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<v ->SJC-13394 Commonwealth v. William McDermott.</v>

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<v ->All righty, Attorney Barnwell.</v>

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<v ->Madam Chief Justice, and may it please the court,</v>

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Hayne Barnwell on behalf of William McDermott.

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In Watkins, this court held

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that even when a defendant has received

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prior plenary review, the court doors remain open

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to remedy a grave lingering injustice.

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Here, the grave lingering injustice is of a piece

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with the widespread fear and disgust of gay men

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that prevailed in the 1980s.

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As the appeals court emphasized in Baron,

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homophobia prevailed not only in communal beliefs

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and ignorance, but also within the legal system itself.

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Here, the prosecutor wielded those prejudices

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against Mr. McDermott and a corroborative defense witness

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to discredit them, and thereby achieve a guilty verdict.

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The egregious prosecutorial misconduct should have been

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remedied long ago.

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This court can now remedy it,

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and with that remedy show the public and gay people,

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whether they appear in court as victims, defendants,

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witnesses, or advocates, that bigotry will be condemned,

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no matter when or how it expresses itself.

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<v ->What about the parole hearing?</v>

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Because everything you say is obviously true.

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It echoes off the wall, disgusting,

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but what about the parole hearing?

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Because one might say the same thing

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about the defense if it's not true.

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<v ->The parole board statements are not relevant</v>

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to whether he had a fair trial in 1982.

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Obviously, the jury would not have been aware

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of those statements.

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Those statements came decades later.

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<v ->What is the standard under rule 30, though?</v>

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<v ->Under rule 30, it's broadly whether justice was done.</v>

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<v ->So isn't the question of whether justice was done impacted</v>

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by what your client said at the parole hearing in 2012,

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or in fact just six days before he filed

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the motion for a new trial?

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<v ->No, because under Commonwealth versus Azar,</v>

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the substantial risk standard, and I concede that we are now

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under a substantial risk standard.

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We're no longer under the broad sort

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of just whether justice was done.

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But Azar says that we look at the errors in the context

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of the trial, and the context of the trial,

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of course, would not have the parole board statements.

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The other issue is-

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<v ->Did Azar not parole board statements?</v>

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<v Atty. Barnwell>I'm sorry?</v>

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<v ->Did Azar involve parole board statements?</v>

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<v Atty. Barnwell>They did not, but it's-</v>

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<v ->So this is a new issue that we need to address?</v>

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<v Atty. Barnwell>That is true.</v>

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<v ->And we also alluded to this in Pfeiffer that, you know,</v>

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this does relate to the trial, because you still,

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you have to zoom out a little bit, and this is important,

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because it's part of the credibility of your position.

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If we were to do this understanding

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what the defendant has said at the parole board hearing,

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isn't there a chance that we make a mockery of our system?

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That we know that there's this,

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and I understand that you discredit what he says

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at the parole board hearing, and all of the impetus,

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and the pressure to allocute.

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Assume for the sake of argument that he lied

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about what he said,

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and so now just think about what this looks like.

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He gets a new trial based on a lie because of a concern

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that he was exploiting the same prejudices

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that you're telling us, that you're talking about.

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It works both ways.

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<v ->[Participating Justice] That he utilized.</v>

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That's the problem, that he utilized.

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<v ->Well, certainly I am not the final arbiter of the truth</v>

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of these statements, and more importantly,

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the Commonwealth is not the final arbiter of truth

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with regard to these statements.

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The way the court could write the opinion is to say

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the integrity of the system is undermined

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by the bigotry at this trial.

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As far as the parole board statements,

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those have not been vetted through.

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Actually, in many ways, these things have to be vetted,

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one, through a pretrial investigation by the defense.

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The defense attorney will certainly zealously investigate

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this, is there any substantiation for it, yes or no?

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There's still trial counsel.

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Does trial counsel say this happened?

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I have a feeling he'll say no,

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and so then we he would be put on the witness list,

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then they have-

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<v ->You want us to be duped, right?</v>

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<v Atty. Barnwell>I'm sorry?</v>

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<v ->It's okay if we are duped?</v>

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<v ->Well, that assumes these are reliable.</v>

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That assumes these are voluntary.

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<v ->Well, and categorically, you say that any facts</v>

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that weren't added, were not submitted

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to the jury shouldn't be considered, correct?

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<v Atty. Barnwell>Should not be considered, correct.</v>

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<v ->All right, There's a kind of a heads I win,</v>

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tails I lose argument that defense is making in that.

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Did you consider the case of Commonwealth versus Douds?

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Commonwealth versus Douds were brain injury evidence

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that were not admitted in front of the jury,

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and we allowed relief to the defendant,

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saying it was unfair.

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He gets a new trial, or got a reduction,

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I think, to a second degree because of these facts

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on the interest of justice.

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But those were facts that were outside the trial record,

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not presented to the jury.

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So why is it okay to use the evidence in Douds,

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but not use a parole board hearing?

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<v ->I am lucky that I worked on Douds a long time ago,</v>

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so I'm familiar with that case, so I think the appropriate-

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<v J. Gaziano>I wrote it, that's why I'm asking.</v>

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<v ->Oh, no, I understand.</v>

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I think otherwise I wouldn't have known about Douds.

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That's why I'm saying that.

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So with Douds, my recollection is,

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so the defense brought that up.

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The defense brings that up through,

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I believe that was 33-E.

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<v J. Gaziano>Post-trial.</v>

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<v ->Post-trial, 33-E.</v>

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So I think a good analogy there would be

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if the defense submits medical records and they are just,

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they're false, they're fabricated,

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obviously, the Commonwealth can come back and say,

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"You can't consider that, it's fabricated."

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<v ->Well, I get what you're saying about the,</v>

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I think it's a Kentucky case, and I read

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Medwood's bar review article as well for that point,

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and I think that he provides some supplemental authority

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recently that says just categorically take out the parole.

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So if we categorically take it out, that's not an issue,

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but if we don't take it out,

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I'm wondering where we are with respect to facts

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not adduced to the jury.

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When it's good for you, you know,

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it's in the interest of justice, but it's not good for you,

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it's not in the interest of justice,

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so we don't consider them.

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<v ->Well, you don't consider them for purposes</v>

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of post-conviction motion,

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especially where the motion is in this case.

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I have, you know, Mr. McDermott never raised

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newly discovered evidence limited only to the record,

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and so there's a fundamental fairness problem with that.

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But also what the court could say is,

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"It's just not for us to decide.

