WEBVTT

1
00:00:00.000 --> 00:00:04.173
<v ->SJC-13356 Commonwealth v Anthony J. Dew.</v>

2
00:00:05.310 --> 00:00:07.593
<v ->Okay, Attorney Gaffney.</v>

3
00:00:08.640 --> 00:00:10.020
<v ->Your Honors, my name is Edward Gaffney,</v>

4
00:00:10.020 --> 00:00:12.300
and I represent the defendant Anthony Dew.

5
00:00:12.300 --> 00:00:14.610
Mr. Dew is appealing today the denial

6
00:00:14.610 --> 00:00:18.120
of his motion for new trial to withdraw guilty pleas.

7
00:00:18.120 --> 00:00:20.160
At the onset, I'd like to focus on

8
00:00:20.160 --> 00:00:23.190
an important aspect of the Facebook posts

9
00:00:23.190 --> 00:00:24.390
that are at the heart of this case,

10
00:00:24.390 --> 00:00:26.500
because they were much more than

11
00:00:27.840 --> 00:00:29.760
just documentary evidence

12
00:00:29.760 --> 00:00:31.893
of Attorney Doyle's racism and bigotry.

13
00:00:33.720 --> 00:00:35.400
Because this is not the same as a case

14
00:00:35.400 --> 00:00:38.730
where we stumbled upon a personal journal

15
00:00:38.730 --> 00:00:43.230
and a shameful entry written by Attorney Doyle.

16
00:00:43.230 --> 00:00:44.820
<v ->May I interrupt you for one moment</v>

17
00:00:44.820 --> 00:00:45.810
and then you can resume.

18
00:00:45.810 --> 00:00:47.790
I just have a question, this is a good time.

19
00:00:47.790 --> 00:00:51.180
You mentioned it's not something that was stumbled upon.

20
00:00:51.180 --> 00:00:55.440
In the record I figured out that somebody from CPCS

21
00:00:55.440 --> 00:00:57.517
called somebody else from CPCS and said,

22
00:00:57.517 --> 00:00:59.340
"Look at the Facebook post."

23
00:00:59.340 --> 00:01:00.173
Right?

24
00:01:00.173 --> 00:01:01.006
<v Edward>Yes.</v>

25
00:01:01.006 --> 00:01:02.523
<v ->How did they know to do that?</v>

26
00:01:03.870 --> 00:01:06.000
I can't find that anywhere in the record.

27
00:01:06.000 --> 00:01:09.840
Like what date did CPCS learn about this first?

28
00:01:09.840 --> 00:01:14.040
<v ->Okay, the record doesn't contain the...</v>

29
00:01:14.040 --> 00:01:16.160
I know this because I've spoken to people

30
00:01:16.160 --> 00:01:17.220
at CPCS about this,

31
00:01:17.220 --> 00:01:18.513
so I just wanna report-
<v ->But it's not in the record.</v>

32
00:01:18.513 --> 00:01:19.346
That's okay.
<v ->That this isn't</v>

33
00:01:19.346 --> 00:01:20.179
in the record,

34
00:01:20.179 --> 00:01:24.817
that in 2017, an investigation was undertaken by CPCS.

35
00:01:24.817 --> 00:01:28.290
<v ->Right.</v>
<v ->As a result of a report</v>

36
00:01:28.290 --> 00:01:33.290
to CPCS that someone had seen these things on Facebook.

37
00:01:33.630 --> 00:01:35.310
<v ->But we don't know when that report is.</v>

38
00:01:35.310 --> 00:01:36.570
That's not in the record.

39
00:01:36.570 --> 00:01:37.923
<v ->When that report is.</v>

40
00:01:38.806 --> 00:01:39.840
<v ->I couldn't-</v>
<v ->It's not in the record.</v>

41
00:01:39.840 --> 00:01:41.367
It was in 2017.
<v ->That's fine.</v>

42
00:01:41.367 --> 00:01:42.817
<v ->But it's not in the record.</v>

43
00:01:44.040 --> 00:01:47.850
Anyway, Your Honors, I just wanted to emphasize the fact

44
00:01:47.850 --> 00:01:52.850
that these Facebook posts were, in themselves,

45
00:01:54.330 --> 00:01:58.920
because of the manner in which they were presented,

46
00:01:58.920 --> 00:02:01.890
these were racist acts in themselves,

47
00:02:01.890 --> 00:02:05.250
because these were public declarations of Attorney Doyle,

48
00:02:05.250 --> 00:02:09.090
proud public declarations of his racism and bigotry

49
00:02:09.090 --> 00:02:12.030
posted on a public forum designed

50
00:02:12.030 --> 00:02:17.030
to make these posts accessible indefinitely to the public,

51
00:02:18.570 --> 00:02:21.210
and also designed to make it easy for the public

52
00:02:21.210 --> 00:02:25.110
to copy and share and re-propagate these messages.

53
00:02:25.110 --> 00:02:26.670
<v ->I'm sorry, what were her settings?</v>

54
00:02:26.670 --> 00:02:27.630
Do we know that.

55
00:02:27.630 --> 00:02:28.463
<v ->Sorry?</v>

56
00:02:28.463 --> 00:02:29.580
<v ->What were her Facebook settings?</v>

57
00:02:29.580 --> 00:02:31.440
Was he a private person or public person?

58
00:02:31.440 --> 00:02:32.273
<v ->Public.</v>

59
00:02:33.900 --> 00:02:36.570
<v ->Also, the CPCS investigate...</v>

60
00:02:36.570 --> 00:02:38.160
Sorry, Justice Gaziano.
<v ->No, I'm done.</v>

61
00:02:38.160 --> 00:02:41.130
<v ->The CPCS investigation, he's interviewed, right?</v>

62
00:02:41.130 --> 00:02:43.860
He says he's doing the exact opposite.

63
00:02:43.860 --> 00:02:45.840
He thinks he's talking to friends.

64
00:02:45.840 --> 00:02:47.400
<v ->Right.</v>
<v ->So...</v>

65
00:02:47.400 --> 00:02:48.810
Does that get you anywhere, by the way?

66
00:02:48.810 --> 00:02:51.750
I'm just not sure how relevant any of that is.

67
00:02:51.750 --> 00:02:53.730
I mean, why is it...

68
00:02:53.730 --> 00:02:58.713
We all agree these are reprehensible, bigoted posts,

69
00:02:59.970 --> 00:03:04.443
but at the same time he's saying, "I wanna win.

70
00:03:05.617 --> 00:03:10.617
"I'm not trying to undermine my client's..."

71
00:03:11.121 --> 00:03:13.140
I'm just trying to understand

72
00:03:13.140 --> 00:03:16.768
sort of the standard we apply here to this.

73
00:03:16.768 --> 00:03:17.601
<v ->Well-</v>

74
00:03:19.136 --> 00:03:20.070
<v ->'Cause again, we...</v>

75
00:03:20.070 --> 00:03:23.130
There's no doubt these are reprehensible.

76
00:03:23.130 --> 00:03:25.083
There's no doubt they're racist.

77
00:03:27.330 --> 00:03:30.630
They're not the most...

78
00:03:30.630 --> 00:03:33.780
Almost all of it is not directed to the case.

79
00:03:33.780 --> 00:03:38.780
The only racism in the case appears to be the comment

80
00:03:38.970 --> 00:03:43.922
about his client's religious garb.

81
00:03:43.922 --> 00:03:44.927
<v ->Correct, correct.</v>
<v ->Right?</v>

82
00:03:44.927 --> 00:03:48.480
That's the only evidence in the case, right?

83
00:03:48.480 --> 00:03:51.570
<v ->Direct, right, specific to Mr. Dew.</v>

84
00:03:51.570 --> 00:03:53.463
<v ->Right, so I'm trying to understand,</v>

85
00:03:54.390 --> 00:03:57.753
what is our standard for that kind of behavior?

86
00:03:58.800 --> 00:04:00.960
Is it actual conflict of interest?

87
00:04:00.960 --> 00:04:03.660
Is it potential conflict of interest?

88
00:04:03.660 --> 00:04:05.880
<v ->Okay, well, I would argue-</v>
<v ->Help us,</v>

89
00:04:05.880 --> 00:04:08.634
'cause this is a novel case,

90
00:04:08.634 --> 00:04:13.500
and we all agree on how bad the posts are,

91
00:04:13.500 --> 00:04:16.950
but their relevance to the case is the hard part of this.

92
00:04:16.950 --> 00:04:18.120
<v ->Well, Your Honor, actually I,</v>

93
00:04:18.120 --> 00:04:19.050
I actually think,

94
00:04:19.050 --> 00:04:23.460
I understand your point, but I actually think

95
00:04:23.460 --> 00:04:26.250
that there's an actual conflict of interest here,

96
00:04:26.250 --> 00:04:28.650
specifically because of the posts,

97
00:04:28.650 --> 00:04:31.620
regardless of the fact of whether they were

98
00:04:31.620 --> 00:04:34.860
directed at Mr. Dew, although those ones about the kufi

99
00:04:34.860 --> 00:04:36.750
were directed at him,

100
00:04:36.750 --> 00:04:41.610
and that's because what Mr...

101
00:04:41.610 --> 00:04:42.570
Attorney Doyle was doing this

102
00:04:42.570 --> 00:04:46.140
between 2014 and 2017, continuously.

103
00:04:46.140 --> 00:04:49.800
He represented Mr. Dew in the first half of 2016.

104
00:04:49.800 --> 00:04:50.633
Okay?

105
00:04:50.633 --> 00:04:52.140
Supposedly with undivided loyalty,

106
00:04:52.140 --> 00:04:55.500
ethically obliged to be acting only in his best interests.

107
00:04:55.500 --> 00:04:59.430
And my argument here is, well, one of my arguments-

108
00:04:59.430 --> 00:05:01.950
<v ->Is actual conflict your best argument?</v>

109
00:05:01.950 --> 00:05:03.840
Because it gets you outta the prejudice prong.

110
00:05:03.840 --> 00:05:05.130
<v ->Yes.</v>

111
00:05:05.130 --> 00:05:06.087
And the reason-

112
00:05:06.087 --> 00:05:08.220
<v ->Can I follow up with Justice Gaziano on this point?</v>

113
00:05:08.220 --> 00:05:09.750
Because that is the, the linchpin.

114
00:05:09.750 --> 00:05:12.600
We just talked about that in our Tate case

115
00:05:12.600 --> 00:05:15.870
a couple of months ago that if you have the actual conflict,

116
00:05:15.870 --> 00:05:17.850
you don't have to show prejudice.

117
00:05:17.850 --> 00:05:21.630
I couldn't really discern, have you found any other,

118
00:05:21.630 --> 00:05:24.570
even that ninth circuit case that you both talked about,

119
00:05:24.570 --> 00:05:26.010
and even in the concurrence,

120
00:05:26.010 --> 00:05:30.120
has anyone ever found that it was actual conflict

121
00:05:30.120 --> 00:05:34.860
when you have these kinds of musings by counsel?

122
00:05:34.860 --> 00:05:38.610
<v ->Well, these kinds of musings, Your Honor, no.</v>

123
00:05:38.610 --> 00:05:41.280
I mean the Ellis versus Harrison case,

124
00:05:41.280 --> 00:05:46.280
the lawyer was doing everything verbally to,

125
00:05:46.770 --> 00:05:49.410
just to others in his sphere,

126
00:05:49.410 --> 00:05:53.160
whether it's coworkers or family members, or whatever,

127
00:05:53.160 --> 00:05:56.100
making offensive comments.

128
00:05:56.100 --> 00:06:00.330
So this is different because, in my view,

129
00:06:00.330 --> 00:06:03.783
it's a different type, but it's no less,

130
00:06:04.650 --> 00:06:08.160
no less egregious because I contest,

131
00:06:08.160 --> 00:06:10.950
I absolutely believe that this is,

132
00:06:10.950 --> 00:06:12.273
this type of,

133
00:06:13.740 --> 00:06:18.483
these types of messages, these images and these messages,

134
00:06:19.710 --> 00:06:23.580
the spreading and the normalizing of this kind of stuff,

135
00:06:23.580 --> 00:06:25.830
these intolerant, the messages and images

136
00:06:25.830 --> 00:06:29.490
of intolerance and in intimidation and threat

137
00:06:29.490 --> 00:06:32.910
over the history of our country right up to today,

138
00:06:32.910 --> 00:06:37.860
which Attorney Doyle was happily and proudly taking part in,

139
00:06:37.860 --> 00:06:41.070
right through and when he was representing Mr. Dew,

140
00:06:41.070 --> 00:06:43.290
were contrary to Mr. Dew's best interest

141
00:06:43.290 --> 00:06:45.840
because that kind of messaging,

142
00:06:45.840 --> 00:06:48.420
the spreading and normalizing of that stuff

143
00:06:48.420 --> 00:06:49.980
throughout the history of our country

144
00:06:49.980 --> 00:06:53.730
has very successfully made this country

145
00:06:53.730 --> 00:06:57.360
and this commonwealth less fair and more dangerous

146
00:06:57.360 --> 00:07:00.423
for people like Mr. Dew, just because of the way he looks.

147
00:07:01.470 --> 00:07:04.470
<v ->Can you articulate the standard for actual conflict</v>

148
00:07:04.470 --> 00:07:06.660
and how this applies to this case?

149
00:07:06.660 --> 00:07:08.610
I mean, in my mind it has to be

150
00:07:08.610 --> 00:07:10.800
something that makes you incapable

151
00:07:10.800 --> 00:07:13.890
of representing your clients, so this divided loyalties,

152
00:07:13.890 --> 00:07:16.770
and I know the briefs kind of dismissively talk about

153
00:07:16.770 --> 00:07:20.610
what Judge Sanders wrote, but where we,

154
00:07:20.610 --> 00:07:24.660
if we have someone who's strongly anti Second Amendment,

155
00:07:24.660 --> 00:07:28.683
a lawyer, and they have a person with a firearm charge,

156
00:07:30.034 --> 00:07:32.220
and the person rests on their Second Amendment rights,

157
00:07:32.220 --> 00:07:34.500
and then the person politically hates guns and...

158
00:07:34.500 --> 00:07:36.990
And there's thousands of this,

159
00:07:36.990 --> 00:07:38.622
and we expect defense attorneys

160
00:07:38.622 --> 00:07:41.460
to represent reprehensible people,

161
00:07:41.460 --> 00:07:45.090
and they do so without actual conflict all the time.

162
00:07:45.090 --> 00:07:49.440
So articulate for me the standard that takes this out of,

163
00:07:49.440 --> 00:07:52.920
I have a reprehensible client whose thoughts and ideas

164
00:07:52.920 --> 00:07:56.160
I do not endorse whatsoever,

165
00:07:56.160 --> 00:07:59.160
and how that becomes an actual conflict in this case.

166
00:07:59.160 --> 00:08:01.380
<v ->Okay, Your Honor, there's a lot to that question.</v>

167
00:08:01.380 --> 00:08:03.180
I'm going to...

168
00:08:03.180 --> 00:08:07.230
Let me first point at the language that this court

169
00:08:07.230 --> 00:08:09.710
has already endorsed, because I know that the...

170
00:08:12.090 --> 00:08:14.190
Attacking actual conflict,

171
00:08:14.190 --> 00:08:17.160
or addressing actual conflict through racism

172
00:08:17.160 --> 00:08:19.380
is something that, I mean, that is,

173
00:08:19.380 --> 00:08:20.760
well, this court hasn't done it.

174
00:08:20.760 --> 00:08:25.230
I mean we're in new waters here.

175
00:08:25.230 --> 00:08:26.925
The language that I thought that was

176
00:08:26.925 --> 00:08:27.960
the most-
<v ->No, no.</v>

177
00:08:27.960 --> 00:08:29.598
<v ->Please let him answer the question.</v>

178
00:08:29.598 --> 00:08:30.936
Go ahead.

179
00:08:30.936 --> 00:08:32.040
(justices chuckling)

180
00:08:32.040 --> 00:08:35.130
<v ->The language that I thought was most apt</v>

181
00:08:35.130 --> 00:08:38.550
with respect to the conflict piece of this was whether,

182
00:08:38.550 --> 00:08:40.387
this is from the Cousin case,

183
00:08:40.387 --> 00:08:43.837
"whether no impartial observer could reasonably conclude

184
00:08:43.837 --> 00:08:46.867
"that the attorney is able to serve the defendant

185
00:08:46.867 --> 00:08:48.157
"with undivided loyalty."

186
00:08:48.157 --> 00:08:52.437
"No impartial observer could reasonably conclude."

187
00:08:53.340 --> 00:08:55.860
Okay so that's that piece of it.

