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SJC-13386: Chris Graham and others
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v. Hampden County District Attorney.
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Okay, Attorney Segal.
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Good morning, Chief Justice Budd,
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and may it please the court.
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With one federal investigation concluded in Springfield
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and another underway in Worcester,
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this case asks what legal duties arise when,
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as the special master put it,
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a law enforcement agency alleges,
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based on an extensive investigation
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that Massachusetts police officers have engaged in a pattern
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or practice of misconduct.
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Now, to explain why what has been done so far is
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insufficient as a matter of law,
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I wanna first start with four facts,
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facts that together demonstrate that people
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in Hampden County have been and are being prosecuted
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and imprisoned without receiving all the evidence
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to which they are entitled.
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First, the July 2020 DOJ report alleged not only a pattern
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or practice of misconduct,
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excessive force by Springfield Narcotics Bureau officers,
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but also that that excessive force, that misconduct,
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was likely more widespread than was captured
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in SPD documents,
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because the police department was systemically incapable
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of policing and investigating itself.
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Second, the DA has access to all, all,
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of the documents that the DOJ reviewed,
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not just as a matter of law,
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because these were officers serving on DA prosecution teams,
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but also, as a matter of fact, because,
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since December, 2020,
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the DA has had a standing written offer from the city
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to review "All of the materials supplied to the DOJ."
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Third, despite that access, in response to the DOJ report,
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the DA reviewed precisely zero SPD documents
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from July, 2020 until July 2nd, 2021, and, since then,
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it has received and reviewed a total of 712 pages,
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representing less than 1% of the documents
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that the DOJ reviewed.
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Fourth, the DA has conceded in its legal briefs
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and in its sworn testimony before the special master,
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that the reason that his accepted that 712 pages,
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not more, not less, but precisely 712 pages,
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despite the city's red light warning
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that this disclosure is not exhaustive,
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is that the DA has a practice of letting the police decide,
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letting the police decide,
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what evidence is exculpatory
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and whether the police will turn it over
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in their discretion,
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and what the DA does is it simply provides,
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according to the first assistant, what the city provides.
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Despite those facts,
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the DA says
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that the 712 pages
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and a rebuttal authored by someone who is himself implicated
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in four of the 16 incidents he addresses,
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that that rebuts the DOJ's allegations.
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And this is like looking at ice floating in the water
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and concluding that it's not the tip of an iceberg,
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while at the very same time refusing
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to look under the surface of the water.
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Counsel, can I ask you about that?
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Because you're going from the DOJ report to that conclusion,
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but there's an intervening four-day evidentiary hearing
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that we have a 60-something paid special master report.
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Let's talk about the Master's report for a minute.
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A lot of what was alleged to have been this widespread,
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10:00 to midnight kind of context out in Springfield,
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was that really born out in the special master's report?
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I'm beginning from your first fundamental premise
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that there is this widespread activity
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by the Hampden County District Attorney's Office
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of not turning over what is
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potentially exculpatory evidence.
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Did the special master agree with you there?
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And I mean, that's a yes or no.
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Did she agree with you from that premise?
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Because you asked for a bunch
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of things downstream based on that.
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I can give the best yes or no that I can,
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which is, I think, as a matter of law,
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either she didn't address it or she didn't agree with us.
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I think that, as a legal conclusion, maybe not,
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but I just wanna say every single fact
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that I just said is either a subsidiary fact found
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by the special master or admitted
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to by the district attorney, every single one.
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So what happened
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in the special master's report is the subsidiary facts
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actually do support our claims of misconduct.
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To the extent that the special master didn't conclude
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that there was misconduct,
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that appears to have been a legal conclusion, at most,
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that those subsidiary facts didn't carry the day
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or that they were best left to this court.
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We don't really know because we fought Lodge objections
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and we don't know how the special master would've responded.
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But let me tell you what I mean about the subsidiary facts.
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It's in the special master's report
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that there were no disclosures of SPD documents
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to the DA until July 2nd, 2021.
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It's in the special master's report that the city made
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an offer on December 10th, 2020,
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to make all the documents available.
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I would think that the one thing that I mentioned so far,
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that isn't expressly in the special master's report is
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that fourth point I mentioned, which is the DA's policy.
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But that's from the DA's first assistant's
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own sworn testimony.
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And I'm referring especially to volume three
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of our record appendix, pages 199, 372, 392, 395, and 414,
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where the the first assistant said,
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"We just turn over what the city turns over."
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Now, our view is that that's contrary to binding case law
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of the Supreme Court and this court,
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including Kyles v. Whitley.
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I don't believe the special master addressed that,
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but to the extent, even for the sake of argument,
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if she did, it would've been a legal conclusion.
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I'm sorry, Mr. Segal, is the raw data available to you?
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I'm sorry, the raw data?
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Raw data from Springfield PD?
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No, Your Honor.
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114,000 pages aren't available to you?
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No, Your Honor.
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And if it were, right, even if it were, as a matter of law,
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and I think this is something that Justice Kafka wrote
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in his decision in the Sutton case,
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which we included as an addendum, even if it were,
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it would be incumbent as a matter of law on the DA
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to review those pages, decide was it exculpatory,
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and make its own assessment of what ought to be disclosed.
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I'm just trying to flesh out, in this case,
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the duty to investigate,
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which I think this really boils down
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to because disclosure's relatively easy.
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The principle's easy to state, but in practice difficult.
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And when we look at Cotto and Ware I think
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that's really the basis of what you're asking for.
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We had the situation,
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is this another Dookhan or is it six cases, right?
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We don't know.
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So the court said, "Someone please look at this,"
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and, ironically, if you recall what sprung
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from Cotto and Ware,
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was an incredibly ineffective report that did nothing.
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And it wasn't until,
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it was the further disclosures that this offspring
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of Cotto/Ware was a feckless investigation.
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But be that as it may, right?
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Just for my own understanding, Your Honor,
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what I think Your Honor may
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be referencing is the investigation
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as to the alleged attorney misconduct.
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But the Cotto investigation
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by the Attorney General's Office,
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which wasn't undertaken until this court said,
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"Please investigate," was enormously important
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and changed the scope of the-
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That was the second step.
Okay, okay.
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There was an intermediary step, but-
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I just wanna make sure we're on the same sheet of music.
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We have.
Thank you.
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I'm kind of,
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we're both familiar with what happened with Farak
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and so are 30,000 defendants where their case is dismissed,
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so I don't wanna belittle that.
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But, anyway, gettin' back to this.
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So we have Cotto and Ware saying,
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"Is this a Dookhan or is this five cases?
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Please look at this."
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Those are instances, of course,
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of misconduct by someone on the prosecution team.
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I'm wondering, where does this case line up as far
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as what the Hampden County District Attorney's Office
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has actually done?
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Does that satisfy their obligations under the duty
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to investigate or do they have to...
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Of course, you think they have to do more,
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but tie this to Cotto and Ware.
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Certainly, Your Honor, so under Cotto, first of all,
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Cotto and Ware write
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about a constitutionally-derived duty to investigate.
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So, although there, under the facts of that situation,
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a full investigation was warranted, according to the court,
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even in a situation not involving egregious misconduct,
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but some misconduct, the duty of inquiry still exists.
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And the question is what's reasonable
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under the circumstances.
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Right. I think that the word's a reasonable investigation.
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Exactly and so, under the circumstances here,
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we have a law enforcement agency alleging
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not just misconduct,
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but the inability of the agency where
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that misconduct was housed to police itself
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and that was born out also, going back to Justice Georges,
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in the special master proceedings, where, actually,
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one of the reasons given by the district attorney
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for not turning over its Nathan Bill's file,
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another fact found by the special master was that they felt
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that SPD did a horrible,
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made a mess of the investigation process.
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So given that universe of facts, right,
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what we think would be required as a matter of law,
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what would be reasonable under
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this constitutionally-derived duty, are four things.
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Reviewing all the documents.
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So far it's at one percent, less than one percent.
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Reviewing the officers involved, the offenses involved,
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and actually talking to people, which, for example,
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Deputy Chief-
Why is doing it in a global-
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Can we get the end of your list before the question?
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Oh, go ahead.
Can you just repeat
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the second one?
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Certainly, Your Honor.
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And I'll just be brief so I can turn to the question.
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Reviewing all the documents,
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reviewing the offenses involved,
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reviewing the officers involved, and talking to witnesses.
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And, by the way,
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we're not that far apart from the DA in one of the letters
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that it wrote recently to the City of Springfield,
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which says, "Please confirm that you've provided us with all
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of the exculpatory evidence relating to all
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of the officers implicated, not just this sample."
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And that representation,
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it's never been represented by the city
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that they've done that.
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They represented the opposite.
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They've said, "Here is not all of the exculpatory evidence."
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And this is sort of the opposite of something
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that this court just found mitigating
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in the Foster decision.
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So I got confused on the list of four.
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Review all the documents, whatever universe that may be,
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review the offenses involved, talk to the witnesses, and?
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And review the officers involved.
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So it's documents, offenses, officers, talking.
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And what I mean by offenses are the three
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that we think are most closely tied to this misconduct,
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which are-
AVPO, et cetera.
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Right, assault and battery on a police officer,
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resisting arrest, and disorderly.
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And I'm happy to turn to Justice Kafka's question.
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I'm willing to turn over if Justice Gaziano didn't
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get his question.
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Are you happy?
Yeah, thank you.
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So I'm trying to understand globally, I mean,
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it's hard to imagine a more careful person
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than Justice Fabricant.
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She's had a five day hearing.
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You had an opportunity to present all,
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whatever all of the defense counsel out there were aware of.
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Isn't it better to proceed case by case in a manageable way,
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where the particular officers involved are
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subject to questioning,
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particularly post-federal DOJ consent decree procedures,
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which are in place?
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00:13:06.540 --> 00:13:10.800
So why should we basically undertake some gigantic
264
00:13:10.800 --> 00:13:13.620
undertaking when we can do this case by case
265
00:13:13.620 --> 00:13:14.650
in a more
266
00:13:16.680 --> 00:13:20.040
particular and focused way?
267
00:13:20.040 --> 00:13:22.080
So a few responses to that.
268
00:13:22.080 --> 00:13:24.360
One is that I wanna be clear about the limited nature
269
00:13:24.360 --> 00:13:28.650
of what the proceedings were before Justice Fabricant,
270
00:13:28.650 --> 00:13:29.722
Special Master Fabricant.
271
00:13:29.722 --> 00:13:34.140
The facts going in, and including the four facts I said
272
00:13:34.140 --> 00:13:35.610
at the outset, were largely undisputed.
273
00:13:35.610 --> 00:13:38.220
And what this was supposed to be was a narrow opportunity
274
00:13:38.220 --> 00:13:40.830
for them to test some of our evidence.
275
00:13:40.830 --> 00:13:42.600
That's why the examinations
276
00:13:42.600 --> 00:13:44.730
of the defense attorneys didn't start with direct testimony.
277
00:13:44.730 --> 00:13:46.710
They started with cross-examination by the DA.
278
00:13:46.710 --> 00:13:48.300
So the evidence that-
279
00:13:48.300 --> 00:13:49.133
You weren't able
280
00:13:49.133 --> 00:13:52.170
to put anything else before Justice Fabricant?
281
00:13:52.170 --> 00:13:53.490
I don't know about able, Your Honor,
282
00:13:53.490 --> 00:13:54.600
but it was our understanding
283
00:13:54.600 --> 00:13:56.850
that the record largely existed and this was an opportunity
284
00:13:56.850 --> 00:13:58.350
for them to test our evidence.
285
00:14:00.210 --> 00:14:01.043
The second thing,
286
00:14:01.043 --> 00:14:04.410
but to your point about "Why can't this go case by case-"
287
00:14:04.410 --> 00:14:05.730
I just wanna make sure of that.
288
00:14:05.730 --> 00:14:10.730
So Justice Fabricant undertakes this proceeding including
289
00:14:11.370 --> 00:14:16.080
defense counsel presenting their own war stories, right?
290
00:14:16.080 --> 00:14:18.240
So I take it there was some ability
291
00:14:18.240 --> 00:14:21.450
to present whatever you were worried about there
292
00:14:21.450 --> 00:14:24.660
'cause we keep coming back to the same two incidents.
293
00:14:24.660 --> 00:14:29.610
The bar fight and the Palmer are the two sort
294
00:14:29.610 --> 00:14:32.483
of most solid pieces of evidence here.
295
00:14:32.483 --> 00:14:34.080
I think there's more than that, Your Honor,
296
00:14:34.080 --> 00:14:34.913
and let me get to that.
297
00:14:34.913 --> 00:14:36.810
It's not that we were prevented.
298
00:14:36.810 --> 00:14:39.390
My point is that the record is broader
299
00:14:39.390 --> 00:14:40.350
than just the testimony.
300
00:14:40.350 --> 00:14:41.202
The record is all the stuff that we put in.
301
00:14:41.202 --> 00:14:44.070
The record is the world.
302
00:14:44.070 --> 00:14:45.360
I mean-
Right, so-
303
00:14:45.360 --> 00:14:46.620
In your brief,
304
00:14:46.620 --> 00:14:49.380
I think you're talking about going back to 2013,
305
00:14:49.380 --> 00:14:51.240
which is 10 years.
306
00:14:51.240 --> 00:14:55.770
Basically everything the Springfield Police Department did
307
00:14:55.770 --> 00:14:56.603
during that time-
308
00:14:56.603 --> 00:14:57.451
There could be.
