-: SJC- 13254
Commonwealth vs Hubert L. Smith,
and SJC- 13253
Commonwealth v Frank DiBenedetto.
Judge: A Attorney Campbell.
-: Good morning and may it please the court,
Caitlin Campbell on behalf of the Commonwealth.
I am in the unusual position today
to be both the appellant in one case,
and the appellee in the other combined case.
So I'm asking you to do two different things.
The first is
as to Mr. Smith to reverse the allowance
of his post-conviction motion.
And the second is as to Mr. DiBenedetto,
I'm asking to affirm,
the denial of his post-conviction motion.
Both present the same legal question,
which is whether locked pleas or constitutional.
-: Well, do they really?
I mean, isn't the first one
that this is a done thing,
and now we're into a different situation.
We're not in that,
we're not in the plea package actually,
isn't that true?
-: Correct. I think.- -: For both of them,
they're not in the plea package because
the condition didn't happen.
-: Correct, and I, I believe that they show sort of..
You're right.
I think at the, at the most basic level,
they present a question,
which is whether locked pleas are constitutional.
How that question applies to different factual scenarios,
I think both are in different places.
I would agree with you there.
With the court's permission though, briefly,
before I get to that issue,
I would like to address the issues
raised in Mr. Smith's appeal, which confer,
which concern the timeframe and the deadline
for filing gatekeeper petitions.
I disagree with my sister that a rigid application
of 30 days should apply.
I don't believe it finds support
in any of the appellate rules,
any of the rules of criminal procedure,
or any case law that it says.
-: Well, if 30 days is good enough
for the defendant under remains,
why isn't it good enough for the Commonwealth?
-: I'm not saying that
the 30 day deadline in and of itself is,
is problematic.
I mean, I do argue that it should be extended because
for everybody, not just a defendant,
-: (Judge) Why ? - -: I think why all parties,
because their 30 day deadline, if you look at mains,
it references Rule 4
which is just referencing filing a notice of appeal,
which is a single piece of paper.
A gatekeeper petition is a substantive pleading
that could have a devastating impact
on the further litigation of the case.
-: So, what should be the deadline?
-: I think a 30 day deadline
with recognition that if there is an extension for time,
that extension for time can be granted.
I think it's just the rigid application of that 30 days.
And if you don't do it within 30 days,
then you're.
-: But it's a note. It's, it's,
it's the
So you filed a notice of appeal?
-: (Attorney) Correct.
-: And a defendant arguably can file a notice of appeal
right away.
-: (Attorney) Correct.
-: And then have the 30 days to say,
I need another, you know,
I need more time to file my petition.
-: (Attorney) Correct.
And I think that
that
could be what this court says.
I think the confusion, at least on, on my part,
came from the practice that I believed that
the Single Justice preferred,
which was not to file
a motion for an extension of time,
or a place keep petition,
but to file a petition
within motion to accept it as timely filed.
And if you look in the past 11 and a half years, I,
I've done that, how.
-: They come.
-: Almost 20 times. And, and this case, I,
I didn't expect that it would be a problem given
the notices of appeal that were filed,
and the express communications I had with
the defense counsel as to the reasons why
I, I needed the additional time,
which was to obtain the transcripts
because I was not the original prosecutor handling
the motion.
But I think this is a good opportunity as it relates to
generally the good cause standard
because when you look at both the rules themselves,
the report's, notes to the rules,
and the case law,
there isn't really a good articulation as to
what the good cause standard is.
There is.
-: Oh, sort of garden variety miscommunication
is not usually good cause
I think that that's clear.
-: I don't be
under the case law.
I don't believe that that's clear.
-: What case stands for the proposition that Garden Variety
miscommunication is good cause.
-: I don't think there's any case that states
that it isn't.
I think if you look at the cases that do exist,
it largely is
if the Commonwealth offers no explanation as the.
-: The problem,
I understand the Covid problem,
and I understand one of the other ones,
but the problem in which the assistant DA says use
and
I did, and you check a couple times,
you're still in the same office.
So you have to own that mistake.
-: And, and I do.
I do. I think if you're looking, you know,
the good cost standard,
even the silver standard that's employed
talks about unusual circumstances.
I believe that that falls into
the category of an unusual circumstance.
-: So what does the miscommunication between you and your?
-: I believe so, yes.
-: But you're still the DA.
-: I understand that. I understand that.
And I think, you know,
other than it happened,
I own that it happened.
I don't think it should preclude the commonwealth where
there is a substantial issue such as this one from,
from going forward.
And to support that,
I would rely on the cases in my brief,
which talk about this even
in cases where the Commonwealth
has offered no justification at all.
-: So let's talk about the substantial issue in Smith.
-: (Attorney) Certainly.
-: How does, how,
how would this not violate double jeopardy at this point?
-: I don't believe it would.