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It's for a judge during pretrial to determine

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are these statements reliable in the first instance,"

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and any other arguments, I can think of many, by the way,

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that defense attorney could make to at least try to get out

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most if not all of these statements,

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and then it's for the jury to decide.

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He wasn't only under oath that one time.

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He was under oath four times.

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So does the jury believe that he told the truth

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the first three times?

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Does the jury believe he told the truth?

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No, you know what?

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I don't believe those passed

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consistent with the defense statements.

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I now believe what the Commonwealth urges me to believe,

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which is that fourth one under oath.

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The fourth one where he says,

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"Okay, I did it, you're right," you know?

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And the first three denials,

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if you look carefully at the first three,

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when he's consistent with his defense,

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what do they tell him?

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"We don't believe you, we don't believe you."

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<v ->If we agree with you as far as the parole board goes,</v>

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we follow what Medwood says in Kentucky.

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Well, although the Kentucky court doesn't reach it.

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<v Atty. Barnwell>I'm sorry?</v>

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<v ->I'm sorry, it's probably because I'm mumbling.</v>

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The Kentucky court doesn't reach the issue ultimately.

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<v ->And that's exactly right,</v>

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and that's exactly what this court could say.

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We're not gonna reach it, that's for the jury.

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<v ->But let me ask you, the next question is,</v>

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suppose we agree with you, all right?

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And we say categorically because the motive is to mollify

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the parole board, and we we exclude them,

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isn't the remedy to remand it to the trial,

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to the motion judge, to exclude the parole board issue,

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and then decide the case anew?

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<v ->The motion judge is that?</v>

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That is I am asking for that for alternative relief.

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However, this court could also decide it on the record.

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This court has all of the materials it needs

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to decide the issue, so there's no special,

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you know, deference to the motion judge.

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This is limited to the record.

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This isn't about, you know,

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credibility of witnesses, for example,

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at the evidentiary hearing.

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<v ->But the motion judge did weigh in, and-</v>

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<v Atty. Barnwell>That's true.</v>

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<v ->Right.</v>

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<v ->And that's why I ask you for an alternative that at least,</v>

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you know, to give us a second chance at that.

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The other issue in this case, of course, is that

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this homophobia that began with this question

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about Skippers, you know,

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have you visited the Skippers bar?

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And then of course, the closing argument where he calls,

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he derives the corroborative defense witness

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as a male prostitute.

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He's proud that he's gay.

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I mean, you can just, you know,

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sometimes I know the court says when you read a transcript,

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it's cold, you know, it's cold.

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We're just reading a cold transcript.

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<v ->But didn't those comments particularly draw</v>

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the ire of Justice Liacos, Chief Justice Liacos,

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when he reduced the verdict to a second degree?

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<v ->No, no, the verdict, are we discussing the 1984 opinion?</v>

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<v J. Gaziano>Right.</v>

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<v ->The 1984 opinion centered on the extreme atrocity</v>

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or cruelty instruction, and that had to do

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with he did not instruct, over defense objection,

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he did not instruct that intoxication could be considered.

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<v ->My memory's the same as Justice Gaziano,</v>

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that the 33-E reduction did consider

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the nature of the defense, that's my memory.

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<v ->Oh, and that's true,</v>

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so it said the entire posture, you know,

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we'll consider the defendant's testimony,

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we'll take that under consideration that that's right,

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that there was the error, but then there was

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the what now what do we do with the error?

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And so we'll consider the defendant's testimony as well as-

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<v ->Well, if the homophobia was one factor,</v>

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why they reduced it to second degree, correct?

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<v ->No, he doesn't say that there was any problem</v>

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with what the prosecutor did.

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No, there there's no discussion of that.

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It's more about this was the defense,

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we'll sort of take consideration of the defense

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that this was self-defense against another attempted rape.

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That's what that was about.

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When there's mention of homosexuality at all,

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that's what that's about.

252
00:11:02.670 --> 00:11:05.370
You know, we're gonna consider your defense, basically,

253
00:11:05.370 --> 00:11:08.280
not that there was any error by the prosecutor in this case.

254
00:11:08.280 --> 00:11:10.110
<v ->So assuming we agree with you</v>

255
00:11:10.110 --> 00:11:14.373
that the comments were unacceptable,

256
00:11:15.810 --> 00:11:20.310
articulate for me your best case for a substantial risk

257
00:11:20.310 --> 00:11:22.053
of a miscarriage of justice.

258
00:11:22.920 --> 00:11:26.100
<v ->So I think there are two cases, Modi,</v>

259
00:11:26.100 --> 00:11:30.390
and I'm sorry if I mispronounce this case, Disodario.

260
00:11:30.390 --> 00:11:33.540
So Modi talks about how this is essentially,

261
00:11:33.540 --> 00:11:38.250
this is when there's prejudice infected in a trial,

262
00:11:38.250 --> 00:11:40.230
and that was particularly talking about racial

263
00:11:40.230 --> 00:11:44.190
and religious prejudice, but it certainly applies here

264
00:11:44.190 --> 00:11:47.370
with anti-gay prejudice, that it has a unique ability

265
00:11:47.370 --> 00:11:51.180
to undermine the right to a fair trial.

266
00:11:51.180 --> 00:11:53.430
It denies constitutional due process.

267
00:11:53.430 --> 00:11:54.930
<v ->So can you be more specific?</v>

268
00:11:54.930 --> 00:11:58.200
So again my premise is I agree with you

269
00:11:58.200 --> 00:12:02.730
that the homophobic atmosphere was unacceptable,

270
00:12:02.730 --> 00:12:06.900
inappropriate, and so that conduct

271
00:12:06.900 --> 00:12:09.573
by the prosecutor was misconduct.

272
00:12:11.220 --> 00:12:15.960
The motion judge articulates, I thought quite well,

273
00:12:15.960 --> 00:12:19.050
while there's overwhelming evidence

274
00:12:19.050 --> 00:12:24.050
of the defendant's guilt, including that he shot the victim,

275
00:12:24.600 --> 00:12:29.600
I don't know, 11 times in two different physical locations,

276
00:12:29.700 --> 00:12:34.700
requiring him to stop and reload the murder weapon,

277
00:12:35.183 --> 00:12:40.140
requiring him to drag the victim to the 18th hole

278
00:12:40.140 --> 00:12:42.513
and shoot him there as well.

