-: SJC-13386: Chris Graham and others
v. Hampden County District Attorney.
-: Okay, Attorney Segal.
-: Good morning, Chief Justice Budd,
and may it please the court.
With one federal investigation concluded in Springfield
and another underway in Worcester,
this case asks what legal duties arise when,
as the special master put it,
a law enforcement agency alleges,
based on an extensive investigation
that Massachusetts police officers have engaged in a pattern
or practice of misconduct.
Now, to explain why what has been done so far is
insufficient as a matter of law,
I wanna first start with four facts,
facts that together demonstrate that people
in Hampden County have been and are being prosecuted
and imprisoned without receiving all the evidence
to which they are entitled.
First, the July 2020 DOJ report alleged not only a pattern
or practice of misconduct,
excessive force by Springfield Narcotics Bureau officers,
but also that that excessive force, that misconduct,
was likely more widespread than was captured
in SPD documents,
because the police department was systemically incapable
of policing and investigating itself.
Second, the DA has access to all, all,
of the documents that the DOJ reviewed,
not just as a matter of law,
because these were officers serving on DA prosecution teams,
but also, as a matter of fact, because,
since December, 2020,
the DA has had a standing written offer from the city
to review "All of the materials supplied to the DOJ."
Third, despite that access, in response to the DOJ report,
the DA reviewed precisely zero SPD documents
from July, 2020 until July 2nd, 2021, and, since then,
it has received and reviewed a total of 712 pages,
representing less than 1% of the documents
that the DOJ reviewed.
Fourth, the DA has conceded in its legal briefs
and in its sworn testimony before the special master,
that the reason that his accepted that 712 pages,
not more, not less, but precisely 712 pages,
despite the city's red light warning
that this disclosure is not exhaustive,
is that the DA has a practice of letting the police decide,
letting the police decide,
what evidence is exculpatory
and whether the police will turn it over
in their discretion,
and what the DA does is it simply provides,
according to the first assistant, what the city provides.
Despite those facts,
the DA says
that the 712 pages
and a rebuttal authored by someone who is himself implicated
in four of the 16 incidents he addresses,
that that rebuts the DOJ's allegations.
And this is like looking at ice floating in the water
and concluding that it's not the tip of an iceberg,
while at the very same time refusing
to look under the surface of the water.
-: Counsel, can I ask you about that?
Because you're going from the DOJ report to that conclusion,
but there's an intervening four-day evidentiary hearing
that we have a 60-something paid special master report.
Let's talk about the Master's report for a minute.
A lot of what was alleged to have been this widespread,
10:00 to midnight kind of context out in Springfield,
was that really born out in the special master's report?
I'm beginning from your first fundamental premise
that there is this widespread activity
by the Hampden County District Attorney's Office
of not turning over what is
potentially exculpatory evidence.
Did the special master agree with you there?
And I mean, that's a yes or no.
Did she agree with you from that premise?
Because you asked for a bunch
of things downstream based on that.
-: I can give the best yes or no that I can,
which is, I think, as a matter of law,
either she didn't address it or she didn't agree with us.
I think that, as a legal conclusion, maybe not,
but I just wanna say every single fact
that I just said is either a subsidiary fact found
by the special master or admitted
to by the district attorney, every single one.
So what happened
in the special master's report is the subsidiary facts
actually do support our claims of misconduct.
To the extent that the special master didn't conclude
that there was misconduct,
that appears to have been a legal conclusion, at most,
that those subsidiary facts didn't carry the day
or that they were best left to this court.
We don't really know because we fought Lodge objections
and we don't know how the special master would've responded.
But let me tell you what I mean about the subsidiary facts.
It's in the special master's report
that there were no disclosures of SPD documents
to the DA until July 2nd, 2021.
It's in the special master's report that the city made
an offer on December 10th, 2020,
to make all the documents available.
I would think that the one thing that I mentioned so far,
that isn't expressly in the special master's report is
that fourth point I mentioned, which is the DA's policy.
But that's from the DA's first assistant's
own sworn testimony.
And I'm referring especially to volume three
of our record appendix, pages 199, 372, 392, 395, and 414,
where the the first assistant said,
"We just turn over what the city turns over."
Now, our view is that that's contrary to binding case law
of the Supreme Court and this court,
including Kyles v. Whitley.
I don't believe the special master addressed that,
but to the extent, even for the sake of argument,
if she did, it would've been a legal conclusion.
-: I'm sorry, Mr. Segal, is the raw data available to you?
-: I'm sorry, the raw data?
-: Raw data from Springfield PD?
-: No, Your Honor.
-: 114,000 pages aren't available to you?
-: No, Your Honor.
And if it were, right, even if it were, as a matter of law,
and I think this is something that Justice Kafka wrote
in his decision in the Sutton case,
which we included as an addendum, even if it were,
it would be incumbent as a matter of law on the DA
to review those pages, decide was it exculpatory,
and make its own assessment of what ought to be disclosed.
-: I'm just trying to flesh out, in this case,
the duty to investigate,
which I think this really boils down
to because disclosure's relatively easy.
The principle's easy to state, but in practice difficult.
And when we look at Cotto and Ware I think
that's really the basis of what you're asking for.
We had the situation,
is this another Dookhan or is it six cases, right?
We don't know.
So the court said, "Someone please look at this,"
and, ironically, if you recall what sprung
from Cotto and Ware,
was an incredibly ineffective report that did nothing.
And it wasn't until,
it was the further disclosures that this offspring
of Cotto/Ware was a feckless investigation.
But be that as it may, right?
-: Just for my own understanding, Your Honor,
what I think Your Honor may
be referencing is the investigation
as to the alleged attorney misconduct.
But the Cotto investigation
by the Attorney General's Office,
which wasn't undertaken until this court said,
"Please investigate," was enormously important
and changed the scope of the-
-: That was the second step. -: Okay, okay.
-: There was an intermediary step, but-
-: I just wanna make sure we're on the same sheet of music.
-: We have. -: Thank you.
-: I'm kind of,
we're both familiar with what happened with Farak
and so are 30,000 defendants where their case is dismissed,
so I don't wanna belittle that.