If you look at the cases that discuss double jeopardy,
specifically,
if you look at a case like Lie or Slifka,
there is a much longer period of inaction.
Also if you look at Commonwealth v Sanchez.
-: But he's been, he was resentenced and paroled.
-: (Attorney) Absolutely. But if so.
-: He can't be sentenced again.
-: He absolutely can be sentenced again,
if you look at yes,
at Commonwealth v Sanchez and Commonwealth v Sanchez,
there was a similar
reduction under the verdict under Rule 25 v2,
the Commonwealth filed a notice of appeal.
There was a resentencing.
-: I guess the issue is whether or not the, the,
the sentence is so,
so to be crystallized,
because in Sanchez
there's a notice of appeal.
So in that case
there's no,
there's less of an expectation of finality here.
There's a notice of appeal,
but a missed deadline on the gatekeeper.
I think that's the distinction
at which it's argued in this case
versus Sanchez, correct?
-: Correct. But I think if you look at Sanchez, it,
it talks about the defendant being on notice.
-: (Justice Gaziano) Right.- -: That this.
-: Isn't a, So the defendant's on notice.
-: (Attorney) Correct.
-: After he wins
the motion for new trial,
he waits
his 30 days.
You don't file.
He says, great.
-: I don't believe so, because he,
I think it's more complicated on that, given the facts,
right? So there's a June order, Judge Sanders'.
-: Go in the defendant's position.
It's the whole issue of whether or not the sentence there,
the expectation of finality
based upon a miss deadline essentially.
-: Absolutely.
And I think if you look at the case law specifically,
if you look at the lie case,
this, in that case,
the Commonwealth didn't take action for 16 years,
and it was an unexplained 16 year period of inaction.
-: And,
I get the disparity
that we're talking about in mains in 30 days,
because defendants can just file another petition.
-: (Attorney) Correct.
-: But.
-: Correct.
-: That may you don't have double jeopardy rights.
The defendant does.
-: We don't.
But I don't believe if you're looking at double jeopardy,
and specifically
fundamental unfairness.
I think if you have two notices of appeal,
if you have specific articulation that
we are pursuing a gatekeeper petition,
we're just waiting on a transcript.
I don't believe that crystallization has occurred
where there are these express communications.
-: But doesn't the crystallization,
even though there's communication between
the DA and the defense,
at some point something has to happen on the record
in both courts
so that the courts know or,
or there the courts wouldn't know
that this was in this state.
-: That's where I,
I think that there's confusion in the case law
because it's unclear.
I think typically a notice of appeal
would serve that purpose
like it as it did in Sanchez,
as it does in countless other cases.
-: We get a ton of notices of appeal that don't go anywhere.
-: I understand that.
I understand that.
I think there's a difference here
where there's a notice of appeal,
and express communication as to
I need the transcript, I'm waiting for the transcript.
Now will I own that it would've been more
proper for me to have filed a motion to,
to stay or a placeholder motion?
Absolutely. But again,
I'm relying upon
my 11 years of practice with the single justice
in which they stated that the
preference was to file it with a motion for timely files.
And that has been held to excuse
missed deadlines in the past as it relates to
I believe the Commonwealth and the defendant.
So, so I would rely upon that as to why
it doesn't violate double jeopardy.
I think it's certainly different than
lie in which there's a 16 year unexplained absence.
I think it's even different from Slifka
in which it's a year after the sentence is imposed,
and the Commonwealth with no explanation then goes to
try to change the sentence
after the defendant had already
served the committed portion of his sentence.
And I would point to Sanchez in which it says the
defendant's custodial status,
because in Sanchez too he had been resentenced and released.
There's no,
in terms of the double jeopardy analysis,
No bearing on the double jeopardy analysis.
So I would point to those three cases in combination.
Pointing to though
the constitutional issue,
cuz I see I have five minutes and 40 seconds left.
You know,
there's really a difference in framing what the issue is
between myself and both of my sisters.
And they point to
Lafler and Frye and say,
Lafler and Frye
stand for the proposition that a trial doesn't cure any
defect in the plea bargaining process.
I don't believe that that's
precisely the holding of Lafler and Fry,
Lafler and Frye stand for the fact that a
defendant is entitled to effective representation,
which he and arguably has a constitutional right to.
And if he gets that
during a plea bargaining process,
then the remedy is
for the plea offer to be offered again.
Here, there is no right to the plea offer itself.
And what the defendants are challenging is the
constitutionality of the plea offer itself
that changes the analysis,
and really makes Lafler and Fry itself.
-: (Judge) Well.
-: (Judge) Go ahead.- -: (Judge) Sorry, go ahead.
-: (Judge) No, please go ahead.
-: I mean aren't they, I,
as I understand defendants arguments is that
once the prosecutor decides
to engage in the plea bargain process,
that that process needs to be fundamentally fair.