279
00:12:44.558 --> 00:12:47.460
Why is that not overwhelming evidence of guilt

280
00:12:47.460 --> 00:12:50.160
that despite the homophobic atmosphere,

281
00:12:50.160 --> 00:12:51.930
which again is inappropriate,

282
00:12:51.930 --> 00:12:53.980
would suggest that this is an affirmance?

283
00:12:54.900 --> 00:12:55.920
<v ->Well, I'll work backwards.</v>

284
00:12:55.920 --> 00:13:00.270
So with regard to the bullets found near the body,

285
00:13:00.270 --> 00:13:02.430
there were certainly competing inferences there.

286
00:13:02.430 --> 00:13:06.360
One competing inference was that Mr. Kemp shot at the trees.

287
00:13:06.360 --> 00:13:08.910
He actually shot his gun, I guess to test it out,

288
00:13:08.910 --> 00:13:12.630
out by the trees by the 18th hole where his body was found.

289
00:13:12.630 --> 00:13:14.100
The other competing inference-

290
00:13:14.100 --> 00:13:15.360
<v ->So let's just say that, okay,</v>

291
00:13:15.360 --> 00:13:17.370
not shot in two physical locations,

292
00:13:17.370 --> 00:13:19.440
but there is the reloading of the gun, right?

293
00:13:19.440 --> 00:13:21.300
There definitely must have been.

294
00:13:21.300 --> 00:13:22.560
<v Atty. Barnwell>Yes.</v>
<v ->Yes, so all right,</v>

295
00:13:22.560 --> 00:13:27.240
so given that there was a shooting of the victim nine times,

296
00:13:27.240 --> 00:13:29.490
reloading, and then doing it two more times,

297
00:13:29.490 --> 00:13:31.590
let's say that's how it went,

298
00:13:31.590 --> 00:13:33.780
why is that not overwhelming evidence

299
00:13:33.780 --> 00:13:37.590
that this death was premeditated?

300
00:13:37.590 --> 00:13:40.410
<v ->So in order to judge whether that was guilt, you know,</v>

301
00:13:40.410 --> 00:13:43.020
guilt of murder or guilt of say, manslaughter,

302
00:13:43.020 --> 00:13:44.670
because manslaughter went to the jury,

303
00:13:44.670 --> 00:13:46.830
the jury had to judge the credibility

304
00:13:46.830 --> 00:13:49.320
of both Mr. McDermott and Mr. Werner.

305
00:13:49.320 --> 00:13:51.870
And Mr. McDermott testified that he was drunk,

306
00:13:51.870 --> 00:13:54.933
he was confused, he was traumatized, he was frightened.

307
00:13:55.860 --> 00:13:59.640
There was no evidence about how long he was taking between,

308
00:13:59.640 --> 00:14:02.430
you know, any reloading so that he could have still been

309
00:14:02.430 --> 00:14:05.940
in this traumatized, frantic state, and as the jury,

310
00:14:05.940 --> 00:14:07.530
unfortunately was not instructing this case,

311
00:14:07.530 --> 00:14:10.800
this is one of the errors that I put in the brief,

312
00:14:10.800 --> 00:14:13.170
they were not instructed about provocation really,

313
00:14:13.170 --> 00:14:15.750
so there wasn't an instruction, for example,

314
00:14:15.750 --> 00:14:18.030
that there has to be, I think this is Stokes,

315
00:14:18.030 --> 00:14:21.660
there has to be sufficient time between the provocation

316
00:14:21.660 --> 00:14:23.160
and for the passions to cool.

317
00:14:23.160 --> 00:14:25.080
There was no evidence like that,

318
00:14:25.080 --> 00:14:27.240
so the jury could have at the very least,

319
00:14:27.240 --> 00:14:30.150
returned a manslaughter verdict if, you know,

320
00:14:30.150 --> 00:14:33.570
they weren't obscured and undermined

321
00:14:33.570 --> 00:14:37.830
by the homophobic invective in this trial.

322
00:14:37.830 --> 00:14:41.950
<v ->How do you explain the fact that your client's statement</v>

323
00:14:43.745 --> 00:14:48.300
of the rape, and then the way he lays out the facts,

324
00:14:48.300 --> 00:14:50.700
as Justice Wendlandt has stated,

325
00:14:50.700 --> 00:14:53.760
is wholly inconsistent with the factual record?

326
00:14:53.760 --> 00:14:57.900
I mean, he's way off as far as shell casings go,

327
00:14:57.900 --> 00:14:59.850
and the like.

328
00:14:59.850 --> 00:15:02.130
Shouldn't we take that into consideration,

329
00:15:02.130 --> 00:15:04.413
that his statement is just not credible,

330
00:15:05.408 --> 00:15:06.287
and a jury could find-

331
00:15:06.287 --> 00:15:07.459
<v Atty. Barnwell>Are you credible referring</v>

332
00:15:07.459 --> 00:15:08.292
to the trial testimony?

333
00:15:08.292 --> 00:15:09.125
<v ->Right.</v>

334
00:15:09.125 --> 00:15:10.140
<v ->So there are times when he, you know,</v>

335
00:15:10.140 --> 00:15:12.510
this is a 17 year old boy, you know,

336
00:15:12.510 --> 00:15:13.500
testifying on the stand.

337
00:15:13.500 --> 00:15:15.930
He's crying, he's traumatized.

338
00:15:15.930 --> 00:15:17.310
He doesn't recall certain things,

339
00:15:17.310 --> 00:15:19.770
but that's consistent with, you know, being drunk,

340
00:15:19.770 --> 00:15:21.810
being disoriented, being traumatized.

341
00:15:21.810 --> 00:15:24.210
So he doesn't, you know, recall reloading.

342
00:15:24.210 --> 00:15:27.960
<v ->Yeah, but we've got him stealing the guy's stuff,</v>

343
00:15:27.960 --> 00:15:30.330
his watch, and his pockets are turned out.

344
00:15:30.330 --> 00:15:32.370
I mean, it completely corroborates

345
00:15:32.370 --> 00:15:34.410
the Commonwealth's theory of robbery.

346
00:15:34.410 --> 00:15:37.380
<v ->But the jury acquitted him of robbery,</v>

347
00:15:37.380 --> 00:15:38.763
and they could have found,

348
00:15:39.840 --> 00:15:42.455
they could have rejected it all together, because there was-

349
00:15:42.455 --> 00:15:43.680
<v ->Well, there's no evidence anything was taken,</v>

350
00:15:43.680 --> 00:15:47.490
but the point is that you've got an uphill battle

351
00:15:47.490 --> 00:15:51.000
on the facts as far as your client's statement

352
00:15:51.000 --> 00:15:53.643
and what the physical evidence shows, correct?

