-: S JC 1 3 312.
Commonwealth V. Timothy Duguay.
-: [Chief Justice Budd] All right.
Attorney Nam Krane, you're ready.
-: Morning, Chief Justice Budd.
May I please the court?
Michael Nam Krane for Mr. Duguay.
I'd first like to address the state of the blood
evidence at trial in 1997.
In over two pages of argument,
the Commonwealth sold to the jury,
the significance of ortho-tolidine testing.
I refer the court to volume seven, pages 46 through 48.
At least 12 times the Commonwealth said,
that the ortho-tolidine testing was positive.
In summation, the Commonwealth argued,
and that ortho-tolidine test,
with everything else is very important to this case.
And it tells you what happened in this case.
And that's page 48 of the same volume.
-: Well, Counsel though, don't you think your client
told everybody what happened,
when he spoke to the police?
When he spoke to the neighbor,
when he made the threat the day before to his,
I forget who it was.
When he said, he was gonna kill this, this person.
I mean, he basically told everybody what was happening.
-: I, disagree, Your Honor.
What I think, we have to think about is the effect
of forensic evidence,
on a jury's consideration
of the other evidence.
The Amicus talks about this idea of cognitive bias,
that's created by forensic evidence.
Where the jury will then
look at the rest of the evidence,
and the context of that forensic evidence,
and have a confirmation bias about it.
So this was a case,
otherwise circumstantial case,
where Duguay,
you know, he made statements about wanting to kill Madera,
right?
Justice Cypher: Hm hm.
-: Well, I want you just think about the fact,
that the jury was given a set of verdict options,
five verdict options.
And two of those, had to deal with murder one.
One of them was extreme atrocity and cruelty.
One of them was premeditation.
Now premeditation is the one where it's about the plan.
Right? And the circumstantial evidence,
a lot of it was supposedly Madera's, I mean,
Mr. Duguay's plan to kill the victim.
The jury rejected that.
They could have found both premeditation,
and extreme atrocity and cruelty.
But they rejected the premeditation,
they rejected the fact that he had a plan.
They also, the judge also rejected...
-: I'm struggling to see why the significance of that,
because that would've been consistent, at least in,
in terms of the facts that were presented. Right?
That, it wasn't planned out,
considering the things that happened,
in the hours and the days,
it seemed like it was a fluid thing.
Including the phone call
to his mother a few minutes,
allegedly before the murder.
-: Well, no, that's a good point.
I mean, the phone call was really about him...
And that's a great point,
the phone call is important for many reasons.
Number one, the phone call tells us that his intention
really was, that he wanted to reveal the fact
that he was having sex with this younger person.
And so,
he revealed that and he felt guilty
about that behavior.
And that's when he was arrested, you know,
he said, well, what did you do?
And he said, well, if I told you,
I would go to jail for life, he's not talking about murder.
He's talking about statutory rape.
Okay, and he makes that phone call at 7:36.
It's a two minute phone call, that ends at 7:38.
And before that, we know from the evidence,
that Madera tells two of his friends,
that at 7:30 he's with somebody, or a little bit after 7:30,
he's with somebody. That's not the Duguay,
because Duguay is at home at 7:36 making a phone call.
So is he at Madera's house,
goes home, makes a phone call,
comes back out and is there at 8:00,
walking around for ...see,
but all this, this whole, that phone call brings out
just how impossible it is for Mr.Duguay to be the murderer.
And...
-: I wasn't bringing it up for that point,
but if I could go back to the blood evidence,
if you wouldn't mind.
-: [Micheal Nom-Krane] Sure, sure.
-: So the things that you pointed to in the record,
none of that was not true for the Commonwealth.
The Commonwealth argued the screen results,
they made the argument based on what was in evidence.
And I mentioned that, because isn't there a counter,
now, screen, that the defense would like to rely on and say,
it's not positive for screening of blood evidence?
Right?
-: Well, we have two, we have the phenolphthalien,
which is the screening test.
It says everything that they tested is not, no blood on it.
But we also have the DNA testing,
just like you have in Cowells and Sullivan,
where they said there was blood, you know,
decades later they re-screen it with DNA testing.
