-: SJC-13333.
Commonwealth v. Kieson S. Cuffee
-: Good morning. Thank you.
May it please the court.
I am Molly Ryan Strehorn for Kieson Cuffee.
I would like to frame this equal protection discovery motion
in its factual relevance.
The reason to believe that race was a motivating factor
in the decision to stop Mister-
-: Can you talk a little louder? Sorry.
Or move the mic a little closer.
-: How's this? -: Better?
-: So to review, I would like to frame this equal protection
discovery motion and its factual relevance.
These are the issues that were known
to the officers on the date, November 8th, 2018.
Two Springfield homicide detectives responded
to a notification from a ShotSpotter.
When they were about a block away from the location,
they saw a man running in the opposite direction.
He stopped running.
After, they described the running
as having an unnatural gait.
He stopped running and he walked into a bodega.
Those were the only things that they knew at that moment.
These are the things that they didn't know.
They didn't have any description of who was involved
in the ShotSpotter notification.
They weren't sure how many people were involved.
They also didn't know the name of the man running.
They didn't know where he lived.
They didn't know where he worked.
-: But, Counsel, didn't you leave out something
really important, observationally?
Didn't they also testified to witnessing him run
as if he had a really large object in his pocket,
that in their experience in training,
was consistent with carrying an unholstered firearm?
-: That's correct. They called it-
-: So isn't that a big deal?
-: Well, because there was no description of anyone
who was involved, it would be potentially that he was
a witness since he was running away from the area,
and as far as a reasonable suspicion analysis,
then that would be something that would weigh in the favor
of his reasonable suspicion.
But it wouldn't be something that would detract
from his ability to raise an equal protection claim
or to seek discovery.
-: Well, here's the issue of I've got with your position
and the commonwealth's position on discovery, right.
So if we go to Long in discovery and Bernardo B., et cetera,
you seem to argue and tell me if this is unfair,
that if you raise the fact that the defendant is black
and that the person was stopped
and had their constitutional rights affected,
that seems to be enough to get discovery.
Now the commonwealth has the other end of the spectrum,
which I have a problem with, in that you have to show
a prima facie case to show a prima facie case,
which I think that's what you arguing in your brief,
which I don't think is tenable either.
So what is it that the defendant should have to show,
other than they're part of a equally protected class?
-: Well, under, you know, rule 14a-2,
it's a threshold showing of relevance.
Justice: Right.
-: So we are holding to the relevance,
and I think the best case for us to look at
really is Franklin, because Franklin, the issue of relevance
was related to how big of a timeframe
the defendants could put in evidence
of selective enforcement.
And so in Franklin, you had this window of time of 18 months
of extreme racial tension.
And the judge in that case, without the benefit
of ever having a trial on a selective enforcement,
narrowed it down to just three days.
And so in that case, it wasn't relevant.
The specific issue of whether or not the defendant
had a firearm was not dispositive.
-: When I look at the pleadings below,
I get a motion that basically says the the client is black
and the police officers are white.
That's all the motion says. Then you get a memorandum.
The memorandum adds what you started with,
in that this ShotSpotter in no description, whatever.
Then there's an affidavit and the affidavit says
that the cops saw the person running with a weighted object,
which actually hurts you for relevance.
The showing below was rather thin,
that was in front of the judge.
So what is it, I know we can say
threshold shown of relevance, but what more than
the classification of the individual does the defendant have
to get to have a threshold shown of relevance?
-: Sure.
I mean, it's helpful in this case
because what you're looking at is broad police discretion.
And so, in a case when you have broad,
a continuum of discretion, when you have broad discretion,
then I think the defendant should have the ability
to have broad discovery,
because under that window of discretion, that's where-
-: But you're really not answering my question.
You're just saying it should be broad.
Is it more than the client as a member of a protected class?
Molly: Yes.
-: Okay. What more?
-: Yes. Okay.
So in my answer, framing under discretion,
what I'm really looking at is that the police officer
didn't have any particularized reason,
back to Justice Georges weighted object.