353
00:15:55.140 --> 00:15:56.610
<v ->I'm sorry, could you repeat?</v>

354
00:15:56.610 --> 00:15:58.530
<v ->Yeah, the facts are really wholly inconsistent</v>

355
00:15:58.530 --> 00:16:00.690
with your client's testimony.

356
00:16:00.690 --> 00:16:03.033
<v ->I don't agree with that, no,</v>

357
00:16:03.930 --> 00:16:06.090
but as this court found in Vargas,

358
00:16:06.090 --> 00:16:08.970
and in this court's opinion in 1984, this court said

359
00:16:08.970 --> 00:16:11.640
that the jury could have relied on extreme atrocity

360
00:16:11.640 --> 00:16:13.800
or cruelty to come to first degree murder,

361
00:16:13.800 --> 00:16:16.680
and as this court found in Vargas, extreme atrocity

362
00:16:16.680 --> 00:16:19.410
or cruelty shares a lot of factors with manslaughter.

363
00:16:19.410 --> 00:16:21.660
So at the very least it was open to them.

364
00:16:21.660 --> 00:16:23.370
It was at least plausible they could have come back

365
00:16:23.370 --> 00:16:24.840
with manslaughter in this case.

366
00:16:24.840 --> 00:16:27.630
<v ->And given that they came back with M two,</v>

367
00:16:27.630 --> 00:16:30.480
this court did in '94, was it?

368
00:16:30.480 --> 00:16:31.702
<v Atty. Barnwell>I'm sorry?</v>

369
00:16:31.702 --> 00:16:36.690
<v ->This court, '84, reduced the verdict to murder two,</v>

370
00:16:36.690 --> 00:16:41.429
doesn't that suggest that this court in '82, '84,

371
00:16:41.429 --> 00:16:46.293
thought there was sufficient evidence of malice?

372
00:16:47.340 --> 00:16:48.570
How do we square that

373
00:16:48.570 --> 00:16:51.600
with what you're asking for in terms of manslaughter?

374
00:16:51.600 --> 00:16:54.810
<v ->Well, because this isn't a sufficiency case.</v>

375
00:16:54.810 --> 00:16:56.730
This is what the jury could have found.

376
00:16:56.730 --> 00:16:59.430
<v ->How do we with any degree of integrity say</v>

377
00:16:59.430 --> 00:17:02.040
this is manslaughter, no malice,

378
00:17:02.040 --> 00:17:07.040
when in '84, the court concluded that it was murder two.

379
00:17:07.950 --> 00:17:11.220
<v ->Because there's no indication that this court considered</v>

380
00:17:11.220 --> 00:17:13.350
all of the errors that I'm raising here today,

381
00:17:13.350 --> 00:17:16.470
and as this court said in Watkins, no one is infallible,

382
00:17:16.470 --> 00:17:20.730
and that goes triple when gay citizens didn't have

383
00:17:20.730 --> 00:17:22.863
equal citizenship in 1984.

384
00:17:24.780 --> 00:17:27.420
And if there are no further questions.

385
00:17:27.420 --> 00:17:28.253
<v ->Thank you.</v>

386
00:17:31.151 --> 00:17:32.201
Okay, Attorney McGee.

387
00:17:38.040 --> 00:17:39.450
<v ->Good morning, Chief Justice Budd.</v>

388
00:17:39.450 --> 00:17:41.910
So the justices of the Supreme Judicial Court,

389
00:17:41.910 --> 00:17:43.680
may it please the court,

390
00:17:43.680 --> 00:17:45.630
where there was overwhelming evidence of malice

391
00:17:45.630 --> 00:17:48.823
of forethought, the motion judge properly found

392
00:17:48.823 --> 00:17:52.860
that there was no hypothetical path

393
00:17:52.860 --> 00:17:55.950
to a manslaughter verdict, and appropriately denied

394
00:17:55.950 --> 00:17:58.830
the defendant's second motion for new trial,

395
00:17:58.830 --> 00:18:01.533
and where the defendant proposes no,

396
00:18:05.310 --> 00:18:06.630
the defendant presented no basis

397
00:18:06.630 --> 00:18:11.328
for the unprecedented relief that she asked for right now,

398
00:18:11.328 --> 00:18:15.529
in the effect of a double 33-E review.

399
00:18:15.529 --> 00:18:19.440
The Commonwealth is asking that this court not grant

400
00:18:19.440 --> 00:18:21.450
the defendant's second motion in the trial.

401
00:18:21.450 --> 00:18:24.205
<v ->There's no case that I saw, and you didn't set anything</v>

402
00:18:24.205 --> 00:18:27.750
that allows parole board testimony

403
00:18:27.750 --> 00:18:30.210
in post-conviction proceedings, correct?

404
00:18:30.210 --> 00:18:32.400
<v ->The motion judge handled this appropriately,</v>

405
00:18:32.400 --> 00:18:33.970
I would suggest, in the footnote in-

406
00:18:33.970 --> 00:18:36.090
<v ->Well, the answer to that is yes, right?</v>

407
00:18:36.090 --> 00:18:36.923
<v Atty. McGee>That's correct.</v>

408
00:18:36.923 --> 00:18:38.910
<v ->You want us to be the first court to allow that.</v>

409
00:18:38.910 --> 00:18:41.460
<v ->That's, well, what I would suggest is</v>

410
00:18:41.460 --> 00:18:44.670
the motion judge did not err in stating that

411
00:18:44.670 --> 00:18:47.449
albeit the statements were made post,

412
00:18:47.449 --> 00:18:52.080
these statements made post judgment certainly take

413
00:18:52.080 --> 00:18:55.392
the sting out of the defendant's claims,

414
00:18:55.392 --> 00:18:56.968
it doesn't excuse-

415
00:18:56.968 --> 00:18:58.826
<v ->What kind of standard is that, right?</v>

416
00:18:58.826 --> 00:19:02.201
Doesn't take the sting out of the defendant's claims.

417
00:19:02.201 --> 00:19:04.350
What kind of standard, is it considered or not?

418
00:19:04.350 --> 00:19:05.490
What's the Commonwealth's position,

419
00:19:05.490 --> 00:19:07.380
should it be considered or not?

420
00:19:07.380 --> 00:19:11.400
<v ->Well, the Commonwealth's position is that here,</v>

421
00:19:11.400 --> 00:19:16.400
the prosecutor's statements certainly represent misconduct.

