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<v ->SJC-13234, Commonwealth versus James Souza.</v>

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<v ->Okay, Attorney Maidman. Good morning.</v>

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<v ->Morning.</v>
<v ->Hi.</v>

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<v ->Good morning.</v>

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If it please the court. Steven Maidman for James Souza.

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This case is primarily about DNA evidence,

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and I will address the two issues

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involving the DNA evidence,

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and then turn my attention

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to the Commonwealth's chronological timeline.

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If there's any time remaining, I'll briefly address

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the sufficiency of the evidence argument.

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This case is not about the typical DNA evidence,

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which I'm sure you're all familiar with,

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where it comes back with expectant frequencies

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of 1 in sextillion occurrences.

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This is about Y-STR DNA,

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and it's complex, but it can be simplified.

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It's the focus is on the male chromosome, the Y chromosome.

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So my son has my Y chromosome,

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I have my father's chromosome,

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and my entire family line going,

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my entire paternal line going back to the cavemen

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have my Y chromosome.

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<v ->Can I ask you on our case law?</v>

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'Cause as I read this, I'm reminded of the early days of DNA

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where the statistical significance

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of databases were litigated.
<v ->Right.</v>

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<v ->I remember looking at the databases</v>

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and being shockingly surprised at how small they were,

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and how they're able to extrapolate

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based upon a few thousand people, basically.

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<v Maidman>Right, right.</v>

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<v ->And the argument back in those days used to be</v>

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we need a localized database similar to this,

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where he's saying it's the Portuguese community

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in Fall River, so it's not representative.

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I just seem to recall

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that this argument was raised way back when, and it-

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<v ->I don't remember that in the autosomal DNA cases.</v>

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<v Justice Gaziano>Oh, you don't?</v>

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<v ->And in this case, it wasn't relevant,</v>

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so I didn't focus on it.

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They used the autosomal DNA, you know, traditional DNA,

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to prove that her DNA was on various things.

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<v ->I remember litigating this issue,</v>

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on statistical richness of the databases,

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and whether or not they should be localized.

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And it was okay, at least for, and as you said,

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the results are in the bazillions, right?

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<v ->We have national databases for autosomal DNA.</v>

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<v ->But this is a national database, too.</v>

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<v ->Well, it's a very interesting national database,</v>

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which is what this case is all about.

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There is a national database.

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Most people aren't in the database.

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They use statistics,

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which I can't remember from my statistics courses

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on how to extrapolate to what it should be

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on a national basis.

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<v ->Good thing we have a scientist on the panel.</v>

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<v ->Yes. No, no.</v>

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Yes, that's right.

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<v ->(laughing) You know it ain't me.</v>

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<v ->It's not me either. And that's an issue in the case.</v>

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But in any event,

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this case involved his Portuguese background

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and family was in the basically Southeastern Massachusetts.

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They all lived there for years. They all had children.

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And it created what the defendant's expert called

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a discrete population substructure.

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<v ->Right.</v>

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I remember the same argument used to be raised

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about Cape Verdean folks in the Y-STR.

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<v ->Right, but the Cape Verdeans, you know,</v>

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are all over America.

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<v ->Right.</v>
<v ->This is focused on him.</v>

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And also that was not Y-STR DNA, those cases.

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Those were autosomal DNA cases.

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<v ->I misspoke. They're regular STR.</v>

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<v ->Right. They're regular DNA.</v>

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So in this case, he had an expert which said,

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well, you know, he didn't disagree with the numbers.

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You could literally go on the internet and plug in numbers.

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He disagreed. He said it's the wrong database.

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He didn't know whether the number would be higher.

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He didn't know whether the number would be lower,

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in terms of expectant frequencies.

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<v ->And Judge McGuire hears all this and says,</v>

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"We'll let the jury decide,"

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and then they don't call the witness.

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<v ->Well, and that's on the record why he didn't call.</v>

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That was a strategic decision on his part.

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And quite frankly,

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given that you can see the glazed over eyes on DNA,

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I don't think that was off the wall.

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But it certainly was fully developed in the hearing

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about the population substrates and everything else.

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And this issue has come up elsewhere.

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This is not something that was unique

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to Southeastern Massachusetts.

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And I cite the cases,

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what I thought were the two leading cases in my brief,

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involving Indian tribes,

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where they argued that it was a unique population substrate

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of this particular tribe

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as opposed to all the Indians in America,

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all the Native Americans in America.

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And then there's the other case,

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probably the leading case

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is the Commonwealth of Northern Mariana Islands,

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where the argument was,

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well, the government was using the mainland USA database

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as opposed to anything, you know,

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an island in the South Pacific.

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And there are other cases too,

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but those are the leading cases, and they were excluded.

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It's an issue that's a known issue with Y-STR evidence,

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and that's what the defendant's expert testified to.

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And to try to answer your question,

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yes, the jury heard all this.

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The jury, you know, actually the jury did not hear this.

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The judge heard this, okay?

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And the judge instructed the jury,

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and say, "Look, this is not the same as,

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you know, 1 in 10 sextillion."

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<v ->One in 13,000.</v>
<v ->Well, yes. That's fair.</v>

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And this is not in the record,

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but you can take judicial notice

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of the size of Gillette Stadium or Fenway Park.

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And so if you run these numbers through there,

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you're gonna get, you know...

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<v ->Did Murphy argue that in the case?</v>

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<v ->No, he didn't. I thought of this.</v>

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<v ->No, no, no.</v>

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But as far as did he argue,

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well, what does 1 in 13 really mean?

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<v ->You know, I don't remember</v>

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whether they really focused on that part.

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I just don't remember,

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because there were other things that happened

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with the DNA evidence that we haven't gotten to yet.

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But, you know, you read the numbers.

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He's got 47 of his closest relatives

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in, you know, Gillette Stadium.

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Now, admittedly it's not a perfect analogy,

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but it makes a point, okay?

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'Cause it's not a random distribution.

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Pats fans are not all male,

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and they're not a random distribution of America.

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But that is the issue in this case.

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This was Southeastern Massachusetts. This is not a...

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And it's clear, his family was there, okay?

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And they took all sorts of,

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about his 18 relatives and everything, 18 male relatives.

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And so, you know, it is an issue,

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and the judge let it in with instructions.

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But, you know, it took in terms of, you know,

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you get into the issue,

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should he have let it in the first place

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because of the population substructure.

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But as I'm sure all of you have heard on one time,

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either as prosecutors or defense lawyers,

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when the jury hears, "It's consistent,"

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you know, the prejudice is done, okay?

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It's consistent,

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and hopefully they're not gonna say it's him.

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<v ->Didn't we say in Lally</v>

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that so long as there is a disclosure of the limitations

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of this particular type of Y-STR DNA analysis

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that it's permissible?

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<v ->Well, that's what the court said.</v>

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<v ->Okay.</v>
<v ->But I'm not sure-</v>

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<v ->And so I guess I'm wondering,</v>

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in light of that legal ruling,

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why we would say that Judge McGuire committed an error

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in allowing this in, that he abused his discretion?

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<v ->I think the argument is</v>

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that the focus was on the population substructure.

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<v ->Right.</v>

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Was there any information brought forward

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as to the haplotype

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for these Portuguese Southeastern Massachusetts?

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<v ->I'm sorry. The what of the Portuguese?</v>

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<v ->The haplotype. That was sort of what-</v>

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<v ->No, they didn't go into.</v>

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<v ->In the Native American case that you referred to,</v>

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there was substantial evidence about the uniqueness of that,

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and here I didn't see any.

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<v ->I don't think they did.</v>

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And the Commonwealth's expert

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who did testify at that hearing

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got up and said, "Well, I didn't know he was Portuguese."

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<v ->And actually in Lally,</v>

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I thought we had said that it would be better

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to use the confidence interval, but the counting was okay.

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And here they did use the confidence interval.

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<v ->They used the confidence interval.</v>

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<v ->But they did more than what was required,</v>

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what we said was required in Lally.

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<v ->Again, the issue was the population substructure.</v>

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<v ->That's a yes. That's a yes to my question, right?</v>

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<v ->I'm sorry. I didn't hear.</v>

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<v ->They did more than what we said in Lally.</v>

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<v ->Arguably.</v>
<v ->Okay. (chuckles)</v>

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<v ->Arguably.</v>

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But again, it boils down to should this,

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did they use the right database?

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That's what this case is all about,

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that's what the cases are about nationally,

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and that's certainly what the defendant relied upon it.

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Let me turn to the next DNA issue,

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and that involves the substitute DNA expert.

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The judge saw this coming.

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That's one thing that's clear from the transcript.

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He saw this coming.

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The substitute expert got up there, and she started,

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actually, the first thing she did,

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she used the original expert's chart.

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And she goes, "Well, it was her chart,

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but I would've written the same chart."

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Words close, it was close to that.

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And then she got up

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and gave the expected frequency statistic,

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which, by the way, was different than the other one.

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It's slightly off.

