-: SJC 13375, Commonwealth v. Blake Scanlon.
Judge: Okay. Attorney Baker.
-: Good morning. May it please the court,
Assistant District Attorney Lee Baker for the Commonwealth.
The fundamental error in this case
was when the motion judge applied the wrong standard
to the defendant's motion to disqualify the prosecutor.
The single justice's error was not rectifying that error.
-: Well, you say it's fundamental,
but in the tension between the two standards,
I found it persuasive
that the judge looked at the two comparators and said,
"One is a bunch of civil cases,
and the test that I'm applying is the only one
that's been articulated in a criminal case."
And so, wouldn't that necessarily,
I understand where you're coming from
because our lines of reasoning
has maybe seemingly been in conflict,
but isn't that an important factor here,
that that's the only case that compares apples to apples?
-: Sure, but I would say that in the Pisa case,
the use of that term, "appearance of impropriety",
that was dict in the sense that,
in explaining the rationale
for the final decision in the case
that the court was,
found itself in a strange posture here
insofar as there was a clear violation in Pisa
of the rules of professional responsibility.
The lawyer in that case had in fact worked on that case
prior to joining the district attorney's office.
And the investigation of that by the special master,
the special master decided beyond a reasonable doubt
that it was a harmless error
because the new lawyer had done nothing more
than a final look over the brief
looking essentially for grammatical errors,
that sort of thing.
And it apparently made no changes whatsoever.
And the court gets to the point of talking
about the appearance of impropriety
because I think that what the court recognized-
-: Can I ask you about that first part
that you're talking about? Pisa?
Lee: Sure.
-: Isn't the essential takeaway from that part
is that we don't treat prosecutors the same
as we do counsel in civil action?
So in a civil action,
if you worked for a particular client before,
and you came to a firm,
then the entire firm would be disqualified.
Whereas for prosecutors, the same rule does not apply.
He worked for the client
before the whole prosecution office, the DA's office,
was not disqualified.
So Pisa suggests that the judge here
applied a different standard correctly to prosecutors.
Prosecutors are different than private counsel.
They're treated differently in Pisa.
-: Well, a few points on that.
One, just going back to what I was saying
about the use of that term "appearance of impropriety",
what they were talking about there-
-: No. I'm still on the first part.
The first part of Pisa says, -: Well, yes.
-: The takeaway is you treat prosecutors different
than private civil counsel in civil lawsuits.
-: Right. But, I understand your point.
-: And so, what you're saying
is apply the Adoption of Erica case,
Lee: Right. -: a civil case,
Lee: Yeah. -: to a prosecutor.
-: Lemme try and square those. Okay.
So, I take your point,
and it was, the argument was made repeatedly
throughout the several days of hearings on this,
that prosecutors are held
to a different and higher standard.
I absolutely agree with that. Absolutely.
They are, and should be.
There's no question about that.
But those different and higher standards
are codified in the rules of professional conduct.
The rules of professional conduct
place upon the prosecutor specific higher standards,
and the case law does as well.
And so, our position that you can't disqualify a prosecutor
on the mere appearance of impropriety
doesn't cut against the claim
that prosecutors are different
and held to a different standard
because it's absolutely the case
that if there was a violation of the rules of misconduct
by the ADA, in this case, he should be disqualified.
But what we have here is the judge saying,
"There's this appearance of impropriety."
And I don't think that's a workable standard.
And let me try and get to that
because I think that's at the core of this.
The appearance of impropriety is not a workable standard
because, well, first of all, it's a subjective standard.
That doesn't make it necessarily unworkable.
We have lots of subjective standards.
But for it to be workable,
the motion judge, in considering the motion to disqualify,
and applying that standard
would have to determine
what are the community standards?
The proper-
-: This is a high-level generality, though.
Isn't he gonna be a witness in the case?
-: No. -: Why not?
Why is he, I mean, the whole defense is gonna be
that this jailhouse snitch
is somebody completely unreliable.
And they're gonna show the level, the length,
that the prosecutor was willing to go
to get this guy on to do this,
including driving to Worcester
to fight the probation recommendation,
probation department's recommendation.
Isn't he gonna be a witness?
Lee: I would say-
-: And then isn't, then it's not an abuse of discretion?
