-: SJC 13305, Commonwealth v. John V Monteiro.
-: Okay, Attorney Burbine, whenever you're ready.
-: May it please the Court,
Carolyn Burbine for the Commonwealth.
The question here
is whether counsel has a conflict of interest,
and was the Commonwealth's motion to disqualify
erroneously denied?
And we have a very unusual situation here where we have-
-: Counsel, I'm going to go ahead and interrupt you
because this is a big deal.
Taking a look at the position of the Commonwealth,
and going through Judge Sullivan's decision,
the Commonwealth hasn't any evidence
that the defense will be antagonistic here
with Mr. Barros and Mr. Monteiro.
That's a specific finding that Judge Sullivan makes
that at oral argument,
there was no indication
that Barros has anything to do with the murder.
The way that Attorney Scapicchio indicated
she was planning to pursue the motion for a new trial
did not effectively have to say Mr. Barros did it.
And so with the, particularly, with the waivers
that were signed by both men,
how did Judge Sullivan abuse his discretion here?
How did he make a clear error of law here?
-: Well, it's our position
that when you look at the rules of professional conduct,
and you look at Rule 1.7,
counsel has a concurrent conflict of interest
if her representative of one client
is directly adverse to the other, it's-
-: That's the point.
Attorney: Well-
-: That Judge Sullivan found that it's not.
-: Well, I disagree because I think
that to really figure out
if there's a conflict of interest here
we have to look at what does the defendant have to prove?
What does the defendant have to prove at this hearing
on the motion of due trial of ineffective assistance.
So the claim of ineffective assistance
is that the lawyer, trial counsel for Barros, for Monteiro,
didn't investigate if Barros was the shooter,
didn't sufficiently investigate it, neither did the police.
And I think the focus here has always been
on just Prong One.
But we, the Commonwealth, has to also think about Prong Two.
So, the defendant's gonna have the burden to show prejudice
from the failure to investigate Barros.
So, what is the Commonwealth gonna have to do
to counter that?
And the only way we are gonna be able
to disprove the defendant's theory
that he was prejudiced by the ineffective assistance
is to show what we would've done at trial
had that been raised.
And we have to show
that it wouldn't have amounted to anything
because Barros didn't commit the crime.
And how are we going to do this?
There's a possibility to at this motion hearing,
we may call Barros.
And then you have opened the door to all of this.
We call him,
someone's going to have to advise him on the fifth
given the attorney's position
representing Barros and Monteiro,
what is that going to be like?
And let's just say, theoretically, he takes the stand,
and he says, "I didn't do it."
How can counsel cross-examine him at this juncture?
She's representing both Monteiro and Barros.
And now Barros has said, "I didn't do it."
which is counter to Monteiro's position in this motion, so-
-: But it's not counter.
It's not counter because Judge Sullivan found
that in order to be successful on the motion,
he didn't have to say that Barros did it.
-: You don't have to say that Barros did it,
but she's still pursuing,
she's still pursuing information through this motion
for a new trial hearing to point to Barros.
That's the whole point.
Like, how can counsel have been ineffective
in failing to investigate this
if there wasn't something there?
So she's pursuing attack
where she's trying to gather information
to show that, you know, Barros should be implicated,
and that counsel failed to understand that,
failed to pursue that.
And now should she be successful,
the police are going to be looking at Barros again,
new defense council from Monteiro
is going to be looking at Barros again.
And there are ties to Barros in this record.
Or if there weren't,
then defense counsel would not have been able
to even get an evidentiary hearing on this.
So there was some evidence that Monteiro and Barros
were known associates with another man,
with one another and with Leverone.
This man Leverone told the police
that a man named Gonzalez drove both Monteiro and Barros
to the victim's house to kill them.
And there was evidence that Monteiro sold the gun with blood
with one of the victims in the barrel to an FBI informant.
So there's still,
so there is a chance that Barros could be implicated.
So even though the focus has been on Prong One,
I think when you look at Prong Two,
we have a real possibility of a problem
at the motion for new trial hearing.
What do we do if in the middle there's an ability
to elicit evidence against Barros
in a way that this conflict comes to a head?
What happens if Barros gets on the stand and says,
"I didn't do it."
How can counsel cross-examine him,
and then what happens with that evidence?
It wouldn't be fair to the Commonwealth, in my view,
to suppress it.
What's the answer?
And I think that's a real danger
that has to be addressed now.
-: That that's the prong of the doctrine
that I want to get at.
It has to be addressed now.
I'm looking at Prong One of Fontanez,
and whether or not it was an abusive discretion
for the single Justice
where there's very significant discretion
as to whether or not to get to the merits.
Is this an extraordinary circumstance
that requires a single Justice to get to the merits?
