-: SJC-13213,
Commonwealth V Kyle S. Dawson.
-: Okay, I turn your note.
Suzanne: Your honor.
May it please the court, Suzanne Reynaud for Kyle Dawson.
Your honor, this case comes down to,
whether or not a case that was decided in 1863,
still good law,
and it's Mr. --
Cypher: I disagree with you for a minute or push on
that a little? -: Sure.
Cypher: Does it really come down to that
or do we actually look at our current statute
of involuntary manslaughter,
and all the cases on it that have come since,
and say there's a theory where you can have it
based off the felony,
or you can look at it through
a wanton and reckless analysis.
Why aren't they two separate things?
Suzanne: Well, your honor, I am going to,
I think that what you're focusing on is perhaps
the argument that the Amicus made
regarding Wolansky.
I don't think that my assister made specifically
that argument regarding Wolansky,
but what I would say is this,
is that number one,
reckless manslaughter was very well known
at the time while Wolansky was decided.
In 1888, Pierce was decided,
which was cited authoritatively in Wolansky.
Pierce cited to sections of Lord Hale,
which I also cited to,
and also to the 1802 case
of Commonwealth versus Thompson,
which was a case where
there was a discussion of wanton
negligence or recklessness.
And it determined the only,
that it wouldn't apply as a basis for manslaughter
because it wasn't a criminal act.
And the thing that Pierce changed was it said that
non-criminal acts can also be the basis of recklessness.
However, Wolansky did not actually represent
a sea change in the idea that reckless manslaughter existed.
Even Commonwealth versus Webster reflected that.
And so when we have to have that starting point,
perhaps obviously Wolansky clarified
what the scope of, or how we're going
to specifically define reckless manslaughter,
but it didn't actually change
manslaughter as a sea change.
In addition, your honor --
-: (indistinct) that council,
but that doesn't mean it didn't exist
at the time that
Campbell was decided.
-: Well, but if the understanding of manslaughter
at the time Campbell was decided
is akin to the understanding of it in,
after Wolensky was decided.
And the court in Campbell, very definitively said,
this is not felony murder,
and if it is a,
a shot that's fired by somebody other than the defendant,
a Confederate or somebody working
on the same side of criminality,
somebody who's resisting or opposing
or thwarting in their language,
then it's also not manslaughter.
Then, and that was the understanding that was
reflected by the attorney general.
That's the understanding that ---
-: Decided on the basis of the agency relationship,
wasn't it?
-: It, you know, your honor,
I'm going to just push back a little bit
on the discussion of calling this an agency relationship.
That's not what,
that's not the term that Campbell used.
That's the term that other people have used afterwards.
And it's made clear that we're not actually
talking about traditional agency,
we're talking about sure,
it could be an accomplice or a joint venturer
or a Confederate,
but it could also be somebody who's engaged
in the same criminality,
such as the rioters in Phil,
the duelers in Philadelphia,
which Campbell cited too,
which was also something -
Gaziano: Is it, is it a vicarious liability?
-: I'm sorry?
Gaziano: Isn't it a vicarious liability?
-: Well, that,
that becomes a vicarious liability issue
in whether or not there's actually control.
I mean, if you look to Hanright,
does it, is there control?
Is there knowledge?
Is there some kind of connection?
Is this the intended end, end?
-: Well, wait.
Where does that come in?
Is, is the, in a manslaughter charge of on recklessness,
it's the act that's intended,
not the outcome, isn't it?
-: The act has to be intended your honor,
but when you're even talking about a joint venturer,
if you do not have an idea
of how that joint venturer is going to behave
then you're not responsible for that person's actions.
And that is why that hard cutoff was made in Campbell.
And Campbell very clearly says, look,
when we're dealing with this idea of,
of some kind of serious homicide crime,
any kind of homicide crime,
and they were very clearly talking about manslaughter
and the idea that somebody could be acting recklessly
by engaging in a riot,
and potentially that would expose them
to murder or manslaughter.
And they said in neither case,
and this was a,
this was a comprehensive categorical holding.
In neither case -- Gaziano: Let, let,
let me press you on that because
you raise a really interesting issue and,
and it's very well briefed, so.
But you, you recognize, of course,
that as you've charted it out,
our law of homicide is the common law,
which evolves. Suzanne: Yes, your honor.
-: And the biggest problem you've got
is the language in Tejeda that exempts this.
So why don't we look at this issue?
We start at Campbell and PS it all,
and we go from the Civil War to the,
I guess, World War II, right?