-: I would say that he's not-
-: Counsel, could you add to Justice Kafka's point
those practical implications, yeah.
But also that he's the alleged victim
-: Right. (chuckles)
-: in a murder-for-hire plot.
Lee: Right.
-: The same person that he's gonna be prosecuting.
So you add those two sides of the coin,
the practical implications of the extent that he went,
and the fact that just by virtue of the fact
that he's alleged to be the victim in the case
that the defendant tried to kill him.
-: Right. So the thing is,
is that first of all, the motion judge never found
that he was a necessary witness.
She found that he was a potential necessary witness.
We've had a few different variations on this
to sort of move away from what necessary means. Now, I-
-: Right. But again,
back to, you know, combine again with your original point,
prosecutors are different.
So are prosecutorial offices.
It's not like a private law firm
where you got three people in the law firm,
and the person's devoted a huge amount of energy
to trying the case,
and they're gonna have to bill,
and you got none of that here.
You've got a prosecutor who's be a witness,
and, as Justice George just points out, (chuckles)
the potential victim of a targeted murder.
I don't know, just,
it doesn't seem like an abuse of discretion to me.
-: Well, because there are a number
of reasonable alternatives-
Kafka: Almost a pointless fight, but go ahead.
-: that would preserve the defendant's right
to challenge the credibility of that witness.
Lowy: Is that really the core question, though?
Lee: Absolutely.
-: That's really getting to the issue
-: Right. Yes. -: Which is,
is there other extrinsic evidence
if the informant denies the impeaching evidence?
And the Commonwealth has to prove the contrary
of that denial.
Who is the witness?
If the informant says, "No, the ADA did nothing for me.
Nothing for me."
So there has to be extrinsic evidence.
And the complication here,
if this is really the core issue,
the complication here is, unlike a lot of situations,
the DA put himself in a position that he's the witness
about the extent of the, his cooperation.
So his assistant. Do you understand my question?
-: I do. I do.
And so first of all,
I would say that if you look at the record,
opposing counsel made basically proffers of the evidence
that she would bring to impeach the cooperating witness,
including bringing in the probation officers
at the probation hearing where Mr. Green went and appeared.
There were all kinds of other witnesses
that could testify to those same facts.
And if it got to the point
where this witness was still denying this,
the Commonwealth made very clear
they would stipulate to this.
And I do want to put the context here.
-: All this is avoidable though.
If he doesn't, you know...
And it raises the issue of whether he's just so ang...
I mean, I'm with you.
Someone threatens the prosecutor,
that shouldn't remove them from trying the case.
We certainly don't want to do that.
But when he runs around, and goes,
as opposed to sending anyone else in the office
to do this job, he knows that's a problem.
And he's, don't back away-
-: I would disagree somewhat that he knows that's a problem.
But let me try and put a little bit of context here
because I've heard it represented a few times,
like, Why not just assign someone else?"
So let's bear in mind that the murder indictment
comes down April 8th, I believe, of 2019.
Then the murder-for-hire indictment
comes down two years later, almost to the day.
So already this prosecutor has presented,
has done everything in the case
from presenting it to the grand jury up until this point.
-: And can I just stop you there for a second?
When did this prosecutor insert himself
on behalf of the informant?
Was it during that two-year window?
-: I don't know the exact timeframe.
It may overlap with that.
-: Okay, so let's just assume that it was.
He's invested in this case,
and he's invested in making himself a witness
as regard to the informant, I guess.
Lee: Right.
-: This is not a case
where the defendant is just threatening the prosecutor
to get the prosecutor off.
The prosecutor himself has himself made himself a witness.
-: Well, a few things about that,
again, to get out this essential context.
So this motion to disqualify the prosecutor
came on the eve of trial.
We are literally, I think at that point,
about two weeks from the trial day,
such that I handled the hearing,
and at one point, the motion judge said to me,
"Mr. Baker, if I allow this,
are you prepared to try the case?" (chuckles)
And so in Smaland the court addressed exactly this issue.
And so we have to be very careful about a motion like this
being used for tactical advantage.
-: But being careful- -: I'm not saying that-
-: doesn't suggest that there's an abuse of discretion.
That's the standard.
-: Well, there's reasonable alternatives here.
How does it... 'Cause what is at issue here?
-: That's the whole question. -: Right, right.