And when you answer that question,
I'd ask you to take into account all the contingencies
that you just listed to answer Justice Georges' questions.
-: Well, I believe that it is
because I haven't seen any case law with this scenario.
Usually it's defense, you know, counsel represents
both the defendant and a prosecution witness
or you have counsel representing
a number of co-defendants.
I didn't see anything out there
on a post-conviction motion
where counsel's alleging ineffective assistance
against another client.
And you know, she's a, it doesn't have to be
a deliberate act by counsel to fail to recognize this.
I mean, the most well-meaning counsel could make-
Justice Lowy: That's (indistinct).
-: It's so unusual. But I do think-
Justice: That's (indistinct).
-: Yes, I'm sorry, but I-
-: That's okay, but hold on.
Let's say you're right
about that these contingencies could happen,
waivers might not be good.
There maybe there wasn't a full colloquy,
conflicts colloquy and all the things that you laid out.
And then maybe on the second part of,
it's not really (indistinct), but second part,
that might implicate in some way, Barros,
if he testifies in cross-examination,
all the contingency you laid out in response
to Justice Georges' questions.
That doesn't mean that the single Justice
has to determine under general superintendents
that he needs to reach the merits,
that this is an extraordinary circumstance.
And indeed, I'm wondering about all the ways
you had to weave through your answer
to get to Justice Georges' question
about how you deal with Judge Sullivan's findings
whether or not the issue would even really come to a head.
-: Well, I think it's an extraordinary circumstance,
and we didn't have any other avenue of relief.
And I think- -: It's not dispositive.
-: No, it's not.
-: And you didn't file a 221,
you know, that whether or not this is an interlocutory order
You're supposed to go through that step, right?
-: I don't believe so.
I thought we did it correctly doing the 211, 3.
Justice Lowy: I know, but when you lost the 211.
-: When we lost the 211, 3.
I think we've petitioned the court for permission to appeal
and it was granted.
I believe that was the avenue.
But, I just feel like this is such an unusual circumstance
that we, the profession, needs an answer.
I mean, the profession polices itself.
We're responsible, prosecutors are responsible
for pointing things like this out.
We don't wanna be in a position
for the good of the profession
where we find ourselves in the middle of a hearing,
and it all, no one knows what to do about it.
And I think it's that important an issue-
-: Oh, that's not necessarily true,
because if you, if there were,
you know, there are instances where conflicts and questions
about people's potential exposures happen all the time.
And the court could appoint somebody for attorney Barros
that's independent of Attorney Scapicchio.
We do that in Martin hearings all the time
for witnesses when they say there might be a fifth.
That happens in real time.
But the the whole point is, I guess,
if you go through the progression,
the single justice is looking at what happened below,
and looking at the opinion of Justice Sullivan and saying,
"Is this one of these things back to Justice Lowy's point
that I should involve the court in at this point."
And the idea that it hasn't met the 211, 3 threshold,
again, you got two levels of...
You got abuse of discretion by the single Justice.
And I'm just wondering,
just because you don't think
that there's an answer out there,
does that meet the standard?
-: Well, I mean, we're talking about two gentlemen
who have been convicted of murder,
and Monteira was convicted of a double murder,
and I think that the stakes are so high.
This isn't a trespass case.
We really don't wanna be in this situation.
And I think everyone would look for guidance on this.
And I think that's,
and I think that the judge did abuse his discretion
looking at the rules of professional conduct,
looking at the case law.
I disagree, we disagree with its conclusion.
And I think you have to also,
just based on everything I said in my brief,
but also I think that, you know,
we're a profession that polices itself,
and we really need to know the answer to this question.
I don't think it's impossible that it would arise again,
and it's unusual enough.
-: This is the kind of thing that a client can't ascent to?
-: Yes, I do.
And even if the court agrees, disagrees with me,
I still think that at least there should have been
some kind of colloquy, a more thorough colloquy,
with I know Barros had one, Monteiro never did.
I know they signed the waiver.
But I mean, counsel who is advising them on the waiver
knows information from both individuals.
And while she may not realize it,
it may be coloring how she's advising them.
And so I think that, you know,
it's so important to the profession we police ourselves,
we police each other,
that this be addressed.
And I don't think it could be waived
at least not without a sufficient colloquy
of each individual by the judge, at the very least.
-: Before you go, can I just ask you to respond
maybe in a 16(l) letter to the defense request
for attorney's fees?
Carolyn: Yes, Your Honor.
-: Okay, great.
-: Does the court have any more questions?
Thank you very much.
-: Thank you.
Okay, Attorney Masferrer.
-: Good afternoon, Your Honor.
