-: S J C 1 3 2 0 2 Commonwealth V Joseph Pope.
-: Okay, Attorney Harris, when you're ready.
-: Good morning. Your honors, Madam Chief Justice.
And may it please the court.
My name is Jeff Harris.
I'm here representing Mr. Joseph Jabir Pope,
who is in the courtroom here with us today.
Mr. Pope is here having spent 38 years in prison
on a wrongful conviction,
having been convicted on a crime where the parties agree
that he had no intent to kill.
And yet he was given a first degree life sentence.
Mr. Pope did not get a fair trial.
The Commonwealth withheld significant
impeachment evidence concerning in part,
the only percipient witness to the trial-
sorry to the murder, Benny DeJesus.
This brady claim presents two central issues,
nondisclosure and prejudice.
Unless this court has specific questions
they want to go to immediately,
I will take those in turn.
-: Can I push you on the prejudice first?
Because I think the disclosure issue will
bang away at the prosecutor for a while on that.
But so I don't... I read the transcript,
I read the cross examination.
I read the closing argument
and Mr. Kelleher does quite a nice job
of showing that Benny is a drug dealer
and that Benny may have taken the drugs
remaining in the house to his girlfriend's
after the shooting.
And I don't...
And then the third point is
whether he's upstairs or downstairs,
whether your client is upstairs or downstairs.
And on that third point, if he's downstairs,
that seems to be more inculpatory than if he's upstairs
because he's then downstairs for the shooting.
So tell me where the prejudice is
because I see your point on disclosure.
I have difficulty reading this transcript
and thinking that Mr. Keller had that information,
but I don't see the prejudice yet.
-: Sure.
I think the prejudice comes in two flavors.
First, there's the things that
the defense didn't know that they
could have presented at trial.
And secondly, there is the way in which
the prejudice is compounded by the Commonwealth
in its closing specifically because it benefited
from that nondisclosure by essentially
telling non-truths to the jury at the end.
So I'll start with the things the defense didn't know.
The defense didn't know that Benny had told
a different story on the night of the murder.
So Benny tells a story about, for instance,
Hamilton being upstairs.
And the defense could have said,
you never said that on the night of the murder, did you?
They said that he had a shotgun,
never said that on the night of the murder, did you?
That Mr. Pope pulled him down
into the drug room at gunpoint.
He never said that on the night of the murder
to the police, did you?
-: I'm sorry, didn't the Flynn report say he was upstairs?
-: I'm sorry?
-: Didn't the Flynn report of Benny
the night of the murder say he was upstairs.
-: The Flynn report, which is a very conclusory document,
which wouldn't have provided much fodder
for cross examination I would submit.
Actually, the Commonwealth is arguing that
the Flynn report suggests that he was downstairs.
And because of that the defense therefore-
-: Benny started to go downstairs.
-: Right, so it suggests.
-: That suggests he's upstairs.
-: Suggests Benny's upstairs.
-: Benny's upstairs.
-: But what the Commonwealth is arguing is that,
that suggests that Mr. Pope was downstairs.
And because of that, they could have
used the Flynn report as cross examination.
If you look at the good deal documents though,
there's no question in those documents
that it says Mr. Pope went downstairs
and then he walked back upstairs.
-: And, and please don't...
No, you were answering Justice Kafker's question
about two prongs prejudice, what they knew.
And then what happened in closing arguments
so please continue along those lines.
-: So I was kind of going through some of the prior
inconsistent statements that maybe
could have been made about Benny.
You didn't say anything about the fact that
cocaine was stolen from you upstairs in that drug room.
You could have said these things
to the police, but you didn't.
They would've been able to say, you said one story here,
and now you're saying a different story,
and these are very different things.
It's also, I think you have to look at the totality of this.
-: To stop you on that point you talked about
the Goodell memo for one moment.
And the Commonwealth brings this up
in the context of disclosure.
They make the point that maybe they had the notes,
maybe the defendant had the notes
and they recognized that they couldn't use
the Goodell memo to impeach.
I mean, you can't use somebody else's memo
to impeach another witness.
-: Well, I think if you're talking about disclosure...
-: Well, I'm talking about-
-: Disclosure or are you talking about practice?
