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SJC 13375, Commonwealth v. Blake Scanlon.
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Okay. Attorney Baker.
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Good morning. May it please the court,
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Assistant District Attorney Lee Baker for the Commonwealth.
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The fundamental error in this case
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was when the motion judge applied the wrong standard
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to the defendant's motion to disqualify the prosecutor.
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The single justice's error was not rectifying that error.
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Well, you say it's fundamental,
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but in the tension between the two standards,
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I found it persuasive
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that the judge looked at the two comparators and said,
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"One is a bunch of civil cases,
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and the test that I'm applying is the only one
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that's been articulated in a criminal case."
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And so, wouldn't that necessarily,
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I understand where you're coming from
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because our lines of reasoning
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has maybe seemingly been in conflict,
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but isn't that an important factor here,
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that that's the only case that compares apples to apples?
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Sure, but I would say that in the Pisa case,
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the use of that term, "appearance of impropriety",
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that was dict in the sense that,
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in explaining the rationale
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for the final decision in the case
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that the court was,
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found itself in a strange posture here
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insofar as there was a clear violation in Pisa
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of the rules of professional responsibility.
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The lawyer in that case had in fact worked on that case
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prior to joining the district attorney's office.
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And the investigation of that by the special master,
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the special master decided beyond a reasonable doubt
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that it was a harmless error
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because the new lawyer had done nothing more
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than a final look over the brief
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looking essentially for grammatical errors,
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that sort of thing.
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And it apparently made no changes whatsoever.
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And the court gets to the point of talking
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about the appearance of impropriety
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because I think that what the court recognized-
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Can I ask you about that first part
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that you're talking about? Pisa?
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Sure.
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Isn't the essential takeaway from that part
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is that we don't treat prosecutors the same
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as we do counsel in civil action?
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So in a civil action,
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if you worked for a particular client before,
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and you came to a firm,
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then the entire firm would be disqualified.
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Whereas for prosecutors, the same rule does not apply.
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He worked for the client
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before the whole prosecution office, the DA's office,
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was not disqualified.
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So Pisa suggests that the judge here
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applied a different standard correctly to prosecutors.
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Prosecutors are different than private counsel.
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They're treated differently in Pisa.
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Well, a few points on that.
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One, just going back to what I was saying
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about the use of that term "appearance of impropriety",
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what they were talking about there-
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No. I'm still on the first part.
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The first part of Pisa says,
Well, yes.
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The takeaway is you treat prosecutors different
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than private civil counsel in civil lawsuits.
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Right. But, I understand your point.
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And so, what you're saying
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is apply the Adoption of Erica case,
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Right.
a civil case,
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Yeah.
to a prosecutor.
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Lemme try and square those. Okay.
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So, I take your point,
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and it was, the argument was made repeatedly
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throughout the several days of hearings on this,
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that prosecutors are held
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to a different and higher standard.
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I absolutely agree with that. Absolutely.
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They are, and should be.
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There's no question about that.
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But those different and higher standards
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are codified in the rules of professional conduct.
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The rules of professional conduct
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place upon the prosecutor specific higher standards,
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and the case law does as well.
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And so, our position that you can't disqualify a prosecutor
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on the mere appearance of impropriety
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doesn't cut against the claim
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that prosecutors are different
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and held to a different standard
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because it's absolutely the case
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that if there was a violation of the rules of misconduct
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by the ADA, in this case, he should be disqualified.
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But what we have here is the judge saying,
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"There's this appearance of impropriety."
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And I don't think that's a workable standard.
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And let me try and get to that
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because I think that's at the core of this.
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The appearance of impropriety is not a workable standard
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because, well, first of all, it's a subjective standard.
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That doesn't make it necessarily unworkable.
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We have lots of subjective standards.
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But for it to be workable,
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the motion judge, in considering the motion to disqualify,
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and applying that standard
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would have to determine
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what are the community standards?
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The proper-
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This is a high-level generality, though.
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Isn't he gonna be a witness in the case?
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No.
Why not?
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Why is he, I mean, the whole defense is gonna be
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that this jailhouse snitch
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is somebody completely unreliable.
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And they're gonna show the level, the length,
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that the prosecutor was willing to go
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to get this guy on to do this,
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including driving to Worcester
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to fight the probation recommendation,
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probation department's recommendation.
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Isn't he gonna be a witness?
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I would say-
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And then isn't, then it's not an abuse of discretion?
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I would say that he's not-
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Counsel, could you add to Justice Kafka's point
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those practical implications, yeah.
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But also that he's the alleged victim
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Right. (chuckles)
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in a murder-for-hire plot.
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Right.
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The same person that he's gonna be prosecuting.
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So you add those two sides of the coin,
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the practical implications of the extent that he went,
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and the fact that just by virtue of the fact
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that he's alleged to be the victim in the case
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that the defendant tried to kill him.
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Right. So the thing is,
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is that first of all, the motion judge never found
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that he was a necessary witness.
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She found that he was a potential necessary witness.