309
00:14:57.451 --> 00:15:02.451
I mean, an investigation might reasonably be less than that,
310
00:15:02.970 --> 00:15:04.533
but it would have to do at least some of the things
311
00:15:04.533 --> 00:15:05.820
that I mentioned before, I mean,
312
00:15:05.820 --> 00:15:07.320
even reviewing the documents.
313
00:15:07.320 --> 00:15:09.300
What Your Honor dealt
314
00:15:09.300 --> 00:15:13.590
with in the Sutton case was a larger universe of documents.
315
00:15:13.590 --> 00:15:15.450
And in the DA coming to you and saying...
316
00:15:15.450 --> 00:15:16.897
I see that my time has passed.
317
00:15:16.897 --> 00:15:19.066
[Chief Justice Budd] That's okay. Go ahead.
318
00:15:19.066 --> 00:15:21.607
And a DA coming to you and saying,
319
00:15:21.607 --> 00:15:22.950
"We would like to just rely
320
00:15:22.950 --> 00:15:25.320
on what this other entity concluded."
321
00:15:25.320 --> 00:15:27.690
And Your Honor said, "You have to look at the documents."
322
00:15:27.690 --> 00:15:28.590
So we haven't even,
323
00:15:28.590 --> 00:15:32.220
we're far away from going back 13 years.
324
00:15:32.220 --> 00:15:35.217
But on the point of, "Why can't we do this case by case?"
325
00:15:36.060 --> 00:15:38.010
It's the DA's position,
326
00:15:38.010 --> 00:15:39.870
which they repeated not just in the sworn testimony,
327
00:15:39.870 --> 00:15:41.370
but two days ago in this court,
328
00:15:41.370 --> 00:15:45.947
which is that when they ask for documents from the police,
329
00:15:46.920 --> 00:15:49.020
the police get to decide how much to turn over
330
00:15:49.020 --> 00:15:50.340
and what they said in response
331
00:15:50.340 --> 00:15:53.587
to Justice Gaziano's question two days ago was,
332
00:15:53.587 --> 00:15:56.340
"If they don't give us the exculpatory evidence,
333
00:15:56.340 --> 00:15:59.010
we just proceed with the case because we think it's
334
00:15:59.010 --> 00:16:00.867
in the public interest to do so."
335
00:16:00.867 --> 00:16:03.540
And my ears perk up a little bit when I hear prosecutors say
336
00:16:03.540 --> 00:16:06.060
that they take Brady as a suggestion.
337
00:16:06.060 --> 00:16:07.530
So that's one thing.
338
00:16:07.530 --> 00:16:10.800
But I'll tell you another, just some examples.
339
00:16:10.800 --> 00:16:14.460
The reason why we have focused on the Nathan Bills
340
00:16:14.460 --> 00:16:17.100
and Wilbraham Police report is we don't know
341
00:16:17.100 --> 00:16:18.690
what we don't know.
342
00:16:18.690 --> 00:16:22.210
We know that they have a policy of withholding evidence
343
00:16:23.250 --> 00:16:24.300
that they deemed
344
00:16:24.300 --> 00:16:28.320
to be misconduct when they can't decide which
345
00:16:28.320 --> 00:16:29.490
officer did it.
346
00:16:29.490 --> 00:16:32.640
That's the policy that led to the withholding
347
00:16:32.640 --> 00:16:34.410
of the Nathan Bills.
348
00:16:34.410 --> 00:16:37.200
We are learning all the time about more evidence.
349
00:16:37.200 --> 00:16:38.640
Right now, there is litigation
350
00:16:38.640 --> 00:16:40.950
of which we consider submit a 16 L letter
351
00:16:40.950 --> 00:16:44.070
and this court can take judicial notice.
352
00:16:44.070 --> 00:16:47.187
There's litigation between Officer Bigda
353
00:16:47.187 --> 00:16:48.870
and the City of Springfield.
354
00:16:48.870 --> 00:16:50.580
The City of Springfield just counterclaimed
355
00:16:50.580 --> 00:16:53.730
and it's counterclaim says Bigda actually engaged
356
00:16:53.730 --> 00:16:57.420
in 14 instances of physical contact.
357
00:16:57.420 --> 00:17:02.310
But here's a good example. Bigda has been identified.
358
00:17:02.310 --> 00:17:04.443
Any case involving Bigda,
359
00:17:06.540 --> 00:17:08.167
it's out in the open.
360
00:17:08.167 --> 00:17:09.743
[Justice Wendlandt] And it's been dropped.
361
00:17:11.220 --> 00:17:12.070
No, Your Honor,
362
00:17:14.730 --> 00:17:16.350
they continued to use Bigda
363
00:17:16.350 --> 00:17:20.460
as a witness until he decided to stop coming to court
364
00:17:20.460 --> 00:17:21.887
because he'd been indicted.
365
00:17:21.887 --> 00:17:22.720
[Justice Wendlandt] Right and then those
366
00:17:22.720 --> 00:17:23.910
cases were dropped.
367
00:17:23.910 --> 00:17:27.180
Right, so all along, when he was-
368
00:17:27.180 --> 00:17:28.830
So I guess I'm wondering, you know,
369
00:17:28.830 --> 00:17:30.450
back to Justice Kafka's question,
370
00:17:30.450 --> 00:17:32.700
is why not proceed case by case?
371
00:17:32.700 --> 00:17:35.370
You were referencing the case that we had Monday.
372
00:17:35.370 --> 00:17:37.110
It was an individual case.
373
00:17:37.110 --> 00:17:41.100
It seems to easily bring up the issues
374
00:17:41.100 --> 00:17:42.600
that you are concerned with here.
375
00:17:42.600 --> 00:17:45.660
Why do we have to have, as we did with Farak,
376
00:17:45.660 --> 00:17:49.950
a global remedy here, when, in fact, you know,
377
00:17:49.950 --> 00:17:53.131
we can see that case by case this will come up?
378
00:17:53.131 --> 00:17:56.730
I just wanna say, just to, if I could,
379
00:17:56.730 --> 00:17:58.320
just finish the thought about Bigda?
380
00:17:58.320 --> 00:18:02.549
Those cases about him were not turned over when he was
381
00:18:02.549 --> 00:18:04.530
getting people prosecuted and imprisoned
382
00:18:04.530 --> 00:18:08.040
and the city's counter counterclaim also says
383
00:18:08.040 --> 00:18:09.360
that there are three adverse credibility
384
00:18:09.360 --> 00:18:12.090
determinations involving him, one that also involves Kent,
385
00:18:12.090 --> 00:18:13.260
also not turned over.
386
00:18:13.260 --> 00:18:14.168
These are policies.
387
00:18:14.168 --> 00:18:15.169
Okay, but do the court-
So, so-
388
00:18:15.169 --> 00:18:16.002
Yeah, I mean, so yeah-
So on the case by-
389
00:18:16.002 --> 00:18:19.590
You can submit an 6 L letter about updating us on Bigda.
390
00:18:19.590 --> 00:18:22.830
I'm concerned about this court stepping
391
00:18:22.830 --> 00:18:27.810
in and stepping over its Article 30 responsibilities.
392
00:18:27.810 --> 00:18:29.880
Why do we have to proceed in the manner
393
00:18:29.880 --> 00:18:31.770
that you're suggesting we do proceed?
394
00:18:31.770 --> 00:18:35.040
Is it because the DOJ has reviewed a hundred thousand
395
00:18:35.040 --> 00:18:39.540
documents and concluded, without identifying anybody,
396
00:18:39.540 --> 00:18:42.600
that there is rampant misconduct in a bureau
397
00:18:42.600 --> 00:18:43.904
that no longer exists?
398
00:18:43.904 --> 00:18:44.737
Is that what the argument is?
399
00:18:44.737 --> 00:18:45.716
So that's the reason,
400
00:18:45.716 --> 00:18:48.960
that supplies the legal reason to do more
401
00:18:48.960 --> 00:18:51.180
and the reason I mentioned that, the instance,
402
00:18:51.180 --> 00:18:53.790
Your Honor, is not because I was sidestepping your question.
403
00:18:53.790 --> 00:18:57.660
It is my answer to your question that, in cases,
404
00:18:57.660 --> 00:19:00.840
these disclosures don't get made,
405
00:19:00.840 --> 00:19:03.480
this review doesn't get made on a case
406
00:19:03.480 --> 00:19:05.880
by case basis absent guidance from this court.
407
00:19:05.880 --> 00:19:08.520
What we are actually asking for in this case is much less
408
00:19:08.520 --> 00:19:11.760
than what was sought in CPCS v. AG or Bridgemary
409
00:19:11.760 --> 00:19:12.593
or anything else.
410
00:19:12.593 --> 00:19:14.580
We're saying, at the very least,
411
00:19:14.580 --> 00:19:16.950
someone has to review these documents,
412
00:19:16.950 --> 00:19:18.453
look into these incidents.
413
00:19:19.560 --> 00:19:23.430
On the case of the kid and the adult riding the bike,
414
00:19:23.430 --> 00:19:26.160
they continued to prosecute those people without even
415
00:19:26.160 --> 00:19:29.310
checking to see whether the DOJ was right,
416
00:19:29.310 --> 00:19:30.570
without even talking to anyone.
417
00:19:30.570 --> 00:19:33.900
So we want some guidance. You have to review the documents.
418
00:19:33.900 --> 00:19:36.450
So why can't we do guidance by rulemaking, right?
419
00:19:36.450 --> 00:19:39.000
There's a new Rule 14 that's out there.
420
00:19:39.000 --> 00:19:41.670
Justice Fabricant seemed to think that that was a good way.
421
00:19:41.670 --> 00:19:42.720
You tell me why.
422
00:19:42.720 --> 00:19:45.720
Why do we need a fiat from this court in this case?
423
00:19:45.720 --> 00:19:48.450
So there's two reasons, Your Honor.
424
00:19:48.450 --> 00:19:52.140
One is that the Rule 14 addresses only one of the pieces,
425
00:19:52.140 --> 00:19:55.500
which is the when the police intentionally withhold
426
00:19:55.500 --> 00:19:59.550
exculpatory evidence and there are other policies here like
427
00:19:59.550 --> 00:20:02.730
allowing the police to decide what to disclose,
428
00:20:02.730 --> 00:20:05.160
which is how we got 712 pages,
429
00:20:05.160 --> 00:20:07.200
withholding evidence when there's any question
430
00:20:07.200 --> 00:20:09.660
of which officer did the wrongdoing,
431
00:20:09.660 --> 00:20:12.030
withholding adverse credibility determinations
432
00:20:12.030 --> 00:20:13.890
on which this court could give guidance
433
00:20:13.890 --> 00:20:15.480
and which Rule 14 won't.
434
00:20:15.480 --> 00:20:17.160
But on the specific Rule 14 issue,
435
00:20:17.160 --> 00:20:19.200
the problem with the draft of Rule 14
436
00:20:19.200 --> 00:20:21.450
that is in circulation,
437
00:20:21.450 --> 00:20:24.000
is that it would apply the rule
438
00:20:24.000 --> 00:20:26.100
for non-prosecution team members.
439
00:20:26.100 --> 00:20:29.550
Right now, Rule 14 says, if it's a prosecution team member,
440
00:20:29.550 --> 00:20:31.950
the DA is responsible as a matter of law for getting it.
441
00:20:31.950 --> 00:20:34.920
If the DA comes to learn of evidence that is not
442
00:20:34.920 --> 00:20:36.720
in the possession or custody or control
443
00:20:36.720 --> 00:20:40.680
of the prosecution team, then, I think it's 14A1e,
444
00:20:40.680 --> 00:20:44.160
says that the DA is supposed to provide notice.
445
00:20:44.160 --> 00:20:45.600
And what we've heard in this case
446
00:20:45.600 --> 00:20:48.090
and what the special master said was that would also
447
00:20:48.090 --> 00:20:49.670
be a good rule for people who aren't
448
00:20:49.670 --> 00:20:52.800
on the prosecution team and the whole point of Rule 14
449
00:20:52.800 --> 00:20:54.540
as it's presently constructed, is that, no,
450
00:20:54.540 --> 00:20:56.820
that's not the rule for when someone is
451
00:20:56.820 --> 00:20:57.840
on the prosecution team.
452
00:20:57.840 --> 00:21:00.190
Well, that's a Waness issue though, isn't it?
453
00:21:01.290 --> 00:21:03.060
Right, so-
Right,
454
00:21:03.060 --> 00:21:08.060
so basically if, and I know you want us to revisit Waness,
455
00:21:08.100 --> 00:21:10.593
but-
Oh, I misheard you.
456
00:21:10.593 --> 00:21:12.510
Oh, I don't think it's a Waness issue.
457
00:21:12.510 --> 00:21:14.730
Oh, because I thought it was,
458
00:21:14.730 --> 00:21:17.190
if it's not in the custody control,
459
00:21:17.190 --> 00:21:18.960
it's held by IA, correct?
460
00:21:18.960 --> 00:21:23.266
And I think what Rule 14A1e means is it could
461
00:21:23.266 --> 00:21:27.600
be in the Internal Affairs,
462
00:21:27.600 --> 00:21:29.670
but it could be just a witness who's a stranger
463
00:21:29.670 --> 00:21:30.720
to the Commonwealth.
464
00:21:30.720 --> 00:21:34.890
It's a rule for witnesses who possess exculpatory evidence
465
00:21:34.890 --> 00:21:36.030
that the Commonwealth learns
466
00:21:36.030 --> 00:21:38.760
about over which the Commonwealth has no possession,
467
00:21:38.760 --> 00:21:39.660
custody, or control.