May it please the Court, Eduardo Masferrer,
and Danya Fullerton from (indistinct)
on behalf of the appellee.
The Court should affirm the order of the single Justice
and the trial court
as there is presently no concurrent conflict of interest
much less an unwaivable conflict of interest,
and the trial judge properly exercised his discretion
in denying the Commonwealth's motion.
-: Can you start on Prong One of Fontanez
as to whether or not this is extraordinary circumstances,
and whether or not there's a remedy?
-: It's not extraordinary circumstances.
We have issues.
There's a ample case law about whether or not
there can be a waivable conflict,
and the procedure to go into.
The procedure was followed in this case,
waivers were filed with the court.
-: And if the Commonwealth loses the motion for new trial,
Eduardo: Yes?
Justice Lowy: Is there an appeal?
-: On behalf of the Commonwealth?
Justice Lowy: Yeah.
Eduardo: I suppose they will file an appeal.
-: So, couldn't it be addressed that way?
-: It certainly could.
-: I mean, that might not do it
because the violation might have already happened,
and this might be a present execution situation,
but there's a lot going on here
about whether or not this is extraordinary circumstances.
Eduardo: It doesn't-
-: And the single Justice had to reach the merit.
-: It doesn't appear to be extraordinary circumstances
that we can conduct the hearing, we can have the hearing.
I know the Commonwealth poses a hypothetical.
What about if Mr. Barros is going to do something?
There has been multiple hearings scheduled.
The Commonwealth has established its witness list.
It has not called Mr. Barros as a witness.
Justice Cypher: Well, isn't that in part
because things haven't started yet?
-: No, Your Honor, it was supposed to start
on various occasions,
and every single time-
-: Yeah, we aren't, there was never a position
where the attorney was starting to do things
that would implicate Barros, right?
That hasn't happened in a trial yet.
-: It's a motion, for the motion hearing hasn't started
because the Commonwealth has sought continuances.
So those we could have started it,
there's been no stay.
-: But even so, the point is that whether you can,
let's take a hypothetical situation then.
Until you're actually in front of the judge in a hearing
whether it's a motion for new trial,
or a first-degree murder case,
this issue won't be fully fleshed out until that moment.
Is that right?
-: No. -: No. Why not?
-: Because the Commonwealth hasn't an announced an intent
to call Mr. Barros.
-: But-
-: So they would have to put him on a witness list
ahead of time.
So before the hearing even starts-
-: But what if the hypothetical witness
or person who they're going to say is the culprit in this
rather than the defendant-
-: That's not the point of the motion, but yes. (chuckles)
-: I understand, I understand. (chuckles)
Until... So if they put him on the witness list,
would that change anything?
-: Is Mr. Barros going to testify?
Is he gonna waive a Fifth Amendment right?
-: Is he possibly going to testify?
-: There'd be no logical reason
why the person who this prosecutor's office
has convicted of murder
would then turn around and decide to assist them.
Separate from anything else,
separate from the potential conflict of representation,
there is no realistic thought
that they would come and do that.
-: They might turn around and assist Mr. Monteiro.
-: He, well, again, there is no indication
that that is going to occur.
He's not on Mr. Monteiro's witness list.
The issue about Mr. Barros is picking one issue
out of a hundred-page motion for new trial, right?
Mr. Barros as a third-party culprit
isn't even the main issue of the motion for new trial.
He's not even the main third-party culprit.
Mr. Lavron is the person who
the vast majority of Mr. Monteiro's motion for new trial
points to as someone who is likely
to be the third-party culprit.
He points to a variety of errors that trial counsel made.
He then, they then spent,
I think it's 10 pages of the record,
the impounded record of penance,
going through the potential misconduct
that the Brockton Police
and potentially the Plymouth County
District Attorney's office has been conducting
over a series of murder trials.
Those are the main issues of this case.
The Commonwealth picks one
that Mr. Barros could, should have been explored
as a third-party culprit
in order to avoid everything else
that's happening in this motion.
Justice Georges: Attorney Masferrer.
-: Yes, Your Honor?
-: Going back to Justice Lowy's point
about Fontanez, which is the problem that I have,
is would it be a different procedural posture
if, in marrying Justice Cypher's question,
if the the hearing had begun,
and in the unlikely event
that Mr. Barros decides to testify,
that at some point the questioning from Attorney Scapicchio
might then implicate the conflict,
and perhaps then you could stop it,
and then say, "Now we have an issue
we may not be able to resolve."
And maybe now this might be properly a subject
of a 211, 3, perhaps?
-: It could have been,
or Judge Sullivan could have stopped the proceeding,
and reported the question.
Justice Georges: Right.