And there's not only no blood,
because there was pre-screening in those type cases,
at least in Sullivan, but there's no DNA.
And in fact, the victim is excluded from several areas,
where there was supposed to have been his DNA on it.
-: So wouldn't you be doing the same thing?
Wouldn't you be arguing the other inference,
from your screening evidence,
that you're saying the Commonwealth is wrong
to have done in the trial?
Wouldn't you, be jumping up and down saying,
we did a screening test...
-: [Micheal Nam-Krane] Well.
-: ...and there's no blood? There's no blood.
Wouldn't you be doing that?
-: Well, no. Well, I mean, how would it play out before,
I guess, you know, as you know from the case law,
we need to look at how this would play out now,
if we retry today.
Justice Georges: Sure.
-: And today, none of that, none of those,
none of that blood would come in at all.
None of those clothing,
they'd all be excluded, because they're irrelevant.
They got, there's no blood and there's no DNA.
So it would be the case, the circumstantial case would,
would let...
-: What evidence would remain if you excluded that?
-: There would be, and it is important to think about,
you know, if you think about, you know,
Kevin Reddington was a trial attorney below.
Eminently experienced,
he's trying to deal with this blood evidence.
You know, he's battling uphill, because he's got,
he's battling against this orthotolidine.
But it would much, think about how much easier
it would've been to argue this case
if all he was talking about,
with all that circumstantial evidence. He had explanations.
-: Why don't you tell me what
that circumstantial evidence is,
so we can assess how easy it might be to argue or not.
-: Well, his statements about wanting to kill Madera,
if you look at Kevin's, Kevin Reddington,
Mr. Redding's argument, he talks about how that's really,
you know, sort of ridiculous, because,
you know, he had no real intention to kill him.
-: Okay so, but so that's one thing, right?
-: [Micheal Nom Krane] That's one thing, right.
-: What's the second thing?
-: The confession to his mother,
that's about illicit sex, not murder. Okay.
-: Because why, but why isn't that advocate's gloss?
I mean it doesn't, I mean that's the,
that's in the light most favorable to the defendant.
But, the jury doesn't have to buy that.
-: Well, the jury doesn't have to buy anything, it can...
-: Right, but I'm saying, but you're presenting it like,
how much easier would it be,
without the blood evidence,
-: [Micheal Nom Krane] Right.
-: to argue this circumstantial case for an acquittal,
it's not that easy at all actually,
because if they don't buy the argument that, again,
looking at this in the light
most favorable to the defendant, that you know,
all of these different things in the days, in the hours,
four days before the issue with the default with,
with the judgment and saying,
I'd rather not have you pay it,
I'd rather you stay with me.
Not doing that, two days before the murder,
the calls I want to kill him.
Why, why would the jury have to look at it
the way that you're saying,
to conclude that it would be a much easier plight
for the defendant?
-: Well, I would, I'd ask, your Honor,
not to look at it as what the jury would think,
because we don't want to, we're not trying to,
we're not, we shouldn't be reweighing the evidence,
here and now for the jury.
What this court is tasked with doing is,
where subsequently discredit evidence likely did function
as a real factor, that is the ortho-tolidine evidence.
The court may not then assess, whether the jury would still
have reached the same conclusion.
The blood evidence is certainly a real,
was a real factor to the jury because,
and we know that because, and we have to,
we assume that, number one,
because of how the Commonwealth presented,
the Commonwealth knew its case, it's knew its case.
One of the pieces of the puzzle,
and it presented its case as a puzzle.
It said put, but it all, and I'm looking at,
this is volume seven, page 29, but all together,
think of it as a puzzle altogether.
When you put it all together,
the Commonwealth has proven beyond a reasonable doubt.
And one of the explicit pieces of that puzzle,
and I'm looking at volume 7, 51, lines eight through nine,
is the orthotolidine testing.
Justice Georges: Which
-: So they're presenting the case as a puzzle, was it?
-: They are, but I'm looking at this in the lens of,
whether or not Judge Sullivan abused his discretion.
And in saying that,
there wasn't any confirmatory evidence at trial.
And the Commonwealth never argued that.