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We've had a few different variations on this
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to sort of move away from what necessary means. Now, I-
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Right. But again,
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back to, you know, combine again with your original point,
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prosecutors are different.
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So are prosecutorial offices.
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It's not like a private law firm
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where you got three people in the law firm,
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and the person's devoted a huge amount of energy
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to trying the case,
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and they're gonna have to bill,
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and you got none of that here.
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You've got a prosecutor who's be a witness,
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and, as Justice George just points out, (chuckles)
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the potential victim of a targeted murder.
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I don't know, just,
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it doesn't seem like an abuse of discretion to me.
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Well, because there are a number
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of reasonable alternatives-
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Almost a pointless fight, but go ahead.
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that would preserve the defendant's right
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to challenge the credibility of that witness.
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Is that really the core question, though?
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Absolutely.
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That's really getting to the issue
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Right. Yes.
Which is,
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is there other extrinsic evidence
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if the informant denies the impeaching evidence?
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And the Commonwealth has to prove the contrary
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of that denial.
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Who is the witness?
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If the informant says, "No, the ADA did nothing for me.
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Nothing for me."
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So there has to be extrinsic evidence.
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And the complication here,
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if this is really the core issue,
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the complication here is, unlike a lot of situations,
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the DA put himself in a position that he's the witness
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about the extent of the, his cooperation.
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So his assistant. Do you understand my question?
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I do. I do.
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And so first of all,
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I would say that if you look at the record,
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opposing counsel made basically proffers of the evidence
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that she would bring to impeach the cooperating witness,
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including bringing in the probation officers
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at the probation hearing where Mr. Green went and appeared.
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There were all kinds of other witnesses
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that could testify to those same facts.
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And if it got to the point
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where this witness was still denying this,
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the Commonwealth made very clear
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they would stipulate to this.
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And I do want to put the context here.
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All this is avoidable though.
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If he doesn't, you know...
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And it raises the issue of whether he's just so ang...
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I mean, I'm with you.
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Someone threatens the prosecutor,
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that shouldn't remove them from trying the case.
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We certainly don't want to do that.
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But when he runs around, and goes,
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as opposed to sending anyone else in the office
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to do this job, he knows that's a problem.
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And he's, don't back away-
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I would disagree somewhat that he knows that's a problem.
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But let me try and put a little bit of context here
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because I've heard it represented a few times,
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like, Why not just assign someone else?"
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So let's bear in mind that the murder indictment
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comes down April 8th, I believe, of 2019.
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Then the murder-for-hire indictment
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comes down two years later, almost to the day.
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So already this prosecutor has presented,
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has done everything in the case
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from presenting it to the grand jury up until this point.
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And can I just stop you there for a second?
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When did this prosecutor insert himself
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on behalf of the informant?
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Was it during that two-year window?
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I don't know the exact timeframe.
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It may overlap with that.
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Okay, so let's just assume that it was.
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He's invested in this case,
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and he's invested in making himself a witness
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as regard to the informant, I guess.
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Right.
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This is not a case
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where the defendant is just threatening the prosecutor
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to get the prosecutor off.
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The prosecutor himself has himself made himself a witness.
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Well, a few things about that,
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again, to get out this essential context.
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So this motion to disqualify the prosecutor
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came on the eve of trial.
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We are literally, I think at that point,
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about two weeks from the trial day,
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such that I handled the hearing,
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and at one point, the motion judge said to me,
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"Mr. Baker, if I allow this,
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are you prepared to try the case?" (chuckles)
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And so in Smaland the court addressed exactly this issue.
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And so we have to be very careful about a motion like this
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being used for tactical advantage.
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But being careful-
I'm not saying that-
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doesn't suggest that there's an abuse of discretion.
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That's the standard.
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Well, there's reasonable alternatives here.
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How does it... 'Cause what is at issue here?
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That's the whole question.
Right, right.
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That's the whole question.
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Reasonable alternatives to the forensic evidence
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to prove the contrary did not-
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If the impeachment, the facts that impeach the witness,
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are the consideration given,
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and the amount of consideration given,
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all of that can be done through other witnesses-
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But see, those other witnesses can't testify
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to the extent of the effort that prosecutor went to.
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But a stipulation could.
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A stipulation could say that the attorney-
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I know that there are plenty of cases
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that talk about stipulations,
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but the three-dimensional testimony of driving outta county,
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injecting yourself in the proceeding
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00:12:50.460 --> 00:12:52.920
where you have no standing, number one,
270
00:12:52.920 --> 00:12:56.600
because it's the prosecutor, the moving party's probation.
271
00:12:56.600 --> 00:13:00.878
They're advocating for a different disposition.
272
00:13:00.878 --> 00:13:03.660
You're countering the disposition
273
00:13:03.660 --> 00:13:08.340
that the moving probation officer is asking the court for.
274
00:13:08.340 --> 00:13:10.740
That's major, major stuff
275
00:13:10.740 --> 00:13:13.650
that you just can't get in a two-dimensional stipulation.
