-: SJC-13234, Commonwealth versus James Souza.
-: Okay, Attorney Maidman. Good morning.
-: Morning. -: Hi.
-: Good morning.
If it please the court. Steven Maidman for James Souza.
This case is primarily about DNA evidence,
and I will address the two issues
involving the DNA evidence,
and then turn my attention
to the Commonwealth's chronological timeline.
If there's any time remaining, I'll briefly address
the sufficiency of the evidence argument.
This case is not about the typical DNA evidence,
which I'm sure you're all familiar with,
where it comes back with expectant frequencies
of 1 in sextillion occurrences.
This is about Y-STR DNA,
and it's complex, but it can be simplified.
It's the focus is on the male chromosome, the Y chromosome.
So my son has my Y chromosome,
I have my father's chromosome,
and my entire family line going,
my entire paternal line going back to the cavemen
have my Y chromosome.
-: Can I ask you on our case law?
'Cause as I read this, I'm reminded of the early days of DNA
where the statistical significance
of databases were litigated. -: Right.
-: I remember looking at the databases
and being shockingly surprised at how small they were,
and how they're able to extrapolate
based upon a few thousand people, basically.
Maidman: Right, right.
-: And the argument back in those days used to be
we need a localized database similar to this,
where he's saying it's the Portuguese community
in Fall River, so it's not representative.
I just seem to recall
that this argument was raised way back when, and it-
-: I don't remember that in the autosomal DNA cases.
Justice Gaziano: Oh, you don't?
-: And in this case, it wasn't relevant,
so I didn't focus on it.
They used the autosomal DNA, you know, traditional DNA,
to prove that her DNA was on various things.
-: I remember litigating this issue,
on statistical richness of the databases,
and whether or not they should be localized.
And it was okay, at least for, and as you said,
the results are in the bazillions, right?
-: We have national databases for autosomal DNA.
-: But this is a national database, too.
-: Well, it's a very interesting national database,
which is what this case is all about.
There is a national database.
Most people aren't in the database.
They use statistics,
which I can't remember from my statistics courses
on how to extrapolate to what it should be
on a national basis.
-: Good thing we have a scientist on the panel.
-: Yes. No, no.
Yes, that's right.
-: (laughing) You know it ain't me.
-: It's not me either. And that's an issue in the case.
But in any event,
this case involved his Portuguese background
and family was in the basically Southeastern Massachusetts.
They all lived there for years. They all had children.
And it created what the defendant's expert called
a discrete population substructure.
-: Right.
I remember the same argument used to be raised
about Cape Verdean folks in the Y-STR.
-: Right, but the Cape Verdeans, you know,
are all over America.
-: Right. -: This is focused on him.
And also that was not Y-STR DNA, those cases.
Those were autosomal DNA cases.
-: I misspoke. They're regular STR.
-: Right. They're regular DNA.
So in this case, he had an expert which said,
well, you know, he didn't disagree with the numbers.
You could literally go on the internet and plug in numbers.
He disagreed. He said it's the wrong database.
He didn't know whether the number would be higher.
He didn't know whether the number would be lower,
in terms of expectant frequencies.
-: And Judge McGuire hears all this and says,
"We'll let the jury decide,"
and then they don't call the witness.
-: Well, and that's on the record why he didn't call.
That was a strategic decision on his part.
And quite frankly,
given that you can see the glazed over eyes on DNA,
I don't think that was off the wall.
But it certainly was fully developed in the hearing
about the population substrates and everything else.
And this issue has come up elsewhere.
This is not something that was unique
to Southeastern Massachusetts.
And I cite the cases,
what I thought were the two leading cases in my brief,
involving Indian tribes,
where they argued that it was a unique population substrate
of this particular tribe
as opposed to all the Indians in America,
all the Native Americans in America.
And then there's the other case,
probably the leading case
is the Commonwealth of Northern Mariana Islands,
where the argument was,
well, the government was using the mainland USA database
as opposed to anything, you know,
an island in the South Pacific.
And there are other cases too,
but those are the leading cases, and they were excluded.
