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SJC-13408, Commonwealth v. Cassandra L. Barlow-Tucker
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and SJC-13409, Commonwealth v. Matthew J.
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So we'll start with Attorney Zalnasky.
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Good morning Your Honors, Jennifer Zalnasky.
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Special Assistant District Attorney
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representing the Commonwealth this morning.
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There's no doubt that this is a tragic case.
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It's always difficult to hold a parent
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or a caregiver responsible for the death of a child.
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However, emotion has to take over
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and that criminal charges should be dismissed.
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Here, the motion judge erred by dismissing these indictments
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under both McCarthy and O'Dell grounds.
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There was sufficient evidence
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to support these indictments
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for reckless endangerment of a child.
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This case is not about reasonable doubt
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and it's not about guilt.
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Can I ask you about the legal standard for a second?
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In his written opinion,
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the motion judge sets out the McCarthy standard.
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Two of our cases,
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it says it's between
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one and the other.
Yes.
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And then the Commonwealth faults him by saying,
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"Well those cases are sufficiency trial cases,
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"they're not grand jury cases."
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But he lays out the appropriate McCarthy standard.
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How else are these facts other than to cite our case law?
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And that's part of the problem and challenge
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in this case Your Honor.
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That he does lay out the proper McCarthy and O'Dell as well
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but then his analysis,
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he starts go into more of a sufficiency of the evidence.
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It almost reads like he's addressing
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for a motion for it to trial.
I don't know about that.
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He goes into sufficiency as,
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I mean, the bottom line is, what did these parents,
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what could they have reasonably have known
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as far as the distress of the child?
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Was staying the course the right call?
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Think the facts at issue are relatively simple.
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It's hard but it's simple to state.
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I don't get what the judge was supposed to do
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other than to talk
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about sufficiency on those particular parameters.
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I'm surprised when you're trying to say
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he applied the wrong standard.
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Because I think.
I'd say he was wrong
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but applying the wrong standard I think is way off.
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Well I think because he does the wrong analysis,
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his conclusion is also wrong.
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How's his analysis wrong?
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Well, I think that he,
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in trial, or a motion for a directed verdict standard
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in which he really starts parsing apart
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the evidence that was presented to the grand jury.
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Right.
And he starts weighing.
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Stop there, how else are you supposed to find
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the sufficiency of evidence
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without parsing the evidence presented to the grand jury?
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Well there are cases about grand jury indictments
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that discuss that.
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It needs to be reviewed in the favor
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of support of the indictment.
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And that's loose?
Which I don't think he does.
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That's what he says.
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You're saying he didn't do what he said he did?
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I mean you can quibble, of course you can
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about how we apply.
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Sure.
The McCarthy standard
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but to say he didn't use the McCarthy standard
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I think is really far-fetched.
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I think in my brief I outlined
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that he certainly identifies it
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but then I think he takes his analysis too far
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and he does apply,
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he makes the statement that this case
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is somewhere between Gallison and Masood.
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In one of those cases,
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I'm blanking on which one of the two
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but this court also made note that in that case,
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they weren't addressing the grand jury indictments
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but in one of them
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they say there was enough evidence
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for the indictments to stand.
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So they were going back to say some of these cases
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might make it through the indictment process
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but because they're difficult cases they may not make,
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acknowledge that as well.
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That that may be the case here.
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The evidence I think is a close call
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but I think for probable cause,
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in the favor of allowing the indictment,
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the review of this evidence
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should've been on the other side.
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By the judge.
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It seems to me that he's trying to find ways
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to show that these defendants didn't do
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the things that the Commonwealth presented as evidence
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that they did.
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So to me,
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I get that it's a very fine point Your Honor.
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But I think that that's part
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and that there was sufficient evidence
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when you look at it in favor of the allowance
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of the indictment.
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In particular I think these,
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these are caregivers who had a duty to act.
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And they did so in a wanton and reckless way
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and when you look at the evidence from the medical examiner
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and from the pediatrician
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and also from the speech pathologist
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before the child passed away,
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she makes a comment to the defendant
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that she thinks that child needs to go to a doctor.
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Well the motion judge turns that around
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and suggests that because she didn't say it was urgent,
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it didn't meet the standard.
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But he's turning that evidence around.
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Similarly, when he is weighing out some of the.
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Why do you say that's not what happened?
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Because, because there was no question
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about whether or not, nobody asked her
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if she felt this was emergency room situation
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or whether it was urgent but she did say that she,
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and she described what she saw.
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She saw a prominent and persistent cough.
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That he was having difficulty breathing
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and that he looked ill
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and in her testimony at grand jury,
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that she felt that that child needed to go to the doctor.
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That's what needed to happen here.
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That's the duty and that's where the failure was.
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Can I ask you, first of all,
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I just want to,
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you agree that if you're going to apply
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a probable cause and you're going to apply
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a McCarthy standard,
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you still have to go through all the elements
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and examine all the elements in order to determine,
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not whether it's a required finding
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but at in that when the judge goes through carefully,
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he is applying,
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there's no reason to think he isn't applying to McCarthy.
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There's nothing about going through the elements
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that suggest he's not applying McCarthy.
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Oh no, of course he has to go through the elements
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and certainly review the evidence.
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I think his view of the evidence
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is not in favor of the indictment
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which is what the standard should be on a McCarthy notion.
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Is there any difference between the,
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the Cassandra and Matthew.
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Is there any difference for instance,
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when Matthew walks by the crib in the video
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that differentiates the two?
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I think, yes I think there's some difference
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on the facts.
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I certainly think that that is a key part of this case
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as it relates to Matthew.
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That you can see him on the video
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walk right past the crib
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where you can hear the child struggling with every breath
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and he doesn't look, he doesn't go over to see if he's okay.
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He just goes in, puts the other child in the bed
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and then walks out.
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I think in that moment in time,
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that shows his reckless disregard
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for how ill the baby was at that point in time.
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I think with Cassandra,
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you know we don't have that kind of video view.
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But I think if you,
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if there's a couple of things.
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The young child that puts the baby in the crib,
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you can actually hear the breathing of the baby
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and the coughing and the choking
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just before they come in the room.
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So it wasn't like it just started
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and I think reasonable people can agree
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that that sound and that struggle
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and that choking was happening
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before the young child put the baby away.
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Or put the baby in the crib.
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Before that happens in the, in another place in the house.
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So I think at that point in time,
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Cassandra would've heard it, heard the sound.
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Isn't it more important
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that the child's been sick for two weeks right?
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In the light most favorable to you right.
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The child seeks,
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when do the DCF worker, how many days before
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did she say the child should go to the doctor?
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It's not a DCF worker.
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It's a early intervention,
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speech pathologist.
Yeah.
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She is there on February the 14th
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and says that the child needs to go to the doctor.
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That's a week?
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That's about three days.
Three days.
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Three days, and there is also evidence
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from both defendants' statements
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that the baby had been sick for about two weeks.
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The first week he seems to be mildly sick,
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has a low fever.
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All the kids in their house go through this
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as we all know happens except this one stays sicker, longer
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and I think that, when Justice Kafker,
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when you're talking about the two time period,
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that's crucial.
Just so I understand.
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So the testimony on the,
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it's hard to measure recklessness in a second right?
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Sure.
The issue is,
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should they have called the doctor
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or should they have taken the child to the doctor?
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And you know, and so the kid's been sick for two weeks
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and he's been showing a fever off and on
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during that entire two weeks?
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Again, in the light most favorable to you.
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I understand.
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Sure.
Yeah.
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So the evidence was during the first week of his illness,
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he was no higher than 100
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and then in the second week of his illness
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he goes over 100 with his fever, as high as 102.
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That's what Matthew's statement indicates.
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So somewhere around that time
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is probably when they should've been on notice.
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Then the other children and required medical care.
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In addition, in her statement to the police,
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Cassandra indicates that she is aware that he has,
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and these are her words, compromised lungs.
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Because he had been sick earlier in December and yet,
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when he symptoms, there is no call to a doctor.
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Compromised lung is a strong right?
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The doctor Sumar thinks that it may be a dog allergy right?
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Absolutely.
Right, okay.
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Yeah the earlier part
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and then in December he goes in
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and he has some kind of congestion
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and he gets for two days.
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I agree that that is a strong word,
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but that's the word that she uses
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when she's telling the police about what,
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she tells them that she called DCF to take him to the doctor
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but we know that there's no evidence
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that that actually happened.
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Can I ask about some of the extraneous stuff?
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Sure.
So,
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the judge is focused on two different aspects.
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One, is the evidence sufficient?
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Two, is the evidence, the way it's presented
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and with one of the kids,
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I can't remember, the big kid.
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Whatever he's, I don't want to use his exact name.
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Sure.
But,
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so there's some suggestion that at least Cassandra
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makes negative comments about taking kids to the doctor.
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Right.
In this blog right?
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That it's burdensome.
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So does that?
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That seems relevant right?
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Some of the other stuff seems irrelevant.
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Whether they got paid after the child died
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seems really irrelevant.
Sure.
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And inflammative.
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Yeah, in retrospect it does.
The other part.
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Yeah.
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00:11:44.689 --> 00:11:45.892
Well, even then it should be.
270
00:11:45.892 --> 00:11:48.420
But that part is important right?
271
00:11:48.420 --> 00:11:50.250
That you know, we're trying to measure
272
00:11:50.250 --> 00:11:52.413
why they didn't go to the doctor right?
273
00:11:54.090 --> 00:11:56.280
Yes, I outline in my brief
274
00:11:56.280 --> 00:11:58.473
and I think it's an important point.
