-: SJC-13408, Commonwealth v. Cassandra L. Barlow-Tucker
and SJC-13409, Commonwealth v. Matthew J.
-: So we'll start with Attorney Zalnasky.
-: Good morning Your Honors, Jennifer Zalnasky.
Special Assistant District Attorney
representing the Commonwealth this morning.
There's no doubt that this is a tragic case.
It's always difficult to hold a parent
or a caregiver responsible for the death of a child.
However, emotion has to take over
and that criminal charges should be dismissed.
Here, the motion judge erred by dismissing these indictments
under both McCarthy and O'Dell grounds.
There was sufficient evidence
to support these indictments
for reckless endangerment of a child.
This case is not about reasonable doubt
and it's not about guilt.
-: Can I ask you about the legal standard for a second?
In his written opinion,
the motion judge sets out the McCarthy standard.
Two of our cases,
it says it's between
one and the other. -: Yes.
-: And then the Commonwealth faults him by saying,
"Well those cases are sufficiency trial cases,
"they're not grand jury cases."
But he lays out the appropriate McCarthy standard.
How else are these facts other than to cite our case law?
-: And that's part of the problem and challenge
in this case Your Honor.
That he does lay out the proper McCarthy and O'Dell as well
but then his analysis,
he starts go into more of a sufficiency of the evidence.
It almost reads like he's addressing
for a motion for it to trial. -: I don't know about that.
He goes into sufficiency as,
I mean, the bottom line is, what did these parents,
what could they have reasonably have known
as far as the distress of the child?
Was staying the course the right call?
Think the facts at issue are relatively simple.
It's hard but it's simple to state.
I don't get what the judge was supposed to do
other than to talk
about sufficiency on those particular parameters.
I'm surprised when you're trying to say
he applied the wrong standard.
-: Because I think. -: I'd say he was wrong
but applying the wrong standard I think is way off.
-: Well I think because he does the wrong analysis,
his conclusion is also wrong.
Frank: How's his analysis wrong?
-: Well, I think that he,
in trial, or a motion for a directed verdict standard
in which he really starts parsing apart
the evidence that was presented to the grand jury.
-: Right. -: And he starts weighing.
-: Stop there, how else are you supposed to find
the sufficiency of evidence
without parsing the evidence presented to the grand jury?
-: Well there are cases about grand jury indictments
that discuss that.
It needs to be reviewed in the favor
of support of the indictment.
-: And that's loose? -: Which I don't think he does.
-: That's what he says.
You're saying he didn't do what he said he did?
I mean you can quibble, of course you can
about how we apply.
-: Sure. -: The McCarthy standard
but to say he didn't use the McCarthy standard
I think is really far-fetched.
-: I think in my brief I outlined
that he certainly identifies it
but then I think he takes his analysis too far
and he does apply,
he makes the statement that this case
is somewhere between Gallison and Masood.
In one of those cases,
I'm blanking on which one of the two
but this court also made note that in that case,
they weren't addressing the grand jury indictments
but in one of them
they say there was enough evidence
for the indictments to stand.
So they were going back to say some of these cases
might make it through the indictment process
but because they're difficult cases they may not make,
acknowledge that as well.
That that may be the case here.
The evidence I think is a close call
but I think for probable cause,
in the favor of allowing the indictment,
the review of this evidence
should've been on the other side.
By the judge.
It seems to me that he's trying to find ways
to show that these defendants didn't do
the things that the Commonwealth presented as evidence
that they did.
So to me,
I get that it's a very fine point Your Honor.
But I think that that's part
and that there was sufficient evidence
when you look at it in favor of the allowance
of the indictment.
In particular I think these,
these are caregivers who had a duty to act.
And they did so in a wanton and reckless way
and when you look at the evidence from the medical examiner
and from the pediatrician
and also from the speech pathologist
before the child passed away,
she makes a comment to the defendant
that she thinks that child needs to go to a doctor.
Well the motion judge turns that around
and suggests that because she didn't say it was urgent,
it didn't meet the standard.
But he's turning that evidence around.
Similarly, when he is weighing out some of the.
-: Why do you say that's not what happened?
-: Because, because there was no question
about whether or not, nobody asked her
if she felt this was emergency room situation
or whether it was urgent but she did say that she,
and she described what she saw.
She saw a prominent and persistent cough.
That he was having difficulty breathing
and that he looked ill
and in her testimony at grand jury,
that she felt that that child needed to go to the doctor.
That's what needed to happen here.
That's the duty and that's where the failure was.