468
00:21:39.660 --> 00:21:44.660
And that is not an appropriate rule whereas here you have
469
00:21:44.670 --> 00:21:47.437
an entity, the police department, saying,
470
00:21:47.437 --> 00:21:48.840
"Although we are subject
471
00:21:48.840 --> 00:21:50.200
to your possession, custody, or control-"
472
00:21:50.200 --> 00:21:53.400
Yeah. I think you're mixing apples and oranges.
473
00:21:53.400 --> 00:21:54.680
Everybody we're talking about is a member
474
00:21:54.680 --> 00:21:56.700
of the prosecution team.
475
00:21:56.700 --> 00:21:58.890
We've said that, right?
476
00:21:58.890 --> 00:22:01.780
All these witnesses are members of the prosecution team.
477
00:22:01.780 --> 00:22:04.380
Right and what I'm saying, well, no,
478
00:22:04.380 --> 00:22:06.570
what I'm saying is that,
479
00:22:06.570 --> 00:22:11.423
what I understand the present draft of Rule 14,
480
00:22:11.423 --> 00:22:14.257
the amendment, to say is that it would say,
481
00:22:14.257 --> 00:22:17.910
"Even for someone who's a member of the team,
482
00:22:17.910 --> 00:22:21.271
it would be sufficient for the police to provide notice."
483
00:22:21.271 --> 00:22:22.290
And I don't wanna-
And for the DA
484
00:22:22.290 --> 00:22:23.123
to provide notice.
485
00:22:23.123 --> 00:22:23.956
And I don't wanna waste time talkin'
486
00:22:23.956 --> 00:22:25.647
about what a rule that hasn't been passed since...
487
00:22:25.647 --> 00:22:30.647
But my point is just this will not get resolved, not,
488
00:22:30.780 --> 00:22:32.430
and it hasn't been in three years,
489
00:22:32.430 --> 00:22:36.780
get resolved on a case by case basis if the DA is under-
490
00:22:36.780 --> 00:22:39.153
But didn't the litigation actually,
491
00:22:39.990 --> 00:22:43.470
to your credit and people that brought the litigation,
492
00:22:43.470 --> 00:22:45.540
you started at a certain point.
493
00:22:45.540 --> 00:22:47.520
You've had litigation in front of Justice Wendlandt
494
00:22:47.520 --> 00:22:51.180
for a long time and you've gotten a lot
495
00:22:51.180 --> 00:22:53.520
of what you're lookin' for.
496
00:22:53.520 --> 00:22:54.360
So the fact
497
00:22:54.360 --> 00:22:57.750
that you brought the litigation has raised this issue
498
00:22:57.750 --> 00:22:59.250
and you've gotten, at least,
499
00:22:59.250 --> 00:23:00.570
you don't think the satisfactory,
500
00:23:00.570 --> 00:23:01.770
but you've gotten a lot more
501
00:23:01.770 --> 00:23:04.470
than you had when you started, correct?
502
00:23:04.470 --> 00:23:06.552
We have gotten 700 full pages and we're grateful
503
00:23:06.552 --> 00:23:08.580
that we have that.
504
00:23:08.580 --> 00:23:13.050
I would say that the reason I mentioned the Bigda case is
505
00:23:13.050 --> 00:23:15.180
that we are still worried when we have to look,
506
00:23:15.180 --> 00:23:17.820
read in the news, or read in a latest filing,
507
00:23:17.820 --> 00:23:19.110
that there are police officers
508
00:23:19.110 --> 00:23:21.600
about whom there are multiple acts of misconduct,
509
00:23:21.600 --> 00:23:24.690
including one where he's alleged to have broken a door
510
00:23:24.690 --> 00:23:26.190
and broken someone's jaw,
511
00:23:26.190 --> 00:23:28.350
and three adverse credibility determinations,
512
00:23:28.350 --> 00:23:31.470
including one by the author of this rebuttal in this case,
513
00:23:31.470 --> 00:23:32.610
that we didn't know about.
514
00:23:32.610 --> 00:23:33.930
And that is the problem.
515
00:23:33.930 --> 00:23:35.430
Without adequate instructions,
516
00:23:35.430 --> 00:23:38.070
without clear instructions to review documents,
517
00:23:38.070 --> 00:23:39.720
to look into these events,
518
00:23:39.720 --> 00:23:43.860
and to end these practices of withholding things just
519
00:23:43.860 --> 00:23:45.930
because the police don't want to turn them over,
520
00:23:45.930 --> 00:23:47.880
without those instructions,
521
00:23:47.880 --> 00:23:50.338
it will be impossible for case by case resolution
522
00:23:50.338 --> 00:23:51.171
to resolve this.
And a lot
523
00:23:51.171 --> 00:23:52.260
of this guidance will come in the case
524
00:23:52.260 --> 00:23:53.910
that we heard on Monday,
525
00:23:53.910 --> 00:23:56.940
as far as adverse credibility findings and the ability
526
00:23:56.940 --> 00:24:00.690
to ferret out this stuff from police, correct?
527
00:24:00.690 --> 00:24:02.460
I would say the problem we're gonna run into there
528
00:24:02.460 --> 00:24:05.100
and the problem that defense attorneys have run into is
529
00:24:05.100 --> 00:24:08.010
that it's not ripe until it becomes moot.
530
00:24:08.010 --> 00:24:09.780
People don't know to ask
531
00:24:09.780 --> 00:24:13.560
about the adverse credibility determinations until they
532
00:24:13.560 --> 00:24:15.360
learn about them and once they learn about them,
533
00:24:15.360 --> 00:24:17.670
they're told, "Well, you, you can't litigate this anymore."
534
00:24:17.670 --> 00:24:18.503
Right, I mean,
535
00:24:18.503 --> 00:24:22.800
I think if we're definitive as to what the obligation is,
536
00:24:22.800 --> 00:24:25.050
and if you look at the discipline case
537
00:24:25.050 --> 00:24:28.320
that came out a few weeks ago,
538
00:24:28.320 --> 00:24:30.600
I think prosecutors are rightly or should
539
00:24:30.600 --> 00:24:33.600
be rightly concerned about their constitutional obligations.
540
00:24:34.470 --> 00:24:35.460
Well, I would hope so.
541
00:24:35.460 --> 00:24:37.680
But what the record before you here,
542
00:24:37.680 --> 00:24:39.840
including the record consistent
543
00:24:39.840 --> 00:24:41.880
with the special master's findings,
544
00:24:41.880 --> 00:24:44.280
is that contrary to receiving a representation
545
00:24:44.280 --> 00:24:46.920
that all the evidence has been turned over,
546
00:24:46.920 --> 00:24:49.170
they have received the opposite representation,
547
00:24:49.170 --> 00:24:51.720
which is that the disclosures, the 712 pages,
548
00:24:51.720 --> 00:24:55.440
though it's a good start, are by no means exhaustive.
549
00:24:55.440 --> 00:24:56.520
That's the opposite-
550
00:24:56.520 --> 00:24:59.940
Is the 114,000 exhaustive?
551
00:24:59.940 --> 00:25:01.920
I don't know, Your Honor,
552
00:25:01.920 --> 00:25:04.710
because I haven't seen it and no one has reviewed it.
553
00:25:04.710 --> 00:25:08.370
Well, you know that it's not because the DOJ suggested
554
00:25:08.370 --> 00:25:11.400
that there's more there there and they only got the 114,000.
555
00:25:11.400 --> 00:25:15.030
Right and so what we think is reviewing those documents,
556
00:25:15.030 --> 00:25:18.180
which is the Sutton decision, would be the bare minimum.
557
00:25:18.180 --> 00:25:21.540
It would also have been nice if someone had actually looked
558
00:25:21.540 --> 00:25:24.570
into any of the allegations of misconduct and we think,
559
00:25:24.570 --> 00:25:26.820
not just nice, but constitutionally required.
560
00:25:26.820 --> 00:25:29.073
Can I ask one more question?
561
00:25:30.420 --> 00:25:32.109
Can I ask one?
Yeah.
562
00:25:32.109 --> 00:25:34.180
(audience laughs)
Well, we're 10 minutes over.
563
00:25:34.180 --> 00:25:35.013
Yeah, yes.
All right,
564
00:25:35.013 --> 00:25:36.330
you go first and then I'll-
565
00:25:36.330 --> 00:25:37.500
You keep bringing up Sutton,
566
00:25:37.500 --> 00:25:42.450
but isn't there a difference between Farak
567
00:25:43.410 --> 00:25:47.460
and the cases where we're dealing with the drug analysts,
568
00:25:47.460 --> 00:25:49.590
which, if they're fabricating
569
00:25:49.590 --> 00:25:53.760
the drug certificates, it's direct.
570
00:25:53.760 --> 00:25:58.760
Here you're drawing credibility conclusions based
571
00:25:59.970 --> 00:26:04.036
on whether they're using undue force.
572
00:26:04.036 --> 00:26:08.460
It's different, right? It's much more complicated.
573
00:26:08.460 --> 00:26:10.113
It may not be admissible.
574
00:26:11.783 --> 00:26:15.453
It's not like the drug certificate cases, right?
575
00:26:16.551 --> 00:26:21.551
I would agree that it's not on the same exact facts,
576
00:26:23.010 --> 00:26:26.220
but that's not a fact that cuts against our argument
577
00:26:26.220 --> 00:26:27.510
and one reason-
Well,
578
00:26:27.510 --> 00:26:30.360
it does in terms of a global remedy, doesn't it?
579
00:26:30.360 --> 00:26:32.040
Because the reason we have
580
00:26:32.040 --> 00:26:35.310
to dismiss 30,000 cases or whatever,
581
00:26:35.310 --> 00:26:39.030
we've got concerns that the certificates are just lies
582
00:26:39.030 --> 00:26:40.604
as opposed-
Right.
583
00:26:40.604 --> 00:26:42.660
Actually, I don't think that was the concern.
584
00:26:42.660 --> 00:26:44.130
So, first of all,
585
00:26:44.130 --> 00:26:45.450
today I'm not here to ask you
586
00:26:45.450 --> 00:26:48.360
to overturn 30,000 convictions.
587
00:26:48.360 --> 00:26:50.696
I haven't done that in a few years.
588
00:26:50.696 --> 00:26:52.910
And so what what I'm saying is-
589
00:26:52.910 --> 00:26:55.153
We can predict the future.
No, I mean,
590
00:26:55.153 --> 00:26:57.600
I actually think that what this case has been about is,
591
00:26:57.600 --> 00:27:00.199
please take a look, please.
592
00:27:00.199 --> 00:27:05.199
And the issue is no one was alleging that Dookhan was trying
593
00:27:05.370 --> 00:27:09.390
to falsify to convict innocent people.
594
00:27:09.390 --> 00:27:11.490
No one was alleging that Farak was either.
595
00:27:11.490 --> 00:27:14.610
What's going on here is the real possibility
596
00:27:14.610 --> 00:27:16.260
of people being convicted
597
00:27:16.260 --> 00:27:19.440
of these three offenses where there was never a crime
598
00:27:19.440 --> 00:27:22.350
by someone other than the person wearing the badge.
599
00:27:22.350 --> 00:27:25.200
It's not just credibility in an abstract sense.
600
00:27:25.200 --> 00:27:28.440
It's credibility that can lead directly to the conviction
601
00:27:28.440 --> 00:27:30.843
and imprisonment of innocent people.
602
00:27:32.640 --> 00:27:34.840
I was just gonna ask, I guess it's sort of
603
00:27:39.420 --> 00:27:41.730
similar to what Justice Kafka just asked,
604
00:27:41.730 --> 00:27:44.340
but aren't you conflating doing something
605
00:27:44.340 --> 00:27:48.660
about policemen misconduct writ large and worrying
606
00:27:48.660 --> 00:27:52.020
about specific defendants in their specific cases
607
00:27:52.020 --> 00:27:53.910
and making sure they have what they need
608
00:27:53.910 --> 00:27:55.203
to defend themselves?
609
00:27:56.910 --> 00:27:59.400
I know that whenever a judge asks me if
610
00:27:59.400 --> 00:28:01.470
I'm conflating something, I'm supposed to say no.
611
00:28:01.470 --> 00:28:02.310
So I'm gonna say no.
612
00:28:02.310 --> 00:28:05.283
But, I think, here's why I think I'm not.
613
00:28:07.560 --> 00:28:10.860
The problem for in the individual defendants is
614
00:28:10.860 --> 00:28:13.937
that they're gonna get just a little piece
615
00:28:13.937 --> 00:28:17.850
of the overall misconduct and they won't be able to show
616
00:28:17.850 --> 00:28:21.180
in a particular case, "Oh,
617
00:28:21.180 --> 00:28:22.860
I have a need for you
618
00:28:22.860 --> 00:28:25.800
to investigate officer so-and-so who allegedly hit someone
619
00:28:25.800 --> 00:28:29.827
off a motorbike" because the trial judge is likely to say,
620
00:28:29.827 --> 00:28:31.461
"What has that got to do with you?"
621
00:28:31.461 --> 00:28:34.542
But, as a whole, CPCS,
622
00:28:34.542 --> 00:28:37.510
the lawyers of Hampden County Lawyers for Justice,
623
00:28:37.510 --> 00:28:42.180
have a need for that because the evidence
624
00:28:42.180 --> 00:28:43.290
that would be uncovered,
625
00:28:43.290 --> 00:28:45.330
just as it was in the Cotto investigation,
626
00:28:45.330 --> 00:28:46.830
or could be uncovered,
627
00:28:46.830 --> 00:28:49.680
would be applicable to potentially thousands of cases.