-: That's the whole question.
Reasonable alternatives to the forensic evidence
to prove the contrary did not-
-: If the impeachment, the facts that impeach the witness,
are the consideration given,
and the amount of consideration given,
all of that can be done through other witnesses-
-: But see, those other witnesses can't testify
to the extent of the effort that prosecutor went to.
Lee: But a stipulation could.
A stipulation could say that the attorney-
-: I know that there are plenty of cases
that talk about stipulations,
but the three-dimensional testimony of driving outta county,
injecting yourself in the proceeding
where you have no standing, number one,
because it's the prosecutor, the moving party's probation.
They're advocating for a different disposition.
You're countering the disposition
that the moving probation officer is asking the court for.
That's major, major stuff
that you just can't get in a two-dimensional stipulation.
-: Sure. But if the, again-
-: Or the probation officer testifying to.
-: I think I would disagree somewhat.
All those factual things can be in front of the jury
through stipulation.
Absolutely can.
Now, as far as this talk about the prosecutor
injecting himself into the case,
the goalpost kept moving here.
We had hearings about this.
Initially, Mr. Green did not appear,
and the first decision was made absent him appearing.
And there was some footnote in the motion judge's order
saying that Mr. Green gave no testimony.
So I heard nothing about what are the usual practices.
In response to that, we came with a motion to reconsider,
we present the court
with what is in the usual course of action for our office-
-: Let me just ask you a quick question.
If we don't agree with you about the standard,
Lee: Yes.
-: Is there an abuse of discretion?
If we don't agree with you that the standard
about whether or not there's an appearance of impropriety,
if we don't agree to that with you,
what's the problem?
-: Well, here's, well- Budd: Briefly.
-: Here's the problem (chuckles)
is that in order,
the appearance of impropriety is too nebulous a standard
to apply here because-
-: If we don't agree with you about that,
so I heard all of why you think that that's not correct.
If we don't agree, is there an abuse of discretion?
-: With all due respect,
I don't feel that you did hear all of what I have to say
about why there was not an appearance of impropriety
insofar as- -: No, no, no.
I'm sorry, I'm not making myself clear.
Lee: I apologize. -: No.
If we do not agree that there has to be,
or there doesn't have to be an appearance of impropriety,
if we don't agree that the standard is broader than that,
right, if it's okay, or you say it's okay to have somebody,
even if there is an appearance of impropriety,
the civil case, you go with the civil case?
-: (chuckles) I feel, that with all due respect,
the appearance of impropriety, yes,
that's the whole issue here
is whether that is an appropriate standard.
-: And I understand that that's your position.
If we don't agree with you,
if we think that there's a different way of looking at it
for a criminal cases,
is there an abuse of discretion?
-: Yes. I think so because then that's where we get into
the separation of powers.
Budd: Okay.
-: Because, and that's what I was trying to get at
about this appearance standard being too nebulous
because if the motion judge is gonna apply that standard,
then necessarily the motion judge
has to make a determination
about what the community standards are here.
What would the community view as improper
or as rather the appearance of impropriety?
And that essentially is a matter of reading the tea leaves,
saying, "What is the general view out there in the public?"
And I would suggest to the court, respectfully,
that we are in a stage of our history right now,
we've been here before,
where we are engaged in a very serious national conversation
about the role of the prosecutor,
about the criminal justice system in general.
People have never been so interested
in district attorney's races
and what district attorneys are doing.
And the rather than having a motion judge
decide whether or not this appears improper,
essentially reading the tea leaves,
why not leave it in the hands of the electorate.
The statutory scheme that we have here
vests this power in the district attorney.
If the electorate feels that this appears improper,
then they can vote for a different district attorney and-
-: Okay. I'm sorry. I'm sorry.
Does anybody have any other questions
'cause I think we get the gist.
Lee: Thank you.
Budd: Thank you.
Attorney Elkins.
-: Good morning. May it please the court.
Judge Mulqueen did not err when she allowed, in part,
a motion to disqualify ADA Green.
This motion arose based on his personal actions
of doling out consideration,
and when she ruled that she could not excise and separate
that Green is the named victim
of another case in Hampshire County,
she did not abuse her discretion.
-: Well, the name victim part is, that can't be right.