And then we go with
the Bolero. Suzanne: Yes.
-: And we make this journey throughout common law,
and we end up the last we spoke with Tejeda.
Suzanne: Yes.
-: In this evolution of the common law,
don't we stop at Tejeda and say,
I'm sorry, you're wrong?
Because in Tejeda,
Chief Justice Gants,
then Chief Justice Gants said, well,
don't worry, all you people,
you still get your manslaughter.
-: Your honor, he didn't do that though.
What he did, if anything, in that dicta,
which was very clearly dicta,
which was addressing a very specific question
about what happens if a bystander dies.
And he said, in essence,
without giving any examples, from any cases,
didn't cite to say Taylor from California or anything else.
Didn't even say the facts of Tejeda
or the facts that approached Mr. Atian
had anything to do with that particular exception.
And incidentally,
the fact pattern in Tejeda is very similar
to the fact pattern of, with Mr. Dawson.
Gaziano: I know. -: But he wasn't,
he didn't say, well,
this exception that I'm talking about would apply
to the facts that are before me.
What he said is, if there was a bystander,
there might be, under certain circumstances,
some kind of situation.
And then that last sentence of that,
that paragraph basically implied,
now it didn't come right out and say it,
and again, you to read all of this in the favor
of the defendant - -: How, how,
please to help me out,
how is a bystander different than a,
than, than a Confederate?
-: Well, I would say they're not.
And that's what Bolero said, but yet to -
Gaziano: Right, that's the, that's the point.
-: Justice Gants made a distinction.
-: But then, then that's the point.
So why, why?
So again, so I go back to the language
in Tejeda that, that,
that gives this option.
And, and, and I don't see the difference
'cause we have,
we have an unintended person, right?
Who's, who's, who's dead.
-: Well, your honor, the,
the problem here has to do with clarity,
has to do with due process
and it has to do with fairness to somebody in 2018.
I think even the Commonwealth,
I mean, to not put too many words
in the Commonwealth's mouth,
in the application for DAR on page 16 said
if you want to change law,
you have to say it expressly
and what that footnote, not footnote,
that section three,
which was very clearly dicta,
did not say the facts of Tejeda would in any way
be subject to whatever potential might,
situation that was being described.
-: Let's go back a step and,
and look at our manslaughter law in general.
We've had plenty of cases since to, to,
since Campbell, obviously,
and to Jada, and we have a,
we have a law of manslaughter that's simply based
on wanton and reckless conduct.
That's not gone.
Do you agree with that?
-: That's true, your honor.
And it always been that way.
-: Right, it has.
So how does your case get outside of that,
that line?
-: Because your honor,
what Campbell did,
from the very get go, was basically said
the actus reus, the act, the bad act,
not the, not,
not the causation, not the intention,
the act of homicide,
is simply not going to include the acts
of somebody who's resisting, opposing
or thwarting the crime.
And it said that categorically.
And I think that it doesn't matter -
Gaziano: Campbell was a felony murder, right?
-: I'm sorry.
Gaziano: Campbell was a felony murder.
-: It was both, your honor.
It was being addressed as both.
It addressed it as both, your honor, it.
-: Addressed it as,
but that wasn't,
that misdemeanor manslaughter -
-: It, it was not your honor.
It was not, your honor.
First of all,
misdemeanor manslaughter was not understood at the time.
Secondly, it was very clear that rioting
was considered to be a felony.
Otherwise we wouldn't be talking about this
as felony murder.
Gaziano: They never, I mean,
Campbell never uses the word felony murder.
-: It doesn't, but this court in Commonwealth versus Brown-
Gaziano: That, that's a point for you.
So I don't know if you wanna,
I don't know if you wanna start your sentence by "but".
-: Well, no, no.
I just, I'm,
I'm agreeing with you that Commonwealth versus Brown
confirmed that it was in fact felony murder.
And, but what it did at that last paragraph
in Campbell, is it said that if this was something
that was a bullet fired by the rioter,
it will be felony murder.
If it was somebody, fired by somebody else,
it is going to be neither.
The court was actively considering
whether this very idea that you're expressing,
that kind of reckless conduct, non-intentional,
but reckless conduct, that led to the death
of a person could be manslaughter,
and it said, no.
In addition, there were at least two other cases
across the country that were manslaughter cases
that adopted Campbell and applied it that way.
I don't think there was any change in,
there have been no fact patterns
other than Bolero and Tejeda,
where we're talking about the death being
specifically caused by,
being the result of an act of a person
opposing, thwarting, or resisting the crime.
