-: That's JC 1, 3, 3, 2, 3.
Commonwealth vs. Shamia Whitfield.
-: Hey, Attorney Sherman, whenever you're ready.
-: Good morning.
And may I please the court, Katherine Sherman on behalf
of the Commonwealth, asking this court to vacate the judges
discovery order and remand this case for further proceedings
in front of any judges of the Boston
Municipal Court.
-: How is this a disclosure
of the informants identity?
-: The volume of disclosure of information being
disclosed here is tantamount to disclosure.
Justice Gaziano: It's, it's promises, rewards,
and inducements, correct?
-: That was the title of the defendant's motion.
However, in the body of it, and I can get the exact language
it's basically asking for the CI's entire history
with the Boston Police Department and any other agency
every time they've interacted, every time they've
had contact, every time the BPD has received a tip
it basically creates a web of information
that would be tantamount to disclosing
the CI's identity.
-: All our cases are identity cases, correct?
There are no tantamount to identity cases.
-: Well, Emerald uses the language tantamount
and additionally.
-: Because as I look at it
then you'd be under Rule 14 material
and relevant standards as opposed to informing privilege.
Correct?
-: No, I believe it would still fall under the privilege.
So in
-: If we don't find it to be identity
then it's a Rule 14 material and relevant standard.
Correct?
-: Yes. If you consider the volume of information not
to be tantamount to revealing the identity, and if I may
looking at what was ordered and what was requested
in the defendant's motion, I would argue that this is
a situation where the whole reveals more than the sum
of the parts.
If this is a person who's been in this defendant's home
as we believe they are, because the affidavit is
considered to be truthful and reliable, the volume
of information that would be given to the defendant would be
an amount of information from which they may be able
to discern the identity.
Justice Gaziano: So we have vague references,
of course, to personal knowledge.
When and where, or when rather.
Are you saying that the records would say something
like they were there on June 13th, they were there on and
and the defendant could say
I know who was there on June 13th and June 14th
-: [Attorney Sherman] And then if I may,
I'll grab the exact language of what was ordered.
Because the judge did allow the motion in full.
So though it would not,
though it would not
Force the commonwealth to reveal the days
upon which they were in the defendant's home in this case.
It would reveal
other information that I believe the
identity could be discerned from that,
such as the names of all of the other cases
they were involved in and
a history which would include a timeline
of their involvement with the Boston Police Department.
And though the references to time
for this particular defendant are vague, it is
I believe three occasions within the last 30 days.
So that is already a rather tight timeline.
And it's three occasions in the last 30 days
during which the
CI saw
the firearm saw
live rounds being ejected from them
so it is narrowed
Justice Gaziano: Who'd agreed that our
analysis goes on two very disparate paths.
If it's an informative privilege case
or Rule 14 case, correct?
-: It would
-: One, you have the burden, the other one you don't.
-: That would be true though
though, I would
Justice Gaziano: I mean
because obviously the judge has great discretion to
determine what is material and relevant in a Rule 14
as opposed to reliance
on the informant privilege, correct?
-: That is true though,
when it comes to
revealing this amount
of information it's not a circumstance
where they're being asked.
Justice Gaziano: I don't wanna get sidetracked.
I've got all the information I need, but
-: [Attorney Sherman] Sure.
-: I don't wanna sidetrack your, your argument.
-: [Attorney Sherman] Okay.
-: On, on these two paths.
-: I just, I would argue
that since tantamount is recognized in Ameral
and I know it's an appeals court case,
but in John.
If this is not tantamount
I can't imagine what is.
It's asking for discovery
far beyond Rule 14,
far beyond Rule 17.
It's asking for discovery from federal agencies.
It's asking for a complete history
of this person's interaction with law enforcement.
And if that isn't a direct threat to their safety
I can't imagine what is.
This, the record in this case?
-: [Justice Wendlandt] Well, their name.
-: [Attorney Sherman] Their name, yes.