276
00:13:13.650 --> 00:13:15.600
Sure. But if the, again-
277
00:13:15.600 --> 00:13:18.450
Or the probation officer testifying to.
278
00:13:18.450 --> 00:13:21.330
I think I would disagree somewhat.
279
00:13:21.330 --> 00:13:25.650
All those factual things can be in front of the jury
280
00:13:25.650 --> 00:13:27.150
through stipulation.
281
00:13:27.150 --> 00:13:28.800
Absolutely can.
282
00:13:28.800 --> 00:13:32.730
Now, as far as this talk about the prosecutor
283
00:13:32.730 --> 00:13:35.460
injecting himself into the case,
284
00:13:35.460 --> 00:13:37.920
the goalpost kept moving here.
285
00:13:37.920 --> 00:13:41.250
We had hearings about this.
286
00:13:41.250 --> 00:13:44.910
Initially, Mr. Green did not appear,
287
00:13:44.910 --> 00:13:48.390
and the first decision was made absent him appearing.
288
00:13:48.390 --> 00:13:53.160
And there was some footnote in the motion judge's order
289
00:13:54.060 --> 00:13:57.846
saying that Mr. Green gave no testimony.
290
00:13:57.846 --> 00:14:00.450
So I heard nothing about what are the usual practices.
291
00:14:00.450 --> 00:14:05.160
In response to that, we came with a motion to reconsider,
292
00:14:05.160 --> 00:14:07.050
we present the court
293
00:14:07.050 --> 00:14:11.910
with what is in the usual course of action for our office-
294
00:14:11.910 --> 00:14:13.983
Let me just ask you a quick question.
295
00:14:14.970 --> 00:14:17.130
If we don't agree with you about the standard,
296
00:14:17.130 --> 00:14:18.540
Yes.
297
00:14:18.540 --> 00:14:20.613
Is there an abuse of discretion?
298
00:14:21.660 --> 00:14:26.340
If we don't agree with you that the standard
299
00:14:26.340 --> 00:14:31.170
about whether or not there's an appearance of impropriety,
300
00:14:31.170 --> 00:14:33.783
if we don't agree to that with you,
301
00:14:35.040 --> 00:14:35.990
what's the problem?
302
00:14:37.260 --> 00:14:40.293
Well, here's, well-
Briefly.
303
00:14:41.465 --> 00:14:43.597
Here's the problem (chuckles)
304
00:14:43.597 --> 00:14:44.850
is that in order,
305
00:14:44.850 --> 00:14:48.750
the appearance of impropriety is too nebulous a standard
306
00:14:48.750 --> 00:14:50.604
to apply here because-
307
00:14:50.604 --> 00:14:51.437
If we don't agree with you about that,
308
00:14:51.437 --> 00:14:55.560
so I heard all of why you think that that's not correct.
309
00:14:55.560 --> 00:14:59.820
If we don't agree, is there an abuse of discretion?
310
00:14:59.820 --> 00:15:01.950
With all due respect,
311
00:15:01.950 --> 00:15:05.430
I don't feel that you did hear all of what I have to say
312
00:15:05.430 --> 00:15:08.850
about why there was not an appearance of impropriety
313
00:15:08.850 --> 00:15:09.840
insofar as-
No, no, no.
314
00:15:09.840 --> 00:15:13.480
I'm sorry, I'm not making myself clear.
315
00:15:13.480 --> 00:15:14.313
I apologize.
No.
316
00:15:14.313 --> 00:15:18.587
If we do not agree that there has to be,
317
00:15:20.250 --> 00:15:23.190
or there doesn't have to be an appearance of impropriety,
318
00:15:23.190 --> 00:15:26.703
if we don't agree that the standard is broader than that,
319
00:15:27.810 --> 00:15:32.810
right, if it's okay, or you say it's okay to have somebody,
320
00:15:34.680 --> 00:15:36.980
even if there is an appearance of impropriety,
321
00:15:38.400 --> 00:15:41.253
the civil case, you go with the civil case?
322
00:15:42.425 --> 00:15:47.425
(chuckles) I feel, that with all due respect,
323
00:15:49.020 --> 00:15:51.960
the appearance of impropriety, yes,
324
00:15:51.960 --> 00:15:54.210
that's the whole issue here
325
00:15:54.210 --> 00:15:56.945
is whether that is an appropriate standard.
326
00:15:56.945 --> 00:16:00.003
And I understand that that's your position.
327
00:16:00.960 --> 00:16:02.790
If we don't agree with you,
328
00:16:02.790 --> 00:16:05.910
if we think that there's a different way of looking at it
329
00:16:05.910 --> 00:16:07.563
for a criminal cases,
330
00:16:08.820 --> 00:16:11.370
is there an abuse of discretion?
331
00:16:11.370 --> 00:16:16.370
Yes. I think so because then that's where we get into
332
00:16:16.620 --> 00:16:18.943
the separation of powers.
333
00:16:18.943 --> 00:16:20.075
Okay.