But, anyway, gettin' back to this.
So we have Cotto and Ware saying,
"Is this a Dookhan or is this five cases?
Please look at this."
Those are instances, of course,
of misconduct by someone on the prosecution team.
I'm wondering, where does this case line up as far
as what the Hampden County District Attorney's Office
has actually done?
Does that satisfy their obligations under the duty
to investigate or do they have to...
Of course, you think they have to do more,
but tie this to Cotto and Ware.
-: Certainly, Your Honor, so under Cotto, first of all,
Cotto and Ware write
about a constitutionally-derived duty to investigate.
So, although there, under the facts of that situation,
a full investigation was warranted, according to the court,
even in a situation not involving egregious misconduct,
but some misconduct, the duty of inquiry still exists.
And the question is what's reasonable
under the circumstances.
-: Right. I think that the word's a reasonable investigation.
-: Exactly and so, under the circumstances here,
we have a law enforcement agency alleging
not just misconduct,
but the inability of the agency where
that misconduct was housed to police itself
and that was born out also, going back to Justice Georges,
in the special master proceedings, where, actually,
one of the reasons given by the district attorney
for not turning over its Nathan Bill's file,
another fact found by the special master was that they felt
that SPD did a horrible,
made a mess of the investigation process.
So given that universe of facts, right,
what we think would be required as a matter of law,
what would be reasonable under
this constitutionally-derived duty, are four things.
Reviewing all the documents.
So far it's at one percent, less than one percent.
Reviewing the officers involved, the offenses involved,
and actually talking to people, which, for example,
Deputy Chief- -: Why is doing it in a global-
-: Can we get the end of your list before the question?
-: Oh, go ahead. -: Can you just repeat
the second one?
-: Certainly, Your Honor.
And I'll just be brief so I can turn to the question.
Reviewing all the documents,
reviewing the offenses involved,
reviewing the officers involved, and talking to witnesses.
And, by the way,
we're not that far apart from the DA in one of the letters
that it wrote recently to the City of Springfield,
which says, "Please confirm that you've provided us with all
of the exculpatory evidence relating to all
of the officers implicated, not just this sample."
And that representation,
it's never been represented by the city
that they've done that.
They represented the opposite.
They've said, "Here is not all of the exculpatory evidence."
And this is sort of the opposite of something
that this court just found mitigating
in the Foster decision.
-: So I got confused on the list of four.
Review all the documents, whatever universe that may be,
review the offenses involved, talk to the witnesses, and?
-: And review the officers involved.
So it's documents, offenses, officers, talking.
And what I mean by offenses are the three
that we think are most closely tied to this misconduct,
which are- -: AVPO, et cetera.
-: Right, assault and battery on a police officer,
resisting arrest, and disorderly.
And I'm happy to turn to Justice Kafka's question.
-: I'm willing to turn over if Justice Gaziano didn't
get his question.
Are you happy? -: Yeah, thank you.
-: So I'm trying to understand globally, I mean,
it's hard to imagine a more careful person
than Justice Fabricant.
She's had a five day hearing.
You had an opportunity to present all,
whatever all of the defense counsel out there were aware of.
Isn't it better to proceed case by case in a manageable way,
where the particular officers involved are
subject to questioning,
particularly post-federal DOJ consent decree procedures,
which are in place?
So why should we basically undertake some gigantic
undertaking when we can do this case by case
in a more
particular and focused way?
-: So a few responses to that.
One is that I wanna be clear about the limited nature
of what the proceedings were before Justice Fabricant,
Special Master Fabricant.
The facts going in, and including the four facts I said
at the outset, were largely undisputed.
And what this was supposed to be was a narrow opportunity
for them to test some of our evidence.
That's why the examinations
of the defense attorneys didn't start with direct testimony.
They started with cross-examination by the DA.
So the evidence that-
-: You weren't able
to put anything else before Justice Fabricant?
-: I don't know about able, Your Honor,
but it was our understanding
that the record largely existed and this was an opportunity
for them to test our evidence.
The second thing,
but to your point about "Why can't this go case by case-"
-: I just wanna make sure of that.
So Justice Fabricant undertakes this proceeding including
defense counsel presenting their own war stories, right?
So I take it there was some ability
to present whatever you were worried about there
'cause we keep coming back to the same two incidents.
The bar fight and the Palmer are the two sort
of most solid pieces of evidence here.
-: I think there's more than that, Your Honor,
and let me get to that.
It's not that we were prevented.
My point is that the record is broader
than just the testimony.
The record is all the stuff that we put in.
-: The record is the world.
I mean- -: Right, so-
-: In your brief,
I think you're talking about going back to 2013,
which is 10 years.
Basically everything the Springfield Police Department did
during that time-
-: There could be.
I mean, an investigation might reasonably be less than that,
but it would have to do at least some of the things
that I mentioned before, I mean,
even reviewing the documents.
What Your Honor dealt
with in the Sutton case was a larger universe of documents.
And in the DA coming to you and saying...
I see that my time has passed.
-: [Chief Justice Budd] That's okay. Go ahead.
-: And a DA coming to you and saying,
"We would like to just rely
on what this other entity concluded."
And Your Honor said, "You have to look at the documents."
So we haven't even,
we're far away from going back 13 years.
But on the point of, "Why can't we do this case by case?"
It's the DA's position,
which they repeated not just in the sworn testimony,
but two days ago in this court,
which is that when they ask for documents from the police,
the police get to decide how much to turn over
and what they said in response
to Justice Gaziano's question two days ago was,
"If they don't give us the exculpatory evidence,
we just proceed with the case because we think it's
in the public interest to do so."
And my ears perk up a little bit when I hear prosecutors say
that they take Brady as a suggestion.
So that's one thing.
But I'll tell you another, just some examples.
The reason why we have focused on the Nathan Bills
and Wilbraham Police report is we don't know
what we don't know.
We know that they have a policy of withholding evidence
that they deemed
to be misconduct when they can't decide which
officer did it.
That's the policy that led to the withholding
of the Nathan Bills.
We are learning all the time about more evidence.
Right now, there is litigation
of which we consider submit a 16 L letter
and this court can take judicial notice.