And if one of the motivating factors was his race,
then that meets the threshold of relevance.
-: So if the affidavit had said something like,
there was no description whatsoever of this person.
They saw conduct, they thought suspicious,
and they went into bodega and saw my client and decided to.
So you're really looking at, and they'll probably
have to be altered, but you're really looking
at the Long factors in the totality, right,
to make your case?
-: Correct.
You know, the totality of the circumstances
are a very helpful way, as you've established
to use a Long framework.
But what this defendant was looking for, Mr. Cuffee,
was really looking for was the comparison
of the police officer's FIOs and their past arrests
so that he could really look at whether or not implicit bias
had factored into, (chuckles) did you have a question?
(person laughing)
-: I always look like I have a question.
Yeah, I guess just what is it that your client needs to show
in order to get the discovery that he wants?
-: Well... -: Like, is it I'm black,
and so I get discovery?
Or is it, I'm black and the ShotSpotter
didn't describe anything and therefore I get discovery.
Like, what is the threshold showing that your client
needed to make to get discovery in your estimation?
-: So I mean, you have in Lora
that the threshold showing really is,
or the companion cases to Lora,
where you had to have a threshold showing of relevance
and you had to have this affidavit.
And so, I will admit that the affidavit
was bare bones at that point.
-: So you're saying go back to the Lora standard
and when a defendant meets whatever that was,
they get the discovery.
-: Correct.
I think in circumstances where the relevance-
So it really goes to the way that the officers
had discretion based on this stop.
There was nothing particularized besides the fact
that there was this notification
that they were responding to and they saw this man running.
So if race was a motivating factor,
then that's why he wanted to be able to look
at the other records of those officers.
(indistinct)
-: I'm sorry, go ahead. -: Go ahead, please.
-: This is a tough case, a tougher case for you
in that there were shots fired and conduct observed.
In a typical, or someone would say unfortunate
number of cases where the police confront someone
who's looking suspicious and they find a gun or whatever,
and they pat, frisk.
Based on really nothing more than you're out of place.
Maybe you're trespassing.
Here, this case and the next case are harder, I think,
because they involve shootings and dangerousness
and perceived conduct.
And I think Justice Wendlandt asked,
I think what I was asking as well,
and do you really want to go back to Lora,
because Lora is statistically based
in what we gave you in Long, was the ability to not rely
solely on statistics, but on facts.
-: Right.
And I do believe you'll be looking at the Long framework
as it applies to Van Rader.
Ours is at such an earlier posture of discovery,
Gaziano: right?
-: That, yes.
So I guess, arguably could Mr. Cuffee have made
the totality of the circumstances argument
without statistics?
But the fact that-
-: No.
You don't get the statistics
until you get the statistics, right?
So that's really the cart before the horse.
We're talking about what you need to probe
into the police records to either have a statistical based
argument under Lora or a fact-based inference under Long.
Molly: Well, I actually think under equal protection
going back to Franklin, you have both because.
-: I know. That's what I wrote. So.
-: Because, you know, in Franklin, you have firearms.
He wasn't challenging the reasonable suspicion.
He was putting in, basically, the totality
of the circumstances of what was happening
during those year 1/2 in the late 70s.
-: Let's take another selective prosecution
equal protection case where the police charge,
where the government charges people
in consensual underage relationships,
they just charge the males.
There, you can say, I represent a male juvenile.
I know that they only charge the males,
so therefore I need the discovery.
That's easier.
That's more than my client is male.
So what we're asking is, other than my client is black,
what do you need to show?
-: So in a similar way to Franklin,
this is in the climate of Springfield.
And so what you have is numerous documented instances.
-: None of that's in the affidavit.
None of that's in the motion.
-: Correct. But they were all heard in Springfield.
And so-
-: I know, but you need to show the judge
why you need discovery.
And we can, I guess, you can look at it with hindsight.
But...
-: Right.
So I mean, it is something that you will decide
whether or not the affidavit needs to be more particularized
than this instance.
And you might even use the sample of Van Rader
because he actually got the discovery
based on his affidavit.