188
00:08:55.860 --> 00:08:57.930
Now, Your Honor brought up

189
00:08:57.930 --> 00:09:02.130
this put aside your personal feelings thing,

190
00:09:02.130 --> 00:09:06.570
which I have some extremely strong personal feelings about,

191
00:09:06.570 --> 00:09:10.410
because there is no constitutionally-protected

192
00:09:10.410 --> 00:09:15.410
class of people who are credibly accused of horrible crimes,

193
00:09:15.600 --> 00:09:16.433
but there sure is

194
00:09:16.433 --> 00:09:20.700
a constitutionally-protected class of race.

195
00:09:20.700 --> 00:09:25.667
In other words, in my mind, there's a significant problem

196
00:09:26.550 --> 00:09:28.770
with making an equivalency for an attorney

197
00:09:28.770 --> 00:09:29.940
who doesn't like his client

198
00:09:29.940 --> 00:09:31.470
because he's been accused of rape

199
00:09:31.470 --> 00:09:34.230
and his client whose skin is brown.

200
00:09:34.230 --> 00:09:36.003
But putting aside all of that,

201
00:09:37.440 --> 00:09:38.490
this case,

202
00:09:38.490 --> 00:09:41.700
the Facebook posts make clear, or I should back up...

203
00:09:41.700 --> 00:09:43.680
in order to make that-

204
00:09:43.680 --> 00:09:47.640
<v ->And we've had neo-Nazis accused of hate crimes</v>

205
00:09:47.640 --> 00:09:50.670
that we would find intolerable, of course.

206
00:09:50.670 --> 00:09:52.290
But they get lawyers.

207
00:09:52.290 --> 00:09:54.240
So how does that play out?

208
00:09:54.240 --> 00:09:57.633
<v ->Well, that, my point here is that,</v>

209
00:09:59.130 --> 00:10:00.270
well, two points.

210
00:10:00.270 --> 00:10:03.870
First of all, the neo-Nazi defendant,

211
00:10:03.870 --> 00:10:07.320
it's not the neo-Nazi lawyer, it's the neo-Nazi defendant.

212
00:10:07.320 --> 00:10:11.490
So, if the lawyer engages in some

213
00:10:11.490 --> 00:10:15.240
unconstitutional behavior with respect to his client,

214
00:10:15.240 --> 00:10:18.930
that's step one in my problem with that.

215
00:10:18.930 --> 00:10:21.510
Well, we put aside all our personal feelings

216
00:10:21.510 --> 00:10:24.270
when we get to this,

217
00:10:24.270 --> 00:10:26.610
when we step across the threshold of the courthouse,

218
00:10:26.610 --> 00:10:28.830
no matter how bad we feel about our defendant,

219
00:10:28.830 --> 00:10:29.823
we put it aside.

220
00:10:30.780 --> 00:10:31.620
So that's problem one.

221
00:10:31.620 --> 00:10:33.990
But problem two, this case, I mean,

222
00:10:33.990 --> 00:10:35.370
the Facebook posts don't just

223
00:10:35.370 --> 00:10:38.073
demonstrate rampant racism and bigotry.

224
00:10:40.816 --> 00:10:44.143
In order for the attorney in question,

225
00:10:46.470 --> 00:10:48.270
for us to apply that assumption

226
00:10:48.270 --> 00:10:50.160
that he's gonna put aside his personal feelings,

227
00:10:50.160 --> 00:10:53.370
et cetera, et cetera, there's an assumption there

228
00:10:53.370 --> 00:10:57.330
that the attorney respects the Constitution

229
00:10:57.330 --> 00:10:58.380
and the rule of law

230
00:10:58.380 --> 00:11:02.100
and respects the criminal justice system and his role in it.

231
00:11:02.100 --> 00:11:05.130
These Facebook posts make abundantly clear

232
00:11:05.130 --> 00:11:08.490
that Attorney Doyle had contempt for those things.

233
00:11:08.490 --> 00:11:11.910
I mean, these posts include public musings,

234
00:11:11.910 --> 00:11:14.100
by him, of murder.

235
00:11:14.100 --> 00:11:18.270
<v ->Isn't his actions significant,</v>

236
00:11:18.270 --> 00:11:21.870
or aren't his actions significant in that portrayal

237
00:11:21.870 --> 00:11:26.870
and in your point, I think,

238
00:11:26.880 --> 00:11:30.870
when he has a strong reaction to the religious headwear,

239
00:11:30.870 --> 00:11:33.007
not once, but twice, the first time saying,

240
00:11:33.007 --> 00:11:33.840
"Don't wear that."

241
00:11:33.840 --> 00:11:36.600
And I won't dignify it with what he said.

242
00:11:36.600 --> 00:11:38.717
But in the second time he goes in to see him,

243
00:11:38.717 --> 00:11:41.790
and he only saw this person three times.

244
00:11:41.790 --> 00:11:43.740
The second time that he goes to see him,

245
00:11:43.740 --> 00:11:46.710
he inferentially gets into the room,

246
00:11:46.710 --> 00:11:49.410
sees he's wearing the kufi, and just gets up and leaves.

247
00:11:49.410 --> 00:11:50.243
<v Edward>Right.</v>

248
00:11:50.243 --> 00:11:51.930
<v ->Does that manifest in your mind,</v>

249
00:11:51.930 --> 00:11:53.996
and I'm throwing you in a hangin' curve ball,

250
00:11:53.996 --> 00:11:55.830
the actual conflict?

251
00:11:55.830 --> 00:11:57.497
<v ->Well, of yeah, of course, Your honor.</v>

252
00:11:57.497 --> 00:11:58.620
I mean that's just,

253
00:11:58.620 --> 00:12:01.590
but I would argue that is just one more manifestation,

254
00:12:01.590 --> 00:12:03.030
and I wanna bring to the court's attention

255
00:12:03.030 --> 00:12:07.530
that Judge Sanders credited the defendant's testimony

256
00:12:07.530 --> 00:12:08.430
about this stuff.

257
00:12:08.430 --> 00:12:10.680
But actually she mischaracterized,

258
00:12:10.680 --> 00:12:12.030
she made a little mistake

259
00:12:12.030 --> 00:12:15.120
when she was describing what he said,

260
00:12:15.120 --> 00:12:17.820
because there were three meetings that he talked about,

261
00:12:17.820 --> 00:12:20.400
two in the jail, one in the courthouse.

262
00:12:20.400 --> 00:12:22.717
The last one in the courthouse was where he said,

263
00:12:22.717 --> 00:12:26.010
"Don't wear that blank in the courtroom.

264
00:12:26.010 --> 00:12:27.833
That was in the courthouse.
<v ->I thought that was</v>

265
00:12:27.833 --> 00:12:29.280
only in the first meeting.

266
00:12:29.280 --> 00:12:30.630
<v ->That's what Judge Sanders said.</v>

267
00:12:30.630 --> 00:12:32.820
But the testimony actually was that

268
00:12:32.820 --> 00:12:37.820
he met him in the jail, said, "Don't wear that stuff."

269
00:12:37.830 --> 00:12:39.731
Came back, saw he was wearing it-

270
00:12:39.731 --> 00:12:40.564
<v ->Second time.</v>
<v ->Just left.</v>

271
00:12:40.564 --> 00:12:41.820
And then third time.
<v ->Third time</v>

272
00:12:41.820 --> 00:12:45.257
in the courthouse before he goes up for the...

273
00:12:45.257 --> 00:12:49.927
In fact, the testimony of Mr. Dew is that,

274
00:12:49.927 --> 00:12:51.307
"The court officer's, like,

275
00:12:51.307 --> 00:12:52.380
'What are you guys arguing about?'"

276
00:12:52.380 --> 00:12:54.510
And Dew told him.

277
00:12:54.510 --> 00:12:57.030
This is in the hearing transcript.

278
00:12:57.030 --> 00:12:58.200
<v ->Yeah, I didn't read the hearing transcript.</v>

279
00:12:58.200 --> 00:13:01.083
<v ->It's around page, I think it's page 30 or something.</v>

280
00:13:02.940 --> 00:13:05.490
Anyway, so yes, Your Honor,

281
00:13:05.490 --> 00:13:10.080
that's the most glaring piece of evidence

282
00:13:10.080 --> 00:13:14.520
about the fact that Doyle didn't put aside his feelings

283
00:13:14.520 --> 00:13:16.140
when he was representing this guy.

284
00:13:16.140 --> 00:13:20.160
But again, I got a problem with that,

285
00:13:20.160 --> 00:13:24.300
applying that kind of assumption to Attorney Doyle,

286
00:13:24.300 --> 00:13:26.763
given the content of the Facebook posts,

287
00:13:27.750 --> 00:13:32.567
publicly musing about vigilante murder by him?

288
00:13:32.567 --> 00:13:33.400
Of people of color?
<v ->Well, counsel,</v>

289
00:13:33.400 --> 00:13:35.370
I'm seeing a difference in the way

290
00:13:35.370 --> 00:13:37.950
that Justice Gaziano's framed the question

291
00:13:37.950 --> 00:13:41.340
with regard to we every lawyer has clients

292
00:13:41.340 --> 00:13:44.640
that they think have committed reprehensible crimes.

293
00:13:44.640 --> 00:13:46.320
There's a difference between that

294
00:13:46.320 --> 00:13:50.310
and a lawyer's obligation to appropriately represent them

295
00:13:50.310 --> 00:13:54.510
and a lawyer who inherently in their own life every day

296
00:13:54.510 --> 00:13:58.410
believes not that they commit reprehensible crimes,

297
00:13:58.410 --> 00:14:00.487
but that they are reprehensible themselves.

298
00:14:00.487 --> 00:14:01.980
<v ->Right.
Is that what you're saying?</v>

299
00:14:01.980 --> 00:14:03.420
<v ->Yes, it's not...</v>

300
00:14:03.420 --> 00:14:06.240
There's a difference between I don't like you

301
00:14:06.240 --> 00:14:07.110
because of what you do,

302
00:14:07.110 --> 00:14:08.940
and I don't like you because of who you are.

303
00:14:08.940 --> 00:14:11.430
<v ->So in the neo-Nazi case,</v>

304
00:14:11.430 --> 00:14:13.290
it would be that we had a neo-Nazi lawyer

305
00:14:13.290 --> 00:14:14.430
and a Jewish defendant.

306
00:14:14.430 --> 00:14:17.190
<v ->Right, that's a problem for me.</v>

307
00:14:17.190 --> 00:14:19.200
<v ->Well, counsel, I still have this other issue.</v>

308
00:14:19.200 --> 00:14:22.320
I know you're characterizing some of the subjective things

309
00:14:22.320 --> 00:14:23.820
and whether or not it would manifest

310
00:14:23.820 --> 00:14:26.190
the actual conflict here,

311
00:14:26.190 --> 00:14:29.640
but we also have baselines that we can look to,

312
00:14:29.640 --> 00:14:31.440
and I believe in the case,

313
00:14:31.440 --> 00:14:35.190
Attorney Perullo did an investigation here, right?

314
00:14:35.190 --> 00:14:37.080
I mean, so all the time,

315
00:14:37.080 --> 00:14:38.580
even if you're appointed counsel,

316
00:14:38.580 --> 00:14:41.820
CPCS, they do they do these audits.

317
00:14:41.820 --> 00:14:44.220
They look at your files and they see how well

318
00:14:44.220 --> 00:14:46.680
or how poorly you're representing your clients

319
00:14:46.680 --> 00:14:49.320
based on whether you filed appropriate motions

320
00:14:49.320 --> 00:14:53.550
to dismiss or motions to suppress, et cetera, et cetera.

321
00:14:53.550 --> 00:14:56.040
Why don't we have a baseline here that we could say,

322
00:14:56.040 --> 00:14:58.530
irrespective of whatever he's musing about,

323
00:14:58.530 --> 00:15:01.710
whatever he's posting about, we can look to the case,

324
00:15:01.710 --> 00:15:04.470
we can look to the transcripts, we can look to the hearings,

325
00:15:04.470 --> 00:15:07.590
we can look to what he actually did

326
00:15:07.590 --> 00:15:10.170
to see whether or not there was actually

327
00:15:10.170 --> 00:15:11.880
any prejudice to Mr. Dew?

328
00:15:11.880 --> 00:15:13.410
Why can't we just do that?

329
00:15:13.410 --> 00:15:15.030
And wasn't that done?

330
00:15:15.030 --> 00:15:16.860
Didn't Attorney Perullo find that, yeah,

331
00:15:16.860 --> 00:15:18.990
he was dismissive to his clients,

332
00:15:18.990 --> 00:15:20.427
but he always wanted to win,

333
00:15:20.427 --> 00:15:22.020
and so therefore you can infer

334
00:15:22.020 --> 00:15:24.030
that he did what he was supposed to do

335
00:15:24.030 --> 00:15:26.550
as a reasonably prudent lawyer?

336
00:15:26.550 --> 00:15:29.580
<v ->Well, Your Honor, first of all,</v>

337
00:15:29.580 --> 00:15:32.520
the question of whether there is actual conflict or not

338
00:15:32.520 --> 00:15:34.620
does not depend on whether there was prejudice.

339
00:15:34.620 --> 00:15:36.630
In fact, if there is-
<v ->That's if we believe</v>

340
00:15:36.630 --> 00:15:38.850
and we conclude that there's actual,

341
00:15:38.850 --> 00:15:40.800
but if we don't and we have to then

342
00:15:40.800 --> 00:15:42.630
go through a prejudice analysis.

343
00:15:42.630 --> 00:15:44.700
<v ->Correct?</v>
<v ->Now answer the question.</v>

344
00:15:44.700 --> 00:15:47.070
<v ->Okay, so if I am being pressed</v>

345
00:15:47.070 --> 00:15:51.914
to present to the court actual prejudice in this case,

346
00:15:51.914 --> 00:15:56.553
the only place I can go is the failure to,

347
00:15:58.530 --> 00:16:01.933
Attorney Doyle's failure to file the-

348
00:16:01.933 --> 00:16:04.860
<v ->That's the IAC claim, which is kind of-</v>

349
00:16:04.860 --> 00:16:06.240
<v ->Right-</v>
<v ->Which you didn't focus on.</v>

350
00:16:06.240 --> 00:16:07.426
<v ->Right, I didn't focus on that-</v>

351
00:16:07.426 --> 00:16:08.259
<v ->For good reason.</v>

352
00:16:08.259 --> 00:16:09.092
<v ->Right, I didn't focus on that</v>

353
00:16:09.092 --> 00:16:10.080
because that's the tougher one.

354
00:16:10.080 --> 00:16:14.177
And I would argue also that when you take racism

355
00:16:14.177 --> 00:16:16.950
and you move it into this,

356
00:16:16.950 --> 00:16:20.005
you basically eliminate racism from the case.

357
00:16:20.005 --> 00:16:21.510
I mean, if you look for prejudice,

358
00:16:21.510 --> 00:16:23.400
it doesn't matter whether he's a racist or not,

359
00:16:23.400 --> 00:16:25.290
he either did the job or he didn't do the job.

360
00:16:25.290 --> 00:16:27.300
So, Your Honor, as you're pointing out,

361
00:16:27.300 --> 00:16:29.940
if we go through a case and we determine,

362
00:16:29.940 --> 00:16:32.100
well, you did this right, but you didn't do this right,

363
00:16:32.100 --> 00:16:34.260
okay, fine, so if you didn't do this right,

364
00:16:34.260 --> 00:16:36.120
that's ineffective, that's the end of it.

365
00:16:36.120 --> 00:16:38.962
But racism suddenly just drops out of the case.

366
00:16:38.962 --> 00:16:41.880
<v ->What of it's potential prejudice?</v>

367
00:16:41.880 --> 00:16:44.040
I mean a potential...

368
00:16:44.040 --> 00:16:46.140
There's clearly prejudice here.

369
00:16:46.140 --> 00:16:48.060
So I'm trying to understand, though,

370
00:16:48.060 --> 00:16:49.420
do you go automatically

371
00:16:49.420 --> 00:16:54.420
to a conflict or is it a potential conflict?

372
00:16:54.450 --> 00:16:58.950
Because this guy also, he says he likes to get,

373
00:16:58.950 --> 00:17:01.290
he likes to make money, he likes to win.

374
00:17:01.290 --> 00:17:04.860
He's a arrogant, self-confident guy.

375
00:17:04.860 --> 00:17:06.390
He doesn't like to lose.

376
00:17:06.390 --> 00:17:09.030
So he may be a racist, but he may wanna win.

377
00:17:09.030 --> 00:17:10.020
So I'm just trying to understand,

378
00:17:10.020 --> 00:17:12.961
is it an actual conflict or is it a potential conflict?

379
00:17:12.961 --> 00:17:14.820
We just...

380
00:17:14.820 --> 00:17:16.350
Say he did a marvelous job.

381
00:17:16.350 --> 00:17:18.480
He won four out of five claims.

382
00:17:18.480 --> 00:17:21.660
All he gets convicted on is a little...

383
00:17:21.660 --> 00:17:24.420
Do we reverse that, too, because he's a racist?