-: Can I ask you, first of all,
I just want to,
you agree that if you're going to apply
a probable cause and you're going to apply
a McCarthy standard,
you still have to go through all the elements
and examine all the elements in order to determine,
not whether it's a required finding
but at in that when the judge goes through carefully,
he is applying,
there's no reason to think he isn't applying to McCarthy.
There's nothing about going through the elements
that suggest he's not applying McCarthy.
-: Oh no, of course he has to go through the elements
and certainly review the evidence.
I think his view of the evidence
is not in favor of the indictment
which is what the standard should be on a McCarthy notion.
-: Is there any difference between the,
the Cassandra and Matthew.
Is there any difference for instance,
when Matthew walks by the crib in the video
that differentiates the two?
-: I think, yes I think there's some difference
on the facts.
I certainly think that that is a key part of this case
as it relates to Matthew.
That you can see him on the video
walk right past the crib
where you can hear the child struggling with every breath
and he doesn't look, he doesn't go over to see if he's okay.
He just goes in, puts the other child in the bed
and then walks out.
I think in that moment in time,
that shows his reckless disregard
for how ill the baby was at that point in time.
I think with Cassandra,
you know we don't have that kind of video view.
But I think if you,
if there's a couple of things.
The young child that puts the baby in the crib,
you can actually hear the breathing of the baby
and the coughing and the choking
just before they come in the room.
So it wasn't like it just started
and I think reasonable people can agree
that that sound and that struggle
and that choking was happening
before the young child put the baby away.
Or put the baby in the crib.
Before that happens in the, in another place in the house.
So I think at that point in time,
Cassandra would've heard it, heard the sound.
-: Isn't it more important
that the child's been sick for two weeks right?
In the light most favorable to you right.
The child seeks,
when do the DCF worker, how many days before
did she say the child should go to the doctor?
-: It's not a DCF worker.
It's a early intervention,
speech pathologist. -: Yeah.
-: She is there on February the 14th
and says that the child needs to go to the doctor.
-: That's a week?
-: That's about three days. -: Three days.
-: Three days, and there is also evidence
from both defendants' statements
that the baby had been sick for about two weeks.
The first week he seems to be mildly sick,
has a low fever.
All the kids in their house go through this
as we all know happens except this one stays sicker, longer
and I think that, when Justice Kafker,
when you're talking about the two time period,
that's crucial. -: Just so I understand.
So the testimony on the,
it's hard to measure recklessness in a second right?
-: Sure. -: The issue is,
should they have called the doctor
or should they have taken the child to the doctor?
And you know, and so the kid's been sick for two weeks
and he's been showing a fever off and on
during that entire two weeks?
Again, in the light most favorable to you.
I understand.
-: Sure. -: Yeah.
-: So the evidence was during the first week of his illness,
he was no higher than 100
and then in the second week of his illness
he goes over 100 with his fever, as high as 102.
That's what Matthew's statement indicates.
So somewhere around that time
is probably when they should've been on notice.
Then the other children and required medical care.
In addition, in her statement to the police,
Cassandra indicates that she is aware that he has,
and these are her words, compromised lungs.
Because he had been sick earlier in December and yet,
when he symptoms, there is no call to a doctor.
Scott: Compromised lung is a strong right?
The doctor Sumar thinks that it may be a dog allergy right?
-: Absolutely. -: Right, okay.
-: Yeah the earlier part
and then in December he goes in
and he has some kind of congestion
and he gets for two days.
I agree that that is a strong word,
but that's the word that she uses
when she's telling the police about what,
she tells them that she called DCF to take him to the doctor
but we know that there's no evidence
that that actually happened.
-: Can I ask about some of the extraneous stuff?
-: Sure. -: So,
the judge is focused on two different aspects.
One, is the evidence sufficient?
Two, is the evidence, the way it's presented
and with one of the kids,
I can't remember, the big kid.
Whatever he's, I don't want to use his exact name.
-: Sure. -: But,
so there's some suggestion that at least Cassandra
makes negative comments about taking kids to the doctor.
-: Right. -: In this blog right?
That it's burdensome.
So does that?
That seems relevant right?
Some of the other stuff seems irrelevant.
Whether they got paid after the child died
seems really irrelevant. -: Sure.
-: And inflammative.
-: Yeah, in retrospect it does. -: The other part.
-: Yeah.
-: Well, even then it should be.
But that part is important right?
That you know, we're trying to measure
why they didn't go to the doctor right?
-: Yes, I outline in my brief
and I think it's an important point.