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<v ->She plugs in the numbers herself, the second expert?</v>

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<v ->Let me read you the four lines of the transcript.</v>

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<v ->Okay.</v>
<v ->Okay?</v>

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<v ->Because this is what set off the whole thing.</v>

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And just so you know,

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it's on pages 153, 154 of Volume VII.

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But it's four lines.

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It goes, and this is on cross-examination.

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I mean, she got up on direct exam and said,

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she intoned the right words.

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"I've reviewed, you know, the evidence,

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and it's consistent with the defendant."

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She didn't go into...

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That's where she went.

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But then she goes the statistic.

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So on cross-examination, the defense lawyer goes,

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"But as far as that 1 in 137,337, you didn't do the math."

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She goes, "That's correct."

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And the next, I think the defense,

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one can infer from the record

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that the defense counsel was rather stunned.

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He goes, "So the information that you used

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to give that number was not of your own making.

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It was information that you obtained from Ms. Castor."

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And she goes, "That's right."

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And this is where this issue comes from.

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<v ->And Ms. Castor obtained it</v>

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00:11:58.020 --> 00:12:01.233
by entering information into a computer program?

255
00:12:03.630 --> 00:12:05.940
<v ->Well, she must have at some point. Yes.</v>

256
00:12:05.940 --> 00:12:10.940
<v ->So the flaw here is that there was no witness</v>

257
00:12:11.459 --> 00:12:15.390
to testify as to what the computer program does

258
00:12:15.390 --> 00:12:16.980
to calculate the statistics?
<v ->No, no.</v>

259
00:12:16.980 --> 00:12:18.600
<v ->That's the Commonwealth's argument,</v>

260
00:12:18.600 --> 00:12:19.433
so can you address that?

261
00:12:19.433 --> 00:12:22.410
<v ->And there's a case that says that merely, you know,</v>

262
00:12:22.410 --> 00:12:25.020
putting the stuff into the computer and generating it-

263
00:12:25.020 --> 00:12:29.700
<v ->Okay, so what more did the original analyst do</v>

264
00:12:29.700 --> 00:12:33.630
that you were not able to cross-examine on,

265
00:12:33.630 --> 00:12:36.003
beyond the entry of the computer program?

266
00:12:37.620 --> 00:12:40.653
<v ->Let me back up since I'm not sure that's the right focus.</v>

267
00:12:41.550 --> 00:12:43.380
The cases, all the medical examiner cases,

268
00:12:43.380 --> 00:12:45.030
and this is just based on Nardi.

269
00:12:45.030 --> 00:12:46.500
There's a whole line of these cases.

270
00:12:46.500 --> 00:12:47.587
And they say,

271
00:12:47.587 --> 00:12:52.390
essentially they say you can give your independent opinion,

272
00:12:53.970 --> 00:12:58.620
okay, but you can't read off the original report, okay?

273
00:12:58.620 --> 00:12:59.869
You can't...

274
00:12:59.869 --> 00:13:00.702
You just, you gotta...

275
00:13:00.702 --> 00:13:02.861
You can say, "I reviewed everything,

276
00:13:02.861 --> 00:13:06.813
and in my professional judgment,

277
00:13:09.810 --> 00:13:13.866
the profile's consistent with the defendant," okay?

278
00:13:13.866 --> 00:13:15.912
But she went beyond that.

279
00:13:15.912 --> 00:13:19.140
That's as far as she could go under the case law,

280
00:13:19.140 --> 00:13:20.910
as I understand it.

281
00:13:20.910 --> 00:13:22.770
She go in and started giving the numbers.

282
00:13:22.770 --> 00:13:23.700
And where'd she get the numbers?

283
00:13:23.700 --> 00:13:26.040
She got 'em from the original analyst.

284
00:13:26.040 --> 00:13:26.873
<v ->That's my question.</v>

285
00:13:26.873 --> 00:13:29.070
Did she get it from the original analyst,

286
00:13:29.070 --> 00:13:34.070
or did the analyst get that from the computer program?

287
00:13:34.170 --> 00:13:35.003
<v ->I think she got...</v>

288
00:13:35.003 --> 00:13:36.030
My reading of the case,

289
00:13:36.030 --> 00:13:38.100
and certainly the defense counsel's reading of the case,

290
00:13:38.100 --> 00:13:39.600
was she got 'em from the original analyst.

291
00:13:39.600 --> 00:13:41.450
<v ->Not admissible without the numbers.</v>

292
00:13:45.900 --> 00:13:47.700
<v ->On direct or cross?</v>

293
00:13:47.700 --> 00:13:49.050
<v ->Either. On direct.</v>

294
00:13:49.050 --> 00:13:51.270
I mean, the DNA testimony is not admissible

295
00:13:51.270 --> 00:13:53.683
without the numbers under Mattei, right?

296
00:13:53.683 --> 00:13:56.394
<v ->Right, but she cannot give those numbers,</v>

297
00:13:56.394 --> 00:13:59.790
unless she personally ran the numbers,

298
00:13:59.790 --> 00:14:02.940
and she said right here she didn't, okay?

299
00:14:02.940 --> 00:14:04.203
She can't do that.
<v ->That's my question.</v>

300
00:14:04.203 --> 00:14:06.750
Does she have to personally run the numbers

301
00:14:06.750 --> 00:14:09.360
if it's somebody entering it into a computer program?

302
00:14:09.360 --> 00:14:12.074
<v ->I would certainly think so. Those are the details of the-</v>

303
00:14:12.074 --> 00:14:14.274
<v ->No, what is the law beyond what you think?</v>

304
00:14:15.232 --> 00:14:18.270
That is, I mean, I think I wonder if...

305
00:14:19.110 --> 00:14:23.401
What is your view of the, well, what is the law on that?

306
00:14:23.401 --> 00:14:24.729
<v Maidman>My view of the law-</v>

307
00:14:24.729 --> 00:14:26.310
<v ->That somebody who uses a computer program</v>

308
00:14:26.310 --> 00:14:29.913
to get the statistical significance,

309
00:14:32.880 --> 00:14:37.470
a second person can't rely on that same computer program

310
00:14:37.470 --> 00:14:39.660
to generate the right statistical significance?

311
00:14:39.660 --> 00:14:40.493
Is that the law?

312
00:14:40.493 --> 00:14:43.563
<v ->My view of the law is that the substitute DNA analyst,</v>

313
00:14:45.690 --> 00:14:47.757
she cannot testify to the numbers

314
00:14:47.757 --> 00:14:50.400
that the original one came up with.

315
00:14:50.400 --> 00:14:54.060
<v ->Even if the original one came up with the numbers</v>

316
00:14:54.060 --> 00:14:55.320
using the program?

317
00:14:55.320 --> 00:14:56.400
<v ->Sure.</v>
<v ->Okay.</v>

318
00:14:56.400 --> 00:14:59.550
And what's the best law for that?

319
00:14:59.550 --> 00:15:00.383
<v ->Ma'am, unfortunately,</v>

320
00:15:00.383 --> 00:15:02.215
I can't cite you a case at the moment on that,

321
00:15:02.215 --> 00:15:03.450
but that's certainly-
<v ->Well, that seems important.</v>

322
00:15:03.450 --> 00:15:04.890
I'll look at your brief.

323
00:15:04.890 --> 00:15:08.940
<v ->I thought we had the common law confrontation clause case.</v>

324
00:15:08.940 --> 00:15:10.530
Is it Williams? I forget the name of the case.

325
00:15:10.530 --> 00:15:11.700
But we talked about

326
00:15:11.700 --> 00:15:16.650
whether or not the second expert is cross-examinable,

327
00:15:16.650 --> 00:15:18.210
basically is it a knowledgeable witness

328
00:15:18.210 --> 00:15:19.800
who can be cross-examined.

329
00:15:19.800 --> 00:15:22.140
That's where the defendant's rights come in, right?

330
00:15:22.140 --> 00:15:23.310
<v ->Well, that's certainly the confrontation clause I ran.</v>

331
00:15:23.310 --> 00:15:24.360
<v ->Right. Another confrontation clause.</v>

332
00:15:24.360 --> 00:15:27.150
<v ->And that's the Supreme Court case.</v>

333
00:15:27.150 --> 00:15:30.126
<v ->Yes. Both come in in Williams in all these cases.</v>

334
00:15:30.126 --> 00:15:30.959
<v ->Right, but-</v>

335
00:15:30.959 --> 00:15:32.015
<v ->And it's our gloss on those cases.</v>

336
00:15:32.015 --> 00:15:34.803
<v ->Well, they certainly cross-examined.</v>

337
00:15:35.700 --> 00:15:37.440
<v ->So, I mean, she works at the lab.</v>

338
00:15:37.440 --> 00:15:38.730
She's capable of being cross-examined.