422
00:19:16.410 --> 00:19:17.243
The remarks during-

423
00:19:17.243 --> 00:19:19.920
<v ->No, in terms of considering the defendant's statement</v>

424
00:19:19.920 --> 00:19:22.650
to the parole board in 2012,

425
00:19:22.650 --> 00:19:24.000
what's the Commonwealth's position,

426
00:19:24.000 --> 00:19:27.543
should that be considered on a rule 30 motion or not?

427
00:19:27.543 --> 00:19:30.445
<v ->Like a 25-B2 motion,</v>

428
00:19:30.445 --> 00:19:34.170
the statements outside the record could be considered

429
00:19:34.170 --> 00:19:36.690
in the context of a rule 30 motion

430
00:19:36.690 --> 00:19:38.970
in the interest of justice.

431
00:19:38.970 --> 00:19:42.180
They certainly go to the credibility

432
00:19:42.180 --> 00:19:45.150
and the weight of the defendant's now statements,

433
00:19:45.150 --> 00:19:48.570
but I would suggest on the issue of substantial risk

434
00:19:48.570 --> 00:19:51.090
of a miscarriage of justice,

435
00:19:51.090 --> 00:19:55.230
on that level, they don't excuse the prosecutor's conduct.

436
00:19:55.230 --> 00:19:57.960
<v ->Have you done a multi-state review?</v>

437
00:19:57.960 --> 00:20:00.120
I know Justice Gaziano brought up Kentucky.

438
00:20:00.120 --> 00:20:02.400
Have you done that or not?

439
00:20:02.400 --> 00:20:05.430
Do we know if other states consider this or not?

440
00:20:05.430 --> 00:20:07.290
<v Atty. McGee>I have not, Your Honor, but what I would-</v>

441
00:20:07.290 --> 00:20:08.880
<v J. Kafker>So the research hasn't been done</v>

442
00:20:08.880 --> 00:20:10.290
is what you're telling us?

443
00:20:10.290 --> 00:20:13.140
<v ->Correct, but I would suggest that under Pfeiffer,</v>

444
00:20:13.140 --> 00:20:15.649
obviously in June, the court considered

445
00:20:15.649 --> 00:20:20.190
mental health reports that weren't presented to the jury,

446
00:20:20.190 --> 00:20:23.490
and the court found that if it is relevant

447
00:20:23.490 --> 00:20:26.550
to the defendant's defense in the case,

448
00:20:26.550 --> 00:20:29.130
that it's an appropriate consideration for the judge.

449
00:20:29.130 --> 00:20:30.360
<v ->Yeah, there are different,</v>

450
00:20:30.360 --> 00:20:34.740
so in Douds were mental health records as well, right?

451
00:20:34.740 --> 00:20:38.403
So we have psychiatric treatment,

452
00:20:39.900 --> 00:20:41.250
hospital records, et cetera.

453
00:20:41.250 --> 00:20:44.400
There's a certain amount of credibility attached, right?

454
00:20:44.400 --> 00:20:47.880
That's why we have a statute that allows for admissibility.

455
00:20:47.880 --> 00:20:51.360
Here, as the Medwood article points out

456
00:20:51.360 --> 00:20:53.523
and the Kentucky court, writes,

457
00:20:54.570 --> 00:20:58.740
you just don't have that credibility component

458
00:20:58.740 --> 00:21:01.590
or the same motives that you have

459
00:21:01.590 --> 00:21:03.150
when someone's basically trying

460
00:21:03.150 --> 00:21:05.733
to find their way out of parole.

461
00:21:07.672 --> 00:21:08.580
You have less of a motivation.

462
00:21:08.580 --> 00:21:11.190
Someone's trying to mollify the parole board,

463
00:21:11.190 --> 00:21:12.630
and say what they have to say, right?

464
00:21:12.630 --> 00:21:16.110
That's what the law review article essentially says.

465
00:21:16.110 --> 00:21:17.580
<v ->I would suggest that every case stands</v>

466
00:21:17.580 --> 00:21:19.170
on its own two feet.

467
00:21:19.170 --> 00:21:22.140
The defendant here over the last 15 or so years

468
00:21:22.140 --> 00:21:23.940
before three different parole boards has stated

469
00:21:23.940 --> 00:21:27.480
the same exact thing, that this was a murder to rob,

470
00:21:27.480 --> 00:21:30.240
and that the victim in no way touched him,

471
00:21:30.240 --> 00:21:34.593
and was a nice person, so that's, I mean-

472
00:21:35.802 --> 00:21:39.377
<v ->I think the challenge here that's sort of palpable is not,</v>

473
00:21:41.610 --> 00:21:44.570
this isn't just, oh, there was a statement,

474
00:21:44.570 --> 00:21:47.910
inculpatory statement at the parole hearing.

475
00:21:47.910 --> 00:21:49.590
Yes, I actually did it.

476
00:21:49.590 --> 00:21:51.870
It's that we've got an issue here

477
00:21:51.870 --> 00:21:56.870
of just appalling conduct, playing to attitudes,

478
00:21:59.700 --> 00:22:04.700
homophobic attitudes, and the issue is whether that reaches

479
00:22:04.800 --> 00:22:07.590
the level of prejudice for a new trial.

480
00:22:07.590 --> 00:22:09.120
It's not a prophylactic remedy,

481
00:22:09.120 --> 00:22:11.910
but whether it reaches at that level.

482
00:22:11.910 --> 00:22:16.410
And the problem with the parole board statements is that

483
00:22:16.410 --> 00:22:19.740
if they weren't true, and this was the defense,

484
00:22:19.740 --> 00:22:24.740
that was really a disgusting appeal to homophobia as well.

485
00:22:30.030 --> 00:22:34.110
And so it's sort of hard to separate,

486
00:22:34.110 --> 00:22:36.813
in this particular case, although we may need to.

487
00:22:38.010 --> 00:22:39.480
<v ->Certainly, and I'm mindful</v>

488
00:22:39.480 --> 00:22:44.280
of also Justice Cypher's concurring opinion in due

489
00:22:44.280 --> 00:22:47.040
where she spoke about the integrity of the justice system.

490
00:22:47.040 --> 00:22:52.040
And in addition to the denigration of homosexuals

491
00:22:52.170 --> 00:22:55.980
in the prosecutor's remarks, there's also this aspect

492
00:22:55.980 --> 00:22:57.990
that this defendant has essentially created

493
00:22:57.990 --> 00:22:59.263
two lines of cases.