There's litigation between Officer Bigda
and the City of Springfield.
The City of Springfield just counterclaimed
and it's counterclaim says Bigda actually engaged
in 14 instances of physical contact.
-: But here's a good example. Bigda has been identified.
Any case involving Bigda,
it's out in the open.
-: [Justice Wendlandt] And it's been dropped.
-: No, Your Honor,
they continued to use Bigda
as a witness until he decided to stop coming to court
because he'd been indicted.
-: [Justice Wendlandt] Right and then those
cases were dropped.
-: Right, so all along, when he was-
-: So I guess I'm wondering, you know,
back to Justice Kafka's question,
is why not proceed case by case?
You were referencing the case that we had Monday.
It was an individual case.
It seems to easily bring up the issues
that you are concerned with here.
Why do we have to have, as we did with Farak,
a global remedy here, when, in fact, you know,
we can see that case by case this will come up?
-: I just wanna say, just to, if I could,
just finish the thought about Bigda?
Those cases about him were not turned over when he was
getting people prosecuted and imprisoned
and the city's counter counterclaim also says
that there are three adverse credibility
determinations involving him, one that also involves Kent,
also not turned over.
These are policies.
-: Okay, but do the court- -: So, so-
-: Yeah, I mean, so yeah- -: So on the case by-
-: You can submit an 6 L letter about updating us on Bigda.
I'm concerned about this court stepping
in and stepping over its Article 30 responsibilities.
Why do we have to proceed in the manner
that you're suggesting we do proceed?
Is it because the DOJ has reviewed a hundred thousand
documents and concluded, without identifying anybody,
that there is rampant misconduct in a bureau
that no longer exists?
Is that what the argument is?
-: So that's the reason,
that supplies the legal reason to do more
and the reason I mentioned that, the instance,
Your Honor, is not because I was sidestepping your question.
It is my answer to your question that, in cases,
these disclosures don't get made,
this review doesn't get made on a case
by case basis absent guidance from this court.
What we are actually asking for in this case is much less
than what was sought in CPCS v. AG or Bridgemary
or anything else.
We're saying, at the very least,
someone has to review these documents,
look into these incidents.
On the case of the kid and the adult riding the bike,
they continued to prosecute those people without even
checking to see whether the DOJ was right,
without even talking to anyone.
So we want some guidance. You have to review the documents.
-: So why can't we do guidance by rulemaking, right?
There's a new Rule 14 that's out there.
Justice Fabricant seemed to think that that was a good way.
You tell me why.
Why do we need a fiat from this court in this case?
-: So there's two reasons, Your Honor.
One is that the Rule 14 addresses only one of the pieces,
which is the when the police intentionally withhold
exculpatory evidence and there are other policies here like
allowing the police to decide what to disclose,
which is how we got 712 pages,
withholding evidence when there's any question
of which officer did the wrongdoing,
withholding adverse credibility determinations
on which this court could give guidance
and which Rule 14 won't.
But on the specific Rule 14 issue,
the problem with the draft of Rule 14
that is in circulation,
is that it would apply the rule
for non-prosecution team members.
Right now, Rule 14 says, if it's a prosecution team member,
the DA is responsible as a matter of law for getting it.
If the DA comes to learn of evidence that is not
in the possession or custody or control
of the prosecution team, then, I think it's 14A1e,
says that the DA is supposed to provide notice.
And what we've heard in this case
and what the special master said was that would also
be a good rule for people who aren't
on the prosecution team and the whole point of Rule 14
as it's presently constructed, is that, no,
that's not the rule for when someone is
on the prosecution team.
-: Well, that's a Waness issue though, isn't it?
-: Right, so- -: Right,
so basically if, and I know you want us to revisit Waness,
but- -: Oh, I misheard you.
Oh, I don't think it's a Waness issue.
-: Oh, because I thought it was,
if it's not in the custody control,
it's held by IA, correct?
-: And I think what Rule 14A1e means is it could
be in the Internal Affairs,
but it could be just a witness who's a stranger
to the Commonwealth.
It's a rule for witnesses who possess exculpatory evidence
that the Commonwealth learns
about over which the Commonwealth has no possession,
custody, or control.
And that is not an appropriate rule whereas here you have
an entity, the police department, saying,
"Although we are subject
to your possession, custody, or control-"
-: Yeah. I think you're mixing apples and oranges.
Everybody we're talking about is a member
of the prosecution team.
We've said that, right?
All these witnesses are members of the prosecution team.
-: Right and what I'm saying, well, no,
what I'm saying is that,
what I understand the present draft of Rule 14,
the amendment, to say is that it would say,
"Even for someone who's a member of the team,
it would be sufficient for the police to provide notice."
-: And I don't wanna- -: And for the DA
to provide notice.
-: And I don't wanna waste time talkin'
about what a rule that hasn't been passed since...
-: But my point is just this will not get resolved, not,
and it hasn't been in three years,
get resolved on a case by case basis if the DA is under-
-: But didn't the litigation actually,
to your credit and people that brought the litigation,
you started at a certain point.
You've had litigation in front of Justice Wendlandt
for a long time and you've gotten a lot
of what you're lookin' for.
So the fact
that you brought the litigation has raised this issue
and you've gotten, at least,
you don't think the satisfactory,
but you've gotten a lot more
than you had when you started, correct?
-: We have gotten 700 full pages and we're grateful
that we have that.
I would say that the reason I mentioned the Bigda case is
that we are still worried when we have to look,
read in the news, or read in a latest filing,
that there are police officers
about whom there are multiple acts of misconduct,
including one where he's alleged to have broken a door
and broken someone's jaw,
and three adverse credibility determinations,
including one by the author of this rebuttal in this case,
that we didn't know about.
And that is the problem.
Without adequate instructions,
without clear instructions to review documents,
to look into these events,
and to end these practices of withholding things just
because the police don't want to turn them over,
without those instructions,
it will be impossible for case by case resolution
to resolve this. -: And a lot
of this guidance will come in the case
that we heard on Monday,
as far as adverse credibility findings and the ability
to ferret out this stuff from police, correct?
