-: SJC 13227, Commonwealth v Will Tate.
-: Okay, Attorney Feinberg, whenever you're ready.
-: Good morning.
Excuse me, may it please the court.
Matthew Feinberg representing Will Tate, the appellant.
Some six months after the fatal shooting in this case,
the mother of the defendant in her basement
discovered a green box that we eventually found
contained what we now know was the murder weapon,
as well as some stray bullets, a laser attachment
and the defendant's-
-: Mr. Feinberg, I'm gonna cut you off from the facts
because it's a very interesting issue,
an important issue you raise in your brief
so I've got a few questions.
-: Happy to go straight to it, judge.
-: Great, thank you.
Assume I agree with you that there was a violation of 1.6
that despite or an absence of guidance in good faith
I think by the lawyer, he violated 1.6.
The way I read your brief,
you have a per se ineffective assistance of counsel
from the violation of 1.6, and I wanna ask you about that,
where at least in like the conflict of interest area,
where there's act,
at least in the conflict of interest area
where there's an actual conflict of interest,
we say we don't get into prejudice
and it's a per se violation, new trial.
With potential conflict of interest,
we don't do that, we go into prejudice.
There are other cases we've had
where we look at professional responsibility lapses,
we say that's evidence of ineffective assistance,
we go into prejudice.
So why in this case, do we not look at prejudice?
-: Well, I think you can look at prejudice, but per se-
-: Although I wanna know your view
like, is this a prejudice inquiry or not?
-: I would submit judge this is a per se case.
The reason it is, is because
what the defense counsel did was such a,
dramatic violation of the whole foundational element
of the criminal justice system
and turned the entire case on its head,
that the very fact of the violation under 1.6
and the absence of informed consent,
and I can get to that in a minute,
makes this a case in which in effect, there as in effect-
-: Okay, then how do we go through the
professional conduct rules and to figure out
which ones are per se and which ones require prejudice?
'Cause there's a case called DuArt,
we decided not too long ago
where there was a violation of informed,
failure to inform a client to make a meaningful jury waiver,
and we looked at prejudice in that case.
So what is it about the 1.6 that makes it per se
like a actual conflict of interest?
-: Well, I think the clearer implication is that
in this case,
we're talking about
the constitutional rights of the defendant.
The effect of this disclosure was to the effect that
his choice, whether or not to testify was completely-
-: I'm not so sure I buy that because he,
and I know you have an issue with the motion to suppress,
but we have statements to the police.
He really doesn't have anything other than self defense
and he's gonna have to testify
that's before Attorney Atwood tells the police.
-: Well, it may be and I will say that
the self defense
was probably the best approach in this case.
Nonetheless-
-: And he got a second.
Feinberg: I'm sorry?
And he got a second degree period.
-: Oh, he got a second,
he might not have gotten a second,
he might have gotten a manslaughter
if it wasn't for for this,
because what we have here is a situation in which,
if he had not testified, if there was no disclosure,
he still had a viable self defense case.
-: You think there's a self defense instruction
if he doesn't testify?
-: Absolutely, under these circumstances
where what happened here
was that there was an initial confrontation
between the victim and the defendant
where it was clear from the video
that the victim was the aggressor.
And then the defendant leaves,
the victim goes upstairs, 15 flights,
he believes at that point that his sister is gone
with the defendant and he runs down 15 flights of stairs,
comes out into the open area with what appears to be
a black object in his hand and it, and-
-: And how do you get the evidence of the black object?
Feinberg: I'm sorry?
-: The evidence of the black object
comes from another witness?
-: No, it comes from the fact that when the victim is found,
there's a black iPhone telephone in his hand.
On those facts alone,
it seems to me that a judge must give
a self defense instruction.
-: Eh, I don't know about that, but, okay.
-: Well, maybe we disagree,
but I'm suggesting to you to you that that-
-: I don't know if everybody that gets shot
hold a cell phone gets a self defense instruction,
I don't know about that.