The judge overlooks it
because he's so focused on this potential prejudice
but those posts and the prosecutor says this,
they're put in for state of mind.
And it goes to the wanton and recklessness.
Frank: Can I find an answer?
The fact that they? -: No I'm sorry.
The other part about the other child.
-: Marginally relevant is what happens
with the kid named Big D and whether or not you sought care.
Right, I'll give you that.
But the other stuff is incredibly inflammatory
and not relevant at all.
How probative of the duty of care is it bayed
once the child passed away?
-: I don't think it was,
I agree with you that looking back it's problematic.
At the time it was to set up
that there was a duty of care.
-: Oh come on, that's not an issue.
That's just. -: I understand
what you're saying Your Honor
but I don't think, even if that's the case,
even if this court says that it shouldn't have been put in
and it was inflammatory, it's a very minor part
of the evidence that was put in this case.
David: I think you had too big a hill on the pay.
I think you gotta go to Mayfield.
-: That's where I was going Justice Lowy.
But when you go to that analysis which,
it doesn't seem that this judge did in his decision
and I think I'm pretty safe in saying that.
He doesn't get to that last part of Mayfield
and this court recently addressed that in,
put in volumes of DOC records
that laid out all kinds of disciplinary reports
and all kinds of poor behavior
to establish a relationship between the co-defendants
and this court in that case said,
well first of all the prosecutor gave
the proper instruction following,
right after the blog posts go in.
But I think more importantly,
this is not a major part of the case.
It is three pages of documents within thousands of documents
and the Sergeant that testifies simply says this is what.
There's no suggestion that they were defrauding
or doing something nefarious.
-: You can see this was a mistake?
-: I think it was a mistake in retrospect, yes Your Honor.
I understand. -: Your best.
You keep saying in hindsight,
the argument that it was not ex-ante,
affirmatively irrelevant and just prejudicial.
-: Well I don't think it was completely irrelevant
and prejudicial in a way that
would require. -: But how,
so the financial documents?
I mean that just seems,
do you have an argument on relevancy on that?
-: Yeah the argument was that it was put in to establish.
-: They were paid afterwards have anything to do
with the duty of care?
-: There wasn't really,
that was just what the documents said
and the Sergeant was just explaining
what the documents said.
There was no suggestion
that there was any kind of nefarious conduct.
It was they were paid and that established the relationship.
They were overpaid and then they refunded the money
which in these types of situations,
when children are being moved from DCF, that happens.
But again, going to, as Justice Lowy pointed out,
I don't think under Mayfield those factors,
this small, tiny piece of evidence, prejudicial or not
in a grand jury situation
is enough to dismiss the indictment.
Especially with all the other evidence.
I'm sorry Your Honor. -: Sorry it was me.
I interrupted you but before we lose you,
what about the 12-year-old daughter's testimony
and is there sort of an O'Dell distortion
as it relates to what is put in and what isn't put in?
-: I do think it was a misstatement that the mischaracterized
what she had observed in a very specific sense
but I will say that the,
certainly the grand jury had access to those statements.
They could've watched the statements in their entirety.
Obviously you'd presume that they were events carefully
but again I don't think it's something that rises
to the level.
Especially in light of all the other evidence that came in
with regards to how sick this child was
and how dire his situation was,
that this would be something that would be grounds.
-: Doesn't the nebulizer treatment show
that they were what they thought they should be doing?
Just within their own experience?
-: Well there's a couple of issues with the nebulizer.
First of all it wasn't,
because he hadn't received any medical care
for this condition.
It was prescribed about two months earlier.
-: Right this condition is which,
can you separate out which condition you're talking about?
-: Sure, the ultimate pneumonia that led to his death.
-: Okay, but they didn't know he had pneumonia.
-: They didn't, because they didn't get him the medical care
that he needed.
-: But how would
they know that? -: To make that determination.
-: How were they to know that the nebulizer treatment
that they had was not what they were supposed to be doing?
I guess I'm just concerned that we're putting too much
on what the parents are expected to know.
They're not doctors,
they have had experience with sick children
and so they did what they do with their sick children.
-: Sure, but I think part of the challenge there Your Honor
is that he was continuing to get more and more sick
in those last couple of days before he passed away.
So the nebulizer may have given him
a brief amount of relief.
Which you know, that's what their statement is.
The ME testifies that it likely wouldn't have helped
by the end because the lung was so blocked
that they could've given it to him
and it really wouldn't have made its way
into his lungs to help anyway
and that it wasn't the right treatment
for this type of infection and that's part of the problem.
