the persons</v>

1070
00:51:26.970 --> 00:51:28.650
making those relevance determinations

1071
00:51:28.650 --> 00:51:29.483
should be the experts and not counsel.

1072
00:51:29.483 --> 00:51:32.400
<v ->Right, and so if the expert who's testifying on behalf</v>

1073
00:51:32.400 --> 00:51:35.670
of the defendant does not think that an IQ test

1074
00:51:35.670 --> 00:51:38.130
is something that he or she needs,

1075
00:51:38.130 --> 00:51:41.550
why would that test then go to the Commonwealth

1076
00:51:41.550 --> 00:51:44.253
if it was conducted by a different consulting expert?

1077
00:51:45.264 --> 00:51:47.340
<v ->Well, because we can't keep it in the dark from them.</v>

1078
00:51:47.340 --> 00:51:48.960
'Cause they can't make the relevance determination

1079
00:51:48.960 --> 00:51:51.410
without knowing what it is and without seeing it.

1080
00:51:52.650 --> 00:51:54.180
And so that's our position,

1081
00:51:54.180 --> 00:51:55.680
and that's what we understood the court

1082
00:51:55.680 --> 00:51:57.540
to be saying in Hanright.

1083
00:51:57.540 --> 00:51:59.230
<v ->How does your position</v>

1084
00:52:03.300 --> 00:52:07.533
coexist with the work product doctrine?

1085
00:52:10.650 --> 00:52:13.260
<v ->And this gets to the line</v>

1086
00:52:13.260 --> 00:52:16.650
that answers Justice Georges' question

1087
00:52:16.650 --> 00:52:19.050
with respect to where they draw the line.

1088
00:52:19.050 --> 00:52:22.020
And the court's new rule, I think, draws the line

1089
00:52:22.020 --> 00:52:24.750
through the set of materials

1090
00:52:24.750 --> 00:52:28.230
that was disclosed erroneously in Sliech-Brodeur.

1091
00:52:28.230 --> 00:52:29.670
And it does it in the following way.

1092
00:52:29.670 --> 00:52:34.260
It cuts out interpretive notes of the opposite side expert.

1093
00:52:34.260 --> 00:52:36.090
It cuts out interpretive notes

1094
00:52:36.090 --> 00:52:38.370
about the psychometric testing results.

1095
00:52:38.370 --> 00:52:40.620
But it includes the raw data

1096
00:52:40.620 --> 00:52:43.470
as something that needs to be disclosed.

1097
00:52:43.470 --> 00:52:45.990
So that's the line that the court drew

1098
00:52:45.990 --> 00:52:48.150
a month after this trial.

1099
00:52:48.150 --> 00:52:51.270
And we would submit, these are hard lines to draw.

1100
00:52:51.270 --> 00:52:55.320
But I think it bears noting that the court,

1101
00:52:55.320 --> 00:52:58.080
and back to Justice Wendlandt's question

1102
00:52:58.080 --> 00:52:59.853
which I think is an important one,

1103
00:53:01.050 --> 00:53:02.970
the court considered a lot of materials

1104
00:53:02.970 --> 00:53:05.760
in deciding to adopt the rule it ultimately did

1105
00:53:05.760 --> 00:53:07.353
a month after this trial.

1106
00:53:09.090 --> 00:53:12.750
The Rules Committee selected a group of experts

1107
00:53:12.750 --> 00:53:15.510
in forensic psychology and psychiatry,

1108
00:53:15.510 --> 00:53:17.670
evenly split among those who are normally retained

1109
00:53:17.670 --> 00:53:20.490
by the defense and those retained by the prosecution.

1110
00:53:20.490 --> 00:53:23.790
And what came out of that was what should be part

1111
00:53:23.790 --> 00:53:27.720
of a forensically sound examination.

1112
00:53:27.720 --> 00:53:30.930
And in principle, you know,

1113
00:53:30.930 --> 00:53:32.650
they said some of the principles

1114
00:53:34.077 --> 00:53:36.630
that came out of that consultation

1115
00:53:36.630 --> 00:53:38.250
were that, in principle, there's nothing

1116
00:53:38.250 --> 00:53:40.740
that isn't relevant to the scientific inquiry

1117
00:53:40.740 --> 00:53:42.360
into the defendant's criminal responsibility

1118
00:53:42.360 --> 00:53:44.430
at the time of the crime.

1119
00:53:44.430 --> 00:53:45.630
It's not in the nature

1120
00:53:45.630 --> 00:53:48.570
of any legitimate scientific inquiry

1121
00:53:48.570 --> 00:53:51.060
to close yourself off to data

1122
00:53:51.060 --> 00:53:56.060
and to have other non-scientists making those determinations

1123
00:53:56.460 --> 00:53:58.590
of forensic relevance.

1124
00:53:58.590 --> 00:53:59.940
I think the court's rules,

1125
00:53:59.940 --> 00:54:02.070
I think the court's statements in Hanright,

1126
00:54:02.070 --> 00:54:06.960
and I think the court's, you know, the reporters' notes

1127
00:54:06.960 --> 00:54:08.820
that those rules make clear that those judgments

1128
00:54:08.820 --> 00:54:10.420
should be made by professionals

1129
00:54:11.400 --> 00:54:16.350
in the area of forensic psychiatry and psychology.

1130
00:54:16.350 --> 00:54:18.810
And so with that, I see that my time is up.

1131
00:54:18.810 --> 00:54:21.150
I'm happy to rely on my brief on the other issues

1132
00:54:21.150 --> 00:54:22.850
if there are no further questions.