There are very few of these cases across the country.
And there have been very few published cases
in Massachusetts dealing with this.
So we're not talking about,
you know, whatever change Wolansky made.
We can't really say that it's had any effect on this
because there just haven't been cases
that have been testing this.
-: So the only thing Mr. Dawson could be charged with,
in your opinion, was the armed robbery.
Suzanne: Could he be charged with armed robbery?
-: No, but the only thing he could be charged with
is the armed robbery.
Suzanne: Well, yes, your honor.
I mean, I think -
-: And isn't that,
isn't that the point that we made in Tejeda,
when we said, you know,
you may complain, prosecutors, that you can only charge
this person with the, with the felony,
but don't worry, there's always a,
a manslaughter offer.
-: And, and that is, it is not your honor,
because look, you know, there is,
at the end of the day, as a policy matter,
the courts or the Commonwealth, and I'm sorry,
I don't know if it's statute or if it's common law,
has decided that there are excused self defense killings.
Not every killing is criminal.
And the killing here was something that was
the result of somebody acting in self defense.
Certainly, the bad act, you, Mr.,
Mr. Dawson, you know,
has pled to the armed assault to rob.
So he's clearly committed a crime that carried up
to 20 years of, of jail time,
which, of prison time,
which could also have the idea that
somebody died as a result that,
could apply to his sentencing.
-: But you need to,
you need to obviously have this under
the Bolero-Campbell rubric,
because under wanton and reckless conduct,
I think, in the light most favor of the Commonwealth,
bringing a gun and, and robbing someone -
Suzanne: It was a knife, your honor.
-: Well, yeah, a deadly weapon and robbing someone
clearly leads to violence.
That's the whole purpose of the felony murder law.
-: Well, you could also say that, I mean,
you can make the argument that any kind of violent felony
is going to carry the risk of death, obviously.
I mean, that, that's something that is,
that is inherent here.
You know, it's going to necessarily,
that is the punish,
that is the conduct that is getting punished.
And so I think that there's potentially,
this Commonwealth's other argument is that this
was particularly egregious behavior.
And I think that there becomes a bit of a slippery slope
because what, you know, the,
the idea that somebody's gonna turn over their property
is because of the threat of the,
of the dangerous weapon.
So I think that you have to take that -
-: In this particular case,
don't you have a bit more, in that you have cab driver,
a cab driver, you have,
they know that there have been robberies
of cab drivers, there's been killings in the area,
the, the guys who, who,
who robbed it and,
and killed, robbed this cab driver or tried to.
So they're very well aware of,
of the heightened risk of what they're doing.
It's not just a regular armed robbery.
Suzanne: Well your honor, I, I mean -
-: And, and one used a knife and put it to his skin.
-: Putting the merits of that aside,
the question has to do with
how clear is the Commonwealth's law.
When Tejeda reiterates the holding of Campbell,
without limitations,
says it applies to all homicides.
Gaziano: Are you saying it's a due process violation?
-: There certainly is a due process issue here.
Gaziano: Was, was he,
forgive me for not knowing this
off the top of my head,
this case comes out after Tejeda, right?
Suzanne: Yes, it was 2018, Tejeda was 2015.
-: Okay so, so,
so how is there no notice?
-: There isn't notice your honor,
because what did Tejeda do?
What was clear about Tejeda?
I think that there was language from Triplett
about the lang, level of clarity that
has to be in the law.
Remember, this is in the defendant, you know,
the rule of lenity, essentially,
I don't know if it applies in,
in common law, but there are equivalents of that,
that apply in the common law.
And the idea here is what is,
what is Tejeda actually saying -
-: No, he, he's entitled to, to,
to a fair notice of what, of criminal conduct.
-: And my point of the matter is,
is that Tejeda absolutely
from the top restates, the whole, I,
if I could just go through this,
it restates the holding.
It doesn't say that there's any question mark,
any footnote, any asterisk about the extent of that holding.
And that's the first point.
The second is, it didn't say that the facts of Tejeda
would potentially lead to the,
the idea of manslaughter.
It very specifically had a carve out, in dicta,
that didn't think through these issues
the way this court's thinking of them now.
Relating simply to a bystander.
And that was the only thing,
the last sentence of that -
-: (indistinct) bystander for a minute, that, that language,
because whether we call this man a bystander or a victim,
the language in Campbell or,
or not Campbell, but Tejita or Tejeda
says that doesn't it, that the risk,
it says that the court,
the court stated that an involuntary manslaughter conviction
may be obtained when the defendant,
committing an underlying felony,
engaged in reckless conduct
that created a high degree of likelihood
that substantial harm result
to another person. Suzanne: Well, your honor -
-: Why is that not clear?