Is that he was getting sicker and sicker.
The other children had gotten better
and there was no medical care to address the fact
that he wasn't getting better.
So it wasn't that he had the same thing that they had,
or maybe he had the same cold
and it developed into something worse for him,
given his status.
But they didn't react to that.
There was no medical care and had they called the doctor,
maybe the doctor would have prescribed the antibiotics
that the ME talks about.
That could've been the treatment in this particular case.
-: But strep's pretty unusual in this circumstance?
-: It is for this age.
I believe the pediatrician does say that
but he also does talk about how significant
the breathing is in this child
and that if a child like that
had been brought into his office,
he would've sent them immediately to the emergency room.
So this is not sort of.
-: Child Big, Big.
Whatever, Big.
-: It was, I think it was about two years before this.
And he had been coughing up pus.
And yeah there's a,
obviously a difference I think between, child.
-: Took that four-year-old to the hospital.
-: They did take that child to the hospital.
They also called the doctor
about one of their other children who had been sick.
Because they were concerned about her
but her fever had never risen as high as this child's.
Scott: Well 102 is not that high for a little kid right?
-: I think it is but I will, I'm not a parent.
So I don't take babies' temperatures all that often.
But I think 102,
both the doctor, the pediatrician and Cassandra also says
that when your fever gets to that high, watch.
But nothing happens
and in addition to having a fever,
he had other signs that he wasn't well.
That he was coughing and struggling to breathe
and was looking ill and was lethargic
and wasn't drinking and they comment
that his diapers were more dry
and this is all happening in the days before.
So I see my time's up,
but I just want to make this point real quick.
They also indicate to the police,
two things that are problematic.
First that they had called DCF to take him to the doctor
which did not happen but to me that suggests
that they understood that this child needed medical care.
And then there is the comment in which they,
going to the doctor with one of their other kids
and taking him along to be seen.
That to me indicates that they had an awareness
that this child needed medical care
but they didn't act on that duty.
There are no further questions Your Honors, we'll.
-: Thank you.
Okay, Attorney oh Daniels.
-: Good morning, may it please the court.
My name is Attorney Josh Daniels.
I'm appearing for Matthew Tucker.
With me is Attorney Nancy Dolberg
who is appearing for Cassandra Barlow-Tucker.
I don't know if they're here yet
but I know that the Tuckers were planning to attend.
Just by way of a roadmap,
my focus will be on probable cause
while Attorney Dolberg
will address the material impairment of the grand jury
and together we're asking you to affirm,
Judge Agostini gave.
-: We weigh all the factual issue
about whether or not
they should've gone to medical intervention and I think,
as I read the record and correct me
if any of these are wrong okay?
As far as what the parents have for evidence,
we have a persisting cough, we have a lack of fluids.
A fever and lethargy.
Correct?
-: We have a, that's mostly correct I think.
On and off. -: Tell me what's wrong
about that and if there's anything I'm missing.
-: So there is some suggestion that he's drinking less,
they are making concerted efforts to keep him hydrated.
There is evidence that he is,
there is evidence that he is lethargic.
There is evidence of a persistent coughing
and the fever I think is mostly described as off and on.
It comes on in the morning
and then as he gets fluids into him
and goes throughout the day, it comes right back down.
-: There was some testimony,
I think it was from your client about feeding the,
administering fluids by an eyedropper?
-: I think that was liquids.
There was also mention of a sippy cup.
I forget which parent mentions that.
Frank: But it was at the state where they had to use?
-: A syringe to push fluids, yes.
-: Right, which is concerning.
-: It is, but I think where I plan to begin
is I think we need to unpack the nature of the risk
that needs to be appreciated for recklessness
because I don't think it's actually in the abstract.
Whether you know
that this person has to be taken to the doctor.
The risk is more specific than that,
that you need to appreciate.
The reasonable person must appreciate
that there is a high degree of likelihood
of death or grave bodily harm.
Not just continued discomfort, not just continued sickness
and so I think we need to keep that,
the nature of the risk that needs to be appreciated in mind.
The other thing I want to sort of stress,
I planned to end with this but I may not get there.
Dalila: On your first stressful point.
Josh: Yep.
-: What about the evidence that Justice Gaziano
just summarized doesn't lead to probable cause
that would've understood the risk to the baby?
-: I think where it falls down is sort of high likelihood
of death or grave bodily harm.
I think it's undisputed that you know that they that the.
-: Respectfully, I think you may be misstating the standard.