-: This is 12 o'clock or one o'clock in the morning,
it's dark out,
there's at least a strong basis here for it.
-: Well let me and then-
-: Yeah, I'm sorry, go ahead.
-: Let me just finish up with you
as far as the importance of the 1.6 violation.
I just wanna give you a full opportunity
to answer that question
'cause we went off on a little diversions on prejudice,
but can you finish your answer on that?
-: I'm sorry?
-: If you didn't, can you finish your answer on that?
-: Oh I mean, in response to your honor's question,
we can go either way in this.
It seems to me that if you reject the per se argument,
you can go to the prejudice argument
and the prejudice argument
it seems to me is overwhelming here.
-: All right now, on the prejudice point,
how does the attorney handle the prospect of the mother
disclosing during the trial?
Cause he has the time bomb of the mother
and he basically takes the evidence and spins it and says,
the Braga Bridge lie was to protect his mother
so he spins it as he can.
But you have that whole issue of,
if he's got his client on the stand,
he's gotta think in the back of his mind,
this whole thing may blow up
because mom is going to tell the police
the gun wasn't thrown off the bridge.
-: First of all,
he could have and should have simply suggested to mother,
that she get CPCS counsel.
That was the simple way to do it,
the record reflects that she did go to see a lawyer
and the lawyer refused to represent her without being paid.
-: He said to go get a lawyer,
And then that doesn't, you think his duty was to say,
"Go see CPCS?"
-: Well, I know from my own an experience in many cases,
and I'm sure the court,
and when you were sitting on the superior court
had the same experience that many times a witness,
whether it's a fifth amendment issue or otherwise
has separate counsel, and in this case,
that would be the case.
Otherwise it seems to me that the issue of the mother.
-: Does she have the right to counsel?
That's a question from me
'cause I read the California case that someone cited,
but so will she have a right to counsel?
'Cause if she's indigent, how do we deal with that?
-: I would suggest that first of all, she is indigent,
but in-
-: But so, but again, she's not the defendant,
the defendant has a lawyer.
Does she have the right to counsel here?
-: I believe she does judge,
if for no other reason,
then there's a potential here for her being an accessory.
She has possession of these incriminating items
and what is she gonna do?
That's a problem.
-: But do we give lawyers to, to people who?
-: I'm sorry.
-: Do we give lawyers in that instance?
There's no case.
Feinberg: I'm sorry?
-: Do we have a procedure to give lawyers in that instance?
-: As far as I know, I don't know, that's a good question,
I really don't have the-
-: An exception based on a family member
being charged as an accessory.
-: Again, I'm sorry, I didn't hear that.
-: I'm wondering, I thought there was some kind of exception
for a family member who may be charged with accessory,
especially a parent, I don't.
-: Could be so. -: Okay, we don't know.
-: Are you acting behalf CPCS in this case?
I can't remember, are you private counsel or
has CPCS taken a position on that?
I mean, I'm just curious.
-: I don't know, I really don't know the answer.
-: Well yeah, the CPS brief says
Atwood should have withdrawn, correct?
Well, I don't know if you read it,
but they said your brief is fine,
but they said he should have withdrawn,
is that really a solution
'cause it just kicks the can down the road
for the next lawyer?
-: I think there one of the solutions in this case
is that for counsel to withdraw.
-: Well counsel, wasn't there a solution in that
the proper thing is Attorney Atwood
cannot put himself in a position
where he could obstruct justice.
Feinberg: Correct.
-: But the communication around the gun
is different than the actual evidence of the gun
and the bullets and whatever else is in the box.
So isn't there arguably a solution in that
Attorney Atwood turns or helps her turn over the gun,
but does not reveal the communication?
-: My response to that would be that there's a bright line
when it comes to whether or not the attorney
has actual possession.
Without actual possession,
I don't think that he can do that.
-: So if somebody had left the gun,
if somebody had just dropped it off at his office
and he didn't know who, then he could call the police.