-: Yes. And I would,
-: What they're saying is that when you
make it impossible for me to accept the plea,
unless I coerce or convince my co-defendant
to also accept it,
that that's fundamentally unfair.
-: Correct.
And I don't believe if you look at it under a traditional
due process type of analysis,
that it is fundamentally unfair.
Because typically under a due process analysis,
you just ask whether there is a rational basis for the
action that is occurring.
And here there is a rational basis,
plea bargaining is recognized at as a,
there's a mutuality between the parties.
A defendant is giving up rights,
and the commonwealth is making a charge concession.
The Commonwealth is typically making a charge concession
in order to gain a conviction or avoid trial.
But if you have two co-defendants avoiding trial,
that doesn't exist unless they both plead guilty.
I'd say that in itself is a rational basis that
supports that it's not fundamentally unfair.
Also, there's nothing in the record,
and I think this is where
Mr. Smith and me, Mr. DiBenedetto are different.
There's nothing in the record
that they were precluded from pleaing, generally.
They could have plea, plea to the indictment.
Mr. DiBenedetto could have offered
a plead to second degree murder.
There's nothing to say that they couldn't have engaged in a
different type of plea negotiation.
And there's also nothing to say
that a conditional offer generally is something
that isn't permissible under the law.
I think fundamental fairness contemplates
as it generally does in a constitutional analysis,
that it's not based on some impermissible classification.
That it's not based on a defendant
choosing to exercise his rights.
And certainly here where there's a rational basis
that I've just articulated it,
it would pass constitutional muster.
I think it,
it's also interesting to say
if you're thinking of fundamental fairness,
that a defendant could come to a prosecutor,
and a prosecutor could just say no,
and there's no problem with that.
But if a prosecutor does say,
sure, but it has to have this condition
that wouldn't pass constitutional muster.
-: And I suppose one of my questions about this is that
as I understood that original package
approach in this case
in Smith's case,
it was a good offer up until the close of evidence. Correct?
-: Correct. That's what this court has found.
-: But that point, that offer
wasn't there anymore.
-: Correct. And this court has held,
by the time that he attempted to accept the offer,
-: Offer didn't make sense.- -: That's,
and the co-defendant got to plead,
but because of the question from the jury,
But that was a different situ
that was not under this package deal, right?
-: No, it was not under the package deal.
-: So, so there was no package deal
in place at the moment that
the defendant tried
to take it. Is that true? - -: Correct.
Correct.
And, and I will say Smith is unusual given the age,
given the amount that we know about
the plea bargaining process,
both because of what happened
in the trial transcript itself,
but also immediately there was a motion for new trial
where testimony was taken,
where both the trial prosecutor, and the
defense counsel testified
as to what had happened.
And I think it,
when you look at that testimony,
it really bears the,
the danger in,
in a loose articulation as to what an offer is
because,
you know,
this court is already held that there was an offer.
But if you look at what the testimony actually is from
ADA mandate it's,
he's approached and he says,
I won't even consider an offer unless it's both of you.
I don't know how that transforms into an offer
for purposes of specific performance,
because there really aren't any terms,
right?
There's a lobby conference in which the judge says,
what's it gonna take to plea? And
Monday,
ADA mandate again says something akin to
it needs to be both of them,
and it would have to be something like second degree murder.
So I,
I think that shows sort of the
looseness with which these plea bargaining
could happen.
Mr. DiBenedetto was in a
different posture than Mr. Smith.
But again,
I don't think there's any showing of acceptance,
or trying to accept,
which is problematic.
I also think that
if you're looking at
specific performance for both defendants,
there's a problem
because neither were ever offered a standalone plea.
And that's where it gets to, again,
to bring it back to the fundamental fairness,
where you have two defendants
who are the more culpable of the pair.
A package plea offer is giving them maybe more of a charge
concession than they would've otherwise got,
maybe more of a charge concession than they would've got
if they were a standalone defendant,
which in both of these cases
are horrible on their facts
and, straight first degree murder.
So, the incentive for the commonwealth to plea it,
there would have to be a concession from a defendant.
I have five seconds left.
I'm happy to answer any questions
that the panel may have.
Otherwise, I will rest on my brief.
-: (Judge) Thanks.
-: (Attorney) Thank you.
-: Nicely done.
Okay, Attorney Mankin.
-: Good morning. May I please the court
Attorney Michelle Mankin,
and on behalf of Hubert Smith,
who is present in the courtroom,
having received a reduced sentence,
and gone before the parole board
obtained a positive vote and achieved release.
With the court's permission, since
counsel for DiBenedetto,
and I are splitting our argument time,
I intend to focus my argument on the timing in question,
and Attorney Greenberg will.
-: I'm sorry I couldn't hear that.
Which question?