As I read Dorvesk, Lewinsky,
the mortal homicide instructions.
A failure to act as wanton and reckless
involves a high degree of likelihood
that substantial harm will result to the person
to whom the duty is owed.
-: Correct and in Carrillo.
-: You said death or.
-: That's how Carrillo defines
what substantial harm means in this context is death
or grave bodily harm.
-: The Carrillo context was an overdose correct?
-: Pardon? -: Carrillo was an overdose.
-: Yes, but it's still about.
It's still involuntary manslaughter,
it's still recklessness, I think it's.
-: I understand, the pearl above it.
Anyway, we'll look at that.
-: So he's 10 months old though.
-: Sorry, did I cut you off Justice Wendlandt?
Josh: It's 10 months.
-: Right, the child's 10 months old
and that video is deeply shocking right?
There's just, it's just heartbreaking to listen
to that level of warring coming out of that little kid.
That's the hard part for you isn't it?
To deal with that.
That's not,
I mean that's not a word.
It's really loud and it's, the kid is clearly gasping right?
-: So a few things about the video.
The first thing
I just want to re-emphasize again is
as I mentioned in my brief,
there's a real bias here
because everyone who has ever seen that video
has done so with the foreknowledge of what the outcome is
and I think that sort of inevitably colors
how bad it sounds
because we know what it leads to.
-: I think you do a very good job of that but again,
it's, it's the level of the rasp
versus getting on the phone at least and calling a doctor
or taking the kid to a doctor.
Because it's not an ordinary coughing sound.
Right?
It's just, it sounds.
-: So the other thing I would say is,
to remind us all that recording,
recording often distorts even as it captures
and playback distorts again
and to unpack what I mean by that.
-: But you're at the probable cause standing right?
-: Right, correct. -: So I think you know,
those are great but right now,
we should stick to basics.
-: At the very least I think it's relevant
in terms of deciding whether this is close enough
for the grand jury,
for the O'Dell arguments not to preempt
what my sister is about to say.
For those to actually matter,
for there to be a fair,
distortions in the grand jury process
really did matter here.
-: But could you argue the other way though?
As it relates to the blogs and the discussions
of how frustrating it is
to go to the emergency room,
how frustrating it is to D's health
and palpable reticence that Cassandra's discussing
about the whole process.
Of dealing with a sick child after hours.
-: What my colleague is going to say,
I think one thing to sort of keep in mind
is also that the Big D situation
is different in ways besides age.
It's also that,
it's hard to suss out what,
he's underreporting his symptoms
but there's also suggestion
that he's over-reporting his symptoms
because he likes how the medicine tastes.
The last thing I just want to wrap up with,
if that's all right is I think we need to be really careful
not to get so hyper-focused on the specifics here a lot
and it is voluminous but we need to not lose sight
of the basic linedrawing problem
that this case represents which is
that the kinds of decisions that we are talking about here,
how serious is this?
Do I need to take my kid to the doctor?
Is what's in the medicine cabinet enough?
Is this a dire emergency or is this just a bad night?
These are decisions
that all parents have to make constantly,
they usually have to make them on
the basis of imperfect information, equivocal information,
incomplete information and it can be really hard to suss out
and what this Court has said for going on 40 years now,
is that while it's possible
to make these sorts of misjudgments,
those misjudgments just aren't recklessness.
No matter how terrible the consequences end up being,
even the death of a child.
I think Judge Agostini appreciated all of this
and I would urge this court to do the same
and affirm his decision.
If there are no other questions I'll turn it over.
-: Okay, thank you. -: Thank you.
-: Okay, Attorney Dolberg.
-: Your Honor.
May it please the court, I'm Nancy Dolberg
on behalf of Cassandra Barlow-Tucker.
Before I begin on the O'Dell argument
I just really do want to point out
because I think the Commonwealth has overstated
the testimony of Miss Wood who was in the home
the three days before.
What she actually said was she vaguely remembered
having a quick,
what looked like maybe he needed to be seen by someone
and also had a vague recollection
of Cassandra's intention to bring him to the doctor
if his condition worsened the next day.
-: Can I also evolve on that? -: Of course.
-: Did she actually, the child was ill right?
So she doesn't get to spend much time with the.
-: She's working with the younger.
-: Right. -: Daughter in the family
who has cerebral palsy.
-: Right. -: Not cystic fibrosis
is something I'll get to.
But they were in the same room.
-: So they're in the same room. -: Same room.
-: But she's not even there for that child.
Nancy: Right.
