Clerk: SJC 13301, Commonwealth
versus Lindsay A. Hallinan.
-: Attorney Erkan, whenever you're ready.
-: Good morning, justices.
My name is Attorney Murat Erkan.
I'm honored to be here before you today.
May it please the court,
27,000 defendants whose convictions or admissions arose
in the shadow of government misconduct
await this court's decision to see if the right
to fundamental fairness will be upheld.
I think a good starting point in these misconduct cases
is addressing the question of nexus.
It's always the most thorny issue, and I think that
the particular circumstances of the Ananias litigation
reveal that Justice Brennan, whom Justice Botsford appointed
to resolve the issue of Daubert-Lanigan ruling
to the breathalyzer test, determined that it was presumed
that in every case during the initial exclusion period,
there was misconduct, and so that presumption,
which Judge Brennan created, applies to create a presumption
that with respect to Ms. Hallinan's case,
misconduct in fact occurred.
-: But when you go to Scott, doesn't Scott have egregiousness
and nexus as two separate things?
-: It does, yes.
We look at whether or not the, under Scott, the conduct
was serious enough to be pernicious or egregious,
and then we look to see whether or not it would apply
in a particular case, and I think under Scott though,
the egregiousness substitutes for the determination
in an, on an individual basis, whether egregious misconduct,
whether misconduct occurred in a particular case.
It's sort of, like substitutes the nexus the way,
in the manner that I understand it, Justice Lowy,
and so in, Aninias, Judge Brennan was tasked to determine
whether or not these machines were reliable,
and he determined that there were no written protocols
that were, I beg your pardon.
Justice Gaziano: We've read the record.
So let's just jump to some of the other issues.
Murat: Sure, please.
-: What you're asking for is
the conclusive presumption, correct?
Under, like we did in Bridgeman?
-: That's correct, although I'm proposing
an alternative view, which is to simply look at this case
as if that presumption already exists in light of
Judge Brennan's order, presumptively excluding
the breathalyzer test results for, you know,
for those cases, so the court can simply rely on that.
-: But if we have a conclusive presumption and we get
to Scott-Ferrara part two, and then your client
would have to show basically,
I wouldn't have pled guilty, but for.
Murat: That's exactly right, and that's the way in which
all of these cases ought to be determined.
-: Okay, and you're not asking for
Farak dismissal without prejudice.
Murat: Not at this time.
-: Amici, what, that's what I don't get.
Amici certainly asked for that.
What's your not at this time caveat?
-: The, certainly this court would be within its powers
to dismiss all of these cases with prejudice.
The calculus, I think really hinges on to what extent
there was an edge to the misconduct
in terms of prosecutorial misconduct.
-: But don't we know what happened
given the EOPS investigation?
Murat: We do know.
-: So I just don't get though why this is a two stage case
versus a one stage case.
I don't get your not at this time position.
-: Well then, it.
Justice Gaziano: And I'm not saying
it should be dismissed without prejudice.
I'm just trying to suss out your two stage position.
-: Sure, it seemed to me in evaluating the problem here
that the issue could be addressed by applying
the reasonable probability test to these cases in a manner
that balances the government's interest in enforcing
OUI laws with the defendant's, the public's rights
to transparency and fairness and due process.
-: The other question I had was, if we look at Cronk
and whether or not a remedy is tailored
to the injury suffered, when you have drug cases
like Dookhan and Farak, it's relatively straightforward
because it's the whole case.
If it's not drugs, there's simply just no case
unlike in a OUI case where certainly you have breathalyzer
is important piece of evidence or can be,
but as you know from your practice in the district court,
I assume, most people don't take a breathalyzer.
So a large number of cases are tried
without breathalyzer results.
Murat: That's true.
-: So if we took that out of the case,
isn't the remedy tailored just to get rid of that evidence?
-: That's true, judge.
I think that's the best way to formulate that,
and that's why I think in my mind, I didn't ask
for dismissal because it doesn't go,
it doesn't defeat the prosecution.
It just substantially weakens it.
Justice Gaziano: Okay, thank you.
Now I understand, thank you.