334
00:16:20.075 --> 00:16:23.430
Because, and that's what I was trying to get at
335
00:16:23.430 --> 00:16:26.280
about this appearance standard being too nebulous
336
00:16:26.280 --> 00:16:30.150
because if the motion judge is gonna apply that standard,
337
00:16:30.150 --> 00:16:32.040
then necessarily the motion judge
338
00:16:32.040 --> 00:16:33.840
has to make a determination
339
00:16:33.840 --> 00:16:36.600
about what the community standards are here.
340
00:16:36.600 --> 00:16:39.720
What would the community view as improper
341
00:16:39.720 --> 00:16:43.710
or as rather the appearance of impropriety?
342
00:16:43.710 --> 00:16:47.760
And that essentially is a matter of reading the tea leaves,
343
00:16:47.760 --> 00:16:50.250
saying, "What is the general view out there in the public?"
344
00:16:50.250 --> 00:16:52.920
And I would suggest to the court, respectfully,
345
00:16:52.920 --> 00:16:57.150
that we are in a stage of our history right now,
346
00:16:57.150 --> 00:16:58.830
we've been here before,
347
00:16:58.830 --> 00:17:03.830
where we are engaged in a very serious national conversation
348
00:17:04.200 --> 00:17:06.900
about the role of the prosecutor,
349
00:17:06.900 --> 00:17:09.810
about the criminal justice system in general.
350
00:17:09.810 --> 00:17:12.960
People have never been so interested
351
00:17:12.960 --> 00:17:14.820
in district attorney's races
352
00:17:14.820 --> 00:17:17.520
and what district attorneys are doing.
353
00:17:17.520 --> 00:17:21.360
And the rather than having a motion judge
354
00:17:21.360 --> 00:17:25.200
decide whether or not this appears improper,
355
00:17:25.200 --> 00:17:26.850
essentially reading the tea leaves,
356
00:17:26.850 --> 00:17:30.360
why not leave it in the hands of the electorate.
357
00:17:30.360 --> 00:17:32.490
The statutory scheme that we have here
358
00:17:32.490 --> 00:17:36.180
vests this power in the district attorney.
359
00:17:36.180 --> 00:17:40.800
If the electorate feels that this appears improper,
360
00:17:40.800 --> 00:17:44.895
then they can vote for a different district attorney and-
361
00:17:44.895 --> 00:17:46.440
Okay. I'm sorry. I'm sorry.
362
00:17:46.440 --> 00:17:47.273
Does anybody have any other questions
363
00:17:47.273 --> 00:17:50.490
'cause I think we get the gist.
364
00:17:50.490 --> 00:17:51.323
Thank you.
365
00:17:51.323 --> 00:17:52.220
Thank you.
366
00:17:54.385 --> 00:17:55.218
Attorney Elkins.
367
00:17:55.218 --> 00:17:57.140
Good morning. May it please the court.
368
00:17:58.800 --> 00:18:02.040
Judge Mulqueen did not err when she allowed, in part,
369
00:18:02.040 --> 00:18:04.563
a motion to disqualify ADA Green.
370
00:18:06.120 --> 00:18:09.510
This motion arose based on his personal actions
371
00:18:09.510 --> 00:18:11.580
of doling out consideration,
372
00:18:11.580 --> 00:18:14.940
and when she ruled that she could not excise and separate
373
00:18:14.940 --> 00:18:16.930
that Green is the named victim
374
00:18:18.120 --> 00:18:20.160
of another case in Hampshire County,
375
00:18:20.160 --> 00:18:22.440
she did not abuse her discretion.
376
00:18:22.440 --> 00:18:26.190
Well, the name victim part is, that can't be right.
377
00:18:26.190 --> 00:18:30.480
Alone, if he's just the named victim, you know,
378
00:18:30.480 --> 00:18:33.240
you don't get to choose your prosecutor
379
00:18:33.240 --> 00:18:35.070
by threatening to kill him, right?
380
00:18:35.070 --> 00:18:37.530
That is absolutely correct. Right.
381
00:18:37.530 --> 00:18:39.254
That has been conceded throughout.
382
00:18:39.254 --> 00:18:40.658
So it's this second part that matters, right,
383
00:18:40.658 --> 00:18:41.737
that he's gonna be a witness.
384
00:18:41.737 --> 00:18:42.660
So why don't you address that?
385
00:18:42.660 --> 00:18:45.507
That is correct. It is that...
386
00:18:45.507 --> 00:18:47.790
It's a little bit unfortunate
387
00:18:47.790 --> 00:18:49.110
because it's a little bit of a misnomer
388
00:18:49.110 --> 00:18:51.720
that we're talking about appearance of impropriety.
389
00:18:51.720 --> 00:18:55.920
I believe in the way that Judge Mulqueen wrote her decision
390
00:18:55.920 --> 00:18:57.240
and the basis of her decision
391
00:18:57.240 --> 00:19:01.060
is that she was acknowledging that his personal actions
392
00:19:02.760 --> 00:19:06.480
coupled with the clear personal conflict of interest
393
00:19:06.480 --> 00:19:08.400
because of that
394
00:19:08.400 --> 00:19:11.670
necessarily implicated Rule 3.7,
395
00:19:11.670 --> 00:19:12.870
making him a necessary witness.