384
00:17:24.420 --> 00:17:25.470
<v ->Well, yes, you do.</v>

385
00:17:25.470 --> 00:17:28.215
And the reason is because,

386
00:17:28.215 --> 00:17:29.715
I mean, this is...

387
00:17:32.494 --> 00:17:34.947
The reason that I argued that this is,

388
00:17:34.947 --> 00:17:36.780
and I don't mean this just tactically,

389
00:17:36.780 --> 00:17:38.950
I mean this also from the perspective of

390
00:17:41.045 --> 00:17:43.371
we're dealing with new,

391
00:17:43.371 --> 00:17:45.720
a new kind of thing here, ineffective,

392
00:17:45.720 --> 00:17:48.840
not ineffective, but conflict with respect

393
00:17:48.840 --> 00:17:50.370
on the basis of racism.

394
00:17:50.370 --> 00:17:52.350
So I looked not just at conflict,

395
00:17:52.350 --> 00:17:54.060
I also looked at structural error,

396
00:17:54.060 --> 00:17:56.943
which I think this is squarely within structural error.

397
00:17:58.440 --> 00:18:02.280
When we're dealing with, as I think it's the Francis case,

398
00:18:02.280 --> 00:18:04.410
made clear, when we're dealing with something

399
00:18:04.410 --> 00:18:09.360
that's critical constitutional problem

400
00:18:09.360 --> 00:18:12.360
that affects the entire framework of the case.

401
00:18:12.360 --> 00:18:15.750
Everything in every case that Attorney Doyle did

402
00:18:15.750 --> 00:18:17.550
had to flow through him necessarily.

403
00:18:17.550 --> 00:18:19.410
But if he sees the world through this warped,

404
00:18:19.410 --> 00:18:23.790
distorted lens of racism, every single thing in that case,

405
00:18:23.790 --> 00:18:26.550
the whole framework of the case, is affected by his racism.

406
00:18:26.550 --> 00:18:29.730
And that's not to say that he was trying to lose cases.

407
00:18:29.730 --> 00:18:32.490
I'm talking about the fact that this guy walks around

408
00:18:32.490 --> 00:18:35.010
with these assumptions and these generalities

409
00:18:35.010 --> 00:18:36.360
and making these shortcuts.
<v ->Well, counsel,</v>

410
00:18:36.360 --> 00:18:37.260
can I ask you a question?

411
00:18:37.260 --> 00:18:39.870
It seems to me this is somewhat different than just

412
00:18:39.870 --> 00:18:41.820
an attorney who's racist,

413
00:18:41.820 --> 00:18:45.300
because this is an attorney who's not only racist

414
00:18:45.300 --> 00:18:47.040
in the way we think of the term,

415
00:18:47.040 --> 00:18:50.400
but who is actually publishing the views

416
00:18:50.400 --> 00:18:53.340
and is actually inciting through his posts,

417
00:18:53.340 --> 00:18:56.100
some of them are quite suggestive of violence.

418
00:18:56.100 --> 00:18:57.600
<v ->Correct.</v>
<v ->And so he's moved,</v>

419
00:18:57.600 --> 00:19:00.180
at that point, from his belief system

420
00:19:00.180 --> 00:19:03.120
to his actions in terms of these posts.

421
00:19:03.120 --> 00:19:07.170
So it seems to me that that acting out through the internet

422
00:19:07.170 --> 00:19:09.630
becomes a whole different behavior set,

423
00:19:09.630 --> 00:19:11.987
not just that we're dealing with a racist person.

424
00:19:11.987 --> 00:19:13.770
<v ->Right, and that's where I,</v>

425
00:19:13.770 --> 00:19:16.320
what I was trying to do when I was starting,

426
00:19:16.320 --> 00:19:17.940
when I was explaining that these things

427
00:19:17.940 --> 00:19:20.130
were not just declarations...

428
00:19:20.130 --> 00:19:21.570
I'm sorry, they weren't just,

429
00:19:21.570 --> 00:19:25.560
it's not just evidence that he's a racist,

430
00:19:25.560 --> 00:19:29.190
it's racist behavior to put this stuff on Facebook.

431
00:19:29.190 --> 00:19:33.030
He's representing a man who's a black Muslim man,

432
00:19:33.030 --> 00:19:36.240
and he's putting this stuff on Facebook at the same time.

433
00:19:36.240 --> 00:19:37.590
That is hurting this man.

434
00:19:37.590 --> 00:19:39.660
I understand that this may not be,

435
00:19:39.660 --> 00:19:43.080
that he's making it harder for him to win this case,

436
00:19:43.080 --> 00:19:44.990
but that doesn't mean it's not...

437
00:19:45.930 --> 00:19:47.160
Too many negatives here.

438
00:19:47.160 --> 00:19:49.050
It is still in his...

439
00:19:49.050 --> 00:19:52.260
It is still against his best interests.

440
00:19:52.260 --> 00:19:55.200
If you're working hard for Mr. Dew on his case,

441
00:19:55.200 --> 00:19:57.570
but in the meantime you're publishing this stuff

442
00:19:57.570 --> 00:19:59.310
that makes it more likely that he's going to

443
00:19:59.310 --> 00:20:01.980
suffer harm just for walking down the street-

444
00:20:01.980 --> 00:20:05.317
<v ->Say we agree with you with respect to actual conflict.</v>

445
00:20:05.317 --> 00:20:08.550
Does that invalidate all of his cases?

446
00:20:08.550 --> 00:20:12.450
Or does this stand in a unique posture,

447
00:20:12.450 --> 00:20:15.840
because of the manifestation of conflict

448
00:20:15.840 --> 00:20:19.353
with his interactions with Mr. Dew?

449
00:20:20.250 --> 00:20:21.380
<v ->No, I think...</v>

450
00:20:22.450 --> 00:20:27.450
The actions, about the headgear, the hat?

451
00:20:29.039 --> 00:20:30.780
That's just more evidence.

452
00:20:30.780 --> 00:20:34.330
I don't believe to take that away and then suddenly

453
00:20:35.520 --> 00:20:38.550
Mr. Attorney Doyle's racism is just okay.

454
00:20:38.550 --> 00:20:41.910
<v ->No, we have to have evidence that</v>

455
00:20:41.910 --> 00:20:44.820
a reasonable observer would conclude he had divided loyalty.

456
00:20:44.820 --> 00:20:47.820
So if we have a case where this,

457
00:20:47.820 --> 00:20:49.650
where we don't have this evidence,

458
00:20:49.650 --> 00:20:52.530
which we have about his religious wear,

459
00:20:52.530 --> 00:20:54.160
does that make it a different case?

460
00:20:54.160 --> 00:20:55.200
<v ->Well, it only makes-</v>

461
00:20:55.200 --> 00:20:58.080
<v ->A fact-specific case as opposed to a general case</v>

462
00:20:58.080 --> 00:21:00.180
about this attorney.

463
00:21:00.180 --> 00:21:05.180
<v ->Well, I would argue every case is fact specific</v>

464
00:21:08.130 --> 00:21:11.490
focused on the standard that I'm suggesting,

465
00:21:11.490 --> 00:21:13.604
this impartial observer.
<v ->I guess,</v>

466
00:21:13.604 --> 00:21:16.050
what I'm asking is do we have 6,000 cases

467
00:21:16.050 --> 00:21:17.130
or do we have one case?

468
00:21:17.130 --> 00:21:18.480
<v Edward>Okay. (laughing)</v>

469
00:21:18.480 --> 00:21:20.250
To get to get to that-
<v ->And how many</v>

470
00:21:20.250 --> 00:21:22.203
between 6,000 and one do we have?

471
00:21:23.220 --> 00:21:24.150
<v ->I was prepared for that.</v>

472
00:21:24.150 --> 00:21:25.220
This is not...

473
00:21:26.610 --> 00:21:28.093
Some of this is in the record, some of it is not.

474
00:21:28.093 --> 00:21:30.930
6,700 cases he was appointed to represent.

475
00:21:30.930 --> 00:21:33.540
I don't know and we don't know how many of those people

476
00:21:33.540 --> 00:21:35.253
were Muslim or people of color.

477
00:21:36.210 --> 00:21:37.710
<v Dalila>Or transgender.</v>

478
00:21:37.710 --> 00:21:38.940
<v ->Say it again.</v>
<v ->Or transgender.</v>

479
00:21:38.940 --> 00:21:40.143
<v ->Or transgender, right.</v>

480
00:21:42.660 --> 00:21:43.683
Correct, Your Honor.

481
00:21:44.760 --> 00:21:47.726
<v ->So somewhere between one and</v>

482
00:21:47.726 --> 00:21:49.440
6,700.
<v ->6700.</v>

483
00:21:49.440 --> 00:21:54.300
However, to make sure that the court is fully aware of this,

484
00:21:54.300 --> 00:21:56.040
I mean, again, this is not part of the record,

485
00:21:56.040 --> 00:21:59.040
but I can report, I have asked CPCS about this,

486
00:21:59.040 --> 00:22:00.513
because they undertook a,

487
00:22:02.610 --> 00:22:07.610
they undertook to try to alert these people about the case,

488
00:22:07.950 --> 00:22:10.530
and let them know that this was out there in the world

489
00:22:10.530 --> 00:22:12.150
and maybe that...

490
00:22:12.150 --> 00:22:13.500
Approximately 50 to 60,

491
00:22:13.500 --> 00:22:16.560
at the last time I checked, responded.

492
00:22:16.560 --> 00:22:18.480
I have four cases.

493
00:22:18.480 --> 00:22:21.510
I know of one other attorney has who has three,

494
00:22:21.510 --> 00:22:24.313
and I know of one other attorney who has one.

495
00:22:24.313 --> 00:22:25.410
<v ->Counsel-</v>
<v ->So this is not...</v>

496
00:22:25.410 --> 00:22:27.270
I don't believe we're talking about a floodgate-

497
00:22:27.270 --> 00:22:29.077
<v ->But you're, I mean, it's like a...</v>

498
00:22:30.480 --> 00:22:35.400
All come, everyone can come and have their case reviewed.

499
00:22:35.400 --> 00:22:36.900
<v Edward>Absolutely, if they chose to.</v>

500
00:22:36.900 --> 00:22:38.670
<v ->But you're saying that it doesn't matter,</v>

501
00:22:38.670 --> 00:22:42.750
all these people should have the convictions

502
00:22:42.750 --> 00:22:44.960
or whatever it is that he did for them...

503
00:22:46.440 --> 00:22:47.932
<v ->Not necessarily, Your Honor.</v>

504
00:22:47.932 --> 00:22:50.340
Depends on the holding, of course.

505
00:22:50.340 --> 00:22:52.980
And also depends on the facts of the case.

506
00:22:52.980 --> 00:22:54.360
<v ->You wanted to be-
That was my point,</v>

507
00:22:54.360 --> 00:22:56.139
was the facts of the case.
<v ->Right.</v>

508
00:22:56.139 --> 00:22:56.972
<v ->So the facts of this case that</v>

509
00:22:56.972 --> 00:22:58.353
you picked a good test case.

510
00:22:59.369 --> 00:23:01.290
<v ->Well, it kind of was handed to me,</v>

511
00:23:01.290 --> 00:23:03.000
but yes but Your Honor,

512
00:23:03.000 --> 00:23:04.066
I understand-
<v ->But I don't understand,</v>

513
00:23:04.066 --> 00:23:05.027
I don't understand that,

514
00:23:05.027 --> 00:23:07.620
'cause you say it's actual conflict.

515
00:23:07.620 --> 00:23:10.410
If it's actual conflict, it's an automatic reversal,

516
00:23:10.410 --> 00:23:12.240
doesn't matter of the facts.
<v ->Structural error.</v>

517
00:23:12.240 --> 00:23:15.000
<v ->So it's all 6,000 of those cases,</v>

518
00:23:15.000 --> 00:23:17.250
if they're involved either Muslims or Blacks.

519
00:23:17.250 --> 00:23:19.980
Correct?
<v ->Well, it's-</v>

520
00:23:19.980 --> 00:23:21.270
<v ->That's the way you're arguing the case</v>

521
00:23:21.270 --> 00:23:23.280
is it's actual conflict of interest.

522
00:23:23.280 --> 00:23:26.040
<v ->Well, this case there's an actual conflict of interest</v>

523
00:23:26.040 --> 00:23:27.600
because-
<v ->I thought you said</v>

524
00:23:27.600 --> 00:23:30.690
because of his posts, not because of-

525
00:23:30.690 --> 00:23:33.750
<v ->Because of his posts, I do argue that, that's correct.</v>

526
00:23:33.750 --> 00:23:36.870
So those...

527
00:23:36.870 --> 00:23:40.260
So in that sense, if these posts,

528
00:23:40.260 --> 00:23:43.410
if the court holds that these posts establish

529
00:23:43.410 --> 00:23:46.410
an actual conflict of interest with people of color

530
00:23:46.410 --> 00:23:48.690
or with people who are Muslim, then yes,

531
00:23:48.690 --> 00:23:50.370
those people that he represented

532
00:23:50.370 --> 00:23:51.870
are entitled to a new trial.

533
00:23:51.870 --> 00:23:52.920
Now I don't know that...

534
00:23:52.920 --> 00:23:54.000
By the way, I don't know...

535
00:23:54.000 --> 00:23:57.810
I mean, Mr. Dew, I've been very frank with him

536
00:23:57.810 --> 00:24:02.810
that reversing a guilty plea means you're back to start.

537
00:24:03.150 --> 00:24:05.310
There are a lot of people that aren't going to

538
00:24:05.310 --> 00:24:06.329
take advantage of this.
<v ->I think we're trying to</v>

539
00:24:06.329 --> 00:24:08.220
understand the extent of the rule, though.

540
00:24:08.220 --> 00:24:11.340
So it doesn't matter that he made the statement

541
00:24:11.340 --> 00:24:16.340
to the defendant about his religious garb.

542
00:24:16.590 --> 00:24:18.360
In your view, that doesn't matter.

543
00:24:18.360 --> 00:24:19.210
<v ->No, it matters.</v>

544
00:24:20.220 --> 00:24:21.240
<v ->But you're saying there's still</v>

545
00:24:21.240 --> 00:24:22.980
an absolute conflict without that or-

546
00:24:22.980 --> 00:24:24.076
<v ->That's true.</v>

547
00:24:24.076 --> 00:24:26.100
<v ->So, again, I'm just tryin' to...</v>

548
00:24:26.100 --> 00:24:28.440
<v ->'Cause you're asking us to create a rule,</v>

549
00:24:28.440 --> 00:24:31.290
and we wanna understand what the rule is gonna be

550
00:24:31.290 --> 00:24:32.123
and its effects.

551
00:24:32.123 --> 00:24:34.233
And it's also not just this gentleman.

552
00:24:35.869 --> 00:24:39.840
If someone goes out and searches public posts now

553
00:24:39.840 --> 00:24:44.610
for any lawyer and they make those kinds of comments,

554
00:24:44.610 --> 00:24:46.440
actual conflict of interest.

555
00:24:46.440 --> 00:24:49.140
<v ->Well, and this is why-</v>

556
00:24:49.140 --> 00:24:50.430
<v ->How about jurors?</v>

557
00:24:50.430 --> 00:24:55.220
Any juror that's made a comment in a case for...

558
00:24:56.940 --> 00:25:00.541
Just check someone's posts for the past 20 years,

559
00:25:00.541 --> 00:25:01.980
we gonna reverse all...

560
00:25:01.980 --> 00:25:03.690
I'm just asking the rule,

561
00:25:03.690 --> 00:25:04.573
just so I understand.
<v ->I understand,</v>

562
00:25:04.573 --> 00:25:06.210
I understand, Your Honor.

563
00:25:06.210 --> 00:25:08.070
Well, first of all, on the juror piece,

564
00:25:08.070 --> 00:25:10.650
I think that there's a whole lot more law

565
00:25:10.650 --> 00:25:12.720
on how to handle jurors with-

566
00:25:12.720 --> 00:25:15.270
<v ->Not outside the courtroom there isn't.</v>

567
00:25:15.270 --> 00:25:18.210
There's stuff in the,

568
00:25:18.210 --> 00:25:21.240
we got lots of law about how we analyze jurors

569
00:25:21.240 --> 00:25:23.820
and what they say in the courtroom,

570
00:25:23.820 --> 00:25:26.880
but there's not a lotta law like this

571
00:25:26.880 --> 00:25:30.150
where five years later someone finds

572
00:25:30.150 --> 00:25:32.220
social media posts, right?

573
00:25:32.220 --> 00:25:33.707
<v ->About jurors, about a juror?</v>

574
00:25:33.707 --> 00:25:35.040
<v ->Right.</v>
<v ->Right?</v>

575
00:25:35.040 --> 00:25:37.310
Okay, well there's...