-: Yes, of course, of course, Justice Gaziano,
and so what's happened here in this litigation is that the,
as it unfolded, it was discovered that not only
were these tests not moored to basic scientific principles
that would control whether or not
they were trustworthy or reliable.
Justice Gaziano: Well, let me ask you
one more question from me. -: Of course.
-: Judge Brennan looked at this and he was appointed
these cases, but he put a distinction
between his jurisdiction.
He said, I'm going to decide cases based upon my mandate
for OUI five, four and below,
not serious bodily injury and not motor vehicle homicide.
Our ruling, I assume, and correct me if I'm wrong,
would apply to those crimes as well.
-: The, I don't know that I agree that Judge Brennan
viewed his mandate as limited to simple OUI.
Justice Gaziano: Then how'd that come to be?
-: So that came to be as it, as a response to the discovery
that OAT was hiding evidence from the court during
the Ananias litigation, and the Commonwealth,
at least in appearances, took the position
that it should self-sanction itself.
Justice Gaziano: So that was
a product of the stipulation?
Murat: That's correct, Your Honor.
-: Okay.
-: And so the initial presumptive exclusion applied
to all OUI offenses.
-: First Brennan decision, but the second one
was the stipulation. -: Correct.
The, so what occurred with the stipulation was that period
of exclusion was expanded by Justice Brennan to account
for the loss in public trust and the.
Justice Gaziano: But the charges were cabined by Brennan.
-: The, no.
Justice Gaziano: Or by stipulation.
-: The, only with respect to a conclusive presumption,
and so what the, in addition to expanding the class
of these cases, the Commonwealth next further agreed
to not seek to establish the reliability of these tests
prospectively with respect to a class of cases,
which did not include serious bodily injury and death cases.
-: So are you asking us to, if we adopt your approach
to a global remedy, do you want us, are we,
are you asking to limit it the way the stipulation was,
or are you asking to go beyond it?
-: I'm asking that the court impose the global remedy which.
-: Including for the cases that,
these more serious bodily injury cases,
and OUI fives. Murat: Precisely.
-: 'Cause that's a whole different ballgame, right?
-: Well, I don't know that it is.
I think that the Commonwealth switched pitchers
somewhere in the middle of the ballgame by saying,
well, we're gonna create this carve out,
but that covered again, Justice Kafker, related solely to.
-: Well, why shouldn't we, even if we adopt your view
of a global remedy, why shouldn't we stick to the way
the stipulation was framed, which is allowing
the Commonwealth to, there's no conclusive presumption
for these more serious offenses which involve, you know,
terribly injured people as well as OUI fives, right,
you know, fifth offense. Murat: True.
-: So do we really want, I mean, I understand the idea
that you're gonna put people who pled guilty
in the same position as those who didn't, meaning,
okay, we're gonna throw out the evidence of the breathalyzer
for those people, but you're basically putting the people
who pled guilty in a better position, aren't you?
-: Well, I, let me tell the court exactly
what the remedy ought to be.
The court ought to find that there is a presumption
that a breathalyzer between 2011 June and 2019 April
is excluded and allow the Commonwealth in cases
involving those more serious aggravated offenses,
to rebut that presumption in cases pending trial.
So that addresses sort of the caveat and the carve out
that the Commonwealth wanted, but it's still,
is tailored to the core problem here of unreliable testing.
Unreliable testing affected all.
-: And again, I may just be catching up,
but if you pled guilty in an OUI five, fifth offense,
what's gonna happen if we give your remedy now?
-: So you're gonna file a motion for a new trial.
The court is going to presume that we're gonna look back
at the day of your plea and presume that the breathalyzer
is not part of the case and ask,
is there a reasonable probability that
you would've pled guilty anyways?
And we're gonna permit.
-: I'm not gonna have the option in the prior world
with that stipulation, which that was an OUI five.
So the Commonwealth can rebut
the presumption on the breathalyzer.
Murat: That's correct, that's correct.
-: Under Bridgeman I, sentences, I think it's Bridgeman I,
sentences were capped, right, so you can do no worse.
Murat: That's correct.
-: Awkward question.
Does that apply to your client who got an illegal sentence?