-: I alluded to disclosure on their argument
that there might have been a rationale
because there was the request for notes, but put that aside.
Ultimately Goodell has this memo.
And it seems to satisfy Brady,
there's exculpatory information in it.
If it wasn't turned over, it should have been turned over.
-: Right.
-: But ultimately, how can the good deal memo
be used to impeach another witness?
-: Well.
-: The Goodell memo is not just impeachment material.
It is also a roadmap to the defense
that Mr. Pope wanted to make.
So he was trying to argue that Benny was lying,
that cocaine was found and that he changed
basically changed his stories.
Unreliable because he wanted to curry favor with the police.
They found cocaine.
The defense didn't know that they found cocaine,
but they found cocaine.
That would've been a basis for saying,
he's trying to curry favor with police
because now he has criminal exposure.
-: I understand your argument is that
it doesn't have to be admissible to be Brady material.
It has to be helpful to the defense.
And it's helpful to the defense to know
that Benny's all over the place.
-: Right.
-: Right?
What happened during closing arguments
that you wanted to tell us as well?
-: Three things really compound the nondisclosure.
For one throughout all three trials
they said there's no notes of the interview.
There's no record of this interview.
But including in the closing, they said
there's no record of this interview.
That was not true.
There was record of the interview
and they benefited from that.
They said that Benny was not a dealer in the closing.
They said that Benny was not a dealer.
And that no cocaine was found in the house after the murder.
But they knew that cocaine was found in the house.
They knew because Robert Flynn had told the ADA.
So to that in closing is really...
is just not true.
It's beyond the pale.
It's hugely prejudicial.
And then they also knew that there
were prior inconsistent statements.
-: I'm confused, why is that?
It's evident that cocaine's being sold out of this house.
There's no question about that, right?
So what... and the issue of who's...
the brothers are both complicit in this.
The victim as well as the witness.
And you even at one point...
Kelleher shows that Benny says he'd lie for his brother.
So I'm just, what difference does it make?
Whether they find the cocaine there or not?
Because we know it's a cocaine deal going on there.
The question is by whom, right?
-: Well, they alleged that he stole the cocaine
and then they go in after the murder
and there is cocaine.
I mean, at the very least, this is a fact
that the defense should have been able to say to the jury,
the Commonwealth has said he stole cocaine.
They go in, and there is cocaine.
-: Pretty often with Detective Curran's testimony
at the probable cause hearing that there was cocaine.
I know that he testified differently at trial.
-: Now he ... right.
So I think what's really important for this court
to recognize is the police find cocaine.
And then over the course of a probable cause hearing
and several trials, the cocaine
kind of magically disappears, which...
-: It got burnt in the [Cross Talk]
-: First it's some substance, right?
According to Curran.
And then over the course of the trials,
it goes from empty packets,
to some substance, to empty again.
And it's sort of like they needed the ability
in the beginning to say
we have cocaine and we can use this against you,
but then we didn't wanna have promises, inducements
or rewards that might have been
revealed about Benny, so they got rid of the cocaine.
-: A stupid question, forgive me.
Were the photographs of the crime scene that were
introduced during the trial that would've shown
what was the state of the evidence upstairs?
-: No, there are photographs.
There's plenty of photographs in the police record.
There's no photographs of the drug room upstairs.
-: Okay.
But yes, a lot of that is in the exhibits
and they're available to the court,
If the court would like.
-: Thank you.
And second question for me is
assuming that this is exculpatory Brady material,
and it should have been disclosed
because it shows not that it's admissible.
If it shows inconsistent material statements
by the main witness, how do we get the Maza
violation where Kelleher's obviously passed away
and his files gone and now we have to intuit that
they didn't have the Goodell documents.
-: Yeah.
-: And we have to do that by looking at what Kelleher did.
-: I think Justice Kafker is absolutely correct
to point to that as the controlling case here.
I'd point to a number of things.
First of all, you have three trials,
you have hundreds of pages of transcripts.
You have three defense lawyers, you have two defendants,
you have appellate lawyers, et cetera, et cetera,
throughout all the pleadings,
throughout all the transcripts,
never one mention of this document.
There's no sidebar.
There's no voir dire, there's no motion in limine
even to make the argument that Justice Lowey is making.