But we are all moving forward with this presumption
that prosecutions take place in good faith
without intent to discriminate.
So if we really put that to the test,
then what's the harm in giving discovery?
-: Well, because there's a standard in the rules
for when you get discovery.
So this is what I'm hearing from you,
and you might be right.
What I'm hearing from you is that in order to be able
to satisfy the not very heavy standard
and have that reasonable inference so that the commonwealth
is going to have to respond, you want the discovery.
You're looking at some of the Long factors
once he actually litigating the totality
of the circumstances, once the judge has heard the evidence
and you're saying, well, tell me if this is wrong,
because this is what you have here.
The defense black and you are saying that just the nature
of the manner of the stop and the sequence of events
is enough to satisfy the standard here.
Do I have- -: I agree.
-: That's what you're saying, -: Yes.
-: Right? -: Yes, yes, I do.
I also think, you know, we're going under,
you know, the rules and the threshold.
It's just threshold showing of relevance.
-: Well, Counsel, that brings me,
if I might interrupt you.
So we've started out by just presuming
that we should extend Long to these types of circumstances.
Can you tell me why we should do that?
Molly: Well, Your Honor, I-
-: In non-motor vehicle cases,
why should we extend it this way?
And I'm asking you that because if we were to take the view
that you're taking, you could say virtually every police
civilian interaction like this would effectively
become mandatory discovery.
If the relevancy showing is so minimal
as you are describing, it's effectively going to turn this
into mandatory discovery.
So if we're gonna go down that road,
why should we extend Long this way,
when there was a particularized scenario
we were concerned with in Long?
-: Well, as a public defender,
I believe it should be mandatory,
but in this specific situation,
I would turn to why it was relevant to Mr. Cuffee.
I don't believe that the equal protection
should have an exclusion when we have these rules
of discovery in the idea that the mode of transportation,
walking, riding a bike, being in a car would limit
a defendant's ability to bring a claim
under Article One and 10.
I don't think that that's what this court envisions.
I don't think that's what the constitution envisions.
And it goes back to, we had equal protection claims
even before Long and-
Speaker: Right.
Counsel, may I ask you a question,
related to Justice Georges question.
And that is can you discuss a little bit
the differences between an automobile stop
and an on-street Terry stop?
Molly: Sure.
You know, I mean, both of them are per se unreasonable
unless there is a basis for it.
And so they enjoy the same type of protection
until there's a moment that the seizure or the stop occurs.
And so they do have similar framework under Article 14,
but a person has a right to be free from those searches,
regardless of where they are in, you know.
Speaker: But isn't one difference in general
that I don't think we factored in yet,
that when you pull over an automobile,
that's already at that moment a stop or a seizure
of some sort, whereas with a person on the street,
there could be some different ways to approach.
Molly: Correct. I would, I would agree.
And I would also agree that a person on the street
hopefully has reasons to say,
I don't wanna talk to the police
or say that I am gonna go on my own way.
But all of those factors start raising into the suspicion,
which extends the stop, turns it into a seizure.
And so while they do have similarities,
I do think under the law, they're treated differently.
-: The stop.
The, hey, can I talk to you, we can debate whether,
hey, can I talk to you, is a stop,
which I'm sure you have in court,
but that doesn't raise constitutional implications
under Article 14 or Article One or 10,
because there's no law enforcement action
on either way, right?
There's no prosecution, there's no law enforcement action
until it rises under Article 14 to a seizure
or law enforcement action, constitutional deprivation
under one in 10, right?
So the casual, hey, what's your name,
can I talk to you, is not going to be an issue.
Correct? -: Correct. Yes.
-: So you're gonna rely on, in this case,
the City of Springfield issues is not in the affidavit.
So in this case, you're relying on the manner
of the stop and the sequence of events.
So if we had the facts and Commonwealth v. Depina
with the police broadcast, 911 call,
a few shots fired and the description
that you had in that case, which is still under
your definition of relevance under rule 14,
be entitled to the discovery?
-: Well, again, in that case,
you have a more particularized description.