It's an issue that's a known issue with Y-STR evidence,
and that's what the defendant's expert testified to.
And to try to answer your question,
yes, the jury heard all this.
The jury, you know, actually the jury did not hear this.
The judge heard this, okay?
And the judge instructed the jury,
and say, "Look, this is not the same as,
you know, 1 in 10 sextillion."
-: One in 13,000. -: Well, yes. That's fair.
And this is not in the record,
but you can take judicial notice
of the size of Gillette Stadium or Fenway Park.
And so if you run these numbers through there,
you're gonna get, you know...
-: Did Murphy argue that in the case?
-: No, he didn't. I thought of this.
-: No, no, no.
But as far as did he argue,
well, what does 1 in 13 really mean?
-: You know, I don't remember
whether they really focused on that part.
I just don't remember,
because there were other things that happened
with the DNA evidence that we haven't gotten to yet.
But, you know, you read the numbers.
He's got 47 of his closest relatives
in, you know, Gillette Stadium.
Now, admittedly it's not a perfect analogy,
but it makes a point, okay?
'Cause it's not a random distribution.
Pats fans are not all male,
and they're not a random distribution of America.
But that is the issue in this case.
This was Southeastern Massachusetts. This is not a...
And it's clear, his family was there, okay?
And they took all sorts of,
about his 18 relatives and everything, 18 male relatives.
And so, you know, it is an issue,
and the judge let it in with instructions.
But, you know, it took in terms of, you know,
you get into the issue,
should he have let it in the first place
because of the population substructure.
But as I'm sure all of you have heard on one time,
either as prosecutors or defense lawyers,
when the jury hears, "It's consistent,"
you know, the prejudice is done, okay?
It's consistent,
and hopefully they're not gonna say it's him.
-: Didn't we say in Lally
that so long as there is a disclosure of the limitations
of this particular type of Y-STR DNA analysis
that it's permissible?
-: Well, that's what the court said.
-: Okay. -: But I'm not sure-
-: And so I guess I'm wondering,
in light of that legal ruling,
why we would say that Judge McGuire committed an error
in allowing this in, that he abused his discretion?
-: I think the argument is
that the focus was on the population substructure.
-: Right.
Was there any information brought forward
as to the haplotype
for these Portuguese Southeastern Massachusetts?
-: I'm sorry. The what of the Portuguese?
-: The haplotype. That was sort of what-
-: No, they didn't go into.
-: In the Native American case that you referred to,
there was substantial evidence about the uniqueness of that,
and here I didn't see any.
-: I don't think they did.
And the Commonwealth's expert
who did testify at that hearing
got up and said, "Well, I didn't know he was Portuguese."
-: And actually in Lally,
I thought we had said that it would be better
to use the confidence interval, but the counting was okay.
And here they did use the confidence interval.
-: They used the confidence interval.
-: But they did more than what was required,
what we said was required in Lally.
-: Again, the issue was the population substructure.
-: That's a yes. That's a yes to my question, right?
-: I'm sorry. I didn't hear.
-: They did more than what we said in Lally.
-: Arguably. -: Okay. (chuckles)
-: Arguably.
But again, it boils down to should this,
did they use the right database?
That's what this case is all about,
that's what the cases are about nationally,
and that's certainly what the defendant relied upon it.
Let me turn to the next DNA issue,
and that involves the substitute DNA expert.
The judge saw this coming.
That's one thing that's clear from the transcript.
He saw this coming.
The substitute expert got up there, and she started,
actually, the first thing she did,
she used the original expert's chart.
And she goes, "Well, it was her chart,
but I would've written the same chart."
Words close, it was close to that.
And then she got up
and gave the expected frequency statistic,
which, by the way, was different than the other one.
It's slightly off.
-: She plugs in the numbers herself, the second expert?
-: Let me read you the four lines of the transcript.
-: Okay. -: Okay?
-: Because this is what set off the whole thing.
And just so you know,
it's on pages 153, 154 of Volume VII.
But it's four lines.
It goes, and this is on cross-examination.
I mean, she got up on direct exam and said,
she intoned the right words.