That these statements should come in for some reason,
like for instance, if they had put Detective Goodell,
ADA Goodell on the stand to see.
Because maybe he had said these things directly to him
and they could be used to impeach Benny.
It's possible that they could have made these arguments.
They never made the arguments at all.
Of course they, they didn't have these.
These were prior inconsistent statements.
The Commonwealth at the end of the trial,
this is perhaps the most prejudicial thing that they do,
is they say there's nothing that Benny said
that's different from what he said at trial.
That means even though they know
he gave prior inconsistent statements to the police
from the night of the murder,
that absolutely hammers home the prejudice
of not turning over prior inconsistent statements.
So as far as nondisclosure, I'm sorry,
getting back to the nondisclosure,
it's never in any of these things-
-: Do you know, and I'll ask Mr. Lynn
but do you know whether or not...
I know it was the practice of the Suffolk
DA's office at that time to have
ADA response to homicide people.
Do you know that back then, was it a practice
to turn over those notes or those,
those to from reports to defense attorneys?
Or is it something that was never disclosed?
-: I have...
I've never seen something like that.
Perhaps the Commonwealth can...
There is this one case, Evans,
where something was turned over along these lines.
I had never seen it.
-: Because obviously if it's exculpatory,
it doesn't matter who writes it,
it still has to be turned over.
-: Presumably there's a police report
that's based on it, right, somewhere
or notes somewhere that that's based on.
And that is what didn't get turned over.
And this somehow is in the file and did get turned over.
So the reason those things don't get turned over is because
there's already a police report that already reflects that
internal memo and everything that
the police learned from that,
but that interview recording or notes or a police report,
which was a real obvious thing
that they would have to turn over.
I mean it was the big interview
from the night of the murder of the percipient witness.
Obviously some notes were taken
and probably a police report was made,
but it didn't get turned over.
And so of course the defense lawyers are like,
where's our report?
Where's the notes about what happened that night?
-: Counsel can I ask you,
so you were saying that the Commonwealth benefited
by saying Benny's story has been consistent.
What was the other benefit that
the Commonwealth took by the failure
to disclose the Goodell memo?
-: Well, they...
-: Did, they say that no cocaine was found in the house?
-: They were able to say no cocaine
throughout all the proceedings.
They were able to say no cocaine
and the defendant couldn't say, well wait a minute,
let's get Robert Flynn on the stand
and figure out what happened here.
They didn't know to do that basically.
And then, you know, I would say if there's any question
at all about whether or not these statements
were turned over, you only have to look at the closing
where first the defense says to the jury,
no statements have been turned over about this interview
and tries to kind of make some hay out of that.
And then the Commonwealth 11 pages later says, it's true.
No record was made of this interview.
And you shouldn't make anything of that.
They just didn't make any notes.
And then he says I think that is true.
Like the prosecutor actually says that to the jury.
They say there's no notes.
I think that is true.
So he's also vouching for the detectives there.
If that's not pre prejudice, I don't know what is.
-: I mean, I get you, I mean, I read the closing.
Both the prosecutor and defense counsel are very...
both of them make the point.
They're no notes, no one took notes.
So I'm there on the disclosure point.
The problem I have is okay, take these facts that we got.
If the closing read as follows,
Benny said he's upstairs sometimes
and downstairs sometimes just, it seems immaterial to me.
The same thing about whether they found
cocaine in the house or not.
Because if he's upstairs, your client may have walked off
with the cocaine before the altercation.
And if they're downstairs...
I just don't understand how it would be any...
I get that Benny is shown in the closing to be
clearly involved in the drug dealing.
There's a very persuasive point
that he's taken stuff to his girlfriend
to hide the paraphernalia and other things.
So, okay, if this were turned over,
there would be arguments to the effect that
Benny is inconsistent about whether downstairs or upstairs
and Benny is inconsistent about whether there's
cocaine in the house when they leave or not.
I just don't know why that makes any difference here.
-: Well, the facts absolutely make a big difference-
-: Well tell me, go ahead.
Redo the closing a little bit for me
and tell me how the jury might have been
influenced by the fact that Benny at one point
said he was downstairs versus upstairs,
or that there was cocaine in the house or not in the house.