-: She didn't get an illegal sentence, Judge.
Justice Georges: How so?
How so?
-: Because, so it's in the ellipsis that the truth is found.
The Commonwealth,
(justices chuckling)
the Commonwealth through the ellipsis kind of glossed over
the distinction, the statutory distinction that's clear
from study of the statute.
The CWOF prohibition relates to offenses
charged under subsection A(1).
This, the alternative disposition is created
under subsection A(1)(4), and that particular paragraph,
Your Honor, provides for dispositions notwithstanding
the provisions of paragraph A(1),
and so that notwithstanding language eliminates the impact
of the CWOF restriction,
and the, of course, it's not a law.
The complaint, the way it's drafted is not the law,
but the trial court has recognized
that statutory distinction by including in
the complaint language the possibility of a CWOF
as an appropriate disposition.
So no, it was not.
Justice Gaziano: But either way, there's a cap.
-: There is a cap.
Justice Gaziano: We'll apply the Bridgeman cap.
-: That's absolutely correct, Your Honor,
and I think the Commonwealth concedes as well that that cap
applies to the, at least the license suspension issue.
Justice Lowy: I'd like to go to the Ferrara factors.
-: Yes.
-: As it relates to your client, but in the number
of baseball analogies going on now,
so I suppose this question might be a fastball
down the middle, but there's something to be said generally
about the impact of OUIs when there's no breathalyzer.
We all know what the conviction rates are with OUIs
without breathalyzers and how challenging they are to prove.
Murat: Yes.
-: And how does that point impact your client, number one?
We have an admission of three drinks and the fields tests,
but also how do the Ferrara factors impact OUIs
when all of a sudden you had an OUI with a high BT,
and now there's no OUI?
I mean, there's no BT. Murat: I just tried.
-: Excuse me.
-: Right.
I just tried one of those cases with a very high BT
and the jury acquitted because the BT was not admitted,
and I think that the BT is the crown jewel,
I think is the term that I used in describing it
in my brief of any OUI prosecution,
and so because of the centrality of the evidence,
because of how important it is and the seal
of scientific approval that's applied to it,
a great many people are going to be able to establish
a reasonable probability that they would not
have pled guilty under the circumstances so.
Justice Kafker: And the judge finds here, right.
The judge. -: And he found here.
-: He found here that there's a reasonable, I mean,
so we have to find that to be clearly erroneous,
at least in her case, right?
-: That's correct, and that's gonna be a,
I think that would be a tough road to hoe
given the evidence in the case.
-: But it's also a, it's hard to,
that's a lot of evidence against her.
She admits to three drinks.
She's, I can't remember the usual, thick tongue
and stone, you know, glassy-eyed, so that.
-: I think juries hate that stuff, judge.
I think that that's the kind of stuff that's so subjective
that juries are not gonna convict on
and in my experience and.
Justice Cypher: Counselor, are you sure that's it
and not just your skill as a trial attorney?
(Murat laughing)
Murat: Yeah, I think it's despite
my lack of skills at trial.
-: Well, let me ask you it the other way in all seriousness.
Murat: Yes, of course.
-: Because the lack of a breathalyzer in an OUI case is huge.
Murat: Yes.
-: Did you feel that when you were on the other side
prosecuting OUIs without breathalyzers?
-: I mean, I didn't try,
I must have tried maybe a handful when I was a prosecutor,
because those always pled.
Justice Lowy: With the breathalyzer, but without them,
it's a whole different trial. -: Well, without
the breathlyzer, yeah well, you know, I don't,
I'm not gonna pretend to have been a very effective
district court prosecutor, judge, and I, my conviction rate
may not be representative of the prosecutors.
It's increased since I became a defense lawyer, judge, but.
Justice Kafker: You're trying harder.
Justice Lowy: But the importance of the breathalyzer
in an OUI hasn't changed.
-: Not at all.
It is the centerpiece of every OUI.
It's the gold standard, it's the confession,
it's the fingerprint, it's the DNA match.
It is the evidence that makes any OUI case untriable and.
-: And the jury's not asking the same question
for the whole trial with the breathalyzer.