275
00:11:59.370 --> 00:12:00.330
The judge overlooks it
276
00:12:00.330 --> 00:12:03.510
because he's so focused on this potential prejudice
277
00:12:03.510 --> 00:12:07.200
but those posts and the prosecutor says this,
278
00:12:07.200 --> 00:12:08.790
they're put in for state of mind.
279
00:12:08.790 --> 00:12:12.630
And it goes to the wanton and recklessness.
280
00:12:12.630 --> 00:12:14.880
Can I find an answer?
281
00:12:14.880 --> 00:12:17.040
The fact that they?
No I'm sorry.
282
00:12:17.040 --> 00:12:18.990
The other part about the other child.
283
00:12:18.990 --> 00:12:20.760
Marginally relevant is what happens
284
00:12:20.760 --> 00:12:24.450
with the kid named Big D and whether or not you sought care.
285
00:12:24.450 --> 00:12:26.340
Right, I'll give you that.
286
00:12:26.340 --> 00:12:28.920
But the other stuff is incredibly inflammatory
287
00:12:28.920 --> 00:12:30.843
and not relevant at all.
288
00:12:32.460 --> 00:12:37.460
How probative of the duty of care is it bayed
289
00:12:38.070 --> 00:12:40.150
once the child passed away?
290
00:12:40.150 --> 00:12:41.130
I don't think it was,
291
00:12:41.130 --> 00:12:44.010
I agree with you that looking back it's problematic.
292
00:12:44.010 --> 00:12:47.760
At the time it was to set up
293
00:12:47.760 --> 00:12:49.785
that there was a duty of care.
294
00:12:49.785 --> 00:12:52.347
Oh come on, that's not an issue.
295
00:12:52.347 --> 00:12:53.940
That's just.
I understand
296
00:12:53.940 --> 00:12:54.810
what you're saying Your Honor
297
00:12:54.810 --> 00:12:57.330
but I don't think, even if that's the case,
298
00:12:57.330 --> 00:13:01.080
even if this court says that it shouldn't have been put in
299
00:13:01.080 --> 00:13:03.510
and it was inflammatory, it's a very minor part
300
00:13:03.510 --> 00:13:04.980
of the evidence that was put in this case.
301
00:13:04.980 --> 00:13:09.300
I think you had too big a hill on the pay.
302
00:13:09.300 --> 00:13:11.441
I think you gotta go to Mayfield.
303
00:13:11.441 --> 00:13:14.100
That's where I was going Justice Lowy.
304
00:13:14.100 --> 00:13:16.500
But when you go to that analysis which,
305
00:13:16.500 --> 00:13:19.140
it doesn't seem that this judge did in his decision
306
00:13:19.140 --> 00:13:22.770
and I think I'm pretty safe in saying that.
307
00:13:22.770 --> 00:13:27.630
He doesn't get to that last part of Mayfield
308
00:13:27.630 --> 00:13:29.790
and this court recently addressed that in,
309
00:13:29.790 --> 00:13:32.340
put in volumes of DOC records
310
00:13:32.340 --> 00:13:35.010
that laid out all kinds of disciplinary reports
311
00:13:35.010 --> 00:13:36.780
and all kinds of poor behavior
312
00:13:36.780 --> 00:13:39.120
to establish a relationship between the co-defendants
313
00:13:39.120 --> 00:13:42.093
and this court in that case said,
314
00:13:43.530 --> 00:13:45.240
well first of all the prosecutor gave
315
00:13:45.240 --> 00:13:47.700
the proper instruction following,
316
00:13:47.700 --> 00:13:49.860
right after the blog posts go in.
317
00:13:49.860 --> 00:13:50.880
But I think more importantly,
318
00:13:50.880 --> 00:13:53.120
this is not a major part of the case.
319
00:13:53.120 --> 00:13:58.120
It is three pages of documents within thousands of documents
320
00:13:58.590 --> 00:14:03.590
and the Sergeant that testifies simply says this is what.
321
00:14:03.660 --> 00:14:06.360
There's no suggestion that they were defrauding
322
00:14:06.360 --> 00:14:08.670
or doing something nefarious.
323
00:14:08.670 --> 00:14:10.470
You can see this was a mistake?
324
00:14:10.470 --> 00:14:13.170
I think it was a mistake in retrospect, yes Your Honor.
325
00:14:13.170 --> 00:14:14.520
I understand.
Your best.
326
00:14:14.520 --> 00:14:16.825
You keep saying in hindsight,
327
00:14:16.825 --> 00:14:20.550
the argument that it was not ex-ante,
328
00:14:20.550 --> 00:14:23.940
affirmatively irrelevant and just prejudicial.
329
00:14:23.940 --> 00:14:26.010
Well I don't think it was completely irrelevant
330
00:14:26.010 --> 00:14:27.270
and prejudicial in a way that
331
00:14:27.270 --> 00:14:28.857
would require.
But how,
332
00:14:28.857 --> 00:14:29.790
so the financial documents?
333
00:14:29.790 --> 00:14:31.611
I mean that just seems,
334
00:14:31.611 --> 00:14:34.290
do you have an argument on relevancy on that?
335
00:14:34.290 --> 00:14:37.830
Yeah the argument was that it was put in to establish.
336
00:14:37.830 --> 00:14:40.050
They were paid afterwards have anything to do
337
00:14:40.050 --> 00:14:41.100
with the duty of care?
338
00:14:41.100 --> 00:14:42.303
There wasn't really,
339
00:14:43.320 --> 00:14:44.850
that was just what the documents said
340
00:14:44.850 --> 00:14:46.140
and the Sergeant was just explaining
341
00:14:46.140 --> 00:14:47.640
what the documents said.
342
00:14:47.640 --> 00:14:48.780
There was no suggestion
343
00:14:48.780 --> 00:14:50.790
that there was any kind of nefarious conduct.
344
00:14:50.790 --> 00:14:54.060
It was they were paid and that established the relationship.
345
00:14:54.060 --> 00:14:56.490
They were overpaid and then they refunded the money
346
00:14:56.490 --> 00:14:59.280
which in these types of situations,
347
00:14:59.280 --> 00:15:02.520
when children are being moved from DCF, that happens.
348
00:15:02.520 --> 00:15:04.830
But again, going to, as Justice Lowy pointed out,
349
00:15:04.830 --> 00:15:08.760
I don't think under Mayfield those factors,
350
00:15:08.760 --> 00:15:12.330
this small, tiny piece of evidence, prejudicial or not
351
00:15:12.330 --> 00:15:13.740
in a grand jury situation
352
00:15:13.740 --> 00:15:15.300
is enough to dismiss the indictment.
353
00:15:15.300 --> 00:15:16.680
Especially with all the other evidence.
354
00:15:16.680 --> 00:15:18.930
I'm sorry Your Honor.
Sorry it was me.
355
00:15:18.930 --> 00:15:22.710
I interrupted you but before we lose you,
356
00:15:22.710 --> 00:15:27.710
what about the 12-year-old daughter's testimony
357
00:15:27.925 --> 00:15:31.830
and is there sort of an O'Dell distortion
358
00:15:31.830 --> 00:15:36.363
as it relates to what is put in and what isn't put in?
359
00:15:37.242 --> 00:15:42.137
I do think it was a misstatement that the mischaracterized
360
00:15:44.130 --> 00:15:47.940
what she had observed in a very specific sense
361
00:15:47.940 --> 00:15:49.680
but I will say that the,
362
00:15:49.680 --> 00:15:52.620
certainly the grand jury had access to those statements.
363
00:15:52.620 --> 00:15:55.584
They could've watched the statements in their entirety.
364
00:15:55.584 --> 00:15:58.770
Obviously you'd presume that they were events carefully
365
00:15:58.770 --> 00:16:01.758
but again I don't think it's something that rises
366
00:16:01.758 --> 00:16:03.090
to the level.
367
00:16:03.090 --> 00:16:06.330
Especially in light of all the other evidence that came in
368
00:16:06.330 --> 00:16:08.280
with regards to how sick this child was
369
00:16:08.280 --> 00:16:10.230
and how dire his situation was,
370
00:16:10.230 --> 00:16:13.712
that this would be something that would be grounds.
371
00:16:13.712 --> 00:16:18.150
Doesn't the nebulizer treatment show
372
00:16:18.150 --> 00:16:21.900
that they were what they thought they should be doing?
373
00:16:21.900 --> 00:16:23.790
Just within their own experience?
374
00:16:23.790 --> 00:16:28.680
Well there's a couple of issues with the nebulizer.
375
00:16:28.680 --> 00:16:29.910
First of all it wasn't,
376
00:16:29.910 --> 00:16:31.680
because he hadn't received any medical care
377
00:16:31.680 --> 00:16:32.790
for this condition.
378
00:16:32.790 --> 00:16:34.050
It was prescribed about two months earlier.
379
00:16:34.050 --> 00:16:36.000
Right this condition is which,
380
00:16:36.000 --> 00:16:38.050
can you separate out which condition you're talking about?
381
00:16:38.050 --> 00:16:41.530
Sure, the ultimate pneumonia that led to his death.
382
00:16:41.530 --> 00:16:43.898
Okay, but they didn't know he had pneumonia.
383
00:16:43.898 --> 00:16:45.540
They didn't, because they didn't get him the medical care
384
00:16:45.540 --> 00:16:46.373
that he needed.
385
00:16:46.373 --> 00:16:47.688
But how would
386
00:16:47.688 --> 00:16:48.869
they know that?
To make that determination.
387
00:16:48.869 --> 00:16:51.510
How were they to know that the nebulizer treatment
388
00:16:51.510 --> 00:16:54.930
that they had was not what they were supposed to be doing?
389
00:16:54.930 --> 00:16:59.930
I guess I'm just concerned that we're putting too much
390
00:17:02.010 --> 00:17:04.200
on what the parents are expected to know.