576
00:25:39.300 --> 00:25:40.410
There is a process...

577
00:25:40.410 --> 00:25:44.520
First of all, juror and lawyer are very, very different.

578
00:25:44.520 --> 00:25:45.870
There's no conflict of interest,

579
00:25:45.870 --> 00:25:48.210
actual conflict of interest, et cetera, et cetera,

580
00:25:48.210 --> 00:25:49.320
with respect to jurors.

581
00:25:49.320 --> 00:25:51.030
There is with lawyers.

582
00:25:51.030 --> 00:25:54.330
That the lawyer has such an important part of the,

583
00:25:54.330 --> 00:25:56.670
is such an important part of the process.

584
00:25:56.670 --> 00:25:57.660
That's number one.

585
00:25:57.660 --> 00:26:02.660
Number two, the idea that, or the concern,

586
00:26:03.210 --> 00:26:08.210
justifiable, I think, that some broad rule comes out here,

587
00:26:08.760 --> 00:26:11.640
that then suddenly everybody's on Facebook

588
00:26:11.640 --> 00:26:13.680
looking for the magical thing

589
00:26:13.680 --> 00:26:16.290
that's gonna get them a new trial.

590
00:26:16.290 --> 00:26:21.030
Which is why I felt confident or comfortable

591
00:26:21.030 --> 00:26:22.800
referring the court to that language,

592
00:26:22.800 --> 00:26:24.420
the impartial observer,

593
00:26:24.420 --> 00:26:25.920
because that's where it all comes back to.

594
00:26:25.920 --> 00:26:27.540
It's not how many Facebook posts.

595
00:26:27.540 --> 00:26:28.560
Or was this on Facebook?

596
00:26:28.560 --> 00:26:30.120
Or was this on Instagram?

597
00:26:30.120 --> 00:26:31.860
Or was this on Twitter?

598
00:26:31.860 --> 00:26:36.860
It's take the information about this person

599
00:26:37.380 --> 00:26:39.720
and then go through that process.

600
00:26:39.720 --> 00:26:42.030
So it's not count up the posts.

601
00:26:42.030 --> 00:26:44.400
It's not how long ago.
<v ->But you still</v>

602
00:26:44.400 --> 00:26:46.020
have a problem, though,

603
00:26:46.020 --> 00:26:48.540
because all of these different biases

604
00:26:48.540 --> 00:26:50.310
and all of these different prejudices

605
00:26:50.310 --> 00:26:51.870
that you're talking about.

606
00:26:51.870 --> 00:26:54.090
So on these individualized hearings

607
00:26:54.090 --> 00:26:56.550
that you say that everybody gets to try to demonstrate

608
00:26:56.550 --> 00:26:58.670
whether or not they can meet this...

609
00:27:01.230 --> 00:27:03.870
<v ->Impartial.</v>
<v ->Impartial observer standard.</v>

610
00:27:03.870 --> 00:27:07.800
You can have a judge sitting out in one part of the state

611
00:27:07.800 --> 00:27:09.930
that looks differently at whether or not

612
00:27:09.930 --> 00:27:10.830
you meet the standard.

613
00:27:10.830 --> 00:27:13.080
You have somebody else doing the same thing.

614
00:27:13.080 --> 00:27:15.300
So how does it become manageable

615
00:27:15.300 --> 00:27:17.610
to be able to have what you're saying

616
00:27:17.610 --> 00:27:20.430
we ought to have as the standard here?

617
00:27:20.430 --> 00:27:21.600
How does that become manageable?

618
00:27:21.600 --> 00:27:23.520
<v ->But isn't that the way it is with all cases?</v>

619
00:27:23.520 --> 00:27:28.320
I mean, a standard gets established,

620
00:27:28.320 --> 00:27:30.473
and then it's case by case.

621
00:27:30.473 --> 00:27:34.619
I mean, if an attorney tells an offensive joke

622
00:27:34.619 --> 00:27:37.830
at a family gathering 10 years ago,

623
00:27:37.830 --> 00:27:39.937
and somebody races his aunt in and says,

624
00:27:39.937 --> 00:27:43.317
"Your Honor, there's a joke here from 10 years ago,"

625
00:27:44.220 --> 00:27:46.830
Okay, denied.

626
00:27:46.830 --> 00:27:48.810
<v ->Different people experience racism</v>

627
00:27:48.810 --> 00:27:50.340
in very different ways, counsel.

628
00:27:50.340 --> 00:27:52.650
<v ->Exactly, Your Honor.</v>
<v ->So, for them,</v>

629
00:27:52.650 --> 00:27:53.760
if I'm exactly right,

630
00:27:53.760 --> 00:27:55.890
aren't we saying that it's necessarily going to be

631
00:27:55.890 --> 00:27:59.700
arbitrary results in the world that you're describing?

632
00:27:59.700 --> 00:28:02.310
<v ->Well, but I believe,</v>

633
00:28:02.310 --> 00:28:05.660
I mean although racism is a very...

634
00:28:07.590 --> 00:28:08.700
It's unique.

635
00:28:08.700 --> 00:28:12.270
It's not just historically critical,

636
00:28:12.270 --> 00:28:15.076
but it's also so unusual.

637
00:28:15.076 --> 00:28:20.076
I acknowledge that, but every legal principle

638
00:28:23.010 --> 00:28:24.660
ends up in the same place.

639
00:28:24.660 --> 00:28:27.330
We all experience, not just racism,

640
00:28:27.330 --> 00:28:31.980
we experience anger and rage

641
00:28:31.980 --> 00:28:35.970
and any number of emotions individually,

642
00:28:35.970 --> 00:28:39.300
and judges are all the time called upon

643
00:28:39.300 --> 00:28:41.400
to make individual assessments

644
00:28:41.400 --> 00:28:44.073
of whether that particular person's,

645
00:28:45.120 --> 00:28:49.110
whatever it is, behavior, reaction, meets the standard.

646
00:28:49.110 --> 00:28:51.160
So I think that that's where we are here.

647
00:28:52.050 --> 00:28:55.620
<v ->Counsel, why is it the public nature</v>

648
00:28:55.620 --> 00:28:57.900
of the Facebook post that creates,

649
00:28:57.900 --> 00:29:00.925
in your mind, the actual conflict?

650
00:29:00.925 --> 00:29:02.190
<v ->Because-</v>
<v ->Because what if he</v>

651
00:29:02.190 --> 00:29:05.700
had a private Facebook account,

652
00:29:05.700 --> 00:29:10.700
but still harbored these anti-Muslim, anti-Black views?

653
00:29:12.540 --> 00:29:16.530
Wouldn't that create the same actual conflict?

654
00:29:16.530 --> 00:29:17.970
<v ->Well, yeah.</v>
<v ->Would be</v>

655
00:29:17.970 --> 00:29:19.710
structural in nature.

656
00:29:19.710 --> 00:29:22.680
I don't understand the focus on the publicity.

657
00:29:22.680 --> 00:29:25.770
<v ->The reason that I focused on that, Your Honor,</v>

658
00:29:25.770 --> 00:29:28.470
is because I think it's an easier case for me to make out

659
00:29:28.470 --> 00:29:31.530
for actual conflict in this sense,

660
00:29:31.530 --> 00:29:34.110
when he's working on the Anthony Dew case

661
00:29:34.110 --> 00:29:36.120
in the first half of 2016,

662
00:29:36.120 --> 00:29:39.010
he is publicly acting against Mr. Dew's

663
00:29:40.350 --> 00:29:42.930
best interests at that time.

664
00:29:42.930 --> 00:29:45.150
At the same time he's representing him,

665
00:29:45.150 --> 00:29:47.010
he's acting against his best interests.

666
00:29:47.010 --> 00:29:49.810
<v ->But isn't that evidence that he</v>

667
00:29:51.270 --> 00:29:53.490
might have been...

668
00:29:53.490 --> 00:29:57.630
Is it the public nature of his rants on Facebook

669
00:29:57.630 --> 00:30:00.240
that is in conflict with his client?

670
00:30:00.240 --> 00:30:01.290
<v ->Yeah, it is.</v>

671
00:30:01.290 --> 00:30:02.550
<v ->Why?</v>
<v ->Because</v>

672
00:30:02.550 --> 00:30:05.490
by sharing this stuff, by spreading this stuff,

673
00:30:05.490 --> 00:30:07.350
by normalizing this stuff,

674
00:30:07.350 --> 00:30:11.010
Mr. Dew is made unsafe in this country,

675
00:30:11.010 --> 00:30:12.150
in this Commonwealth.

676
00:30:12.150 --> 00:30:16.110
He walks down the street, because he's Black, he's a target.

677
00:30:16.110 --> 00:30:17.130
Not me.

678
00:30:17.130 --> 00:30:18.413
I can walk next to him.
<v ->And you think that's-</v>

679
00:30:18.413 --> 00:30:19.246
<v ->He's the one that's got</v>

680
00:30:19.246 --> 00:30:20.079
a higher risk.
<v ->You think that's</v>

681
00:30:20.079 --> 00:30:23.850
Attorney Doyle's doing?
<v ->Yes, I absolutely believe</v>

682
00:30:23.850 --> 00:30:24.960
it's Attorney Doyle's doing,

683
00:30:24.960 --> 00:30:26.820
not because he's the only one,

684
00:30:26.820 --> 00:30:28.620
but specifically this is how,

685
00:30:28.620 --> 00:30:30.210
this is the racist playbook.

686
00:30:30.210 --> 00:30:32.220
This has been going on for generations.

687
00:30:32.220 --> 00:30:33.270
<v ->Right, and don't you think</v>

688
00:30:33.270 --> 00:30:35.490
it's that generational effect

689
00:30:35.490 --> 00:30:40.350
that's having the consequences to Mr. Dew?

690
00:30:40.350 --> 00:30:41.910
<v ->Well, yes, I'm not saying that</v>

691
00:30:41.910 --> 00:30:43.800
Attorney Doyle's public posts

692
00:30:43.800 --> 00:30:45.510
specifically-
<v ->Right, so that if you are</v>

693
00:30:45.510 --> 00:30:50.130
quietly a racist, anti-Muslim person,

694
00:30:50.130 --> 00:30:54.150
and you're representing somebody who you can't stand

695
00:30:54.150 --> 00:30:58.830
because of who they are, not because of what they did,

696
00:30:58.830 --> 00:31:00.630
because they're a neo-Nazi,

697
00:31:00.630 --> 00:31:04.200
or they made a choice to hold a firearm and your anti-gun,

698
00:31:04.200 --> 00:31:08.400
but because of who they are, isn't that different?

699
00:31:08.400 --> 00:31:11.430
The public nature of your contribution

700
00:31:11.430 --> 00:31:15.103
to the history of racism is not the conflict.

701
00:31:15.103 --> 00:31:19.210
It's the conflict between the counsel's views

702
00:31:20.790 --> 00:31:24.360
against the person that they're chosen to represent.

703
00:31:24.360 --> 00:31:26.820
<v ->Well, I actually, I absolutely agree with you, Your Honor.</v>

704
00:31:26.820 --> 00:31:28.410
I'm just saying-
<v ->That that's an additional-</v>

705
00:31:28.410 --> 00:31:29.243
<v ->That's just-</v>

706
00:31:29.243 --> 00:31:32.550
<v ->Yours is just a better case, as somebody said,</v>

707
00:31:32.550 --> 00:31:34.406
it's a good test case.

708
00:31:34.406 --> 00:31:37.770
But fundamentally, if you hate the person

709
00:31:37.770 --> 00:31:42.180
that you represent, that is the conflict.

710
00:31:42.180 --> 00:31:43.013
<v Edward>Absolutely, Your Honor.</v>

711
00:31:43.013 --> 00:31:45.630
<v ->The Facebook posts are the evidence.</v>

712
00:31:45.630 --> 00:31:47.400
<v ->That's 100% correct.</v>

713
00:31:47.400 --> 00:31:49.290
I agree with you completely.
<v ->Wanted to be clear</v>

714
00:31:49.290 --> 00:31:50.970
on the rule that you wanted us to make,

715
00:31:50.970 --> 00:31:52.950
because we will make a rule.

716
00:31:52.950 --> 00:31:57.000
And I wanted to make sure that,

717
00:31:57.000 --> 00:32:01.320
because you did the default settings on Facebook,

718
00:32:01.320 --> 00:32:02.463
which are public,

719
00:32:04.050 --> 00:32:08.580
that's not the reason why this is structural error.

720
00:32:08.580 --> 00:32:10.740
It's because you represent somebody

721
00:32:10.740 --> 00:32:13.530
who you fundamentally hate.

722
00:32:13.530 --> 00:32:14.370
<v ->Correct.</v>
<v ->Okay.</v>

723
00:32:14.370 --> 00:32:18.300
<v ->And you're supposedly working in his best interests.</v>

724
00:32:18.300 --> 00:32:20.210
<v ->Okay, I think we've...</v>

725
00:32:21.150 --> 00:32:23.334
<v ->I may have gone over a little. (laughing)</v>

726
00:32:23.334 --> 00:32:24.420
I apologize, Your Honors.

727
00:32:24.420 --> 00:32:26.190
<v ->No, thank you.</v>

728
00:32:26.190 --> 00:32:28.530
<v ->I just wanna say be before I go,</v>

729
00:32:28.530 --> 00:32:29.997
as I was working on this,

730
00:32:29.997 --> 00:32:33.300
and I just want to urge the court to take this opportunity

731
00:32:33.300 --> 00:32:36.270
to make a strong statement

732
00:32:36.270 --> 00:32:38.820
because of the persistence of this problem.

733
00:32:38.820 --> 00:32:40.080
We fought a war.

734
00:32:40.080 --> 00:32:42.810
We've amended the Constitution three times.

735
00:32:42.810 --> 00:32:43.680
I mean, we have...

736
00:32:43.680 --> 00:32:46.377
It's 2023 and we're still talking about this.

737
00:32:46.377 --> 00:32:50.160
And so I'm urging the court to take decisive action.

738
00:32:50.160 --> 00:32:51.633
Thank you.
<v ->Thank you.</v>

739
00:32:52.770 --> 00:32:53.643
Attorney Murphy.

740
00:33:00.630 --> 00:33:02.310
<v ->Good morning, and may it please the court?</v>

741
00:33:02.310 --> 00:33:04.410
My name is Adam Murphy with the Legal Defense Fund,

742
00:33:04.410 --> 00:33:06.300
and on behalf of (indistinct) LDF

743
00:33:06.300 --> 00:33:07.980
and the New England Innocence Project,

744
00:33:07.980 --> 00:33:10.260
I'm arguing in support of Mr. Dew.

745
00:33:10.260 --> 00:33:12.000
I want to briefly, if Your Honors may,

746
00:33:12.000 --> 00:33:13.920
go back to the points that Justice Cypher

747
00:33:13.920 --> 00:33:15.750
and Justice Gaziano were making,

748
00:33:15.750 --> 00:33:18.030
that there is just a fundamental difference

749
00:33:18.030 --> 00:33:20.820
between not liking someone based on what they did

750
00:33:20.820 --> 00:33:22.590
and hating someone based on who they are.

751
00:33:22.590 --> 00:33:24.810
That's the principle that the U.S. Supreme Court

752
00:33:24.810 --> 00:33:28.260
has recently reaffirmed in Buck versus Davis,

753
00:33:28.260 --> 00:33:29.970
that our law punishes people for what they do,

754
00:33:29.970 --> 00:33:30.803
not who they are,

755
00:33:30.803 --> 00:33:32.700
and that fundamental fairness aspect

756
00:33:32.700 --> 00:33:34.170
is absolutely critical here.

757
00:33:34.170 --> 00:33:36.090
And we're, we're thinking about a standard,

758
00:33:36.090 --> 00:33:38.130
I completely agree with Justice Wendlandt

759
00:33:38.130 --> 00:33:43.130
that it's the animus that Mr. Doyle has toward Mr. Dew.

760
00:33:43.200 --> 00:33:46.680
And I think the standard that Judge Nguyen's concurrence

761
00:33:46.680 --> 00:33:48.840
set out in Ellis versus Harrison

762
00:33:48.840 --> 00:33:50.490
is sensible and it is limiting.

763
00:33:50.490 --> 00:33:52.890
When there is clear evidence of extreme

764
00:33:52.890 --> 00:33:56.700
and deep-rooted bias against a particular cognizable group,

765
00:33:56.700 --> 00:33:59.670
that attorney cannot represent that cognizable group.

766
00:33:59.670 --> 00:34:02.610
It is antithetical to the duty of loyalty,

767
00:34:02.610 --> 00:34:05.133
which is counsel's most basic duties,

768
00:34:05.133 --> 00:34:09.660
and that is especially true when we are dealing with issues

769
00:34:09.660 --> 00:34:11.820
of race and when we're dealing with issues of religion.