And that's what we've specifically said,
the first time this came on appeal,
and Attorney Reddington did everything that he could to say,
there's no evidence that it's the defendant's blood.
So it wasn't as if the jury was misled by this,
that somehow this blood came from Mr. Duguay.
Now if you now then,
come forward to the motion for new trial.
You argue and say,
I now have evidence of another screening test,
that shows it's negative for blood.
And so now at best, the question is,
whether or not Judge Sullivan abused his discretion,
in saying that wouldn't have been a real factor,
because both would've gone to the jury.
And the jury was able to freely make a decision,
one way or the other.
Explain that part for me.
-: Well, I disagree with your premise, your Honor.
Justice Sullivan definitely abused his discretion,
because he's looked at the wrong standard of review.
Again, his standard of analysis
was plainly rejected by this court,
in Cowells at 623 where, and I just had quoted it,
where we have evidence as subsequently discredited,
and as likely was a real factor.
You may not then assess, whether the jury would still have
reached the same conclusion. You're basically...
-: But Cowells wasn't the same case, wasn't Cowells,
there was confirmatory testing done on that towel.
-: I know it was done in Sullivan. I can't tell it was...
-: Cowells was the bloody towel case. Right?
-: Exactly, right.
-: Right, there was confirmatory testing done in that,
that definitively said one way or the other,
that it did not come from the defendant or the victim.
Right?
-: [Micheal Nom Krane] Right. But he still, it was still,
but that's a non exclusion.
-: That's a big difference from here.
There's no confirmatory testing done here.
-: I disagree your Honor, because that's a non-exclusion.
And you have in cases, I believe in the Cameron case,
when you have non exclusion,
that the jury's perfectly able to take that as an inclusion.
They can credit that as being blood,
or whatever it is that, you know,
the Commonwealth wanted to believe.
And the Commonwealth desperately wanted them to believe,
that this was blood in this case.
And you know, they sold Bunnell as this reliable witness.
They said, well, she's just doing her job.
I'm looking at volume 7, page 46, lines 11 through 17.
She's just doing her job. She's just given, you know,
the evidence, you know, like she's just this neutral party,
but on her to redirect, you know,
she's defending what she did.
She's saying, I do this test daily,
I've done it thousands and thousands of times.
And this is remarkable, she says,
I can tell false positive tests from you know,
from negative, but just by looking at it.
Then why even, why do we even have confirmatory testing,
if this person can tell just by looking at it,
a false positive?
-: I think...
-: Can I ask...
-: I think what we're ...
-: Go ahead, please.
-: Can I ask you to go back to Justice Cypher's question,
because I think it's important for at least me to hear,
what your answer is. What other evidence was there?
You started saying the statement,
that he wanted to kill the victim,
the confession to the victim's mother.
What other evidence was there,
if we exclude the blood evidence?
-: Well, I mean before,
if you're asking what other
circumstantial evidence there was?
-: Yes.
-: Yeah. So there's, you know,
the statement to his mother, that he's having.
-: Yeah. So I have that.
-: Right.
-: So there's a statement to his mom.
He wants to kill the victim. What else is there?
-: His statements to people that he wants to kill.
He's angry at the victim.
You know, he wants to kill him in this hyperbolic way.
-: He tells the police,
he's going to go to jail for the rest of his life.
-: Right.
-: Cause he tells him what happened.
-: Exactly. Cause he committed statutory rape for five years.
-: Yeah, but that's not a life felony.
-: Well it actually under 2 65, 22 and 22a,
in some theories it is life.
-: Okay? So there's a statement of life
and then what else is there?
-: And then there is the fact that he lives next door.
You know, he lives a thousand feet away, you know,
as crow flies from the victim's house
and you know, and this idea that, you know.
-: Isn't there some kind of identification to there,
there see somebody leaving, right?
Justice Georges: The EMT.
-: Yeah. So there's an ambulance driver, Ms. Lad,
she says at 8:00 she sees a person with dark
clothing walking down the street,
ignoring the screams.
And this court, in his court,
in his original decision, notes...
Justice Kafker: And he's found with dark clothes.
-: And he's found with dark clothes.
And that's, and how, and so that blood,
colors that whole scenario,
it smears the whole scenario in a lens of blood,
because the...