391
00:17:04.200 --> 00:17:05.700
They're not doctors,
392
00:17:05.700 --> 00:17:09.090
they have had experience with sick children
393
00:17:09.090 --> 00:17:14.090
and so they did what they do with their sick children.
394
00:17:14.580 --> 00:17:18.270
Sure, but I think part of the challenge there Your Honor
395
00:17:18.270 --> 00:17:22.230
is that he was continuing to get more and more sick
396
00:17:22.230 --> 00:17:24.960
in those last couple of days before he passed away.
397
00:17:24.960 --> 00:17:26.820
So the nebulizer may have given him
398
00:17:26.820 --> 00:17:28.140
a brief amount of relief.
399
00:17:28.140 --> 00:17:31.359
Which you know, that's what their statement is.
400
00:17:31.359 --> 00:17:35.400
The ME testifies that it likely wouldn't have helped
401
00:17:35.400 --> 00:17:37.650
by the end because the lung was so blocked
402
00:17:37.650 --> 00:17:39.390
that they could've given it to him
403
00:17:39.390 --> 00:17:40.800
and it really wouldn't have made its way
404
00:17:40.800 --> 00:17:42.840
into his lungs to help anyway
405
00:17:42.840 --> 00:17:44.400
and that it wasn't the right treatment
406
00:17:44.400 --> 00:17:49.080
for this type of infection and that's part of the problem.
407
00:17:49.080 --> 00:17:52.770
Is that he was getting sicker and sicker.
408
00:17:52.770 --> 00:17:54.720
The other children had gotten better
409
00:17:54.720 --> 00:17:57.480
and there was no medical care to address the fact
410
00:17:57.480 --> 00:17:58.710
that he wasn't getting better.
411
00:17:58.710 --> 00:18:01.590
So it wasn't that he had the same thing that they had,
412
00:18:01.590 --> 00:18:03.300
or maybe he had the same cold
413
00:18:03.300 --> 00:18:06.240
and it developed into something worse for him,
414
00:18:06.240 --> 00:18:08.550
given his status.
415
00:18:08.550 --> 00:18:10.080
But they didn't react to that.
416
00:18:10.080 --> 00:18:12.630
There was no medical care and had they called the doctor,
417
00:18:12.630 --> 00:18:16.920
maybe the doctor would have prescribed the antibiotics
418
00:18:16.920 --> 00:18:18.240
that the ME talks about.
419
00:18:18.240 --> 00:18:21.295
That could've been the treatment in this particular case.
420
00:18:21.295 --> 00:18:23.670
But strep's pretty unusual in this circumstance?
421
00:18:23.670 --> 00:18:24.960
It is for this age.
422
00:18:24.960 --> 00:18:27.090
I believe the pediatrician does say that
423
00:18:27.090 --> 00:18:30.390
but he also does talk about how significant
424
00:18:30.390 --> 00:18:32.941
the breathing is in this child
425
00:18:32.941 --> 00:18:33.774
and that if a child like that
426
00:18:33.774 --> 00:18:34.607
had been brought into his office,
427
00:18:34.607 --> 00:18:37.050
he would've sent them immediately to the emergency room.
428
00:18:37.050 --> 00:18:38.430
So this is not sort of.
429
00:18:38.430 --> 00:18:41.138
Child Big, Big.
430
00:18:41.138 --> 00:18:41.971
Whatever, Big.
431
00:18:58.500 --> 00:19:01.150
It was, I think it was about two years before this.
432
00:19:02.230 --> 00:19:03.570
And he had been coughing up pus.
433
00:19:03.570 --> 00:19:05.099
And yeah there's a,
434
00:19:05.099 --> 00:19:09.084
obviously a difference I think between, child.
435
00:19:09.084 --> 00:19:11.006
Took that four-year-old to the hospital.
436
00:19:11.006 --> 00:19:12.420
They did take that child to the hospital.
437
00:19:12.420 --> 00:19:13.740
They also called the doctor
438
00:19:13.740 --> 00:19:16.443
about one of their other children who had been sick.
439
00:19:17.376 --> 00:19:18.960
Because they were concerned about her
440
00:19:18.960 --> 00:19:23.730
but her fever had never risen as high as this child's.
441
00:19:23.730 --> 00:19:26.010
Well 102 is not that high for a little kid right?
442
00:19:26.010 --> 00:19:28.860
I think it is but I will, I'm not a parent.
443
00:19:28.860 --> 00:19:31.620
So I don't take babies' temperatures all that often.
444
00:19:31.620 --> 00:19:33.510
But I think 102,
445
00:19:33.510 --> 00:19:38.510
both the doctor, the pediatrician and Cassandra also says
446
00:19:39.342 --> 00:19:43.320
that when your fever gets to that high, watch.
447
00:19:43.320 --> 00:19:44.887
But nothing happens
448
00:19:44.887 --> 00:19:45.720
and in addition to having a fever,
449
00:19:45.720 --> 00:19:47.760
he had other signs that he wasn't well.
450
00:19:47.760 --> 00:19:49.830
That he was coughing and struggling to breathe
451
00:19:49.830 --> 00:19:52.297
and was looking ill and was lethargic
452
00:19:52.297 --> 00:19:54.540
and wasn't drinking and they comment
453
00:19:54.540 --> 00:19:56.310
that his diapers were more dry
454
00:19:56.310 --> 00:19:59.820
and this is all happening in the days before.
455
00:19:59.820 --> 00:20:01.440
So I see my time's up,
456
00:20:01.440 --> 00:20:03.690
but I just want to make this point real quick.
457
00:20:03.690 --> 00:20:06.030
They also indicate to the police,
458
00:20:06.030 --> 00:20:07.350
two things that are problematic.
459
00:20:07.350 --> 00:20:10.740
First that they had called DCF to take him to the doctor
460
00:20:10.740 --> 00:20:13.650
which did not happen but to me that suggests
461
00:20:13.650 --> 00:20:16.927
that they understood that this child needed medical care.
462
00:20:16.927 --> 00:20:20.310
And then there is the comment in which they,
463
00:20:20.310 --> 00:20:22.080
going to the doctor with one of their other kids
464
00:20:22.080 --> 00:20:24.300
and taking him along to be seen.
465
00:20:24.300 --> 00:20:27.510
That to me indicates that they had an awareness
466
00:20:27.510 --> 00:20:29.842
that this child needed medical care
467
00:20:29.842 --> 00:20:32.343
but they didn't act on that duty.
468
00:20:33.781 --> 00:20:36.281
There are no further questions Your Honors, we'll.
469
00:20:37.176 --> 00:20:38.176
Thank you.
470
00:20:39.589 --> 00:20:41.583
Okay, Attorney oh Daniels.
471
00:20:44.430 --> 00:20:47.251
Good morning, may it please the court.
472
00:20:47.251 --> 00:20:48.084
My name is Attorney Josh Daniels.
473
00:20:48.084 --> 00:20:49.980
I'm appearing for Matthew Tucker.
474
00:20:49.980 --> 00:20:52.110
With me is Attorney Nancy Dolberg
475
00:20:52.110 --> 00:20:56.160
who is appearing for Cassandra Barlow-Tucker.
476
00:20:56.160 --> 00:20:57.390
I don't know if they're here yet
477
00:20:57.390 --> 00:21:00.720
but I know that the Tuckers were planning to attend.
478
00:21:00.720 --> 00:21:02.130
Just by way of a roadmap,
479
00:21:02.130 --> 00:21:04.260
my focus will be on probable cause
480
00:21:04.260 --> 00:21:05.160
while Attorney Dolberg
481
00:21:05.160 --> 00:21:09.540
will address the material impairment of the grand jury
482
00:21:09.540 --> 00:21:12.000
and together we're asking you to affirm,
483
00:21:12.000 --> 00:21:13.530
Judge Agostini gave.
484
00:21:13.530 --> 00:21:16.020
We weigh all the factual issue
485
00:21:16.020 --> 00:21:17.478
about whether or not
486
00:21:17.478 --> 00:21:19.940
they should've gone to medical intervention and I think,
487
00:21:19.940 --> 00:21:21.450
as I read the record and correct me
488
00:21:21.450 --> 00:21:24.483
if any of these are wrong okay?
489
00:21:26.130 --> 00:21:29.189
As far as what the parents have for evidence,
490
00:21:29.189 --> 00:21:32.493
we have a persisting cough, we have a lack of fluids.
491
00:21:33.840 --> 00:21:36.540
A fever and lethargy.
492
00:21:36.540 --> 00:21:37.373
Correct?
493
00:21:38.310 --> 00:21:43.310
We have a, that's mostly correct I think.
494
00:21:44.774 --> 00:21:45.624
On and off.
Tell me what's wrong
495
00:21:45.624 --> 00:21:48.060
about that and if there's anything I'm missing.
496
00:21:48.060 --> 00:21:51.420
So there is some suggestion that he's drinking less,
497
00:21:51.420 --> 00:21:55.530
they are making concerted efforts to keep him hydrated.
498
00:21:55.530 --> 00:21:57.480
There is evidence that he is,
499
00:21:57.480 --> 00:21:59.160
there is evidence that he is lethargic.
500
00:21:59.160 --> 00:22:02.190
There is evidence of a persistent coughing
501
00:22:02.190 --> 00:22:05.070
and the fever I think is mostly described as off and on.
502
00:22:05.070 --> 00:22:06.270
It comes on in the morning
503
00:22:06.270 --> 00:22:08.820
and then as he gets fluids into him
504
00:22:08.820 --> 00:22:12.615
and goes throughout the day, it comes right back down.
505
00:22:12.615 --> 00:22:13.448
There was some testimony,
506
00:22:13.448 --> 00:22:15.693
I think it was from your client about feeding the,
507
00:22:17.251 --> 00:22:19.620
administering fluids by an eyedropper?