So in that case, you have less discretion,
and when you have less discretion,
then you have less ability to have implicit bias
infecting the motivation of law enforcement.
-: Right.
So what I'm trying to do is figure out is there anything
in your definition that doesn't make it mandatory discovery?
So in other words, what if the manner of the stop
and the sequence of events is really strong,
and that's all there is?
Do you still get the rule 14 discovery
under your view of the world?
-: So to add to your hypothetical, if a police officer sees
a crime committed right in front of them,
but it's committed by a person in a protected class,
then would it be relevant to seek that type of discovery
of that police officer's records
or their FIOs of other arrests?
Then I would say that it's not relevant.
-: I'm trying to make a more difficult question.
-: Let me ask you then.
So in this case, hypothetically, if the ShotSpotter alert
came with a 911 call that said, stop the guy
in the red, checkered sweater or whatever, you know,
or something particular to this defendant,
would that entail you the discovery?
-: Well, then it becomes less relevant.
-: And that's what we're talking about.
That's your unfettered discretion versus discretion,
Molly: Correct.
-: Distinction. -: Correct.
I mean, the more particularized description
that you're talking about, then you have less implicit bias
to channel in there, and so then you get less discovery.
-: Did we have that here? I mean, I can't remember.
I know there was some kind of motion
in Limine about a witness that purportedly
gave a description.
Was that something that was broadcast to the officers?
-: It was not, Your Honor.
There was, during the motion hearing on this,
on January 13th, there was a type of argument presented
by the commonwealth that there was a 911 call,
but it was not part of the evidence at trial.
It was not considered, supported in the motion.
-: On the discovery order,
we're going based on the pleadings, right?
The judge marginally noted something.
-: Correct. There were no factual findings.
-: So we have to confine it to what you said in the motion,
maybe the memo and certainly the affidavit.
-: Correct.
-: Counsel, if I could just one last thing,
because I know that Justice Gaziano,
Justice Wendlandt asked this before.
I need to know this
because if we're gonna extend this, this way,
particularly with what the remedy we said
was in Long here, right, that the motion
to suppress would be allowed.
That that's the remedy, right?
If you can't really articulate what you have to show,
this is a big deal, because if you're saying that
in a context like this case, your case, shots fired,
ShotSpotter, they're on their way.
They see somebody running in the opposite direction
of where the ShotSpotter places the shots,
running in a way that is consistent with their training
and experience of someone running with a gun
and they go and do an encounter here.
And we've already said it's not enough for them to just say
it had nothing to do with it.
It had to do with the fact that I heard
the ShotSpotter broadcast.
I see somebody running in the opposite direction
that you would be if you were in some kind of a firefight.
And I saw somebody running consistently with the way
that people run and carry unholstered firearms,
that if it's not enough for those two officers to testify
and say it had nothing to do with race, this is a big deal.
So you really need to articulate,
what do you have to show here?
-: Respectfully, this is at the discovery phase,
and the ability for the commonwealth to use
all of those things that you're talking about would come
after the discovery phase. -: Sure.
-: And so, I don't believe in this narrow issue
before the court right now.
To make that relevant, you would almost be overlaying
a Long burden for relevant discovery.
(mic thumping) Ooh, sorry.
This is before that part.
And so that issue, the commonwealth's burden to come up
with a race neutral reason for the stop
is absolutely part of the framework.
But that's not what's asked in this case.
It's whether or not he has the ability to investigate
a selective enforcement claim.
And so it's almost the argument that the commonwealth
is trying to make, that you need to have
selective enforcement as part of discovery.
And I don't see that in the rules
and I don't see that as relevant to the burden
that he has at this very early phase.
-: We don't have to make up a standard.
We just have to apply what you asked for to the standard
of a threshold shown of relevance in the discovery standard
we set forth in Long, if we decide to apply Long
to this situation, correct?
-: Correct.
-: And what the DA's going to say
is when you are bringing up in your affidavit exclusively,
the manner and sequence of the stop,
he's gonna say the opposite of what you're saying.