-: The thing that was all the circumstantial evidence
there was?
-: That's the circumstance, well,
that's the circumstantial evidence. Yes.
-: There's something else.
-: Well, what about the denials to the police
about the relationship ,until they come back and say,
hey, we listened to this voicemail.
-: Well, I know that, I understand what you're saying,
your Honor, but though,
when presented with that sort of evidence,
the judge rejected a consciousness of guilt instruction.
So I didn't think he, the trial attorney,
trial judge didn't give that much weight.
But yes, there are items like that, that exist.
There are parts of this puzzle, right?
But the Commonwealth sells that puzzle
with the ortho-tolidine,
and it says that all together, this is our case,
not separate, all together.
And if you believe this all together,
then you have to convict him.
-: But that's a closing argument in the Commonwealth's case.
-: That's a closing argument.
-: And not just this case,
that's what you do in a closing argument for the
Commonwealth.
-: Right.
-: We're trying, hold on.
-: Yes sir.
-: So what we're trying to figure out, is whether or not,
this would've been a real factor,
that's really, what we're getting at from Cowells.
-: [Micheal Nam-Krane] Right.
-: Whether it would've been a real factor.
And the point of all these questions is,
when you marshal all the other evidence,
would this be a real factor,
if you had questions about the blood,
that the jury didn't know though.
-: It definitely would be a real factor.
Again, as this court has noted,
and I think, as you had noted your Honor,
and other all arguments,
the jurors are looking for corroboration.
So we have a set of circumstantial evidence, right,
that Mr. Reddington explains away one way or the other,
then so that the jury is looking for corroboration.
Is this, did it really happen?
And that's the orthotolidine, the orthotolidine makes it,
that's the corroboration.
They are able to believe that he was
in the bloody room, with the victim killing him,
because of the blood.
That's the corroboration. That's, you know,
and then Amicus explains how,
like the juries are looking for that.
They're looking to give decisive weight
to that kind of evidence.
And so that's why it's a real factor.
It's the piece, it's the essential piece of the puzzle
that brings everything else together.
-: [Chief Justice Budd] Any other questions?
-: No thanks. Thank you very much.
-: Thank you.
-: Okay, Attorney Hantson.
-: Thank you. Good morning.
Arne Hantson for the Commonwealth.
This is not a case that was predicated,
the conviction was not predicated on forensic evidence.
It was predicated on circumstantial evidence.
-: But you know, you say that, but then in closing argument,
the prosecutor seemed to make much
of the blood evidence.
-: Yes, I understand that, the proprietariness of her closing
argument was previously evaluated by this court,
which stated that they were reasonable.
-: But it it's not that it's improper,
it's just that the prosecutor did make much of the blood
evidence as, as your opposing counsel is saying,
it's tying all the pieces together.
I'm wondering what your response is.
-: With respect to the actual state of the evidence, yes,
the prosecutor made references in closing to the report,
-: But weren't those important references or,
or how were they not important? Let me know that.
-: With respect to the evidence in its entirety,
it's an unusual case where it's a stabbing,
with 21 stab wounds. There's blood all over the crime scene.
There's no fingerprints anywhere,
there's no DNA recovered from the knife,
other than the victim's DNA.
-: Right. So it sounds like,
you're making the argument for your apposing counsel that,
in fact this evidence of blood on the jacket,
and the jeans, and the sneakers was important,
because otherwise, there's no physical evidence
tying the defendant to the scene.
Is that what you're saying?
-: That Yes.
-: [Justice Wendlandt] Okay.
-: With respect...
-: How doesn't that meet the standard for a new trial?
-: With respect to the remainder of the physical evidence,
as well as the purported newly available evidence,
which really doesn't change the landscape
for what was presented at trial.
-: But that's where I have some problems.
I have the same concerns that Justice Wendlandt has,
because it's such a bloody crime and
we've got no blood without this.
You know, it just sort of changes the whole case
in certain ways, doesn't it?
-: [Attorney Hanston] I don't believe so.
-: I mean your briefs, I get it.
There's a lot, it's hard to imagine someone else did this.