"I've reviewed, you know, the evidence,
and it's consistent with the defendant."
She didn't go into...
That's where she went.
But then she goes the statistic.
So on cross-examination, the defense lawyer goes,
"But as far as that 1 in 137,337, you didn't do the math."
She goes, "That's correct."
And the next, I think the defense,
one can infer from the record
that the defense counsel was rather stunned.
He goes, "So the information that you used
to give that number was not of your own making.
It was information that you obtained from Ms. Castor."
And she goes, "That's right."
And this is where this issue comes from.
-: And Ms. Castor obtained it
by entering information into a computer program?
-: Well, she must have at some point. Yes.
-: So the flaw here is that there was no witness
to testify as to what the computer program does
to calculate the statistics? -: No, no.
-: That's the Commonwealth's argument,
so can you address that?
-: And there's a case that says that merely, you know,
putting the stuff into the computer and generating it-
-: Okay, so what more did the original analyst do
that you were not able to cross-examine on,
beyond the entry of the computer program?
-: Let me back up since I'm not sure that's the right focus.
The cases, all the medical examiner cases,
and this is just based on Nardi.
There's a whole line of these cases.
And they say,
essentially they say you can give your independent opinion,
okay, but you can't read off the original report, okay?
You can't...
You just, you gotta...
You can say, "I reviewed everything,
and in my professional judgment,
the profile's consistent with the defendant," okay?
But she went beyond that.
That's as far as she could go under the case law,
as I understand it.
She go in and started giving the numbers.
And where'd she get the numbers?
She got 'em from the original analyst.
-: That's my question.
Did she get it from the original analyst,
or did the analyst get that from the computer program?
-: I think she got...
My reading of the case,
and certainly the defense counsel's reading of the case,
was she got 'em from the original analyst.
-: Not admissible without the numbers.
-: On direct or cross?
-: Either. On direct.
I mean, the DNA testimony is not admissible
without the numbers under Mattei, right?
-: Right, but she cannot give those numbers,
unless she personally ran the numbers,
and she said right here she didn't, okay?
She can't do that. -: That's my question.
Does she have to personally run the numbers
if it's somebody entering it into a computer program?
-: I would certainly think so. Those are the details of the-
-: No, what is the law beyond what you think?
That is, I mean, I think I wonder if...
What is your view of the, well, what is the law on that?
Maidman: My view of the law-
-: That somebody who uses a computer program
to get the statistical significance,
a second person can't rely on that same computer program
to generate the right statistical significance?
Is that the law?
-: My view of the law is that the substitute DNA analyst,
she cannot testify to the numbers
that the original one came up with.
-: Even if the original one came up with the numbers
using the program?
-: Sure. -: Okay.
And what's the best law for that?
-: Ma'am, unfortunately,
I can't cite you a case at the moment on that,
but that's certainly- -: Well, that seems important.
I'll look at your brief.
-: I thought we had the common law confrontation clause case.
Is it Williams? I forget the name of the case.
But we talked about
whether or not the second expert is cross-examinable,
basically is it a knowledgeable witness
who can be cross-examined.
That's where the defendant's rights come in, right?
-: Well, that's certainly the confrontation clause I ran.
-: Right. Another confrontation clause.
-: And that's the Supreme Court case.
-: Yes. Both come in in Williams in all these cases.
-: Right, but-
-: And it's our gloss on those cases.
-: Well, they certainly cross-examined.
-: So, I mean, she works at the lab.
She's capable of being cross-examined.
So, like to Justice Wendlandt's point,
if the first witness plugged something into a calculator,
right, and did simple arithmetic using a calculator,
your testimony is the second witness
has to put it into the same calculator?
-: If she's gonna...
Let me restate that.
She cannot reveal on direct.
That's for the defense counsel to bring up the details.
And say compare it with, you know, even all the medical-
-: But it wasn't revealed on...
Well, and I'm sorry. You're right.
The 1,300 was revealed on direct.
-: Yes. That's what triggered this whole thing.
And the record certainly suggested it.
-: So to put a fine point on it,
your issue is with the testimony
of the substitute DNA expert testifying
to the frequency numbers. -: On direct.