396
00:19:12.870 --> 00:19:15.090
Address the specifics 'cause the issue
397
00:19:15.090 --> 00:19:17.463
of whether he is gonna be a witness and why,
398
00:19:18.330 --> 00:19:19.470
and why the stipulation is not enough
399
00:19:19.470 --> 00:19:21.870
is the harder part of this.
400
00:19:21.870 --> 00:19:24.750
So get into the specifics.
401
00:19:24.750 --> 00:19:29.750
Well, Your Honor, he's a necessary witness, first of all,
402
00:19:29.760 --> 00:19:32.520
because Christopher Fiorentino's will,
403
00:19:32.520 --> 00:19:35.820
the issue at the heart of Christopher Fiorentino's witness
404
00:19:35.820 --> 00:19:38.340
is that is issues of bias,
405
00:19:38.340 --> 00:19:41.370
credibility in light of real or perceived benefits,
406
00:19:41.370 --> 00:19:44.069
and his incentive to curry favor.
407
00:19:44.069 --> 00:19:49.069
But, that lever only drops if he doesn't testify
408
00:19:49.590 --> 00:19:52.440
as you expect him to.
409
00:19:52.440 --> 00:19:57.440
And this goes back to, I think, Attorney Baker's point.
410
00:19:58.920 --> 00:20:03.920
If all of this is based on potentially
411
00:20:04.140 --> 00:20:06.930
he doesn't testify the right way,
412
00:20:06.930 --> 00:20:10.230
and now it's about the impeachment of his testimony,
413
00:20:10.230 --> 00:20:13.440
and what extrinsic evidence is better,
414
00:20:13.440 --> 00:20:17.250
what happens if he just testifies to all of the things
415
00:20:17.250 --> 00:20:19.860
that this prosecutor did for him
416
00:20:19.860 --> 00:20:21.930
and the way that he did it for him?
417
00:20:21.930 --> 00:20:23.550
Now we have a situation
418
00:20:23.550 --> 00:20:27.330
where this prosecutor has been removed,
419
00:20:27.330 --> 00:20:32.330
and the concern of Judge Mulqueen never came to pass.
420
00:20:32.730 --> 00:20:33.780
Well, the fact of the matter
421
00:20:33.780 --> 00:20:36.540
is Christopher Fiorentino cannot testify
422
00:20:36.540 --> 00:20:39.690
to all that is relevant about this.
423
00:20:39.690 --> 00:20:41.010
The fact of the matter is
424
00:20:41.010 --> 00:20:42.990
that even before we have an evidentiary hearing,
425
00:20:42.990 --> 00:20:46.140
which in fact generated more evidence
426
00:20:46.140 --> 00:20:50.520
of how much of an outlier this kind of conduct
427
00:20:50.520 --> 00:20:51.930
by a prosecutor is,
428
00:20:51.930 --> 00:20:55.980
we already knew that of that ADA Green was doing things
429
00:20:55.980 --> 00:20:57.823
behind the scenes,
430
00:20:57.823 --> 00:20:59.070
that he was emailing the probation department
431
00:20:59.070 --> 00:21:01.410
to deal with pretrial release conditions,
432
00:21:01.410 --> 00:21:02.970
bail release conditions.
433
00:21:02.970 --> 00:21:06.450
He was involving himself in Worcester.
434
00:21:06.450 --> 00:21:08.910
You all know all of this. That's all in the facts.
435
00:21:08.910 --> 00:21:12.570
What is different and what the witness here can't,
436
00:21:12.570 --> 00:21:14.100
isn't, doesn't have personal knowledge of
437
00:21:14.100 --> 00:21:16.500
is how extraordinary that is.
438
00:21:16.500 --> 00:21:19.230
That that is in fact quite unusual.
439
00:21:19.230 --> 00:21:21.355
Do you need the prosecutor
440
00:21:21.355 --> 00:21:22.955
to tell you how unusual that is?
441
00:21:24.690 --> 00:21:27.600
He's the best witness under the circumstances.
442
00:21:27.600 --> 00:21:30.840
And I think the case law around Rule Three point-
443
00:21:30.840 --> 00:21:34.140
What witnesses did you learn this from?
444
00:21:34.140 --> 00:21:35.580
And wasn't the testimony
445
00:21:35.580 --> 00:21:38.610
that it really wasn't all that extraordinary,
446
00:21:38.610 --> 00:21:41.790
at least in this particular District Attorney's office?
447
00:21:41.790 --> 00:21:44.670
That is... Judge Mulqueen found
448
00:21:44.670 --> 00:21:48.000
that it wasn't necessarily extraordinary
449
00:21:48.000 --> 00:21:50.190
within this District Attorney's office.
450
00:21:50.190 --> 00:21:51.630
She did make an explicit finding
451
00:21:51.630 --> 00:21:54.120
that the question was not answered whether or not
452
00:21:54.120 --> 00:21:57.186
it was unusual across the commonwealth.