-: I would say the problem we're gonna run into there
and the problem that defense attorneys have run into is
that it's not ripe until it becomes moot.
People don't know to ask
about the adverse credibility determinations until they
learn about them and once they learn about them,
they're told, "Well, you, you can't litigate this anymore."
-: Right, I mean,
I think if we're definitive as to what the obligation is,
and if you look at the discipline case
that came out a few weeks ago,
I think prosecutors are rightly or should
be rightly concerned about their constitutional obligations.
-: Well, I would hope so.
But what the record before you here,
including the record consistent
with the special master's findings,
is that contrary to receiving a representation
that all the evidence has been turned over,
they have received the opposite representation,
which is that the disclosures, the 712 pages,
though it's a good start, are by no means exhaustive.
That's the opposite-
-: Is the 114,000 exhaustive?
-: I don't know, Your Honor,
because I haven't seen it and no one has reviewed it.
-: Well, you know that it's not because the DOJ suggested
that there's more there there and they only got the 114,000.
-: Right and so what we think is reviewing those documents,
which is the Sutton decision, would be the bare minimum.
It would also have been nice if someone had actually looked
into any of the allegations of misconduct and we think,
not just nice, but constitutionally required.
-: Can I ask one more question?
-: Can I ask one? -: Yeah.
(audience laughs) Well, we're 10 minutes over.
Yeah, yes. -: All right,
you go first and then I'll-
-: You keep bringing up Sutton,
but isn't there a difference between Farak
and the cases where we're dealing with the drug analysts,
which, if they're fabricating
the drug certificates, it's direct.
Here you're drawing credibility conclusions based
on whether they're using undue force.
It's different, right? It's much more complicated.
It may not be admissible.
It's not like the drug certificate cases, right?
-: I would agree that it's not on the same exact facts,
but that's not a fact that cuts against our argument
and one reason- -: Well,
it does in terms of a global remedy, doesn't it?
Because the reason we have
to dismiss 30,000 cases or whatever,
we've got concerns that the certificates are just lies
as opposed- -: Right.
Actually, I don't think that was the concern.
So, first of all,
today I'm not here to ask you
to overturn 30,000 convictions.
I haven't done that in a few years.
And so what what I'm saying is-
-: We can predict the future. -: No, I mean,
I actually think that what this case has been about is,
please take a look, please.
And the issue is no one was alleging that Dookhan was trying
to falsify to convict innocent people.
No one was alleging that Farak was either.
What's going on here is the real possibility
of people being convicted
of these three offenses where there was never a crime
by someone other than the person wearing the badge.
It's not just credibility in an abstract sense.
It's credibility that can lead directly to the conviction
and imprisonment of innocent people.
-: I was just gonna ask, I guess it's sort of
similar to what Justice Kafka just asked,
but aren't you conflating doing something
about policemen misconduct writ large and worrying
about specific defendants in their specific cases
and making sure they have what they need
to defend themselves?
-: I know that whenever a judge asks me if
I'm conflating something, I'm supposed to say no.
So I'm gonna say no.
But, I think, here's why I think I'm not.
The problem for in the individual defendants is
that they're gonna get just a little piece
of the overall misconduct and they won't be able to show
in a particular case, "Oh,
I have a need for you
to investigate officer so-and-so who allegedly hit someone
off a motorbike" because the trial judge is likely to say,
"What has that got to do with you?"
But, as a whole, CPCS,
the lawyers of Hampden County Lawyers for Justice,
have a need for that because the evidence
that would be uncovered,
just as it was in the Cotto investigation,
or could be uncovered,
would be applicable to potentially thousands of cases.
Would it lead to someone asking for all of them
to be overturned?
Not necessarily, Your Honor,
but it would allow them to have fair trials and, right now,
what we're being told is the trials
that are going forward are going forward based on evidence
that the city itself says is not exhaustive.
-: So, Mr. Segal,
you represent someone in Springfield District Court.
They're charged with, I guess, the big three,
as they call it, the defense bar calls it:
ABPO, resisin' arrest,
or whatever the other charge was, disorderly
and it's Officer Smith.
As a competent defense attorney, you say,
"I want to see any records of Officer Smith
and any misconduct,
whether he has any physical altercations, et cetera."
Why can't you do that?
-: I think that attorneys have been doing
that and what they didn't know
that they weren't getting until this case is they were not
gonna get any evidence
of an adverse credibility determination
by a judge against Officer Smith.
-: And we'll talk about that with Ms. Mulvey, but-
-: Right and, if Officer Smith was involved, let's say, in,
oh, I don't know, the incident in Palmer, right,
or something comparable,
they're gonna get a sampler of the evidence
and what they won't know when they get that sampler is
that it's a sampler because we didn't know
about this policy until this case
of just turning over what the police provide
and they might stop there.
So the problem for-
-: So if we give you guidance in this case,
in the McFarland case,
that talks about adverse credibility findings
and civil lawsuits, et cetera,
doesn't that answer the question?
-: I can't speak.
I'm not counsel McFarland so I'm gonna-
-: Right. -: Be careful about that.
But I will say, with respect to this case,
there are really three pieces of guidance
on the disclosure piece that this court could give based
on this record without contradicting anything
the special master said.
One is the DA has said in testimony
that they just simply provide what the police provide.
It would be helpful to remind the DA
that that is unlawful under Kyles v. Whitley
and other things.
The DA has this policy
about adverse credibility determinations.
That's inappropriate.
The special master agreed with us, I think, on that.
The third thing would be,
despite admonitions from the courts that doubt should
be resolved in favor of disclosure,
the DA has a policy of resolving doubt in favor
of withholding when the doubt is which
officers committed misconduct that the existence
of which is not in dispute.
Those three things on the disclosure piece would
be very helpful.
On the investigation piece,
even if the court is not gonna say,
"do a Cotto investigation, convene a grand jury,"
there are many things short of that that are not being done,
including just reviewing the incidents alleged by the DOJ
and reviewing the paper.
-: Isn't that an Article 30 issue if we say convene
a grand jury?
-: Well, no, I'm just saying,
even if what your court does not have in mind, right?
On the article 30, in Cotto,
the court said just we would like to know.
-: We'd like to know. We didn't say how to investigate.