I get it. He's angry at him, he's threatening him that day.
The statement about I'm gonna do life,
sounds more like murder than rape.
But at the same time, you've got this bloody crime,
incredibly bloody crime.
The first trial was all that is resolved with this is,
he's covered in blood, you know, through the,
and now all that goes away. So it's like,
it seems like it's a different case the second time around.
-: I would say that the evidence hasn't changed,
because on cross-examination...
-: Of course it has,
because the jury is comforted in the first time,
with all the blood, isn't it?
Because the blood, someone's stabbed 21 times,
there's no fingerprints, there's no blood.
But this, whatever this test is, is suggested to be blood.
So the jury doesn't have that confusion anymore.
Now all that goes away. So when all that goes away,
is it likely a real factor?
That's the question we have to ask. Right?
-: I would say that the state of the evidence hasn't changed
since trial, because the chemist on cross examination,
with attorney Reddington,
admitted that there was no blood found.
Justice Kafker: I thought,
is that what she admitted or that there was...
-: That is correct.
So she stated, that it was a presumptive test only,
and that it tested positive for vegetation
and any number of other substances.
And Attorney Reddington and I quote it.
-: And what is the brief,
what does the commonwealth's closing say about that?
What's the closing, the closing doesn't do that.
Closing doesn't say that.
It says the opposite, right?
That it's blood. Right.
I mean...
-: That is a fair assessment.
That's a fair interpretation of the closing argument. Yes.
-: Okay so, it's a possibility that it's all blood.
And what about the comment about false positives,
that your brother brought up?
Was that, what's your comment about that?
-: That was again, raised before the jury.
That it's a presumptive test that it raises for,
that raises false positives with her.
-: What, do you mean by, what does that mean?
A presumptive test?
Does it mean it's presumed to be blood?
Is that what the statement suggests?
-: It's a first step analysis
-: [Justice Wendlandt] Right.
-: Where you swab the hands
and it comes up as potentially blood,
but without further analysis,
there's no way of actually determining,
whether or not it's blood or vegetation or...
-: The presumptive is a misnomer in that context.
-: Yes.
Justice Cypher: What, can you talk about
the hair on the knife?
-: Yes. So initially the hair on the knife was tested,
or at trial the evidence for the hair on the knife,
was that it was compared by the chemist.
She stated that it was dissimilar to the defendants
and the victims and that's what the jury
had in front of them.
That the hair belonged to someone,
that wasn't the victim or the defendant.
The defendant then had the hair tested several times,
during the process for this motion for new trial.
The first time, they used one DNA test that compared it to
the defendant's DNA sample, as well as the victim's reported
uncle, the Robert Gomes.
And that test came back to matching neither of them.
Then, the hair was retested this past fall,
as I stated, in my motion to expand the record.
In July, we paused proceedings here,
so that the test could come back,
that test could come back.
And then I received a report on January 20th,
stating that the hair on the knife belonged to the victim.
And that was the information
that I received directly from...
Justice Kafker: And the knife was found where?
-: At the murder scene.
-: So it's not found at the defendant's house,
it's found at the murder scene. Correct.
What what does that add to,
it shows that the knife is the murder weapon,
but it doesn't show who did it. Right?
-: Correct. The defendant claimed that,
because initially as he presumed that the knife,
or the hair on the knife,
didn't belong to either the defendant or the victim,
that it must have been a third,
an unknown third party culprit.
The most recent tests completely dissolve that claim,
where the only thing that's found on the knife is...
-: If you back, because I'm, what bothers me is, okay,
so he lives very close.
-: [Attorney Hanston] Correct.
-: They come to his house,
within like 25 minutes of the murder. Right?
-: I believe the victim was found around 7:50.
And at 8:20 they arrived at the defendant's house.
-: Okay. So they arrived that quickly.
But again, there's no blood anywhere.
They get a search warrant for his house right away too?
I can't remember.
-: I'm not sure what the timeline was,
but yes, they did search the house
and they don't find any blood in his house.
-: So again, help me and I,
because your brief doesn't help me
and I want you to help me.
So help me explain again,
the blood is provided in the first trial,
in this kind of cute way.