That would be the most direct.
Yes, it would be.
-: So one can imagine.
-: [Attorney Sherman] But in the world where we're
talking about tantamount to
revealing the identity.
Short of a name, I think this is
it's presenting essentially the mosaic theory of identity.
It's asking for all that they have been doing
with law enforcement
and how to connect those dots to narrow it
down to one person.
-: [Justice Wendlandt] So could that be cured
I guess by a protective order in any way?
-: No, so
-: [Justice Wendlandt] Why not?
-: A protective order is the absolute last step of
of discovery.
The last step being discovery is properly ordered
all privileges are vetted, and
the protective order
then narrows what is given to
defendant or defense.
In this case,
where there isn't any articulated purpose
to this discovery to a pre-trial defense
to a trial defense, there is no basis on which to
judge what ought to be
the subject of the protective order or not.
And the defendant's brief
makes much of the fact that defense counsel
below was urging a protective order
that discovery ought to be provided subject
to protective order,
but master rule of criminal procedure 14 itself
says that the existence of a protective order
or the protective order as a mechanism in no way
reduces the burden of proof with regard to the discovery
including those that are subject to privileges.
If a protective order can be the first step
in assessing whether or not
discovery ought to be granted
then every privilege would be eviscerated,
not just CI but you'd imagine psychotherapists.
We wouldn't be going through (indistinct)
there wouldn't be any protocols for that anymore.
It would just be, well, we'll disclose all
of these psychological records
subject to a protective order
and that would be,
it would get rid of the privileges.
If that were the lens through
which a protective order were considered
the solution in these situations.
Here
in the,
the long history of this case.
In terms of the motions to reconsider
the judge's evaluation of the case
never in the transcripts, in the filings, did
the defendant articulate a pretrial motion to
which this discovery would be relevant
or a trial defense.
There were no facts presented
in defense counsel's affidavit.
All that was suggested is
that the information is necessary to prepare for trial.
And the motion judge, in this case,
took that conclusory statement and
extrapolated from it
a confusing legal standard
for which she found the discovery ought to be provided.
That said, none of what she was basing her decision
on is rooted in the law of this court or
any other courts of the commonwealth.
There was no basis this order must be vacated.
If it's not, it's essentially
doing away with the CI privilege.
If the court has no further questions,
I will rest on my brief.
-: [Chief Justice Budd] Okay. Thank you.
-: [Attorney Sherman] Thank you.
-: [Chief Justice Budd] Attorney Locke.
I'm sorry, Attorney Warren. Apologize.
-: Good morning, chief Justice and may please the court
John Warren, on behalf of Shamia Whitfield,
we are asking
that this court affirmed the motion judgers,
um motion judges,
allowance of the discovery order in this case.
First, I would suggest that this is not a disclosure case.
Ms. Whitfield never requested the identity of the informant.
The judge never ordered it and the judge made a finding
that her order would not otherwise reveal it.
Justice Gaziano: I think, well we, we, we
we have these two paths and, and well,
we're gonna decide
and I think
I'm more interested say we, we think it is.
Cause I think if it isn't a a
an order and you get to rule 14, you've got a good argument
because of the discretion to the judge.
Say we, we think it is tantamount, right?
I think it's a harder case for you.
How do you get to where you want to be?
Where defendant writes,
I need this to prepare for trial.
Attorney Warren: So
Justice Gaziano: How does that satisfy
any type of
-: Well, I would, I would direct the court
to the discovery motion itself because the
the Commonwealth claims here
that there's no pretrial
there's no asserted pretrial motion.
That's, that's just not true on this record.
The, the discovery motion itself
says I need this to
to um.
Relevant for an Ameral challenge to the
the veracity and, and completeness
of the warrant affidavit
turning the court's attention to.
Justice Gaziano: But wouldn't that be the case
in every search warrant?
If, if, if, if alls we require is the defendant to say
because they have track record
and you've seen a thousand
of these, right?