We just said it'd
be nice if we knew if this was a Dookhan case or not.
-: Right and what I wanna be clear about though is
that we are saying that these are constitutionally required.
So our, if we're-
-: Can I just press you on that just for a second?
So you say do what, you've got the King Report, right,
at this point?
Do you have- -: The Kent.
-: Excuse me, the Kent Report. You have that report?
'Cause remember the DOJ doesn't identify who
these people are, tight?
It's this classic federal,
they produce the result they want,
which is the consent decree,
but they're not identifying these incidents
that they're describing by name.
But you've got the closest, you have the Kent Report, right?
-: Well, the Kent Report is more accurately described
as a coverup.
I mean, just to be clear.
I mean, I just don't think that it is-
-: But that's the attempt
to identify what the DOJ was talking about, correct?
-: Right but we've had,
let me just be clear
that that identification process was concluded
by October 2020 and, but for this lawsuit,
I'm not sure we would ever have known about it.
Yes, we now have the Kent Report.
The problem is that it is not an attempt to get
to the bottom of what the DOJ alleged.
It is an attempt to disprove it and we think that document-
-: But, that may be its object.
Doesn't it, though,
go through the DOJ report
and identify the incidents which are otherwise not
identified other than Nathan Bills and-
-: It does identify 16.
-: So using that information,
regardless of whether or not it's a rebuttal or cover up
or however you wanna characterize it,
now you know what the DOJ is alleging.
-: And that is true but, if that was up to the defense,
then there would never have been a Cotto report
because once Attorney Luke Ryan found
the mental health worksheets,
the defense bar could have figured it all out
and the problem is the defense bar can't figure it all out.
We don't have subpoena power. We can't convene grand juries.
We can't immunize witnesses and so there's not going
to be a way to get to the bottom
of what happened absent some undertaking on behalf
of the Commonwealth
to understand whether these 16 incidents identified by Kent,
whether it's true at the DOJ alleged, and, if it's true,
whether there's more.
We just can't do it ourselves.
-: So we're gonna find out what the DA's office is
willing to do.
Mr. Segal: Thank you. Thank you, Your Honor.
-: Okay. Thank you.
Attorney Mulvey.
-: If it pleases the court,
Elizabeth Mulvey for the District Attorney
of Hampden County.
I'd like for just a moment to go back to the question
that's actually before the court, which is,
has the petitioner or have the petitioners proved
that there's a crisis in Hampden County such
that this court should issue extraordinary relief under
211 and 231A?
That's what brought us here.
That's what sent us to the special master
and she found unequivocally that there is not
and that should be the end of this petition,
but I think-
-: How many officers are identified by the DOJ report
or now have been identified as involved in the misconduct?
-: I think approximately 30.
-: 30. And they were mostly in the Narcotics Bureau?
-: Yes. -: Which is now disbanded
and you don't think that that's a problem
of large proportion?
-: Well, I think that's a huge question
and let me start after it.
First of all,
the issue is does there need
to be some sort of investigation?
And I'm gonna pass the question because I think there is
an Article 30 issue and I think it's more than that.
With all respect,
it's the district attorney's determination how he
uses his resources.
He doesn't think it's a good use of resources to go back
to 2013 to investigate something
that the federal government spent two and a half years
and God knows how many millions of dollars doing and,
whatever he did, it will not be enough because all
of the amicus briefs, the petitioners themselves,
have said that the district attorney shouldn't
be doing this.
He's too close. He's biased.
He's part of the misconduct.
But he's the one that's the party in this case.
The Attorney General, as they said to Justice Fabricant,
is aware of this case and has no interest in participating
and, more important, on sort of a moral basis,
there is no evidence
that exculpatory information is not being disclosed.
-: I think Mr. Segal's point is we don't really,
even if we do this on an individualized basis,
the way the documents are being produced,
the way the decisions are being made,
we don't know sort of the standards they're applying
and I think that's what he's saying.
How can we even do it in
an individual case if the DA's Office is making a decision
to turn it over or not based on sort
of its own judgment calls?
-: That's what DA's Offices do in every county
in the Commonwealth.
They get evidence and they decide whether to turn it-
-: But he's saying, based on the past,
we weren't given things that we clearly should have been.
-: Well, first of all- -: Bigda.
-: That's not true. -: Okay so-
-: The way Bigda came to light was that the CDs
of that interrogation were produced
to three defense counsel who did nothing.
A line ADA in the district court on a Saturday
in July was looking at those CDs in preparation
for trial and said, "Oh, my God," and called a supervisor.
That's how Bigda it came to light.
First they produced it
and second they recognized it when defense counsel
was doing nothing.
-: So when we go through all of Justice Fabricant's findings
and other things-
-: I'm sorry, I missed-
-: So when we're going through Justice Fabricant's findings,
basically, the Springfield DA's Office has been doing just
fine in what they're turning over.
There's no cause for concern.
Everything's basically in good shape after the DOJ report.
Is that what you're telling us?
So we shouldn't even make any clarifications
in the law here about-
-: Well, that's a different question and I'd love to talk
about that too but, to the first part of the question,
they were given extraordinary latitude,
not just by Justice Fabricant,
but they presented affidavits
with their original petition which turned-
-: No, my question's a little different.
When we're looking at the past practices
of what's been turned over here,
there's no cause for concern,
that the police department was producing the stuff
that the DA's asked for and it was being turned over.
-: There's no evidence to the contrary.
-: Can I ask you about two aspects
of the discovery practices I find concerning?
-: Sure. -: The first is
the determination by the DA's Office that,
when they have an incident and the identity
of the police officer is in question, well,
it's not exculpatory 'cause who knows who did it.
And the second is when there's
an adverse credibility finding like Judge Sweeney made
and the DA says, "Well, that's explainable,"
so we're just not gonna tell you about that.
That's incredibly risky in my opinion.
Can you address those two practices?
-: I'd love to actually.
As to the first one,
that information was disclosed to the defendant involved.
The issue is when you get to collateral cases under matter
of a grand jury,
how do you know as to which officer
to disclose it if nobody's identified?
This was a Wilbraham Police report
that said a Springfield Police officer kicked the kid.