Feinberg: Absolutely.
-: And turn it over and say, and said, had a note on it,
this is a gun belonging to so-and-so.
-: Well, as Amicus Brief points out,
there are a bunch of thorny issues relating to
what happens when the attorney does have possession.
Cypher: So, but I guess I'm getting at,
we're not talking about the physical evidence,
we're just talking about the communication.
-: That's correct. -: Okay.
-: And this is a gun that has a body on it so to speak.
Feinberg: I'm sorry?
-: This is a gun that is tied to a murder, right?
So if the gun goes to the police and they test the gun,
you're gonna have a problem.
-: That's correct.
And that's exactly why the possession issue
is so important here,
I'd like to speak if I could.
-: But before you leave that 'cause.
-: Sorry, are you done Justice Gaziano?
-: Yes.
-: So the California case says attorneys who,
you can't sort of take it away,
but you can leave it in place, right?
That's the California solution.
I'm not sure that's a good solution,
but that's their solution.
But here we don't,
that exist as a possibility,
the lawyer just sits there and does nothing, right?
He doesn't withdraw and once he takes possession,
that's a whole different matter but.
-: Exactly, and I don't think the court
needs to get to that point in this case.
There is no possession in this case and therefore-
-: Well but it's relevant to know whether he could have
or should have as an option that he had available to him
in how to handle the situation.
Because he could have obtained it from the mother
and returned it in without revealing the communication.
-: And that's an interesting question
and I would suggest to the court that
under the circumstances
and under the rules of professional conduct
he could not do that, and that would,
the information is there
whether or not he actually takes possession of it,
you can't take away the fact of his being informed.
-: No, I'm just trying to sort it out for future cases.
Feinberg: Okay.
-: But once he turns, the gun is very damning,
it's got this laser on it, it's been stolen.
Feinberg: Exactly.
-: Once the gun is in play, it's harmful,
but I don't know, it's tough, I mean.
-: Well, that's exactly the,
Attorney Atwood would actually admits that in the hearing,
he actually says this would be a different case
without the gun.
And he admits that in his testimony,
in the hearing on the motion for new trial.
-: Because the judge never reaches the issue of prejudice,
she just says, there was an effective waiver and it's over.
-: Essentially what the lower court judge says is
she assumes confidentiality
and goes straight to informed consent.
I'd like to speak a few minutes,
I don't have much more time to the informed consent issue,
because I think it's important to point out
that the defense counsel said,
I believe this is my ethical obligation to disclose this.
And when he says that, he's essentially saying,
"I don't have any choice in this matter."
-: No, I think respectfully
you don't have to argue much about this one.
-: Okay, and the rest of the-
-: I agreed with that,
but let's go to the prejudice for a moment.
I know the judge didn't reach it.
But perhaps I think one of the reasons that the discussion
came up about withdrawing is because
Attorney Atwood would be limited
on what he could ask his client
when the client's on the witness stand.
-: Or certainly even explain to the client
that he cannot lie on the witness stand,
and therefore his choice as to whether or not
to invoke his fifth amendment privilege
is somehow circumscribed.
-: Right, saw the Nick V Whiteside our Miranda case,
I think that follows it.
So how does that impact prejudice here?
Because he would've been limited at trial
and it might have had to have been testimony in a narrative,
assuming that, and it may be otherwise,
assuming that there's no ethical obligation to withdraw,
how does the limitation on what can be elicited
and the required advice on not committing perjury
play into the prejudice issue?
-: Well, I don't see how you can avoid the situation
where he is stuck with the idea that
the defendant cannot lie on the stand,
he either has to tell the client that he's going to,
to give a narrative or not to testify at all.
I don't see how you avoid that situation.
It seems to me that the only other option that
defense counsel would have would be to say,
"Look, I can give you real informed consent,
you have to decide, I can turn this over,
we can have a informed, we can have a self defense,
you're gonna have to admit to lie on the stand,
all of this about the stolen gun is gonna come out."