And it all says the same thing, information like a seizure
of drugs or, or guns.
And then defendant says, well, I need this
for an Ameral hearing.
I don't, I think the, the,
the informants lying or made
up or whatever.
Then the privilege is gone,
right?
Attorney Warren: What I would suggest
is that
trial court judges should have wide
discretion to order
non-identifying
discovery regarding an informant track record.
Justice Gaziano: All right.
We're getting into that divide.
I want you to assume for the sake of this argument
or this question rather that it's identifying.
Okay?
Um, now what?
Attorney Warren: Well, I think to get to
that hurdle the judge's finding
would have to be erroneous,
right?
I mean, I, I I would
Justice Gaziano: So, so we,
so we have something
that's gonna tantamount
and it's a search warrant
with the track record that we just discussed.
And the defendant says, I don't like this.
I want to file an Ameral Franks hearing.
What's the standard?
-: So the standard should be that
judges have broad discretion where
the affiant is relying on
the asserted reliability
of an informant,
but the warrant does not include detail
or specificity as to that reliability where it's just
this person's reliable, but there's no detail
or specificity.
A judge in those circumstances should have
wide discretion to order
non identifying discovery.
Justice Gaziano: The affiant has to say
they bought drugs on such
and such occasion at such and such.
Really that's, you want them to do that specific?
-: Right. I mean, right.
I think if if they're not that specific
and they're saying this person's reliable
then then a defendant gets discovery
as to some details or specifics.
And, and so that would be the general rule.
Justice Lowy: Why isn't it,
why doesn't the defendant get
to challenge step one of Aguilar and Spinelli?
I mean, isn't that the issue?
The issue is whether or not there's veracity
in the four corners of the affidavit.
Not whether or not there's so much
discovery request under Rule 14
and Rule 17 that the
informant is known to the world.
-: Ms. Whitfield might have a separate motion
of suppressed challenge under Aguilar, Spinelli.
That might be the case.
She might have a, a strong challenge.
However, looking at that line of cases,
courts give
a good amount of
deference to
affidavits that assert
the reliability of an informant.
And so what I would suggest is it's just not
good enough to say you can go challenge the
Justice Lowy: And erase
Attorney Warren: the four corners.
Justice Lowy: a lot of cases, that's
we gotta take out big erasers to do that.
The, the, the issue is whether or not there's
enough to satisfy veracity.
If there isn't,
then the motion to suppress should
be allowed absent the corroboration that makes up for it.
But if the issue is,
oh, I don't like veracity here.
Here's my motion, let's go to my Franks hearing.
That's every case that where you don't think
veracity is satisfied.
-: So we're not saying let's go to a Franks hearing
because that's sort of the ultimate stage.
The suppression stage.
-: Let's go to Ameral to see if we go to Franks.
Attorney Warren: And we're not even saying
let's go to Ameral
we're saying just give us some discovery.
The, the defense counsel in this case
did not pursue the case
in the way that the Gandia case was pursued
which is we need the identity.
And you know, that that works out
pretty well for defense.
Justice Gaziano: Well, that's why we're
getting to the, tantamount issue.
Which I think is the
-: Well, that's the key.
That's the key.
-: I agree, yes.
-: Right. If ,Your Honor, says per
-: Then, then you don't have to deal with the
then then you don't have to deal
with the informant privilege and,
and you probably win.
-: Right. But,
but what I'm saying, right.
Exactly, your Honor, and
and what I was saying is defense could have gone
about it and said,
we need the identity.
And as we see in cases, a como says
we're not gonna give it up and
cases get dismissed that way.
Ms.Whitfield did not proceed in this case.
What she said is, we want to be able to
test the veracity because
you're saying this person is so reliable
you give the vague contours of an impressive track record.
But there's no detail, no specificity.
Justice Gaziano: It's different in this case,
than every other case though
when we have a sketchy track record.