494
00:22:59.263 --> 00:23:02.820
Because of his appeals of his parole board cases,

495
00:23:02.820 --> 00:23:05.460
you essentially have two separate lines of appeals

496
00:23:05.460 --> 00:23:07.944
relying on two separate sets of facts.

497
00:23:07.944 --> 00:23:11.070
<v ->And so what does that, conclude that statement for me.</v>

498
00:23:11.070 --> 00:23:15.486
<v ->In the interest of justice, under rule 30,</v>

499
00:23:15.486 --> 00:23:16.868
I think that's something,

500
00:23:16.868 --> 00:23:20.040
these secondary statements can certainly be considered

501
00:23:20.040 --> 00:23:23.700
by the court, but here, the judge didn't,

502
00:23:23.700 --> 00:23:25.260
and I think that was appropriate.

503
00:23:25.260 --> 00:23:28.470
<v ->Well didn't, but how do you know that the judge didn't?</v>

504
00:23:28.470 --> 00:23:31.410
<v ->Because he didn't rely upon these in his findings.</v>

505
00:23:31.410 --> 00:23:33.720
But for a footnote saying that they didn't-

506
00:23:33.720 --> 00:23:35.850
<v ->But mentioned them in the decision, right?</v>

507
00:23:35.850 --> 00:23:38.430
<v ->In a footnote, he actually said the opposite.</v>

508
00:23:38.430 --> 00:23:41.370
He didn't excuse the prosecutor's conduct.

509
00:23:41.370 --> 00:23:43.680
I mean, these statements

510
00:23:43.680 --> 00:23:47.040
that were made post-trial don't excuse

511
00:23:47.040 --> 00:23:49.290
the prosecutor's conduct during the trial itself.

512
00:23:49.290 --> 00:23:51.330
<v ->But he found a level of comfort in the fact</v>

513
00:23:51.330 --> 00:23:52.800
that they had been made.

514
00:23:54.180 --> 00:23:55.770
<v Atty. McGee>He did not find a level of comfort.</v>

515
00:23:55.770 --> 00:23:58.260
I would suggest that he just simply said that they might-

516
00:23:58.260 --> 00:24:01.803
<v ->No, can I go back to justice, I think Lowy's question,</v>

517
00:24:03.210 --> 00:24:08.133
parole board statements, aren't they inherently coercive?

518
00:24:09.360 --> 00:24:10.290
<v Atty. McGee>Inherently?</v>

519
00:24:10.290 --> 00:24:13.500
<v ->Yeah, so making them not necessarily a reliable basis</v>

520
00:24:13.500 --> 00:24:16.590
upon which to judge whether justice has been done?

521
00:24:16.590 --> 00:24:20.880
<v ->Perhaps nationwide, but certainly in our parole setting-</v>

522
00:24:20.880 --> 00:24:22.560
<v ->So you've done a nationwide survey on this?</v>

523
00:24:22.560 --> 00:24:24.542
<v Atty. McGee>I don't know.</v>
<v ->Okay.</v>

524
00:24:24.542 --> 00:24:25.375
(overlapping speech)

525
00:24:25.375 --> 00:24:26.363
Massachusetts, yeah.

526
00:24:26.363 --> 00:24:28.590
<v ->Because I'm only familiar with the parole board here,</v>

527
00:24:28.590 --> 00:24:30.365
and the defendant's given an opportunity-

528
00:24:30.365 --> 00:24:32.190
<v ->But so is being prosecuted for murder, right?</v>

529
00:24:32.190 --> 00:24:35.403
So if if he's prepared to lie to the parole board,

530
00:24:36.900 --> 00:24:38.970
maybe he's prepared to make up a defense

531
00:24:38.970 --> 00:24:40.830
that has no basis as well, right?

532
00:24:40.830 --> 00:24:44.100
So again, it goes both ways.

533
00:24:44.100 --> 00:24:45.900
I mean, yeah, you're under pressure

534
00:24:45.900 --> 00:24:47.790
to cave to the parole board,

535
00:24:47.790 --> 00:24:50.100
but if you're that kind of person,

536
00:24:50.100 --> 00:24:52.085
maybe you're also caving,

537
00:24:52.085 --> 00:24:53.670
and you're creating a false defense.

538
00:24:53.670 --> 00:24:58.590
So again, it just seems like it's difficult to analyze,

539
00:24:58.590 --> 00:25:00.603
but it's more complicated than,

540
00:25:02.250 --> 00:25:04.920
it's two-sided, this whole thing.

541
00:25:04.920 --> 00:25:08.040
<v ->Yes, and there's certainly different interests at stake</v>

542
00:25:08.040 --> 00:25:11.970
at the parole board, and the trust in that individual

543
00:25:11.970 --> 00:25:16.590
to be able to successfully reenter in the community

544
00:25:16.590 --> 00:25:19.770
without crime, and without any sort of risk

545
00:25:19.770 --> 00:25:21.390
of harm to the public.

546
00:25:21.390 --> 00:25:23.640
Here, though, on the substantial risk

547
00:25:23.640 --> 00:25:25.950
of a miscarriage of justice standard,

548
00:25:25.950 --> 00:25:29.820
there were overwhelming facts of the defendant's guilt,

549
00:25:29.820 --> 00:25:34.230
and additionally, in 1984,

550
00:25:34.230 --> 00:25:36.390
the court did consider the defense,

551
00:25:36.390 --> 00:25:40.500
and did rely upon that defense, and found that

552
00:25:40.500 --> 00:25:43.260
under the circumstances and under 33-E review,

553
00:25:43.260 --> 00:25:44.760
that this should be,

554
00:25:44.760 --> 00:25:46.650
that the defendant should stand convicted

555
00:25:46.650 --> 00:25:47.973
for second degree murder.

556
00:25:48.870 --> 00:25:50.760
<v ->There's one thing we haven't talked about, though,</v>

557
00:25:50.760 --> 00:25:53.220
which when we're dealing with the substantial risk here,

558
00:25:53.220 --> 00:25:56.850
and what was the extent of the prejudice,

559
00:25:56.850 --> 00:26:01.850
and it's that my sense is that the judge didn't really do

560
00:26:02.880 --> 00:26:07.880
a good job restraining any of this, and arguably,

561
00:26:08.970 --> 00:26:13.813
may have, to some extent, augmented the concern.

562
00:26:15.480 --> 00:26:16.950
What do you think of that?