How, how is the jury-
-: Benny is making this up to protect himself.
Mr. Pope was there doing a drug deal.
Benny's been-
-: But Mr. Kelleher does a wonderful job of that.
He basically shows this is nonsense.
How does Mr. Pope... you know, he deals with him at work.
They're selling drugs.
He's been to the house multiple times.
They're in cahoots with each other.
-: So a few things.
First of all, the standard here
as the Commonwealth has acknowledged is
whether it might have affected the outcome of the trial.
This is the lowest possible Brady standard.
So we're talking about whether it might have affected it.
The facts that Benny makes up that are not in the initial,
the night of the murder are exactly the facts that this
court relies on in determining that Mr. Pope
was upstairs doing some kind of prearranged plan.
That's exactly... that Mister Hamilton came upstairs,
that they left together, that he was there
as soon as the shotgun shot happened.
Those facts had they been at issue,
perhaps this court would've said, you're right.
There is not sufficient evidence of a felony murder,
because we don't see that there is an underlying predicate.
It's not just about the murder.
The facts at issue go to whether or not
there was an underlying predicate felony
of the robbery of both the brothers.
So the facts were really, really important.
Remember the judge had already said-
-: And I don't mean to belabor this because
I'm really struggling with this.
Because I agree with you.
There's adequate proof of nondisclosure,
but I'm trying to understand why you're prejudiced again,
but okay, so if Benny is downstairs...
I mean if Pope is downstairs
he's that he's there at the shooting.
That's bad, right?
-: The court has already told the Commonwealth,
sorry, joint venture doesn't work.
You can't use that theory because for whatever reason,
but another guy had the shotgun.
Remember the shotgun is found on a third person
that is not Mr. Hamilton or Mr. Pope.
So the defense really is these guys
didn't have anything to do with it.
It was another person who actually committed this crime.
That's important.
I'm sorry, I missed the rest of your-
-: You've done a good job.
So I get it, I think.
-: If there are any other questions from the court.
I would like to quickly I address
the felony murder question.
If Madam Chief Justice, you're okay with that.
If you could just gimme a minute.
-: One minute. -: One minute.
So the rationale for not giving
somewhat limited retroactivity to the Brown issue,
to the Brown rule is is that
there might be prejudice to the Commonwealth.
It might be unfair to the Commonwealth
to allow people to go back
and challenge their convictions.
But here the Commonwealth has said
there's no prejudice to us.
We acknowledge that there was
no other way to find this man guilty.
We used a felony murder rule.
We were on notice that it might be challenged.
-: But don't you think he could have been
convicted of felony murder post Brown?
-: No.
-: Really?
-: No.
The Commonwealth has agreed that he couldn't have.
-: I know what the Commonwealth said.
Here we have two guys under the Commonwealth's theory
who go into a drug rip.
One's arm with a shotgun and one's arm with a pistol.
There's no third prong malice there?
-: There is no felony.
There's no underlying felony.
I'm sorry.
There is an underlying felony at most
on the Commonwealth's argument.
-: Armed robbery.
-: There there's an armed robbery.
Mr. Pope is in a different part of the house.
He doesn't share. Mr. Hamilton's intent.
Not that we're saying that Mr. Hamilton
actually committed this crime,
but he wouldn't have shared Mr. Hamilton's intent.
Going through the Brown analysis of why
it doesn't make any sense to hold someone accountable
who's not part of the crime.
I think no, you don't have any other...
-: But here we had... Here we had felony murder.
That was the basis of the conviction.
Correct? -: Right.
-: And this court affirmed felony murder on-
-: Without all the facts, but yes.
-: Thank you.
The court affirmed felony murder, correct?
-: Correct.
And what's missing in Brown
is the element of malice, correct?
-: Right.
-: Constructive malice is gone.
So now we need one of the three prongs of malice.
-: Full malice, yes.
-: Well, no, you need one of
the three prongs of malice, right?
Right.
-: Thank you, your honors.
-: Thank You.
Okay Attorney Lynn.
-: Good morning Madam Chief Justice, members of the court.
May please the court.
Paul Lynn for the Commonwealth.
Before we get into the details of the case,
I would like to speak briefly about the burden of proof
because both my brother and the Amici raised that point.