Attorney Warren: Hmm. I mean I, I, again,
I think the general rule should be
judges should get broad discretion where it's a vague
but
vague.
Justice Georges: Counsel,
if I could go backwards.
One, it's nice to see you again,
Attorney Warren.
Attorney Warren: Good to see you, Your Honor.
-: Those cases get dumped at the
motion to suppress, right?
Because that's where the commonwealth is formed
with the Hobson's choice of either do I,
and every once in a while
they'll proceed under McCoy and, but most
often they'll dump it.
Okay. So they don't,
they don't dump it at pretrial.
But I want to go back to
this idea that there is something in just saying
the name you wanted
or attorney Kenny asked for
debriefing reports, four mates
24 94 requests for funds,
history of involvement with police
or any law enforcement agency,
list of results of all cases that
the informant has worked on.
This isn't something where we're just saying
we just don't want the name.
This is everything but the name.
And if, if, and we know how this works,
this gets turned over and you can,
you can look in and see what's been turned
over and localize who was there when
to get some idea of who we're talking about
-: That's definitely,
I would suggest not the purpose
of getting the information and
and you know, I don't,
I don't necessarily think it's
a voluminous amount of information.
It might be several reports we don't know exactly.
You know, the Commonwealth is
in the position to know exactly
what the information,
exactly what the information is.
We do have the Boston Police Department rule.
We know what they should be collecting
and maintaining under that rule
so we can get a sense of what it would look like.
But what I would suggest is
in this case is the commonwealth
they didn't make a sufficient showing
as to why this discovery would lead
to the disclosure of this informant.
All they did here was make generalized
sort of
suggestions that would apply to any informant.
Justice Georges: Okay.
-: And so there was no specific showing.
-: So if you, if you could indulge me
like Justice Gaziano,
assume for the sake of argument that
that there's tantamount language
and this is tantamount.
And then we go on to,
to look at the, the second part
I saw you sitting here, the case
before the defendant was able to articulate why
I mean, may, may not, may not carry the day
but why the identity of the CI
would have been important to the defense.
Here, there, there, there, there's no math.
What's, what's the math as to how,
how under the, the bonnet test,
are we supposed to determine whether
or not this is important to the defense where
all you're given is it's important to the defense?
-: It it wouldn't, your honor.
It, it wouldn't, I I'm,
what I'm saying is this case
rises and falls under
whether the discovery is material relevant
to an Ameral challenge.
It's, we're not, we don't want the, we don't
want the identity and,
and frankly we don't want information
that's gonna reveal the identity
and that's what Ms. Whitfield stated
in her motion.
Justice Gaziano: But it's always new material
and relevant to an Ameral.
The track record and information.
-: And I think judges should
should be given that discretion to order it.
And, but then with protective orders
Justice Georges: But then it'll be ordered in every case.
Attorney Warren: What I would suggest
-: It would be ordered in every case.
-: Why I think this case is
Well, I would suggest as a general rule
as a, I might have said
where there's a claim of reliability
but no detail or specificity to back it up,
then that's a situation where
judges should get this discretion.
Why is it really important in this case?
Because in this case,
this is not like many other warrants
we see because in this case
it's based on
a tip from a sole informant
that was uncorroborated by police
in any material way.
And what that does to the materiality in this case
is it puts a lot of pressure,
it puts a lot of weight
on the informant's reliability.
It's asking the reliability to do
a lot because this is not
like a controlled by case where
police are there supervising
and corroborating the informant's tip.
It's not like one of the cases where there's a
an armed robbery and police have probable cause
for the armed robbery.
Now they want the clothes and
the gun in the home.
The only allegation specifically,
with respect to Ms. Whitfield,
was from this informant.
And the only corroboration was that she lived there
there was no other corroboration about this tip.
And so that's why the reliability
in this case is, is so important because
Justice Lowy: That doesn't answer the
if you're in the informant category.
Attorney Warren: We lose.