-: Right.
Justice Gaziano: Okay.
-: And that's what defense counsel objected to.
That's what this issue is all about.
And I would suggest under all the case law,
that was for defense counsel if he wanted to bring it out.
And that's certainly what's in the record.
Okay, in my last few minutes here,
let me address the chronological timeline of the evidence.
What the Commonwealth did is they got the lead trooper
to put on a PowerPoint presentation of 70 slides.
It's around 70 slides.
And that presentation was all of evidence
that had been previously admitted.
It was maps of cell phone towers,
it was still images from video.
It was from a variety of different sources.
And all that was previously admitted.
And so the Commonwealth
essentially gave a pre-closing, closing argument.
And it was good.
And with all due respect to my colleague,
it may have been better
than the closing argument given by the Commonwealth.
This was really good.
-: Would it be based on the facts.
-: Hmm. Oh, it was the facts. It was the admitted evidence.
But the worst part of it, the pernicious part of it,
the judge made it an exhibit,
and the jurors took it into the jury room.
So yeah, they had in the jury room the outline
of the Commonwealth's case,
and that shouldn't have happened.
I mean, and this is gonna happen again.
You're gonna see this repeatedly,
given all the video evidence that's available.
-: We had this issue in Bookman.
It might have been the same prosecutor.
But, so if someone's prosecuting a bank larceny
or some type of fraudulent scheme case, right,
and they put in all the records of bank records,
and then they have a chart that summarizes them all
and puts a nice bow on it chronologically,
your testimony is that can only be a chalk,
it can't be an exhibit?
Maidman: Well, it certainly should be.
-: Not your testimony, your position is-
Maidman: That's certainly my position.
-: Yep. -: Okay.
That's certainly the position, but it's more than that.
This is not a situation where they were summarizing,
you know, 10,000 pages of cell phone records.
This was a video presentation of the Commonwealth's case,
you know, from this cell phone tower
to this cell phone tower,
and now we have at the Walmart parking lot,
and now we have, you know, the car driving down the street.
I mean, this was pretty sophisticated.
-: Would you remind us. -: It was good.
I mean, it was a good presentation.
I give the Commonwealth credit
for putting something like this together, but-
-: Was this objected to? I'm sorry.
Oh, there's objections all over the place on this.
But nonetheless, lemme make one last point on this one.
The Commonwealth mentioned somewhere in their brief
that I didn't raise a due process argument.
This is Wardius versus Oregon,
which is a due process case, okay?
It talks about the delicate balance
between the defense and the prosecution, okay?
Here you have the Commonwealth
giving a pre-closing argument.
And this threw the balance off. It was unfair.
And the worst part obviously was,
from the defense point of view,
was it went into the jury room.
And unless you have any questions about that, let me-
-: Wait, I'm sorry.
So you're saying it was okay, or it was not okay as a chalk?
Was it okay as a chalk?
-: Was it okay as a chalk?
I would argue, chalk meaning going into exhibit?
-: Not going into the jury room,
meaning just a-
-: Just a presentation itself? -: Exactly.
-: No, no, no.
It wasn't okay as a chalk,
because what it was, it was completely cumulative,
completely cumulative.
This was put together.
-: Bank record thing is okay? -: Sure.
If you got 10,000 pages of bank records,
and you have one or two slides saying it, sure that's fine.
That's what this all about.
-: What's the rule that we make?
That you can do a summary as long
as it's not a good one?
What's the...?
-: Summary is, if you've got the voluminous records.
This was not large voluminous records.
-: Okay, but if the Commonwealth introduces five minutes
of a clip at the liquor store,
and a five-minute clip at the dentist office,
and a five-minute clip of the, you know, ATM video, right?
And they don't want the jury to have to toggle through.
-: No, they have 'em. They had 'em.
They had all this stuff.
-: Right. That's what I mean.
But they want one video that shows everything as a cutup,
as opposed to the five-minute, you know,
that it's gonna take a jury six hours to go through,
which they won't do.
-: They certainly wanted that in this case.