The federal government indicted two people and managed
to prove neither one did it.
The kid never reported it.
So there was no attempt to figure it out
on the defense side.
But the issue then is there were several
police officers there.
As to whom is that exculpatory in a collateral case?
I think is the issue there.
It's not that they didn't turn it over
in the underlying case.
It's that you'd turn it over in every case
in which every one of those officers was involved?
If the answer's yes, tell 'em and they'll do it.
But I don't think there's anything in any case law-
-: Well, I know what my answer would be if I was a supervisor
in that DA's Office.
It would've been to turn it over.
But that was a long time ago.
-: It was before matter of a grand jury.
It involved a juvenile.
I mean, it's not quite clean and tidy.
-: Right. Address number two, please.
-: Let me take number two.
I think that on an appropriate case that would be good
for the court to address, but it's a really messy issue.
As Your Honor noted on Monday,
sometimes judges are nice and they say,
"I don't believe the officer."
Sometimes, given that it's the Commonwealth's
burden of proof, it's truly a tossup and the judge says,
"I find the Commonwealth hasn't met the burden of proof."
Does that mean the judge believes the officer lied?
I think going back to matter of grand jury-
-: But when I read Judge Sweeney's decision, it wasn't, well,
I don't wanna say she wasn't nice,
but when I say she was direct.
-: She was, but she also didn't have the whole picture.
-: But whose call should that be?
-: Well, as a matter of a grand jury,
the language is if the prosecutor determines
that the officer had lied and that's important in a couple
of the cases that they've cited here,
because the prosecutor had information and witnesses
that weren't at the dangerousness hearing,
weren't at the motion to suppress 'cause nobody knew it was
an issue until it blew up in these poor little DA's faces.
But I'd like to point
to what I think is the most egregious example,
which is a finding way back in 2007 or 2008
as to a client represented by David Hoose,
who's president or was president
of Hampden County Lawyers for Justice.
He admitted that he has never tried to use it.
He never gave it to anybody in his office.
He never gave it to the Hampden County Lawyers for Justice.
He never suggested to his friend the DA that he should
be disseminating it
and four DAs before this one didn't see fit
to disseminate it.
Now, could there be room for
a real narrow rule
that if the judge specifically makes the finding?
Yeah, sure. If you tell 'em to do that, they'll do it.
But if you look at the record in this case,
they manage to find exactly three examples and two
of 'em were mushy.
So I'm not convinced that that's a huge problem.
-: Attorney- -: I think most
of them are soft, most of them-
-: Attorney Mulvey, I'm a little surprised
that the DA's position is that there's nothing to see here
and there's nothing that needs to be done.
It seems to me that it might behoove the office to say,
"What should we be doing in the interests of justice?"
Has there been any, what are you planning?
What are they planning to do?
-: They believe that they are turning over exculpatory
evidence and the record shows that they have.
-: So nothing needs to change?
-: Well, they're apparently doing a pretty good job.
As I said to somebody,
they'd be happy to put their record up
against Suffolk County, you know?
-: But what about the Brady Committee with Justice Cordy?
Wasn't that in a reform that's been imposed?
-: Yeah, they have a whole new policy
that they didn't have before that was reviewed
by ex Justice Cordy
and they're following it.
Frankly, they're scared to death,
even before Foster and Kacsmaryk.
You've got these little DAs with piles of cases
and they're terrified
and maybe they should be, but they are.
The message is clear.
-: So that screams for clear guidance from the court
as to what their responsibilities are so
that the prosecutors, little as they are, aren't scared.
-: Yeah and could I take a swing at the softball from Monday,
which is just give it to 'em?
What difference does it make?
'Cause I think that's really the issue is:
Why not just say,
give 'em everything and let's see what happens?
I think, off the top of my head, I can think of six reasons.
First, as the record in this case shows
and it's the best record anybody's ever gonna have
on a DA's disclosure practices,
shows that they're doing a pretty good job.
Are they perfect? Probably not.
Are they doing okay? They're doing pretty well.
Second, we have the Rule 14 committee,
which spent four or five years doing yeoman's work.
I would suggest that maybe it would be a good idea to get
that implemented and see how
that works before we go creating collateral issues.
Three is that there's really a slippery slope here where
we're looking to make the prosecution not just responsible
to identify existing evidence,
but to become the defense investigator
and I recognize it's a slippery slope and it's a line,
but it's never been the law that they have to go investigate
to develop exculpatory evidence as opposed
to identify existing exculpatory evidence.
Frankly, if you're gonna make them a defense investigator,
it would make more sense
to send them after stuff like Bohannan evidence
or Adjutant evidence or mental health records
of a complainant that might be relevant and admissible.
Fourth, it's a huge administrative nightmare
and that wouldn't excuse it if there were a constitutional
need and if this evidence were useful.
But what you have,
and Mr. Shepherd Brick did a pretty good job,
but this is not a simple matter
to go asking all these officers all these questions
because a conviction is static.
It's happened. It goes in the Brady database.
It get disclosed.
-: I'm a little confused though 'cause I am focused
on what you call the little DA in the individual case
and why they're so frightened
'cause it seems like everyone has an interest
in clarifying exactly what that is.
-: Because McFarland said we're gonna take your head off if
you don't do formal/informal,
internal/external, civil/criminal.
-: And Justice Gaziano asked you about two of them,
is there anywhere else that the DA wants us to clarify that?
'Cause I do have problems
with this global gigantic investigation, but I don't,
in the individual case,
I want to be confident
that we are providing clear enough guidance so
that we're not dealing with claims
of cover up and everything else
'cause I don't quite have the same level of confidence
that everything is completely hunky dory out there
that you do.
-: Well, they were given the opportunity.
I mean, if they show us something,
we'll be happy to address it. -: Justice Fabricant,
it's pretty nuanced.
It's not a complete comfort level is it?
But, anyway, so there's nothing more for that,
what you call the little DA that we should be doing
to clarify what they should be turning over.
-: I think that there's this sort of,
and it's amorphous at this stage, this sort of,
is there a duty of inquiry?
What do you have to ask your prosecution team witnesses?