508
00:22:19.620 --> 00:22:21.780
I think that was liquids.
509
00:22:21.780 --> 00:22:24.392
There was also mention of a sippy cup.
510
00:22:24.392 --> 00:22:27.243
I forget which parent mentions that.
511
00:22:29.477 --> 00:22:31.620
But it was at the state where they had to use?
512
00:22:31.620 --> 00:22:34.650
A syringe to push fluids, yes.
513
00:22:34.650 --> 00:22:36.840
Right, which is concerning.
514
00:22:36.840 --> 00:22:40.560
It is, but I think where I plan to begin
515
00:22:40.560 --> 00:22:45.540
is I think we need to unpack the nature of the risk
516
00:22:45.540 --> 00:22:47.520
that needs to be appreciated for recklessness
517
00:22:47.520 --> 00:22:50.490
because I don't think it's actually in the abstract.
518
00:22:50.490 --> 00:22:51.720
Whether you know
519
00:22:51.720 --> 00:22:54.990
that this person has to be taken to the doctor.
520
00:22:54.990 --> 00:22:57.360
The risk is more specific than that,
521
00:22:57.360 --> 00:22:59.012
that you need to appreciate.
522
00:22:59.012 --> 00:23:02.400
The reasonable person must appreciate
523
00:23:02.400 --> 00:23:04.230
that there is a high degree of likelihood
524
00:23:04.230 --> 00:23:06.270
of death or grave bodily harm.
525
00:23:06.270 --> 00:23:10.680
Not just continued discomfort, not just continued sickness
526
00:23:10.680 --> 00:23:13.860
and so I think we need to keep that,
527
00:23:13.860 --> 00:23:16.953
the nature of the risk that needs to be appreciated in mind.
528
00:23:17.820 --> 00:23:20.430
The other thing I want to sort of stress,
529
00:23:20.430 --> 00:23:22.440
I planned to end with this but I may not get there.
530
00:23:22.440 --> 00:23:26.163
On your first stressful point.
531
00:23:27.070 --> 00:23:28.737
Yep.
532
00:23:28.737 --> 00:23:31.890
What about the evidence that Justice Gaziano
533
00:23:31.890 --> 00:23:36.890
just summarized doesn't lead to probable cause
534
00:23:37.920 --> 00:23:41.790
that would've understood the risk to the baby?
535
00:23:41.790 --> 00:23:45.420
I think where it falls down is sort of high likelihood
536
00:23:45.420 --> 00:23:47.940
of death or grave bodily harm.
537
00:23:47.940 --> 00:23:51.630
I think it's undisputed that you know that they that the.
538
00:23:51.630 --> 00:23:55.003
Respectfully, I think you may be misstating the standard.
539
00:23:55.003 --> 00:23:57.000
As I read Dorvesk, Lewinsky,
540
00:23:57.000 --> 00:23:59.520
the mortal homicide instructions.
541
00:23:59.520 --> 00:24:01.410
A failure to act as wanton and reckless
542
00:24:01.410 --> 00:24:03.330
involves a high degree of likelihood
543
00:24:03.330 --> 00:24:06.120
that substantial harm will result to the person
544
00:24:06.120 --> 00:24:08.137
to whom the duty is owed.
545
00:24:08.137 --> 00:24:08.970
Correct and in Carrillo.
546
00:24:08.970 --> 00:24:10.353
You said death or.
547
00:24:11.220 --> 00:24:13.140
That's how Carrillo defines
548
00:24:13.140 --> 00:24:16.170
what substantial harm means in this context is death
549
00:24:16.170 --> 00:24:17.463
or grave bodily harm.
550
00:24:18.600 --> 00:24:21.390
The Carrillo context was an overdose correct?
551
00:24:21.390 --> 00:24:23.070
Pardon?
Carrillo was an overdose.
552
00:24:23.070 --> 00:24:24.783
Yes, but it's still about.
553
00:24:26.010 --> 00:24:27.480
It's still involuntary manslaughter,
554
00:24:27.480 --> 00:24:30.211
it's still recklessness, I think it's.
555
00:24:30.211 --> 00:24:31.283
I understand, the pearl above it.
556
00:24:32.520 --> 00:24:34.080
Anyway, we'll look at that.
557
00:24:34.080 --> 00:24:35.943
So he's 10 months old though.
558
00:24:37.440 --> 00:24:40.032
Sorry, did I cut you off Justice Wendlandt?
559
00:24:40.032 --> 00:24:41.057
It's 10 months.
560
00:24:41.057 --> 00:24:42.600
Right, the child's 10 months old
561
00:24:42.600 --> 00:24:47.600
and that video is deeply shocking right?
562
00:24:49.323 --> 00:24:51.300
There's just, it's just heartbreaking to listen
563
00:24:51.300 --> 00:24:56.300
to that level of warring coming out of that little kid.
564
00:24:56.828 --> 00:24:58.950
That's the hard part for you isn't it?
565
00:24:58.950 --> 00:25:00.723
To deal with that.
566
00:25:01.713 --> 00:25:03.231
That's not,
567
00:25:03.231 --> 00:25:06.646
I mean that's not a word.
568
00:25:06.646 --> 00:25:11.646
It's really loud and it's, the kid is clearly gasping right?
569
00:25:12.450 --> 00:25:14.040
So a few things about the video.
570
00:25:14.040 --> 00:25:15.557
The first thing
571
00:25:15.557 --> 00:25:18.270
I just want to re-emphasize again is
572
00:25:18.270 --> 00:25:21.450
as I mentioned in my brief,
573
00:25:21.450 --> 00:25:23.520
there's a real bias here
574
00:25:23.520 --> 00:25:26.310
because everyone who has ever seen that video
575
00:25:26.310 --> 00:25:28.860
has done so with the foreknowledge of what the outcome is
576
00:25:28.860 --> 00:25:31.656
and I think that sort of inevitably colors
577
00:25:31.656 --> 00:25:34.350
how bad it sounds
578
00:25:34.350 --> 00:25:37.267
because we know what it leads to.
579
00:25:37.267 --> 00:25:40.113
I think you do a very good job of that but again,
580
00:25:42.443 --> 00:25:45.350
it's, it's the level of the rasp
581
00:25:47.426 --> 00:25:52.200
versus getting on the phone at least and calling a doctor
582
00:25:52.200 --> 00:25:56.416
or taking the kid to a doctor.
583
00:25:56.416 --> 00:25:59.043
Because it's not an ordinary coughing sound.
584
00:26:00.540 --> 00:26:02.079
Right?
585
00:26:02.079 --> 00:26:03.758
It's just, it sounds.
586
00:26:03.758 --> 00:26:06.120
So the other thing I would say is,
587
00:26:06.120 --> 00:26:08.733
to remind us all that recording,
588
00:26:09.720 --> 00:26:13.530
recording often distorts even as it captures
589
00:26:13.530 --> 00:26:14.970
and playback distorts again
590
00:26:14.970 --> 00:26:17.482
and to unpack what I mean by that.
591
00:26:17.482 --> 00:26:20.718
But you're at the probable cause standing right?
592
00:26:20.718 --> 00:26:22.057
Right, correct.
So I think you know,
593
00:26:22.057 --> 00:26:23.370
those are great but right now,
594
00:26:23.370 --> 00:26:25.452
we should stick to basics.
595
00:26:25.452 --> 00:26:26.580
At the very least I think it's relevant
596
00:26:26.580 --> 00:26:29.280
in terms of deciding whether this is close enough
597
00:26:29.280 --> 00:26:30.360
for the grand jury,
598
00:26:30.360 --> 00:26:33.182
for the O'Dell arguments not to preempt
599
00:26:33.182 --> 00:26:34.830
what my sister is about to say.
600
00:26:34.830 --> 00:26:36.300
For those to actually matter,
601
00:26:36.300 --> 00:26:38.133
for there to be a fair,
602
00:26:39.376 --> 00:26:42.300
distortions in the grand jury process
603
00:26:42.300 --> 00:26:44.266
really did matter here.
604
00:26:44.266 --> 00:26:45.420
But could you argue the other way though?
605
00:26:45.420 --> 00:26:49.200
As it relates to the blogs and the discussions
606
00:26:49.200 --> 00:26:52.380
of how frustrating it is
607
00:26:52.380 --> 00:26:56.130
to go to the emergency room,
608
00:26:56.130 --> 00:26:59.400
how frustrating it is to D's health
609
00:26:59.400 --> 00:27:04.400
and palpable reticence that Cassandra's discussing
610
00:27:05.700 --> 00:27:08.526
about the whole process.
611
00:27:08.526 --> 00:27:11.663
Of dealing with a sick child after hours.
612
00:27:14.310 --> 00:27:17.370
What my colleague is going to say,
613
00:27:17.370 --> 00:27:20.130
I think one thing to sort of keep in mind
614
00:27:20.130 --> 00:27:22.110
is also that the Big D situation
615
00:27:22.110 --> 00:27:25.781
is different in ways besides age.
616
00:27:25.781 --> 00:27:26.614
It's also that,
617
00:27:27.735 --> 00:27:31.830
it's hard to suss out what,
618
00:27:31.830 --> 00:27:34.260
he's underreporting his symptoms
619
00:27:34.260 --> 00:27:35.490
but there's also suggestion
620
00:27:35.490 --> 00:27:38.155
that he's over-reporting his symptoms
621
00:27:38.155 --> 00:27:40.050
because he likes how the medicine tastes.