-: Right because a mere tipster
is not disclosure.
-: Right? I mean there, there needs to be a way
to fashion discovery orders that don't lead
to the informants identity.
And from the very beginning of this case
that's what attorney in 2019 tried to do is say
I don't want the identity.
I don't want materials that
are gonna lead to the identity.
I'll sign a protective order.
I want materials so that I can make a challenge
or potential challenge to the veracity
and the completeness of the warrant affidavit.
And, um
And so again,
what makes this case strong is that
there's an assertion for reliability.
There's not the detail or specificity
to back it up that
the defense cited to the Boston Police Department
rules which layout exactly what the
what the BPD
generates and maintains
with respect to confidential informants.
And the judge considered that
and ordered those materials, which
which we know should exist.
And I think the alternative is that
if this court says, no
you don't get any of this,
you don't get any of this.
That police departments are incentivized
to craft affidavits
in just this way where they say this person is
extremely reliable, they have an impressive track record.
But you get none of the details
about that and none of the specifics.
And what that, what I would suggest
that does is insulates
affidavits from any Ameral Franks challenge.
And that's, that's really a problem I would suggest.
Justice Kafker: Here we have on at least
three separate occasions,
officers were directed by the informant
to a specific location in Dorchester, Roxbury.
On each of those occasions,
the informant directed officers to
investigate individuals who were
unlawful possession of firearm
each time they found was in possession.
I mean, there's some detail here.
It's not, I'm not saying it's astronomical amount
but it's not just, you know, there's
there's some specifics here.
Right?
-: There, there's, there's some information that
what I would say that suggests
this person's been used in the past.
They have a, a track record of swords
but nothing, no detail that would actually allow
for a defense to,
to make a challenge to it.
-: [Justice Wendlandt] So walk me through that,
what would be enough?
Attorney Warren: What we, what, you know
-: Like on October 10th, 2007
Attorney Warren: Right, I mean
-: Is that what you're missing?
-: I think if, if the affidavit has docket numbers
and has defendant's names and has dates
the warrant it would,
we would be in a different position.
Justice Kafker: But it's a fine line because
the more specific it is
the more likely it is to reveal the identity,
right? So,
Justice Gaziano: Yeah, there's a sweet spot
between discovery and revealing the information.
Correct?
-: Correct. There is a sweet spot
and I think that's what attorney Kenny
from the outset
was looking for.
And that's why he
-: I mean I'm not gonna, I'm not gonna
read it out loud, but if you read
A and what's requested.
I won't read all of it
but not limited to cases with a tip
by the informant turned out
to be raised as accurate or inaccurate
including federal agencies.
Of course federal agencies aren't gonna turn it
over.
(Attorney Warren laughs.)
So you got that.
Attorney Warren: And, and you know, if
if one part of the order is not discoverable
I don't think that would
invalidate the whole order.
But what I think, I would
just wanna make this point about
why the, the motion judge did not air
because I think your honors are right, that
the key is the finding, the motion Judge's finding
that this would not disclose the informant's identity.
We're not saying this case should go
to Ro Viro and Bonnet.
We're not saying it should go there.
So it does rise in the fall on that sort of analysis.
And the three reasons why the motion judge was
the order was motion judge's finding was proper is
because the Commonwealth did not make a showing
that this information would reveal the
this informant's identity.
And they did not say why a protective order
or other prophylactic remedy would not suffice
because there's nothing on the face
of this order that would
reveal the informant's identity.
Where the judge ordered the commonwealth to
disclose using a code number.
And because this is a case
where the commonwealth has
already disclosed that the informant was
in Ms. Whitfield's home within,
within a 30 day time period.
And all the defense was looking
here was the prior track record,
not dealings with Ms. Whitfield,
but the prior track record that
the Boston Police, affiant says was reliable.
And um,
Ms.Whitfield is in entitled
to information and the judge has discretion to
order information that relates to that reliability.