628
00:28:49.680 --> 00:28:50.840
Would it lead to someone asking for all of them
629
00:28:50.840 --> 00:28:52.110
to be overturned?
630
00:28:52.110 --> 00:28:53.460
Not necessarily, Your Honor,
631
00:28:53.460 --> 00:28:58.200
but it would allow them to have fair trials and, right now,
632
00:28:58.200 --> 00:28:59.670
what we're being told is the trials
633
00:28:59.670 --> 00:29:02.250
that are going forward are going forward based on evidence
634
00:29:02.250 --> 00:29:04.650
that the city itself says is not exhaustive.
635
00:29:04.650 --> 00:29:05.612
So, Mr. Segal,
636
00:29:05.612 --> 00:29:10.612
you represent someone in Springfield District Court.
637
00:29:11.610 --> 00:29:13.440
They're charged with, I guess, the big three,
638
00:29:13.440 --> 00:29:15.210
as they call it, the defense bar calls it:
639
00:29:15.210 --> 00:29:17.610
ABPO, resisin' arrest,
640
00:29:17.610 --> 00:29:20.890
or whatever the other charge was, disorderly
641
00:29:22.560 --> 00:29:25.020
and it's Officer Smith.
642
00:29:25.020 --> 00:29:29.017
As a competent defense attorney, you say,
643
00:29:29.017 --> 00:29:32.130
"I want to see any records of Officer Smith
644
00:29:32.130 --> 00:29:34.260
and any misconduct,
645
00:29:34.260 --> 00:29:37.227
whether he has any physical altercations, et cetera."
646
00:29:38.370 --> 00:29:39.470
Why can't you do that?
647
00:29:40.530 --> 00:29:42.270
I think that attorneys have been doing
648
00:29:42.270 --> 00:29:44.820
that and what they didn't know
649
00:29:44.820 --> 00:29:48.540
that they weren't getting until this case is they were not
650
00:29:48.540 --> 00:29:50.100
gonna get any evidence
651
00:29:50.100 --> 00:29:51.990
of an adverse credibility determination
652
00:29:51.990 --> 00:29:53.206
by a judge against Officer Smith.
653
00:29:53.206 --> 00:29:55.333
And we'll talk about that with Ms. Mulvey, but-
654
00:29:55.333 --> 00:30:00.333
Right and, if Officer Smith was involved, let's say, in,
655
00:30:01.770 --> 00:30:05.550
oh, I don't know, the incident in Palmer, right,
656
00:30:05.550 --> 00:30:07.410
or something comparable,
657
00:30:07.410 --> 00:30:09.990
they're gonna get a sampler of the evidence
658
00:30:09.990 --> 00:30:13.260
and what they won't know when they get that sampler is
659
00:30:13.260 --> 00:30:14.790
that it's a sampler because we didn't know
660
00:30:14.790 --> 00:30:16.320
about this policy until this case
661
00:30:16.320 --> 00:30:18.060
of just turning over what the police provide
662
00:30:18.060 --> 00:30:20.490
and they might stop there.
663
00:30:20.490 --> 00:30:21.460
So the problem for-
664
00:30:21.460 --> 00:30:23.610
So if we give you guidance in this case,
665
00:30:23.610 --> 00:30:25.320
in the McFarland case,
666
00:30:25.320 --> 00:30:27.930
that talks about adverse credibility findings
667
00:30:27.930 --> 00:30:31.890
and civil lawsuits, et cetera,
668
00:30:31.890 --> 00:30:34.602
doesn't that answer the question?
669
00:30:34.602 --> 00:30:35.460
I can't speak.
670
00:30:35.460 --> 00:30:37.020
I'm not counsel McFarland so I'm gonna-
671
00:30:37.020 --> 00:30:39.000
Right.
Be careful about that.
672
00:30:39.000 --> 00:30:40.680
But I will say, with respect to this case,
673
00:30:40.680 --> 00:30:43.920
there are really three pieces of guidance
674
00:30:43.920 --> 00:30:47.340
on the disclosure piece that this court could give based
675
00:30:47.340 --> 00:30:49.860
on this record without contradicting anything
676
00:30:49.860 --> 00:30:51.450
the special master said.
677
00:30:51.450 --> 00:30:55.050
One is the DA has said in testimony
678
00:30:55.050 --> 00:30:57.090
that they just simply provide what the police provide.
679
00:30:57.090 --> 00:30:59.520
It would be helpful to remind the DA
680
00:30:59.520 --> 00:31:01.770
that that is unlawful under Kyles v. Whitley
681
00:31:01.770 --> 00:31:03.000
and other things.
682
00:31:03.000 --> 00:31:04.110
The DA has this policy
683
00:31:04.110 --> 00:31:06.030
about adverse credibility determinations.
684
00:31:06.030 --> 00:31:08.310
That's inappropriate.
685
00:31:08.310 --> 00:31:10.350
The special master agreed with us, I think, on that.
686
00:31:10.350 --> 00:31:12.750
The third thing would be,
687
00:31:12.750 --> 00:31:17.400
despite admonitions from the courts that doubt should
688
00:31:17.400 --> 00:31:19.380
be resolved in favor of disclosure,
689
00:31:19.380 --> 00:31:21.930
the DA has a policy of resolving doubt in favor
690
00:31:21.930 --> 00:31:24.720
of withholding when the doubt is which
691
00:31:24.720 --> 00:31:29.070
officers committed misconduct that the existence
692
00:31:29.070 --> 00:31:30.420
of which is not in dispute.
693
00:31:31.260 --> 00:31:34.200
Those three things on the disclosure piece would
694
00:31:34.200 --> 00:31:35.550
be very helpful.
695
00:31:35.550 --> 00:31:37.410
On the investigation piece,
696
00:31:37.410 --> 00:31:39.427
even if the court is not gonna say,
697
00:31:39.427 --> 00:31:42.717
"do a Cotto investigation, convene a grand jury,"
698
00:31:44.460 --> 00:31:47.400
there are many things short of that that are not being done,
699
00:31:47.400 --> 00:31:51.210
including just reviewing the incidents alleged by the DOJ
700
00:31:51.210 --> 00:31:52.230
and reviewing the paper.
701
00:31:52.230 --> 00:31:54.313
Isn't that an Article 30 issue if we say convene
702
00:31:54.313 --> 00:31:55.320
a grand jury?
703
00:31:55.320 --> 00:31:56.340
Well, no, I'm just saying,
704
00:31:56.340 --> 00:31:59.460
even if what your court does not have in mind, right?
705
00:31:59.460 --> 00:32:02.550
On the article 30, in Cotto,
706
00:32:02.550 --> 00:32:06.082
the court said just we would like to know.
707
00:32:06.082 --> 00:32:08.360
We'd like to know. We didn't say how to investigate.
708
00:32:08.360 --> 00:32:09.193
We just said it'd
709
00:32:09.193 --> 00:32:12.040
be nice if we knew if this was a Dookhan case or not.
710
00:32:12.040 --> 00:32:14.070
Right and what I wanna be clear about though is
711
00:32:14.070 --> 00:32:16.590
that we are saying that these are constitutionally required.
712
00:32:16.590 --> 00:32:17.710
So our, if we're-
713
00:32:17.710 --> 00:32:19.890
Can I just press you on that just for a second?
714
00:32:19.890 --> 00:32:24.890
So you say do what, you've got the King Report, right,
715
00:32:25.850 --> 00:32:26.820
at this point?
716
00:32:26.820 --> 00:32:28.260
Do you have-
The Kent.
717
00:32:28.260 --> 00:32:31.950
Excuse me, the Kent Report. You have that report?
718
00:32:31.950 --> 00:32:34.290
'Cause remember the DOJ doesn't identify who
719
00:32:34.290 --> 00:32:35.250
these people are, tight?
720
00:32:35.250 --> 00:32:38.253
It's this classic federal,
721
00:32:39.210 --> 00:32:40.830
they produce the result they want,
722
00:32:40.830 --> 00:32:41.910
which is the consent decree,
723
00:32:41.910 --> 00:32:44.430
but they're not identifying these incidents
724
00:32:44.430 --> 00:32:46.770
that they're describing by name.
725
00:32:46.770 --> 00:32:51.510
But you've got the closest, you have the Kent Report, right?
726
00:32:51.510 --> 00:32:53.310
Well, the Kent Report is more accurately described
727
00:32:53.310 --> 00:32:54.143
as a coverup.
728
00:32:54.143 --> 00:32:55.350
I mean, just to be clear.
729
00:32:55.350 --> 00:32:56.727
I mean, I just don't think that it is-
730
00:32:56.727 --> 00:32:58.020
But that's the attempt
731
00:32:58.020 --> 00:33:00.960
to identify what the DOJ was talking about, correct?
732
00:33:00.960 --> 00:33:03.450
Right but we've had,
733
00:33:03.450 --> 00:33:04.283
let me just be clear
734
00:33:04.283 --> 00:33:06.810
that that identification process was concluded
735
00:33:06.810 --> 00:33:10.980
by October 2020 and, but for this lawsuit,
736
00:33:10.980 --> 00:33:13.330
I'm not sure we would ever have known about it.
737
00:33:14.310 --> 00:33:17.670
Yes, we now have the Kent Report.
738
00:33:17.670 --> 00:33:21.120
The problem is that it is not an attempt to get
739
00:33:21.120 --> 00:33:23.160
to the bottom of what the DOJ alleged.
740
00:33:23.160 --> 00:33:26.261
It is an attempt to disprove it and we think that document-
741
00:33:26.261 --> 00:33:28.320
But, that may be its object.
742
00:33:28.320 --> 00:33:29.153
Doesn't it, though,
743
00:33:29.153 --> 00:33:31.170
go through the DOJ report
744
00:33:31.170 --> 00:33:34.800
and identify the incidents which are otherwise not
745
00:33:34.800 --> 00:33:37.173
identified other than Nathan Bills and-
746
00:33:38.895 --> 00:33:39.960
It does identify 16.
747
00:33:39.960 --> 00:33:42.990
So using that information,
748
00:33:42.990 --> 00:33:45.480
regardless of whether or not it's a rebuttal or cover up
749
00:33:45.480 --> 00:33:47.100
or however you wanna characterize it,
750
00:33:47.100 --> 00:33:50.703
now you know what the DOJ is alleging.
751
00:33:51.540 --> 00:33:55.530
And that is true but, if that was up to the defense,
752
00:33:55.530 --> 00:33:57.210
then there would never have been a Cotto report
753
00:33:57.210 --> 00:34:00.000
because once Attorney Luke Ryan found
754
00:34:00.000 --> 00:34:01.500
the mental health worksheets,
755
00:34:01.500 --> 00:34:03.300
the defense bar could have figured it all out
756
00:34:03.300 --> 00:34:05.370
and the problem is the defense bar can't figure it all out.
757
00:34:05.370 --> 00:34:09.480
We don't have subpoena power. We can't convene grand juries.
758
00:34:09.480 --> 00:34:12.300
We can't immunize witnesses and so there's not going
759
00:34:12.300 --> 00:34:14.910
to be a way to get to the bottom
760
00:34:14.910 --> 00:34:19.910
of what happened absent some undertaking on behalf
761
00:34:20.040 --> 00:34:21.780
of the Commonwealth
762
00:34:21.780 --> 00:34:25.623
to understand whether these 16 incidents identified by Kent,
763
00:34:27.450 --> 00:34:30.810
whether it's true at the DOJ alleged, and, if it's true,
764
00:34:30.810 --> 00:34:32.610
whether there's more.
765
00:34:32.610 --> 00:34:34.980
We just can't do it ourselves.
766
00:34:34.980 --> 00:34:38.890
So we're gonna find out what the DA's office is
767
00:34:40.530 --> 00:34:41.827
willing to do.
768
00:34:41.827 --> 00:34:42.660
Thank you. Thank you, Your Honor.
769
00:34:42.660 --> 00:34:44.910
Okay. Thank you.
770
00:34:44.910 --> 00:34:45.743
Attorney Mulvey.
771
00:34:48.570 --> 00:34:49.620
If it pleases the court,
772
00:34:49.620 --> 00:34:51.960
Elizabeth Mulvey for the District Attorney
773
00:34:51.960 --> 00:34:53.670
of Hampden County.
774
00:34:53.670 --> 00:34:57.150
I'd like for just a moment to go back to the question
775
00:34:57.150 --> 00:35:00.540
that's actually before the court, which is,
776
00:35:00.540 --> 00:35:04.440
has the petitioner or have the petitioners proved
777
00:35:04.440 --> 00:35:07.650
that there's a crisis in Hampden County such
778
00:35:07.650 --> 00:35:11.280
that this court should issue extraordinary relief under
779
00:35:11.280 --> 00:35:13.830
211 and 231A?
780
00:35:13.830 --> 00:35:15.600
That's what brought us here.
781
00:35:15.600 --> 00:35:18.120
That's what sent us to the special master
782
00:35:18.120 --> 00:35:22.080
and she found unequivocally that there is not
783
00:35:22.080 --> 00:35:24.750
and that should be the end of this petition,
784
00:35:24.750 --> 00:35:25.701
but I think-
785
00:35:25.701 --> 00:35:28.170
How many officers are identified by the DOJ report
786
00:35:28.170 --> 00:35:32.040
or now have been identified as involved in the misconduct?
787
00:35:32.040 --> 00:35:33.750
I think approximately 30.
788
00:35:33.750 --> 00:35:37.353
30. And they were mostly in the Narcotics Bureau?
789
00:35:37.353 --> 00:35:39.540
Yes.