-: Maybe you should go to the doctor in that case?
-: Well she notices that he has a respiratory cold.
That's how it struck her and she makes a comment
like many of us do.
"Oh do you think he's gonna, should be seen by anyone?"
Now the whole family had been sick.
In fact, the two weeks at that point and had just,
all her early intervention appointments
had been canceled until that day.
-: The youngest daughter was how old?
-: Two I think. -: And that was the child
with cerebral palsy?
Nancy: That is the child with cerebral palsy,
yes Your Honor.
-: And she was told not to bring that.
-: She had about, really about the same length of illness.
-: So to return to the issue.
-: Yes. -: That you had divvied up
with counsel. -: Yes, yes, yes, yes.
Please.
-: Before we sidetrack both of you.
The issue of a former trial judge you would say,
boy that's not admissible
and it's overly prejudicial and the probative value
is minimal.
We're in the grand jury stage however
and what concerns me about the motion judge's decision
is he never mention,
instruction the Commonwealth gave the grand jurors
in his analysis.
Is that a problem?
-: I would say it's not a problem for many reasons.
That instruction just went to the blog posts.
It did not, categories that I hoped to get to today.
Of it,
it gave the jury permission to consider
all of the blog posts as to the nature of a relationship
that was totally removed, and respectfully,
I think highly irrelevant to this situation.
Not just highly prejudicial but highly irrelevant
because it was an older child
with a completely different set of issues
and as the DCF worker said,
"This was about Cassandra venting about shortcomings
"in the foster care system
"and difficulties of fostering."
It did not have anything to do with the care of children?
-: Really. -: That was not presented
to the grand jury.
-: I agree that most,
a lot of what the officer testifies to seems inappropriate
but some it, I mean, some of it,
particularly regarding the big child seems relevant.
That one, they're angry that they have to go to the doctor.
How burdensome it is.
That this child had strep.
That it's, meaning they must have got some discussion
about what strep can mean.
It just, it doesn't seem, that part seems relevant.
It may have been layered on with a bunch of stuff
that's inflammatory but that part seems quite relevant
when the issue is,
"Did they not go to the doctor for the right reasons
"or the wrong reasons?"
Or reckless reasons or negligent reasons.
-: I would like to respond to Your Honor
and then get back to Judge,
and I would like to finish also.
And then, but. -: I don't want to cut
Justice Gaziano off.
-: No, I will get to everyone.
Thank you.
So this was a child who was much older
than the 10-month-old we're talking about here.
The illness that this 10-month-old had was very rare
and I can't tell you, like one in how many thousands.
Even a doctor wouldn't suspect
that a child would have this strep A
and they didn't have any idea
that their other child had it
until after unfortunately, the death of this child.
So all of this about Big D was about venting with DCF.
They didn't apparently give a Mass Health Card.
We all know it's impossible to go to the emergency room
with a sick child.
So that's not something you favor.
In this case, Big D.
Scott: Again?
You don't go to the emergency room?
A lot of us go to the emergency room.
-: Unless someone's really sick,
do you want to spend all night in the emergency room?
But that's what her,
what that venting was about was.
Scott: That's the issue.
-: I wish Big D could've told us sooner
so that we could take him to a routine appointment.
As to that, as to the instruction
and I'm happy to return to this as well.
-: No, no go to Justice Gaziano.
-: As the instruction,
not only was it only about the blog posts.
Not only did it give, unlike the other cases
that have found instructions to be effective,
permission to the jury to consider all of the information,
it was given,
even though there were, at least 15 pages devoted
just to the blog posts.
It was not given at the beginning of that.
It wasn't even given at the end of that.
It was given after the prosecution,
after the jury went to lunch.
-: I had seen in your brief when you said it was given up.
-: I'm sorry. -: No, when you said
it was given after lunch.
I think it was,
because we've never said in. -: No.
-: Any report decision,
forget it, a limit instruction was given after lunch
or if it was given at the end versus the beginning, so.
-: I agree Your Honor
but it was not given at the beginning either
which is usually.
-: In your well-done brief,
I didn't really get that part of it
or agree with that part of it.
-: It wasn't given at the beginning
but I don't really think that any instruction,
on top of all of that,
I don't think any instruction would've been effective here
because the Commonwealth engaged in the pervasive use
of false or misleading evidence.
Really to depict a wildly inaccurate
picture of these people.
-: We're in Mayfield now?
-: Yes, and I would say the judge
clearly did find the third May.
From this, evidence undoubtedly tended to influence
the lens through which the grand jury
judged the Tucker's conduct and choices
with respect to the child's illness.