622
00:27:40.050 --> 00:27:42.210
The last thing I just want to wrap up with,
623
00:27:42.210 --> 00:27:47.210
if that's all right is I think we need to be really careful
624
00:27:47.610 --> 00:27:50.640
not to get so hyper-focused on the specifics here a lot
625
00:27:50.640 --> 00:27:54.720
and it is voluminous but we need to not lose sight
626
00:27:54.720 --> 00:27:56.880
of the basic linedrawing problem
627
00:27:56.880 --> 00:27:59.010
that this case represents which is
628
00:27:59.010 --> 00:28:02.460
that the kinds of decisions that we are talking about here,
629
00:28:02.460 --> 00:28:04.670
how serious is this?
630
00:28:04.670 --> 00:28:06.150
Do I need to take my kid to the doctor?
631
00:28:06.150 --> 00:28:08.891
Is what's in the medicine cabinet enough?
632
00:28:08.891 --> 00:28:11.760
Is this a dire emergency or is this just a bad night?
633
00:28:11.760 --> 00:28:12.840
These are decisions
634
00:28:12.840 --> 00:28:14.670
that all parents have to make constantly,
635
00:28:14.670 --> 00:28:16.680
they usually have to make them on
636
00:28:16.680 --> 00:28:20.550
the basis of imperfect information, equivocal information,
637
00:28:20.550 --> 00:28:23.550
incomplete information and it can be really hard to suss out
638
00:28:23.550 --> 00:28:27.450
and what this Court has said for going on 40 years now,
639
00:28:27.450 --> 00:28:29.910
is that while it's possible
640
00:28:29.910 --> 00:28:31.650
to make these sorts of misjudgments,
641
00:28:31.650 --> 00:28:34.860
those misjudgments just aren't recklessness.
642
00:28:34.860 --> 00:28:38.010
No matter how terrible the consequences end up being,
643
00:28:38.010 --> 00:28:40.530
even the death of a child.
644
00:28:40.530 --> 00:28:43.710
I think Judge Agostini appreciated all of this
645
00:28:43.710 --> 00:28:46.200
and I would urge this court to do the same
646
00:28:46.200 --> 00:28:47.310
and affirm his decision.
647
00:28:47.310 --> 00:28:50.340
If there are no other questions I'll turn it over.
648
00:28:50.340 --> 00:28:52.840
Okay, thank you.
Thank you.
649
00:28:55.998 --> 00:28:57.090
Okay, Attorney Dolberg.
650
00:28:58.868 --> 00:28:59.951
Your Honor.
651
00:29:01.691 --> 00:29:02.940
May it please the court, I'm Nancy Dolberg
652
00:29:02.940 --> 00:29:04.790
on behalf of Cassandra Barlow-Tucker.
653
00:29:05.748 --> 00:29:06.630
Before I begin on the O'Dell argument
654
00:29:06.630 --> 00:29:08.220
I just really do want to point out
655
00:29:08.220 --> 00:29:12.180
because I think the Commonwealth has overstated
656
00:29:12.180 --> 00:29:15.120
the testimony of Miss Wood who was in the home
657
00:29:15.120 --> 00:29:16.323
the three days before.
658
00:29:17.264 --> 00:29:19.530
What she actually said was she vaguely remembered
659
00:29:19.530 --> 00:29:20.363
having a quick,
660
00:29:21.360 --> 00:29:23.340
what looked like maybe he needed to be seen by someone
661
00:29:23.340 --> 00:29:24.930
and also had a vague recollection
662
00:29:24.930 --> 00:29:28.350
of Cassandra's intention to bring him to the doctor
663
00:29:28.350 --> 00:29:31.135
if his condition worsened the next day.
664
00:29:31.135 --> 00:29:32.512
Can I also evolve on that?
Of course.
665
00:29:32.512 --> 00:29:37.512
Did she actually, the child was ill right?
666
00:29:37.890 --> 00:29:41.166
So she doesn't get to spend much time with the.
667
00:29:41.166 --> 00:29:43.408
She's working with the younger.
668
00:29:43.408 --> 00:29:45.120
Right.
Daughter in the family
669
00:29:45.120 --> 00:29:46.710
who has cerebral palsy.
670
00:29:46.710 --> 00:29:48.900
Right.
Not cystic fibrosis
671
00:29:48.900 --> 00:29:49.830
is something I'll get to.
672
00:29:49.830 --> 00:29:52.560
But they were in the same room.
673
00:29:52.560 --> 00:29:55.083
So they're in the same room.
Same room.
674
00:29:55.934 --> 00:29:58.050
But she's not even there for that child.
675
00:29:58.050 --> 00:29:58.883
Right.
676
00:30:00.277 --> 00:30:01.938
Maybe you should go to the doctor in that case?
677
00:30:01.938 --> 00:30:05.173
Well she notices that he has a respiratory cold.
678
00:30:05.173 --> 00:30:07.890
That's how it struck her and she makes a comment
679
00:30:07.890 --> 00:30:08.797
like many of us do.
680
00:30:08.797 --> 00:30:13.200
"Oh do you think he's gonna, should be seen by anyone?"
681
00:30:13.200 --> 00:30:16.043
Now the whole family had been sick.
682
00:30:16.043 --> 00:30:19.500
In fact, the two weeks at that point and had just,
683
00:30:19.500 --> 00:30:22.800
all her early intervention appointments
684
00:30:22.800 --> 00:30:24.420
had been canceled until that day.
685
00:30:24.420 --> 00:30:26.670
The youngest daughter was how old?
686
00:30:26.670 --> 00:30:28.410
Two I think.
And that was the child
687
00:30:28.410 --> 00:30:31.806
with cerebral palsy?
688
00:30:31.806 --> 00:30:33.455
That is the child with cerebral palsy,
689
00:30:33.455 --> 00:30:34.786
yes Your Honor.
690
00:30:34.786 --> 00:30:36.300
And she was told not to bring that.
691
00:30:36.300 --> 00:30:40.541
She had about, really about the same length of illness.
692
00:30:40.541 --> 00:30:41.904
So to return to the issue.
693
00:30:41.904 --> 00:30:42.737
Yes.
That you had divvied up
694
00:30:42.737 --> 00:30:44.400
with counsel.
Yes, yes, yes, yes.
695
00:30:44.400 --> 00:30:45.813
Please.
696
00:30:45.813 --> 00:30:46.763
Before we sidetrack both of you.
697
00:30:49.728 --> 00:30:53.458
The issue of a former trial judge you would say,
698
00:30:53.458 --> 00:30:55.088
boy that's not admissible
699
00:30:55.088 --> 00:30:56.956
and it's overly prejudicial and the probative value
700
00:30:56.956 --> 00:30:57.789
is minimal.
701
00:30:57.789 --> 00:31:00.106
We're in the grand jury stage however
702
00:31:00.106 --> 00:31:03.880
and what concerns me about the motion judge's decision
703
00:31:05.020 --> 00:31:07.705
is he never mention,
704
00:31:07.705 --> 00:31:10.350
instruction the Commonwealth gave the grand jurors
705
00:31:10.350 --> 00:31:11.673
in his analysis.
706
00:31:12.693 --> 00:31:14.110
Is that a problem?
707
00:31:14.110 --> 00:31:16.380
I would say it's not a problem for many reasons.
708
00:31:16.380 --> 00:31:21.380
That instruction just went to the blog posts.
709
00:31:22.806 --> 00:31:25.406
It did not, categories that I hoped to get to today.
710
00:31:26.388 --> 00:31:27.300
Of it,
711
00:31:27.300 --> 00:31:30.240
it gave the jury permission to consider
712
00:31:30.240 --> 00:31:33.840
all of the blog posts as to the nature of a relationship
713
00:31:33.840 --> 00:31:36.360
that was totally removed, and respectfully,
714
00:31:36.360 --> 00:31:39.253
I think highly irrelevant to this situation.
715
00:31:39.253 --> 00:31:41.250
Not just highly prejudicial but highly irrelevant
716
00:31:41.250 --> 00:31:43.500
because it was an older child
717
00:31:43.500 --> 00:31:45.990
with a completely different set of issues
718
00:31:45.990 --> 00:31:48.547
and as the DCF worker said,
719
00:31:48.547 --> 00:31:52.357
"This was about Cassandra venting about shortcomings
720
00:31:52.357 --> 00:31:55.362
"in the foster care system
721
00:31:55.362 --> 00:31:56.550
"and difficulties of fostering."
722
00:31:56.550 --> 00:31:59.841
It did not have anything to do with the care of children?
723
00:31:59.841 --> 00:32:00.674
Really.
That was not presented
724
00:32:00.674 --> 00:32:01.507
to the grand jury.
725
00:32:01.507 --> 00:32:03.708
I agree that most,
726
00:32:03.708 --> 00:32:07.290
a lot of what the officer testifies to seems inappropriate
727
00:32:07.290 --> 00:32:11.250
but some it, I mean, some of it,
728
00:32:11.250 --> 00:32:15.750
particularly regarding the big child seems relevant.
729
00:32:15.750 --> 00:32:20.750
That one, they're angry that they have to go to the doctor.
730
00:32:21.733 --> 00:32:22.783
How burdensome it is.
731
00:32:24.706 --> 00:32:26.006
That this child had strep.
732
00:32:27.730 --> 00:32:31.560
That it's, meaning they must have got some discussion
733
00:32:31.560 --> 00:32:33.600
about what strep can mean.
734
00:32:33.600 --> 00:32:36.993
It just, it doesn't seem, that part seems relevant.
735
00:32:37.958 --> 00:32:40.650
It may have been layered on with a bunch of stuff
736
00:32:40.650 --> 00:32:44.820
that's inflammatory but that part seems quite relevant
737
00:32:44.820 --> 00:32:45.843
when the issue is,
738
00:32:46.690 --> 00:32:49.751
"Did they not go to the doctor for the right reasons
739
00:32:49.751 --> 00:32:51.655
"or the wrong reasons?"