339
00:15:38.730 --> 00:15:40.530
So, like to Justice Wendlandt's point,

340
00:15:40.530 --> 00:15:45.530
if the first witness plugged something into a calculator,

341
00:15:45.630 --> 00:15:50.370
right, and did simple arithmetic using a calculator,

342
00:15:50.370 --> 00:15:51.900
your testimony is the second witness

343
00:15:51.900 --> 00:15:54.300
has to put it into the same calculator?

344
00:15:54.300 --> 00:15:55.162
<v ->If she's gonna...</v>

345
00:15:55.162 --> 00:15:56.520
Let me restate that.

346
00:15:56.520 --> 00:15:59.370
She cannot reveal on direct.

347
00:15:59.370 --> 00:16:01.584
That's for the defense counsel to bring up the details.

348
00:16:01.584 --> 00:16:04.680
And say compare it with, you know, even all the medical-

349
00:16:04.680 --> 00:16:05.640
<v ->But it wasn't revealed on...</v>

350
00:16:05.640 --> 00:16:07.536
Well, and I'm sorry. You're right.

351
00:16:07.536 --> 00:16:09.477
The 1,300 was revealed on direct.

352
00:16:09.477 --> 00:16:13.418
<v ->Yes. That's what triggered this whole thing.</v>

353
00:16:13.418 --> 00:16:16.650
And the record certainly suggested it.

354
00:16:16.650 --> 00:16:17.910
<v ->So to put a fine point on it,</v>

355
00:16:17.910 --> 00:16:20.257
your issue is with the testimony

356
00:16:20.257 --> 00:16:22.980
of the substitute DNA expert testifying

357
00:16:22.980 --> 00:16:25.050
to the frequency numbers.
<v ->On direct.</v>

358
00:16:25.050 --> 00:16:26.160
<v ->On direct.</v>
<v ->Right.</v>

359
00:16:26.160 --> 00:16:27.488
<v Justice Gaziano>Okay.</v>

360
00:16:27.488 --> 00:16:29.788
<v ->And that's what defense counsel objected to.</v>

361
00:16:31.110 --> 00:16:32.970
That's what this issue is all about.

362
00:16:32.970 --> 00:16:36.829
And I would suggest under all the case law,

363
00:16:36.829 --> 00:16:40.233
that was for defense counsel if he wanted to bring it out.

364
00:16:42.060 --> 00:16:43.853
And that's certainly what's in the record.

365
00:16:45.330 --> 00:16:48.118
Okay, in my last few minutes here,

366
00:16:48.118 --> 00:16:51.723
let me address the chronological timeline of the evidence.

367
00:16:54.300 --> 00:16:57.690
What the Commonwealth did is they got the lead trooper

368
00:16:57.690 --> 00:17:01.593
to put on a PowerPoint presentation of 70 slides.

369
00:17:02.444 --> 00:17:04.752
It's around 70 slides.

370
00:17:04.752 --> 00:17:09.180
And that presentation was all of evidence

371
00:17:09.180 --> 00:17:10.800
that had been previously admitted.

372
00:17:10.800 --> 00:17:13.230
It was maps of cell phone towers,

373
00:17:13.230 --> 00:17:16.680
it was still images from video.

374
00:17:16.680 --> 00:17:21.360
It was from a variety of different sources.

375
00:17:21.360 --> 00:17:24.783
And all that was previously admitted.

376
00:17:25.740 --> 00:17:27.000
And so the Commonwealth

377
00:17:27.000 --> 00:17:29.466
essentially gave a pre-closing, closing argument.

378
00:17:29.466 --> 00:17:31.050
And it was good.

379
00:17:31.050 --> 00:17:33.017
And with all due respect to my colleague,

380
00:17:33.017 --> 00:17:36.136
it may have been better

381
00:17:36.136 --> 00:17:38.670
than the closing argument given by the Commonwealth.

382
00:17:38.670 --> 00:17:40.170
This was really good.

383
00:17:40.170 --> 00:17:41.748
<v ->Would it be based on the facts.</v>

384
00:17:41.748 --> 00:17:45.510
<v ->Hmm. Oh, it was the facts. It was the admitted evidence.</v>

385
00:17:45.510 --> 00:17:48.357
But the worst part of it, the pernicious part of it,

386
00:17:48.357 --> 00:17:51.210
the judge made it an exhibit,

387
00:17:51.210 --> 00:17:53.310
and the jurors took it into the jury room.

388
00:17:54.798 --> 00:17:59.798
So yeah, they had in the jury room the outline

389
00:18:02.370 --> 00:18:04.380
of the Commonwealth's case,

390
00:18:04.380 --> 00:18:06.191
and that shouldn't have happened.

391
00:18:06.191 --> 00:18:08.490
I mean, and this is gonna happen again.

392
00:18:08.490 --> 00:18:10.800
You're gonna see this repeatedly,

393
00:18:10.800 --> 00:18:13.804
given all the video evidence that's available.

394
00:18:13.804 --> 00:18:15.480
<v ->We had this issue in Bookman.</v>

395
00:18:15.480 --> 00:18:17.130
It might have been the same prosecutor.

396
00:18:17.130 --> 00:18:22.130
But, so if someone's prosecuting a bank larceny

397
00:18:25.320 --> 00:18:27.990
or some type of fraudulent scheme case, right,

398
00:18:27.990 --> 00:18:31.968
and they put in all the records of bank records,

399
00:18:31.968 --> 00:18:35.820
and then they have a chart that summarizes them all

400
00:18:35.820 --> 00:18:39.180
and puts a nice bow on it chronologically,

401
00:18:39.180 --> 00:18:41.400
your testimony is that can only be a chalk,

402
00:18:41.400 --> 00:18:42.240
it can't be an exhibit?

403
00:18:42.240 --> 00:18:44.463
<v Maidman>Well, it certainly should be.</v>

404
00:18:44.463 --> 00:18:45.296
<v ->Not your testimony, your position is-</v>

405
00:18:45.296 --> 00:18:47.033
<v Maidman>That's certainly my position.</v>

406
00:18:47.033 --> 00:18:47.907
<v ->Yep.</v>
<v ->Okay.</v>

407
00:18:47.907 --> 00:18:49.733
That's certainly the position, but it's more than that.

408
00:18:51.004 --> 00:18:56.004
This is not a situation where they were summarizing,

409
00:18:56.535 --> 00:19:00.240
you know, 10,000 pages of cell phone records.

410
00:19:00.240 --> 00:19:05.196
This was a video presentation of the Commonwealth's case,

411
00:19:05.196 --> 00:19:08.070
you know, from this cell phone tower

412
00:19:08.070 --> 00:19:09.330
to this cell phone tower,

413
00:19:09.330 --> 00:19:11.430
and now we have at the Walmart parking lot,

414
00:19:11.430 --> 00:19:14.520
and now we have, you know, the car driving down the street.

415
00:19:14.520 --> 00:19:16.920
I mean, this was pretty sophisticated.

416
00:19:16.920 --> 00:19:18.368
<v ->Would you remind us.</v>
<v ->It was good.</v>

417
00:19:18.368 --> 00:19:19.328
I mean, it was a good presentation.

418
00:19:19.328 --> 00:19:20.287
I give the Commonwealth credit

419
00:19:20.287 --> 00:19:21.354
for putting something like this together, but-

420
00:19:21.354 --> 00:19:22.950
<v ->Was this objected to? I'm sorry.</v>

421
00:19:22.950 --> 00:19:25.378
Oh, there's objections all over the place on this.

422
00:19:25.378 --> 00:19:29.040
But nonetheless, lemme make one last point on this one.

423
00:19:29.040 --> 00:19:32.778
The Commonwealth mentioned somewhere in their brief

424
00:19:32.778 --> 00:19:35.340
that I didn't raise a due process argument.

425
00:19:35.340 --> 00:19:37.350
This is Wardius versus Oregon,

426
00:19:37.350 --> 00:19:39.420
which is a due process case, okay?

427
00:19:39.420 --> 00:19:40.860
It talks about the delicate balance

428
00:19:40.860 --> 00:19:43.320
between the defense and the prosecution, okay?

429
00:19:43.320 --> 00:19:44.550
Here you have the Commonwealth

430
00:19:44.550 --> 00:19:46.361
giving a pre-closing argument.

431
00:19:46.361 --> 00:19:51.361
And this threw the balance off. It was unfair.

432
00:19:52.200 --> 00:19:53.730
And the worst part obviously was,

433
00:19:53.730 --> 00:19:55.320
from the defense point of view,

434
00:19:55.320 --> 00:19:58.200
was it went into the jury room.

435
00:19:58.200 --> 00:19:59.790
And unless you have any questions about that, let me-

436
00:19:59.790 --> 00:20:01.348
<v ->Wait, I'm sorry.</v>

437
00:20:01.348 --> 00:20:04.440
So you're saying it was okay, or it was not okay as a chalk?

438
00:20:04.440 --> 00:20:06.510
Was it okay as a chalk?

439
00:20:06.510 --> 00:20:08.043
<v ->Was it okay as a chalk?</v>

440
00:20:10.950 --> 00:20:15.950
I would argue, chalk meaning going into exhibit?