-: Yeah, that's right.
I believe Your Honor might have been in the district court
as a judge at some point, and I'm sure you received
that question in almost every OUI case,
what happened to the breathalyzer evidence?
So I, and the breathalyzer evidence is particularly
pernicious in the sense that, and this goes to
the Finelli issue, it shakes a person's confidence.
They're taking the breathalyzer, why?
Because they think they're gonna pass, but then
the machine says it's a scientific fact that you're guilty,
and so that seeps into their minds and sort of in a way
that is unlike most other contexts,
erodes their own confidence in their innocence.
and that's why it's so important.
Justice Budd: Okay, thank you.
Murat: Thank you so much.
-: Attorney O'Sullivan.
-: Good morning, may it please the court.
David O'Sullivan for the Commonwealth.
The Commonwealth is not here to minimize
or to excuse the serious failings of OAT.
-: That being the case, let me ask you,
line up Farak and line up the OAT
with governmental misconduct.
David: Yeah, thank you.
-: Why aren't these dismissal with prejudice?
David: They aren't for.
-: In Farak, we had AGs hiding the ball.
David: Correct.
-: And we said, there was misconduct by Sonya Farak,
then the AGs hid evidence and it was later
discovered by defense counsel.
Here we have, and you read the EOPS report
was incredibly troubling, makes your blood boil.
We have people purposely hiding evidence
from defense counsel and the prosecutors in the court.
Why isn't this a dismissal with prejudice?
-: For a few reasons, and one of which was the import
of your question to my brother.
This is not a similar situation to the 94C offenses
that were at issue in the Dookhan and Farak case.
As my brother said, I mean, this is a bifurcated statute
in which there are two totally independent ways
to prove the offense.
While the BT is relevant to the 0.08 theory,
it has no relevance to the alternate theory under,
that the Commonwealth can proceed on in the case
and was part of the factual case.
-: What about the deterrent effect?
We're supposed to fashion a remedy that stings
to deter police and prosecutorial misconduct.
-: Right, the misconduct here warranted
the significant sanctions that were agreed upon and imposed
pursuant to the, following the EOPS investigation
and pursuant to the joint stipulation
and the significant remedial measures that were implemented
following that, but it is a very different matter,
and as Judge Brennan observed in this particular case,
and there's no better judge to have weighed in on this
than the judge who presided over the Ananias litigation,
as he observed in this case, it's a very different matter
to apply the Ananias rulings to a defendant
like Ms. Hallinan who, unlike other defendants,
did not move for discovery or even wait
for the Commonwealth to certify compliance, and to.
Justice Georges: But that's not uncommon.
David: Correct.
-: Because one of the things that you're under if you are
a defendant individual, is you're under
some kind of administrative license suspension.
You either took it and failed it or you know,
there's some pressure to a lot of folks who just need
to go on with their lives and they need to be able to drive.
So that's not uncommon.
We see that all the time, right?
-: Correct, that's certainly not uncommon, and there is
an incentive to accept a plea and charge for it,
as did this defendant and accept a very favorable,
and I would submit so favorable, it was illegal disposition
for that precise reason, because you would wanna start
your license suspension earlier.
Justice Gaziano: What message are we sending
to the public, right?
David: Yeah, the message.
Justice Gaziano: If we don't dismiss with prejudice.
-: Right, so certainly the EOPS report
discloses a sordid scene.
It involved massive and blatant discovery violations
in the context of the Ananias litigation,
which caught not only defense counsel, but the prosecutors
unawares and also went beyond that, Your Honor.
It also investigated the generalized discovery practices
at issue in, at OAT, and it found that they took
a very cavalier and supercilious attitude
toward their discovery obligations and that they failed
to reach out to available legal help in order to assess
whether a particular item had an exculpatory character that.
Justice Gaziano: Okay, so what message
are we sending to the public?
-: Right, the message I think was clearly sent by way of
the joint stipulation in which the Commonwealth agreed
to remedial measures that went
far beyond the narrowly remedial.
For example, you know, obviously from 2011 to 2014,
there weren't written calibration protocols.