-: It's not clear, for the number,
for the reasons that I'm stating here.
And if I could just finish with that paragraph,
because what it's saying is it's giving
one specific example,
not a whole host of examples.
It's saying might,
it's saying that this could happen,
it said it could be in the right circumstances.
And then that last sentence in that, that,
that paragraph says,
it says, when a person commits a crime
and then has some act, it doesn't,
doesn't say that it has to be an additional act.
But what it is basically saying is,
if, say, the defendant acts in a way
that he knowingly puts somebody in risk,
like in the case of human shield.
And that is the difference here,
is that, especially that last sentence,
then throws things into account,
but then it, then the following paragraph,
and I think this is really important,
repeats the holding of Bolero
and says that we agree with the holding of Bolero,
that there should be no criminal liability
in these situations.
It doesn't say there should be no murder liability.
It doesn't say no felony murder.
It says no criminal liability.
And that right there puts all of this into question,
because no matter what else you are saying,
it's saying that there is some language in Tejeda,
in that dicta, that's clearly dicta,
that is limited dicta,
that doesn't even have any level of clarity.
Gaziano: The hold in Tejeda
is clearly geared towards felony murder.
-: It is clearly geared for felony murder
because that was the issue that -
-: No liability for felony murder.
You have to include that in your,
in your summary.
-: Well, there is no, but, but your honor,
when the court then goes back and says,
but we readopt Bolero and Bolero was talking,
I mean, you know, I just reread Bolero this morning.
It actually looks like the defendants were charged with all
theories of murder in Bolero,
not just felony murder, but the court chose
to only discuss it under a felony murder,
because that was the one that I think that had the most.
Gaziano: That, that was the (indistinct) in Bolero
was not given the jury instruction, correct?
-: It was about the jury instruction, but -
Gaziano: And the judge basically saying if,
if you find the killing happens, they have to be guilty
of that. -: Right and it,
but I think the point there is, is that, look,
this same holding or the same example
or footnote three that you're discussing in Tejeda
could potentially apply to the third prong of malice too,
but you're not necessarily going that far.
I think that -
Lowy: Let me just assume you're right,
as it relates to your client.
-: Yes, your honor.
Lowy: You've spent a lot of time thinking about this.
-: I have your honor.
-: And, and, and, and let's just say,
or Tejeda, dicta, Campbell, still law
and, and you, you have the benefit of that.
Nonetheless, the common law evolves.
Suzanne: Yes, your honor.
-: And while it might mean success for your client,
we've all this law on wanton and reckless conduct.
All this law,
we have a bottom of block.
Are we tied to Campbell?
And why isn't it going back to Justice Cypher's point?
Putting your client aside,
thinking of all the time we put into this,
why shouldn't that be wanton and reckless conduct
in this situation?
Assuming the facts would support.
-: So your honor, I think that this,
the question of why it should be wanton and reckless conduct
might be better aimed at the Commonwealth
who wants to find my client guilty
as opposed to me, at this point.
But if the question is -
Lowy: Why not then? Like, why shouldn't it be?
-: Well, why, why,
why should Campbell be reaffirmed
is maybe the better question.
And I think obviously you have a policy choice to make
because you get to decide it's your choice, ultimately.
I don't think it should be retroactive
because I believe that this is a, a change in the law,
but my reasons are multifold about why I think
it shouldn't change.
Number one, as I pointed out that number, that,
that the actual killing here was done in self defense,
and that is excused.
The defendant should be held responsible for his,
his conduct, which in this case
is committing a violent felony.
And even if there is some kind of outcome
that wasn't intended and he clearly, didn't have
any control over.
The fact that he doesn't have any control
over another person should certainly weigh on this.
Those are some of the issues that Campbell
ends up bringing up.
And I think that the other point that I made earlier
about Hanright and how this court
is in a minority and how it treats joint venture liability.
If you wouldn't necessarily find even
a joint venturer responsible when somebody else
does something that they had no knowledge of,
or control or desire or intent for it to happen,
why is it fair to do that to a defendant?
Now, these are my arguments in favor of retaining Campbell.
And you obviously can reject that, but -
-: The answer, the answer to your last point,
because it's not felony murder,
because it is just manslaughter on,
on reckless and wanton conduct,
we're not looking at it through that lens.