This court has repeatedly stated in cases like commeda
that when a defendant files emotion for a new trial,
the burden is on him to prove any facts
that are not apparent from the record.
The argument that the Commonwealth is in a better position
to determine whether or not a document was disclosed
is completely baseless in any case before 1994,
when we were required to begin preparing discovery reports.
And now any case that you look at,
especially a homicide case after 1994
has volumes of discovery notices.
But in 1985, things were much less formal.
I've looked through the file in this case.
There's one discovery letter that I found
and it pertains to a police report regarding Hamilton.
And we know that the defense got more than that
because they admittedly got the Flynn report
and other police reports by the witnesses in this case.
-: But this is kind of a different kind... over here, sorry.
This is sort of a different kind of report isn't it?
Wasn't this more of an internal report
that DA's wouldn't typically be thinking
of turning over at that point in time.
-: Certainly not as a matter of course,
but even at the time, they're required to disclose
at least a prior inconsistent statement of the defendant,
whether or not they disclosed the entire Goodell report,
they were at the very least required to disclose
that Benny had made a statement,
and that that statement conflicted in some ways
with his trial testimony.
-: You can see that this is Brady, right? material.
-: Yes, it's a, yeah.
We had a duty to disclose
these inconsistent statements under Brady.
It's Brady evidence.
We are not saying-
-: The issue really is Mazza.
-: Yes.
-: And so we have a witness who's all over the place.
-: Correct.
-: Why wouldn't the lawyers continue to say
that Benny's all over the place?
He's the key witness.
-: He certainly is the key witness.
I'm not denying that.
The reason they didn't is because
they had so much to start with.
They already had-
-: Do you know a lot of defense attorneys
who have impeachment material who say, good enough?
Have you seen that in murder trials?
Because I haven't.
-: But also there's the question of admissibility too.
-: But does it... Well if it's
Brady material, does it matter?
I mean they could have called Goodell.
They could have asked somebody, I mean, that's the problem.
-: Oh no I mean, it's...
the problem is we're essentially arguing in circles.
We're saying they didn't have the report.
Therefore they didn't have this information.
And therefore that shows that they didn't have the report.
-: No, I get it.
We're in the Mazza world.
So we have to intuit whether or not there was a
nondisclosure based upon what happened during
the examination by Kelleher during the closing arguments,
et cetera, correct?
-: Isn't this easier than Mazza though
for him because I mean the defense counsel
gets right up and says, there are no notes by anyone here.
And then the prosecution gets up and says,
yep, there are no notes.
And if there were any notes they would
be using them essentially.
Don't don't you lose on the disclosure point obviously.
And we gotta go to prejudice.
-: I don't think so because it's not exactly what they say.
They say there's no police notes.
And then the prosecutor tacks on at the end,
I don't think anybody made any notes.
That doesn't mean he didn't turn over
the Goodell document months earlier.
-: Really?
I mean I can read this to you, but it's pretty damning.
I mean the language, you know,
he says there are no notes from anybody.
-: Let's assume that you lose on that point.
-: I will move on.
One thing that stays consistent through all
the statements including
the statement that Benny made to the police
that's memorialized in the Goodell memorandum
is the defendant put a gun to Benny's head.
That never changes.
But also I found...
-: But if we can't believe Benny,
because Benny tells different stories,
don't you have a problem?
-: If this was the only impeachment evidence,
that would be a problem.
But I want to bring out what defense counsel did bring out.
And this I found while I was preparing for your argument.
This is the first trial, 1985 trial.
Volume Four, pages 51 and 52.
It's cross examination of Benny by Attorney Kelleher
for the defendant Pope.
Question, did you introduce him, meaning Pope,
to your brother for the purposes of buying
and selling cocaine answer?
Answer yes, sir.
Question, and you knew that was against the law,
did you not?
Answer, yes, sir.
Question, you knew that you were actually
entering into a conspiracy to
distribute cocaine in the state, did you not?
Answer, yes, sir.
Question you knew that distributing cocaine
was a felony in this state didn't you?
Answer, yes sir.
-: Would you agree that this case
hinged on Benny's credibility?
-: Yes, there's no question of that.
He is the key witness.