Same thing with the text message on his phone,
which the judge moved, allowed a motion in limine
unless the defendant testified, all of that would come out,
and if the defendant still said, "Look, I want to testify,
and I understand all these consequences,"
He could stay in the case,
it seems to me that that's a distinct possibility.
However, on the other hand, the more,
the cleaner way to do this would be for him to withdraw
and allow new counsel to come in without this knowledge.
-: But so, I'm just trying to figure out
as a practical matter how this works.
I get- -: Say that again.
-: I'm trying to understand as a practical matter
how this works.
So I get the possibility where
as soon as the mother comes to him,
he says, she's gotta get her own lawyer,
go to CPCS and get another lawyer.
If he'd stopped all communication right up front.
But I don't understand how this is besides this,
he seems to have, if what he did was okay,
he's done it as good as possible.
The only alternative I see
is the mother getting their own lawyer right up front.
is there any, is there a third possibility?
I mean, justice Cypher's seems proposal
also seems to raise a lot of,
seems to make it worse in certain ways,
'cause he's got possession over the gun.
-: Well, I mean,
one thing that could happen is that
she simply doesn't do anything.
She could simply not do anything.
-: Isn't that untenable from a lawyer though
if you have the witness,
if you have the client on the stand
and you have the woman prospect
or the mother blowing your case up?
-: I don't think it's any different
from any other inculpatory evidence
that a defense lawyer gets in the course of his preparation.
He goes out and he finds a witness that says,
"I saw the shooting."
Does he have to disclose that to the prosecution?
The answer it seems to me is absolutely not.
-: I don't think it, it does, it seems to me too, but go on.
-: Well, and that's, I think that's the same issue here
that the mother has a choice what to do.
She can protect her son by not doing anything,
she can go to a lawyer,
try to figure out
what it is that she's supposed to do or may do.
-: Just, my only concern about the withdrawal advice
is it takes Atwood off the hook.
But what about lawyer number two?
Who comes in and all of a sudden we get the same issue
where the mother says, "Hey, I told the other lawyer,
we got the gun, now what?"
-: Well the real question I suppose,
is whether or not the second lawyer gets that information,
that's in this case, it seems to me,
that's just speculating as to
what the second lawyer's going to have knowledge of.
-: The second lawyer's gonna talk to the mother,
and based on the representations everyone's making here,
the mother's very religious, she's not gonna, you know.
-: She wants the gun out of the house.
-: Wants the gun out of the house,
she's not gonna lie about this.
I mean, I don't, withdrawing just seems to
shift the problem to the next lawyer.
I don't know how that works.
-: Just so I'm clear,
this is all speculation, right?
Doesn't this really just turn on
whether or not there was prejudice
based on what the lawyer did?
-: Yes. -: I just wanna make sure.
-: As far as, my position is that at the very least,
virtually the entire trial was poisoned by this disclosure.
Everything from the opening statements to the stolen gun,
to the laser attachment, to the closing arguments,
the entire case.
In fact, the Attorney Atwood at the very beginning of the,
his argument says, "I spoke to the mother,
she told me about the gun, I turned the gun over."
-: And that assumes that you have to show prejudice.
Your first, that assumes you have to show prejudice,
your first position is this is per se ineffective.
-: Right, but it's also, and I'm not giving up
on the prejudice issue at all.
(Chief justice laughs)
-: We're not asking you to.
-: Counsel, can I ask you,
there's a case in Ray grand jury
and I know it's a subpoena
and it's involved a cell phone and documents
on the cell phone and what the attorney should do with that.
Does that have any relevance, do you think to your case?
-: Well, I believe that's the case in which
the attorney had possession of the cell phone.
And I think that really is the bright line here.
Once the attorney has possession of it or whatever it is,
and it's inculpatory, he has obligations to the court.