His decision was about Mayfield.
So I don't, I disagree with the.
The combination and I would like to run through briefly
and if I may,
what led to this gross distortion
of the Tuckers is a kind of neglectful, uncaring,
foster parents who wouldn't want to
take children to the doctor
and who would be callously indifferent
to a child's medical needs and that does start
with the financial information and I won't belabor it
because I believe the Court recognizes
that this information about what they received in payment
not only for the care of the child
but for their adopted children was you know,
emphasized by the grand jury.
It was presented to them.
It was in testimony, emphasized to them.
In terms of the blog posts,
I really, you know, the language that they used
was very inflammatory
and it was introduced by the District Attorney
as meaningful because again,
the Tuckers saw this as a job for money
and didn't like to take children
to routine medical care appointments
which later they provided other information
about that was deceptive, I will get to.
In terms of the judge's findings,
they stated falsely that the Tuckers had been disciplined.
That was false.
And in fact, they never told the grand jury
what the social workers actually had to say about them
which was typically, oh let's see.
"Matthew and Cassandra are probably honestly
"two of the most conscientious, engaging,
"forthcoming foster parents."
-: That was buried in the written documents.
-: That is on a DVD, one of four DVD.
Social workers and then there were other DVDs,
there were 2000 pages.
-: I take your quote to Justice's appeal to a decision.
-: I'm sorry, I don't think that's a satisfactory excuse.
That was hidden and does bring to mind
a very nice comment made in another case that the,
and I don't.
But the Commonwealth can't hide the evidence
and expect the grand jury to find it.
-: That was a Justice Heinz quote?
-: I'm sorry? -: That's
Justice Heinz's quote?
-: Yes, Justice Heinz, it's a wonderful quote.
So, and they,
this kind of, and it's clear by the way
that the jury was affected by
what the judge complained about
because they wanted to know you know,
what happened to Big D?
Even the Commonwealth conceded that the exchange about that
would have led the grand jury to believe
that he was removed for substandard care
and the record indicates otherwise.
As to the statement of the daughter,
the true statement of their daughter
who was described as being 12 was that, let's see.
He was, he was asked by the District Attorney,
did he watch this video of the statement
and what did the daughter have to say?
And he said that she said
he was struggling to breathe the day before he died.
It actually, what she said
that he was coughing a little bit
and having a little trouble breathing,
that he was getting better, seemed fine and pretty cheerful.
But she never said he was struggling to breathe
and this is, the juror's comment in response to this
is so significant.
"I'm struck that their 12-year-old daughter
"recognizes that the child is struggling to breathe
"and yet the father states that they believed
"that he was going to be okay."
And then the juror asked the trooper
whether you believed him.
So it's clear from all of this
that the jury was,
the credibility of the Tuckers was undermined
by this false testimony and their failure
to indicate the whole statement.
Which supports the, their statements and by the way,
this misstatement
and omission immediately followed Matthew's statement
which immediately followed Cassandra's statement.
This basically said, you know,
when they said that he was getting better, oh I.
-: The synergistic effect
of an O'Dell and a Mayfield violation.
-: Absolutely Your Honor.
-: Can I ask you something? -: Yes.
-: To parse it out a little bit.
If we agree with you as far as the fairness
of the grand jury presentation
as it relates to call it,
bad act evidence or extraneous information.
But we disagree with you
as far as the duty of care part of it.
It's a remedy,
motion to dismiss without prejudice is allowed
and they can re-indict it in the proper manner.
-: Dismissal without prejudice could,
the Commonwealth can certainly re-indict.
I'm not sure I understood what you?
-: Right, so if we find the evidence
is insufficient of course.
-: Yep. -: That's a different story.
But if we find the evidence sufficient.
-: Yes. -: We agree with
part two of your argument. -: Yes.
-: The remedy is to?
-: The remedy is to dismiss without prejudice
and the Commonwealth
would have to make a decision. -: And then what happens?
-: And that is what the judge did here
and that's what we would be asking this court to do.
If I may, I just want to get into,
because this had come up.
-: Is that true regardless of?
Even if it were the, both prongs were lacking
that they didn't present sufficient evidence?
That would be a dismissal with prejudice?
-: It's without.
We don't know what other evidence they have.
So it'd be without prejudice.
-: Yeah, the judge dismissed without prejudice.
-: So the Commonwealth could have just
tried to re-indict without having appealed the decision.
-: Yes, yes absolutely.