770
00:34:11.820 --> 00:34:15.690
And consistent with this court's precedent of recognizing

771
00:34:15.690 --> 00:34:18.930
that race must be addressed with added precaution,

772
00:34:18.930 --> 00:34:21.930
that it implicates unique historical-

773
00:34:21.930 --> 00:34:23.100
<v ->I'm sorry.</v>
<v ->No, go ahead.</v>

774
00:34:23.100 --> 00:34:24.720
<v ->Well, counsel, I'm still struggling to say</v>

775
00:34:24.720 --> 00:34:28.290
why can't we look at this through the lens of the IAF claim?

776
00:34:28.290 --> 00:34:31.710
Because again, you have a metrics here.

777
00:34:31.710 --> 00:34:33.630
I mean, if you have reasonably prudent

778
00:34:33.630 --> 00:34:35.160
criminal defense attorneys,

779
00:34:35.160 --> 00:34:39.060
we can look to see what counsel did and what he didn't do.

780
00:34:39.060 --> 00:34:41.820
And so why couldn't we just measure whether or not

781
00:34:41.820 --> 00:34:45.540
this manifested, not as a structural aspect,

782
00:34:45.540 --> 00:34:48.720
but as an IAF aspect and say,

783
00:34:48.720 --> 00:34:50.820
what would somebody reasonably prudent

784
00:34:50.820 --> 00:34:53.700
representing Mr. Dew would or would not have done?

785
00:34:53.700 --> 00:34:54.630
Why can't we do.

786
00:34:54.630 --> 00:34:55.590
<v ->Just to make sure I understand,</v>

787
00:34:55.590 --> 00:34:57.270
IAF, ineffective assistance

788
00:34:57.270 --> 00:34:58.470
of counsel.
<v ->Yes.</v>

789
00:34:58.470 --> 00:35:01.290
<v ->It's because when attorney's representation</v>

790
00:35:01.290 --> 00:35:04.500
is corrupted by conflicting loyalties,

791
00:35:04.500 --> 00:35:07.890
the error's effects are just simply too hard to measure.

792
00:35:07.890 --> 00:35:11.717
And so you could look objectively at the prejudice here,

793
00:35:11.717 --> 00:35:15.030
and there are clearly errors in this case,

794
00:35:15.030 --> 00:35:15.863
but the whole point,

795
00:35:15.863 --> 00:35:19.830
and what is analyzed in structural error cases more broadly,

796
00:35:19.830 --> 00:35:23.190
is that defense counsel is making actions and inactions

797
00:35:23.190 --> 00:35:24.300
all of the time.

798
00:35:24.300 --> 00:35:26.550
And when they have divided loyalty,

799
00:35:26.550 --> 00:35:28.830
it doesn't always show up in a transcript.

800
00:35:28.830 --> 00:35:31.620
It's difficult to pinpoint, and to put the burden,

801
00:35:31.620 --> 00:35:33.630
the insuperable burden on the defendant,

802
00:35:33.630 --> 00:35:36.126
the person who's being discriminated against,

803
00:35:36.126 --> 00:35:39.150
would be perverse and would be antithetical.

804
00:35:39.150 --> 00:35:42.090
<v ->Do you agree that the actual conflict is the issue here</v>

805
00:35:42.090 --> 00:35:45.570
as opposed to the ineffective assistance

806
00:35:45.570 --> 00:35:47.403
and/or equal protection?

807
00:35:48.300 --> 00:35:51.300
<v ->We support all of merit's counsel's arguments,</v>

808
00:35:51.300 --> 00:35:52.920
but from our perspective,

809
00:35:52.920 --> 00:35:54.420
we focus on the conflict of interest,

810
00:35:54.420 --> 00:35:56.376
because it's the most clear.

811
00:35:56.376 --> 00:35:59.509
<v ->Legal Protection has a state of action issue that's-</v>

812
00:35:59.509 --> 00:36:01.113
<v ->Yes, Your Honor.</v>

813
00:36:03.240 --> 00:36:08.070
Yes, as CPCS found, there is a clear...

814
00:36:08.070 --> 00:36:11.880
You can't reconcile Mr. Doyle's views

815
00:36:11.880 --> 00:36:13.230
with the duty of loyalty.

816
00:36:13.230 --> 00:36:16.800
And just going back to the point about the factual record,

817
00:36:16.800 --> 00:36:17.880
I wanna just clarify something.

818
00:36:17.880 --> 00:36:18.713
<v ->No, I don't,</v>

819
00:36:18.713 --> 00:36:20.850
I think Judge Sanders is of the fact finder not CPCS,

820
00:36:20.850 --> 00:36:21.900
with all due respect.

821
00:36:21.900 --> 00:36:24.120
<v ->Oh, without question, without question.</v>

822
00:36:24.120 --> 00:36:27.300
But just to review what the transcript said,

823
00:36:27.300 --> 00:36:29.130
and I say it to confirm that there's

824
00:36:29.130 --> 00:36:30.150
a conflict of interest in this case.

825
00:36:30.150 --> 00:36:33.330
Our position strongly is that the view

826
00:36:33.330 --> 00:36:36.420
in Ellis versus Harrison is sensible, it's limiting,

827
00:36:36.420 --> 00:36:38.040
when there's clear evidence of extreme

828
00:36:38.040 --> 00:36:39.270
and deep-rooted racial bias-

829
00:36:39.270 --> 00:36:40.996
<v ->What is the rule in Ellis, though?</v>

830
00:36:40.996 --> 00:36:42.180
'Cause that's what I'm trying to understand,

831
00:36:42.180 --> 00:36:44.910
because Ellis doesn't do an actual conflict analysis,

832
00:36:44.910 --> 00:36:45.743
does it?

833
00:36:45.743 --> 00:36:47.460
It just says,

834
00:36:47.460 --> 00:36:48.660
it basically made your point,

835
00:36:48.660 --> 00:36:53.490
which is if there's sort of virulent prejudice demonstrated,

836
00:36:53.490 --> 00:36:54.843
we're gonna reverse.

837
00:36:56.550 --> 00:36:58.200
They didn't do...

838
00:36:58.200 --> 00:37:01.140
They didn't apply actual conflict analysis, do they?

839
00:37:01.140 --> 00:37:03.630
<v ->I think as a technical matter, Your Honor is right.</v>

840
00:37:03.630 --> 00:37:05.910
But I think the distinction sounds in

841
00:37:05.910 --> 00:37:08.040
the difference between federal law

842
00:37:08.040 --> 00:37:11.010
and this court's jurisprudence applying Article 10.

843
00:37:11.010 --> 00:37:13.350
In Ellis versus Harrison. Mr. Ellis conceded

844
00:37:13.350 --> 00:37:15.090
that he could not show adverse effect,

845
00:37:15.090 --> 00:37:17.760
which of course under the Sixth Amendment is the requirement

846
00:37:17.760 --> 00:37:20.160
for proving an actual conflict.

847
00:37:20.160 --> 00:37:23.400
Obviously with this court, which is more protective

848
00:37:23.400 --> 00:37:25.800
and has deviated from the Federal Constitution,

849
00:37:25.800 --> 00:37:27.900
there's no requirement of adverse effect.

850
00:37:27.900 --> 00:37:32.900
<v ->But in Ellis, also, there's a lot directed at the,</v>

851
00:37:33.240 --> 00:37:34.473
his own client.

852
00:37:36.090 --> 00:37:37.980
Much more than here, right?

853
00:37:37.980 --> 00:37:40.920
In Ellis, he belittles his client.

854
00:37:40.920 --> 00:37:43.500
He basically,

855
00:37:43.500 --> 00:37:46.350
doesn't he say he wants his client to lose at some point?

856
00:37:48.305 --> 00:37:50.250
He indicates that he's not

857
00:37:50.250 --> 00:37:52.590
trying to vigorously represent him, right?

858
00:37:52.590 --> 00:37:54.150
<v ->No, Your Honor.</v>

859
00:37:54.150 --> 00:37:57.120
So in Ellis, the court makes clear

860
00:37:57.120 --> 00:38:00.000
that he actually didn't direct any racial invective,

861
00:38:00.000 --> 00:38:03.074
that's the exact language, toward Mr. Ellis himself.

862
00:38:03.074 --> 00:38:06.390
The reference to other clients

863
00:38:06.390 --> 00:38:09.000
that Mr. Ellis's attorney had represented.

864
00:38:09.000 --> 00:38:10.890
But in terms of Mr. Ellis himself,

865
00:38:10.890 --> 00:38:13.620
you actually see the effect on representation

866
00:38:13.620 --> 00:38:15.630
sort of much more dramatically here.

867
00:38:15.630 --> 00:38:19.710
And what the CPCS investigator made clear

868
00:38:19.710 --> 00:38:23.250
was that what he saw in these Facebook posts

869
00:38:23.250 --> 00:38:26.370
was entirely consistent with

870
00:38:26.370 --> 00:38:31.370
the person that he knew Mr. Doyle to be in practice.

871
00:38:31.440 --> 00:38:34.440
And so the sort of bleeding into the courtroom

872
00:38:34.440 --> 00:38:35.310
is quite evident.

873
00:38:35.310 --> 00:38:37.680
And I just wanna make one more quick point

874
00:38:37.680 --> 00:38:41.040
that the nexus between these Facebook posts

875
00:38:41.040 --> 00:38:44.460
and how it was actually manifesting in practice is,

876
00:38:44.460 --> 00:38:45.540
though it's not required,

877
00:38:45.540 --> 00:38:46.950
is extraordinary in this case,

878
00:38:46.950 --> 00:38:49.320
that specifically in the weeks and months

879
00:38:49.320 --> 00:38:52.140
leading up to his representation of Mr. Dew,

880
00:38:52.140 --> 00:38:56.100
Mr. Doyle is posting vial and violent racial epithets

881
00:38:56.100 --> 00:38:56.933
about Muslim people,

882
00:38:56.933 --> 00:38:59.580
and specifically about Muslim religious headwear.

883
00:38:59.580 --> 00:39:01.830
And then at that first meeting when Mr. Doyle walks in,

884
00:39:01.830 --> 00:39:04.117
when Mr. Dew walks in and Mr. Doyle says,

885
00:39:04.117 --> 00:39:07.110
"Take that off and don't come back in here with that ever."

886
00:39:07.110 --> 00:39:07.943
And that's,

887
00:39:07.943 --> 00:39:08.940
and I implore the court to look at

888
00:39:08.940 --> 00:39:12.600
the May 6th, 2022, hearing transcript,

889
00:39:12.600 --> 00:39:14.220
which lays out all of this.

890
00:39:14.220 --> 00:39:16.050
The second meeting he sees Mr. Dew

891
00:39:16.050 --> 00:39:18.480
again wearing a kufi and storms out of the room,

892
00:39:18.480 --> 00:39:19.980
and they don't talk about the case at all.

893
00:39:19.980 --> 00:39:21.187
And in the third meeting he says,

894
00:39:21.187 --> 00:39:24.150
"Don't wear that S-H-I-T in the courtroom."

895
00:39:24.150 --> 00:39:26.070
And so the nexus-

896
00:39:26.070 --> 00:39:28.530
<v ->That is the extent of the contact</v>

897
00:39:28.530 --> 00:39:31.230
between this lawyer and his client,

898
00:39:31.230 --> 00:39:34.623
and each time there, it is,

899
00:39:37.230 --> 00:39:41.433
caked in racist, anti-Muslim views.

900
00:39:42.330 --> 00:39:43.860
<v ->That's exactly right, Your Honor.</v>

901
00:39:43.860 --> 00:39:45.120
That's exactly right, yeah.

902
00:39:45.120 --> 00:39:46.890
And Mr. Dew testified that they actually

903
00:39:46.890 --> 00:39:48.240
never spoke about the case at all.

904
00:39:48.240 --> 00:39:51.483
That they basically talked for a total of five minutes.

905
00:39:52.320 --> 00:39:56.670
And any case where the court makes a rule

906
00:39:56.670 --> 00:39:59.160
is gonna have a cost,

907
00:39:59.160 --> 00:40:01.230
and the court will have to decide how far it goes.

908
00:40:01.230 --> 00:40:02.850
But it's also, I think, very important

909
00:40:02.850 --> 00:40:06.270
to understand the cost to the system itself,

910
00:40:06.270 --> 00:40:10.140
that the appearance of justice and the reliability,

911
00:40:10.140 --> 00:40:12.180
the credibility, and the integrity

912
00:40:12.180 --> 00:40:14.670
of the criminal legal system requires

913
00:40:14.670 --> 00:40:16.200
that this case be reversed,

914
00:40:16.200 --> 00:40:19.440
and all of us at LDF urge the court

915
00:40:19.440 --> 00:40:21.210
to reverse Mr. Dew's conviction

916
00:40:21.210 --> 00:40:23.730
and provide a sensible remedy here.

917
00:40:23.730 --> 00:40:25.313
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

918
00:40:27.177 --> 00:40:28.713
<v ->And Attorney Francisco.</v>

919
00:40:36.930 --> 00:40:39.000
<v ->Good morning, Your Honors.</v>

920
00:40:39.000 --> 00:40:40.350
May it please the court?

921
00:40:40.350 --> 00:40:41.550
I'm Anna Francisco,

922
00:40:41.550 --> 00:40:44.880
and I'm here representing a group of (indistinct)

923
00:40:44.880 --> 00:40:48.540
who are deeply committed to eradicating

924
00:40:48.540 --> 00:40:52.590
identity-based disparities in the justice system.

925
00:40:52.590 --> 00:40:56.573
And in my remarks to the court, I'd like to focus

926
00:40:56.573 --> 00:41:01.573
on that system and the importance of having confidence

927
00:41:04.560 --> 00:41:07.380
in the integrity of that system.

928
00:41:07.380 --> 00:41:12.380
Picking up on some threads that came up in earlier colloquy

929
00:41:13.740 --> 00:41:17.700
with Mr. Gaffney, Mr. Murphy,

930
00:41:17.700 --> 00:41:20.760
the Supreme Court and this court have recognized

931
00:41:20.760 --> 00:41:24.690
that racial bias implicates unique historical,

932
00:41:24.690 --> 00:41:28.470
constitutional, and institutional concerns,

933
00:41:28.470 --> 00:41:33.150
that if left unaddressed would risk systemic injury

934
00:41:33.150 --> 00:41:35.280
to the administration of justice.

935
00:41:35.280 --> 00:41:38.520
And I submit to you that a situation in which

936
00:41:38.520 --> 00:41:40.653
a court-appointed lawyer,

937
00:41:41.820 --> 00:41:46.263
who engages in the kind of conduct that we have here,

938
00:41:47.340 --> 00:41:52.340
posting vile, racist, religiously bigoted comments,

939
00:41:52.950 --> 00:41:57.950
and then being appointed to represent a member of the group,

940
00:41:58.320 --> 00:42:01.590
a man who is Black, a man who is Muslim,

941
00:42:01.590 --> 00:42:04.350
is precisely the kind of issue

942
00:42:04.350 --> 00:42:06.810
that does undermine confidence

943
00:42:06.810 --> 00:42:08.970
in the integrity of our system.

944
00:42:08.970 --> 00:42:10.135
<v ->Counsel, may I ask you,</v>

945
00:42:10.135 --> 00:42:14.160
because we're seemingly focused,

946
00:42:14.160 --> 00:42:16.290
and we as a court,

947
00:42:16.290 --> 00:42:19.230
have a much zoomed out view than just the narrow,

948
00:42:19.230 --> 00:42:21.660
the view that you're talking about here.

949
00:42:21.660 --> 00:42:22.770
So if we're going to...

950
00:42:22.770 --> 00:42:27.603
If we're going to localize this to as a Black male or,

951
00:42:28.530 --> 00:42:32.970
what if the posts were all in support of law enforcement,

952
00:42:32.970 --> 00:42:35.430
where it was one post after another,

953
00:42:35.430 --> 00:42:38.550
another Blue Lives Matter, we support the police,

954
00:42:38.550 --> 00:42:40.170
it was one post after the other,

955
00:42:40.170 --> 00:42:42.060
that if you could extrapolate and say

956
00:42:42.060 --> 00:42:44.940
it's antithetical to at least perhaps

957
00:42:44.940 --> 00:42:48.030
what my client feels as a Black man in America

958
00:42:48.030 --> 00:42:50.940
and my feelings against the police, would this count?

959
00:42:50.940 --> 00:42:51.773
Would that count?

960
00:42:51.773 --> 00:42:53.730
Would that equally implicate this?

961
00:42:53.730 --> 00:42:57.120
<v ->I think that's a much harder question,</v>

962
00:42:57.120 --> 00:42:59.550
and candidly I think no,

963
00:42:59.550 --> 00:43:02.280
but here we don't have to engage in that,

964
00:43:02.280 --> 00:43:04.470
because I do agree with Mr. Murphy

965
00:43:04.470 --> 00:43:09.470
that the standard that was set out in Harris v Ellis

966
00:43:09.810 --> 00:43:11.424
is the right standard.