441
00:20:16.020 --> 00:20:17.280
<v ->Not going into the jury room,</v>

442
00:20:17.280 --> 00:20:18.979
meaning just a-

443
00:20:18.979 --> 00:20:20.130
<v ->Just a presentation itself?</v>
<v ->Exactly.</v>

444
00:20:20.130 --> 00:20:21.524
<v ->No, no, no.</v>

445
00:20:21.524 --> 00:20:23.100
It wasn't okay as a chalk,

446
00:20:23.100 --> 00:20:27.570
because what it was, it was completely cumulative,

447
00:20:27.570 --> 00:20:28.860
completely cumulative.

448
00:20:28.860 --> 00:20:30.540
This was put together.

449
00:20:30.540 --> 00:20:32.850
<v ->Bank record thing is okay?</v>
<v ->Sure.</v>

450
00:20:32.850 --> 00:20:34.740
If you got 10,000 pages of bank records,

451
00:20:34.740 --> 00:20:37.440
and you have one or two slides saying it, sure that's fine.

452
00:20:37.440 --> 00:20:39.240
That's what this all about.

453
00:20:39.240 --> 00:20:40.620
<v ->What's the rule that we make?</v>

454
00:20:40.620 --> 00:20:43.590
That you can do a summary as long

455
00:20:43.590 --> 00:20:44.793
as it's not a good one?

456
00:20:45.690 --> 00:20:46.800
What's the...?

457
00:20:46.800 --> 00:20:51.327
<v ->Summary is, if you've got the voluminous records.</v>

458
00:20:52.950 --> 00:20:55.143
This was not large voluminous records.

459
00:20:55.143 --> 00:20:58.320
<v ->Okay, but if the Commonwealth introduces five minutes</v>

460
00:20:58.320 --> 00:21:00.660
of a clip at the liquor store,

461
00:21:00.660 --> 00:21:03.210
and a five-minute clip at the dentist office,

462
00:21:03.210 --> 00:21:07.860
and a five-minute clip of the, you know, ATM video, right?

463
00:21:07.860 --> 00:21:10.437
And they don't want the jury to have to toggle through.

464
00:21:10.437 --> 00:21:12.090
<v ->No, they have 'em. They had 'em.</v>

465
00:21:12.090 --> 00:21:13.028
They had all this stuff.

466
00:21:13.028 --> 00:21:14.160
<v ->Right. That's what I mean.</v>

467
00:21:14.160 --> 00:21:19.140
But they want one video that shows everything as a cutup,

468
00:21:19.140 --> 00:21:21.480
as opposed to the five-minute, you know,

469
00:21:21.480 --> 00:21:23.280
that it's gonna take a jury six hours to go through,

470
00:21:23.280 --> 00:21:25.050
which they won't do.

471
00:21:25.050 --> 00:21:26.550
<v ->They certainly wanted that in this case.</v>

472
00:21:26.550 --> 00:21:27.900
<v ->Of course they did. That's why they put it in.</v>

473
00:21:27.900 --> 00:21:29.100
<v ->That's why they put it together.</v>

474
00:21:29.100 --> 00:21:30.180
<v ->Right.</v>
<v ->Right.</v>

475
00:21:30.180 --> 00:21:33.897
But that's, they gave their closing arguments right there.

476
00:21:33.897 --> 00:21:36.840
One or two minutes on one other thing, with your permission.

477
00:21:36.840 --> 00:21:37.673
<v ->Well, it depends.</v>

478
00:21:37.673 --> 00:21:39.618
I mean, I don't know if you answered the question.

479
00:21:39.618 --> 00:21:40.547
The question-
<v ->Oh, I'm sorry.</v>

480
00:21:40.547 --> 00:21:41.421
I'll try again.

481
00:21:41.421 --> 00:21:42.488
<v ->I'm all set.</v>
<v ->Oh, okay.</v>

482
00:21:42.488 --> 00:21:43.321
<v ->I'm all set.</v>

483
00:21:43.321 --> 00:21:45.540
<v ->Just very briefly on the sufficiency of the evidence.</v>

484
00:21:45.540 --> 00:21:47.610
<v ->Very, very briefly.</v>
<v ->Very briefly.</v>

485
00:21:47.610 --> 00:21:51.270
Pill bottles and telephones.

486
00:21:51.270 --> 00:21:56.136
The pill bottles were found in the jacket, okay.

487
00:21:56.136 --> 00:22:00.780
This guy was a frequent customer of the drug dealer,

488
00:22:00.780 --> 00:22:02.389
of the victim, okay?

489
00:22:02.389 --> 00:22:04.440
You know, we have no clue.

490
00:22:04.440 --> 00:22:05.850
The jury had no clue

491
00:22:05.850 --> 00:22:10.850
whether they were taken from the home,

492
00:22:11.010 --> 00:22:12.237
not taken from the home.

493
00:22:12.237 --> 00:22:14.520
They did have her name on it.

494
00:22:14.520 --> 00:22:15.390
There were no fingerprints,

495
00:22:15.390 --> 00:22:19.530
so they did essentially come from her somehow.

496
00:22:19.530 --> 00:22:21.619
But she sold the guy drugs constantly,

497
00:22:21.619 --> 00:22:24.186
meaning it was overwhelming into that.

498
00:22:24.186 --> 00:22:26.135
Finally the cell phones.

499
00:22:26.135 --> 00:22:30.300
And by the way, there's no evidence of what was in the...

500
00:22:30.300 --> 00:22:32.460
Now this was portrayed as an armed robbery.

501
00:22:32.460 --> 00:22:34.950
There was no evidence of what was supposedly in the cash box

502
00:22:34.950 --> 00:22:36.510
before this incident.

503
00:22:36.510 --> 00:22:38.554
Finally, the cell phones.

504
00:22:38.554 --> 00:22:42.270
The evidence is that, or at least the testimony

505
00:22:42.270 --> 00:22:45.480
was cell phones were bouncing off a cell tower

506
00:22:45.480 --> 00:22:47.651
south of Taunton.

507
00:22:47.651 --> 00:22:52.651
And yeah, the Commonwealth wants to (indistinct)

508
00:22:53.517 --> 00:22:54.900
"Well, you know, how'd they get there?" That kind of thing.

509
00:22:54.900 --> 00:22:56.193
No evidence he took 'em.

510
00:22:57.261 --> 00:23:00.360
And with that, unless you have any questions.

511
00:23:00.360 --> 00:23:01.923
<v ->Okay, thank you.</v>
<v ->Yep.</v>

512
00:23:04.209 --> 00:23:05.553
<v ->Attorney Stern.</v>

513
00:23:09.510 --> 00:23:10.470
<v ->Good morning, your honor.</v>

514
00:23:10.470 --> 00:23:12.390
Shoshana Stern for the Commonwealth.

515
00:23:12.390 --> 00:23:16.170
I guess to start with the confrontation clause issue,

516
00:23:16.170 --> 00:23:17.970
my understanding from the testimony,

517
00:23:17.970 --> 00:23:21.660
I don't know exactly who said what about this

518
00:23:21.660 --> 00:23:22.493
at which point,

519
00:23:22.493 --> 00:23:26.490
but essentially with the frequency, you have this website

520
00:23:26.490 --> 00:23:28.740
that at that point was the U.S. Y-STR website.

521
00:23:28.740 --> 00:23:30.720
It's actually since migrated to another website

522
00:23:30.720 --> 00:23:32.280
with even more profiles,

523
00:23:32.280 --> 00:23:35.730
according to the SWGDAM facts on their website.

524
00:23:35.730 --> 00:23:39.600
But it has essentially drop-downs for each of the locations

525
00:23:39.600 --> 00:23:42.030
of the particular alleles,

526
00:23:42.030 --> 00:23:44.580
and you fill in the numbers from the profile that you have,

527
00:23:44.580 --> 00:23:48.660
and it will then spit out a number of 1 or 0 in whatever.

528
00:23:48.660 --> 00:23:51.450
And the expert, the substitute in this case,

529
00:23:51.450 --> 00:23:54.720
essentially said that, I guess this has generated a printout

530
00:23:54.720 --> 00:23:56.670
that showed that what had been entered

531
00:23:56.670 --> 00:23:58.710
and what had come out of this program.

532
00:23:58.710 --> 00:24:00.690
And she looked at it and said, "The data went in correctly,

533
00:24:00.690 --> 00:24:02.640
and here's the number that came out."

534
00:24:02.640 --> 00:24:03.720
<v ->She didn't do it herself?</v>

535
00:24:03.720 --> 00:24:04.710
<v ->She didn't do it herself.</v>

536
00:24:04.710 --> 00:24:06.377
Defense counsel had actually elicited,

537
00:24:06.377 --> 00:24:09.030
I think, multiple times from the other expert,

538
00:24:09.030 --> 00:24:12.279
who was testifying on her own behalf about other DNA,

539
00:24:12.279 --> 00:24:13.950
that this didn't, you know,

540
00:24:13.950 --> 00:24:15.360
you plug numbers into the computer.