-: Well, your honor, I think that the problem
with changing it, and this is, ended up being
what happened in California,
which incidentally did it basically
on a third prong of malice, the essential of that in,
in Taylor, it ends up being an exception
that swallows the rule.
And what ends up happening,
is that you end up saying that every single time
somebody commits a violent felony
and then there's a reaction to it,
that that person is responsible for the death.
And I think that there is a better way to look at this.
Now, manslaughter itself is a 20 year felony.
Armed assault to murder is a,
a armed assault to rob is 20 year felony.
Actual armed robbery is a life felony.
You already have punishments for the actual actions
that the defendant is responsible for.
And I think that that is the reason why,
you know, don't expand the law of manslaughter,
simply out of some idea of retribution.
It's a tragic death,
but not every tragic death needs to have a person
who's responsible for it criminally.
And I think that's really the end result here.
And again, it's not that the person isn't going
to be responsible for the crime
that they actually committed.
So that would be my position.
I obviously, I am asking this court
to remand and for resentencing,
if you have any further questions,
I'm happy to answer,
but otherwise I'll just rest on my briefs.
Thank you very much, your honors.
-: Thank you.
-: Okay, Attorney Stern.
-: Good morning, your honor.
Shoshana Stern, for the Commonwealth.
To sort of begin in the middle, chronologically,
with regard to what a defendant can and can't be,
sort of, responsible for in Wolansky,
the court addressed among many other points
that to convict the defendant of manslaughter,
the Commonwealth was not required to prove that
he caused the fire by some wanton and reckless conduct.
Fire in a place of public resort is an ever present danger.
It was enough to prove that death resulted
from his wanton and reckless disregard
the safety of patrons
in the event of fire from any cause.
And, you know, any cause could include sabotage.
It could include an act of war.
It could include -
Gaziano: Would this apply to every armed robbery then?
-: Well, I think that there's a couple of responses to that.
I argue in my brief that the,
the extent, as with Carrillo,
there's somewhat different from Carrillo,
there's always a possibility of this happening,
but it becomes, in order to reach the substantial,
the high likelihood of substantial,
essentially that it,
there has to be a tight nexus, even above and beyond
Probably - -: This is, this is
obviously a debate in Brown. Shoshana: Yes.
-: About where third prong malice begins.
Shoshana: Yes. -: And in, in,
involuntary manslaughter ends.
And where this is basically a feature of anytime
someone robs someone with a deadly weapon.
Shoshana: And yet, I mean,
so certainly if you have a deadly weapon in play,
the pot, and instilling fear,
there's always the potential for things to go wrong.
One thing I would say is to say that, you know,
the conduct is so dangerous that we can't have
it be wanton and reckless,
you know, I get that you don't want the exception
to follow the rule, but that seems a, like,
it would be a sort of odd result that,
you know, we, this, this is too dangerous
to fit under that rubric.
-: Tejeda limited bystanders or does it involve Confederates,
the death of a Confederate?
-: I thought it,
I took it to involve any sort of death
that cannot be charged as felony murder,
but results from the armed robbery.
Certainly I think it, at least, you know, in,
in the sense of raising, put, putting,
either putting out there or re-up,
re-raising awareness of the fact
that involuntary manslaughter might apply here,
not withstanding all of the -
-: But, I, I,
I think the assist is certainly right that
Campbell and I, I think Bolero as well,
only deal with this vicarious liability issue.
I don't remember if,
if Bolero has a discussion of felony murder.
Campbell certainly doesn't,
right?
-: Well, I think that a number of things,
as I think Chief Justice Gants pointed out
either Brown or Tejeda that, you know,
agency law wasn't fully developing Campbell.
So they referred it.
All of these doctrines were,
or many of them were there.
And my assister was arguing that Mallam
and say, manslaughter wasn't in existence then,
that it's dealing with the general scenario,
but a lot has evolved and not necessarily been,
sort of, formally superseded in particular case,
but changed with time that involuntary manslaughter,
Wolanksy manslaughter, has evolved.
Felony murder has evolved,
and it hasn't negated what went before,
but that we're, the playing field
is not identical to anything that was being talked about.
And in terms of, you know,
riot law has, having potentially
its own implications,
in addition to just being a felony.
So I, I think that in, in term, I,
as I argued that, sort of,
where we've ended up after all of this.
-: So the Tejeda discussions dicta, you agree to that?
Shoshana: Yes, but it is, it is fairly -
-: It's really good dicta.
Is that what you were telling us?