740
00:32:51.655 --> 00:32:54.387
Or reckless reasons or negligent reasons.
741
00:32:54.387 --> 00:32:56.398
I would like to respond to Your Honor
742
00:32:56.398 --> 00:32:57.877
and then get back to Judge,
743
00:32:57.877 --> 00:32:59.310
and I would like to finish also.
744
00:32:59.310 --> 00:33:00.599
And then, but.
I don't want to cut
745
00:33:00.599 --> 00:33:01.498
Justice Gaziano off.
746
00:33:01.498 --> 00:33:04.740
No, I will get to everyone.
747
00:33:04.740 --> 00:33:05.573
Thank you.
748
00:33:06.900 --> 00:33:10.770
So this was a child who was much older
749
00:33:10.770 --> 00:33:13.230
than the 10-month-old we're talking about here.
750
00:33:13.230 --> 00:33:18.230
The illness that this 10-month-old had was very rare
751
00:33:18.310 --> 00:33:22.080
and I can't tell you, like one in how many thousands.
752
00:33:22.080 --> 00:33:24.000
Even a doctor wouldn't suspect
753
00:33:24.000 --> 00:33:26.100
that a child would have this strep A
754
00:33:26.100 --> 00:33:28.170
and they didn't have any idea
755
00:33:28.170 --> 00:33:29.650
that their other child had it
756
00:33:30.582 --> 00:33:33.990
until after unfortunately, the death of this child.
757
00:33:33.990 --> 00:33:38.990
So all of this about Big D was about venting with DCF.
758
00:33:40.107 --> 00:33:42.000
They didn't apparently give a Mass Health Card.
759
00:33:42.000 --> 00:33:44.880
We all know it's impossible to go to the emergency room
760
00:33:44.880 --> 00:33:46.715
with a sick child.
761
00:33:46.715 --> 00:33:48.549
So that's not something you favor.
762
00:33:48.549 --> 00:33:49.895
In this case, Big D.
763
00:33:49.895 --> 00:33:51.093
Again?
764
00:33:52.347 --> 00:33:53.951
You don't go to the emergency room?
765
00:33:53.951 --> 00:33:55.200
A lot of us go to the emergency room.
766
00:33:55.200 --> 00:33:56.670
Unless someone's really sick,
767
00:33:56.670 --> 00:33:58.470
do you want to spend all night in the emergency room?
768
00:33:58.470 --> 00:34:00.244
But that's what her,
769
00:34:00.244 --> 00:34:02.284
what that venting was about was.
770
00:34:02.284 --> 00:34:03.867
That's the issue.
771
00:34:03.867 --> 00:34:05.289
I wish Big D could've told us sooner
772
00:34:05.289 --> 00:34:07.626
so that we could take him to a routine appointment.
773
00:34:07.626 --> 00:34:11.190
As to that, as to the instruction
774
00:34:11.190 --> 00:34:14.216
and I'm happy to return to this as well.
775
00:34:14.216 --> 00:34:15.258
No, no go to Justice Gaziano.
776
00:34:15.258 --> 00:34:16.344
As the instruction,
777
00:34:16.344 --> 00:34:17.708
not only was it only about the blog posts.
778
00:34:17.708 --> 00:34:19.320
Not only did it give, unlike the other cases
779
00:34:19.320 --> 00:34:21.660
that have found instructions to be effective,
780
00:34:21.660 --> 00:34:25.920
permission to the jury to consider all of the information,
781
00:34:25.920 --> 00:34:27.210
it was given,
782
00:34:27.210 --> 00:34:30.210
even though there were, at least 15 pages devoted
783
00:34:30.210 --> 00:34:31.560
just to the blog posts.
784
00:34:31.560 --> 00:34:33.540
It was not given at the beginning of that.
785
00:34:33.540 --> 00:34:35.460
It wasn't even given at the end of that.
786
00:34:35.460 --> 00:34:39.885
It was given after the prosecution,
787
00:34:39.885 --> 00:34:43.015
after the jury went to lunch.
788
00:34:43.015 --> 00:34:45.427
I had seen in your brief when you said it was given up.
789
00:34:45.427 --> 00:34:46.348
I'm sorry.
No, when you said
790
00:34:46.348 --> 00:34:47.320
it was given after lunch.
791
00:34:47.320 --> 00:34:48.540
I think it was,
792
00:34:48.540 --> 00:34:51.090
because we've never said in.
No.
793
00:34:51.090 --> 00:34:52.560
Any report decision,
794
00:34:52.560 --> 00:34:55.320
forget it, a limit instruction was given after lunch
795
00:34:55.320 --> 00:34:58.531
or if it was given at the end versus the beginning, so.
796
00:34:58.531 --> 00:34:59.435
I agree Your Honor
797
00:34:59.435 --> 00:35:01.091
but it was not given at the beginning either
798
00:35:01.091 --> 00:35:02.311
which is usually.
799
00:35:02.311 --> 00:35:03.248
In your well-done brief,
800
00:35:03.248 --> 00:35:04.081
I didn't really get that part of it
801
00:35:04.081 --> 00:35:05.160
or agree with that part of it.
802
00:35:05.160 --> 00:35:06.360
It wasn't given at the beginning
803
00:35:06.360 --> 00:35:10.260
but I don't really think that any instruction,
804
00:35:10.260 --> 00:35:11.280
on top of all of that,
805
00:35:11.280 --> 00:35:13.500
I don't think any instruction would've been effective here
806
00:35:13.500 --> 00:35:16.740
because the Commonwealth engaged in the pervasive use
807
00:35:16.740 --> 00:35:18.270
of false or misleading evidence.
808
00:35:18.270 --> 00:35:20.610
Really to depict a wildly inaccurate
809
00:35:20.610 --> 00:35:22.350
picture of these people.
810
00:35:22.350 --> 00:35:23.763
We're in Mayfield now?
811
00:35:24.631 --> 00:35:25.560
Yes, and I would say the judge
812
00:35:25.560 --> 00:35:27.210
clearly did find the third May.
813
00:35:27.210 --> 00:35:32.210
From this, evidence undoubtedly tended to influence
814
00:35:32.304 --> 00:35:34.740
the lens through which the grand jury
815
00:35:34.740 --> 00:35:37.320
judged the Tucker's conduct and choices
816
00:35:37.320 --> 00:35:39.570
with respect to the child's illness.
817
00:35:39.570 --> 00:35:43.743
His decision was about Mayfield.
818
00:35:44.676 --> 00:35:47.190
So I don't, I disagree with the.
819
00:35:47.190 --> 00:35:49.920
The combination and I would like to run through briefly
820
00:35:49.920 --> 00:35:52.413
and if I may,
821
00:35:52.413 --> 00:35:56.725
what led to this gross distortion
822
00:35:56.725 --> 00:36:00.704
of the Tuckers is a kind of neglectful, uncaring,
823
00:36:00.704 --> 00:36:02.760
foster parents who wouldn't want to
824
00:36:02.760 --> 00:36:04.283
take children to the doctor
825
00:36:05.310 --> 00:36:07.020
and who would be callously indifferent
826
00:36:07.020 --> 00:36:09.480
to a child's medical needs and that does start
827
00:36:09.480 --> 00:36:11.760
with the financial information and I won't belabor it
828
00:36:11.760 --> 00:36:13.950
because I believe the Court recognizes
829
00:36:13.950 --> 00:36:17.850
that this information about what they received in payment
830
00:36:17.850 --> 00:36:21.338
not only for the care of the child
831
00:36:21.338 --> 00:36:23.610
but for their adopted children was you know,
832
00:36:23.610 --> 00:36:26.457
emphasized by the grand jury.
833
00:36:26.457 --> 00:36:27.547
It was presented to them.
834
00:36:27.547 --> 00:36:29.100
It was in testimony, emphasized to them.
835
00:36:29.100 --> 00:36:32.944
In terms of the blog posts,
836
00:36:32.944 --> 00:36:36.707
I really, you know, the language that they used
837
00:36:36.707 --> 00:36:37.540
was very inflammatory
838
00:36:37.540 --> 00:36:39.570
and it was introduced by the District Attorney
839
00:36:39.570 --> 00:36:41.970
as meaningful because again,
840
00:36:41.970 --> 00:36:44.370
the Tuckers saw this as a job for money
841
00:36:44.370 --> 00:36:46.415
and didn't like to take children
842
00:36:46.415 --> 00:36:47.769
to routine medical care appointments
843
00:36:47.769 --> 00:36:51.660
which later they provided other information
844
00:36:51.660 --> 00:36:53.850
about that was deceptive, I will get to.
845
00:36:53.850 --> 00:36:58.230
In terms of the judge's findings,
846
00:36:58.230 --> 00:37:01.680
they stated falsely that the Tuckers had been disciplined.
847
00:37:01.680 --> 00:37:03.360
That was false.
848
00:37:03.360 --> 00:37:06.900
And in fact, they never told the grand jury
849
00:37:06.900 --> 00:37:09.900
what the social workers actually had to say about them
850
00:37:09.900 --> 00:37:12.487
which was typically, oh let's see.
851
00:37:12.487 --> 00:37:14.947
"Matthew and Cassandra are probably honestly
852
00:37:14.947 --> 00:37:18.295
"two of the most conscientious, engaging,
853
00:37:18.295 --> 00:37:19.530
"forthcoming foster parents."
854
00:37:19.530 --> 00:37:21.143
That was buried in the written documents.
855
00:37:22.378 --> 00:37:25.894
That is on a DVD, one of four DVD.
856
00:37:25.894 --> 00:37:27.576
Social workers and then there were other DVDs,
857
00:37:27.576 --> 00:37:28.410
there were 2000 pages.
858
00:37:28.410 --> 00:37:30.779
I take your quote to Justice's appeal to a decision.