Which is now disbanded
790
00:35:39.540 --> 00:35:41.610
and you don't think that that's a problem
791
00:35:41.610 --> 00:35:43.770
of large proportion?
792
00:35:43.770 --> 00:35:46.380
Well, I think that's a huge question
793
00:35:46.380 --> 00:35:49.080
and let me start after it.
794
00:35:49.080 --> 00:35:50.523
First of all,
795
00:35:51.695 --> 00:35:54.000
the issue is does there need
796
00:35:54.000 --> 00:35:55.620
to be some sort of investigation?
797
00:35:55.620 --> 00:35:58.530
And I'm gonna pass the question because I think there is
798
00:35:58.530 --> 00:36:01.983
an Article 30 issue and I think it's more than that.
799
00:36:04.304 --> 00:36:05.400
With all respect,
800
00:36:05.400 --> 00:36:08.970
it's the district attorney's determination how he
801
00:36:08.970 --> 00:36:10.380
uses his resources.
802
00:36:10.380 --> 00:36:13.440
He doesn't think it's a good use of resources to go back
803
00:36:13.440 --> 00:36:16.920
to 2013 to investigate something
804
00:36:16.920 --> 00:36:19.860
that the federal government spent two and a half years
805
00:36:19.860 --> 00:36:23.910
and God knows how many millions of dollars doing and,
806
00:36:23.910 --> 00:36:27.990
whatever he did, it will not be enough because all
807
00:36:27.990 --> 00:36:30.810
of the amicus briefs, the petitioners themselves,
808
00:36:30.810 --> 00:36:34.200
have said that the district attorney shouldn't
809
00:36:34.200 --> 00:36:35.033
be doing this.
810
00:36:35.033 --> 00:36:36.540
He's too close. He's biased.
811
00:36:36.540 --> 00:36:38.670
He's part of the misconduct.
812
00:36:38.670 --> 00:36:41.523
But he's the one that's the party in this case.
813
00:36:42.360 --> 00:36:46.020
The Attorney General, as they said to Justice Fabricant,
814
00:36:46.020 --> 00:36:49.930
is aware of this case and has no interest in participating
815
00:36:51.030 --> 00:36:56.030
and, more important, on sort of a moral basis,
816
00:36:56.820 --> 00:36:59.257
there is no evidence
817
00:36:59.257 --> 00:37:02.940
that exculpatory information is not being disclosed.
818
00:37:02.940 --> 00:37:07.320
I think Mr. Segal's point is we don't really,
819
00:37:07.320 --> 00:37:09.720
even if we do this on an individualized basis,
820
00:37:09.720 --> 00:37:12.060
the way the documents are being produced,
821
00:37:12.060 --> 00:37:14.700
the way the decisions are being made,
822
00:37:14.700 --> 00:37:19.030
we don't know sort of the standards they're applying
823
00:37:20.760 --> 00:37:24.120
and I think that's what he's saying.
824
00:37:24.120 --> 00:37:25.380
How can we even do it in
825
00:37:25.380 --> 00:37:30.330
an individual case if the DA's Office is making a decision
826
00:37:30.330 --> 00:37:35.330
to turn it over or not based on sort
827
00:37:36.000 --> 00:37:38.103
of its own judgment calls?
828
00:37:39.120 --> 00:37:42.300
That's what DA's Offices do in every county
829
00:37:42.300 --> 00:37:43.290
in the Commonwealth.
830
00:37:43.290 --> 00:37:45.220
They get evidence and they decide whether to turn it-
831
00:37:45.220 --> 00:37:48.480
But he's saying, based on the past,
832
00:37:48.480 --> 00:37:50.910
we weren't given things that we clearly should have been.
833
00:37:50.910 --> 00:37:52.676
Well, first of all-
Bigda.
834
00:37:52.676 --> 00:37:53.813
That's not true.
Okay so-
835
00:37:53.813 --> 00:37:57.540
The way Bigda came to light was that the CDs
836
00:37:57.540 --> 00:37:59.220
of that interrogation were produced
837
00:37:59.220 --> 00:38:03.000
to three defense counsel who did nothing.
838
00:38:03.000 --> 00:38:06.210
A line ADA in the district court on a Saturday
839
00:38:06.210 --> 00:38:09.450
in July was looking at those CDs in preparation
840
00:38:09.450 --> 00:38:13.980
for trial and said, "Oh, my God," and called a supervisor.
841
00:38:13.980 --> 00:38:15.600
That's how Bigda it came to light.
842
00:38:15.600 --> 00:38:17.280
First they produced it
843
00:38:17.280 --> 00:38:20.910
and second they recognized it when defense counsel
844
00:38:20.910 --> 00:38:21.743
was doing nothing.
845
00:38:21.743 --> 00:38:23.940
So when we go through all of Justice Fabricant's findings
846
00:38:23.940 --> 00:38:24.773
and other things-
847
00:38:24.773 --> 00:38:25.800
I'm sorry, I missed-
848
00:38:25.800 --> 00:38:30.150
So when we're going through Justice Fabricant's findings,
849
00:38:30.150 --> 00:38:35.150
basically, the Springfield DA's Office has been doing just
850
00:38:36.090 --> 00:38:38.400
fine in what they're turning over.
851
00:38:38.400 --> 00:38:40.413
There's no cause for concern.
852
00:38:42.840 --> 00:38:46.220
Everything's basically in good shape after the DOJ report.
853
00:38:46.220 --> 00:38:48.300
Is that what you're telling us?
854
00:38:48.300 --> 00:38:51.960
So we shouldn't even make any clarifications
855
00:38:51.960 --> 00:38:53.030
in the law here about-
856
00:38:53.030 --> 00:38:55.080
Well, that's a different question and I'd love to talk
857
00:38:55.080 --> 00:38:58.290
about that too but, to the first part of the question,
858
00:38:58.290 --> 00:39:01.260
they were given extraordinary latitude,
859
00:39:01.260 --> 00:39:03.180
not just by Justice Fabricant,
860
00:39:03.180 --> 00:39:04.680
but they presented affidavits
861
00:39:04.680 --> 00:39:06.537
with their original petition which turned-
862
00:39:06.537 --> 00:39:08.940
No, my question's a little different.
863
00:39:08.940 --> 00:39:10.800
When we're looking at the past practices
864
00:39:10.800 --> 00:39:12.240
of what's been turned over here,
865
00:39:12.240 --> 00:39:13.830
there's no cause for concern,
866
00:39:13.830 --> 00:39:16.830
that the police department was producing the stuff
867
00:39:16.830 --> 00:39:20.520
that the DA's asked for and it was being turned over.
868
00:39:20.520 --> 00:39:22.728
There's no evidence to the contrary.
869
00:39:22.728 --> 00:39:24.480
Can I ask you about two aspects
870
00:39:24.480 --> 00:39:27.120
of the discovery practices I find concerning?
871
00:39:27.120 --> 00:39:29.320
Sure.
The first is
872
00:39:31.260 --> 00:39:34.950
the determination by the DA's Office that,
873
00:39:34.950 --> 00:39:38.100
when they have an incident and the identity
874
00:39:38.100 --> 00:39:40.293
of the police officer is in question, well,
875
00:39:40.293 --> 00:39:42.717
it's not exculpatory 'cause who knows who did it.
876
00:39:42.717 --> 00:39:44.880
And the second is when there's
877
00:39:44.880 --> 00:39:47.770
an adverse credibility finding like Judge Sweeney made
878
00:39:48.720 --> 00:39:50.850
and the DA says, "Well, that's explainable,"
879
00:39:50.850 --> 00:39:52.860
so we're just not gonna tell you about that.
880
00:39:52.860 --> 00:39:55.950
That's incredibly risky in my opinion.
881
00:39:55.950 --> 00:39:57.450
Can you address those two practices?
882
00:39:57.450 --> 00:39:59.313
I'd love to actually.
883
00:40:00.180 --> 00:40:01.923
As to the first one,
884
00:40:03.270 --> 00:40:08.270
that information was disclosed to the defendant involved.
885
00:40:08.370 --> 00:40:13.050
The issue is when you get to collateral cases under matter
886
00:40:13.050 --> 00:40:14.940
of a grand jury,
887
00:40:14.940 --> 00:40:17.820
how do you know as to which officer
888
00:40:17.820 --> 00:40:20.310
to disclose it if nobody's identified?
889
00:40:20.310 --> 00:40:23.370
This was a Wilbraham Police report
890
00:40:23.370 --> 00:40:26.730
that said a Springfield Police officer kicked the kid.
891
00:40:26.730 --> 00:40:30.780
The federal government indicted two people and managed
892
00:40:30.780 --> 00:40:32.553
to prove neither one did it.
893
00:40:33.690 --> 00:40:35.370
The kid never reported it.
894
00:40:35.370 --> 00:40:39.450
So there was no attempt to figure it out
895
00:40:39.450 --> 00:40:40.890
on the defense side.
896
00:40:40.890 --> 00:40:44.040
But the issue then is there were several
897
00:40:44.040 --> 00:40:45.663
police officers there.
898
00:40:46.980 --> 00:40:51.150
As to whom is that exculpatory in a collateral case?
899
00:40:51.150 --> 00:40:52.470
I think is the issue there.
900
00:40:52.470 --> 00:40:53.970
It's not that they didn't turn it over
901
00:40:53.970 --> 00:40:56.460
in the underlying case.
902
00:40:56.460 --> 00:41:00.510
It's that you'd turn it over in every case
903
00:41:00.510 --> 00:41:05.070
in which every one of those officers was involved?
904
00:41:05.070 --> 00:41:08.040
If the answer's yes, tell 'em and they'll do it.
905
00:41:08.040 --> 00:41:10.347
But I don't think there's anything in any case law-
906
00:41:10.347 --> 00:41:13.103
Well, I know what my answer would be if I was a supervisor
907
00:41:13.103 --> 00:41:15.540
in that DA's Office.
908
00:41:15.540 --> 00:41:16.950
It would've been to turn it over.
909
00:41:16.950 --> 00:41:19.370
But that was a long time ago.
910
00:41:19.370 --> 00:41:21.900
It was before matter of a grand jury.
911
00:41:21.900 --> 00:41:23.550
It involved a juvenile.
912
00:41:23.550 --> 00:41:27.000
I mean, it's not quite clean and tidy.
913
00:41:27.000 --> 00:41:28.230
Right. Address number two, please.
914
00:41:28.230 --> 00:41:29.480
Let me take number two.
915
00:41:31.710 --> 00:41:36.210
I think that on an appropriate case that would be good
916
00:41:36.210 --> 00:41:40.713
for the court to address, but it's a really messy issue.
917
00:41:42.660 --> 00:41:44.820
As Your Honor noted on Monday,
918
00:41:44.820 --> 00:41:47.227
sometimes judges are nice and they say,
919
00:41:47.227 --> 00:41:48.990
"I don't believe the officer."
920
00:41:48.990 --> 00:41:51.300
Sometimes, given that it's the Commonwealth's
921
00:41:51.300 --> 00:41:55.087
burden of proof, it's truly a tossup and the judge says,
922
00:41:55.087 --> 00:41:58.560
"I find the Commonwealth hasn't met the burden of proof."
923
00:41:58.560 --> 00:42:01.830
Does that mean the judge believes the officer lied?
924
00:42:01.830 --> 00:42:03.764
I think going back to matter of grand jury-
925
00:42:03.764 --> 00:42:08.764
But when I read Judge Sweeney's decision, it wasn't, well,
926
00:42:09.720 --> 00:42:11.280
I don't wanna say she wasn't nice,
927
00:42:11.280 --> 00:42:12.810
but when I say she was direct.
928
00:42:12.810 --> 00:42:17.040
She was, but she also didn't have the whole picture.
929
00:42:17.040 --> 00:42:19.440
But whose call should that be?
930
00:42:19.440 --> 00:42:22.290
Well, as a matter of a grand jury,
931
00:42:22.290 --> 00:42:25.800
the language is if the prosecutor determines
932
00:42:25.800 --> 00:42:29.430
that the officer had lied and that's important in a couple
933
00:42:29.430 --> 00:42:31.350
of the cases that they've cited here,
934
00:42:31.350 --> 00:42:35.070
because the prosecutor had information and witnesses
935
00:42:35.070 --> 00:42:38.640
that weren't at the dangerousness hearing,
936
00:42:38.640 --> 00:42:41.460
weren't at the motion to suppress 'cause nobody knew it was
937
00:42:41.460 --> 00:42:45.363
an issue until it blew up in these poor little DA's faces.
938
00:42:46.380 --> 00:42:47.460
But I'd like to point
939
00:42:47.460 --> 00:42:50.430
to what I think is the most egregious example,
940
00:42:50.430 --> 00:42:55.430
which is a finding way back in 2007 or 2008
941
00:42:55.860 --> 00:42:58.410
as to a client represented by David Hoose,
942
00:42:58.410 --> 00:43:00.450
who's president or was president
943
00:43:00.450 --> 00:43:02.820
of Hampden County Lawyers for Justice.
944
00:43:02.820 --> 00:43:06.180
He admitted that he has never tried to use it.
945
00:43:06.180 --> 00:43:08.520
He never gave it to anybody in his office.
946
00:43:08.520 --> 00:43:11.730
He never gave it to the Hampden County Lawyers for Justice.
947
00:43:11.730 --> 00:43:15.510
He never suggested to his friend the DA that he should
948
00:43:15.510 --> 00:43:16.890
be disseminating it
949
00:43:16.890 --> 00:43:20.460
and four DAs before this one didn't see fit
950
00:43:20.460 --> 00:43:22.140
to disseminate it.