I'm not saying it was,
it's done properly at the time, but now that is undermine.
And how does the jury,
how does that not make a difference,
given there's no blood at his house?
There's no blood in these clothes.
Tell me how that just doesn't matter,
because that's where I'm having trouble.
And your brief doesn't help me,
because it just tells me
about all the other circumstantial evidence.
-: May I interject something on the back end
of justice Kafker's point,
I thought there was an orthotolidine testing in the house,
that did come back positive in some places?
A sink, light switch? Am I wrong about that?
-: That does sound correct from memory,
but I'd have to refer back to the transcripts.
-: Is there some blood in the house?
I mean, just because again, his view is,
he's pleading guilty to old child rapes.
I don't know what he's,
that I don't find that very convincing.
But I find the disappearance and absence of blood,
important unless you can help me out.
Cause there's no, again, 21 stab wounds, right?
Person's gotta be covered in blood,
or there's gotta be blood somewhere.
At trial the prosecutor should says,
these clothes indicate there's blood on the clothes,
essentially in closing. Right?
-: [Attorney Hanston] Correct.
-: Now in your brief this time you say,
well he changed his, you suggest he changed his clothes.
-: I understand, that's one possibility
and that is speculative.
-: We don't, they search his house, right?
There's no clothes, there's no bloody clothes.
He doesn't have time to wash up. Right?
There's no blood anywhere in the house either.
I just, again, help me out the...
-: There's blood in the victim's house though.
-: Correct.
-: I get it. There's plenty of blood in the victim's house,
but there's nothing, there's no blood,
there's no bloody clothing, nothing right, at his house?
-: No, with respect...
-: Why is that not likely to matter?
And I'm, it's not rhetorical,
I just want you to help me out.
Why, it's not likely to matter?
-: Because the defendant was convicted,
based on circumstantial evidence,
based on his own statements prior to the fact,
their long-standing relationship where, you know,
he started raping the victim,
when the victim was 12 years old.
And that transpired over the course of five years.
That individual became 17 and then said,
I don't want to do this anymore,
and started distancing himself from the defendant.
-: Is this a situation where the, is it Bunnell,
B U N N E L L,
but her testimony on the ortho blood sampling,
would that evidence be excluded?
As your opposing counsel says,
or would it just be served up
alongside the new DNA evidence?
-: I believe it would just be served up, but it doesn't.
-: [Justice Wendlandt] Why?
You know, what is the legal standard?
I know you take that position,
your opposing counsel takes the opposite position,
but why is this presumptive test, as you called it,
even admissible?
If it's only a screening test and we have definitive DNA,
saying there is either no blood,
or it doesn't belong to the defendant.
Why would it even come in?
-: So I would disagree with your Honor's assessment of...
-: I'm not assessing it. Just tell me the argument.
-: Again. It would be impeachment evidence.
So the newly discovered evidence.
-: But nobody's saying Bunnell is lying,
it's just this is what the test shows,
and it turns out the test is balogna,
because it's just presumptive. Right?
And now, we've got more definitive science,
saying it's not blood.
-: That's correct. I would also,
well, I would point out, one that the phenolphthalein test.
-: That's why I avoided saying it.
(laughing)
-: Also a presumptive test.
Justice Kafker: Right.
-: Okay. It's two presumptive tests against each other,
so they both come in.
and it'd be sort of like up to the jury to decide.
-: Right, correct.
-: Which is the better science.
-: Now with respect to the DNA evidence.
So the, Bodie also tested the jacket for DNA,
and found 24 partial DNA profiles.
Out of those 24, they exclude the victim from four of them.
That's because the defendant's DNA on the jacket,
the other 20 are inconclusive.
Now when it's inconclusive, and as I cite in my brief,
it's Commonwealth V. Matthews,
you can't exclude or include anyone.
So it's still possible,
that the victim's blood is on those clothes,
but we just can't come to that conclusion.
-: Is it blood on that?
Is that DNA from blood or is it DNA in general,
that's inconclusive.
-: From like rolling around in the plants, vegetation.
-: They tested for DNA.
So I can't say that it was blood on it.
-: They know each other and they were intimate
two days earlier, right? I mean they, is that right?