He's gonna say, oh, so then we have to litigate the motion
to suppress as part of the discovery.
-: Again, I go back to if we have a presumption that race,
in that we do not have discrimination
as part of the investigation part, then what's the harm?
I mean, we're not in the onerous burden
where they would have to make a bazillion
copies of something.
We're we're talking about like a search and a, you know,
search and find for records of these specific
police officers in a two-year span.
They didn't even ask for, you know-
-: Well, respectfully, what's the harm
is not a discovery standard, right?
Molly: Agreed.
-: It's a threshold showing of relevance.
-: Agreed. Thank you for clarifying that.
Yes, yes.
But I would suggest that if we do have this presumption
of regularity, that motivation of race is not part
of this early phase, then in a place where they're making
these types of broad discretion,
then I think we go back to the rules of relevance,
and it clearly would be relevant in this circumstance.
Justice: Thank you.
Molly: Thank you for extending me the time.
-: Okay, Attorney Wendell.
-: Good morning. May it please the court.
Assistant District Attorney John Wendel
for the commonwealth.
I'd like to begin by addressing something
that Justice Gaziano said
during Attorney Strehorn's argument.
Commonwealth is not arguing that the defendant has to make
a prima facie showing in order to get the discovery.
The commonwealth is arguing that Long doesn't apply,
and that under the standards set forth by Franklin
for how to bring a selective enforcement motion,
there's no prejudice to the defendant
even if the motion was erroneously denied.
That's the commonwealth's point about the other factors.
I will say, however-
-: So assuming you're wrong and Long does apply,
what's the discovery standard?
-: If Long does apply, then I think the discovery standard
is set forth reasonably clearly in Long itself.
Also Lora (indistinct), it's generally well set forth.
And I would agree with Your Honor that this record
is remarkably thin.
The lengthy report about the Springfield Police Department
that's attached to the reply brief
was not part of the record before the court.
The record before the court was,
and I'm not meaning to be flippant here,
the defendant's white, the officers are black.
They stopped him, except that there's also the evidence
from the commonwealth, briefly stated at the argument
on the motion that he's the only-
-: The officers were black and the defendant is white?
-: Did I say that backwards?
-: I think so. -: I apologize.
The defendant's black, the officers are white.
-: I mean, it could go the other way.
-: It was the defendant's black, the officers are white.
-: Okay. -: They stopped him.
I apologize if I misstated that.
In any case, the other fact not mentioned by the defendant
during the motion hearing, the trial prosecutor notes
that the defendant is the only individual on that street
who is running away from the scene of the shooting.
He is, in fact, there's surveillance video later presented
at the trial that shows that other individuals are coming
in and out of the store, but that's not mentioned
during that motion hearing.
That's not mentioned in that affidavit.
The judge makes no findings.
She basically says Long doesn't apply.
And if it did, you know, you haven't satisfied
discovery requirements.
-: Yes. -: Correct?
-: And that's nothing-
The memorandum in support of the motion
is Long should apply to pedestrian stops.
There's no discussion about the particular relevance
of the information if a Long motion is brought, and there's-
-: All right, I guess we'll take your first argument.
Why not? Why doesn't Long apply to pedestrian stops?
-: Long is really just a specific application of Franklin.
The classic tripartite test of Franklin.
It's in many ways Long is just an expansion of a particular
application that was made first in Lora,
Lora kept the higher level threshold for the showing
of a reasonable inference.
But the Tripartite Franklin test, broader class of persons,
deliberate or consistent selectivity,
and that the selectivity is based on membership
in a protected class, that's the usual test.
Lora and Long simply apply that test to particular
-: Okay so, if there's evidence -: circumstance of traffic.
-: that a group of police officers are just stopping
and frisking black people and not white people,
is that a Article One, Article 10 violation?
-: No.
There has to be evidence that the police
had reasonable suspicion as to white people
and didn't stop them and frisk them.
-: If you keep the first two factors.
But the issue is not whether
the Equal Protection Clause applies.