541
00:24:15.360 --> 00:24:17.940
You didn't do anything experty on this information.

542
00:24:17.940 --> 00:24:20.640
This is just what the computer gave you.

543
00:24:20.640 --> 00:24:25.640
<v ->First expert gets the Y chromosome alleles.</v>

544
00:24:27.000 --> 00:24:28.050
<v Stern>She does the whole thing.</v>

545
00:24:28.050 --> 00:24:28.883
<v ->And she does, she plugs it,</v>

546
00:24:28.883 --> 00:24:31.650
and she looks at the website and she gets the 1,300.

547
00:24:31.650 --> 00:24:33.353
<v ->Yes, essentially. And the defense-</v>

548
00:24:33.353 --> 00:24:37.410
<v ->And the second substitute expert looks at the paperwork.</v>

549
00:24:37.410 --> 00:24:38.243
<v Stern>Yeah.</v>

550
00:24:38.243 --> 00:24:39.390
<v ->And says, "Looks good to me"?</v>

551
00:24:39.390 --> 00:24:41.400
<v ->Well, actually, it's a little confusing.</v>

552
00:24:41.400 --> 00:24:45.420
So you have Elizabeth Duval, who tests the lockbox,

553
00:24:45.420 --> 00:24:46.740
who does all of that.

554
00:24:46.740 --> 00:24:50.220
Then you have Shaylyn Castor who does the jacket,

555
00:24:50.220 --> 00:24:51.360
who does all of that.

556
00:24:51.360 --> 00:24:53.070
And then you have the substitute analyst,

557
00:24:53.070 --> 00:24:54.240
who looks at her printout,

558
00:24:54.240 --> 00:24:57.570
and says, "I see that these numbers were entered correctly,

559
00:24:57.570 --> 00:24:59.640
and this is what the computer gave."

560
00:24:59.640 --> 00:25:03.033
And she did additional math on a calculator,

561
00:25:03.900 --> 00:25:06.270
but she didn't actually enter the numbers

562
00:25:06.270 --> 00:25:09.240
into the website again and click Enter to see what she got,

563
00:25:09.240 --> 00:25:10.620
which might not have been identical,

564
00:25:10.620 --> 00:25:12.671
because I think a number of people testified,

565
00:25:12.671 --> 00:25:16.080
I don't know if this was the motion hearing or the jury,

566
00:25:16.080 --> 00:25:18.295
as they add profiles, things change a little bit.

567
00:25:18.295 --> 00:25:20.610
The defense expert said

568
00:25:20.610 --> 00:25:23.490
at the pretrial motion in limine hearing,

569
00:25:23.490 --> 00:25:26.160
he ran these two and got the same general numbers.

570
00:25:26.160 --> 00:25:28.110
So he did it himself,

571
00:25:28.110 --> 00:25:32.253
that essentially it's plugging the data into a website.

572
00:25:33.390 --> 00:25:34.679
And so I think that-

573
00:25:34.679 --> 00:25:35.548
<v ->How does that align</v>

574
00:25:35.548 --> 00:25:38.220
with our medical examiner Nardi type cases?

575
00:25:38.220 --> 00:25:39.053
Because I know, you know,

576
00:25:39.053 --> 00:25:41.780
we allow a substitute medical examiner

577
00:25:41.780 --> 00:25:44.430
to look at the notes and the photographs,

578
00:25:44.430 --> 00:25:45.480
and to get on the witness stand

579
00:25:45.480 --> 00:25:48.330
and say, "Cause of death was blunt force trauma."

580
00:25:48.330 --> 00:25:49.980
<v ->Yeah.</v>
<v ->Say no more.</v>

581
00:25:49.980 --> 00:25:52.440
And then the defense attorney says, "Well."

582
00:25:52.440 --> 00:25:53.850
And then-
<v ->Yeah.</v>

583
00:25:53.850 --> 00:25:57.240
<v ->Right? How does this align with the Nardi cases?</v>

584
00:25:57.240 --> 00:25:58.920
<v ->Well, I think that with this,</v>

585
00:25:58.920 --> 00:26:00.510
as I recall with the Nardi cases,

586
00:26:00.510 --> 00:26:02.730
that the idea is there is judgment involved

587
00:26:02.730 --> 00:26:04.759
even in the fact-looking things

588
00:26:04.759 --> 00:26:08.289
that the original medical expert did.

589
00:26:08.289 --> 00:26:10.497
The substitute can look at actual photographs

590
00:26:10.497 --> 00:26:11.970
and go from that,

591
00:26:11.970 --> 00:26:14.250
but, you know, even if somebody measures something,

592
00:26:14.250 --> 00:26:15.345
you don't know what sort of-

593
00:26:15.345 --> 00:26:20.010
<v ->So your position is this aligns with Nardi,</v>

594
00:26:20.010 --> 00:26:21.870
because in Nardi, we allowed the substitute

595
00:26:21.870 --> 00:26:24.249
to say the cause of death was blunt force trauma

596
00:26:24.249 --> 00:26:25.686
as the bottom line,

597
00:26:25.686 --> 00:26:28.942
and here the substitute DNA expert said,

598
00:26:28.942 --> 00:26:31.830
"The bottom line is there was a match,

599
00:26:31.830 --> 00:26:34.740
and the statistical significance is 1 in the 1,300."

600
00:26:35.591 --> 00:26:36.424
<v ->Well, I think that's one thing,</v>

601
00:26:36.424 --> 00:26:37.290
but I think also the fact

602
00:26:37.290 --> 00:26:40.080
that the computer is essentially doing everything here

603
00:26:40.080 --> 00:26:42.183
on this particular step, you know,

604
00:26:43.464 --> 00:26:47.250
in terms of the sort of the lack of human involvement,

605
00:26:47.250 --> 00:26:49.076
which again, defense counsel himself emphasized

606
00:26:49.076 --> 00:26:51.632
at other points when he was making other points,

607
00:26:51.632 --> 00:26:53.045
that this is just...

608
00:26:53.045 --> 00:26:56.180
I mean, and so that's what I thought that Cole was relevant

609
00:26:56.180 --> 00:27:00.690
to the fact that essentially this part of the process

610
00:27:00.690 --> 00:27:02.430
is not really being done by the expert.

611
00:27:02.430 --> 00:27:04.199
It's being used by the expert as a tool,

612
00:27:04.199 --> 00:27:08.430
but the expert is not actually doing their expert thing,

613
00:27:08.430 --> 00:27:10.680
except by knowing which computer program to go to,

614
00:27:10.680 --> 00:27:14.130
which is their own information.

615
00:27:14.130 --> 00:27:16.140
That essentially, I mean, if we didn't have the evidence

616
00:27:16.140 --> 00:27:17.610
that the correct alleles were entered,

617
00:27:17.610 --> 00:27:18.840
I suppose that would be different.

618
00:27:18.840 --> 00:27:21.957
If she hadn't, I mean, if she looked at the result.

619
00:27:21.957 --> 00:27:23.670
My understanding from her testimony

620
00:27:23.670 --> 00:27:27.300
was that the computer printout generated

621
00:27:27.300 --> 00:27:31.950
by the original tester was these were entered

622
00:27:31.950 --> 00:27:32.783
and this came out.

623
00:27:32.783 --> 00:27:34.050
If she didn't have that these were entered,

624
00:27:34.050 --> 00:27:35.580
I think she would have to do it again.

625
00:27:35.580 --> 00:27:37.470
You could even say in the future she should do it again.

626
00:27:37.470 --> 00:27:42.470
I just don't think that there's much as a practical matter.

627
00:27:43.130 --> 00:27:44.910
I mean, maybe she didn't do it

628
00:27:44.910 --> 00:27:46.860
because it would be a slightly different number.

629
00:27:46.860 --> 00:27:47.841
I don't know.

630
00:27:47.841 --> 00:27:49.890
Certainly she was willing

631
00:27:49.890 --> 00:27:53.640
to redo the calculator math on her own,

632
00:27:53.640 --> 00:27:54.900
but that essentially, you know,

633
00:27:54.900 --> 00:27:56.430
for the reasons that this court has said

634
00:27:56.430 --> 00:27:58.620
that the stuff the computer does on this

635
00:27:58.620 --> 00:28:00.407
is not testimonial and not hearsay,

636
00:28:00.407 --> 00:28:03.210
that that would be true of a substitute expert

637
00:28:03.210 --> 00:28:04.537
using that data as well

638
00:28:04.537 --> 00:28:06.720
in this very particular circumstance.

639
00:28:06.720 --> 00:28:10.050
Now, what Smith versus Arizona will say, I don't know,

640
00:28:10.050 --> 00:28:11.493
but none of us do.

641
00:28:13.050 --> 00:28:14.610
But, so I think

642
00:28:14.610 --> 00:28:17.160
that that's essentially the very narrow thing

643
00:28:17.160 --> 00:28:20.673
that was under discussion here on that issue.