967
00:43:11.424 --> 00:43:12.840
I mean, we have an extreme case.

968
00:43:12.840 --> 00:43:15.000
I think it's noteworthy that

969
00:43:15.000 --> 00:43:20.000
searching as all three litigants here, or not litigants,

970
00:43:20.010 --> 00:43:22.950
but all three parties here in support of reversal

971
00:43:22.950 --> 00:43:27.360
did scour to see are there other cases like this?

972
00:43:27.360 --> 00:43:30.330
And we came up with Ellis v Harris,

973
00:43:30.330 --> 00:43:33.870
and no other reported case in which we have

974
00:43:33.870 --> 00:43:37.380
such extreme and clear conduct.

975
00:43:37.380 --> 00:43:39.780
And I have to say in the

976
00:43:39.780 --> 00:43:44.190
month or so that I've been engaged by my clients,

977
00:43:44.190 --> 00:43:47.640
and thinking of these issues to the extent I tell any lawyer

978
00:43:47.640 --> 00:43:49.830
the basic facts of this case,

979
00:43:49.830 --> 00:43:52.650
uniformly the reaction is one of shock,

980
00:43:52.650 --> 00:43:54.450
that of course there's a conflict

981
00:43:54.450 --> 00:43:59.450
because his, Attorney Doyle's biases were

982
00:44:00.030 --> 00:44:03.720
so deep-seated and he made no,

983
00:44:03.720 --> 00:44:08.220
he made no effort to conceal them.

984
00:44:08.220 --> 00:44:09.930
Whether, I agree with Justice Wendlandt,

985
00:44:09.930 --> 00:44:12.030
whether it was public or not, to me,

986
00:44:12.030 --> 00:44:13.170
is neither here nor there.

987
00:44:13.170 --> 00:44:16.410
We have evidence that this man hated Mr. Dew

988
00:44:16.410 --> 00:44:19.380
because of who Mr. Dew was.

989
00:44:19.380 --> 00:44:23.910
And there's no gray area here.

990
00:44:23.910 --> 00:44:28.570
And his personal conduct in the three meetings,

991
00:44:28.570 --> 00:44:31.380
and I think it's really generous to call them meetings,

992
00:44:31.380 --> 00:44:34.050
frankly, that he had with Mr. Dew,

993
00:44:34.050 --> 00:44:37.110
just underscores how much he just hated Mr. Dew

994
00:44:37.110 --> 00:44:39.720
because Mr. Dew was a Muslim.

995
00:44:39.720 --> 00:44:44.250
And I think the case that you are positing,

996
00:44:44.250 --> 00:44:46.800
I think it's perfectly possible

997
00:44:46.800 --> 00:44:51.540
to support the police and support blue lives

998
00:44:51.540 --> 00:44:53.490
and not be a virulent racist.

999
00:44:53.490 --> 00:44:56.670
But that's not the situation that is facing the court here.

1000
00:44:56.670 --> 00:45:01.653
And I hope, and I pray that these situations are rare,

1001
00:45:03.240 --> 00:45:06.600
but that is the situation before the court,

1002
00:45:06.600 --> 00:45:10.320
and Mr. Doyle, here,

1003
00:45:10.320 --> 00:45:15.000
was someone who just absolutely hated Muslims

1004
00:45:15.000 --> 00:45:17.820
and hated people of color,

1005
00:45:17.820 --> 00:45:19.830
whether they were African Americans,

1006
00:45:19.830 --> 00:45:21.780
whether they were Hispanics.

1007
00:45:21.780 --> 00:45:24.330
And given that,

1008
00:45:24.330 --> 00:45:28.770
he really could not fulfill his duty to his clients,

1009
00:45:28.770 --> 00:45:33.090
and the duty, the duty of a defense counsel in these cases

1010
00:45:33.090 --> 00:45:37.050
is paramount to our confidence

1011
00:45:37.050 --> 00:45:40.140
that our adversarial system works.

1012
00:45:40.140 --> 00:45:42.660
You need a fair judge, you need a fair jury,

1013
00:45:42.660 --> 00:45:47.550
and you need a lawyer who's going to go in there

1014
00:45:47.550 --> 00:45:49.980
and have loyalty only to the client

1015
00:45:49.980 --> 00:45:53.430
and serve only that client's best interests.

1016
00:45:53.430 --> 00:45:58.350
And none of us can say with any degree of confidence...

1017
00:45:58.350 --> 00:46:00.480
In fact, I think everyone on this panel

1018
00:46:00.480 --> 00:46:04.740
has expressed skepticism that Attorney Doyle

1019
00:46:04.740 --> 00:46:07.230
was capable of doing that.

1020
00:46:07.230 --> 00:46:12.230
And certainly the fact that he met, again,

1021
00:46:12.990 --> 00:46:17.220
a generous term in my view, with Mr. Dew three times,

1022
00:46:17.220 --> 00:46:20.700
a man who was facing serious felony charges,

1023
00:46:20.700 --> 00:46:25.260
is evidence that he had his mind made up about Mr. Dew,

1024
00:46:25.260 --> 00:46:28.050
and he was not going to do his best

1025
00:46:28.050 --> 00:46:30.927
to faithfully and zealously represent this man.

1026
00:46:30.927 --> 00:46:33.000
And in our system of justice,

1027
00:46:33.000 --> 00:46:35.013
that's what Mr. Dew is entitled to.

1028
00:46:36.870 --> 00:46:38.580
<v ->Okay, thank you.</v>
<v ->Anything else</v>

1029
00:46:38.580 --> 00:46:39.413
from the panel?

1030
00:46:39.413 --> 00:46:40.350
Thank you, and Your Honor,

1031
00:46:40.350 --> 00:46:43.980
we urge reversal, and on by behalf of (indistinct)

1032
00:46:43.980 --> 00:46:47.190
we do agree that this court should consider a system

1033
00:46:47.190 --> 00:46:51.660
for reviewing other clients of Mr. Doyle's

1034
00:46:51.660 --> 00:46:53.790
who are African American, who were Muslim,

1035
00:46:53.790 --> 00:46:58.740
who were immigrants, the groups that he,

1036
00:46:58.740 --> 00:47:02.700
time and time again, denigrated on Facebook

1037
00:47:02.700 --> 00:47:07.410
and demonstrated his identity-based hatred for them.

1038
00:47:07.410 --> 00:47:08.490
I appreciate your attention.

1039
00:47:08.490 --> 00:47:09.323
Thank you.

1040
00:47:11.160 --> 00:47:12.363
<v ->Okay, Attorney Lynn.</v>

1041
00:47:18.810 --> 00:47:20.280
<v ->Well, your job's gonna be easy.</v>

1042
00:47:20.280 --> 00:47:22.340
<v ->Yes. (laughing)</v>
<v ->So-</v>

1043
00:47:22.340 --> 00:47:23.350
<v ->I was gonna say-</v>
<v ->How did you get picked?</v>

1044
00:47:23.350 --> 00:47:25.050
<v ->Well, I will start with something easy.</v>

1045
00:47:25.050 --> 00:47:27.603
I can answer Justice Cypher's question,

1046
00:47:28.470 --> 00:47:33.180
which is that the course of the investigation

1047
00:47:33.180 --> 00:47:35.610
of Attorney Doyle is set out, at least in the documents

1048
00:47:35.610 --> 00:47:38.820
that my brother has submitted to the court,

1049
00:47:38.820 --> 00:47:40.260
which the Commonwealth has no objection

1050
00:47:40.260 --> 00:47:41.760
to this court considering.

1051
00:47:41.760 --> 00:47:45.360
The posts first came to CPCS's attention

1052
00:47:45.360 --> 00:47:50.103
in September of 2017 when one CPCS lawyer reported it.

1053
00:47:52.099 --> 00:47:54.510
How that lawyer found out about it, we don't know.

1054
00:47:54.510 --> 00:47:56.460
Possibly was a friend of Attorney Doyle's on Facebook,

1055
00:47:56.460 --> 00:47:57.930
but we don't know that.

1056
00:47:57.930 --> 00:48:01.470
He was investigated from November of 2017

1057
00:48:01.470 --> 00:48:06.470
to February of 2018, and that's when he was suspended.

1058
00:48:08.130 --> 00:48:09.480
<v ->Attorney Lynn, let me just ask you</v>

1059
00:48:09.480 --> 00:48:11.490
to give us your best case for this

1060
00:48:11.490 --> 00:48:14.130
not being an actual conflict of interest.

1061
00:48:14.130 --> 00:48:16.230
<v ->Well, I think Ellis is the best case.</v>

1062
00:48:16.230 --> 00:48:19.020
I think it's where you have,

1063
00:48:19.020 --> 00:48:21.690
what Justice Nguyen said was

1064
00:48:21.690 --> 00:48:26.487
you have to have evidence that this prejudice was so...

1065
00:48:31.457 --> 00:48:33.270
I can't remember the exact words,

1066
00:48:33.270 --> 00:48:36.570
but it's so deep-rooted that there's no way

1067
00:48:36.570 --> 00:48:38.100
that the defense counsel...

1068
00:48:38.100 --> 00:48:39.510
Now, the Commonwealth stands here,

1069
00:48:39.510 --> 00:48:40.890
as we have throughout this process,

1070
00:48:40.890 --> 00:48:45.390
saying there's no question that these things

1071
00:48:45.390 --> 00:48:49.230
that Attorney Doyle posted on Facebook are horrible.

1072
00:48:49.230 --> 00:48:52.410
They are shocking, they are racist, they are anti-Muslim,

1073
00:48:52.410 --> 00:48:54.407
they are crude.

1074
00:48:54.407 --> 00:48:58.380
They are just the most awful kind of prejudice.

1075
00:48:58.380 --> 00:49:01.920
But Attorney Doyle practiced for over 20 years,

1076
00:49:01.920 --> 00:49:04.020
as a defense attorney.

1077
00:49:04.020 --> 00:49:06.240
And over that 20 years,

1078
00:49:06.240 --> 00:49:11.240
nobody suspected that he had any racial animus, whatsoever.

1079
00:49:11.520 --> 00:49:14.913
<v ->Here's the issue, for me at least,</v>

1080
00:49:16.080 --> 00:49:18.960
with actions speaking louder than words.

1081
00:49:18.960 --> 00:49:20.823
And as Justice Wendlant laid out,

1082
00:49:21.780 --> 00:49:26.780
the only time that he interacted with Mr. Dew,

1083
00:49:26.790 --> 00:49:29.820
he brought up his religious headwear,

1084
00:49:29.820 --> 00:49:32.283
and was, frankly, disgusted by it.

1085
00:49:34.500 --> 00:49:37.830
We have a case where that's the only thing

1086
00:49:37.830 --> 00:49:41.010
that we really have before us.

1087
00:49:41.010 --> 00:49:46.010
And doesn't that show that he's incapable of treating him

1088
00:49:46.710 --> 00:49:50.880
as he should have as a lawyer because of his bias?

1089
00:49:52.264 --> 00:49:55.440
He's only seeing them, and you've been around,

1090
00:49:55.440 --> 00:49:57.300
he goes into the jail to talk about the guy

1091
00:49:57.300 --> 00:50:00.150
who's looking at some serious minimum mandatories,

1092
00:50:00.150 --> 00:50:05.150
he's so disgusted by his kufi that he walks out.

1093
00:50:05.190 --> 00:50:07.470
To me that's extraordinary that a lawyer

1094
00:50:07.470 --> 00:50:09.960
would take a trip to the jail,

1095
00:50:09.960 --> 00:50:11.880
you would spend hours out of his day,

1096
00:50:11.880 --> 00:50:13.260
or time out of his day,

1097
00:50:13.260 --> 00:50:16.530
and just turn around and walk out disgusted.

1098
00:50:16.530 --> 00:50:18.420
Doesn't that manifest

1099
00:50:18.420 --> 00:50:22.470
the standard that a reasonable observer

1100
00:50:22.470 --> 00:50:24.690
would conclude that he has divided loyalties?

1101
00:50:24.690 --> 00:50:27.390
That he can't represent this person 'cause he's disgusted,

1102
00:50:27.390 --> 00:50:28.570
he can't be in the same room with him?

1103
00:50:28.570 --> 00:50:31.410
<v ->Well, the interesting thing about that incident</v>

1104
00:50:31.410 --> 00:50:35.490
is that Mr. Dew swears...

1105
00:50:35.490 --> 00:50:37.140
First of all, he swears in his affidavit

1106
00:50:37.140 --> 00:50:39.591
that despite those incidents, he had no idea...

1107
00:50:39.591 --> 00:50:42.600
<v ->That's actually what, thank you for reminding me.</v>

1108
00:50:42.600 --> 00:50:45.630
Mr. Dew says, "I didn't see it as a problem."

1109
00:50:45.630 --> 00:50:48.000
But isn't that a Mr. Dew perception issue,

1110
00:50:48.000 --> 00:50:51.390
that maybe he's used to discrimination.

1111
00:50:51.390 --> 00:50:54.930
That's the problem here that we shouldn't have someone,

1112
00:50:54.930 --> 00:50:59.640
just because Mr. Dew, frankly, has a thick skin on this,

1113
00:50:59.640 --> 00:51:01.680
and is able to say, oh my God,

1114
00:51:01.680 --> 00:51:04.440
maybe my lawyer's havin' a bad day,

1115
00:51:04.440 --> 00:51:06.270
I guess good for Mr. Dew,

1116
00:51:06.270 --> 00:51:08.160
but that doesn't really tell us anything.

1117
00:51:08.160 --> 00:51:10.740
<v ->Well, it does tell how he perceived this.</v>

1118
00:51:10.740 --> 00:51:14.130
First of all, that's certainly the issue in Fraser

1119
00:51:14.130 --> 00:51:17.670
was that the attorney said to his client's face,

1120
00:51:17.670 --> 00:51:18.847
called him the N word and said,

1121
00:51:18.847 --> 00:51:20.433
"If you don't take this plea,

1122
00:51:22.207 --> 00:51:24.030
"I'm not gonna represent you zealously."

1123
00:51:24.030 --> 00:51:28.710
Here, of course, these interactions with the kufi

1124
00:51:28.710 --> 00:51:31.080
don't lead Mr. Dew to believe

1125
00:51:31.080 --> 00:51:32.250
that he can't trust his attorney.

1126
00:51:32.250 --> 00:51:33.750
In fact, he does trust his attorney

1127
00:51:33.750 --> 00:51:35.340
and ends up pleading guilty, which if-

1128
00:51:35.340 --> 00:51:38.070
<v ->But so what, when we look at it objectively.</v>

1129
00:51:38.070 --> 00:51:38.970
<v ->I think that is...</v>

1130
00:51:38.970 --> 00:51:41.190
You look at that objectively based on the facts

1131
00:51:41.190 --> 00:51:42.590
and you see that you have...

1132
00:51:42.590 --> 00:51:46.440
It would not be necessarily racist,

1133
00:51:46.440 --> 00:51:50.520
or I mean, bigoted to say,

1134
00:51:50.520 --> 00:51:51.397
for an attorney to say,

1135
00:51:51.397 --> 00:51:53.257
"You don't want to wear that kufi in the courtroom,

1136
00:51:53.257 --> 00:51:55.297
"because there's free floating bias out there.

1137
00:51:55.297 --> 00:51:57.477
"People are gonna think badly of you."

1138
00:51:58.434 --> 00:52:00.727
<v ->Which could be a response saying,</v>

1139
00:52:00.727 --> 00:52:02.670
"Listen, we have a jury..."

1140
00:52:02.670 --> 00:52:04.590
Tactfully, you could say something like that,

1141
00:52:04.590 --> 00:52:07.340
that we don't want you to be prejudiced, but he didn't.

1142
00:52:09.060 --> 00:52:11.700
All right, if I give him a pass on the first meeting,

1143
00:52:11.700 --> 00:52:13.170
and he says, "Don't wear that in the courtroom."

1144
00:52:13.170 --> 00:52:15.690
The second meeting, no way.
<v ->It's tougher.</v>

1145
00:52:15.690 --> 00:52:18.630
And I would point out regarding the third meeting,

1146
00:52:18.630 --> 00:52:22.593
my brother characterizes, as an omission or mistake,

1147
00:52:23.880 --> 00:52:26.820
by the judge below that she didn't include

1148
00:52:26.820 --> 00:52:29.340
the reference to the kufi there,

1149
00:52:29.340 --> 00:52:30.510
this is a credibility issue.

1150
00:52:30.510 --> 00:52:31.477
The Commonwealth-
<v ->He said,</v>

1151
00:52:31.477 --> 00:52:34.047
"I believe everything Mr. Dew said."