859
00:37:30.779 --> 00:37:35.037
I'm sorry, I don't think that's a satisfactory excuse.
860
00:37:35.037 --> 00:37:36.360
That was hidden and does bring to mind
861
00:37:36.360 --> 00:37:41.360
a very nice comment made in another case that the,
862
00:37:42.786 --> 00:37:44.246
and I don't.
863
00:37:44.246 --> 00:37:45.079
But the Commonwealth can't hide the evidence
864
00:37:45.079 --> 00:37:47.559
and expect the grand jury to find it.
865
00:37:47.559 --> 00:37:49.427
That was a Justice Heinz quote?
866
00:37:49.427 --> 00:37:50.350
I'm sorry?
That's
867
00:37:50.350 --> 00:37:51.280
Justice Heinz's quote?
868
00:37:51.280 --> 00:37:53.003
Yes, Justice Heinz, it's a wonderful quote.
869
00:37:54.073 --> 00:37:57.219
So, and they,
870
00:37:57.219 --> 00:38:00.307
this kind of, and it's clear by the way
871
00:38:00.307 --> 00:38:02.190
that the jury was affected by
872
00:38:02.190 --> 00:38:04.350
what the judge complained about
873
00:38:04.350 --> 00:38:06.540
because they wanted to know you know,
874
00:38:06.540 --> 00:38:09.420
what happened to Big D?
875
00:38:09.420 --> 00:38:12.870
Even the Commonwealth conceded that the exchange about that
876
00:38:12.870 --> 00:38:14.820
would have led the grand jury to believe
877
00:38:14.820 --> 00:38:16.770
that he was removed for substandard care
878
00:38:16.770 --> 00:38:19.560
and the record indicates otherwise.
879
00:38:19.560 --> 00:38:23.130
As to the statement of the daughter,
880
00:38:23.130 --> 00:38:26.370
the true statement of their daughter
881
00:38:26.370 --> 00:38:31.370
who was described as being 12 was that, let's see.
882
00:38:32.010 --> 00:38:37.010
He was, he was asked by the District Attorney,
883
00:38:37.048 --> 00:38:39.390
did he watch this video of the statement
884
00:38:39.390 --> 00:38:41.583
and what did the daughter have to say?
885
00:38:42.770 --> 00:38:43.603
And he said that she said
886
00:38:43.603 --> 00:38:46.143
he was struggling to breathe the day before he died.
887
00:38:47.592 --> 00:38:49.274
It actually, what she said
888
00:38:49.274 --> 00:38:50.348
that he was coughing a little bit
889
00:38:50.348 --> 00:38:52.079
and having a little trouble breathing,
890
00:38:52.079 --> 00:38:55.590
that he was getting better, seemed fine and pretty cheerful.
891
00:38:55.590 --> 00:38:57.840
But she never said he was struggling to breathe
892
00:38:57.840 --> 00:39:01.770
and this is, the juror's comment in response to this
893
00:39:01.770 --> 00:39:03.093
is so significant.
894
00:39:04.278 --> 00:39:06.103
"I'm struck that their 12-year-old daughter
895
00:39:06.103 --> 00:39:09.633
"recognizes that the child is struggling to breathe
896
00:39:09.633 --> 00:39:11.407
"and yet the father states that they believed
897
00:39:11.407 --> 00:39:13.200
"that he was going to be okay."
898
00:39:13.200 --> 00:39:15.720
And then the juror asked the trooper
899
00:39:15.720 --> 00:39:17.760
whether you believed him.
900
00:39:17.760 --> 00:39:19.470
So it's clear from all of this
901
00:39:19.470 --> 00:39:22.421
that the jury was,
902
00:39:22.421 --> 00:39:26.070
the credibility of the Tuckers was undermined
903
00:39:26.070 --> 00:39:28.920
by this false testimony and their failure
904
00:39:28.920 --> 00:39:30.603
to indicate the whole statement.
905
00:39:31.594 --> 00:39:35.760
Which supports the, their statements and by the way,
906
00:39:35.760 --> 00:39:38.400
this misstatement
907
00:39:38.400 --> 00:39:42.030
and omission immediately followed Matthew's statement
908
00:39:42.030 --> 00:39:44.640
which immediately followed Cassandra's statement.
909
00:39:44.640 --> 00:39:45.900
This basically said, you know,
910
00:39:45.900 --> 00:39:48.559
when they said that he was getting better, oh I.
911
00:39:48.559 --> 00:39:52.260
The synergistic effect
912
00:39:52.260 --> 00:39:55.713
of an O'Dell and a Mayfield violation.
913
00:39:56.624 --> 00:39:57.457
Absolutely Your Honor.
914
00:39:57.457 --> 00:39:59.253
Can I ask you something?
Yes.
915
00:39:59.253 --> 00:40:02.133
To parse it out a little bit.
916
00:40:03.479 --> 00:40:04.920
If we agree with you as far as the fairness
917
00:40:04.920 --> 00:40:06.580
of the grand jury presentation
918
00:40:07.455 --> 00:40:08.700
as it relates to call it,
919
00:40:08.700 --> 00:40:11.640
bad act evidence or extraneous information.
920
00:40:11.640 --> 00:40:13.650
But we disagree with you
921
00:40:13.650 --> 00:40:17.673
as far as the duty of care part of it.
922
00:40:18.793 --> 00:40:19.626
It's a remedy,
923
00:40:20.840 --> 00:40:23.760
motion to dismiss without prejudice is allowed
924
00:40:23.760 --> 00:40:27.513
and they can re-indict it in the proper manner.
925
00:40:29.927 --> 00:40:32.056
Dismissal without prejudice could,
926
00:40:32.056 --> 00:40:34.374
the Commonwealth can certainly re-indict.
927
00:40:34.374 --> 00:40:36.370
I'm not sure I understood what you?
928
00:40:36.370 --> 00:40:37.620
Right, so if we find the evidence
929
00:40:37.620 --> 00:40:39.714
is insufficient of course.
930
00:40:39.714 --> 00:40:40.662
Yep.
That's a different story.
931
00:40:40.662 --> 00:40:41.759
But if we find the evidence sufficient.
932
00:40:41.759 --> 00:40:44.370
Yes.
We agree with
933
00:40:44.370 --> 00:40:46.290
part two of your argument.
Yes.
934
00:40:46.290 --> 00:40:47.413
The remedy is to?
935
00:40:48.490 --> 00:40:50.460
The remedy is to dismiss without prejudice
936
00:40:50.460 --> 00:40:51.360
and the Commonwealth
937
00:40:51.360 --> 00:40:53.299
would have to make a decision.
And then what happens?
938
00:40:53.299 --> 00:40:54.810
And that is what the judge did here
939
00:40:54.810 --> 00:40:58.473
and that's what we would be asking this court to do.
940
00:40:59.360 --> 00:41:02.670
If I may, I just want to get into,
941
00:41:02.670 --> 00:41:04.433
because this had come up.
942
00:41:04.433 --> 00:41:06.275
Is that true regardless of?
943
00:41:06.275 --> 00:41:10.440
Even if it were the, both prongs were lacking
944
00:41:10.440 --> 00:41:13.306
that they didn't present sufficient evidence?
945
00:41:13.306 --> 00:41:15.690
That would be a dismissal with prejudice?
946
00:41:15.690 --> 00:41:16.523
It's without.
947
00:41:17.393 --> 00:41:20.034
We don't know what other evidence they have.
948
00:41:20.034 --> 00:41:21.516
So it'd be without prejudice.
949
00:41:21.516 --> 00:41:23.418
Yeah, the judge dismissed without prejudice.
950
00:41:23.418 --> 00:41:25.170
So the Commonwealth could have just
951
00:41:25.170 --> 00:41:30.170
tried to re-indict without having appealed the decision.
952
00:41:31.234 --> 00:41:32.067
Yes, yes absolutely.
953
00:41:32.067 --> 00:41:33.720
Let me just mention,
954
00:41:33.720 --> 00:41:37.530
this theme about not wanting to take children
955
00:41:37.530 --> 00:41:41.730
for routine medical appointment is really a gross distortion
956
00:41:41.730 --> 00:41:44.180
and it was created by the Commonwealth.
957
00:41:44.180 --> 00:41:45.120
Of course there's evidence in the record
958
00:41:45.120 --> 00:41:48.900
about this youngest child who was a foster child who became,
959
00:41:48.900 --> 00:41:53.190
who was adopted and has 23 medical people.
960
00:41:53.190 --> 00:41:55.277
But that said, you know,
961
00:41:55.277 --> 00:41:57.510
the Commonwealth went out of its way
962
00:41:57.510 --> 00:42:00.360
to suggest that the Tuckers were responsible
963
00:42:00.360 --> 00:42:03.120
for a December 18th medical appointment
964
00:42:03.120 --> 00:42:05.610
which might not seem important
965
00:42:05.610 --> 00:42:08.640
except that it was a medical following one he had before
966
00:42:08.640 --> 00:42:10.170
which was taken to DCF.
967
00:42:10.170 --> 00:42:13.230
And the Commonwealth set up a scenario
968
00:42:13.230 --> 00:42:16.120
where they read from a manual that said
969
00:42:16.983 --> 00:42:17.850
foster parents are responsible for making
970
00:42:17.850 --> 00:42:21.528
and keeping these appointments.
971
00:42:21.528 --> 00:42:23.433
Was the child taken?
972
00:42:24.901 --> 00:42:26.857
Grand jurors were asking,
973
00:42:26.857 --> 00:42:28.537
"Did the Tuckers ever take the child
974
00:42:28.537 --> 00:42:32.077
"to a medical appointment after this December 18th
975
00:42:32.077 --> 00:42:35.760
"and before the two-week illness?"