-: Of course they did. That's why they put it in.
-: That's why they put it together.
-: Right. -: Right.
But that's, they gave their closing arguments right there.
One or two minutes on one other thing, with your permission.
-: Well, it depends.
I mean, I don't know if you answered the question.
The question- -: Oh, I'm sorry.
I'll try again.
-: I'm all set. -: Oh, okay.
-: I'm all set.
-: Just very briefly on the sufficiency of the evidence.
-: Very, very briefly. -: Very briefly.
Pill bottles and telephones.
The pill bottles were found in the jacket, okay.
This guy was a frequent customer of the drug dealer,
of the victim, okay?
You know, we have no clue.
The jury had no clue
whether they were taken from the home,
not taken from the home.
They did have her name on it.
There were no fingerprints,
so they did essentially come from her somehow.
But she sold the guy drugs constantly,
meaning it was overwhelming into that.
Finally the cell phones.
And by the way, there's no evidence of what was in the...
Now this was portrayed as an armed robbery.
There was no evidence of what was supposedly in the cash box
before this incident.
Finally, the cell phones.
The evidence is that, or at least the testimony
was cell phones were bouncing off a cell tower
south of Taunton.
And yeah, the Commonwealth wants to (indistinct)
"Well, you know, how'd they get there?" That kind of thing.
No evidence he took 'em.
And with that, unless you have any questions.
-: Okay, thank you. -: Yep.
-: Attorney Stern.
-: Good morning, your honor.
Shoshana Stern for the Commonwealth.
I guess to start with the confrontation clause issue,
my understanding from the testimony,
I don't know exactly who said what about this
at which point,
but essentially with the frequency, you have this website
that at that point was the U.S. Y-STR website.
It's actually since migrated to another website
with even more profiles,
according to the SWGDAM facts on their website.
But it has essentially drop-downs for each of the locations
of the particular alleles,
and you fill in the numbers from the profile that you have,
and it will then spit out a number of 1 or 0 in whatever.
And the expert, the substitute in this case,
essentially said that, I guess this has generated a printout
that showed that what had been entered
and what had come out of this program.
And she looked at it and said, "The data went in correctly,
and here's the number that came out."
-: She didn't do it herself?
-: She didn't do it herself.
Defense counsel had actually elicited,
I think, multiple times from the other expert,
who was testifying on her own behalf about other DNA,
that this didn't, you know,
you plug numbers into the computer.
You didn't do anything experty on this information.
This is just what the computer gave you.
-: First expert gets the Y chromosome alleles.
Stern: She does the whole thing.
-: And she does, she plugs it,
and she looks at the website and she gets the 1,300.
-: Yes, essentially. And the defense-
-: And the second substitute expert looks at the paperwork.
Stern: Yeah.
-: And says, "Looks good to me"?
-: Well, actually, it's a little confusing.
So you have Elizabeth Duval, who tests the lockbox,
who does all of that.
Then you have Shaylyn Castor who does the jacket,
who does all of that.
And then you have the substitute analyst,
who looks at her printout,
and says, "I see that these numbers were entered correctly,
and this is what the computer gave."
And she did additional math on a calculator,
but she didn't actually enter the numbers
into the website again and click Enter to see what she got,
which might not have been identical,
because I think a number of people testified,
I don't know if this was the motion hearing or the jury,
as they add profiles, things change a little bit.
The defense expert said
at the pretrial motion in limine hearing,
he ran these two and got the same general numbers.
So he did it himself,
that essentially it's plugging the data into a website.
And so I think that-
-: How does that align
with our medical examiner Nardi type cases?
Because I know, you know,
we allow a substitute medical examiner
to look at the notes and the photographs,
and to get on the witness stand
and say, "Cause of death was blunt force trauma."
-: Yeah. -: Say no more.
And then the defense attorney says, "Well."
And then- -: Yeah.
-: Right? How does this align with the Nardi cases?
-: Well, I think that with this,
as I recall with the Nardi cases,
that the idea is there is judgment involved
even in the fact-looking things
that the original medical expert did.