951
00:43:22.140 --> 00:43:25.650
Now, could there be room for
952
00:43:25.650 --> 00:43:29.310
a real narrow rule
953
00:43:29.310 --> 00:43:33.153
that if the judge specifically makes the finding?
954
00:43:34.140 --> 00:43:38.700
Yeah, sure. If you tell 'em to do that, they'll do it.
955
00:43:38.700 --> 00:43:41.580
But if you look at the record in this case,
956
00:43:41.580 --> 00:43:45.240
they manage to find exactly three examples and two
957
00:43:45.240 --> 00:43:46.740
of 'em were mushy.
958
00:43:46.740 --> 00:43:51.740
So I'm not convinced that that's a huge problem.
959
00:43:51.797 --> 00:43:52.630
Attorney-
I think most
960
00:43:52.630 --> 00:43:54.150
of them are soft, most of them-
961
00:43:54.150 --> 00:43:57.210
Attorney Mulvey, I'm a little surprised
962
00:43:57.210 --> 00:44:00.780
that the DA's position is that there's nothing to see here
963
00:44:00.780 --> 00:44:03.030
and there's nothing that needs to be done.
964
00:44:03.030 --> 00:44:08.030
It seems to me that it might behoove the office to say,
965
00:44:09.277 --> 00:44:12.387
"What should we be doing in the interests of justice?"
966
00:44:14.640 --> 00:44:17.250
Has there been any, what are you planning?
967
00:44:17.250 --> 00:44:18.690
What are they planning to do?
968
00:44:18.690 --> 00:44:22.200
They believe that they are turning over exculpatory
969
00:44:22.200 --> 00:44:27.200
evidence and the record shows that they have.
970
00:44:27.626 --> 00:44:29.580
So nothing needs to change?
971
00:44:29.580 --> 00:44:32.160
Well, they're apparently doing a pretty good job.
972
00:44:32.160 --> 00:44:33.240
As I said to somebody,
973
00:44:33.240 --> 00:44:34.740
they'd be happy to put their record up
974
00:44:34.740 --> 00:44:36.221
against Suffolk County, you know?
975
00:44:36.221 --> 00:44:41.221
But what about the Brady Committee with Justice Cordy?
976
00:44:41.250 --> 00:44:44.010
Wasn't that in a reform that's been imposed?
977
00:44:44.010 --> 00:44:45.930
Yeah, they have a whole new policy
978
00:44:45.930 --> 00:44:47.760
that they didn't have before that was reviewed
979
00:44:47.760 --> 00:44:50.290
by ex Justice Cordy
980
00:44:51.450 --> 00:44:53.460
and they're following it.
981
00:44:53.460 --> 00:44:56.130
Frankly, they're scared to death,
982
00:44:56.130 --> 00:44:58.500
even before Foster and Kacsmaryk.
983
00:44:58.500 --> 00:45:02.580
You've got these little DAs with piles of cases
984
00:45:02.580 --> 00:45:04.420
and they're terrified
985
00:45:05.460 --> 00:45:09.210
and maybe they should be, but they are.
986
00:45:09.210 --> 00:45:10.043
The message is clear.
987
00:45:10.043 --> 00:45:12.360
So that screams for clear guidance from the court
988
00:45:12.360 --> 00:45:15.030
as to what their responsibilities are so
989
00:45:15.030 --> 00:45:18.450
that the prosecutors, little as they are, aren't scared.
990
00:45:18.450 --> 00:45:23.450
Yeah and could I take a swing at the softball from Monday,
991
00:45:23.460 --> 00:45:25.080
which is just give it to 'em?
992
00:45:25.080 --> 00:45:26.583
What difference does it make?
993
00:45:28.290 --> 00:45:30.000
'Cause I think that's really the issue is:
994
00:45:30.000 --> 00:45:31.110
Why not just say,
995
00:45:31.110 --> 00:45:33.510
give 'em everything and let's see what happens?
996
00:45:33.510 --> 00:45:37.470
I think, off the top of my head, I can think of six reasons.
997
00:45:37.470 --> 00:45:40.530
First, as the record in this case shows
998
00:45:40.530 --> 00:45:43.200
and it's the best record anybody's ever gonna have
999
00:45:43.200 --> 00:45:45.573
on a DA's disclosure practices,
1000
00:45:46.650 --> 00:45:49.170
shows that they're doing a pretty good job.
1001
00:45:49.170 --> 00:45:50.730
Are they perfect? Probably not.
1002
00:45:50.730 --> 00:45:53.670
Are they doing okay? They're doing pretty well.
1003
00:45:53.670 --> 00:45:56.700
Second, we have the Rule 14 committee,
1004
00:45:56.700 --> 00:46:01.203
which spent four or five years doing yeoman's work.
1005
00:46:02.190 --> 00:46:05.280
I would suggest that maybe it would be a good idea to get
1006
00:46:05.280 --> 00:46:07.020
that implemented and see how
1007
00:46:07.020 --> 00:46:11.580
that works before we go creating collateral issues.
1008
00:46:11.580 --> 00:46:16.580
Three is that there's really a slippery slope here where
1009
00:46:17.670 --> 00:46:22.670
we're looking to make the prosecution not just responsible
1010
00:46:23.100 --> 00:46:26.790
to identify existing evidence,
1011
00:46:26.790 --> 00:46:29.160
but to become the defense investigator
1012
00:46:29.160 --> 00:46:32.970
and I recognize it's a slippery slope and it's a line,
1013
00:46:32.970 --> 00:46:37.970
but it's never been the law that they have to go investigate
1014
00:46:38.220 --> 00:46:41.910
to develop exculpatory evidence as opposed
1015
00:46:41.910 --> 00:46:45.510
to identify existing exculpatory evidence.
1016
00:46:45.510 --> 00:46:49.010
Frankly, if you're gonna make them a defense investigator,
1017
00:46:49.010 --> 00:46:50.190
it would make more sense
1018
00:46:50.190 --> 00:46:53.010
to send them after stuff like Bohannan evidence
1019
00:46:53.010 --> 00:46:55.560
or Adjutant evidence or mental health records
1020
00:46:55.560 --> 00:46:59.280
of a complainant that might be relevant and admissible.
1021
00:46:59.280 --> 00:47:03.420
Fourth, it's a huge administrative nightmare
1022
00:47:03.420 --> 00:47:08.220
and that wouldn't excuse it if there were a constitutional
1023
00:47:08.220 --> 00:47:11.490
need and if this evidence were useful.
1024
00:47:11.490 --> 00:47:12.720
But what you have,
1025
00:47:12.720 --> 00:47:16.140
and Mr. Shepherd Brick did a pretty good job,
1026
00:47:16.140 --> 00:47:18.690
but this is not a simple matter
1027
00:47:18.690 --> 00:47:22.680
to go asking all these officers all these questions
1028
00:47:22.680 --> 00:47:25.890
because a conviction is static.
1029
00:47:25.890 --> 00:47:28.929
It's happened. It goes in the Brady database.
1030
00:47:28.929 --> 00:47:29.762
It get disclosed.
1031
00:47:29.762 --> 00:47:32.610
I'm a little confused though 'cause I am focused
1032
00:47:32.610 --> 00:47:37.610
on what you call the little DA in the individual case
1033
00:47:37.620 --> 00:47:39.580
and why they're so frightened
1034
00:47:41.160 --> 00:47:43.200
'cause it seems like everyone has an interest
1035
00:47:43.200 --> 00:47:46.440
in clarifying exactly what that is.
1036
00:47:46.440 --> 00:47:48.810
Because McFarland said we're gonna take your head off if
1037
00:47:48.810 --> 00:47:52.680
you don't do formal/informal,
1038
00:47:52.680 --> 00:47:55.290
internal/external, civil/criminal.
1039
00:47:55.290 --> 00:47:58.140
And Justice Gaziano asked you about two of them,
1040
00:47:58.140 --> 00:48:02.297
is there anywhere else that the DA wants us to clarify that?
1041
00:48:02.297 --> 00:48:04.320
'Cause I do have problems
1042
00:48:04.320 --> 00:48:09.320
with this global gigantic investigation, but I don't,
1043
00:48:09.450 --> 00:48:10.680
in the individual case,
1044
00:48:10.680 --> 00:48:12.900
I want to be confident
1045
00:48:12.900 --> 00:48:15.570
that we are providing clear enough guidance so
1046
00:48:15.570 --> 00:48:19.680
that we're not dealing with claims
1047
00:48:19.680 --> 00:48:21.330
of cover up and everything else
1048
00:48:21.330 --> 00:48:24.090
'cause I don't quite have the same level of confidence
1049
00:48:24.090 --> 00:48:27.510
that everything is completely hunky dory out there
1050
00:48:27.510 --> 00:48:29.160
that you do.
1051
00:48:29.160 --> 00:48:31.830
Well, they were given the opportunity.
1052
00:48:31.830 --> 00:48:33.361
I mean, if they show us something,
1053
00:48:33.361 --> 00:48:34.763
we'll be happy to address it.
Justice Fabricant,
1054
00:48:35.670 --> 00:48:36.840
it's pretty nuanced.
1055
00:48:36.840 --> 00:48:41.760
It's not a complete comfort level is it?
1056
00:48:41.760 --> 00:48:44.190
But, anyway, so there's nothing more for that,
1057
00:48:44.190 --> 00:48:46.710
what you call the little DA that we should be doing
1058
00:48:46.710 --> 00:48:49.083
to clarify what they should be turning over.
1059
00:48:50.130 --> 00:48:53.220
I think that there's this sort of,
1060
00:48:53.220 --> 00:48:56.400
and it's amorphous at this stage, this sort of,
1061
00:48:56.400 --> 00:48:58.170
is there a duty of inquiry?
1062
00:48:58.170 --> 00:49:02.490
What do you have to ask your prosecution team witnesses?
1063
00:49:02.490 --> 00:49:03.720
But I think it's pretty-
Well,
1064
00:49:03.720 --> 00:49:07.590
it's in the context of the police are not fully,
1065
00:49:07.590 --> 00:49:10.650
the police are an independent entity.
1066
00:49:10.650 --> 00:49:12.750
It's not like the federal government
1067
00:49:12.750 --> 00:49:16.290
and they're making their own judgment calls,
1068
00:49:16.290 --> 00:49:20.160
which are exposing your clients sometimes.
1069
00:49:20.160 --> 00:49:22.590
So, again, it's all perfect.
1070
00:49:22.590 --> 00:49:24.300
Sometimes they don't even know.
1071
00:49:24.300 --> 00:49:27.870
Well, but again, what should we be, what should we,
1072
00:49:27.870 --> 00:49:29.490
is there anything more we should be doing
1073
00:49:29.490 --> 00:49:32.730
to empowering the DA's office in relation
1074
00:49:32.730 --> 00:49:33.870
to the police department?
1075
00:49:33.870 --> 00:49:36.657
Or is, again, you're comfortable with the way everything is?
1076
00:49:36.657 --> 00:49:39.090
No, with respect to that specific issue,
1077
00:49:39.090 --> 00:49:40.140
I think the court ought
1078
00:49:40.140 --> 00:49:43.414
to say this is not the prosecutor's responsibility, but-
1079
00:49:43.414 --> 00:49:45.420
There's no hear no evil,
1080
00:49:45.420 --> 00:49:48.390
see no evil exception of Brady, right?
1081
00:49:48.390 --> 00:49:50.040
You have a duty to inquire
1082
00:49:50.040 --> 00:49:53.100
and if you know there are Giglio letters,
1083
00:49:53.100 --> 00:49:58.100
there are procedures you can implement where the DAs can
1084
00:49:58.110 --> 00:50:01.890
be satisfied or at least fulfill their obligation
1085
00:50:01.890 --> 00:50:05.250
of reasonable inquiry to find out if something's amiss
1086
00:50:05.250 --> 00:50:07.320
in this misconduct with a police witness.
1087
00:50:07.320 --> 00:50:11.130
All right, reasonable. Can I pick up on reasonable?
1088
00:50:11.130 --> 00:50:12.570
I think I looked.
1089
00:50:12.570 --> 00:50:16.380
There are 160,000 district court cases
1090
00:50:16.380 --> 00:50:18.700
in the Commonwealth every year criminal
1091
00:50:19.680 --> 00:50:23.113
with multiple officers and, right now, as-
1092
00:50:23.113 --> 00:50:25.860
My copy of the constitution doesn't distinguish between
1093
00:50:25.860 --> 00:50:26.850
the little DA and the big DA.
1094
00:50:26.850 --> 00:50:29.040
No, just can I-
Sure.
1095
00:50:29.040 --> 00:50:30.420
Can I walk that down the road?
1096
00:50:30.420 --> 00:50:32.370
Yeah.
It would be one thing
1097
00:50:32.370 --> 00:50:35.100
if this were Cotto evidence,
1098
00:50:35.100 --> 00:50:37.560
if it went to an element of the crime.
1099
00:50:37.560 --> 00:50:40.470
But we are talking about evidence that today
1100
00:50:40.470 --> 00:50:45.470
in September of 2002/03, is pretty much, no way,
1101
00:50:46.080 --> 00:50:47.640
no how admissible.