-: Of the timing question.
-: Okay, thank you.
-: The threshold determination of whether the Commonwealths
appeal should be dismissed,
and Attorney Greenberg will focus on
the merits issue that's comment to both appeals.
But I will take
just a moment since the facts of Hubert Smith's locked
plea were just discussed to clarify a few things.
One, it's absolutely clear on the record that
Mr. Smith tried to accept
the plea offer most of the time.
-: (Judge) Was that after the evidence closed?
-: No, it was not.
-: When was it?
-: So he, he approached the plea discussions.
-: I see, I see.
So you mean when the,
when the co-defendant wouldn't agree to it.
-: That's part of it.- -: That's right.
-: (Judge) I got it.
-: And he did make motions,
I believe, twice
to the trial judge to allow him to plead guilty
to second degree murder.
And he was forced to stand trial
the plea that occurred
happened after the conclusion of the evidence. So
I think that's clear.
So with regard to the timing issue,
my sister started her argument by suggesting that
there shouldn't be a rigid application of the main's rule.
And by that I understood her to mean that there,
that this court should have discretion to allow
enlargements in the interest of justice.
So
what I think is really important to recognize is that
if there has been a reduction in sentence,
or reduction in verdict,
if the time is going to be enlarged,
there is a potential due process problem
bubbling
because the longer
the defendant is serving his new sentence,
the more his interest
in that sentence
crystallizes.
Now this is different from the double jeopardy issue,
and it's important to clarify
under the law,
and under the rules,
when the time to appeal has passed,
the conviction is final,
then the double jeopardy issue arises.
You cannot impose a new sentence
after the expiration of that period.
So that's an issue in this case
because nothing that the Commonwealth did
halted the finalization of the judgment.
And I will point out that to this day,
the Commonwealth never sought a stay,
never sought,
sought to stop the prejudice from accruing
to Mr. Smith even after
it was clearly on notice of what was happening.
So if there is going to be an enlargement of time,
that may avoid the double jeopardy problem,
but it won't avoid the due process problem.
And it is.
-: Well, even if we said,
you know,
this is a tight timely
timeframe and we need something new,
it still would be something for future cases,
not past cases.
-: Absolutely. That's true.
That's true. So I'm just sort of speaking prospectively,
it's clear that in this case,
Mr. Smith's interest in reposed
crystallized at the expiration of the 30 days.
And what's interesting about the Commonwealths.
-: Well, can I just push back on that?
I mean,
so the Commonwealth filed a notice of appeal
after the post-conviction
motion
was allowed in June, 2021.
Then there was the reduction to the
murder two.
And again,
the Commonwealth files a notice of appeal.
Then there was the resentencing that happened in September.
And again,
the Commonwealth provides notice through an email saying,
Hey, I'm just waiting for the transcript.
Why given two notices of appeal,
and an email saying, we intend
to appeal this
whole post-conviction thing
that happens after your 1994 conviction,
why isn't that enough to put the defendant on notice
that to the extent
he's intending to crystallize anything in his mind,
it's subject to
the clear intent of the Commonwealth
to appeal this whole thing.
-: So I have a couple responses and,
and one was what I was about to get to,
but one I'll point the court
to Commonwealth versus Bauer,
which embodies a pretty intuitive principle that
it doesn't matter what the Commonwealth intends to do,
they have to actually take action to make it happen. And.
-: Well,
is it that they have to take action,
or that the defendant has to be put on notice?
-: They have to take action.
-: Because that would notify the defendant. Or what,
why is the act, what,
what action does the Commonwealth have to take?
I am not suggesting that
the Commonwealth took the actions that were appropriate,
but what in your mind would be enough.
-: A,motion to enlarge,
a motion to stay, anything.
-: And what would that accomplish for the defendant?
That wasn't accomplished by the way
the Commonwealth did it here.
-: It has the actual effect of halting the proceedings.
-: And you would've been able to file a motion to
an opposition.
-: I could have filed, he could.
-: If that were filed,
you could have
the defense would've a chance to fall in opposition.
Is that right?
-: That is part of, that is part of the equation.
But the other is that,
that
if
the Commonwealth changes its mind,
I mean,
bear in mind that
there was a change of leadership
in the district attorney's office in this time period.
And months and months went by with no communication
between
September and January
when the parole hearing took place.
And Mr. Smith, who is facing the decision of
whether to see the parole board,
which was a very taxing process for him,
needs to know.
He needs to know officially and,
and what I was gonna say,
-: The state would've
put the parole board on notice as well.
-: Absolutely.
And all of the.
-: But we wouldn't have gone through,
this could have been an empty process without.
-: Absolutely for everybody.
It's a tremendous
expenditure of resources on
everybody's part.
-: And I don't want to.
Have you answering Justice Wendlandt's question?