563
00:26:16.950 --> 00:26:21.030
<v ->Well, under these facts, and I would,</v>

564
00:26:21.030 --> 00:26:23.700
as far as the prejudice to the defendant,

565
00:26:23.700 --> 00:26:25.200
there were very strong facts

566
00:26:25.200 --> 00:26:27.540
of premeditated deliberate murder.

567
00:26:27.540 --> 00:26:30.180
The defendant used the victim's gun,

568
00:26:30.180 --> 00:26:31.955
was stealing from him, took his gun,

569
00:26:31.955 --> 00:26:35.970
and shot him 11 times with a nine shotgun,

570
00:26:35.970 --> 00:26:37.320
moved him to the 18th hole,

571
00:26:37.320 --> 00:26:39.780
and there were casings found at the 18th hole.

572
00:26:39.780 --> 00:26:41.160
He had emptied out his pockets,

573
00:26:41.160 --> 00:26:43.380
took his wedding ring, and fled to Pennsylvania.

574
00:26:43.380 --> 00:26:46.470
As far as the defense, going to the defense of this-

575
00:26:46.470 --> 00:26:48.210
<v ->I'm confused by why it's relevant</v>

576
00:26:48.210 --> 00:26:52.440
that there are casings at the 18th hole, why is that?

577
00:26:52.440 --> 00:26:53.740
<v ->Perhaps he was not dead,</v>

578
00:26:54.900 --> 00:26:57.450
or perhaps he shot him again and couldn't explain it.

579
00:26:57.450 --> 00:26:59.910
<v ->It also shows he lied when he gave the first statement,</v>

580
00:26:59.910 --> 00:27:03.660
'cause he said he didn't shoot him on the golf course.

581
00:27:03.660 --> 00:27:07.380
<v ->And the jury was free to credit that or discredit it.</v>

582
00:27:07.380 --> 00:27:11.070
And also to Your Honor's point about the defense is that

583
00:27:11.070 --> 00:27:15.990
the defendant here, if we took his statement

584
00:27:15.990 --> 00:27:19.980
at his testimony, said that he was raped,

585
00:27:19.980 --> 00:27:22.740
and that Mr. Edmonds arrived with the meat truck,

586
00:27:22.740 --> 00:27:24.270
and that he went out to the meat truck,

587
00:27:24.270 --> 00:27:27.750
and he brought the meat out to it and tried to leave.

588
00:27:27.750 --> 00:27:31.530
He had an opportunity, and that still despite that,

589
00:27:31.530 --> 00:27:33.780
shot the defendant with his own gun,

590
00:27:33.780 --> 00:27:36.090
and the jury was free to discredit that

591
00:27:36.090 --> 00:27:40.590
and to find that that wasn't a proper self-defense,

592
00:27:40.590 --> 00:27:43.560
and that is likely what happened here.

593
00:27:43.560 --> 00:27:45.510
The court disagreed with that in some,

594
00:27:45.510 --> 00:27:48.930
or credited to some extent the defendant's story here,

595
00:27:48.930 --> 00:27:50.190
and actually found that

596
00:27:50.190 --> 00:27:53.610
as a mitigating circumstance here under 33 review.

597
00:27:53.610 --> 00:27:56.010
They considered his age, they considered

598
00:27:56.010 --> 00:27:58.260
that he might have been under the influence

599
00:27:58.260 --> 00:27:59.580
of alcohol or marijuana.

600
00:27:59.580 --> 00:28:04.580
They also considered that he suffered from an attack,

601
00:28:06.510 --> 00:28:08.040
and under those circumstances,

602
00:28:08.040 --> 00:28:11.550
they already reduced this to second degree murder,

603
00:28:11.550 --> 00:28:12.870
making him eligible for parole.

604
00:28:12.870 --> 00:28:15.510
He would've been eligible for parole anyway,

605
00:28:15.510 --> 00:28:19.440
but he's had parole hearings every five years

606
00:28:19.440 --> 00:28:21.030
since 15 years out,

607
00:28:21.030 --> 00:28:26.030
and that was what the SJC found back then,

608
00:28:27.240 --> 00:28:30.930
and what I would ask the court under these circumstances is

609
00:28:30.930 --> 00:28:34.058
certainly to find that the prosecutors' remarks

610
00:28:34.058 --> 00:28:37.290
of homophobia were improper, but I would ask

611
00:28:37.290 --> 00:28:40.780
that under the circumstances of the totality of the case-

612
00:28:40.780 --> 00:28:42.660
<v ->Well, it's more than the remarks, though,</v>

613
00:28:42.660 --> 00:28:46.290
because you have him call on the other witness, you know,

614
00:28:46.290 --> 00:28:48.030
say, "Well, he can't be gay,

615
00:28:48.030 --> 00:28:49.890
'cause he didn't come on to me," right?

616
00:28:49.890 --> 00:28:51.300
There's that witness,

617
00:28:51.300 --> 00:28:54.873
and then the examination of the wife, right?

618
00:28:55.740 --> 00:28:58.050
And saying he was a good red-blooded American,

619
00:28:58.050 --> 00:28:59.460
he wouldn't have done this.

620
00:28:59.460 --> 00:29:01.290
So it was more than just remarks.

621
00:29:01.290 --> 00:29:03.693
It was the tenor of the prosecution.

622
00:29:04.788 --> 00:29:06.930
<v J. Lowy>An unrestrained tenor,</v>

623
00:29:06.930 --> 00:29:09.397
which is the point I was making.

624
00:29:09.397 --> 00:29:14.397
<v ->But with respect to Werner, the witness to corroborate</v>

625
00:29:15.990 --> 00:29:17.823
that the victim was in fact gay,

626
00:29:19.089 --> 00:29:22.860
the prosecutor's questions to him,

627
00:29:22.860 --> 00:29:25.110
or remarks about him in his closing argument

628
00:29:25.110 --> 00:29:28.650
about that you shouldn't credit him because he's gay?

629
00:29:28.650 --> 00:29:29.787
<v J. Gaziano>I'm talking about the-</v>

630
00:29:29.787 --> 00:29:31.200
<v J. Wendlandt>The rebuttal witness.</v>

631
00:29:31.200 --> 00:29:33.277
The rebuttal witness came on and said,

632
00:29:33.277 --> 00:29:35.763
"Oh, well I'm also a, you know,

633
00:29:37.162 --> 00:29:39.870
a boy who works at this club, and he didn't come on to me."