644
00:28:22.228 --> 00:28:25.890
And the judge was very, I mean, there was motions in limine

645
00:28:25.890 --> 00:28:27.240
to bring in the substitute expert.

646
00:28:27.240 --> 00:28:29.580
The judge was watching this issue very carefully.

647
00:28:29.580 --> 00:28:30.928
He thought about it, he said, you know,

648
00:28:30.928 --> 00:28:33.210
I mean, 'cause you have the confrontation clause issue

649
00:28:33.210 --> 00:28:34.380
and you have the Markvard issue.

650
00:28:34.380 --> 00:28:36.897
He said, you know, that the expert can't testify

651
00:28:36.897 --> 00:28:41.070
to the underlying data on direct when they're a substitute.

652
00:28:41.070 --> 00:28:42.810
The question is what is the data?

653
00:28:42.810 --> 00:28:43.980
And I think it's the alleles.

654
00:28:43.980 --> 00:28:46.200
I don't think it's what the computer did.

655
00:28:46.200 --> 00:28:48.990
So he essentially, I think,

656
00:28:48.990 --> 00:28:52.329
went through all of that analysis quite reasonably.

657
00:28:52.329 --> 00:28:55.400
And again, you know, this is highly...

658
00:28:57.060 --> 00:28:59.940
She was the testimony about this particular evidence,

659
00:28:59.940 --> 00:29:02.080
but, you know, this profile was derived

660
00:29:03.180 --> 00:29:04.659
from two different pieces of evidence.

661
00:29:04.659 --> 00:29:06.930
The defense expert himself agreed,

662
00:29:06.930 --> 00:29:09.430
it was the defendant or one of his male relatives.

663
00:29:10.530 --> 00:29:11.760
The defense counsel knew

664
00:29:11.760 --> 00:29:14.160
his expert had rerun these calculations himself

665
00:29:14.160 --> 00:29:15.660
and agreed with them.

666
00:29:15.660 --> 00:29:18.840
So in that sense, you know, he was entirely entitled

667
00:29:18.840 --> 00:29:20.160
to stand on his rights,

668
00:29:20.160 --> 00:29:22.920
but he didn't have any reason to think

669
00:29:22.920 --> 00:29:25.050
that there was anything there he was going to find

670
00:29:25.050 --> 00:29:27.633
on that particular issue.

671
00:29:28.500 --> 00:29:31.530
<v ->What about the issue of the wrong database?</v>

672
00:29:31.530 --> 00:29:33.870
<v ->Yes. So I think that that's...</v>

673
00:29:33.870 --> 00:29:36.690
So very, very zealous defense counsel in this case.

674
00:29:36.690 --> 00:29:39.557
And I think that, but objected early, objected often,

675
00:29:39.557 --> 00:29:42.727
overarching a lot of his objections are,

676
00:29:42.727 --> 00:29:44.423
"This is hard. It requires nuance.

677
00:29:44.423 --> 00:29:48.690
There's context, so the jury shouldn't hear it at all.

678
00:29:48.690 --> 00:29:50.280
There's no way to make this safe for the jury."

679
00:29:50.280 --> 00:29:52.117
And the judge, I think, consistently was saying,

680
00:29:52.117 --> 00:29:54.600
"We will give the jury all the context.

681
00:29:54.600 --> 00:29:57.090
The jury will understand the context,

682
00:29:57.090 --> 00:29:59.610
and we can trust the jury to use the context."

683
00:29:59.610 --> 00:30:04.610
So the judge, you know, there was this motion in limine,

684
00:30:05.430 --> 00:30:07.740
which the judge heard from both sides' experts.

685
00:30:07.740 --> 00:30:10.680
I think, you know, the showing

686
00:30:10.680 --> 00:30:13.290
on whether there even was a population substructure here,

687
00:30:13.290 --> 00:30:14.490
I think was not as strong

688
00:30:14.490 --> 00:30:17.820
as certainly in the cases the defendant cites, as in Donick,

689
00:30:17.820 --> 00:30:19.200
about whether being Portuguese

690
00:30:19.200 --> 00:30:21.660
in Southeastern Massachusetts really would raise this issue.

691
00:30:21.660 --> 00:30:24.255
But regardless, I mean the defense's position was,

692
00:30:24.255 --> 00:30:27.660
"You need a local database. There is no local database.

693
00:30:27.660 --> 00:30:30.120
The jury can't hear about any of this Y-STR."

694
00:30:30.120 --> 00:30:32.760
<v ->It was Dr. Lakin?</v>
<v ->Sorry? Yes.</v>

695
00:30:32.760 --> 00:30:37.260
<v ->Did did he investigate or say anything</v>

696
00:30:37.260 --> 00:30:40.410
other than the fact that Mr. Souza is Portuguese?

697
00:30:40.410 --> 00:30:41.800
Did he say-
<v ->I don't recall.</v>

698
00:30:41.800 --> 00:30:43.191
I mean, he said that has family.

699
00:30:43.191 --> 00:30:45.240
<v ->This the the lack of interbreeding and et cetera?</v>

700
00:30:45.240 --> 00:30:48.030
<v ->No, your Honor. I mean, he has family in the area.</v>

701
00:30:48.030 --> 00:30:50.250
That was in evidence, though some of them were kids

702
00:30:50.250 --> 00:30:51.090
and some of them were dead.

703
00:30:51.090 --> 00:30:52.300
But, I mean, certainly

704
00:30:53.728 --> 00:30:55.800
there is a large Portuguese population

705
00:30:55.800 --> 00:30:56.820
in Southeastern Massachusetts,

706
00:30:56.820 --> 00:30:58.350
but what that means for this...

707
00:30:58.350 --> 00:31:00.300
<v ->Right, so it wasn't</v>

708
00:31:00.300 --> 00:31:02.820
like the discrete Native American tribe.

709
00:31:02.820 --> 00:31:05.070
<v ->No, or even like the Ashkenazi Jewish population,</v>

710
00:31:05.070 --> 00:31:06.780
as far as we know from the evidence.

711
00:31:06.780 --> 00:31:08.365
And Portuguese from Portugal,

712
00:31:08.365 --> 00:31:11.460
essentially, just that you can trace it back

713
00:31:11.460 --> 00:31:13.110
to the great-grandfather or whatever,

714
00:31:13.110 --> 00:31:14.790
and they've been in this area since then,

715
00:31:14.790 --> 00:31:16.350
though Fall River, not Taunton,

716
00:31:16.350 --> 00:31:18.801
whatever that would mean in this case.

717
00:31:18.801 --> 00:31:23.801
But, you know, as I cited to Lally and also to Donick,

718
00:31:23.880 --> 00:31:27.810
that the issue is that the jury have the context

719
00:31:27.810 --> 00:31:31.110
for both, for the DNA in general,

720
00:31:31.110 --> 00:31:33.960
but also the DNA in the context of this case.

721
00:31:33.960 --> 00:31:37.800
That, you know, the counting measure was good enough.

722
00:31:37.800 --> 00:31:41.250
And in Lally things have gotten more and more precise

723
00:31:41.250 --> 00:31:42.303
as we get more data,

724
00:31:43.920 --> 00:31:46.327
the defense was able to ask, you know,

725
00:31:46.327 --> 00:31:48.240
"If you applied higher confidence interval,

726
00:31:48.240 --> 00:31:49.840
what would you get differently?"

727
00:31:51.510 --> 00:31:54.660
He got various experts to agree, maybe it's 1 in 500,

728
00:31:54.660 --> 00:31:56.166
maybe that's-

729
00:31:56.166 --> 00:31:57.720
<v ->We didn't require a confidence interval in Lally?</v>

730
00:31:57.720 --> 00:31:59.440
<v ->No.</v>
<v ->And here we have-</v>

731
00:31:59.440 --> 00:32:02.430
<v ->Yeah, I mean, so the takeaway I think</v>

732
00:32:02.430 --> 00:32:04.170
from the totality of the case law

733
00:32:04.170 --> 00:32:06.315
is that the jury needs to have some understanding

734
00:32:06.315 --> 00:32:10.890
that, you know, this isn't definitive proof of guilt,

735
00:32:10.890 --> 00:32:13.170
which it pretty much never will be for Y-STR.

736
00:32:13.170 --> 00:32:15.600
You'd need a very unusual fact set.

737
00:32:15.600 --> 00:32:16.991
I'm not saying it would never happen,

738
00:32:16.991 --> 00:32:20.250
but, you know, they're always gonna be in the thousands

739
00:32:20.250 --> 00:32:21.570
and not in the quintillions.

740
00:32:21.570 --> 00:32:23.580
And the judge actually went out of his way here

741
00:32:23.580 --> 00:32:25.756
to give a sua sponte jury instruction

742
00:32:25.756 --> 00:32:30.540
that, you know, make sure not to confuse Y-STR with STR for-

743
00:32:30.540 --> 00:32:32.400
<v ->Because there was STR in the case.</v>

744
00:32:32.400 --> 00:32:33.233
<v ->There was STR in the case,</v>

745
00:32:33.233 --> 00:32:35.417
and the STR was in those numbers.