-: So the, the commonwealth,
what the Commonwealth's position and
what you're suggesting that they have this idea.
-: I'm just asking questions.
I'm not suggesting anything.
-: They have this idea
that they're gonna go forward.
What it ignores is that those rules are,
that allow for that avenue are completely discretionary.
So their argument takes shelter
in the presumption
that they're going to be allowed in enlargement,
and they're going to be allowed permission to appeal.
And at the same time,
simultaneously suggesting that Mr. Smith
should not take solace,
should not take shelter,
or rely upon the rules that speak with definiteness.
And, you know,
the US Supreme Court has emphasized,
and it should go without saying that the,
one of the primary purposes
of these rules that set these deadlines
is to put the defendant on notice.
-: I thought - -: That's over.
-: I thought you agreed that
the good cause standard is applicable.
-: I do think that the good cause standard is probably
as opposed to the,
as opposed to the lesser standard.
I think they have to,
but but no,
all of the commonwealth's excuses,
even the good ones.
-: Yeah, yeah, answer my question.
It's applicable, correct?
-: It's applicable.
-: All right. Let me ask you a different question.
Due process, double jeopardy.
Obviously the Commonwealth doesn't have those rights,
the defendant does.
But is there,
in your mind,
is there a way a defendant can forfeit the right
by an untimely filing
of a gatekeeper petition?
-: Or fit the right to a gatekeeper petition
by not timely filing?
-: Right.
-: Yes. And I think that that happens all the time.
I think that gatekeeper file.
-: This file, don't you just file another one?
-: I'm sorry,
file another gatekeeper petition?
-: Right?
-: After the expiration of the time.
I mean, it'll be denied on the grounds that.
-: And we, we had this,
we had this below,
and I had asked for examples.
-: Yes. And I, and I provided I believe five examples.
And there's also the consequence to the defendant of
what happens in, and.
-: I think in, in all those cases,
the court has said
it wasn't time we filed on the mains,
but anyway, and we,
-: And also in the last.
-: Enriches, the merits - -: (Attorney) Merit.
-: (Judge) Correct. -: (Attorney) So I I.
-: I, and I think
this is more of a concern the main's rule,
frankly, for the federal court than it is for us.
-: Well, for the defendant.
-: (Attorney) Who has- -: (Judge) no,
for the federal court when they look at it.
-: In the federal court context. That's right.
I mean, the main's rule has real palpable context.
-: (Judge) That's what I mean, it's
-: The federal court.
-: (Judge) Right.
-: It's a bonafide deadline as,
as far as defendants are concerned.
-: And, and I think the,
obviously the reason it was reported
was to get some clarity
on what past practices are,
and what means really means or,
or whether it should continue.
-: And I think that
one thing we've emphasized in the brief is
how difficult it is to,
to collect and analyze those cases
because they're not reported or cataloged.
And so we did our best anecdotally
to pull together the cases,
but it's pretty clear
that this is being applied to the,
to the defendant's death.
-: If we were to change the main time limit,
what do you think would be reasonable?
-: Well, I,
I agree with what was suggested earlier that
a 30 day deadline is fine
to file something.
And what I'm emphasizing is that
in a case where a defendant is now serving a new sentence,
one of the things that needs to be filed
is a motion for a stay.
-: What's your position on
the Commonwealth view that
as it relates to timing and what's filed,
that they were
falling past practice with the single justice?
-: Well, I think there's a criti,
those practices relate to Rule 15 motions,
which do have a set of rules around them,
and also they concern interlocutory appeals.
So this is what I'm emphasizing.
It's really different when all of a sudden
there's a new sentence that's in effect because
that gives rise to these constitutional concerns.
And in interlocutory appeal,
those concerns are not present.
But I also, again,
think that that argument reflects the position of privilege
from which the commonwealth is coming
because it's talking about
this insider knowledge of Clerk's office practices.
-: We're pretty generous.
we're pretty generous to everybody, aren't we?
-: Absolutely.
-: I mean, have you ever.- -: Myself included.
-: You don't get,
you don't get the privileges from the Clerk's offices,
is that what you're saying?
-: Well, it's not, it's not.
Listen, I'm an attorney.
-: Right.
-: But there are pro se litigants.
How are they supposed to know?
I mean, that,
that's the point of the rules.
-: We don't really deny these,
I mean,
you've raised a much more complicated problem,
which is when the sentence has changed,
but we've been
unbelievably generous to both sides
in keeping these things
focused on substance. We,
we've not been policing timing too much, have we?
I mean, I've been a single justice a lot of times.
I can't remember ever denying a late one.
-: A late gatekeeper petition.
-: Yeah.
-: Well, I think that there are several,
It's very, very common for a single justice.
-: I suspect that not alone.
-: Are there are many,
there are many
single justice decisions
where the decision is it's untimely,
and has no merit.