-: Absolutely not. -: The Equal Protection
Clause does apply. -: Of course.
-: So the question really becomes
what do you need to be able to show
to be able to get some discovery?
And I guess my question is,
is that maybe it's a comment first,
the nature of the sequence of events
and the timing (indistinct) sequence.
How long ago was it? How far away from the scene?
Those were all part of the factors in response.
John: Yes.
-: But what we're trying to get at is what needs to be shown.
So when you say he's running and he's on the street,
And say the shots were just fired 50 yards away
and nobody else is in view that, that means when you apply
the totality of circumstances,
you're gonna have a really strong case.
But we need to still recognize
that the Equal Protection Clause applies.
So now the question arises, does it apply with pedestrians?
And let's go to Justice Gaziano's situation,
the authorization rules is part of the reason
why we want to have Lora not be the only way to get
at this when we're dealing with a motor vehicle.
John: Right.
-: But why isn't that same reasoning true
in just Gaziano's circumstance with FIOs,
to see whether or not the threshold
shouldn't be the three part test?
-: Because reasonable suspicion,
the requirement of reasonable suspicion
is itself a greater protection.
The purpose this court had in giving
the greater protections, the greater ability
to obtain discovery, the lower threshold for the showing
in Long was the authorization rule makes it so easy
to stop anyone and the stop is therefore justified under-
Lowy: You don't need a threshold to do an FIO.
-: Right, but that's- -: What are you up to?
What do you mean? That doesn't require a threshold.
-: True. But here, we do have a threshold showing.
This stop, they intended to stop this individual
because they believed he was in possession
of an illegal firearm.
That evidence, that wasn't presented.
We are in a bit of an awkward position here,
given what the procedural posture of the case is.
But as the evidence came out at trial,
they intended to stop the defendant and frisk him
because they believed he possessed an unlawful firearm.
-: Maybe all that means is that they're not gonna be able
to meet the Rule 14 threshold requirement.
That doesn't answer whether or not
it should apply to pedestrians.
-: Well, I should clarify in that regard.
When I said pedestrians,
I was a little imprecise in my language.
What I should have said is that the commonwealth's position
is that Long does not apply to Terry stops, period.
Whether it's a Terry stop of a pedestrian or a Terry stop
of an individual in a motor vehicle.
And there are of course
potentially traffic stops involving pedestrians.
There are, for example, rules against jaywalking.
So if the police were to stop someone specifically
because they were engaged in jaywalking,
perhaps Long would apply in that circumstance.
But this is a stop.
This is a Terry stop pursuant to reasonable suspicion.
-: You agree that the Equal Protection Clause prohibits
discriminatory application of impartial laws?
John: I do.
-: Okay, so if you have police officers who just confront
and Terry stop black people downtown Springfield,
is that an issue on under equal protection?
-: If those officers have reasonable suspicion to stop
individuals of other races, then yes.
If not, then no.
They have reasonable suspicion to stop
whom they have reasonable, again-
-: Then it would be the ability of a defendant
to bring that claim with proper discovery, correct?
-: Correct. -: You can have separate
constitutional protections on a claim, correct?
John: Yes.
-: When you litigate a motion to suppress,
you have a voluntariness inquiry.
You can have a Miranda inquiry.
John: Right.
-: Two different things related, but two different inquiries.
Correct? -: Of course.
Gaziano: But why not here?
-: Because here, in order to make
the equal protection showing in the end,
well, I start with the end game recognizing
that the discovery threshold is much lower
than the end game.
In the end, to make the equal protection claim,
the defendant must raise a reasonable inference
that the police officers regularly failed to stop
individuals who are not African American,
despite having reasonable suspicion to believe that either
they're in possession of firearms that are unlawful or-
-: But they need the discovery, though, right?
-: So that's all what is required to be shown
in the end game.
The defendant doesn't ask for any of that information,
doesn't suggest he has any access to that information,
doesn't suggest he's even looking for that information.
It's Long applies and therefore I get my discovery.
-: That's who wins this case.
We gotta we gotta think bigger than that.