He has obligations as an officer of the court
that are that balance if not overwhelm
his duty of loyalty
and zealous representation of the client.
It is, in my view,
that's the only way to
interpret that kind of inculpatory evidence.
Cypher: Okay.
-: And now thank you very much.
-: Attorney Nadel.
-: Thank you, Madam Chief Justice, good morning.
May it please the court, Steven Nadel,
Assistant District Attorney for the Bristol District
on behalf of the Commonwealth.
I'd like to begin by addressing directly
the question the court posed
in its solicitation for an Amicus brief.
First, the information
that Attorney Atwood received in this case was confidential.
I agree with attorney Feinberg that there's a distinction
between if Attorney Atwood had received
actual physical possession of the gun
versus just information from the defendant's mother
about the gun's location.
But where it is just information,
that information was confidential.
And generally there is no obligation
to disclose that to the Commonwealth.
In fact, quite the opposite,
except as the rules and the circumstances
of any individual case might permit or indeed require.
And then it's one of those exceptions that this case.
-: You're arguing meaningful consent?
Nadel: I'm sorry?
-: You're gonna argue meaningful consent?
-: Yes. -: Okay.
The letter basically says I have an ethical obligation
to give this to the police, right?
Nadel: Correct.
-: So and how's that meaningful consent?
It's a fait accompli,
he says, "I'm gonna give it to the police."
-: My understanding or my reading of the letter is that
attorney Atwood is expressing,
I believe it is my duty to disclose,
he also testified at the hearing
that he absolutely unequivocally gave
the defendant the choice.
But of course we don't know what would've happened
had there been any disagreement
because Mr. Tate, in fact signed the letter.
-: Cause I thought the tone of the letter was,
don't lie to me anymore.
Nadel: Certainly Attorney Atwood was not happy about.
-: No, but that's what the letter says.
-: I don't know that he says that exactly.
-: Well, but he does say,
"I'm charged," or this is the situation,
"I'm charged with giving you legal advice.
My legal advice is that I have an ethical obligation
to disclose this to the police.
Sign here, I'm very mad at you."
(Wendlandt and Nadel laugh)
-: And I think.
-: How is that as somebody who isn't
informed with the legal system
in relying on counsel for this legal advice,
how is that now turned on the head and saying,
"Oh, well it was your choice."
-: Well, first I would suggest that
Attorney Atwood was accurate
that disclosure was required
on the unique circumstances of this case as he described.
He was looking at the case as a whole,
he knew that the defense was going to be self defense
and early on realized there was no way to advance that claim
without the defendant himself taking the stand.
And then thus knowing that he knew that the
circumstances of how the defendant obtained the gun,
how he disposed of it would inevitably arise,
whether on direct or on cross examination
and thus attorney Atwood had an obligation to be sure that
his client did not testify untruthfully.
-: But it's the client,
it's the duty to the client that the rule speaks to.
And when the letter says, and, I agree with you that,
that the information that he had,
probably indicated that the defendant had to testify
and he's got legitimate concerns
about what's gonna happen with the ticking time bomb
of the mother and that information.
But even with all that said,
the rule says it's a duty to the client.
And the lawyer is saying,
I'm going to take a course of action, period.
Do you agree?
Or I'm letting you know.
I mean, it is not the client's decision whatsoever
when you read that letter.
-: Correct, but, well, in addition to the letter,
there was also a long discussion with the defendant
where it was made clear that it was,
that decision was ultimately up to the defendant himself.
Again, the letter itself was phrased in stronger terms,
but the motion judge who was also the trial judge,
specifically credited, the testimony of Attorney Atwood
in its entirety.
-: So we basically have to look at the transcript
of that hearing, which I.
-: Yes, which is.
-: No, I've read it,
and say that what was said in the transcript,
given judge Dupree's findings basically
makes the letter really a novelty.
-: I'm sorry, repeat that last part.