-: Right, but that's, that's how we do it, right?
-: Right. So, but the thing is that,
that statement
that it's untimely
has consequences
when the defendant proceeds to habeas.
-: Yeah, for the Feds. It's not for us.
-: That's right.
For the defense, not for you.
And if there are any more questions.
-: Can you just take two seconds to spell out
for all of us
what that consequence means on the federal system?
-: Sure.
It's a procedural default
that LeBar's habeas review.
And in fact, if
even if
-: No, isn't it really that Ed Putz says
one year after the 30 day deadline elapses,
That's it for the Federal habeas.
-: That's right.
-: (Judge) Right.
-: And so any, if, if,
let's say an untimely gatekeeper were allowed to proceed,
and then
the defendant lost on appeal and then went,
and this happens,
there's a case cited in the briefs,
and then went for habeas review.
All of the time
between when the, the,
the 30 day mains deadline,
and the date that the petition was
allowed to proceed untimely,
that still counts against that Ed put one year.
I see that my time is well over. Thank you.
-: Thank you.
-: Okay, Attorney Greenberg.
-: Thank you Ruth Greenberg for Mr. DiBenedetto,
whose family is here today.
I'd like to start with.
-: Can I ask you to speak louder?
-: I'm sorry.
-: (Attorney) Better?- -: (Judge) Thank you.
I'd like to start, you know, with,
with our points of my points of agreement with my sister.
Well.
-: Can I ask you?
-: Yes. To start with the,
the correct constitutional test,
which you're
with Commonwealth articulates as a rational basis test.
Do you agree with that?
-: Well, I, the test here is whether
the government's action offends
it is offensive to implicit,
you know, concept of ordered liberty.
-: Well, you have no right.
The defendant has no right to a plea period,
and the defendant has no right to have a guilty plea,
or I'm sorry,
the defendant has no right to a plea deal period.
The defendant has no right to have a guilty plea accepted.
Are you suggesting that there's somehow a fundamental right
not to have a package deal?
-: That's exactly what I'm saying.
And that's just where I was gonna start.
-: So you're saying, and where,
where would I find legal authority for that, given
what I just said about the first two
no plea deal at all,
and then no right to have the plea deal accepted.
-: Those are two separate questions, the first.
-: (Judge) But they're related.
-: So I agree with you.
-: Explain how given those two things,
you're nonetheless finding a fundamental right
to a non package deal.
-: Yes.
Yes, I can.
I agree with you.
I agree with the court and the precedent.
There is no right to a plea offer.
If the Commonwealth had made no plea offer in this case,
I would not be here.
But the Commonwealth did make a plea offer
when the Commonwealth makes a plea offer
that plea offer
the process of that plea offer
since Lafler and Fry
is constitutionalized,
and it's entitled to constitutional protections.
It's not, as my sister says.
-: Well, yeah, I mean,
it would be
entitled to constitutional protections.
The question is, is it strict scrutiny or rational basis?
It's strict scrutiny, if you're right,
that there's a fundamental right
to
a non package plea deal.
But if it's not a fundamental right,
implicit and ordered liberty,
then we default to rational basis review.
-: Why is it not a fundamental right
implicit and ordered liberty?
-: Well, yeah, that was my question to you.
-: That's my question to, and
-: It turns out I wear the robe. I get to ask the questions.
-: No,
we're good.
-: We're asking the same question and the answer to that.
-: Sure?
-: You know? Yeah, we're good.
What's the,
I used to teach first Stanley Kaplan,
what's the opposite of the word order?
The opposite of the word order is random.
And what the,
what the Commonwealth is saying is these are
ran at best.
-: All right.
-: Package plea is random.
-: I disagree with you that
there is actually a fundamental right,
and that there is
a right to a fairness
in the plea deal process.
So for example,
the prosecutor couldn't say,
I offer this deal to you because you're white,
and,
and that that would be a problem
if there were some sort of irrational,
unconstitutional
classifications going on.
But here the Commonwealth saying,
I want it all or nothing,
I want either
I go to trial or I don't go to trial.
And so you committed this crime allegedly with two,
with two other people.
You get everybody on board.
And that way I don't have to go to trial.
Why isn't that
a rational way of pursuing that
legitimate state interest in preserving resources,
and not having the victims have to testify?
-: Because it's not static.
The Commonwealth could say that.
Let's assume the Commonwealth said that.
Let's assume then
defendants A and B say
we choose a trial.
In that case,
the Commonwealth is going to trial,
The Commonwealth is now going,
Costa wants a trial.
The Commonwealth is trying the case.
At that point,
what does the Commonwealth owe to DiBenedetto?
Why are the action,
since the Commonwealth is now trying the case anyway,
time is moving,
things are changing.
The commonwealth is trying the case.
-: Well.