I mean, so it's not,
the fact that his DNA is on the guy's coat,
may not mean anything. Right.
-: That's a fair assessment.
-: So given all that, so you're just saying it's, you know,
rely on the circumstantial evidence
and therefore it doesn't, the blood evidence is kind of,
doesn't, is not a substantial factor.
-: Yes, and I would also argue,
that the state of the blood evidence
hasn't changed since the trial.
The new DNA tests don't exclude or include the victim
from the DNA found on the defendant's clothes,
that he was wearing.
The hair found on the knife is shown
to be the victim's hair,
which makes this argument of an unknown third party culprit,
even less likely, because there's no evidence.
-: I guess, I'm confused by that.
If the knife is found at the house,
is it his knife? Or is it just somebody's knife?
-: I believe there were kitchen knives,
from the victim's home.
-: Right. So how does that connect,
how does that show us that the defendant is the stabber?
It's the victim's hair on the knife, not the defendant's.
It's not the defendant's DNA on that knife.
It's the victim's knife. I just don't get how that helps.
-: It only discourages,
or it only dilutes the defendant's claim,
that there was another individual
that was responsible and that was never followed.
-: Why? Why couldn't the other individual come in,
use the knife, kill him and run?
-: Well, he could, couldn't he?
But the argument at the original trial was that,
that hair is not belonging to the defendant or the victim,
therefore it must be a third person.
-: Correct.
Justice Kafker: Oh, I gotcha.
-: So the real issue that the defendant is raising,
you don't have to show,
necessarily that the verdict would've been different,
but whether or not this evidence was a substantial factor.
And the last point that the appellant made,
was that there's a certain comfort with the jury
when they have a view of the evidence
and then they have corroboration, that's what juries want.
They want corroboration.
It's a tough job.
And proof beyond a reasonable doubt,
is and should be a very high standard.
And his point is, that if you look at the case
and you look at the closing,
that the jury being able to go into the jury room
and sort of have that comfort,
that there's also forensic evidence,
means that it was a real factor in the deliberations.
Why isn't that right?
-: Because the chemist was properly examined
on cross-examination and essentially testified,
by the end of her testimony,
that there was no blood on the defendant's clothes.
-: I'm confused, is that what she said?
Or she couldn't conclusively say,
it's blood versus something else?
-: She initially, she outlined the limits
of the test that she did.
And that's what she said there, that there was,
it could test positive for any number of things.
-: It could be blood, it could be something else.
And then the prosecutor at closing says
it's blood, or it's reasonable to conclude,
that it's blood. Right?
It's.
-: Turn, it's, oh, excuse me.
Justice Kafker: Yeah, go ahead.
-: Attorney Reddington specifically asked her,
do you mean to leave this jury with the conclusion,
that there was blood on this individual's clothes,
and she said no. So that was specifically addressed.
So the evidence at trial, as it was properly explored,
was that there was no blood.
-: We're not suggesting,
that there's anything wrong with the way
the prosecutor did it at trial.
It's just now, that we have the benefit of hindsight
in this new test, it's different,
because we know it's not blood.
The prosecutor couldn't have argued at the time, right?
That this is,
that closing would've been wrong,
if we had this DNA test now. Right?
We couldn't say that.
-: I, so the test, there was a test for DNA,
which tests for DNA and it doesn't test for blood.
And then there was a presumptive, the full,
the phenolphthalein test is also a presumptive test.
So it's in the exact same state as it was at trial.
It's just a different test that was done by the defendant.
There was never been any confirmatory tests,
done on any of the materials found,
on any of the clothes found that states, this is not blood.
-: Okay. Again, and it may be my own ignorance.
So knowing what we know now,
from this DNA test about the clothing,
is it still possible to argue,
that there's blood on that clothing
and that that blood belongs to the victim?
-: No.
-: We can't do that. Correct.
-: [Attorney Hanston] Correct.
-: Okay.
-: What about, was that evidence newly available,
newly discovered, newly available testing.
-: With respect to the DNA or the other...
-: With respect to the phenolphthalein testing.
-: That was available prior to the trial.
I think, that's the V. Benedetto case.
And I cite that in my brief.