Calibration was done pursuant to worksheets and through
word of mouth as to the acceptable tolerances in the lab.
Judge Brennan supportively found that that was
not consistent with, you know, scientific principles
and having written protocols and so, but the Commonwealth,
after the initiation of those written protocols in 2014,
notwithstanding that given those discovery violations,
the Commonwealth agreed to a dismissal of cases
even that were, you know, calibrated pursuant to
those written protocols and thus
were scientifically reliable under Ananias I.
So the agreed upon.
-: Can I just, I thought that there was no control
vis-a-vis the breathalyzer, so whether or not
something was calibrated or not, there was just no control.
So calibrated as against what?
-: What the judge found after
the extensive evidentiary hearing in Ananias I
is that scientific principles required that
when you calibrate the instrument,
that it be done pursuant to written protocols.
What OAT had been using is worksheets that functioned
as a checklist, but at page 211 of the record appendix,
Judge Brennan in Ananias I details the differences
between the worksheets that were being used
and calibration pursuant to written protocols,
and they were significant enough that presumptive exclusion
was an appropriate remedy, but what the court didn't say,
and I think this is important,
is that the judge didn't rule that
the breath tests were conclusively unreliable.
In fact, the Commonwealth could prove on
a case by case basis that even prior to
the written protocol's initiation,
they were reliably calibrated through the testimony,
as the judge said, of an OAT scientist,
and that gets to another point of distinction
between this case and Farak.
Back to your, Justice Gaziano's original question,
and it's an important one, and it has to do with not only,
not only is the nature of the conduct slightly different
than what it was in Farak, but it's also different in terms
of its reconstructability.
The major factor that led the court in Bridgeman
and in Farak to issue that conclusive presumption
of egregious government of misconduct is precisely
because we couldn't particularize to any individual case
the misconduct of those analysts.
They couldn't testify as to which cases they tampered with
and which particular cases they mixed samples and so such
that it was not reconstructible by individual defendants.
Here, it's quite different.
In fact, the premise of Ananias I is that the calibration
of a particular instrument is reconstructible
through the testimony of an OAT scientist by reference
to the checklist that was used.
That's the premise.
-: I'm a little confused.
In the stipulation, you're willing to give up
all of the cases except for the serious ones.
David: Correct.
-: But you seem to be going back on that now,
I mean, and reconstructing, you know,
thousands and thousands of these things
versus reconstructing the ones where someone got killed
or you're fifth, it just seems like
it's a different ballgame here, but why are you seeking
to resurrect these for all the ones you basically stipulated
should be thrown out on everything from
2011 to 2017 or 2019 that involve, you know,
ordinary OUIs, you were prepared to give it up, right?
But now you're not.
-: Well now with respect to the joint stipulation,
it applied by its terms and as interpreted by Judge Brennan
who actually presided over that litigation to apply to cases
going forward, cases at trial.
With respect to that.
Justice Kafker: I thought you agreed that
you weren't gonna use, maybe I misread it, but I thought
you were basically saying, look, we're not gonna try
to resurrect these for ordinary offenses.
David: Correct.
-: We're moving beyond that.
We, that's the penalty, the sanction,
but in these very serious cases, give us a chance
to recreate this if we can,
which seems to me a different remedy,
particularly we have victims, we have people
who've been killed, you know, just seems different to me.
I understand in one circumstance,
but I don't understand the other.
-: Right, well, with respect to the joint stipulation,
it was an agreement to pursue into a negotiated settlement
on sort of unusual for the Commonwealth to agree not to,
although it, Ananias I gave it the option to do so,
to prove on a case by case basis, certain cases that
were not within that limited class of very serious ones.
That did not apply to cases that were adjudicated
like this one by plea and it, as Judge Brennan pointed out,
and I think this is important, we agree with Judge Brennan
as to prong one of the Scott-Ferrara framework
that requires three things, to show egregious
governmental misconduct that, that antedated the plea
and a particular nexus to the defendant's case.
The defendant, Judge Brennan ruled the discovery violations,
which occurred in 2017 with respect to
the Ananias litigations, those were wrong.