-: Why is it not vindictive to punish?
-: We have to figure out what rational basis is for that.
There's a lot of things going on when
there's co-defendants,
not just that it's more arduous,
and difficult to try
right from the impalement on.
And a lot of times if you are going,
if you have co-defendants,
you're gonna offer a deal
well lower than you would
with a standalone plea
for a multiplicity of reasons.
You've got,
sometimes you've got,
as we've alluded to witnesses, who
it's going to be really difficult for them
to testify,
and the DA makes a
judgment call to offer a package deal.
So it's not whether that,
the question now is not,
whether that puts the defendants in a difficult position,
puts them in a very difficult position,
even if there is no right to a plea.
The question is whether or not
those reasons have a rational basis.
-: But the question is those reasons,
reasons have a rational basis when?
They might have a rational basis
before the defendants plead.
But after the trial is set,
that rational basis vanishes.
It wasn't a rational,
there was no rational basis to try to DiBenedetto
just because
Costa is being tried,
if anything, the Commonwealth.
-: But y'all making a judgment about
the Commonwealth's use of its resources.
-: Yeah, it's gone.
-: Okay.
-: It's gone. There is no.
-: So we should ask the defense attorneys
what the prosecution should do,
how they use their resources,
who they should give a deal to,
who they shouldn't give a deal to,
who they're worried about coming in,
and testifying
for the defense.
-: You're not looking at the movie
when you look at the,
That might be true at the beginning,
but it's not true
after Costa decides to go to trial.
Once Costa decides to go to trial.
-: Who's in a good position to assess
the use of the Commonwealth resources?
-: At that point?
It can't be easier to try two than one.
-: Okay.
In your opinion,
as a prosecutor, right?
-: In there's no rational basis to believe it's easier.
No legitimate basis to believe
it's easier to try two than one.
-: So your experience as a prosecutor, right?
-: I don't want quarrel with you, Judge,
What reason could there be
that makes it easier to try two than one?
If they're being, what makes it easier?
-: Well.
-: How could it be?
-: (Judge) Well.
-: I wanna debate you about 30 years of experience,
but whatever.
-: I'm that,
that if this court,
let's talk about how we decide
what shocks the conscience.
Is this a practice that
if there's a member of the court
that's engaged in this practice,
and looks at his own experience and says,
I did it, it must be right.
-: I don't think
that's what anybody's saying or suggesting,
I don't think that's a good,
good avenue to pursue.
What I might pursue is
why in this instance,
should your client
not have the,
why should we not affirm this?
Since everything seems to be procedurally intact here,
except for
your constitutional plea question,
which we may or may not agree with.
-: This is the question that's before the court.
May the government
looking at the trial of two people where
the government is now compelled
to proceed to trial in any case,
compel the second defendant to proceed to trial
only because the first defendant chose to go to trial.
It appears on those facts
that the set, that the defendant
who wanted to plead is being punished
because the first defendant refused.
-: What are the terms that plea?
-: The terms of the plea here were
the offer was,
you can plead
if Costa does.
Costa refu.
-: Okay. And there wasn't
so that the,
the condition precedent didn't happen.
-: So,
-: So there is no deal on the table.
-: But it's not,
it's not governed as the,
my sister argues by strict principles of contract law.
Because the position of the government in such a contract
is so far superior.
It's not a contract question,
it is a fundamental fairness.
-: Going all the way back to DiBenedetto.
The issue is,
is there a right to specific performance,
and the question becomes specific
performance to what?
-: So in this case, the plea offer was clear,
two manslaughter sentences.
If DiBenedetto could somehow force
force Costa to plead,
which DiBenedetto declined to do.
You know,
I wanna take just one moment to talk about the,
the Hamden County amicus in this case.
-: Before you switch to that.
So they can't switch the,
I mean they can't change their mind. Okay,
if we're gonna try two,
the manslaughter was okay,
but you know,
that deal was off.
I mean they could,
you know, you could propose another,
as your sister argues,
you could propose second degree or whatever.
You're,
are you bound to the original?
Is that what you're saying?
That's a violation of substantive due process.
If you change from the manslaughter to something else.
-: It's a violation of due process
with regard to Mr. DiBenedetto.
-: Well, my question,
we're not just deciding Mr. DiBenedetto.
-: Yes.
-: Okay. We're creating a precedent.
I'm just trying to understand,
are you saying you can't change that at all?
-: It's fundamentally unfair
to not let Mr. DiBenedetto take,
get the benefit
of the, that we offered of cost of actions.
-: When I understand you, you,
you changed this sort of
paradigm a little bit. You say,
look, okay, once
Mr. Costa refuses to go,
then there's,
we're just looking at
the benefits to the commonwealth of two versus one,
Right?
-: Right.
-: So now that original deal, which
they were prepared to
because no victim testimony, nothing.