453
00:21:57.186 --> 00:21:59.070
And I actually, whether...
454
00:21:59.070 --> 00:22:01.019
you know, that's a characterization,
455
00:22:01.019 --> 00:22:01.920
whether or not it's extraordinary,
456
00:22:01.920 --> 00:22:04.710
and I will admit I am using the word extraordinary,
457
00:22:04.710 --> 00:22:07.500
and have used it throughout the litigation of this.
458
00:22:07.500 --> 00:22:09.750
But the fact of the matter is the evidentiary hearing
459
00:22:09.750 --> 00:22:11.160
at the behest of the Commonwealth
460
00:22:11.160 --> 00:22:14.100
where they put their own senior trial attorney
461
00:22:14.100 --> 00:22:17.340
on the witness stand to testify about cooperating agreements
462
00:22:17.340 --> 00:22:20.340
and how consideration is doled out by that office
463
00:22:20.340 --> 00:22:21.600
showed a number of things,
464
00:22:21.600 --> 00:22:24.630
which is, in fact it doesn't happen very often.
465
00:22:24.630 --> 00:22:26.310
They didn't have any other examples
466
00:22:26.310 --> 00:22:31.310
of this kind of personal appearance happening
467
00:22:31.320 --> 00:22:34.200
except for perhaps if you consider jurisdictional,
468
00:22:34.200 --> 00:22:36.090
the difference between walking downstairs
469
00:22:36.090 --> 00:22:39.060
to go to the district court versus the Superior Court.
470
00:22:39.060 --> 00:22:42.300
There were showed examples where cooperation agreements
471
00:22:42.300 --> 00:22:46.230
implicated cases in other counties and federal court,
472
00:22:46.230 --> 00:22:48.810
but they didn't cite any single example
473
00:22:48.810 --> 00:22:53.013
of a prosecutor personally appearing.
474
00:22:53.013 --> 00:22:53.846
(indistinct)
475
00:22:53.846 --> 00:22:58.650
I'm sorry, so just to finish the answer to my question.
476
00:22:58.650 --> 00:23:01.980
All of that came in through witnesses
477
00:23:01.980 --> 00:23:04.473
other than the prosecuting attorney?
478
00:23:05.465 --> 00:23:08.220
This is correct. What did come in-
479
00:23:08.220 --> 00:23:12.030
How does that square with your necessity
480
00:23:12.030 --> 00:23:14.490
for the prosecuting attorney?
481
00:23:14.490 --> 00:23:17.250
You learned all of these things through other witnesses.
482
00:23:17.250 --> 00:23:20.940
Assuming the informant testifies truthfully,
483
00:23:20.940 --> 00:23:23.130
then it turns out the prosecutor is never needed
484
00:23:23.130 --> 00:23:24.810
to call as a witness.
485
00:23:24.810 --> 00:23:27.810
Your Honor, once we get into,
486
00:23:27.810 --> 00:23:29.880
first of all, requiring defendants to stipulate
487
00:23:29.880 --> 00:23:31.650
to certain information
488
00:23:31.650 --> 00:23:35.850
and dictate how their case is presented
489
00:23:35.850 --> 00:23:37.620
runs into some pretty complicated-
490
00:23:37.620 --> 00:23:38.910
I'm not talking about any stipulations.
491
00:23:38.910 --> 00:23:41.400
I'm talking about calling the witnesses who you called
492
00:23:41.400 --> 00:23:43.850
or who they presented at the evidentiary hearing.
493
00:23:45.270 --> 00:23:48.600
Well, it is a possibility that Max Bennett
494
00:23:48.600 --> 00:23:50.010
could be called for this purpose,
495
00:23:50.010 --> 00:23:52.293
whether or not the Commonwealth wishes to,
496
00:23:53.160 --> 00:23:54.510
you know, pursue that course,
497
00:23:54.510 --> 00:23:57.030
or leave me in the position of pursuing that course,
498
00:23:57.030 --> 00:23:59.040
Mr. Scanlon in pursuing that course,
499
00:23:59.040 --> 00:24:01.590
I suppose is is up to them.
500
00:24:01.590 --> 00:24:05.842
I don't think that, I don't-
(indistinct)
501
00:24:05.842 --> 00:24:08.460
You also don't know everything else he did, right?
502
00:24:08.460 --> 00:24:12.120
I take it you might want to question him. Maybe he did more.
503
00:24:12.120 --> 00:24:12.953
That is true.
504
00:24:12.953 --> 00:24:15.810
I have never had the opportunity to cross examine-
505
00:24:15.810 --> 00:24:18.120
The things that the other witnesses have told you,
506
00:24:18.120 --> 00:24:20.460
but he may have done other things, correct?
507
00:24:20.460 --> 00:24:23.301
I take it you may want to ask him about that.
508
00:24:23.301 --> 00:24:25.473
That is absolutely correct.