Certainly those were a violation of the due process rights
of the consolidated defendants, and further,
any person who relied and had their case stay,
there were thousands of them in reliance on Ananias I.
Justice Gaziano: You haven't agreed to
a conclusive presumption, right?
-: No.
-: All right.
Suppose you survive Farak dismissal with prejudice.
I don't get why you don't agree to a conclusive presumption
if you get out of this, out of the skin of your teeth.
-: Now, with respect to that, and we're talking about cases
adjudicated by an admission here,
that's the only case right before the court,
the basic principles of waiver would say that a defendant
who, like this defendant, charges forward to a plea.
-: Same as in Bridgeman, right?
-: Who charges forward to a plea and accepts
a very favorable disposition.
-: Same as in Bridgeman, right?
-: Well, with but.
-: Bridgeman, I'm a defendant who has a drug case.
I plead guilty thinking, well, I guess they said
it was drugs, right?
And I plead guilty, and in Bridgeman onto the protocol,
we allow people to go forward and say,
I wouldn't have plead guilty
had I known about the misconduct.
That's Bridgeman, right?
-: Thank you, and I think.
-: All right, so now we have this case.
This defendant pleads guilty having blown a one, whatever.
She doesn't ask for discovery, but she talks to counsel
and says, you know, let's get the CWOF while we can.
David: Right.
-: What's the difference between a Bridgeman defendant
and an Ananias defendant where this shouldn't be
a conclusive presumption?
-: That's an important question,
and here's the critical difference.
In the context of Farak, or Dookhan for that matter,
no motion the defendant could have filed
could have uncovered that clandestine pernicious misconduct
with respect to that.
Here in this particular case, although my brother points out
that the Camblin decision, which concerned
the predecessor machine, the 7110,
that was decided by this court, Camblin I in 2015,
but that legislation began years before the plea
in this case, actually in 2010 and 2011,
and was fairly well publicized consolidated
Daubert-Lanigan litigation concerning.
Justice Gaziano: But the misconduct is the
discovery practice, not the. David: The misconduct.
-: The issue of the Camblin issues and the Ananias.
The misconduct is OAT's hiding evidence.
How is a defendant supposed to know when they plead guilty
that two years from now, when there's litigation,
Daubert-Lanigan litigation over this,
OAT is going to engage in misconduct?
-: So with respect to discovery violations,
so the discovery violations that occurred
in the Ananias litigation, those obviously postdated
this case by many years, but as the, and to dovetail
on a previous answer, OAT investigated not only that,
they investigated the generalized discovery practices
at OAT and found that they would routinely not disclose
failed calibration worksheets that preceded
a successful calibration that ended up in deployment
of the machine into the field.
Now, with respect to those, the agreed discovery practices,
and these are two page 237, I believe,
of the record appendix, the parties agreed
to far-reaching remedial measures.
Every document pertaining to those machines is now
in a database that is easily navigable by anyone,
and Judge Brennan made findings with respect to it.
It is an.
Justice Gaziano: So you think it should be piecemeal?
-: Well, I think what should happen is the court
should not abandon the normal presumptions
with respect to undoing a plea.
-: And that's notwithstanding the four principles
we articulated in Bridgeman that said,
the government has to bear the burden,
there should be remedies for everyone.
-: That, it's actually because of them and because of
the differences here and in that case.
So it was open to any defendant.
In fact, hundreds of defendants did
to file a Daubert-Lanigan motion.
Now, with respect to, and there's one point on which
we respectfully, obviously we disagree with judge on prong,
with Judge Brennan on prong two,
and I'm happy to talk about that,
but with respect to prong one, we do agree with the judge.
The judge found that there's no nexus between
the discovery violations in Ananias in 2017
and the defendant's 2013 plea.
Obviously those postdated the plea in this particular case,
but we disagree with, in the defendant's favor
on the judge's analysis as to prong one in general,
as to any defendant.
Obviously the Commonwealth has paid
for 27,000 notices to go out.
We do not exclude the possibility
that defendants will come forward.
As you know, there were 432 failed worksheets
that preceded successful worksheets,
worksheets that were calibrated that were not disclosed.
Those pertain to particular machines.