The substitute can look at actual photographs
and go from that,
but, you know, even if somebody measures something,
you don't know what sort of-
-: So your position is this aligns with Nardi,
because in Nardi, we allowed the substitute
to say the cause of death was blunt force trauma
as the bottom line,
and here the substitute DNA expert said,
"The bottom line is there was a match,
and the statistical significance is 1 in the 1,300."
-: Well, I think that's one thing,
but I think also the fact
that the computer is essentially doing everything here
on this particular step, you know,
in terms of the sort of the lack of human involvement,
which again, defense counsel himself emphasized
at other points when he was making other points,
that this is just...
I mean, and so that's what I thought that Cole was relevant
to the fact that essentially this part of the process
is not really being done by the expert.
It's being used by the expert as a tool,
but the expert is not actually doing their expert thing,
except by knowing which computer program to go to,
which is their own information.
That essentially, I mean, if we didn't have the evidence
that the correct alleles were entered,
I suppose that would be different.
If she hadn't, I mean, if she looked at the result.
My understanding from her testimony
was that the computer printout generated
by the original tester was these were entered
and this came out.
If she didn't have that these were entered,
I think she would have to do it again.
You could even say in the future she should do it again.
I just don't think that there's much as a practical matter.
I mean, maybe she didn't do it
because it would be a slightly different number.
I don't know.
Certainly she was willing
to redo the calculator math on her own,
but that essentially, you know,
for the reasons that this court has said
that the stuff the computer does on this
is not testimonial and not hearsay,
that that would be true of a substitute expert
using that data as well
in this very particular circumstance.
Now, what Smith versus Arizona will say, I don't know,
but none of us do.
But, so I think
that that's essentially the very narrow thing
that was under discussion here on that issue.
And the judge was very, I mean, there was motions in limine
to bring in the substitute expert.
The judge was watching this issue very carefully.
He thought about it, he said, you know,
I mean, 'cause you have the confrontation clause issue
and you have the Markvard issue.
He said, you know, that the expert can't testify
to the underlying data on direct when they're a substitute.
The question is what is the data?
And I think it's the alleles.
I don't think it's what the computer did.
So he essentially, I think,
went through all of that analysis quite reasonably.
And again, you know, this is highly...
She was the testimony about this particular evidence,
but, you know, this profile was derived
from two different pieces of evidence.
The defense expert himself agreed,
it was the defendant or one of his male relatives.
The defense counsel knew
his expert had rerun these calculations himself
and agreed with them.
So in that sense, you know, he was entirely entitled
to stand on his rights,
but he didn't have any reason to think
that there was anything there he was going to find
on that particular issue.
-: What about the issue of the wrong database?
-: Yes. So I think that that's...
So very, very zealous defense counsel in this case.
And I think that, but objected early, objected often,
overarching a lot of his objections are,
"This is hard. It requires nuance.
There's context, so the jury shouldn't hear it at all.
There's no way to make this safe for the jury."
And the judge, I think, consistently was saying,
"We will give the jury all the context.
The jury will understand the context,
and we can trust the jury to use the context."
So the judge, you know, there was this motion in limine,
which the judge heard from both sides' experts.
I think, you know, the showing
on whether there even was a population substructure here,
I think was not as strong
as certainly in the cases the defendant cites, as in Donick,
about whether being Portuguese
in Southeastern Massachusetts really would raise this issue.
But regardless, I mean the defense's position was,
"You need a local database. There is no local database.
The jury can't hear about any of this Y-STR."
-: It was Dr. Lakin? -: Sorry? Yes.
-: Did did he investigate or say anything
other than the fact that Mr. Souza is Portuguese?
Did he say- -: I don't recall.
I mean, he said that has family.
-: This the the lack of interbreeding and et cetera?
-: No, your Honor. I mean, he has family in the area.
That was in evidence, though some of them were kids
and some of them were dead.
But, I mean, certainly
there is a large Portuguese population
in Southeastern Massachusetts,
but what that means for this...
-: Right, so it wasn't
like the discrete Native American tribe.
-: No, or even like the Ashkenazi Jewish population,
as far as we know from the evidence.