-: It really, you can't read the letter, I think,
and say there's any meaningful consent,
but what you're saying is let's look at what Atwood said,
what the judge found credible, and that's gonna.
Nadel: Right, there was a meeting,
there was a discussion.
That went beyond the four corners of that letter,
I don't think attorney Atwood testified that he,
the discussion was just him reading the letter out
to Mr. Tate, there was a discussion that went beyond that,
what they should do with the case as a whole.
And aside from the ethical obligations,
the specific factual circumstances of this case,
the overwhelming evidence of the defendant's guilt,
even before getting to his numerous admissions
to having shot Mr. Rodriguez,
it was best to get out ahead of
the potential ticking time bomb of this coming out,
either for the defendant testifying truthfully,
but concealing it until he's on the stand
and then sending the sort of prosecution into a
tumult of trying to track down this gun
that's now out somewhere
that they thought has been tossed over a bridge,
or perhaps even worse,
having the defendant's mother,
I think at one point in the testimony Attorney Atwood
speaks to a concern that she would erupt mid trial,
which of course created devastating bombshell moment
that would more gravely undermine
the defendant's credibility
than getting out in front of the issue as Judge Dupree found
in allowing Mr. Atwood essentially to argue,
look, notwithstanding that initial and truth
about the Braga Bridge, my client has been truthful.
he was on his way to turn himself in when he was arrested,
he's never denied that he shot Mr. Rodriguez.
And indeed now in the heat of the moment,
he may have said, I threw it off the Braga Bridge,
but they now found the gun.
The Commonwealth found the gun because we gave them
that information and allowed him to say he was being honest.
Predominantly throughout these proceedings,
he's being honest in this testimony
when he says that he fired in self defense.
So in view of that whole circumstance,
it was a reasonable tactical decision,
sort of separately from the ethical analysis.
-: What do you do with the, sorry, I didn't,
what do you do with the California solution?
The California solution says, if he's in possession,
then he's gotta turn over, but if he's not,
he doesn't have a, he can leave things where they are.
I mean, I'm just wondering when he says,
"I believe it's my ethical obligation to turn this over,"
I don't know what it is right now, what his obligation is.
So he may be wrong there and he's loading the dice
in what he's telling the client.
I mean, couldn't he have just,
said the mother's got other lawyers?
I'm gonna go step by step here,
see what those lawyers do.
And not, because once again,
I find, once we turn over the gun,
once he turns over the gun,
this thing is,
it changes the whole case
and also what he can do about it too,
I mean, I don't know what he,
I mean, I'm not saying I know what the right thing to do is,
but it just seems like he's oversimplifying
that he had to turn it over.
At least in California,
he could have just let it sit there
and let her be represented by another lawyer.
He's saying CPCS would do that,
I have no idea whether,
she could pay for one or not,
but that would've avoided some of this mess, right?
-: So.
-: Again, I'm not, I don't what happened next.
That lawyer may feel the obligation
or the mother may decide on her own to turn it over.
But this thing just, he's just,
implicated in the whole,
he's overriding the mother's decision
and his client's decision in certain ways, isn't he?
-: Well, first, I don't know
that he's overriding the mother's decision,
it seems the mother was wanted.
-: Well, a mother, like anyone is listening to lawyers
at this stage in the game.
-: But I do think that
if the facts were not precisely as they were in this case,
as the California approach indicates,
the defendant or the attorney has not received
physical possession of the gun,
he merely knows its location,
subject to the other exceptions of 1.6,
is it somewhere where it might pose a risk to someone?
Cause substantial harm?
But generally you don't have to disclose to the Commonwealth
that you are aware
of where incriminating evidence is located.
But again, as Attorney Atwood explained,
he was looking at the case as a whole, knew that,
the specific location of the gun
and the source of the gun.
-: I get that,
particularly my more experienced colleagues
and prosecuting these things, I understand the question,
the back and forth questioning
is sooner or later gonna get to this gun.