509
00:24:26.730 --> 00:24:27.840
Throughout all of this,
510
00:24:27.840 --> 00:24:30.000
ADA Green did not appear at the initial hearing
511
00:24:30.000 --> 00:24:31.590
when it turned into an evidentiary hearing
512
00:24:31.590 --> 00:24:33.609
at the Commonwealth's request.
513
00:24:33.609 --> 00:24:35.141
And when they were given the option
514
00:24:35.141 --> 00:24:36.847
to present whatever witnesses they wanted,
515
00:24:36.847 --> 00:24:40.620
they did not put ADA Green on the stand.
516
00:24:40.620 --> 00:24:45.620
They chose, instead, to put Max Green on the stand.
517
00:24:46.110 --> 00:24:47.193
Max Bennett, sorry.
518
00:24:48.182 --> 00:24:49.483
I just have to chime in.
519
00:24:49.483 --> 00:24:50.963
No one is suggesting,
520
00:24:50.963 --> 00:24:53.863
and I don't think this is an appropriate thing to suggest,
521
00:24:54.750 --> 00:24:59.100
that he did anything that was inappropriate
522
00:24:59.100 --> 00:25:03.990
as long as he disclosed everything he did.
523
00:25:03.990 --> 00:25:08.140
So I don't think this is a form to impugn this ADA
524
00:25:09.060 --> 00:25:13.230
as long as he disclosed everything he did.
525
00:25:13.230 --> 00:25:18.230
So it really comes back around to the likelihood
526
00:25:18.480 --> 00:25:23.400
that he has to be a witness for the extrinsic evidence
527
00:25:23.400 --> 00:25:26.490
because if he doesn't have to be a witness
528
00:25:26.490 --> 00:25:28.890
for the extrinsic evidence,
529
00:25:28.890 --> 00:25:32.550
then it comes down to Mr. Baker's lost argument,
530
00:25:32.550 --> 00:25:37.190
which is what do we think of the appearance of impropriety
531
00:25:38.040 --> 00:25:41.100
being determined by the judge
532
00:25:41.100 --> 00:25:43.023
in the context of Article Three?
533
00:25:43.950 --> 00:25:45.360
That's where I think we get into
534
00:25:45.360 --> 00:25:48.300
where the combination of his personal actions,
535
00:25:48.300 --> 00:25:51.450
which it has to be acknowledged that this,
536
00:25:51.450 --> 00:25:54.000
what ADA Green did was use authority
537
00:25:54.000 --> 00:25:58.140
that is uniquely given to the District Attorney's office.
538
00:25:58.140 --> 00:25:59.440
And he personally did it
539
00:26:00.329 --> 00:26:03.510
when there easily could have been provisions in place.
540
00:26:03.510 --> 00:26:05.760
His office could have insulated him from the case,
541
00:26:05.760 --> 00:26:08.155
insulated him from those actions.
542
00:26:08.155 --> 00:26:12.150
Okay. If he disclosed every single thing he did, okay,
543
00:26:12.150 --> 00:26:14.010
just so that we have this understanding,
544
00:26:14.010 --> 00:26:18.720
if everything he did relative to this informant
545
00:26:18.720 --> 00:26:20.190
out of county
546
00:26:20.190 --> 00:26:23.490
was a hundred percent disclosed to the defendant,
547
00:26:23.490 --> 00:26:25.380
put aside just for the second,
548
00:26:25.380 --> 00:26:28.230
whether or not he should be disqualified.
549
00:26:28.230 --> 00:26:31.290
There's nothing unethical about that, is it?
550
00:26:31.290 --> 00:26:32.430
Your Honor, I suggest
551
00:26:32.430 --> 00:26:36.120
that the rules of professional conduct are implicated.
552
00:26:36.120 --> 00:26:40.320
I am not suggesting that that ADA Green
553
00:26:40.320 --> 00:26:42.900
did violated rules per se.
554
00:26:42.900 --> 00:26:44.460
But the rules of professional conduct
555
00:26:44.460 --> 00:26:47.850
don't just speak to whether or not an individual attorney
556
00:26:47.850 --> 00:26:49.260
violated an ethical rule.
557
00:26:49.260 --> 00:26:52.440
They guide us, they're supposed to guide us as attorneys
558
00:26:52.440 --> 00:26:54.600
in decisions to make in advance.
559
00:26:54.600 --> 00:26:57.390
Pisa is an excellent example of that.
560
00:26:57.390 --> 00:26:58.740
But don't you have to...
561
00:26:58.740 --> 00:27:01.560
I'm not suggesting he's doing anything improper,
562
00:27:01.560 --> 00:27:03.510
but don't you have to be able to question him
563
00:27:03.510 --> 00:27:05.220
to determine that?
564
00:27:05.220 --> 00:27:08.850
That's to me the hardest part of this.
565
00:27:08.850 --> 00:27:11.910
That if, how do we know he disclosed everything?
566
00:27:11.910 --> 00:27:14.160
He may have, and he may,
567
00:27:14.160 --> 00:27:17.487
but we don't know that if you can't question him, right?