1152
00:52:35.402 --> 00:52:37.710
<v ->I will have to reread that.</v>

1153
00:52:37.710 --> 00:52:38.543
But she didn't say it

1154
00:52:38.543 --> 00:52:40.135
with that language.
<v ->Yeah, I don't remember.</v>

1155
00:52:40.135 --> 00:52:41.398
<v ->She said, "I find..."</v>

1156
00:52:41.398 --> 00:52:42.270
(cross talking)

1157
00:52:42.270 --> 00:52:43.845
<v Attorney Lynn>I believe his statements that-</v>

1158
00:52:43.845 --> 00:52:47.700
<v ->She says, I credit Mr. Dew and is contradicted.</v>

1159
00:52:47.700 --> 00:52:49.410
So we are gettin' a Jones Parnell dance.

1160
00:52:49.410 --> 00:52:51.630
But I take what you said.

1161
00:52:51.630 --> 00:52:52.830
<v ->That would be certainly</v>

1162
00:52:52.830 --> 00:52:57.830
his credibility at the hearing was not uncontradicted.

1163
00:52:58.470 --> 00:53:00.960
We vehemently opposed that his testimony

1164
00:53:00.960 --> 00:53:01.950
was wholly uncredible.

1165
00:53:01.950 --> 00:53:04.410
The judge did, of course, find credible

1166
00:53:04.410 --> 00:53:08.520
the fact that Doyle went back to the jail and turned around.

1167
00:53:08.520 --> 00:53:10.680
But I think there is no evidence.

1168
00:53:10.680 --> 00:53:14.070
I think it is counterfactual that he said it the third time.

1169
00:53:14.070 --> 00:53:14.903
Can I-
<v ->And certainly</v>

1170
00:53:14.903 --> 00:53:16.260
they didn't call a court officer or anything

1171
00:53:16.260 --> 00:53:17.093
to back that up.

1172
00:53:17.093 --> 00:53:18.987
Yes, Judge Wendlandt.

1173
00:53:18.987 --> 00:53:21.420
<v ->Can I ask you to articulate the thought</v>

1174
00:53:21.420 --> 00:53:23.370
that you had started with,

1175
00:53:23.370 --> 00:53:27.640
that the fact that Mr. Dew didn't perceive

1176
00:53:28.680 --> 00:53:33.680
the racist, anti-Muslim feelings of his counsel

1177
00:53:35.700 --> 00:53:36.690
was important.

1178
00:53:36.690 --> 00:53:38.850
Can I ask you to explain that to me

1179
00:53:38.850 --> 00:53:43.830
why that is such a significant fact, in your estimation?

1180
00:53:43.830 --> 00:53:48.090
<v ->Because it meant that Doyle and his client</v>

1181
00:53:48.090 --> 00:53:49.590
were able to work together.

1182
00:53:49.590 --> 00:53:50.820
And it's important to realize,

1183
00:53:50.820 --> 00:53:52.110
I mean obviously this doesn't matter

1184
00:53:52.110 --> 00:53:53.460
if there's a conflict of interest-

1185
00:53:53.460 --> 00:53:54.630
<v ->Work together.</v>
<v ->Hmm?</v>

1186
00:53:54.630 --> 00:53:56.160
<v ->When did they work together?</v>

1187
00:53:56.160 --> 00:54:00.150
<v ->Well, they worked together in agreeing to plea,</v>

1188
00:54:00.150 --> 00:54:01.110
for him agreeing to plea guilty.

1189
00:54:01.110 --> 00:54:02.370
It's important though, of course, as I say,

1190
00:54:02.370 --> 00:54:04.080
it doesn't matter if there's a conflict of interest,

1191
00:54:04.080 --> 00:54:06.660
but I will get to that in a second.

1192
00:54:06.660 --> 00:54:09.540
The problem is, throughout this case,

1193
00:54:09.540 --> 00:54:12.120
is that Mr. Dew is dead to rights.

1194
00:54:12.120 --> 00:54:14.550
He has made videos advertising

1195
00:54:14.550 --> 00:54:19.110
his human trafficking victim services.

1196
00:54:19.110 --> 00:54:22.593
He has made personal videos showing his,

1197
00:54:23.490 --> 00:54:26.010
the women who work for him,

1198
00:54:26.010 --> 00:54:28.680
writhing on the ground because his drugs are so good.

1199
00:54:28.680 --> 00:54:31.200
<v ->Which goes to the IAC claim, which-</v>

1200
00:54:31.200 --> 00:54:32.640
<v ->Yeah, and they all show up so there's-</v>

1201
00:54:32.640 --> 00:54:34.590
<v Frank>Which are gonna win, but big deal.</v>

1202
00:54:34.590 --> 00:54:35.423
<v ->No, but it's,</v>

1203
00:54:35.423 --> 00:54:37.650
the point is there's nothing to do.

1204
00:54:37.650 --> 00:54:40.593
If you look at the course of the case,

1205
00:54:42.780 --> 00:54:44.550
Attorney Perullo has filed all these motion.

1206
00:54:44.550 --> 00:54:46.050
He says he would've filed this other motion.

1207
00:54:46.050 --> 00:54:49.410
But when there's videos and the victims have come forward,

1208
00:54:49.410 --> 00:54:50.783
that's not gonna do anything.

1209
00:54:50.783 --> 00:54:51.616
<v ->But again, so we...</v>

1210
00:54:51.616 --> 00:54:53.310
Let's move on from there.

1211
00:54:53.310 --> 00:54:56.370
<v ->So (indistinct) no court has ever found</v>

1212
00:54:56.370 --> 00:54:58.740
that racism created conflict of interest,

1213
00:54:58.740 --> 00:55:00.933
and I don't think, certainly the federal court-

1214
00:55:00.933 --> 00:55:03.540
<v ->You think that a court would permit</v>

1215
00:55:03.540 --> 00:55:08.540
a neo-Nazi to represent a Jewish family or a Jewish person?

1216
00:55:09.720 --> 00:55:10.620
<v ->I don't think there's...</v>

1217
00:55:10.620 --> 00:55:11.520
It's important to look at it

1218
00:55:11.520 --> 00:55:12.502
perspective versus-
<v ->Or a member of</v>

1219
00:55:12.502 --> 00:55:13.890
the Ku Klux Klan.

1220
00:55:13.890 --> 00:55:17.970
<v ->No one should let someone who's violently prejudicial</v>

1221
00:55:17.970 --> 00:55:20.130
represent someone who's a member of the group

1222
00:55:20.130 --> 00:55:22.080
against which he's prejudice.

1223
00:55:22.080 --> 00:55:23.370
The question is, does it rise to a-

1224
00:55:23.370 --> 00:55:25.260
<v ->And why do you say that?</v>

1225
00:55:25.260 --> 00:55:28.323
<v ->Again, then you have state action.</v>

1226
00:55:29.370 --> 00:55:31.080
If someone says...

1227
00:55:31.080 --> 00:55:36.080
If I am a Jewish person, and someone says,

1228
00:55:36.397 --> 00:55:40.627
"The best lawyer to represent you in this criminal matter

1229
00:55:40.627 --> 00:55:41.707
"is Attorney Schmidt,

1230
00:55:41.707 --> 00:55:44.160
"but he belongs to Neo-Nazi group,"

1231
00:55:44.160 --> 00:55:45.697
and I sign a waiver and say,

1232
00:55:45.697 --> 00:55:49.447
"Yes, I will take this attorney's representation,

1233
00:55:49.447 --> 00:55:52.620
"even though he's a neo-Nazi, I can do that."

1234
00:55:52.620 --> 00:55:54.000
Now there's a difference between that

1235
00:55:54.000 --> 00:55:57.420
and having CPCS appoint someone who's a racist

1236
00:55:57.420 --> 00:55:59.100
for someone who can't,

1237
00:55:59.100 --> 00:56:04.100
for a client who can't afford to.

1238
00:56:04.260 --> 00:56:06.030
And then, as I (indistinct) in my brief,

1239
00:56:06.030 --> 00:56:10.080
if they had known, if CPCS had known at the time time,

1240
00:56:10.080 --> 00:56:13.380
they certainly should have not appointed him, because-

1241
00:56:13.380 --> 00:56:15.840
<v ->Isn't it clearly at least a potential...</v>

1242
00:56:15.840 --> 00:56:19.863
I mean I think you're swimming upstream.

1243
00:56:21.480 --> 00:56:23.884
It's gotta be at least a potential conflict.

1244
00:56:23.884 --> 00:56:27.630
I mean for all the reasons we've talked about.

1245
00:56:27.630 --> 00:56:30.390
I just can't tell if it's an absolute conflict,

1246
00:56:30.390 --> 00:56:31.920
unless it's present in the case.

1247
00:56:31.920 --> 00:56:33.930
But here, it's present in the case, too.

1248
00:56:33.930 --> 00:56:35.520
So it just seems like...

1249
00:56:35.520 --> 00:56:38.430
<v ->Well if you look at it as a potential conflict of interest</v>

1250
00:56:38.430 --> 00:56:40.740
that's manifested.

1251
00:56:40.740 --> 00:56:42.990
If you look at the kufi incidents and say, yes,

1252
00:56:42.990 --> 00:56:45.900
that was manifest prejudice.

1253
00:56:45.900 --> 00:56:47.262
So, therefore we-

1254
00:56:47.262 --> 00:56:49.290
<v ->The best (indistinct) to you, we decided</v>

1255
00:56:49.290 --> 00:56:54.290
we should analyze Facebook posts as racist Facebook posts

1256
00:56:54.600 --> 00:56:56.580
as a potential conflict of interest,

1257
00:56:56.580 --> 00:56:58.170
but not necessarily an absolute,

1258
00:56:58.170 --> 00:57:00.930
how do you win this case if we do that?

1259
00:57:00.930 --> 00:57:04.950
<v ->Well, I think we win the case because despite-</v>

1260
00:57:04.950 --> 00:57:07.290
<v ->Let me load the dice a little more.</v>

1261
00:57:07.290 --> 00:57:10.620
How do you win the case given that also

1262
00:57:10.620 --> 00:57:13.590
the only times he shows up to see his client,

1263
00:57:13.590 --> 00:57:17.340
he makes a racist comment and walks out?

1264
00:57:17.340 --> 00:57:18.720
<v ->Because the defendant,</v>

1265
00:57:18.720 --> 00:57:20.580
who has already fired an attorney

1266
00:57:20.580 --> 00:57:23.310
who worked from for a year, agrees to it.

1267
00:57:23.310 --> 00:57:25.140
He knows it, and he doesn't even raise it

1268
00:57:25.140 --> 00:57:26.840
in his first motion for new trial.

1269
00:57:28.590 --> 00:57:31.893
If this is a manifestation of anti-Muslim bigotry-

1270
00:57:33.210 --> 00:57:34.878
<v ->Well, it clearly is, right?</v>

1271
00:57:34.878 --> 00:57:36.193
It is.

1272
00:57:37.247 --> 00:57:41.227
But I understand your client says, "Okay, he's a brawler.

1273
00:57:41.227 --> 00:57:44.377
"Maybe he is a good lawyer for me,

1274
00:57:44.377 --> 00:57:45.867
"even though he is a jerk."

1275
00:57:47.580 --> 00:57:50.970
But it just gets really difficult.

1276
00:57:50.970 --> 00:57:52.650
<v ->No, it's bad facts.</v>

1277
00:57:52.650 --> 00:57:54.140
There's no question about it.

1278
00:57:54.140 --> 00:57:56.520
This is a horrible situation.

1279
00:57:56.520 --> 00:57:57.630
<v ->Well, for both.</v>

1280
00:57:57.630 --> 00:58:00.480
But if Justice Kafker's point is followed,

1281
00:58:00.480 --> 00:58:03.173
and we say it's potential, is it a prejudice analysis?

1282
00:58:04.219 --> 00:58:05.430
<v ->Yes, it's a prejudice analysis.</v>

1283
00:58:05.430 --> 00:58:08.910
<v ->So then you have those facts about the meetings,</v>

1284
00:58:08.910 --> 00:58:11.550
but you also have the litany of things you were just

1285
00:58:11.550 --> 00:58:12.430
laying out about-
<v ->Exactly.</v>

1286
00:58:12.430 --> 00:58:14.610
<v ->About the merits of the Commonwealth's case.</v>

1287
00:58:14.610 --> 00:58:15.840
<v ->You have something approaching</v>

1288
00:58:15.840 --> 00:58:18.150
an ineffectiveness analysis, although not quite the same,

1289
00:58:18.150 --> 00:58:20.670
but still showing a different kind of prejudice,

1290
00:58:20.670 --> 00:58:23.250
but still a requirement of prejudice.

1291
00:58:23.250 --> 00:58:27.230
<v ->So I give you that his client is...</v>

1292
00:58:28.740 --> 00:58:32.040
There's overwhelming evidence that he's guilty.

1293
00:58:32.040 --> 00:58:33.840
Although, again, we don't know your client,

1294
00:58:33.840 --> 00:58:35.760
the defense counsel doesn't do much.

1295
00:58:35.760 --> 00:58:37.560
So we don't know if there's anything out there

1296
00:58:37.560 --> 00:58:39.600
that would help him either,

1297
00:58:39.600 --> 00:58:42.050
particularly 'cause he walks out of each meeting.

1298
00:58:43.650 --> 00:58:44.483
<v ->I don't know-</v>
<v ->but he doesn't,</v>

1299
00:58:44.483 --> 00:58:46.290
he only walks out of the second one.

1300
00:58:46.290 --> 00:58:48.780
The first and third he talks to the client.

1301
00:58:48.780 --> 00:58:50.043
He just starts with that.

1302
00:58:51.070 --> 00:58:53.220
<v ->Isn't the best argument for you what,</v>

1303
00:58:53.220 --> 00:58:57.540
the judge asks the defendant if he's satisfied with the-

1304
00:58:57.540 --> 00:58:59.340
<v ->He does.</v>
<v ->That's the best argument</v>

1305
00:58:59.340 --> 00:59:01.050
you've got.
<v ->Yeah, and he responds...</v>

1306
00:59:01.050 --> 00:59:02.060
Well, there's...

1307
00:59:03.180 --> 00:59:04.257
I won't go into that.

1308
00:59:04.257 --> 00:59:07.430
There's a discrepancy, but that's...

1309
00:59:08.670 --> 00:59:10.140
I've started it so I might as well finish it.

1310
00:59:10.140 --> 00:59:13.920
He says at one point, "Yes, I think my attorney..."

1311
00:59:13.920 --> 00:59:15.090
Said, "Do you think your..."

1312
00:59:15.090 --> 00:59:16.773
The judge asks, "Do you think your attorney

1313
00:59:16.773 --> 00:59:18.810
"act in your best interest?"

1314
00:59:18.810 --> 00:59:19.957
And he says, "Yes, I think my attorney

1315
00:59:19.957 --> 00:59:21.447
"acted in his best interest,"

1316
00:59:21.447 --> 00:59:24.000
and that was actually raised at the hearing.

1317
00:59:24.000 --> 00:59:25.200
But I think that's just a,

1318
00:59:25.200 --> 00:59:26.910
it's clear that that's a slip of the tongue.

1319
00:59:26.910 --> 00:59:27.870
The judge doesn't...

1320
00:59:27.870 --> 00:59:30.090
The judge doesn't address it.

1321
00:59:30.090 --> 00:59:32.853
There's no question that he's pleading voluntarily.

1322
00:59:36.180 --> 00:59:40.008
<v ->Do you wanna address the breadth of the problem for you?</v>

1323
00:59:40.008 --> 00:59:43.173
If we rule this as an actual conflict of interest,

1324
00:59:44.760 --> 00:59:48.510
are we in a mini (indistinct) situation?

1325
00:59:48.510 --> 00:59:50.070
Tell us about how you,

1326
00:59:50.070 --> 00:59:52.380
the Commonwealth views this as,

1327
00:59:52.380 --> 00:59:55.050
if we start treating these kinds of posts

1328
00:59:55.050 --> 00:59:58.530
as absolute conflict of interest for Mr. Doyle,

1329
00:59:58.530 --> 01:00:00.150
are there other lawyers out there

1330
01:00:00.150 --> 01:00:02.220
that this is going on on that you're aware of?

1331
01:00:02.220 --> 01:00:03.150
<v ->I certainly don't.</v>

1332
01:00:03.150 --> 01:00:06.301
If I were I would have an ethical duty to report it.

1333
01:00:06.301 --> 01:00:08.073
I certainly don't know of any.

1334
01:00:09.870 --> 01:00:10.770
And that's a good thing.

1335
01:00:10.770 --> 01:00:13.890
I don't know whether it will extend to other attorneys.

1336
01:00:13.890 --> 01:00:18.890
We do know that it would apply to 6,000 plus clients.

1337
01:00:19.050 --> 01:00:22.470
So far we haven't had that many, as my brother said.

1338
01:00:22.470 --> 01:00:24.600
But once there's a decision,

1339
01:00:24.600 --> 01:00:28.560
if the decision is favorable, there may be many more.