-: Right, but we don't deal, in my experience,
this court doesn't deal with hypotheticals
when deciding whether we've reached an extraordinary point
that you need to stop everything,
and have this court weigh in.
We are not there.
-: No, but we do get concerned if there's an actual conflict
and we might end up with a first-degree murder case
that has to be retried, don't we?
I mean we, I would be concerned, but-
-: But again,
you sort of jumped a few steps there, Your Honor.
So for example, if Barros is called,
and he doesn't assert a fifth, and he does testify,
if all those things happen,
then maybe we do need to stop the proceeding,
and do something else.
But we are not there.
We have stopped this proceeding for two years
based on a maybe.
Maybe there could be a potential conflict
if everything lines up in a particular way.
And now there is an actual direct conflict
because the witness on the stand
is represented both by the lawyer
who's also representing someone.
That might... I would agree with the Court,
that could present an actual conflict
that has to be resolved.
-: Stands right now under our case law,
putting aside that there was no 221 filing,
the single Justice in this context
doesn't have to find there are extraordinary circumstances
that require our general superintendents
because we keep on talking to all the different ways
you have to get to,
to get to the situation where yes, maybe it would be.
That would be an interesting case.
-: It would be, but we are not there.
And in terms of the need to do it,
as I'm sure the Court has already realized,
the motion was filed in August of 2020.
The Commonwealth didn't realize that it needed
to raise this issue until the eve of the hearing in 2022.
Sorry, 2021. I apologize.
Which is concerning.
In other words, the issue was raised back in 2020.
Mr. Barros did a colloquy with the court.
Waivers were filed.
The Commonwealth made no objection to that waiver.
No objection to that process.
They didn't say this wasn't enough.
They didn't say we needed to do more.
They didn't say anything else needed to happen.
They were, it was done.
And then on the eve of the hearing, they now start raising,
"Oh no, this is an important crucial issue
we need to discuss."
Which is unfair because there isn't an actual conflict
as Judge Sullivan questioned the Commonwealth.
Is there evidence that that Barros is literally the person
who committed the murder?
Does the Commonwealth have some evidence of that fact?
And the Commonwealth conceded, there is none.
So raising a third-party culprit
is not the same thing as saying, or proving,
the third-party did it.
We're looking at only the evidence
the trial counsel had at the time,
and asking, "Did he perform his duty
to explore the third-party culprit, excuse me,
and present that to the court?"
And the answer that we are arguing is that he did not.
There's significantly more evidence
about other errors in the trial,
but that certainly is one part of it.
But we are not, that is not an issue
that is ripe at this point
to have stopped the process for two years,
not started the hearing,
and have Mr. Monteiro in jail for two years
waiting for his hearing.
That is not what we are here, presumably, to do.
And a further concern of that
is where is the limits of the Commonwealth's ability
to disqualify counsel?
Certainly it makes, on some level, it is arguably ethical
and a pursuit of the government, of the Commonwealth,
to ensure the defendant has a fair right to counsel.
They raise the issue with Judge Sullivan.
He examines it, he denies it.
That seems reasonable.
But then to continue to do what they've done here,
stop the trial, seek stays, go to the single Justice,
when the single Justice denies the stay,
not doing the proper course to appeal his decision,
but rather going around him to file an emergency motion
to stay before this court
in order to get the stay
that they couldn't get from the single Justice,
that's not making sure
that lawyers are self-policing properly.
That's not a fair use, from our perspective,
of the Commonwealth's interest in this case.
It's interest was decided
when Judge Sullivan said there was no conflict
There was nothing else for them to worry about doing
especially since, as Your Honors have all noted,
nothing else happened to demonstrate an actual conflict.
And so it seems that the Commonwealth's interest
beyond that point is simply to stop the trial,
simply to stop the motion.
To not go forward on it, to not conduct a hearing,
a hearing that would involve police officers,
prosecutors from that office,
as well as defense, former defense counsel
who they have taken extraordinary efforts
to get back into the Commonwealth
since he doesn't live here anymore
in order to do the hearing.
That continuously has been delayed
because of the Commonwealth.
Even after this court denied the stay,
the Commonwealth picked a date.
That prosecutor resigned from the office.
It was assigned to the head of the murder unit.
On the scheduled hearing date,
they reassigned it to someone else who joined the office,
and has been rescheduled again.
So that's why it's not being heard until July.
More delays because the Commonwealth keeps changing
who they want.
And I appreciate when people leave the office
that that's a fair reason.
But it's been changed twice since then.
And so from our perspective Your Honors,
there is no current present conflict
that warrants this Court's involvement in the case.
And it's certainly any potential conflict is waivable,
and has properly been waived.
For all these reasons,
we ask the court to affirm
the decision of the single justice.