-: Then I think you got a problem.
-: And he goes on, the next question is
Yet you participated in the handling of money
and the handling of the cocaine didn't you?
Answer, yes, sir.
And at both trials, Benny repeatedly admits
that he held himself out to the public as the drug dealer.
The defense also knew that Benny had told the officers
at the scene or had not told the officers at the scene
that he'd gone to his girlfriend's home.
-: Counsel can I stop you in the recitation?
Because time is short and we read the record.
So the first thing...
Regardless of the burden of proof,
the disclosure issue doesn't really go well
for the government, right?
Because you know,
as Justice Gaziano was pointing out
this adds more impeachment to the only key witness
putting Mr. Pope in this position.
And so there's more lying by the key witness.
So the Mazza rule really indicates that
there probably wasn't any disclosure.
You admit that this was a Brady violation,
I guess...
And given that it is a Brady violation,
a nondisclosure issue, not a late disclosure,
the prejudice that Mr. Pope needs to show
is very low given that,
how do you think the Commonwealth wins nonetheless?
-: Because here the addition
of this one additional statement,
which is why I'm making this recitation
was so minimal that it could not possibly
have affected the verdict.
-: I'd push back on that because you're completely
discounting the timing.
When was the timing of this interview
with Mr. DeJesus that we're talking about?
-: The interview was after the defendant
had made the statement at the scene, but the same night.
-: It was the same night.
Okay, and we know what lawyers do about memories, right?
-: Right.
-: Okay.
So the same night is when he makes
all of these inconsistent statements in terms of
kind of persuasive force.
It's really powerful, right?
Isn't that the stuff that the defense lawyer's
gonna stand up and say,
and hammer to the jury that the same night
he makes all of these inconsistent statements
that puts Mr. Pope in all of these
really compromising and incriminating positions.
-: I would argue no because his statement
is not particularly inconsistent with
his statement...
is not materially inconsistent with his statement
he makes at the scene.
It's basically a case of things
that he omits saying on the night of the murder.
For example, the whole upstairs downstairs issue,
Officer Flynn testifies at the first trial
that Benny told him that after the shooting,
he started going downstairs
and as he was going downstairs,
he met the two assailants coming up the stairs,
which means of course,
that Pope was downstairs at the time of the shooting.
So the defense already knows that
at the moments after the crime,
Benny is telling a story that is inconsistent
with his story that he tells at trial
when his memory is absolutely fresh,
fresh enough that they could have
brought the defendants back
and done a show up at this point.
That's how soon after the crime
that Benny makes this statement to officer Flynn.
In fact, contrary to my brother's position now,
In Pope's closing argument.
This is volume Seven, page 36 of the first trial.
Counsel for Pope calls the Flynn report
"very comprehensive" and argues that it shows
that Benny went downstairs after the shooting.
He also argues at the second trial
that he takes a different tack
and argues that the fact that Benny is upstairs
actually hurts the Commonwealth.
Because if he's upstairs, why didn't he
steal the cocaine before the shooting?
Why is he even upstairs?
Why is he still hanging around?
-: You mean Mr. Pope?
Right?
You mean Mr. Pope, right? Not Benny.
-: Oh, sorry.
Yes, I am very sorry if I said Benny,
Mr. Pope, why is he upstairs?
Because he could have stolen the cocaine then.
Why does he have to commit an armed robbery
of someone he knows and who knows him?
Turning to the cocaine.
I would first-
-: Can I ask you to turn to the Commonwealth's use
of the failure to disclose in its closing argument.
-: What the Commonwealth argues
in its closing argument is this issue of
whether or not Benny was the drug dealer.
And this is at both trials,
he says is a red herring.
It's a distraction.
That's not the charge.
At the second trial, he does add a tack,
said there's no evidence of that.
That's because that the defense didn't take that tack
at the second trial.
So he is correct.
He's not arguing there's no information
that shows that he's the drug dealer.
He's just saying that's not what's an issue here.
It's a red herring.
It's a distraction.
And I would urge this court to realize that on appeal too,
it's a distraction.
-: Is that the standard for Brady violation?
-: I don't understand what you mean by this, your honor.
I'm sorry.