Shoshana: What? -: It's good dicta, I mean is -
-: It, it's good dicta and it's also, I mean
it's a policy discussion of where we go from here,
given the court's ruling.
So it's, I mean,
and I guess you could make an argument
that the concurrence in Brown abolishing felony murder
was dicta, except that it has very strong acting value.
It wasn't the necessary of the holding in that case,
but that is how this court frequently conveys
the laws going here from here.
I mean, it's phrased as might obtain,
it certainly doesn't say
in any given case you can obtain,
but I think it was a strong indication of the availability
of this is as potential remedy
on the right side of facts.
So I think that, yeah, I mean, technically dicta,
but not, but powerful dicta, sort of, working dicta,
if that makes sense.
(laughing)
Cypher: Council, can I ask you to go back
to Campbell for a minute? -: Sure.
-: There's language in there on page four,
544 and 545 after it,
it discusses, how no person could be held guilty
of homicide unless the act is either actually
or constructively his,
and then later it clarifies this
and says the limitation applies to preclude liability,
well, it actually says to any person engaged
in opposing and resisting a crime,
how do you get around that?
-: Well, I think that, I mean, as I argue in my brief,
I think that where we have ended up with
the law of involuntary manslaughter,
that would not make sense as still good that,
I mean, when, when they argue that,
you know, well, it would make no sense
to hold a defendant liable under XYZ scenario.
Those don't all read as, as reasonable to us,
I think, as they did then just because our sense of,
sort of, what you could be on the hook for.
I mean, certainly from a perspective of agency, yes.
But that, I, I think that looking at it through
the lens of our modern law of involuntary manslaughter
evolved in cases that didn't happen particularly
to do with armed robberies,
that those things are foreseeable
and that those are the sort of things that you would expect
for wanton and reckless conduct, which is very serious.
It's not negligence,
it's a different animal, as the court said in Wolansky,
that those are things that we now do
think that you would foresee
and potentially be responsible for,
even though you are not formally in cahoots with -
Gaziano: But isn't that different 'cause when
we talk about what you are responsible for and, and,
and as Ms. Renaud points out with respect to, you know,
Wolansky's conduct, his conduct wasn't lighting a fire,
of course, it was shutting the door,
you know, locking the doors.
It's, it's the same as the omission in the, in the,
in the tragic Worster fire case.
And there's lots of those cases where it's that conduct,
but here, I think we're talking more,
not of conduct in, in,
in the sense of involuntary manslaughter,
we are talking about vicarious liability
for the act of another.
And that's where Campbell kicks in as well as Bolero.
-: Well, I think the question there has to be,
is it different when there is another,
does the role of another human being in this scenario,
even if they're behaving in an entirely predictable way
given what you have go them to,
mean that you are suddenly in a different universe
where if a person were not involved,
everything would essentially fit into place under invol,
does the involvement of,
again, does the involvement of another person
completely negate any chain of causation for this purpose?
-: You can have wanton and reckless conduct,
even if somebody else
unexpectedly is killed.
No doubt about that, but as it will, and,
and where we go from here is a very interesting question,
but as it relates to this defendant
and what the law was at the time of the crime,
is what is the law, considering Campbell,
at the time of trial for him to be,
for there to be a conviction for
involuntary manslaughter?
-: Well, I would say I have a couple points there.
One is that, you know,
the evolution of the common law essentially is that,
you know, it's not like with the statute
where you say suddenly, this is the rule,
and, did, could you have seen it before?
I know I, I cited in Carter too,
though it did not make it into this court's decision.
The Supreme Court has said ex-post factor clause
does not apply to common law because it evolves.
It has to be unexpected and indefensible,
with regard to previous law because otherwise,
you know, that's how the common law works.
It builds incrementally.
It doesn't -
-: I don't know how that is going to work with
carbonate provisions for the declaration right?
-: Yes, well leaving that side,
but I'm just the, the,
the general point being that
if something is, that it's not,
it's not, I mean,
charging decision, I, I think that a re,
I would argue that a reasonable person can
look at Tejeda and be like, and say,
this is potentially conduct one could get charged for.
That's certainly what we thought,
looking at the same law.
I'm not gonna claim the Commonwealth
is a reasonable person.
But in addition to that,
the, the general, I mean,
as with this court setting Carter too,
that the defendant was on notice that conduct
similar to hers resulted in criminal liability.
I mean, in this case, it's sort of,
for one thing, the defendant's trying
to commit a life felony.
He does not succeed.
Kafker: But in Carter,
Carter you're not running into Campbell.