976
00:42:35.760 --> 00:42:38.400
And in fact, what they never told the grand jury
977
00:42:38.400 --> 00:42:41.160
is what the social workers had told them at length
978
00:42:41.160 --> 00:42:43.260
which is there isn't a set policy
979
00:42:43.260 --> 00:42:45.090
between DCF and foster parents
980
00:42:45.090 --> 00:42:48.570
as to who would take a child for a routine appointment.
981
00:42:48.570 --> 00:42:49.830
Cassandra indicated in her statement
982
00:42:49.830 --> 00:42:51.600
that she believed the DCF worker
983
00:42:51.600 --> 00:42:53.000
was going to take him to the appointment
984
00:42:53.000 --> 00:42:54.903
as she had the prior appointment.
985
00:42:55.912 --> 00:42:59.142
But instead, they left that out.
986
00:42:59.142 --> 00:43:00.150
They also did not tell the grand jury
987
00:43:00.150 --> 00:43:03.060
that in fact two days after December 18th,
988
00:43:03.060 --> 00:43:06.187
Cassandra sent an email to all the DCF workers saying,
989
00:43:06.187 --> 00:43:08.460
"Hey what happened to that appointment?"
990
00:43:08.460 --> 00:43:10.777
And someone, a supervisor responds saying,
991
00:43:10.777 --> 00:43:12.270
"We'll look into it."
992
00:43:12.270 --> 00:43:13.863
And they never got back to her.
993
00:43:14.820 --> 00:43:16.890
Can I ask a followup question
994
00:43:16.890 --> 00:43:18.990
with what Justice Gaziano just pointed out.
995
00:43:18.990 --> 00:43:21.392
Yes.
Are there good cases,
996
00:43:21.392 --> 00:43:25.050
say are there good cases that we can look at
997
00:43:25.050 --> 00:43:28.560
where the sufficiency thing is clear
998
00:43:28.560 --> 00:43:31.930
but the misconduct thing requires
999
00:43:33.930 --> 00:43:36.273
a dismissal without prejudice?
1000
00:43:37.824 --> 00:43:38.801
Are there a couple of good cases
1001
00:43:38.801 --> 00:43:41.820
where you have parallels where there's plenty of evidence
1002
00:43:41.820 --> 00:43:43.833
but at the same time,
1003
00:43:43.833 --> 00:43:46.563
what the Commonwealth did requires a do-over?
1004
00:43:48.123 --> 00:43:50.212
So in Washington W. which ended up
1005
00:43:50.212 --> 00:43:52.710
being dismissed with prejudice for other reasons.
1006
00:43:52.710 --> 00:43:56.730
Justice Gants said that there was probable cause,
1007
00:43:56.730 --> 00:43:58.320
there was sufficient evidence
1008
00:43:58.320 --> 00:44:01.830
but the grand jury had been tainted by,
1009
00:44:01.830 --> 00:44:06.023
in that case an omission that went directly to the case.
1010
00:44:06.023 --> 00:44:08.490
The Washington W is a good case for us to look at?
1011
00:44:08.490 --> 00:44:10.667
Yes, I think so Your Honor.
1012
00:44:10.667 --> 00:44:13.590
There are, Mister Daniels and I
1013
00:44:13.590 --> 00:44:16.950
also provide cases about probity,
1014
00:44:16.950 --> 00:44:20.910
prejudicial more than probity but this is,
1015
00:44:20.910 --> 00:44:23.790
I would have to say it's a very pervasive use
1016
00:44:23.790 --> 00:44:26.880
of both misrepresentation and omission
1017
00:44:26.880 --> 00:44:29.430
to paint these folks in a particular way
1018
00:44:29.430 --> 00:44:32.330
that really would have affected the grand jury's decision.
1019
00:44:33.170 --> 00:44:35.250
I just want to make a couple more points
1020
00:44:35.250 --> 00:44:36.972
if that's all right.
1021
00:44:36.972 --> 00:44:41.309
That although and as I mentioned about the cystic fibrosis,
1022
00:44:41.309 --> 00:44:46.309
a juror misunderstood and incorrect evidence
1023
00:44:46.500 --> 00:44:50.991
was elicited from this same early.
1024
00:44:50.991 --> 00:44:55.470
Suggesting that this youngest child had cystic fibrosis.
1025
00:44:55.470 --> 00:44:57.951
She doesn't, she has cerebral palsy.
1026
00:44:57.951 --> 00:44:59.910
The Commonwealth knew that and ordinarily,
1027
00:44:59.910 --> 00:45:02.190
you know, it was not introduced by the Commonwealth
1028
00:45:02.190 --> 00:45:04.230
but the Commonwealth has an obligation
1029
00:45:04.230 --> 00:45:06.900
not to allow false evidence to go uncorrected
1030
00:45:06.900 --> 00:45:08.731
and I have to say.
1031
00:45:08.731 --> 00:45:12.270
Wait, can I interrupt for a minute counsel?
1032
00:45:12.270 --> 00:45:13.860
Is this a treat, wasn't it?
1033
00:45:13.860 --> 00:45:16.590
Young girl is being treated with a nebulizer,
1034
00:45:16.590 --> 00:45:19.710
so regardless of whether it's cerebral palsy
1035
00:45:19.710 --> 00:45:23.551
or cystic fibrosis, she's being treated with a nebulizer
1036
00:45:23.551 --> 00:45:26.350
for a lung condition or a breathing condition
1037
00:45:27.203 --> 00:45:29.013
like the other child was?
1038
00:45:30.332 --> 00:45:34.180
Really came up when the juror asked this witness,
1039
00:45:35.220 --> 00:45:37.625
didn't the older child?
1040
00:45:37.625 --> 00:45:40.514
So she was very confused, have cystic fibrosis?
1041
00:45:40.514 --> 00:45:44.076
And the reason this becomes important is,
1042
00:45:44.076 --> 00:45:45.517
this grand juror says,
1043
00:45:45.517 --> 00:45:48.617
"So that one could assume that the foster parents
1044
00:45:48.617 --> 00:45:51.367
"would have some understanding of a respiratory ailment,
1045
00:45:51.367 --> 00:45:53.217
"toward like the sound of one?"
1046
00:45:54.545 --> 00:45:57.512
So this may go back to the video
1047
00:45:57.512 --> 00:45:59.550
that the Justices were talking about.
1048
00:45:59.550 --> 00:46:04.550
That's a very obvious example of the jury being prejudiced.
1049
00:46:06.356 --> 00:46:09.083
But also counsel,
1050
00:46:09.083 --> 00:46:12.570
isn't that also just evidence whether it's prejudicial,
1051
00:46:12.570 --> 00:46:15.210
the question's whether it's unfairly prejudicial.
1052
00:46:15.210 --> 00:46:17.400
The grand jurors could look at that video
1053
00:46:17.400 --> 00:46:19.740
and come to their own conclusion.
1054
00:46:19.740 --> 00:46:24.740
Can you also address how the party's misrepresentations
1055
00:46:24.840 --> 00:46:27.999
to the police affect this case?
1056
00:46:27.999 --> 00:46:32.280
In that both the foster father and the foster mother say
1057
00:46:32.280 --> 00:46:34.413
that they backed,
1058
00:46:34.413 --> 00:46:37.380
that the foster mother put the child to bed
1059
00:46:37.380 --> 00:46:40.080
when the video clearly shows that's not the case.
1060
00:46:41.145 --> 00:46:44.423
How do you handle that kind of evidence in this context?
1061
00:46:44.423 --> 00:46:46.170
Well I would say as to a misstatement made
1062
00:46:46.170 --> 00:46:48.690
in the aftermath of this kind of trauma,
1063
00:46:48.690 --> 00:46:53.473
it does not go to what their state of mind or.
1064
00:46:53.473 --> 00:46:55.230
But this was more than a misstatement however.
1065
00:46:55.230 --> 00:46:57.930
This was, when you read those statements
1066
00:46:57.930 --> 00:47:00.900
you see that the foster father and the foster mother
1067
00:47:00.900 --> 00:47:03.480
are saying the exact same thing
1068
00:47:03.480 --> 00:47:08.480
and going on about how, what great caretakers they are
1069
00:47:08.520 --> 00:47:09.909
and how wonderful,
1070
00:47:09.909 --> 00:47:13.140
how much they understand the system.
1071
00:47:13.140 --> 00:47:15.300
It doesn't seem like a misstatement
1072
00:47:15.300 --> 00:47:16.850
in the context of reading that.
1073
00:47:19.227 --> 00:47:22.763
Well Your Honor, I would disagree.
1074
00:47:25.290 --> 00:47:27.570
I think that you know,
1075
00:47:27.570 --> 00:47:31.170
their assessment of what occurred is what they recalled
1076
00:47:31.170 --> 00:47:35.250
but in terms of the putting him down for,
1077
00:47:35.250 --> 00:47:38.130
at night, I think that Cassandra
1078
00:47:38.130 --> 00:47:41.010
could have been confused with a nap.
1079
00:47:41.010 --> 00:47:44.790
But I would certainly asset that this is not,
1080
00:47:44.790 --> 00:47:49.660
does not go to whether they were aware at the time
1081
00:47:50.970 --> 00:47:52.950
that he faced you know,
1082
00:47:52.950 --> 00:47:55.590
that he had a deadly illness.
1083
00:47:55.590 --> 00:47:57.510
Can I get you to just say the last,
1084
00:47:57.510 --> 00:48:00.693
the second thing you wanted to say very quickly?
1085
00:48:03.690 --> 00:48:07.380
Let's, I think that I'm probably,
1086
00:48:07.380 --> 00:48:09.540
unless there are questions and I apologize.
1087
00:48:09.540 --> 00:48:10.590
I may have forgotten.