-: Well, I guess, you know,
to show prejudice for a Brady violation,
as I was articulating earlier is a very low bar.
-: It's a low bar, but here it doesn't even come close.
-: You're saying it was completely immaterial.
-: Completely immaterial.
What it adds to the cross examination and trial-
-: Even though it was used in closing argument.
-: It was not.
That's what I just argued your honor.
It was not used to any effect in closing argument.
But I cannot emphasize strongly enough that what
ADA Goodell argues or states in the Goodell report.
-: Can I read what he actually said?
So this is Mr. Fuccillo I can't remember who.
-: Yes, the prosecutor.
-: So the prosecutor goes, Curran took no notes.
Nobody did.
I think that's true.
Did he ask the officers?
Are there any other reports?
Did he ask the other officers,
did he ask Baker?
Did Baker make any reports?
Did he ask Curran.
Whether or not besides writing anything down,
whether or not Curran taped conversations
of any of these people?
No.
Why is that?
Could have sure.
But if he has that document,
can he start pointing out that there are notes here
and Benny's off the reservation?
-: I, again, I would point out
that what the defense argues in closing.
-: That's accurate, right?
The Commonwealth is using this no note point
to its advantage, right?
-: I could not possibly disagree more.
with that statement, your honor.
-: I'm just reading the language.
Why am I misinterpreting it?
-: Because the defense argues in his closing
that the absence of notes indicates
incompetence by the police.
If they didn't make notes, then they were incompetent.
And that's a Boden defense.
And the prosecutor responds saying, it doesn't matter.
Did he make notes?
Did he not make notes?
It doesn't matter.
That's the Commonwealth whole point about
the entire Benny notes thing.
It doesn't matter.
Not so much that you should find
that there were notes or there were no,
you know, or excuse, but that' you should find that-
-: But counsel that's based on a misinformation.
That's the predicate for why defense counsel is saying that
is because that's all he knew.
If he knew that it also included
all of these inconsistent statements that
the closing arguments gonna be different.
It's not gonna be focused on Boden.
It's gonna be focused on the inconsistent statements.
-: It was focused on the inconsistent statements.
-: I'm speaking specifically about the report.
-: That's that's true, but-
-: Rather than argue that there's no missing,
that there's no report and therefore it's a Boden issue.
It wouldn't be even talked about in that way.
It would be talked about the content,
the impeachment content that's a in the report.
-: But it was.
I mean, granted, he did not mention
the report in particular, but he did mention
all the other reports. Tthat was the heart of the defense.
And I wanna get this out in my last 20 seconds.
It's crucial to realize that what officer Flynn
told the ADA and the Goodell report is that
he saw what he thought was cocaine.
Not that cocaine was recovered.
And at the trial Detective Curran testifies
that the very purpose of burn
is to make it look like packets of cocaine.
And so the question here is what is worse?
Evidence that he's a drug dealer and has cocaine
or evidence that he's a drug dealer.
This is Benny, of course, evidence
that Benny is a drug dealer who's ripping people off.
That's what the defense was.
If you look.
-: Well here's the issue that I think
you'll agree with though,
which is I understand the burden
and issues of impeachment and motions for new trial in
and of themselves are not enough.
But here your argument seems to be,
well, he was already cross examined thoroughly,
impeached thoroughly.
That's the thrust of the closing.
So there's no prejudice.
-: Correct.
-: But the argument here is
that it's a specific request for Brady.
-: Correct.
And with the specific request, not only was he lying
or saying consistent statements in this pile,
there's a whole other pile that the defense attorney
might have been able to use to impeach.
There was more evidence they could use to impeach.
And that that would've thickened the stew
of the quality of the impeachment.
It's a one witness case.
-: It is a one witness case.
But when you look at this evidence,
he is cross-examined on the exact same points
that are omitted from the statement he made to the police.
It is exactly the same.
It is the same context.
It is the same issues.
It is the same.
There is no reasonable possibility
that this could have affected the verdicts.
I see my time is up.
-: It doesn't thicken the proof?
It doesn't thicken the quality of the impeachment?
-: Not that any jury would notice, no.
I see my time is up.
If the court has any questions regarding
the felony murder rule, I would address it,
but otherwise I would rest on my brief.
-: Okay. I think we're all set.