It may, if he puts him on,
he needs to put him on the stand,
this is a self defense case,
I don't agree with your brother that you can
just 'cause there's a phone there,
you've got a self defense, but
I don't know how,
I mean, I don't know how this proceeds at trial
'cause some of he can certainly do a lot of the case,
it's just, when we get to the gun issue,
then he knows facts that,
he can't misrepresent the facts
if he hasn't turned over the gun.
-: Right, and so knowing that
this potential untruth left unaddressed might come out,
he had to advise his client that
you should not commit perjury and the location of the gun,
and that being the case, it now makes sense to-
-: I'm not sure he should have been advising
his client at this point.
I mean,
I see the point that withdrawal is a disaster
'cause it just shifts it to someone else but
I don't know whether he should be,
I don't know what, I don't know, I'm confused by it,
but it just seems like this is not meaningful consent
when you load this up this way.
Nadel: Well even without meaningful consent, given the,
I mean overwhelming evidence of the case.
-: But how do we, don't we have prejudice here?
I mean, again, that gun has a laser on it.
That gun he stole the gun from somebody
which is a bad act, pretty incriminating, bad act.
That's in the case, right?
Trying to remember what else we've got,
there's other damaging stuff about the gun too,
that he's lied about it.
-: But the evidence was also that
the laser sight and there was attachments were on the gun
when the defendant stole them
so it wasn't that the defendant had gone out searching
to modify the gun to make.
-: No, but he's pointing a gun with a laser on it, right?
You're it just, your chances of killing someone with a laser
are higher than without one, right?
-: Right, although there was testimony,
and Attorney Atwood made sure to elicit several times
while cross examining the Commonwealth's witnesses that
not withstanding the presence of the laser sight,
they never saw a laser light or red dot shining anywhere.
-: So what's your best argument,
assume confidentiality
and assume informed consent doesn't work,
what's your best argument that there's no prejudice?
-: Well here,
the defendant was on trial for murder in the first degree,
deliberate premeditation, extreme atrocity and cruelty.
Again, I even before you get to his
numerous admissions to having committed the act,
the evidence against him was overwhelming.
Established by the testimony of the victim's sister,
her phone conversations with him,
his text messages that I'm out here, the security guards,
seeing the car leaving, returning later on with the victim,
running out in his flip flops where he was ultimately shot,
the license plate reader at the entrance
to the ship's complex
captured the defendant's car coming and going.
When that car is later found
in the driveway of the defendant's mother's home,
there's forensic touching done in the car
and gunshot residue is found inside.
And then of course he goes on
to make all of his admissions to having done it.
And in that light,
the sort of how he got a hold of this gun,
what he did with it after the fact is sort of a side issue
when the overwhelming evidence establishes
that this was a killing done senselessly
and only the defendant could provide the information
or advance a self defense claim through his testimony.
Excuse me.
-: By the way, we don't have any findings
from the trial judge on this, right?
She just basically concludes there is informed consent,
she doesn't get into the prejudice analysis,
so we don't have any findings from her on this, right?
Zero.
-: No, although of course obviously implicit
in her denial of the motion
is that she did not think the performance was deficient.
And thus when there's no first prompt.
-: She affirms, she assumes there's no error
'cause it's informed consent.
She doesn't deal with it.
She doesn't deal with-
-: That's her only sort of legal finding
but I would suggest her given the tenor of her fact finding,
she describes a very thorough,
thoughtful, deliberative process,
underlining the decision to disclose,
and again, she credits counsel's testimony
that there was further discussion beyond
just what's contained in this letter.
And again, arguably to go back to
the argument that there's no prejudice,
even if there was no informed consent,
not only was the evidence overwhelming
and for a variety of reasons disclosure made sense,
the defendant was not convicted
of murder in the first degree.
So that is some evidence on its own that the jury was not
overwhelmingly prejudiced against him
cause they did not accept the inferences
the Commonwealth urged them to draw
regarding deliberate premeditation and so forth.