You're not running into - -: That's true.
Definitely.
-: Carter, you're sort of dealing with more
different application of the same standard
to different facts.
Here, here you've
here you've gotta, sort of,
work out the differences between Campbell and Tejeda, which-
Shoshana: Yeah. -: Little trickier, right?
In terms of -
Shoshana: Well it's differently tricky.
-: Yeah.
-: But I would say that,
one thing I would say is
this is a scenario in which the defendant
is choosing to engage.
He's engaging in wanton and reckless conduct
that could foreseeably, I would argue,
kill any of the three of them.
If it killed the defendant,
obviously we wouldn't be prosecuting him.
So some things are automatically ruled out.
But to say that a defendant who was engaging
in this wanton and reckless conduct
would've believed that he was,
would only be on the hook for one
out of the two potential people who could die
because of this bright line rule.
I don't know, to what extent there's fundamental line.
Kafker: I, I guess the problem I've got is-
-: Yeah.
-: Earlier question, I,
which probably I'm not resolved in my mind,
or you haven't answered is what's the break?
I mean, is it,
is it every armed robbery
we're going to get involuntary manslaughter if,
if things go sideways?
-: Well, I mean, so I think you want a bright line rule,
that's felony murder,
but in the, in this case,
I think that there are probably except -
Kafker: Yeah, I know. -: Yeah, I know.
(laughing)
So, you know, there are pros and cons of bright line rules.
They can be over inclusive.
They can be under inclusive.
Fact-based analyses can be really annoying,
but, so, I think that you could probably have scenarios
in which there's an armed robbery,
in which everyone involved is sort of
going through the motions and no one's that scared
where you would not necessarily expect,
there's always a possibility someone could die,
but you wouldn't see it.
-: I mean, that, that was the point in Carrillo, right?
Shoshana: Yeah, that essentially the mortal terror
would not, that is, I,
I would argue -
-: Because I think some of the earlier law
before Carrillo was,
you know, that every overdose could lead
to, in manslaughter,
and we said, no.
-: Yeah, so I, I think that,
and to the extent that,
of not creating a bright, any bright line rule
of manslaughter, I think that we can avoid that here.
I think also that,
you know, as in, in Carter,
one of the questions was, you know,
where can this end in this case, you have,
you have a fairly limited set
of potential players in most of the,
certainly in every cab driver robbery that,
you know, there, the number of people who could end,
who could end up dead by anybody's hand,
obviously if it's, if you had a situation where you had,
you know, an armed robbery in a public park,
you could have, but I, I mean,
essentially trying to get at the number
of foreseeable victims that you would
meet the standard for involuntary manslaughter for,
should something happen under a tight nexus of causation
and foreseeability it,
it's not a parade of horribles essentially.
-: It might not even, every robbery of taxi cab driver,
but maybe not even this one.
Shoshana: Well it - -: Here,
here, you have a knife being stopped inside,
maybe even puncturing
and somebody yelling about killing.
So this is not your -
Shoshana: No. -: Typical taxi cab robbery.
Shoshana: Yeah, so certainly -
-: And even this might not be enough.
I don't know the, the doctrine -
Shoshana: Yeah. -: Needs specificity.
Shoshana: Well, I mean, so -
-: And application.
-: Well, first of all,
I certainly would submit we're arguing that this was,
but I think that, you know, the general sort of, like,
you know, you decide the cases on the easy facts
and you go from you, you carve out the doctrine from that.
You can't put, you can say, as in,
as in Tejeda, sort of, we see this,
but not that, but,
and that's not necessarily the end of the story,
but I mean to, to sort of, specifically,
be like this scenario exactly, but not that scenario,
that's deciding a series of cases
and seeing how they come out on their facts.
And that's, that's the game.
So to speak.
-: Is, is, is your view that Tejeda is sort of
a subsequent commentary by Chief Justice Gants on Brown.
I, I'm, I'm trying to get a sense.
Are, are we supposed to read these
as interrelated?
'Cause in Brown we've gotten rid
of felony murder absent malice,
and then here, he's bringing back this concept
for involuntary.
I, I, I just don't know how we make sense of all that, yeah.
-: Well, I think, I mean, I, I,
I read them both as being cases of Chief Justice Gants
throwing out the possibility of manslaughter
as a substitute for the murder that people aren't gonna get,
but that's not, I'm not, I'm not,
Brown by itself, I would agree,
Tejeda is the one that does the work here
I think, and -
-: I, I haven't reread brown in a while.