1340
01:00:28.560 --> 01:00:31.470
The court, I have to admit,

1341
01:00:31.470 --> 01:00:34.290
this court and the Supreme Court of the United States

1342
01:00:34.290 --> 01:00:37.230
have rightly said that where there's racism

1343
01:00:37.230 --> 01:00:41.070
that infects the criminal justice system, you have to act,

1344
01:00:41.070 --> 01:00:44.370
you can't really consider the consequences,

1345
01:00:44.370 --> 01:00:46.590
certainly the grand jury cases where

1346
01:00:46.590 --> 01:00:48.840
the court had to admit there's...

1347
01:00:48.840 --> 01:00:50.490
The remedy was you had a trial,

1348
01:00:50.490 --> 01:00:53.310
but still that doesn't justify the racism,

1349
01:00:53.310 --> 01:00:54.720
and we still have to overturn.

1350
01:00:54.720 --> 01:00:58.020
<v ->What if we decided that there was racism here</v>

1351
01:00:58.020 --> 01:01:00.840
that infected Mr. Dew's case?

1352
01:01:00.840 --> 01:01:01.944
<v ->There is racism here,</v>

1353
01:01:01.944 --> 01:01:03.660
That's conceded.
<v ->That infected</v>

1354
01:01:03.660 --> 01:01:05.253
Mr. Dew's case.

1355
01:01:06.159 --> 01:01:08.550
And we conclude that.

1356
01:01:08.550 --> 01:01:11.650
What is the Commonwealth's limiting principle

1357
01:01:12.660 --> 01:01:17.103
that you would propose the rule that this court issues be?

1358
01:01:18.720 --> 01:01:20.940
<v ->Well, I think you can limit it, if you want,</v>

1359
01:01:20.940 --> 01:01:24.660
to the fact of the kufi incidents.

1360
01:01:24.660 --> 01:01:27.360
I argue strenuously that that doesn't affect this case

1361
01:01:27.360 --> 01:01:31.470
because the client still didn't perceive this as racist,

1362
01:01:31.470 --> 01:01:34.110
and there was a non-racist reason for him to do it.

1363
01:01:34.110 --> 01:01:36.420
But certainly that would be a way to hold it

1364
01:01:36.420 --> 01:01:38.072
as a potential conflict of interest

1365
01:01:38.072 --> 01:01:40.983
that did affect this case, certainly limits it.

1366
01:01:42.150 --> 01:01:46.050
But I mean the real fact here is that,

1367
01:01:46.050 --> 01:01:50.010
as I believe it was Justice Kafner said,

1368
01:01:50.010 --> 01:01:51.780
he wanted to win these cases.

1369
01:01:51.780 --> 01:01:54.600
He may have been racist, but it didn't affect his zeal.

1370
01:01:54.600 --> 01:01:55.877
And I think there's no place-
<v ->How do we measure,</v>

1371
01:01:55.877 --> 01:01:58.170
what's the metric for a win?

1372
01:01:58.170 --> 01:01:59.340
<v ->Yeah, well I think that's,</v>

1373
01:01:59.340 --> 01:02:00.870
winning, getting a not guilty.
<v ->When there's a plea deal.</v>

1374
01:02:00.870 --> 01:02:01.740
<v ->He was proud.</v>

1375
01:02:01.740 --> 01:02:05.250
I mean, nowhere is that more clear than in the case

1376
01:02:05.250 --> 01:02:08.010
where he calls his client a gang banger.

1377
01:02:08.010 --> 01:02:11.190
He says, "What he really needs to do is stop gang banging."

1378
01:02:11.190 --> 01:02:14.610
And yet he brags that he got a not guilty.

1379
01:02:14.610 --> 01:02:15.840
And this guy, I mean,

1380
01:02:15.840 --> 01:02:17.797
I won't repeat the exact words he uses, but he said,

1381
01:02:17.797 --> 01:02:20.517
"I saved this kid years in prison."

1382
01:02:21.420 --> 01:02:23.373
So I think you see him as-

1383
01:02:24.791 --> 01:02:27.650
<v ->So our metric for winning is</v>

1384
01:02:28.950 --> 01:02:30.660
a not guilty.
<v ->Not guilty.</v>

1385
01:02:30.660 --> 01:02:31.717
<v ->Getting these-</v>
<v ->So, but in this case,</v>

1386
01:02:31.717 --> 01:02:33.630
we have a plea deal.

1387
01:02:33.630 --> 01:02:35.040
<v ->Hmm?</v>
<v ->In this case</v>

1388
01:02:35.040 --> 01:02:36.480
we have a plea deal, right?
<v ->Oh, yes.</v>

1389
01:02:36.480 --> 01:02:39.960
<v ->How do we measure winning in this case?</v>

1390
01:02:39.960 --> 01:02:43.020
<v ->Well, you can look at the fact,</v>

1391
01:02:43.020 --> 01:02:45.600
look at his history and say he wanted to win.

1392
01:02:45.600 --> 01:02:47.850
This was not a case he could win,

1393
01:02:47.850 --> 01:02:50.880
because the evidence was overwhelming.

1394
01:02:50.880 --> 01:02:52.970
But I think-
<v ->He did get some concession.</v>

1395
01:02:52.970 --> 01:02:53.820
He did, yeah.

1396
01:02:53.820 --> 01:02:56.400
He got the rape charge dismissed.

1397
01:02:56.400 --> 01:02:57.233
But that was...

1398
01:02:57.233 --> 01:02:59.160
The prosecutor testified at the hearing,

1399
01:02:59.160 --> 01:03:00.420
that was as far as we were gonna go

1400
01:03:00.420 --> 01:03:01.770
with this evidence, because-

1401
01:03:01.770 --> 01:03:02.910
<v ->But, I guess back to-</v>
<v ->The case was so strong.</v>

1402
01:03:02.910 --> 01:03:07.080
<v ->My question on how do we measure winning and that success.</v>

1403
01:03:07.080 --> 01:03:09.360
Isn't that the reason we have things

1404
01:03:09.360 --> 01:03:11.100
called structural errors?
<v ->Yes.</v>

1405
01:03:11.100 --> 01:03:14.040
<v ->Because we can't measure it.</v>

1406
01:03:14.040 --> 01:03:15.120
<v ->That is true, but I think-</v>

1407
01:03:15.120 --> 01:03:17.490
<v ->So by definition it's a do over,</v>

1408
01:03:17.490 --> 01:03:19.653
because we just can't figure it out.

1409
01:03:21.240 --> 01:03:22.890
<v ->Yes, I agree.</v>

1410
01:03:22.890 --> 01:03:24.060
In those circumstances you do.

1411
01:03:24.060 --> 01:03:26.880
I think-
<v ->So, isn't racism,</v>

1412
01:03:26.880 --> 01:03:31.830
anti-religion, one of those things that,

1413
01:03:31.830 --> 01:03:36.210
just by definition, we can't figure out.

1414
01:03:36.210 --> 01:03:38.910
<v ->You still, to show an actual conflict of (indistinct)</v>

1415
01:03:38.910 --> 01:03:40.650
you really have to show how it

1416
01:03:40.650 --> 01:03:42.330
affected the defendant's loyalty.

1417
01:03:42.330 --> 01:03:44.580
And there's been a lot of talk about

1418
01:03:44.580 --> 01:03:48.210
a distinction between what defense attorneys

1419
01:03:48.210 --> 01:03:49.590
have to do all the time.

1420
01:03:49.590 --> 01:03:51.660
I mean, it's important to realize that Mr. Dew

1421
01:03:51.660 --> 01:03:54.120
was not just an African American and a Muslim.

1422
01:03:54.120 --> 01:03:55.420
He was a human trafficker.

1423
01:03:56.310 --> 01:04:00.240
And it may not be morally equivalent,

1424
01:04:00.240 --> 01:04:02.340
and it may not be constitutionally equivalent,

1425
01:04:02.340 --> 01:04:05.190
but it is the same metal process.

1426
01:04:05.190 --> 01:04:10.190
You have to take your disdain for the person,

1427
01:04:10.890 --> 01:04:13.470
whether that's disdain because he's a murderer,

1428
01:04:13.470 --> 01:04:15.234
or disdain because he's-
<v ->Well, it's</v>

1429
01:04:15.234 --> 01:04:16.067
a little different.

1430
01:04:16.067 --> 01:04:18.450
Disdain for the person's actions rather than...

1431
01:04:18.450 --> 01:04:21.660
I mean, you can have a person do a bad act

1432
01:04:21.660 --> 01:04:23.310
and still be a decent person.

1433
01:04:23.310 --> 01:04:27.363
So, but racism has a different,

1434
01:04:28.710 --> 01:04:30.750
by nature it's a different problem, right?

1435
01:04:30.750 --> 01:04:31.650
<v ->It's a different problem.</v>

1436
01:04:31.650 --> 01:04:33.150
But it's the same process.

1437
01:04:33.150 --> 01:04:34.500
I mean, the question would be

1438
01:04:34.500 --> 01:04:37.500
whether the attorney wanted to overcome it.

1439
01:04:37.500 --> 01:04:39.000
And I think here you have clear evidence

1440
01:04:39.000 --> 01:04:42.000
that Attorney Doyle did, not only wanted to overcome it,

1441
01:04:42.000 --> 01:04:44.640
but did overcome it in his cases.

1442
01:04:44.640 --> 01:04:46.440
That's why no one ever suspected this.

1443
01:04:46.440 --> 01:04:48.240
<v ->But we don't know his track record.</v>

1444
01:04:48.240 --> 01:04:50.730
We don't know if he wins with white people

1445
01:04:50.730 --> 01:04:52.140
and loses with Black people.

1446
01:04:52.140 --> 01:04:53.520
We don't know any of that, right?

1447
01:04:53.520 --> 01:04:54.690
<v ->We don't, but that would be...</v>

1448
01:04:54.690 --> 01:04:56.040
I mean, granted it's a tough burden,

1449
01:04:56.040 --> 01:04:58.170
but that would be the defendant's burden

1450
01:04:58.170 --> 01:05:01.230
to show that, oh, yes, all the suddenly-

1451
01:05:01.230 --> 01:05:02.400
<v ->'Cause he's been practicing-</v>
<v ->We find all these cases-</v>

1452
01:05:02.400 --> 01:05:03.660
<v ->For 25 years.</v>

1453
01:05:03.660 --> 01:05:05.430
I assume he wins a number of cases

1454
01:05:05.430 --> 01:05:07.050
or he gets a number of good...

1455
01:05:07.050 --> 01:05:08.670
But we don't know how-
<v ->No.</v>

1456
01:05:08.670 --> 01:05:11.100
<v ->We don't have a statistical analysis seeing how he does.</v>

1457
01:05:11.100 --> 01:05:12.360
<v ->We don't.</v>
<v ->Defending Blacks</v>

1458
01:05:12.360 --> 01:05:13.500
versus defending whites,

1459
01:05:13.500 --> 01:05:15.570
defending Muslims versus defending Christians.

1460
01:05:15.570 --> 01:05:16.403
We don't have any of that.

1461
01:05:16.403 --> 01:05:17.730
<v ->No, we have no evidence of that.</v>

1462
01:05:17.730 --> 01:05:18.690
But that's,

1463
01:05:18.690 --> 01:05:21.360
it's the defendant's burden to show a conflict of interest,

1464
01:05:21.360 --> 01:05:22.593
an actual conflict of interest.

1465
01:05:22.593 --> 01:05:24.588
<v ->How can we-</v>
<v ->I see my time is done,</v>

1466
01:05:24.588 --> 01:05:25.710
if you want.
<v ->Yeah, can you just</v>

1467
01:05:25.710 --> 01:05:28.200
explain to me, if we were to follow your

1468
01:05:28.200 --> 01:05:30.420
line of thinking on this,

1469
01:05:30.420 --> 01:05:34.170
how do we ensure that people have confidence

1470
01:05:34.170 --> 01:05:36.540
in our criminal legal system,

1471
01:05:36.540 --> 01:05:39.660
if you're saying that the defendant has to show,

1472
01:05:39.660 --> 01:05:43.780
has to somehow show that his or her lawyer

1473
01:05:44.670 --> 01:05:47.943
was racist and it affected them?

1474
01:05:49.050 --> 01:05:50.160
I mean, in this case,

1475
01:05:50.160 --> 01:05:54.330
there's all sorts of evidence that the lawyer was racist

1476
01:05:54.330 --> 01:05:56.490
and manifested it.

1477
01:05:56.490 --> 01:05:59.733
I can't imagine what else you'd have to do.

1478
01:06:01.356 --> 01:06:04.950
<v ->I understand, and I certainly believe</v>

1479
01:06:04.950 --> 01:06:07.080
that is the biggest problem in this case.

1480
01:06:07.080 --> 01:06:12.030
That is yours is not a question that was unexpected.

1481
01:06:12.030 --> 01:06:14.804
That is the big issue in this case.

1482
01:06:14.804 --> 01:06:17.855
The only answer I have is that people are complicated,

1483
01:06:17.855 --> 01:06:20.700
actions speak louder than words.

1484
01:06:20.700 --> 01:06:24.270
And the justice system serves both

1485
01:06:24.270 --> 01:06:27.621
defendants and society and victims.

1486
01:06:27.621 --> 01:06:29.670
And here you had victims who came forward.

1487
01:06:29.670 --> 01:06:32.808
<v ->Is it a matter of professional responsibility?</v>

1488
01:06:32.808 --> 01:06:36.960
I mean, would that be the way that we can be confident here?

1489
01:06:36.960 --> 01:06:41.960
Because what I find difficult

1490
01:06:42.900 --> 01:06:46.080
is that we have all different pockets of our system

1491
01:06:46.080 --> 01:06:48.660
where we say we take people as you are.

1492
01:06:48.660 --> 01:06:52.170
And you are to put aside, we tell jurors that,

1493
01:06:52.170 --> 01:06:55.160
and we have case law that says even if jurors...

1494
01:06:56.130 --> 01:06:59.190
Chief Justice Bud's decision from a few years ago,

1495
01:06:59.190 --> 01:07:00.127
if people come in and say,

1496
01:07:00.127 --> 01:07:02.670
"I think cops are racist, the system's racist,"

1497
01:07:02.670 --> 01:07:05.580
that's no reason to say they can't properly

1498
01:07:05.580 --> 01:07:08.370
adhere to their oath and serve

1499
01:07:08.370 --> 01:07:10.533
and to be a fair and impartial juror.

1500
01:07:11.430 --> 01:07:12.690
We do this all the time.

1501
01:07:12.690 --> 01:07:15.660
So is this a matter of professional responsibility,

1502
01:07:15.660 --> 01:07:16.807
where the lawyers say,

1503
01:07:16.807 --> 01:07:19.657
"Irrespective of what I believe and what I am

1504
01:07:19.657 --> 01:07:21.937
"and what this person believes and what they are

1505
01:07:21.937 --> 01:07:24.810
"that I have an ethical obligation to do as I must."

1506
01:07:24.810 --> 01:07:27.996
<v ->Yes, that's absolutely what the Commonwealth is saying.</v>

1507
01:07:27.996 --> 01:07:30.900
And, of course, I don't mean to say

1508
01:07:30.900 --> 01:07:34.740
that it was wrong to discipline Attorney Doyle for this.

1509
01:07:34.740 --> 01:07:36.060
This is outrageous conduct.

1510
01:07:36.060 --> 01:07:38.430
There are things that are protected by the First Amendment

1511
01:07:38.430 --> 01:07:42.513
that do not protect you from discipline as an attorney.

1512
01:07:45.990 --> 01:07:48.780
<v ->Would this be at all similar,</v>

1513
01:07:48.780 --> 01:07:50.430
or is there any comparison,

1514
01:07:50.430 --> 01:07:52.320
if you found out that an attorney

1515
01:07:52.320 --> 01:07:56.370
actually had been suffering from some form of mental illness

1516
01:07:56.370 --> 01:07:59.313
or incompetence while they were practicing?

1517
01:08:03.480 --> 01:08:05.130
<v ->There's similarities and dissimilarities.</v>

1518
01:08:05.130 --> 01:08:07.083
That's a very difficult question.

1519
01:08:08.010 --> 01:08:11.520
Certainly there would be some parallels,

1520
01:08:11.520 --> 01:08:12.780
although, that would not be, I think

1521
01:08:12.780 --> 01:08:16.830
a situation in which the justified public outrage

1522
01:08:16.830 --> 01:08:17.943
would be the same.

1523
01:08:19.500 --> 01:08:20.333
<v ->Right.</v>

1524
01:08:21.300 --> 01:08:22.440
<v ->There are no further questions,</v>

1525
01:08:22.440 --> 01:08:23.550
I thank the court for its time

1526
01:08:23.550 --> 01:08:25.350
and will otherwise rest on my brief.