634
00:29:39.870 --> 00:29:42.180
<v J. Gaziano>Right, that witness.</v>

635
00:29:42.180 --> 00:29:46.590
<v ->It's sort of, to your opposing counsel's point,</v>

636
00:29:46.590 --> 00:29:51.590
the entire trial was infected with a theme of homophobia,

637
00:29:52.530 --> 00:29:56.550
and characteristics about what a homosexual would be like,

638
00:29:56.550 --> 00:29:59.730
and given that, doesn't it undermine the integrity

639
00:29:59.730 --> 00:30:00.660
of the entire trial,

640
00:30:00.660 --> 00:30:03.326
which I think is your opposing counsel's point,

641
00:30:03.326 --> 00:30:06.210
and that this has to go back for a retrial?

642
00:30:06.210 --> 00:30:11.210
<v ->I would suggest that under the circumstances of the trial</v>

643
00:30:11.250 --> 00:30:16.250
where the defendant's case relied upon the defendant,

644
00:30:17.370 --> 00:30:20.010
the victim being gay, and then calling

645
00:30:20.010 --> 00:30:23.820
a corroborating witness to suggest that he's gay,

646
00:30:23.820 --> 00:30:27.030
and then that it was proper rebuttal

647
00:30:27.030 --> 00:30:30.270
for the Commonwealth to then call,

648
00:30:30.270 --> 00:30:31.590
well, I wouldn't say proper rebuttal,

649
00:30:31.590 --> 00:30:36.590
it was in the context of everything, a rebuttal of that.

650
00:30:38.536 --> 00:30:41.820
But under the totality of the case,

651
00:30:41.820 --> 00:30:45.952
there was just no version of these facts that would suggest

652
00:30:45.952 --> 00:30:48.660
that this was reckless or wanton conduct.

653
00:30:48.660 --> 00:30:50.127
This was always malice.

654
00:30:50.127 --> 00:30:51.360
<v ->So is this case different from the cases</v>

655
00:30:51.360 --> 00:30:53.910
that your opposing counsel relies on,

656
00:30:53.910 --> 00:30:58.910
where it was a racial element that infused the entire trial,

657
00:30:59.400 --> 00:31:02.310
and so we had to flip it and order a new trial?

658
00:31:02.310 --> 00:31:05.610
<v ->I would suggest to the court that there's no structural</v>

659
00:31:05.610 --> 00:31:10.610
or infection of this jury or this case that mitigated,

660
00:31:12.090 --> 00:31:16.800
that in any way changed the verdict in this case.

661
00:31:16.800 --> 00:31:17.850
The defendant-

662
00:31:17.850 --> 00:31:19.407
<v ->But when I go pull the other cases,</v>

663
00:31:19.407 --> 00:31:24.407
those cases were not overwhelming evidence of guilt?

664
00:31:27.030 --> 00:31:30.363
<v ->I'm not sure on Modi, to be honest with you.</v>

665
00:31:31.710 --> 00:31:35.280
What I would suggest in this case is that

666
00:31:35.280 --> 00:31:38.310
any hypothetical reduction is impossible.

667
00:31:38.310 --> 00:31:39.840
The defendant did-

668
00:31:39.840 --> 00:31:43.290
<v ->Well, I think it's clear there's no good faith way</v>

669
00:31:43.290 --> 00:31:46.200
you can get to a manslaughter under these facts.

670
00:31:46.200 --> 00:31:49.470
But the question is new trial versus manslaughter, for me.

671
00:31:49.470 --> 00:31:50.303
<v Atty. McGee>Substantial risk</v>

672
00:31:50.303 --> 00:31:51.136
of a miscarriage of justice.

673
00:31:51.136 --> 00:31:52.590
<v ->Right, right.</v>

674
00:31:52.590 --> 00:31:57.220
<v ->And what I would suggest under that again is that</v>

675
00:31:59.730 --> 00:32:04.537
the rhetoric and the comments and the remarks, if anything,

676
00:32:06.810 --> 00:32:08.620
what defense is arguing is it goes

677
00:32:10.200 --> 00:32:12.990
to his self-defense argument, and what I would suggest is

678
00:32:12.990 --> 00:32:15.510
that self-defense argument was very weak,

679
00:32:15.510 --> 00:32:17.490
and for the reasons I had just stated

680
00:32:17.490 --> 00:32:21.150
about the opportunity to escape, the credibility of it,

681
00:32:21.150 --> 00:32:23.610
and the credibility of the other facts,

682
00:32:23.610 --> 00:32:27.090
and to the extent that it was credible,

683
00:32:27.090 --> 00:32:31.086
the SJC gave him that in 1984, and reduced his verdict

684
00:32:31.086 --> 00:32:33.480
to a second degree murder based upon that.

685
00:32:33.480 --> 00:32:35.850
They took consideration

686
00:32:35.850 --> 00:32:38.940
of the defendant's self-defense argument,

687
00:32:38.940 --> 00:32:41.305
and reduced his verdict to second degree murder.

688
00:32:41.305 --> 00:32:42.810
<v ->But the instruction itself compelled</v>

689
00:32:42.810 --> 00:32:45.990
the reduction to second degree murder, right?

690
00:32:45.990 --> 00:32:48.330
In and of itself, we've got a bunch of cases

691
00:32:48.330 --> 00:32:51.300
that say if you don't give the alcohol instruction,

692
00:32:51.300 --> 00:32:53.550
you drop it to second degree, right?

693
00:32:53.550 --> 00:32:55.410
<v ->The court found that there was not a substantial risk</v>

694
00:32:55.410 --> 00:32:57.600
of a miscarriage of justice, and reduced the verdict

695
00:32:57.600 --> 00:33:02.370
based upon 33, based upon his age,

696
00:33:02.370 --> 00:33:05.610
his maybe possibly being under the influence,

697
00:33:05.610 --> 00:33:10.320
and succumbing to a rape before the murder.

698
00:33:10.320 --> 00:33:12.090
That was the basis for the reduction.

699
00:33:12.090 --> 00:33:15.150
<v ->Do you agree with your opposing counsel</v>

700
00:33:15.150 --> 00:33:20.150
that the homophobic infection was not considered in 1984?

701
00:33:25.620 --> 00:33:28.530
<v ->It was not considered as part of the judgment.</v>

702
00:33:28.530 --> 00:33:31.590
What they considered was the defendant's defense,

703
00:33:31.590 --> 00:33:34.740
and they credited it, and they reduced it based upon that.

704
00:33:34.740 --> 00:33:36.990
<v Chief J. Budd>Okay, any other questions?</v>

705
00:33:36.990 --> 00:33:39.623
<v ->There aren't any further questions, I rest upon my brief.</v>