1102
00:50:47.640 --> 00:50:49.770
At best, there's that little teeny,
1103
00:50:49.770 --> 00:50:52.410
what do they call those arrow windows, ballast terrerier,
1104
00:50:52.410 --> 00:50:53.930
or somethin' like that, left in-
1105
00:50:53.930 --> 00:50:58.930
Well, if the case is two officers say that I had a gun
1106
00:50:59.580 --> 00:51:04.237
in the front seat of my car and the two witnesses say,
1107
00:51:04.237 --> 00:51:08.940
"No, he didn't" and the two officers were subject
1108
00:51:08.940 --> 00:51:10.380
to the DOJ report,
1109
00:51:10.380 --> 00:51:13.230
wouldn't that be information that the DA should be looking
1110
00:51:13.230 --> 00:51:16.320
for consistent with their Brady obligations?
1111
00:51:16.320 --> 00:51:20.070
Because, at the end of the day, it is a credibility call.
1112
00:51:20.070 --> 00:51:23.220
Well, except I think we've got the cart screaming down
1113
00:51:23.220 --> 00:51:26.070
the road while the horse is still eating hay in the barn.
1114
00:51:29.070 --> 00:51:34.070
Under what section of the evidence law does that come in?
1115
00:51:34.170 --> 00:51:35.430
Now, if this court wants to go to 608b-
1116
00:51:35.430 --> 00:51:37.121
Well, Attorney Mulvey,
1117
00:51:37.121 --> 00:51:41.550
I've gotta go back to the conflation thing
1118
00:51:41.550 --> 00:51:42.990
with Attorney Segal.
1119
00:51:42.990 --> 00:51:47.990
Now, aren't you conflating what your duty is to investigate
1120
00:51:48.030 --> 00:51:51.270
and disclose with what's ultimately admissible?
1121
00:51:51.270 --> 00:51:52.654
I think, okay. I'm sorry.
1122
00:51:52.654 --> 00:51:53.503
Admissibility is not the test.
1123
00:51:53.503 --> 00:51:56.310
That's the hardest question in the case
1124
00:51:56.310 --> 00:51:58.500
because a hundred percent.
1125
00:51:58.500 --> 00:52:00.690
Admissibility is not the test.
1126
00:52:00.690 --> 00:52:05.310
But on the other hand, we have reasonable inquiry.
1127
00:52:05.310 --> 00:52:09.870
Is it reasonable to make people do all these thousands
1128
00:52:09.870 --> 00:52:13.410
of inquiries if there's this much chance
1129
00:52:13.410 --> 00:52:14.640
that it's admissible?
1130
00:52:14.640 --> 00:52:17.700
And I think that's a really, really hard question.
1131
00:52:17.700 --> 00:52:19.740
Where along the line-
I guess that's a question
1132
00:52:19.740 --> 00:52:22.380
that you answer because somebody could be goin'
1133
00:52:22.380 --> 00:52:25.920
to jail if the inquiry isn't made, right?
1134
00:52:25.920 --> 00:52:28.980
Well, but is it?
1135
00:52:28.980 --> 00:52:31.863
Somebody could be, but there's no evidence that they are.
1136
00:52:32.760 --> 00:52:34.470
Right, so I mean, the basic-
1137
00:52:34.470 --> 00:52:36.630
What's reasonable?
We have in re grand jury,
1138
00:52:36.630 --> 00:52:37.560
right?
Yeah.
1139
00:52:37.560 --> 00:52:39.060
At this point we don't have 608b,
1140
00:52:39.060 --> 00:52:41.850
we have in re grand jury, which stands for,
1141
00:52:41.850 --> 00:52:44.610
when these bad act, instances,
1142
00:52:44.610 --> 00:52:47.250
instances of misconduct would be admissible.
1143
00:52:47.250 --> 00:52:50.760
Takin' aside the the Cotto where Dookhan,
1144
00:52:51.990 --> 00:52:55.260
which is an easy call, frankly, because of the exculpatory.
1145
00:52:55.260 --> 00:52:59.220
So we do have the ability of a defense attorney
1146
00:52:59.220 --> 00:53:02.670
to marshal that evidence, to get in re grand jury,
1147
00:53:02.670 --> 00:53:06.540
impeachment essentially, correct?
1148
00:53:06.540 --> 00:53:08.640
Yeah.
So then the question becomes
1149
00:53:08.640 --> 00:53:12.540
what waiver has to be undertaken by a DA's office to gather
1150
00:53:12.540 --> 00:53:15.044
that evidence to give to a defense attorney?
1151
00:53:15.044 --> 00:53:16.504
That's really the issue, right?
1152
00:53:16.504 --> 00:53:18.270
And I think that's where the reasonableness,
1153
00:53:18.270 --> 00:53:20.617
that's where the rubber meets the road and I don't profess
1154
00:53:20.617 --> 00:53:23.583
to have the answer and there are different answers.
1155
00:53:25.500 --> 00:53:27.750
When you have a hammer, everything looks like a nail.
1156
00:53:27.750 --> 00:53:28.583
So I'm gonna say,
1157
00:53:28.583 --> 00:53:30.930
reasonably calculated to lead to the discovery
1158
00:53:30.930 --> 00:53:32.940
of admissible evidence.
1159
00:53:32.940 --> 00:53:35.670
There's the Garrett case that was actually cited,
1160
00:53:35.670 --> 00:53:39.720
I think, in CPCS's amicus brief in the McFarland case,
1161
00:53:39.720 --> 00:53:43.620
where New York says you're only a member
1162
00:53:43.620 --> 00:53:46.980
of the prosecution team as to the investigation in the case,
1163
00:53:46.980 --> 00:53:49.590
but not as to unrelated issues.
1164
00:53:49.590 --> 00:53:52.980
Isn't the answer in looking to what the Feds have done
1165
00:53:52.980 --> 00:53:56.133
in Giglio as far as what the disclosures have to be?
1166
00:53:57.060 --> 00:53:59.160
Well, there are two answers to that, I think.
1167
00:53:59.160 --> 00:54:02.940
First, the feds have 608b and we don't, so that's-
1168
00:54:02.940 --> 00:54:03.990
Well, we have in re grand jury,
1169
00:54:03.990 --> 00:54:06.153
which may be broader than 608b.
1170
00:54:07.560 --> 00:54:10.260
Well, yes.
So, moving past that?
1171
00:54:10.260 --> 00:54:12.630
Second?
But, matter of grand jury,
1172
00:54:12.630 --> 00:54:16.110
it leaves this theoretical and it says, look at the age,
1173
00:54:16.110 --> 00:54:17.033
look at the simplicity,
1174
00:54:17.033 --> 00:54:19.320
look at the blah, blah, blah.
Let's get past that, right?
1175
00:54:19.320 --> 00:54:22.380
I'm not aware of a case in which that type
1176
00:54:22.380 --> 00:54:26.190
of evidence has been admitted before or after matter
1177
00:54:26.190 --> 00:54:27.023
of a grand jury.
1178
00:54:27.023 --> 00:54:32.023
So I think that tells us that maybe there's nothing
1179
00:54:32.070 --> 00:54:34.080
that's all that compelling out there.
1180
00:54:34.080 --> 00:54:36.030
We're all drawing inferences.
1181
00:54:36.030 --> 00:54:38.550
But, if that were such a screaming problem,
1182
00:54:38.550 --> 00:54:40.787
don't you think somebody would've brought this case
1183
00:54:40.787 --> 00:54:41.620
to the court?
1184
00:54:41.620 --> 00:54:43.380
Well that's not necessarily true because,
1185
00:54:43.380 --> 00:54:47.370
if you did have that, I agree with Justice Gaziano,
1186
00:54:47.370 --> 00:54:49.800
that grand jury might be a little bit more expansive
1187
00:54:49.800 --> 00:54:52.740
than 608b and you might have had an acquittal
1188
00:54:52.740 --> 00:54:53.850
as a result of that,
1189
00:54:53.850 --> 00:54:55.590
which is why you don't know about it
1190
00:54:55.590 --> 00:54:57.930
because the defendant was found not guilty.
1191
00:54:57.930 --> 00:54:59.250
So there-
Then the system worked.
1192
00:54:59.250 --> 00:55:01.590
Well, perhaps, but you're saying that that inures
1193
00:55:01.590 --> 00:55:04.073
to your benefit when it actually might inure
1194
00:55:04.073 --> 00:55:05.820
to the other side.
1195
00:55:05.820 --> 00:55:06.750
But I'd like to go back
1196
00:55:06.750 --> 00:55:09.409
to something you said a little while ago.
1197
00:55:09.409 --> 00:55:12.150
The problem that I have with what you're saying
1198
00:55:12.150 --> 00:55:16.170
about the reasonableness is I still have my muscle memory
1199
00:55:16.170 --> 00:55:18.270
of being a BMC judge where,
1200
00:55:18.270 --> 00:55:20.760
every time you come into a session,
1201
00:55:20.760 --> 00:55:23.610
there's someone on the prosecution team telling me how
1202
00:55:23.610 --> 00:55:24.900
busy they are.
1203
00:55:24.900 --> 00:55:27.210
They're telling me how many cases they have.
1204
00:55:27.210 --> 00:55:29.640
They're telling me that they just got the case that morning
1205
00:55:29.640 --> 00:55:32.730
from the other DA that moved up to superior court or went
1206
00:55:32.730 --> 00:55:33.930
to another division.
1207
00:55:33.930 --> 00:55:36.000
They're telling me that they don't have the discovery
1208
00:55:36.000 --> 00:55:38.250
because the detective's not here
1209
00:55:38.250 --> 00:55:40.920
to give them the packet of materials.
1210
00:55:40.920 --> 00:55:42.030
So when you start talking
1211
00:55:42.030 --> 00:55:45.510
about reasonable is it really starts to get something
1212
00:55:45.510 --> 00:55:48.510
that gives me a little PTSD about whether
1213
00:55:48.510 --> 00:55:52.140
or not somebody is falling in between the cracks
1214
00:55:52.140 --> 00:55:53.820
and not getting what they're supposed
1215
00:55:53.820 --> 00:55:56.880
to because no one has keep passing this hot potato
1216
00:55:56.880 --> 00:56:01.020
and no one's taking the time to ask, did we ask?
1217
00:56:01.020 --> 00:56:03.720
Did we ask them for in re grand jury material?
1218
00:56:03.720 --> 00:56:06.570
Did we ask them if they're litigants in a civil suit?
1219
00:56:06.570 --> 00:56:09.930
Did we ask 'em if they have disciplinary? No one's asking.
1220
00:56:09.930 --> 00:56:14.520
And so when does it become the fact that this is what it is
1221
00:56:14.520 --> 00:56:17.310
in district court practice, in community court practice?
1222
00:56:17.310 --> 00:56:19.050
You are going to have a lot of cases.
1223
00:56:19.050 --> 00:56:20.550
You're gonna be very busy
1224
00:56:20.550 --> 00:56:22.500
and the constitution just doesn't care.
1225
00:56:23.850 --> 00:56:26.250
I don't think that's quite accurate.
1226
00:56:26.250 --> 00:56:29.343
Yes, they're busy, but they are asking.
1227
00:56:30.810 --> 00:56:33.300
Asking what?
Well, right now,
1228
00:56:33.300 --> 00:56:38.300
Hampden is asking the permutations of the three either/ors
1229
00:56:41.130 --> 00:56:44.040
and they're getting, I mean, they're getting nothing.
1230
00:56:44.040 --> 00:56:45.707
But they're asking, so this case serves some purpose.
1231
00:56:45.707 --> 00:56:50.707
They're asking, but, and if you tell them they have to,
1232
00:56:51.180 --> 00:56:52.617
they're gonna do it but-
1233
00:56:52.617 --> 00:56:54.690
And you think that's unreasonable in light
1234
00:56:54.690 --> 00:56:58.590
of the potential inadmissibility of the evidence anyway?
1235
00:56:58.590 --> 00:57:02.850
I think it's more than potential inadmissibility.
1236
00:57:02.850 --> 00:57:05.760
I mean, this court keeps telling us, Susa last month,
1237
00:57:05.760 --> 00:57:07.770
that we don't like propensity evidence
1238
00:57:07.770 --> 00:57:09.450
and in essence what we're talking
1239
00:57:09.450 --> 00:57:11.100
about is propensity evidence.
1240
00:57:11.100 --> 00:57:16.100
It's not 609 impeachment. It's not 613a impeachment.
1241
00:57:16.770 --> 00:57:20.100
It's really this officer's a habitual liar
1242
00:57:20.100 --> 00:57:21.808
or a habitual bad guy.
1243
00:57:21.808 --> 00:57:22.713
I'm gonna push back on it.
1244
00:57:22.713 --> 00:57:25.890
It's not propensity evidence and if you're looking to some
1245
00:57:25.890 --> 00:57:27.600
of the reasons why you might offer it
1246
00:57:27.600 --> 00:57:31.710
that this officer has a pattern of doing this
1247
00:57:31.710 --> 00:57:34.920
in every case when you have somebody that disagrees
1248
00:57:34.920 --> 00:57:35.850
with the command,
1249
00:57:35.850 --> 00:57:37.800
all of a sudden they're charged with the big three.
1250
00:57:37.800 --> 00:57:40.440
Now you get the ABPO. Now you get the disorderly.
1251
00:57:40.440 --> 00:57:43.500
Now you get the resisting arrest and if you could show
1252
00:57:43.500 --> 00:57:44.760
that there's a pattern to that.
1253
00:57:44.760 --> 00:57:45.810
That's not propensity.
1254
00:57:45.810 --> 00:57:46.950
That's actually it.