And Portuguese from Portugal,
essentially, just that you can trace it back
to the great-grandfather or whatever,
and they've been in this area since then,
though Fall River, not Taunton,
whatever that would mean in this case.
But, you know, as I cited to Lally and also to Donick,
that the issue is that the jury have the context
for both, for the DNA in general,
but also the DNA in the context of this case.
That, you know, the counting measure was good enough.
And in Lally things have gotten more and more precise
as we get more data,
the defense was able to ask, you know,
"If you applied higher confidence interval,
what would you get differently?"
He got various experts to agree, maybe it's 1 in 500,
maybe that's-
-: We didn't require a confidence interval in Lally?
-: No. -: And here we have-
-: Yeah, I mean, so the takeaway I think
from the totality of the case law
is that the jury needs to have some understanding
that, you know, this isn't definitive proof of guilt,
which it pretty much never will be for Y-STR.
You'd need a very unusual fact set.
I'm not saying it would never happen,
but, you know, they're always gonna be in the thousands
and not in the quintillions.
And the judge actually went out of his way here
to give a sua sponte jury instruction
that, you know, make sure not to confuse Y-STR with STR for-
-: Because there was STR in the case.
-: There was STR in the case,
and the STR was in those numbers.
Now, certainly we have admitted very marginal STR evidence,
entrusted the jury with that for a long time,
so, you know, much lower numbers than this.
So Y-STR has the fact
that it's specifically not just a, you know, 1 in 3
or 1 in 1,300,
but that, you know, it could be the defendant
or any of his paternal male relatives.
But as the prosecutor said in his closing,
you know, "And then look at the evidence.
Is there anybody else that this is likely to belong to
who was involved in this case?"
And this case was,
and I guess this arguably ties
into the compilation argument,
but it was made of lots and lots of small pieces
of independent data, which made it very robust
against issues with any particular one of those.
But it was, you know, of the ways that we know
that the defendant was in the area of the murder
at the time of the murder.
There's CSLI.
His cars on surveillance footage
at three different, at least, places.
He's on surveillance footage nearby at a gas station
going in with his hands covered right afterwards.
He's texting with the victim.
-: What about this timeline overkill?
-: Yeah. -: Can you address that issue?
-: Yes, so, I mean, as I said, the defendant,
because defense counsel buries else with his objections,
they weren't specifically focused on this.
They probably cover this.
I mean, he had some specifically about this.
It was not the lead detective,
but essentially the Commonwealth's forensic expert,
so he dealt with a lot
of the defendant's most vociferous objections were
to merging the phone records
so that you could see them in chronological order.
That was where he had the discussion
about Commonwealth versus Wood with the judge.
He really didn't...
He thought the jury should figure that out for themselves.
They shouldn't get to see that in a timeline
as Exhibit 150, which I think is not an issue on appeal.
So he was objecting to all of the phone records and all-
-: So let's just assume it was preserved.
-: Yes, I am.
-: How is this appropriate to be using with a witness,
as opposed to something that is a chalk
that doesn't go to the jury in closing argument?
-: So, I mean, so one thing I was heading towards there
is that this witness actually personally was the witness
through which a lot of this evidence came in,
because, you know, he corrected the timestamps
on all of the videos based on his personal having gone there
and his knowledge of DVR.
So that came, the surveillance video came in
ultimately as exhibits through him.
The phone records came in through him.
The CSLI came in through him.
So he is the person who essentially gives the context
for all of this evidence in his own testimony,
not everything, but most of it.
The presentation itself,
since this case we've brought these presentations in
by motion in limine
where it can be hashed out in a cleaner way,
so there will probably be better records
in other cases on that.
But it's a lot of it, and you know, the basic thing it does
is it puts the phone data in time
where you have cell towers.
I would argue it's actually pretty dry for that purpose.
Looking at it, it's hard to sort of...
It's not exciting, for the most part.
You know, there's differences, but, and he doesn't...
You know, it talks about, like it says up at the top,
you know, "BC did JS text message,"
but it doesn't say what.
It doesn't sort of get into any of the sort of critical
sort of what conversation they're having that morning.