If a defendant's machine is one of those, you know,
if there was a failure to disclose one of those sheets
prior to a plea or prior to the breath test,
we don't exclude the possibility that the defendant
can come forward with evidence that would support
the grant of a motion review trial.
This particular defendant hasn't.
I would like to address if I could, 'cause I think
it's very important, the claim made in the reply brief
with respect to the 13 missing worksheets.
The defendant's claim is that there were
13 missing worksheets that were discovered in the course
of the EOPS investigation, and he claims at page five
to seven or around page five of the reply brief,
that these failed worksheets
can't be tied to particular machines.
That is not the case.
So what happens by way of background is when a test
or calibration is done, the machine itself sends information
to a centralized server that, which stores the data
tied to that particular machine, and so,
actually largely through the work of a defense investigator
in the case, we were able to see that some worksheets
were missing with respect to tests, to failed tests,
and so as part of the agreed discovery practices,
and this is at page 237 of the record appendix,
one of the agreed discovery practices is that that database,
the OAT discovery portal, will include
in every instrument file anytime there's a missing document,
and so we can trace, and I confirmed myself
with the OAT ombudsman, that they have fully complied
with that aspect of the agreed upon remedies,
and so there are nine machines as to which
these 13 missing worksheets apply.
None of those machines is this defendant's machine,
and so when the claim, when the reconstructed documents
don't support you, the sole claim is the one
this defendant makes, which is that no reconstruction
is reliable or possible.
I would submit that all the work done in the wake of this,
the Commonwealth attorneys faced with this acted swiftly.
They acted with alacrity in, whereas the attorneys
in the Dookhan and Farak matter suppressed and squelched
information that would have disclosed
the full scope of her conduct.
Here they dug in and excavated not only.
-: Is that really relevant, the difference in what
the attorneys did since the Commonwealth has to accept
that it is representing the government and it's OAT?
-: Sure, sure, absolutely, and the Commonwealth agrees
that OAT is an arm of the government, certainly,
but it's a difference that that makes a difference,
at least with respect to the remedy of dismissing.
-: I think the language in Farak says,
whether it's misconduct by the police,
a lab, or the prosecutors, right?
David: Agree.
-: Here, the prosecutors, I commend you,
did what they're supposed to do.
-: Right, but their.
Justice Gaziano: Lab, not so much.
David: Correct.
-: Isn't your better argument that, not that the misconduct
isn't egregious, but rather you've been able
to put the egg back together again, somehow?
Is that's, I think isn't that your better argument?
Not that trying to defend this, but rather.
David: Oh yeah, no.
-: That they basically, unlike the drug cases
where you can't, we can never figure out anything,
you're saying that you can do this
in a machine by machine base, I don't know
if that's true or not, but that's what you're suggesting,
that you can recreate this information so that these cases
were retried, you could figure out whether the machine
at issue was actually calibrated or not.
-: That's exactly what the Commonwealth's position is,
that unlike in those cases, this is reconstructible
as I was inarticulately trying to say.
-: And also if you go all the way back to Scott
and Justice Spina's opinion, key to that opinion is that
you can't show, you can't, nexus isn't going to work
in the context of Dookhan.
-: Correct, correct.
That can't be met and we would say that nexus can be met,
and if Judge Brennan.
-: I still struggle with that and I don't want to, Chief,
if you wouldn't mind just last one last question from me.
Justice Budd: Sure.
-: Thank you.
The, Scott and all of the drug cases were very different.
I, at least in my view, they were different,
particularly when you're talking about pleas.
Now I understand in this situation, Judge Brennan found
in favor of no nexus, but just about every impairment case
is going to be what the officer saw, what they perceived
to be the thick tongue or the unsteady walk
or odor of alcohol.
They're all going to read the same.
So doesn't it militate in favor of some global remedy here
because there wouldn't there be a level of arbitrariness
here to defendants that took pleas that you know,
that particular judge in that motion hearing says,
I do credit the officer who didn't know this person
before the night of incident when they say all of
these indicators of impairment versus,
I don't credit this officer who never met
this particular operator before the night in question
and therefore that person gets a new trial.