Alone, if he's just the named victim, you know,
you don't get to choose your prosecutor
by threatening to kill him, right?
Elkins: That is absolutely correct. Right.
That has been conceded throughout.
-: So it's this second part that matters, right,
that he's gonna be a witness.
So why don't you address that?
-: That is correct. It is that...
It's a little bit unfortunate
because it's a little bit of a misnomer
that we're talking about appearance of impropriety.
I believe in the way that Judge Mulqueen wrote her decision
and the basis of her decision
is that she was acknowledging that his personal actions
coupled with the clear personal conflict of interest
because of that
necessarily implicated Rule 3.7,
making him a necessary witness.
-: Address the specifics 'cause the issue
of whether he is gonna be a witness and why,
and why the stipulation is not enough
is the harder part of this.
So get into the specifics.
-: Well, Your Honor, he's a necessary witness, first of all,
because Christopher Fiorentino's will,
the issue at the heart of Christopher Fiorentino's witness
is that is issues of bias,
credibility in light of real or perceived benefits,
and his incentive to curry favor.
-: But, that lever only drops if he doesn't testify
as you expect him to.
And this goes back to, I think, Attorney Baker's point.
If all of this is based on potentially
he doesn't testify the right way,
and now it's about the impeachment of his testimony,
and what extrinsic evidence is better,
what happens if he just testifies to all of the things
that this prosecutor did for him
and the way that he did it for him?
Now we have a situation
where this prosecutor has been removed,
and the concern of Judge Mulqueen never came to pass.
-: Well, the fact of the matter
is Christopher Fiorentino cannot testify
to all that is relevant about this.
The fact of the matter is
that even before we have an evidentiary hearing,
which in fact generated more evidence
of how much of an outlier this kind of conduct
by a prosecutor is,
we already knew that of that ADA Green was doing things
behind the scenes,
that he was emailing the probation department
to deal with pretrial release conditions,
bail release conditions.
He was involving himself in Worcester.
You all know all of this. That's all in the facts.
What is different and what the witness here can't,
isn't, doesn't have personal knowledge of
is how extraordinary that is.
That that is in fact quite unusual.
-: Do you need the prosecutor
to tell you how unusual that is?
-: He's the best witness under the circumstances.
And I think the case law around Rule Three point-
-: What witnesses did you learn this from?
-: And wasn't the testimony
that it really wasn't all that extraordinary,
at least in this particular District Attorney's office?
-: That is... Judge Mulqueen found
that it wasn't necessarily extraordinary
within this District Attorney's office.
She did make an explicit finding
that the question was not answered whether or not
it was unusual across the commonwealth.
And I actually, whether...
you know, that's a characterization,
whether or not it's extraordinary,
and I will admit I am using the word extraordinary,
and have used it throughout the litigation of this.
But the fact of the matter is the evidentiary hearing
at the behest of the Commonwealth
where they put their own senior trial attorney
on the witness stand to testify about cooperating agreements
and how consideration is doled out by that office
showed a number of things,
which is, in fact it doesn't happen very often.
They didn't have any other examples
of this kind of personal appearance happening
except for perhaps if you consider jurisdictional,
the difference between walking downstairs
to go to the district court versus the Superior Court.
There were showed examples where cooperation agreements
implicated cases in other counties and federal court,
but they didn't cite any single example
of a prosecutor personally appearing.
-: (indistinct)
-: I'm sorry, so just to finish the answer to my question.
All of that came in through witnesses
other than the prosecuting attorney?
-: This is correct. What did come in-
-: How does that square with your necessity
for the prosecuting attorney?
You learned all of these things through other witnesses.
Assuming the informant testifies truthfully,
then it turns out the prosecutor is never needed
to call as a witness.
-: Your Honor, once we get into,
first of all, requiring defendants to stipulate
to certain information
and dictate how their case is presented
runs into some pretty complicated-
-: I'm not talking about any stipulations.
I'm talking about calling the witnesses who you called
or who they presented at the evidentiary hearing.
-: Well, it is a possibility that Max Bennett
could be called for this purpose,
whether or not the Commonwealth wishes to,
you know, pursue that course,
or leave me in the position of pursuing that course,
Mr. Scanlon in pursuing that course,
I suppose is is up to them.
I don't think that, I don't- Judge: (indistinct)
-: You also don't know everything else he did, right?