So the issue is even where it's a stop and frisk,
at that very moment of stop and frisk,
the Equal Protection Clause applies.
-: Of course it does. -: It's there.
And you keep on referring to the three-part test.
We're trying to decide whether the three part part test
applies or whether we're gonna eliminate
the first two requirements and apply Long.
Start with that.
-: So in Long, the reason that the first two prongs
are eliminated is that the first two prongs are deemed to be
established in every circumstance as a matter
of common sense because every driver commits
traffic infractions on a regular basis.
I mean, not to incriminate myself,
but I sped yesterday on my commute
to and from work. -: There you go.
-: Every driver commits traffic infractions
on a regular basis.
That's stated explicitly in Long as the basis for doing away
with the first two prongs.
There is obviously a broader class of persons
committing traffic infractions.
And there is obviously selectivity in that enforcement
given the dearth of enforcement.
-: So actually, if Long doesn't apply,
which is the commonwealth's position, the relevance,
it's harder for the defendant to establish all three prongs.
Right? -: Right.
Right, and so the need for the discovery
is actually heightened.
And so that it should be easier to get the discovery.
-: Well, the need for the discovery is heightened,
but the defendant still has to show
that the discovery is relevant.
Discovery as to the third prong of the three-prong test
doesn't become relevant until you first
establish the selectivity, or at least suggests
that you're looking into the selectivity.
The defendant's argument here was basically-
-: So can a defendant bring a claim
that there was a racially motivated stop?
John: Yes.
-: Under equal protection?
-: Absolutely. -: How?
If you were to establish that there are other individuals
whom they could have stopped, who they did not,
that their decision not to stop them was deliberate
or consistent, and that their decision to stop him
particularly was based on his race.
-: If the report about Springfield had been attached
to the memo and if the affidavit had pointed out
from the perspective of the defendant,
maybe not these facts, but really thin facts
on constitutional justification for the seizure.
And if we were to apply just the third prong,
would the discovery be satisfied?
-: Probably.
The report about the Springfield Police Department
is certainly relevant to a discussion
of whether this is race-based.
So we are in a situation here. The request was faulty.
I would suggest in multiple respects, first,
the bare minimum showing that they cannot possibly
satisfy whatever the requirement
of Bernardo B. (indistinct) Lora is.
Also the fact that it was specifically and explicitly
brought under Long, which on its own specific terms
applies to traffic stops and does away
with the first two prongs of the test.
Bernardo B., the defendant, did not make
a prima facie showing, but he explained that the discovery
was relevant to the three-prong test.
Mr. Cuffee said, I want it because Long,
because I'm black and the cops are white.
And that's not good enough, even under Long.
But that's definitely not good enough under-
Speaker: If I may interrupt for a minute?
This is relevant to what you're arguing,
but as I've been listening to you
and you talk about the Springfield report,
it occurred to me if we had the Springfield report,
we would be able to take notice of it,
and could we then not carve out
a special rule for Springfield?
-: That's an interesting question.
I don't that I'm prepared to answer that.
That's a hypothetical I hadn't considered.
Speaker: Okay. Well, you don't have to then,
if you don't have an answer.
Just one more question then I'll be quiet.
And that is, there was a hearing on the discovery motion.
-: Correct? -: We did, yes.
Speaker: And I have not been able to locate
the transcript on that.
Do you know if it's in the record?
John: I believe it was.
Speaker: Okay. I'll keep looking.
-: I see my time is nearly out.
I don't know if there are any further questions.
I will mention briefly, commonwealth has suggested
that should this court find that the motion
was denied an error, commonwealth would suggest
that the appropriate remedy is to remand this
for further factual development,
not simply reverse the conviction, because,
and this was not meant as a criticism of the defendant.
We simply don't know what the requested discovery
would've showed because it was never produced.
So the record is insufficient to determine
whether the denial of the motion for discovery
actually would've prejudiced the defendant,
whether he would've had the ability to file a successful
motion for relief based on an equal protection claim.
So my time being nearly expired,
if there are no further questions, I'd rest on my brief.