But I think it's pretty- -: Well,
it's in the context of the police are not fully,
the police are an independent entity.
It's not like the federal government
and they're making their own judgment calls,
which are exposing your clients sometimes.
So, again, it's all perfect.
-: Sometimes they don't even know.
-: Well, but again, what should we be, what should we,
is there anything more we should be doing
to empowering the DA's office in relation
to the police department?
Or is, again, you're comfortable with the way everything is?
-: No, with respect to that specific issue,
I think the court ought
to say this is not the prosecutor's responsibility, but-
-: There's no hear no evil,
see no evil exception of Brady, right?
You have a duty to inquire
and if you know there are Giglio letters,
there are procedures you can implement where the DAs can
be satisfied or at least fulfill their obligation
of reasonable inquiry to find out if something's amiss
in this misconduct with a police witness.
-: All right, reasonable. Can I pick up on reasonable?
I think I looked.
There are 160,000 district court cases
in the Commonwealth every year criminal
with multiple officers and, right now, as-
-: My copy of the constitution doesn't distinguish between
the little DA and the big DA.
-: No, just can I- -: Sure.
-: Can I walk that down the road?
-: Yeah. -: It would be one thing
if this were Cotto evidence,
if it went to an element of the crime.
But we are talking about evidence that today
in September of 2002/03, is pretty much, no way,
no how admissible.
At best, there's that little teeny,
what do they call those arrow windows, ballast terrerier,
or somethin' like that, left in-
-: Well, if the case is two officers say that I had a gun
in the front seat of my car and the two witnesses say,
"No, he didn't" and the two officers were subject
to the DOJ report,
wouldn't that be information that the DA should be looking
for consistent with their Brady obligations?
Because, at the end of the day, it is a credibility call.
-: Well, except I think we've got the cart screaming down
the road while the horse is still eating hay in the barn.
Under what section of the evidence law does that come in?
Now, if this court wants to go to 608b-
-: Well, Attorney Mulvey,
I've gotta go back to the conflation thing
with Attorney Segal.
Now, aren't you conflating what your duty is to investigate
and disclose with what's ultimately admissible?
Elizabeth: I think, okay. I'm sorry.
-: Admissibility is not the test.
-: That's the hardest question in the case
because a hundred percent.
Admissibility is not the test.
But on the other hand, we have reasonable inquiry.
Is it reasonable to make people do all these thousands
of inquiries if there's this much chance
that it's admissible?
And I think that's a really, really hard question.
Where along the line- -: I guess that's a question
that you answer because somebody could be goin'
to jail if the inquiry isn't made, right?
-: Well, but is it?
Somebody could be, but there's no evidence that they are.
-: Right, so I mean, the basic-
-: What's reasonable? -: We have in re grand jury,
right? -: Yeah.
-: At this point we don't have 608b,
we have in re grand jury, which stands for,
when these bad act, instances,
instances of misconduct would be admissible.
Takin' aside the the Cotto where Dookhan,
which is an easy call, frankly, because of the exculpatory.
So we do have the ability of a defense attorney
to marshal that evidence, to get in re grand jury,
impeachment essentially, correct?
-: Yeah. -: So then the question becomes
what waiver has to be undertaken by a DA's office to gather
that evidence to give to a defense attorney?
That's really the issue, right?
-: And I think that's where the reasonableness,
that's where the rubber meets the road and I don't profess
to have the answer and there are different answers.
When you have a hammer, everything looks like a nail.
So I'm gonna say,
reasonably calculated to lead to the discovery
of admissible evidence.
There's the Garrett case that was actually cited,
I think, in CPCS's amicus brief in the McFarland case,
where New York says you're only a member
of the prosecution team as to the investigation in the case,
but not as to unrelated issues.
-: Isn't the answer in looking to what the Feds have done
in Giglio as far as what the disclosures have to be?
-: Well, there are two answers to that, I think.
First, the feds have 608b and we don't, so that's-
-: Well, we have in re grand jury,
which may be broader than 608b.
-: Well, yes. -: So, moving past that?
Second? -: But, matter of grand jury,
it leaves this theoretical and it says, look at the age,
look at the simplicity,
look at the blah, blah, blah. -: Let's get past that, right?
-: I'm not aware of a case in which that type
of evidence has been admitted before or after matter
of a grand jury.
So I think that tells us that maybe there's nothing
that's all that compelling out there.
We're all drawing inferences.
But, if that were such a screaming problem,
don't you think somebody would've brought this case
to the court?
-: Well that's not necessarily true because,
if you did have that, I agree with Justice Gaziano,
that grand jury might be a little bit more expansive
than 608b and you might have had an acquittal
as a result of that,
which is why you don't know about it
because the defendant was found not guilty.
So there- -: Then the system worked.
-: Well, perhaps, but you're saying that that inures
to your benefit when it actually might inure
to the other side.
But I'd like to go back
to something you said a little while ago.
The problem that I have with what you're saying
about the reasonableness is I still have my muscle memory
of being a BMC judge where,
every time you come into a session,
there's someone on the prosecution team telling me how
busy they are.
They're telling me how many cases they have.
They're telling me that they just got the case that morning
from the other DA that moved up to superior court or went
to another division.
They're telling me that they don't have the discovery
because the detective's not here
to give them the packet of materials.
So when you start talking
about reasonable is it really starts to get something
that gives me a little PTSD about whether
or not somebody is falling in between the cracks
and not getting what they're supposed
to because no one has keep passing this hot potato
and no one's taking the time to ask, did we ask?
Did we ask them for in re grand jury material?
Did we ask them if they're litigants in a civil suit?
Did we ask 'em if they have disciplinary? No one's asking.
And so when does it become the fact that this is what it is
in district court practice, in community court practice?
You are going to have a lot of cases.
You're gonna be very busy
and the constitution just doesn't care.
-: I don't think that's quite accurate.
Yes, they're busy, but they are asking.
-: Asking what? -: Well, right now,
Hampden is asking the permutations of the three either/ors
and they're getting, I mean, they're getting nothing.
-: But they're asking, so this case serves some purpose.