568
00:27:17.487 --> 00:27:20.057
And that's where it gets trickier, right?
569
00:27:20.057 --> 00:27:22.444
Right. And I actually agree with that.
570
00:27:22.444 --> 00:27:24.330
And that's why I think that's not the right standard.
571
00:27:24.330 --> 00:27:25.740
And that's why the reason Erica
572
00:27:25.740 --> 00:27:28.200
should not apply in criminal cases
573
00:27:28.200 --> 00:27:33.180
in the sense that by this...
574
00:27:33.180 --> 00:27:36.660
So the appearance of impropriety has to get,
575
00:27:36.660 --> 00:27:40.350
according to Erica, there has to be actual impropriety.
576
00:27:40.350 --> 00:27:42.930
How do we get at that without an evidentiary hearing,
577
00:27:42.930 --> 00:27:47.220
without putting the attorney in question under oath,
578
00:27:47.220 --> 00:27:49.380
and being able to ask questions?
579
00:27:49.380 --> 00:27:51.780
So that's why I'm suggesting
580
00:27:51.780 --> 00:27:54.630
that Pisa is the better standard to say.
581
00:27:54.630 --> 00:27:56.130
It's not an appearance of impropriety
582
00:27:56.130 --> 00:28:00.900
so much as to say that what Judge Mulqueen found
583
00:28:00.900 --> 00:28:03.480
on an ample record with this tremendous amount
584
00:28:03.480 --> 00:28:05.550
of evidentiary support
585
00:28:05.550 --> 00:28:09.030
was that there was an actual conflict of interest.
586
00:28:09.030 --> 00:28:11.880
She was reluctant to specify that,
587
00:28:11.880 --> 00:28:15.450
but it is clear that he could not have tried the case
588
00:28:15.450 --> 00:28:20.340
related to the threat in his jurisdiction or anything other.
589
00:28:20.340 --> 00:28:24.000
He can't try any kinda case where he's the victim,
590
00:28:24.000 --> 00:28:26.850
and his own personal actions combined in a way
591
00:28:26.850 --> 00:28:29.670
to create what she called an appearance of impropriety.
592
00:28:29.670 --> 00:28:33.420
But those are in fact tangible, real rules
593
00:28:33.420 --> 00:28:36.373
of professional conduct that should be guiding us.
594
00:28:36.373 --> 00:28:38.970
And what Pisa tells us is that it's too hard to correct
595
00:28:38.970 --> 00:28:39.900
after the fact.
596
00:28:39.900 --> 00:28:42.150
That case was in a post-conviction posture.
597
00:28:42.150 --> 00:28:46.800
So there, while the violation in that case was very clear,
598
00:28:46.800 --> 00:28:48.780
there wasn't a remedy.
599
00:28:48.780 --> 00:28:51.630
But there's no question had it arisen before,
600
00:28:51.630 --> 00:28:53.217
or the District Attorney's office
601
00:28:53.217 --> 00:28:56.130
had prophylactically within itself made the decision
602
00:28:56.130 --> 00:28:59.283
to take, pull that attorney off as it should have,
603
00:28:59.283 --> 00:29:01.860
that that is an unquestionable decision.
604
00:29:01.860 --> 00:29:03.990
It would've been an unquestionable decision
605
00:29:03.990 --> 00:29:08.160
for the District Attorney's office here to reassign the case
606
00:29:08.160 --> 00:29:11.520
if they were going to use Fiorentino as a witness.
607
00:29:11.520 --> 00:29:13.680
And there's unquestionable
608
00:29:13.680 --> 00:29:18.680
that they arguably should have insulated ADA Green
609
00:29:19.020 --> 00:29:21.570
from doling out personal consideration,
610
00:29:21.570 --> 00:29:23.640
and also to not make, to make sure
611
00:29:23.640 --> 00:29:26.393
that he was not the conduit of information
612
00:29:26.393 --> 00:29:28.366
to the Northwestern District Attorney's Office.
613
00:29:28.366 --> 00:29:29.790
There's just so many opportunities here
614
00:29:29.790 --> 00:29:31.745
to have avoided this.
615
00:29:31.745 --> 00:29:33.720
They were all in the hands of the District Attorney's office
616
00:29:33.720 --> 00:29:36.780
long before Mr. Scanlon raised the issue.
617
00:29:36.780 --> 00:29:38.820
And under the circumstances,
618
00:29:38.820 --> 00:29:41.670
because we're looking at abuse of discretion,
619
00:29:41.670 --> 00:29:45.120
Judge Mulqueen certainly was within her discretion,
620
00:29:45.120 --> 00:29:49.320
and was supported amply by a strong, strong evidentiary base
621
00:29:49.320 --> 00:29:53.520
that was compiled really at the behest of the Commonwealth
622
00:29:53.520 --> 00:29:57.090
and with its own witnesses in the case it wished to present.
623
00:29:57.090 --> 00:29:58.590
There are no other further questions.
624
00:29:58.590 --> 00:30:00.363
I would rest on my briefing.