Brown does not deal with involuntary manslaughter at all.
Shoshana: No. -: No.
-: But it does say that, you know,
involuntary manslaughter could be obtained in scenarios
where once it could have been a felony murder
under the right facts.
So it, it, it sort of,
it reminds people that there are other sorts
of homicide that don't have the concerns into,
in Tejeda, in Brown, that Gants is putting out.
I, I mean, I think that that's one,
when I say also it's sort of a working dicta in Tejeda
that it, when you look at all
of the reasons in Tejeda for not expanding felony murder,
they do not implicate involuntary manslaughter.
The reasons why the court says, you know,
this is a weird doctrine and we don't wanna expand it,
are not at issue here, as I lay out in my brief.
That essentially, it, it,
it avoids the harms that have been recently put forward
associated with felony murder or its expansion,
in terms of the -
-: If you were gonna articulate, you know,
a rule, sort of, following up on Justice Gaziano's point,
that if you were gonna create a rule
that allows some of these to go forward,
but not all of them,
how would you,
you have a way of beginning that discussion for us?
-: I would say that as in this case
where you put a robbery victim in real mortal fear,
in a way that you very, your actions,
a reasonable person would say
are very deliberately cultivating.
-: You - Kafker: If, if you cut them
I mean, if you have a knife and you cut them,
I, I'm just trying to get a sense
of what we're talking about here.
'Cause that, the heroin case was complicated.
This sounds like it could be even worse,
if we create a middle ground.
Are you -
Gaziano: This, this only applies when a bystander
or a Confederate are killed, correct?
Shoshana: Yes, I, I mean,
I presumably, could also be involuntary manslaughter
if you killed the victim,
but there's probably other facts in play there.
Gaziano: Oh, it could be on, on the -
-: Yeah.
Gaziano: It could involuntary -
-: But more, more traditionally the, the,
the interesting part of this discussion
I think is, but it -
-: The interesting and complicated part of this discussion
leads to the question,
how's the defendant supposed to be unnoticed?
He can be convicted of involuntary manslaughter.
-: Well, I mean, again, it's that,
you know, the, the, the,
the fact that wanton and reckless conduct,
well, several things, one,
the fact that wanton and reckless conduct can,
foreseeably causing a death can, can lead you
to criminal prosecution, not new at all.
The question of how that plays with the car, Tejeda,
I mean, I think that in order to have fairness of notice,
the fact that you might get charged with something,
according to a very recent SJC decision written
by the Chief Justice would put the hypothetical defendant,
reading all of this law,
on notice that you're not gonna be like,
well, maybe, but maybe I'll get away with it
because of this 1863 case.
With regard to subjective notice,
there was a mention by one of the officers
who testified at the grand jury,
that they thought that when the defendant heard
he was charged with the armed assault to rob,
he seemed to have been worried he was going
to be charged with something else as well.
Sort of, they seemed to feel that he was worried
he would be responsible for the homicide.
So, I mean, it may have crossed his mind
in that sense and in addition
to the reasonable person standard.
Obviously I think this is an important discussion,
even if you decide the defendant did not have notice the,
the, the greater principle controls.
And, and just to return briefly
to Justice Kafker's question again,
I think that, I mean,
at the very, I mean, it, invol,
armed robbery involves putting somebody in fear,
but even fear of death and plausible fear of death.
You know, if it, the fact that also that they're yelling
at each other to kill him, not just sort of,
for his benefit necessarily,
that they're creating a very real scenario,
that they might actually do this.
And aren't just trying to get his money.
Kafker: Meaning one of them saying
the other kill him, basically.
-: Yeah. Kafker: Yeah.
-: I mean, and they're not even saying to him,
we're going to kill you, which could have,
I mean, again, I,
I think once you bring actual death into it,
might be a place at which
you've upped the ante
to the extent that that person,
unless they really know that you're not serious
for other reasons and personal relationship
or whatever they could do anything.
You put them essentially in fight or flight.
-: Although a lot of robberies begin with,
I'm gonna shoot you unless you give me your money.
Right?
-: Yeah, well, I mean, that's already, yes.
But I mean, you could just say,
give me your money and you're implying
you're gonna shoot them.
But if you need to draw a line within this already
very dangerous conduct so as to ensure
that it is not so dangerous that everybody is committed.
I mean, again, somebody has to die for this
to be an involuntary manslaughter charge, many,
many incredibly dangerous scenarios
do not kill anybody, thankfully.
So, if there are no further questions
Commonwealth rests on its briefs.