You know, because even in this case there was,
this is a roadblock case, so you don't even have
the other arrow of operation, right?
Double yellow lines, over the middle line,
and over the fog line.
You don't even have that in this case.
Isn't that why we say we like the global remedy?
Because if we go on a case by case basis,
isn't there just a level of arbitrariness here
that shouldn't inure to the government's benefit?
-: Well, so with respect to the global remedy,
I don't think that, you know, we would be,
that piecemeal is, given the navigability and ease
with which the OAT portal is navigated and the ability
of a defendant who was wronged by discovery,
individual discovery violations in cases
could reconstruct that, but also with respect to, you know,
the viability of a block dismissal essentially,
it is fundamentally different from the 94C offenses
in the sense that the drug certificate,
the chemical testing of the substance was the end all be all
in that case, and we do have another totally separate means
by which to do this, and I would note that the affidavits
of counsel and of the defendant in this particular case
don't even address that.
It simply says, I suspect there would've be an acquittal.
My advice would've been different, but no,
and this is one of the enumerated factors,
and I think it's really important,
this court in Scott enumerated six different factors
on the second prong.
Whether it detracts from the factual basis of the plea
is one, and obviously it's a different case
than a 94C offense, where we have these two theories,
and the last factor that court enumerated in which
Judge Brennan did not address at all is whether defendant
proffered a substantial grounded defense as to the claim.
Here, there's no substantial grounded defense
that was proffered.
In fact, there was no explanation.
I'm sorry, Your Honor.
-: No, no, I was just gonna say, but that doesn't really,
I mean whether there was or there wasn't in this case,
we also have all these other cases to be concerned about,
correct, and so just in terms of our authority
and our responsibility to the trial court system
and to the, to everybody, the burden that this would place
on the trial courts to redo these cases is significant.
How do we weigh that in this analysis?
-: Well, I don't deny the force of that point,
but we did give notice to 27,000 defendants and the court
has not been overrun to date with motions.
Justice Kafker: Is that 'cause they're waiting for this?
-: Possibly because they're waiting for this.
Justice Georges: Or maybe they can't afford it.
David: Or possibly.
-: You know, I mean 27,000 people have to come up with money
to get an attorney that they may not be indigent
and have to pay for it.
There's that too.
-: There's that too, but certainly, you know,
resources can be made available to them but yes,
I don't deny the force of the point with respect
to a burden that would happen.
There's also the prong two that they would have to meet
in this case, which is fundamentally different,
I would suggest, than it would be in the 94C context.
-: It's fundamentally different, but in OUI cases,
the lack of a breathalyzer is huge.
You probably see that by how many OUI cases
you find yourself arguing before the appeals court
of the SJC where there's no breathalyzer.
Not a big part of your caseload probably,
and when you say what would the defense be
in a non breathalyzer OUI, the best defense is
the burden of proof, of proof beyond a reasonable doubt,
and factor four, if I'm remembering my factors of Ferrara,
is how would the evidence have factored in
evaluating into, you know, whether or not to plea or not.
-: Correct, and so I, and I would admit that in this case
it is a roadblock case.
You know, I have seen much better impairment cases
certainly, but it is also a legally sufficient case.
The defendant failed not one but four field sobriety tests
and proffers no defense that she would've presented
on those failures at trial, and so we're left to speculate
about what they would say about that or.
Justice Cypher: No videotapes of the field sobriety test?
David: No, I, no.
Justice Cypher: We don't, do we know
what they are in the record?
We don't even know what they are.
-: The field sobriety tests are detailed
in the Commonwealth's brief.
They were in brief, the one leg walk,
the one leg stand, the nine step walk and turn,
and the alphabet test, which was failed comically
by the defendant in this case,
and also the horizontal gaze nystagmus case.
The defendant failed every one of those,
and in addition to her admission.
-: And the BAC number was 0.23.
David: It was, I believe 0.24.
-: 0.24, okay.
-: Yeah, and so three times legal limit.
So certainly we're not even close to any, you know,
margin of error.
-: That would've been thrown out.
David: It would've been thrown out, true.
Justice Budd: Okay, I'm gonna, we'll wrap this up.