-: They're asking, but, and if you tell them they have to,
they're gonna do it but-
-: And you think that's unreasonable in light
of the potential inadmissibility of the evidence anyway?
-: I think it's more than potential inadmissibility.
I mean, this court keeps telling us, Susa last month,
that we don't like propensity evidence
and in essence what we're talking
about is propensity evidence.
It's not 609 impeachment. It's not 613a impeachment.
It's really this officer's a habitual liar
or a habitual bad guy.
-: I'm gonna push back on it.
It's not propensity evidence and if you're looking to some
of the reasons why you might offer it
that this officer has a pattern of doing this
in every case when you have somebody that disagrees
with the command,
all of a sudden they're charged with the big three.
Now you get the ABPO. Now you get the disorderly.
Now you get the resisting arrest and if you could show
that there's a pattern to that.
That's not propensity.
-: That's actually it.
I think I would argue that's propensity used
as under Adjutant and. as I said before,
if you're gonna make them ask questions,
that wouldn't be a bad question to have them asking
because we know how that's admissible.
-: So then we won't let the DAs put in uncharged misconduct
'cause the defense attorney said
that's propensity all the time?
-: Yeah. -: Okay.
Let me ask you,
and I wanna give you the opportunity to finish your answer
that I cut you off on, I said,
"Why not a Giglio list or Giglio inquiry?"
You said, "608b."
Then we got backtracked about in re grand jury
and then you were gonna say somethin' else.
Do you remember what the something else was?
You could rewind? I don't know.
-: It seemed important. -: Yeah.
-: Oh, I'm sure it was very important.
It may have had to do, it certainly had to do with 608b.
It may have had to do with the structure and the numbers.
I don't know how many cases the US Attorney's office has,
but every single district court
prosecutor in this Commonwealth has multiple times more
than that and, again, if it were Cotto evidence,
if it went to an element of the crime,
if it were the gun license, I get it, a hundred percent.
I'm not professing-
-: But it's just officer credibility,
so, we're too busy? -: Well, it's not just.
And I think it would be easier and,
when the question was asked, "What guidance can you give?"
The best guidance would be the end:
How are we gonna to use this stuff?
Because if we knew the answer to that-
-: That seems like, why would we do as a global basis?
I mean- -: No,
I think it oughta be done on a case by case
and that's what I said in my brief because-
-: So, to that suggestion,
opposing counsel said something like,
"It's not ripe until it's moot
and that's why we need this global remedy."
What's your response?
-: Global remedies are extraordinary.
Even in Cotto,
this court turned backwards somersaults
to avoid a global remedy and finally felt
that it had no choice. -: But if it's not ripe
until it's moot, that I think the point was,
we need this case, a guidance in this case,
decision in this case,
in order to get to the individual cases.
-: The record belies that because,
both in front of Judge Fabricant,
and I actually wanted to bring this up
because the reply brief accuses the DA
of making false statements.
In fact, if you read-
-: All right, so let's just, I know the record really well
and I'm sure- -: They added a bunch
of pages. -: The other justices do.
Can I just ask the question? -: Sure, please.
-: So, well, the record shows what the record shows.
Let's assume the record suggests
that the Springfield Police Department
had a problem with false arrests
and Fourth Amendment violations and covering up
for each other.
Let's just assume that that's what the record will show.
Why is this case not the right vehicle
for giving the guidance that petitioners want?
-: Because it's old and unproven.
If the Kent Report does nothing else,
it at least raises some questions about the DOJ.
The DOJ, I would argue,
made interpretations rather than inferences
and called things fist strikes.
They misidentified the number of officers at the scene
and we're talking about some things that happened a long,
long time ago.
I don't defend them.
Nobody's defending what these officers did.
But the question is, as to defendants in cases now,
is that evidence exculpatory?
And everybody knows what everybody knows.
There's no secrets in Springfield.
And going to the reply brief, I think what the-
-: That sounds overstated, I would think.
-: I'm sorry? -: That sounds overstated,
that everyone knows everything,
that everyone knows in Springfield.
I mean, it's-
-: There aren't a lot of secrets in Springfield,
Massachusetts, but what the record shows is that-
-: But I don't understand that.
If there aren't a lot of secrets
and everybody knows what everybody knows,
then why not just give it to every defendant
in every case where the police officer everybody knows
is a liar.
-: Because most of those police officers
aren't there anymore.
I mean, that's why there aren't motions for sanctions.
But, what the record does show,
and why I think a global remedy isn't necessary,
is that it shows that the system is working.
Every day in the trial courts in Hampden County,
district court judges
and superior court judges are taking these motions
and they're ruling on them
and that's what the system is supposed to do.
If they feel like they're being deprived of something,
they can go ask for it and sometimes the judge says yes.
Sometimes the judge says no.
That's the way the cookie crumbles.
But they're asking for far more than they're getting.
They're asking, for example,
that the DA explained to them why evidence is exculpatory
and I think that's really such,
going back to this big question of what's exculpatory,
as a trial lawyer,
I'm terrified at the idea of relying on my opponent
to figure out what's exculpatory.
I mean, part of the-
-: That would give you a pause when you figure out what's
an adverse credibility finding.
That should terrify you as well, right?
-: It does because it's, I mean,
I think we cited a bunch of 'em in our original response
to the petition, I mean,
those come in all flavors and the eyes in the beholder
and sometimes it was a different issue and it's not clean
and maybe there should be a rule,
but maybe we should see a case to make the rule.
But that's why it's so difficult to answer these questions.
Going back to Cotto,
one of the best pieces
of lawyering I ever saw was Luke Ryan figuring out that,
from a Saturday football game,
you could figure out what year that was.
That doesn't, on its face,
look like evidence favorable to the defendant.
I'm not talking about the mental health worksheets
and stuff like that.
I'm talking about, without knowing the defense...
One of the arts of trial practice is taking
an innocuous looking fact and using it to your advantage
and I think where we're heading is charging prosecutors
with getting inside the defendant's head and turning over
and they'd be happy to turn over everything
related to the case- -: So, as long as provide clear
instructions and clear guidance, you're good?
-: Absolutely, but I don't think
that the prosecution should become the investigators
for the defense.
They can do some of this themselves.