1255
00:57:46.950 --> 00:57:51.777
I think I would argue that's propensity used
1256
00:57:51.777 --> 00:57:56.700
as under Adjutant and. as I said before,
1257
00:57:56.700 --> 00:57:59.370
if you're gonna make them ask questions,
1258
00:57:59.370 --> 00:58:02.130
that wouldn't be a bad question to have them asking
1259
00:58:02.130 --> 00:58:04.200
because we know how that's admissible.
1260
00:58:04.200 --> 00:58:06.930
So then we won't let the DAs put in uncharged misconduct
1261
00:58:06.930 --> 00:58:07.890
'cause the defense attorney said
1262
00:58:07.890 --> 00:58:09.630
that's propensity all the time?
1263
00:58:09.630 --> 00:58:10.980
Yeah.
Okay.
1264
00:58:10.980 --> 00:58:12.049
Let me ask you,
1265
00:58:12.049 --> 00:58:13.710
and I wanna give you the opportunity to finish your answer
1266
00:58:13.710 --> 00:58:15.457
that I cut you off on, I said,
1267
00:58:15.457 --> 00:58:20.040
"Why not a Giglio list or Giglio inquiry?"
1268
00:58:20.040 --> 00:58:21.450
You said, "608b."
1269
00:58:21.450 --> 00:58:24.060
Then we got backtracked about in re grand jury
1270
00:58:24.060 --> 00:58:25.710
and then you were gonna say somethin' else.
1271
00:58:25.710 --> 00:58:27.773
Do you remember what the something else was?
1272
00:58:28.830 --> 00:58:31.050
You could rewind? I don't know.
1273
00:58:31.050 --> 00:58:33.210
It seemed important.
Yeah.
1274
00:58:33.210 --> 00:58:35.133
Oh, I'm sure it was very important.
1275
00:58:36.869 --> 00:58:41.790
It may have had to do, it certainly had to do with 608b.
1276
00:58:41.790 --> 00:58:46.590
It may have had to do with the structure and the numbers.
1277
00:58:46.590 --> 00:58:49.320
I don't know how many cases the US Attorney's office has,
1278
00:58:49.320 --> 00:58:53.020
but every single district court
1279
00:58:55.440 --> 00:58:59.850
prosecutor in this Commonwealth has multiple times more
1280
00:58:59.850 --> 00:59:04.850
than that and, again, if it were Cotto evidence,
1281
00:59:05.310 --> 00:59:06.990
if it went to an element of the crime,
1282
00:59:06.990 --> 00:59:10.863
if it were the gun license, I get it, a hundred percent.
1283
00:59:11.730 --> 00:59:12.563
I'm not professing-
1284
00:59:12.563 --> 00:59:13.830
But it's just officer credibility,
1285
00:59:13.830 --> 00:59:16.833
so, we're too busy?
Well, it's not just.
1286
00:59:18.061 --> 00:59:20.548
And I think it would be easier and,
1287
00:59:20.548 --> 00:59:24.810
when the question was asked, "What guidance can you give?"
1288
00:59:24.810 --> 00:59:28.620
The best guidance would be the end:
1289
00:59:28.620 --> 00:59:30.423
How are we gonna to use this stuff?
1290
00:59:32.250 --> 00:59:33.413
Because if we knew the answer to that-
1291
00:59:33.413 --> 00:59:35.910
That seems like, why would we do as a global basis?
1292
00:59:35.910 --> 00:59:37.080
I mean-
No,
1293
00:59:37.080 --> 00:59:39.210
I think it oughta be done on a case by case
1294
00:59:39.210 --> 00:59:41.310
and that's what I said in my brief because-
1295
00:59:41.310 --> 00:59:44.760
So, to that suggestion,
1296
00:59:44.760 --> 00:59:47.557
opposing counsel said something like,
1297
00:59:47.557 --> 00:59:49.500
"It's not ripe until it's moot
1298
00:59:49.500 --> 00:59:52.020
and that's why we need this global remedy."
1299
00:59:52.020 --> 00:59:53.970
What's your response?
1300
00:59:53.970 --> 00:59:56.220
Global remedies are extraordinary.
1301
00:59:56.220 --> 00:59:57.300
Even in Cotto,
1302
00:59:57.300 --> 00:59:59.460
this court turned backwards somersaults
1303
00:59:59.460 --> 01:00:02.400
to avoid a global remedy and finally felt
1304
01:00:02.400 --> 01:00:03.450
that it had no choice.
But if it's not ripe
1305
01:00:03.450 --> 01:00:06.390
until it's moot, that I think the point was,
1306
01:00:06.390 --> 01:00:09.630
we need this case, a guidance in this case,
1307
01:00:09.630 --> 01:00:10.710
decision in this case,
1308
01:00:10.710 --> 01:00:13.860
in order to get to the individual cases.
1309
01:00:13.860 --> 01:00:16.710
The record belies that because,
1310
01:00:16.710 --> 01:00:18.540
both in front of Judge Fabricant,
1311
01:00:18.540 --> 01:00:20.130
and I actually wanted to bring this up
1312
01:00:20.130 --> 01:00:24.180
because the reply brief accuses the DA
1313
01:00:24.180 --> 01:00:26.580
of making false statements.
1314
01:00:26.580 --> 01:00:28.878
In fact, if you read-
1315
01:00:28.878 --> 01:00:31.590
All right, so let's just, I know the record really well
1316
01:00:31.590 --> 01:00:32.704
and I'm sure-
They added a bunch
1317
01:00:32.704 --> 01:00:34.770
of pages.
The other justices do.
1318
01:00:34.770 --> 01:00:36.146
Can I just ask the question?
Sure, please.
1319
01:00:36.146 --> 01:00:40.740
So, well, the record shows what the record shows.
1320
01:00:40.740 --> 01:00:44.160
Let's assume the record suggests
1321
01:00:44.160 --> 01:00:47.170
that the Springfield Police Department
1322
01:00:49.110 --> 01:00:53.310
had a problem with false arrests
1323
01:00:53.310 --> 01:00:57.870
and Fourth Amendment violations and covering up
1324
01:00:57.870 --> 01:00:58.703
for each other.
1325
01:00:58.703 --> 01:01:01.330
Let's just assume that that's what the record will show.
1326
01:01:03.742 --> 01:01:08.370
Why is this case not the right vehicle
1327
01:01:08.370 --> 01:01:12.780
for giving the guidance that petitioners want?
1328
01:01:12.780 --> 01:01:16.530
Because it's old and unproven.
1329
01:01:16.530 --> 01:01:19.440
If the Kent Report does nothing else,
1330
01:01:19.440 --> 01:01:24.393
it at least raises some questions about the DOJ.
1331
01:01:26.789 --> 01:01:29.310
The DOJ, I would argue,
1332
01:01:29.310 --> 01:01:32.700
made interpretations rather than inferences
1333
01:01:32.700 --> 01:01:36.480
and called things fist strikes.
1334
01:01:36.480 --> 01:01:40.080
They misidentified the number of officers at the scene
1335
01:01:40.080 --> 01:01:43.380
and we're talking about some things that happened a long,
1336
01:01:43.380 --> 01:01:44.760
long time ago.
1337
01:01:44.760 --> 01:01:46.290
I don't defend them.
1338
01:01:46.290 --> 01:01:49.680
Nobody's defending what these officers did.
1339
01:01:49.680 --> 01:01:54.210
But the question is, as to defendants in cases now,
1340
01:01:54.210 --> 01:01:56.280
is that evidence exculpatory?
1341
01:01:56.280 --> 01:01:59.940
And everybody knows what everybody knows.
1342
01:01:59.940 --> 01:02:02.103
There's no secrets in Springfield.
1343
01:02:03.210 --> 01:02:05.820
And going to the reply brief, I think what the-
1344
01:02:05.820 --> 01:02:08.370
That sounds overstated, I would think.
1345
01:02:08.370 --> 01:02:10.500
I'm sorry?
That sounds overstated,
1346
01:02:10.500 --> 01:02:12.270
that everyone knows everything,
1347
01:02:12.270 --> 01:02:13.860
that everyone knows in Springfield.
1348
01:02:13.860 --> 01:02:15.330
I mean, it's-
1349
01:02:15.330 --> 01:02:17.100
There aren't a lot of secrets in Springfield,
1350
01:02:17.100 --> 01:02:20.490
Massachusetts, but what the record shows is that-
1351
01:02:20.490 --> 01:02:22.050
But I don't understand that.
1352
01:02:22.050 --> 01:02:24.450
If there aren't a lot of secrets
1353
01:02:24.450 --> 01:02:27.210
and everybody knows what everybody knows,
1354
01:02:27.210 --> 01:02:29.310
then why not just give it to every defendant
1355
01:02:29.310 --> 01:02:32.360
in every case where the police officer everybody knows
1356
01:02:32.360 --> 01:02:33.720
is a liar.
1357
01:02:33.720 --> 01:02:36.159
Because most of those police officers
1358
01:02:36.159 --> 01:02:37.923
aren't there anymore.
1359
01:02:39.120 --> 01:02:44.120
I mean, that's why there aren't motions for sanctions.
1360
01:02:45.570 --> 01:02:47.400
But, what the record does show,
1361
01:02:47.400 --> 01:02:51.030
and why I think a global remedy isn't necessary,
1362
01:02:51.030 --> 01:02:53.490
is that it shows that the system is working.
1363
01:02:53.490 --> 01:02:56.190
Every day in the trial courts in Hampden County,
1364
01:02:56.190 --> 01:02:57.210
district court judges
1365
01:02:57.210 --> 01:03:00.720
and superior court judges are taking these motions
1366
01:03:00.720 --> 01:03:02.250
and they're ruling on them
1367
01:03:02.250 --> 01:03:04.950
and that's what the system is supposed to do.
1368
01:03:04.950 --> 01:03:07.530
If they feel like they're being deprived of something,
1369
01:03:07.530 --> 01:03:11.880
they can go ask for it and sometimes the judge says yes.
1370
01:03:11.880 --> 01:03:13.560
Sometimes the judge says no.
1371
01:03:13.560 --> 01:03:16.383
That's the way the cookie crumbles.
1372
01:03:17.460 --> 01:03:20.640
But they're asking for far more than they're getting.
1373
01:03:20.640 --> 01:03:22.710
They're asking, for example,
1374
01:03:22.710 --> 01:03:27.000
that the DA explained to them why evidence is exculpatory
1375
01:03:27.000 --> 01:03:30.423
and I think that's really such,
1376
01:03:31.440 --> 01:03:35.613
going back to this big question of what's exculpatory,
1377
01:03:37.140 --> 01:03:38.820
as a trial lawyer,
1378
01:03:38.820 --> 01:03:41.970
I'm terrified at the idea of relying on my opponent
1379
01:03:41.970 --> 01:03:44.520
to figure out what's exculpatory.
1380
01:03:44.520 --> 01:03:46.200
I mean, part of the-
1381
01:03:46.200 --> 01:03:48.840
That would give you a pause when you figure out what's
1382
01:03:48.840 --> 01:03:50.490
an adverse credibility finding.
1383
01:03:50.490 --> 01:03:52.418
That should terrify you as well, right?
1384
01:03:52.418 --> 01:03:56.100
It does because it's, I mean,
1385
01:03:56.100 --> 01:04:00.120
I think we cited a bunch of 'em in our original response
1386
01:04:00.120 --> 01:04:01.050
to the petition, I mean,
1387
01:04:01.050 --> 01:04:05.520
those come in all flavors and the eyes in the beholder
1388
01:04:05.520 --> 01:04:09.700
and sometimes it was a different issue and it's not clean
1389
01:04:10.650 --> 01:04:13.620
and maybe there should be a rule,
1390
01:04:13.620 --> 01:04:16.953
but maybe we should see a case to make the rule.
1391
01:04:18.030 --> 01:04:22.380
But that's why it's so difficult to answer these questions.
1392
01:04:22.380 --> 01:04:24.090
Going back to Cotto,
1393
01:04:24.090 --> 01:04:25.200
one of the best pieces
1394
01:04:25.200 --> 01:04:29.100
of lawyering I ever saw was Luke Ryan figuring out that,
1395
01:04:29.100 --> 01:04:30.960
from a Saturday football game,
1396
01:04:30.960 --> 01:04:33.093
you could figure out what year that was.
1397
01:04:33.990 --> 01:04:36.330
That doesn't, on its face,
1398
01:04:36.330 --> 01:04:39.150
look like evidence favorable to the defendant.
1399
01:04:39.150 --> 01:04:41.250
I'm not talking about the mental health worksheets
1400
01:04:41.250 --> 01:04:42.240
and stuff like that.
1401
01:04:42.240 --> 01:04:45.860
I'm talking about, without knowing the defense...
1402
01:04:46.860 --> 01:04:49.710
One of the arts of trial practice is taking
1403
01:04:49.710 --> 01:04:54.710
an innocuous looking fact and using it to your advantage
1404
01:04:54.810 --> 01:04:59.810
and I think where we're heading is charging prosecutors
1405
01:05:01.470 --> 01:05:06.470
with getting inside the defendant's head and turning over
1406
01:05:06.780 --> 01:05:08.820
and they'd be happy to turn over everything
1407
01:05:08.820 --> 01:05:10.620
related to the case-
So, as long as provide clear
1408
01:05:10.620 --> 01:05:14.250
instructions and clear guidance, you're good?
1409
01:05:14.250 --> 01:05:16.380
Absolutely, but I don't think
1410
01:05:16.380 --> 01:05:19.320
that the prosecution should become the investigators
1411
01:05:19.320 --> 01:05:20.203
for the defense.
1412
01:05:20.203 --> 01:05:23.673
They can do some of this themselves.