746
00:32:35.417 --> 00:32:40.417
Now, certainly we have admitted very marginal STR evidence,

747
00:32:40.560 --> 00:32:43.394
entrusted the jury with that for a long time,

748
00:32:43.394 --> 00:32:47.100
so, you know, much lower numbers than this.

749
00:32:47.100 --> 00:32:49.500
So Y-STR has the fact

750
00:32:49.500 --> 00:32:54.500
that it's specifically not just a, you know, 1 in 3

751
00:32:55.020 --> 00:32:56.850
or 1 in 1,300,

752
00:32:56.850 --> 00:32:58.920
but that, you know, it could be the defendant

753
00:32:58.920 --> 00:33:00.330
or any of his paternal male relatives.

754
00:33:00.330 --> 00:33:02.790
But as the prosecutor said in his closing,

755
00:33:02.790 --> 00:33:04.080
you know, "And then look at the evidence.

756
00:33:04.080 --> 00:33:06.630
Is there anybody else that this is likely to belong to

757
00:33:06.630 --> 00:33:10.260
who was involved in this case?"

758
00:33:10.260 --> 00:33:11.093
And this case was,

759
00:33:11.093 --> 00:33:12.840
and I guess this arguably ties

760
00:33:12.840 --> 00:33:14.220
into the compilation argument,

761
00:33:14.220 --> 00:33:17.817
but it was made of lots and lots of small pieces

762
00:33:17.817 --> 00:33:21.630
of independent data, which made it very robust

763
00:33:21.630 --> 00:33:23.628
against issues with any particular one of those.

764
00:33:23.628 --> 00:33:28.628
But it was, you know, of the ways that we know

765
00:33:29.520 --> 00:33:31.380
that the defendant was in the area of the murder

766
00:33:31.380 --> 00:33:32.310
at the time of the murder.

767
00:33:32.310 --> 00:33:33.300
There's CSLI.

768
00:33:33.300 --> 00:33:34.890
His cars on surveillance footage

769
00:33:34.890 --> 00:33:36.810
at three different, at least, places.

770
00:33:36.810 --> 00:33:39.623
He's on surveillance footage nearby at a gas station

771
00:33:39.623 --> 00:33:42.240
going in with his hands covered right afterwards.

772
00:33:42.240 --> 00:33:43.680
He's texting with the victim.

773
00:33:43.680 --> 00:33:45.660
<v ->What about this timeline overkill?</v>

774
00:33:45.660 --> 00:33:47.430
<v ->Yeah.</v>
<v ->Can you address that issue?</v>

775
00:33:47.430 --> 00:33:49.422
<v ->Yes, so, I mean, as I said, the defendant,</v>

776
00:33:49.422 --> 00:33:54.422
because defense counsel buries else with his objections,

777
00:33:54.570 --> 00:33:56.400
they weren't specifically focused on this.

778
00:33:56.400 --> 00:33:57.649
They probably cover this.

779
00:33:57.649 --> 00:34:00.120
I mean, he had some specifically about this.

780
00:34:00.120 --> 00:34:02.850
It was not the lead detective,

781
00:34:02.850 --> 00:34:04.950
but essentially the Commonwealth's forensic expert,

782
00:34:04.950 --> 00:34:06.090
so he dealt with a lot

783
00:34:06.090 --> 00:34:09.450
of the defendant's most vociferous objections were

784
00:34:09.450 --> 00:34:11.040
to merging the phone records

785
00:34:11.040 --> 00:34:13.050
so that you could see them in chronological order.

786
00:34:13.050 --> 00:34:14.370
That was where he had the discussion

787
00:34:14.370 --> 00:34:16.260
about Commonwealth versus Wood with the judge.

788
00:34:16.260 --> 00:34:17.100
He really didn't...

789
00:34:17.100 --> 00:34:19.950
He thought the jury should figure that out for themselves.

790
00:34:19.950 --> 00:34:21.720
They shouldn't get to see that in a timeline

791
00:34:21.720 --> 00:34:25.380
as Exhibit 150, which I think is not an issue on appeal.

792
00:34:25.380 --> 00:34:27.990
So he was objecting to all of the phone records and all-

793
00:34:27.990 --> 00:34:29.511
<v ->So let's just assume it was preserved.</v>

794
00:34:29.511 --> 00:34:31.170
<v ->Yes, I am.</v>

795
00:34:31.170 --> 00:34:35.220
<v ->How is this appropriate to be using with a witness,</v>

796
00:34:35.220 --> 00:34:37.290
as opposed to something that is a chalk

797
00:34:37.290 --> 00:34:40.980
that doesn't go to the jury in closing argument?

798
00:34:40.980 --> 00:34:44.580
<v ->So, I mean, so one thing I was heading towards there</v>

799
00:34:44.580 --> 00:34:46.950
is that this witness actually personally was the witness

800
00:34:46.950 --> 00:34:48.660
through which a lot of this evidence came in,

801
00:34:48.660 --> 00:34:52.208
because, you know, he corrected the timestamps

802
00:34:52.208 --> 00:34:55.890
on all of the videos based on his personal having gone there

803
00:34:55.890 --> 00:34:56.848
and his knowledge of DVR.

804
00:34:56.848 --> 00:35:00.300
So that came, the surveillance video came in

805
00:35:00.300 --> 00:35:01.740
ultimately as exhibits through him.

806
00:35:01.740 --> 00:35:03.270
The phone records came in through him.

807
00:35:03.270 --> 00:35:05.250
The CSLI came in through him.

808
00:35:05.250 --> 00:35:08.400
So he is the person who essentially gives the context

809
00:35:08.400 --> 00:35:11.310
for all of this evidence in his own testimony,

810
00:35:11.310 --> 00:35:12.985
not everything, but most of it.

811
00:35:12.985 --> 00:35:14.682
The presentation itself,

812
00:35:14.682 --> 00:35:18.150
since this case we've brought these presentations in

813
00:35:18.150 --> 00:35:18.983
by motion in limine

814
00:35:18.983 --> 00:35:21.690
where it can be hashed out in a cleaner way,

815
00:35:21.690 --> 00:35:23.430
so there will probably be better records

816
00:35:23.430 --> 00:35:25.290
in other cases on that.

817
00:35:25.290 --> 00:35:30.290
But it's a lot of it, and you know, the basic thing it does

818
00:35:30.600 --> 00:35:32.700
is it puts the phone data in time

819
00:35:32.700 --> 00:35:34.203
where you have cell towers.

820
00:35:35.040 --> 00:35:37.110
I would argue it's actually pretty dry for that purpose.

821
00:35:37.110 --> 00:35:38.679
Looking at it, it's hard to sort of...

822
00:35:38.679 --> 00:35:41.670
It's not exciting, for the most part.

823
00:35:41.670 --> 00:35:46.487
You know, there's differences, but, and he doesn't...

824
00:35:46.487 --> 00:35:49.290
You know, it talks about, like it says up at the top,

825
00:35:49.290 --> 00:35:52.560
you know, "BC did JS text message,"

826
00:35:52.560 --> 00:35:53.580
but it doesn't say what.

827
00:35:53.580 --> 00:35:57.340
It doesn't sort of get into any of the sort of critical

828
00:35:58.770 --> 00:36:01.563
sort of what conversation they're having that morning.

829
00:36:02.610 --> 00:36:04.890
You can see the defendant's phone moving up Route 24,

830
00:36:04.890 --> 00:36:08.460
and then he does have some stills of the videos

831
00:36:08.460 --> 00:36:10.770
that ultimately he was the one who gave the evidence

832
00:36:10.770 --> 00:36:12.960
of when the time on the video was,

833
00:36:12.960 --> 00:36:15.690
of, you know, "The defendant's phone is here,

834
00:36:15.690 --> 00:36:17.430
the defendant's car is here."

835
00:36:17.430 --> 00:36:19.377
<v ->Can you address what our case law is on this,</v>

836
00:36:19.377 --> 00:36:21.090
and whether or not this exceeds it

837
00:36:21.090 --> 00:36:25.213
or is compliant with our case law on this type of evidence.

838
00:36:26.057 --> 00:36:28.890
<v ->Our case law is probably still evolving on this.</v>

839
00:36:28.890 --> 00:36:31.380
You know, there's Wood, which is a very thoughtful decision,

840
00:36:31.380 --> 00:36:33.720
but doesn't, you know, it's crossing the line

841
00:36:33.720 --> 00:36:35.610
from presentation of evidence into argument,

842
00:36:35.610 --> 00:36:38.190
and that is inherently a somewhat subjective thing

843
00:36:38.190 --> 00:36:41.100
that was not squarely, I think, discussed in this.