They were giving out a lower,
they were giving manslaughter at that point.
They can't change from that
because now the victims have to testify,
they're gonna be re traumatized,
can't make any changes.
That's still a violation of substantive due process.
-: Yes. Because that's not.
Mr. DiBenedetto did nothing to cause that
he's being punished
for something which he didn't do.
-: Being punished by getting his
constitutional right to a trial.
-: But that's what Lafler and Cooper say,
that argument is no longer good.
That's what changed.
-: Those were
ineffective assistance to counsel cases.
-: Those, you know, in the Scalia dissent,
we can see
that we have,
we have provided these
all constitutional protections
as part of the plea bargaining process, all.
So just as Justice Wendlandt said,
we can't,
we can't offer plea bargains only to white people.
-: No,
My question is,
is we try and understand those cases,
aren't they ineffective assistance to council cases,
not locked plea cases.
-: There is no locked plea case.
There is none.
We went through all the possible precedents.
The only one that's actually applicable.
-: The Pennsylvania.
-: That's the Pennsylvania case,
-: Right?
-: Yes. That's the only one.
And it's the only one where the argument is.
-: Prior level.
-: I'm sorry,
-: Prior level Pennsylvania case if I'm remembering.
-: I thought the circuit courts have addressed.
-: This the circuit courts address these questions
prior to Lafler
and other than those,
they're sort of all oblique.
It's, we run through it in a brief,
I don't want to take my minute,
-: (Judge) but you're actually five minutes over.
So I'm gonna ask you to wrap up just,
-: Okay, let me say why.
When the government made that offer to Frankie,
it wasn't supposed to only consider
horse trading.
It wasn't.
So the government wasn't only supposed to consider
its costs, it conveniences and random effects.
The government made an offer to Frankie
that they felt served
the justified and legitimate purposes of punishment.
The government was satisfied
that the public safety would be protected,
that it recognize,
it would recognize
Mr. DiBenedetto's willingness to plead guilty.
They were set, it was a fair sentence
according to the Commonwealth,
to manslaughter on this case.
So we're not revisiting.
And that's where Judge Lang aired.
He said, Well, it's a fair sentence,
but that's not the question
because the Commonwealth determined
what a fair sentence,
what a fair punishment would be
for a person who accepted guilt.
And they looked at Frank and said,
If you accept guilt,
this is a fair punishment for you,
and the interest of society will be served,
however,
go make that other guy do it,
or you can't have it.
And that's a very dangerous practice
for the Commonwealth to have
because it encourages terrible behavior,
and it punishes good behavior.
It punishes a person who doesn't
bully his co-defendant,
or force his co-defendant into taking a deal.
And it has a ripple effect in the community.
Because even if the defendants say,
I'm not gonna bully my co-defendant.
Words get out and all their friends
can bully the co-defendant.
It encourages government.
The government encouraging bad conduct.
-: Do you think it
encourages the Commonwealth
not to give plea deals?
-: Why would it do that?
I mean, I know I don't get to ask the question.
No,
it encourages the Commonwealth to do,
to offer plea deals.
-: Co-defendants. They say nobody's getting a deal.
-: That would be fine. That would be, would be fine.
We accept that would be fine.
What wouldn't be fine?
-: Well, are you accepting that for
all the defendants out there?
-: Yes. It's,
it's the law.
The commonwealth,
it's not up to me.
The law is clear.
The Commonwealth does not have to.
-: All I'm saying I'm not sure that
everyone would agree to accept.
-: But I mean,
they don't have to. It's the law.
It's not up to me what's up to
(indistinct)
-: (Judge) They wasn't asking you about the law
they were asking you about the
the whether or not
that would be a good prerogative for the DA
to engage in.
that's what Justice Gaziano's question was.
It wasn't what the law is
as to whether or not
there's a right to a plea offer.
-: Should the Commonwealth just say,
We won't do that anymore since it causes so much trouble.
-: The Commonwealth should not do it anymore
because it's an abusive power.
-: Thank plea deals altogether,
plea deals all together.
Should they just be done away with,
and just have everybody go to trial?
-: You know,
Di Santobello talks about this,
Boardman Curtere versus Hayes talks about this
when a plea Boardman Curtere versus Hayes is a case,
the court wants to look.
-: (Judge) But that's a reliance case.
-: Well, it's not exactly a reliance.
I mean it's kind of a reliance.
Yes, it's a reliance,
but it talks about the difference between
the legitimate power of the government,
like in the Santobello line
negotiating with one person.
The government is allowed to say,
If you don't take this deal,
we will indict you as a,
as a recidivous offender.
And that's fine
because that's the terrible choice
that a criminal has to make himself.
That's the exercise of his individual autonomy,
and his relationship through counsel with his government.
-: Thank you.
-: That's not we have here.
-: Got it.