Let me just mention,
this theme about not wanting to take children
for routine medical appointment is really a gross distortion
and it was created by the Commonwealth.
Of course there's evidence in the record
about this youngest child who was a foster child who became,
who was adopted and has 23 medical people.
But that said, you know,
the Commonwealth went out of its way
to suggest that the Tuckers were responsible
for a December 18th medical appointment
which might not seem important
except that it was a medical following one he had before
which was taken to DCF.
And the Commonwealth set up a scenario
where they read from a manual that said
foster parents are responsible for making
and keeping these appointments.
Was the child taken?
Grand jurors were asking,
"Did the Tuckers ever take the child
"to a medical appointment after this December 18th
"and before the two-week illness?"
And in fact, what they never told the grand jury
is what the social workers had told them at length
which is there isn't a set policy
between DCF and foster parents
as to who would take a child for a routine appointment.
Cassandra indicated in her statement
that she believed the DCF worker
was going to take him to the appointment
as she had the prior appointment.
But instead, they left that out.
They also did not tell the grand jury
that in fact two days after December 18th,
Cassandra sent an email to all the DCF workers saying,
"Hey what happened to that appointment?"
And someone, a supervisor responds saying,
"We'll look into it."
And they never got back to her.
-: Can I ask a followup question
with what Justice Gaziano just pointed out.
-: Yes. -: Are there good cases,
say are there good cases that we can look at
where the sufficiency thing is clear
but the misconduct thing requires
a dismissal without prejudice?
Are there a couple of good cases
where you have parallels where there's plenty of evidence
but at the same time,
what the Commonwealth did requires a do-over?
-: So in Washington W. which ended up
being dismissed with prejudice for other reasons.
Justice Gants said that there was probable cause,
there was sufficient evidence
but the grand jury had been tainted by,
in that case an omission that went directly to the case.
-: The Washington W is a good case for us to look at?
-: Yes, I think so Your Honor.
There are, Mister Daniels and I
also provide cases about probity,
prejudicial more than probity but this is,
I would have to say it's a very pervasive use
of both misrepresentation and omission
to paint these folks in a particular way
that really would have affected the grand jury's decision.
I just want to make a couple more points
if that's all right.
That although and as I mentioned about the cystic fibrosis,
a juror misunderstood and incorrect evidence
was elicited from this same early.
Suggesting that this youngest child had cystic fibrosis.
She doesn't, she has cerebral palsy.
The Commonwealth knew that and ordinarily,
you know, it was not introduced by the Commonwealth
but the Commonwealth has an obligation
not to allow false evidence to go uncorrected
and I have to say.
Judge: Wait, can I interrupt for a minute counsel?
Is this a treat, wasn't it?
Young girl is being treated with a nebulizer,
so regardless of whether it's cerebral palsy
or cystic fibrosis, she's being treated with a nebulizer
for a lung condition or a breathing condition
like the other child was?
-: Really came up when the juror asked this witness,
didn't the older child?
So she was very confused, have cystic fibrosis?
And the reason this becomes important is,
this grand juror says,
"So that one could assume that the foster parents
"would have some understanding of a respiratory ailment,
"toward like the sound of one?"
So this may go back to the video
that the Justices were talking about.
That's a very obvious example of the jury being prejudiced.
Judge: But also counsel,
isn't that also just evidence whether it's prejudicial,
the question's whether it's unfairly prejudicial.
The grand jurors could look at that video
and come to their own conclusion.
Can you also address how the party's misrepresentations
to the police affect this case?
In that both the foster father and the foster mother say
that they backed,
that the foster mother put the child to bed
when the video clearly shows that's not the case.
How do you handle that kind of evidence in this context?
-: Well I would say as to a misstatement made
in the aftermath of this kind of trauma,
it does not go to what their state of mind or.
-: But this was more than a misstatement however.
This was, when you read those statements
you see that the foster father and the foster mother
are saying the exact same thing
and going on about how, what great caretakers they are
and how wonderful,
how much they understand the system.
It doesn't seem like a misstatement
in the context of reading that.
-: Well Your Honor, I would disagree.
I think that you know,
their assessment of what occurred is what they recalled
but in terms of the putting him down for,
at night, I think that Cassandra
could have been confused with a nap.
But I would certainly asset that this is not,
does not go to whether they were aware at the time
that he faced you know,
that he had a deadly illness.
-: Can I get you to just say the last,
the second thing you wanted to say very quickly?
-: Let's, I think that I'm probably,
unless there are questions and I apologize.
I may have forgotten.