I take it you might want to question him. Maybe he did more.
-: That is true.
I have never had the opportunity to cross examine-
-: The things that the other witnesses have told you,
but he may have done other things, correct?
I take it you may want to ask him about that.
-: That is absolutely correct.
Throughout all of this,
ADA Green did not appear at the initial hearing
when it turned into an evidentiary hearing
at the Commonwealth's request.
And when they were given the option
to present whatever witnesses they wanted,
they did not put ADA Green on the stand.
They chose, instead, to put Max Green on the stand.
Max Bennett, sorry.
-: I just have to chime in.
No one is suggesting,
and I don't think this is an appropriate thing to suggest,
that he did anything that was inappropriate
as long as he disclosed everything he did.
So I don't think this is a form to impugn this ADA
as long as he disclosed everything he did.
So it really comes back around to the likelihood
that he has to be a witness for the extrinsic evidence
because if he doesn't have to be a witness
for the extrinsic evidence,
then it comes down to Mr. Baker's lost argument,
which is what do we think of the appearance of impropriety
being determined by the judge
in the context of Article Three?
-: That's where I think we get into
where the combination of his personal actions,
which it has to be acknowledged that this,
what ADA Green did was use authority
that is uniquely given to the District Attorney's office.
And he personally did it
when there easily could have been provisions in place.
His office could have insulated him from the case,
insulated him from those actions.
-: Okay. If he disclosed every single thing he did, okay,
just so that we have this understanding,
if everything he did relative to this informant
out of county
was a hundred percent disclosed to the defendant,
put aside just for the second,
whether or not he should be disqualified.
There's nothing unethical about that, is it?
-: Your Honor, I suggest
that the rules of professional conduct are implicated.
I am not suggesting that that ADA Green
did violated rules per se.
But the rules of professional conduct
don't just speak to whether or not an individual attorney
violated an ethical rule.
They guide us, they're supposed to guide us as attorneys
in decisions to make in advance.
Pisa is an excellent example of that.
-: But don't you have to...
I'm not suggesting he's doing anything improper,
but don't you have to be able to question him
to determine that?
That's to me the hardest part of this.
That if, how do we know he disclosed everything?
He may have, and he may,
but we don't know that if you can't question him, right?
And that's where it gets trickier, right?
-: Right. And I actually agree with that.
And that's why I think that's not the right standard.
And that's why the reason Erica
should not apply in criminal cases
in the sense that by this...
So the appearance of impropriety has to get,
according to Erica, there has to be actual impropriety.
How do we get at that without an evidentiary hearing,
without putting the attorney in question under oath,
and being able to ask questions?
So that's why I'm suggesting
that Pisa is the better standard to say.
It's not an appearance of impropriety
so much as to say that what Judge Mulqueen found
on an ample record with this tremendous amount
of evidentiary support
was that there was an actual conflict of interest.
She was reluctant to specify that,
but it is clear that he could not have tried the case
related to the threat in his jurisdiction or anything other.
He can't try any kinda case where he's the victim,
and his own personal actions combined in a way
to create what she called an appearance of impropriety.
But those are in fact tangible, real rules
of professional conduct that should be guiding us.
And what Pisa tells us is that it's too hard to correct
after the fact.
That case was in a post-conviction posture.
So there, while the violation in that case was very clear,
there wasn't a remedy.
But there's no question had it arisen before,
or the District Attorney's office
had prophylactically within itself made the decision
to take, pull that attorney off as it should have,
that that is an unquestionable decision.
It would've been an unquestionable decision
for the District Attorney's office here to reassign the case
if they were going to use Fiorentino as a witness.
And there's unquestionable
that they arguably should have insulated ADA Green
from doling out personal consideration,
and also to not make, to make sure
that he was not the conduit of information
to the Northwestern District Attorney's Office.
There's just so many opportunities here
to have avoided this.
They were all in the hands of the District Attorney's office
long before Mr. Scanlon raised the issue.
And under the circumstances,
because we're looking at abuse of discretion,
Judge Mulqueen certainly was within her discretion,
and was supported amply by a strong, strong evidentiary base
that was compiled really at the behest of the Commonwealth
and with its own witnesses in the case it wished to present.
There are no other further questions.
I would rest on my briefing.