You can see the defendant's phone moving up Route 24,
and then he does have some stills of the videos
that ultimately he was the one who gave the evidence
of when the time on the video was,
of, you know, "The defendant's phone is here,
the defendant's car is here."
-: Can you address what our case law is on this,
and whether or not this exceeds it
or is compliant with our case law on this type of evidence.
-: Our case law is probably still evolving on this.
You know, there's Wood, which is a very thoughtful decision,
but doesn't, you know, it's crossing the line
from presentation of evidence into argument,
and that is inherently a somewhat subjective thing
that was not squarely, I think, discussed in this.
I mean, in this case,
I mean, I think I would argue
the Commonwealth had a clear right to get in.
I mean, and the judge said, you know,
"The jury's gonna have trouble
interpreting the locations of the towers without a map,
the timing of the phone calls relative to each other."
Essentially how all of these different sort of tiles
in the mosaic do fit together into the picture,
I think the trooper, his testimony may have suggested
he initially did this so he could see it,
that where you have cases like this,
which I think are within permissible boundaries
to be encouraged having these mosaic of evidence cases
because they're much less like they,
they're squarely aimed ultimately
at our strongest objectives of identifying who did do it
and identifying who didn't do it.
You're much less likely, you know,
it doesn't pose the same risks
as a single eyewitness identification,
that, you know, in 40 years we're going to be,
that being able to bring all of these discrete pieces
of different types of evidence together
to all show one person
is something that we really want to be able to use.
For the sake of justice,
obviously you don't wanna have...
You know, and the judge actually said, you know,
"The defense can excerpt anything they want
from the evidence."
There's no inherent Commonwealth prerogative here.
But that certainly it should be,
and I don't think anything says it can't be possible
to just put together in order
what all of the different, the phone records,
and the keepers of the records
from all the different gas stations,
and all of the different...
Well, the DNA was not on the compilation at all.
The photo of the pill bottle,
I don't know what that adds in this case.
I don't think it caused any prejudice,
'cause the jury was not going to forget about that.
But just in terms of, you know,
you heard all of these different people
talking about all of these different things,
and again, many of them ultimately,
with crucial contributions by this witness
that the jury didn't have till he testified,
that here is how this evidence
in this most fundamental way fits together.
I mean, he didn't say, he was very careful,
and defense counsel was very on top of, you know,
"You can see a person here."
He doesn't say, "You can see the defendant."
It's, you know, "You see a person in the woods
in the corner of this photograph."
And it was very carefully kept
on what was actually in the information
that was actually the evidence.
I mean, so in some sense some of it said it twice,
but I think that the prosecutor's closing,
which frankly I thought was excellent,
included a lot more information
and a lot more discussion of other things
and discussions of other potential,
I think other potential third party culprits.
But again, you know, the DNA wasn't in this compilation.
So, you know, there there's a lot of...
I mean, it's easy to say
there's a lot of interesting things
that could have been in the compilation that weren't,
which is neither here nor there.
But I think that essentially a fairly dry organization
of the evidence to show the picture
that the individual pieces do in fact straightforwardly show
is a very valuable tool,
and obviously you don't want that to be abused.
But, yeah, I think that it's important to,
as the law evolves on a case-by-case basis here,
to maintain an appropriate version of that as an option
for all the reasons.
-: Looking back on it, would you, you know,
if you had it to do over again,
is that something that a prosecutor would ask
to have sent into the jury room?
-: I don't know.
I mean, certainly in this case
we actually discovered the jury couldn't play it,
'cause it required internet.
They did ultimately get the information.
That issue was not discussed.
I don't know that they couldn't send it into the jury room,
but I think that you could certainly,
you could set that boundary.
It's, you know, yeah, I don't have a...
Certainly you could say
it would have to be a chalk in the future.
I think there's some basis in the rules of evidence
for making it an exhibit
when it's actually appropriately just a synthesis
of the dry facts, but putting them all together.
But yeah, if there are no further questions.
-: [Justice Wendlandt] Okay.
-: Commonwealth rests on it brief. Thank you.