844
00:36:41.100 --> 00:36:42.510
I mean, in this case,

845
00:36:42.510 --> 00:36:44.010
I mean, I think I would argue

846
00:36:44.010 --> 00:36:46.860
the Commonwealth had a clear right to get in.

847
00:36:46.860 --> 00:36:48.427
I mean, and the judge said, you know,

848
00:36:48.427 --> 00:36:49.740
"The jury's gonna have trouble

849
00:36:49.740 --> 00:36:53.730
interpreting the locations of the towers without a map,

850
00:36:53.730 --> 00:36:58.197
the timing of the phone calls relative to each other."

851
00:37:00.463 --> 00:37:04.980
Essentially how all of these different sort of tiles

852
00:37:04.980 --> 00:37:07.140
in the mosaic do fit together into the picture,

853
00:37:07.140 --> 00:37:11.010
I think the trooper, his testimony may have suggested

854
00:37:11.010 --> 00:37:13.170
he initially did this so he could see it,

855
00:37:13.170 --> 00:37:15.240
that where you have cases like this,

856
00:37:15.240 --> 00:37:18.510
which I think are within permissible boundaries

857
00:37:18.510 --> 00:37:21.150
to be encouraged having these mosaic of evidence cases

858
00:37:21.150 --> 00:37:23.940
because they're much less like they,

859
00:37:23.940 --> 00:37:25.290
they're squarely aimed ultimately

860
00:37:25.290 --> 00:37:28.200
at our strongest objectives of identifying who did do it

861
00:37:28.200 --> 00:37:29.520
and identifying who didn't do it.

862
00:37:29.520 --> 00:37:31.110
You're much less likely, you know,

863
00:37:31.110 --> 00:37:32.490
it doesn't pose the same risks

864
00:37:32.490 --> 00:37:34.710
as a single eyewitness identification,

865
00:37:34.710 --> 00:37:36.990
that, you know, in 40 years we're going to be,

866
00:37:36.990 --> 00:37:41.520
that being able to bring all of these discrete pieces

867
00:37:41.520 --> 00:37:44.013
of different types of evidence together

868
00:37:44.013 --> 00:37:46.980
to all show one person

869
00:37:46.980 --> 00:37:49.860
is something that we really want to be able to use.

870
00:37:49.860 --> 00:37:51.690
For the sake of justice,

871
00:37:51.690 --> 00:37:54.270
obviously you don't wanna have...

872
00:37:54.270 --> 00:37:55.957
You know, and the judge actually said, you know,

873
00:37:55.957 --> 00:37:58.560
"The defense can excerpt anything they want

874
00:37:58.560 --> 00:37:59.730
from the evidence."

875
00:37:59.730 --> 00:38:01.882
There's no inherent Commonwealth prerogative here.

876
00:38:01.882 --> 00:38:04.617
But that certainly it should be,

877
00:38:04.617 --> 00:38:07.290
and I don't think anything says it can't be possible

878
00:38:07.290 --> 00:38:09.840
to just put together in order

879
00:38:09.840 --> 00:38:13.762
what all of the different, the phone records,

880
00:38:13.762 --> 00:38:15.530
and the keepers of the records

881
00:38:15.530 --> 00:38:17.927
from all the different gas stations,

882
00:38:17.927 --> 00:38:19.620
and all of the different...

883
00:38:19.620 --> 00:38:23.790
Well, the DNA was not on the compilation at all.

884
00:38:23.790 --> 00:38:25.380
The photo of the pill bottle,

885
00:38:25.380 --> 00:38:27.120
I don't know what that adds in this case.

886
00:38:27.120 --> 00:38:28.650
I don't think it caused any prejudice,

887
00:38:28.650 --> 00:38:30.900
'cause the jury was not going to forget about that.

888
00:38:30.900 --> 00:38:33.240
But just in terms of, you know,

889
00:38:33.240 --> 00:38:34.860
you heard all of these different people

890
00:38:34.860 --> 00:38:36.458
talking about all of these different things,

891
00:38:36.458 --> 00:38:38.610
and again, many of them ultimately,

892
00:38:38.610 --> 00:38:40.590
with crucial contributions by this witness

893
00:38:40.590 --> 00:38:42.990
that the jury didn't have till he testified,

894
00:38:42.990 --> 00:38:45.870
that here is how this evidence

895
00:38:45.870 --> 00:38:48.780
in this most fundamental way fits together.

896
00:38:48.780 --> 00:38:51.450
I mean, he didn't say, he was very careful,

897
00:38:51.450 --> 00:38:53.977
and defense counsel was very on top of, you know,

898
00:38:53.977 --> 00:38:55.200
"You can see a person here."

899
00:38:55.200 --> 00:38:56.700
He doesn't say, "You can see the defendant."

900
00:38:56.700 --> 00:38:58.890
It's, you know, "You see a person in the woods

901
00:38:58.890 --> 00:39:00.590
in the corner of this photograph."

902
00:39:01.548 --> 00:39:04.026
And it was very carefully kept

903
00:39:04.026 --> 00:39:09.026
on what was actually in the information

904
00:39:09.570 --> 00:39:11.411
that was actually the evidence.

905
00:39:11.411 --> 00:39:14.130
I mean, so in some sense some of it said it twice,

906
00:39:14.130 --> 00:39:17.580
but I think that the prosecutor's closing,

907
00:39:17.580 --> 00:39:19.020
which frankly I thought was excellent,

908
00:39:19.020 --> 00:39:20.850
included a lot more information

909
00:39:20.850 --> 00:39:23.370
and a lot more discussion of other things

910
00:39:23.370 --> 00:39:24.913
and discussions of other potential,

911
00:39:24.913 --> 00:39:27.540
I think other potential third party culprits.

912
00:39:27.540 --> 00:39:30.154
But again, you know, the DNA wasn't in this compilation.

913
00:39:30.154 --> 00:39:34.091
So, you know, there there's a lot of...

914
00:39:34.091 --> 00:39:35.880
I mean, it's easy to say

915
00:39:35.880 --> 00:39:36.990
there's a lot of interesting things

916
00:39:36.990 --> 00:39:38.430
that could have been in the compilation that weren't,

917
00:39:38.430 --> 00:39:39.510
which is neither here nor there.

918
00:39:39.510 --> 00:39:44.510
But I think that essentially a fairly dry organization

919
00:39:44.820 --> 00:39:47.310
of the evidence to show the picture

920
00:39:47.310 --> 00:39:51.150
that the individual pieces do in fact straightforwardly show

921
00:39:51.150 --> 00:39:53.370
is a very valuable tool,

922
00:39:53.370 --> 00:39:55.266
and obviously you don't want that to be abused.

923
00:39:55.266 --> 00:40:00.266
But, yeah, I think that it's important to,

924
00:40:03.240 --> 00:40:05.760
as the law evolves on a case-by-case basis here,

925
00:40:05.760 --> 00:40:10.361
to maintain an appropriate version of that as an option

926
00:40:10.361 --> 00:40:11.520
for all the reasons.

927
00:40:11.520 --> 00:40:13.463
<v ->Looking back on it, would you, you know,</v>

928
00:40:16.549 --> 00:40:17.382
if you had it to do over again,

929
00:40:17.382 --> 00:40:20.700
is that something that a prosecutor would ask

930
00:40:20.700 --> 00:40:23.283
to have sent into the jury room?

931
00:40:25.230 --> 00:40:26.063
<v ->I don't know.</v>

932
00:40:26.063 --> 00:40:26.896
I mean, certainly in this case

933
00:40:26.896 --> 00:40:28.277
we actually discovered the jury couldn't play it,

934
00:40:28.277 --> 00:40:29.580
'cause it required internet.

935
00:40:29.580 --> 00:40:31.306
They did ultimately get the information.

936
00:40:31.306 --> 00:40:33.422
That issue was not discussed.

937
00:40:33.422 --> 00:40:36.810
I don't know that they couldn't send it into the jury room,

938
00:40:36.810 --> 00:40:38.310
but I think that you could certainly,

939
00:40:38.310 --> 00:40:40.110
you could set that boundary.

940
00:40:40.110 --> 00:40:45.110
It's, you know, yeah, I don't have a...

941
00:40:47.550 --> 00:40:48.383
Certainly you could say

942
00:40:48.383 --> 00:40:50.490
it would have to be a chalk in the future.

943
00:40:50.490 --> 00:40:52.710
I think there's some basis in the rules of evidence

944
00:40:52.710 --> 00:40:53.790
for making it an exhibit

945
00:40:53.790 --> 00:40:58.383
when it's actually appropriately just a synthesis

946
00:41:00.150 --> 00:41:04.983
of the dry facts, but putting them all together.

947
00:41:06.498 --> 00:41:11.498
But yeah, if there are no further questions.

948
00:41:13.740 --> 00:41:14.880
<v ->[Justice Wendlandt] Okay.</v>

949
00:41:14.880 --> 00:41:17.003
<v ->Commonwealth rests on it brief. Thank you.</v>