-: 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 Honor, it's Jennifer Zalnasky,
special assistant district attorney
representing the Commonwealth this morning.
There is 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- -: Yes.
-: And the other.
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 does 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 to go into
more of a sufficiency of the evidence.
It almost reads like he's addressing a motion
for a new trial. -: I don't know about that.
I mean, 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?
Won't get, the factual issue's 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- -: Might 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.
-: How is his analysis wrong?
-: Well, I think that does,
new 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.
And he starts weighing- -: Stop there.
How else are you supposed to find 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 what he- -: Which I don't think he does.
-: Well, that's what he said.
You're saying he didn't do what he said he did?
I mean, you can quibble, of course you can,
how he applied -: Sure.
-: the McCarthy standard.
But to say he didn't use the McCarthy standard,
I think is really farfetched.
-: 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 Galison and Mashad.
And 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 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 it...
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 have 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...
And that there was sufficient evidence
when you look at it in favor of the allowance
of the indictment.
In particular, I think, 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,
for 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.
He's turning that evidence around.
Similarly when he is weighing out some of the-
Judge: Why do you say that's not what happened?
-: Because there was no question about whether or not,
nobody asked 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.
-: Could 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 it was in that when the judge goes through carefully,
he is applying, there's no reason to think
he isn't applying McCarthy.
There's nothing about going through the elements
that suggests you're 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 motion.
-: Is there any difference between Cassandra and Matthew?
Is there any difference, for instance,
when Matthew walks by the crib in the video
that differentiates the two?
-: Yes, I think there's some differences 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, there's a couple things that-
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 another place of 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?
When did 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.
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, Justice Kafker, when you're talking about
the two time periods, that's crucial.
-: So, the testimony on the,
'cause, it's hard to measure
recklessness in a second, right?
-: Sure.
-: The issue is should they have called the doctor?
Should they have taken the child to the doctor?
And you know, 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, the light most favorable to you.
I understand. -: Sure.
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 have been on note...
than 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...
There is no call to a doctor.
-: Compromised lungs is strong right?
Dr. Sumar thinks that it may be a dog allergy. Right?
-: Absolutely.
Yeah, the earlier part and then in December he goes in
and he has some kind of congestion
and he gets the (indistinct) 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,
well, 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 one of the kids, I can't remember,
the bigger kid, the big kid, whatever he's,
I don't wanna use his exact name.
-: Sure. -: 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?
-: Mm hmm. -: Some of the other stuff
seems irrelevant, whether they got paid
after the child died seems really irrelevant.
-: Sure. -: And inflammatory.
-: The other part- -: Yeah, in retrospect
it does, yes. -: 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 outlined 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.
-: Now, made a financial and...
The fact that they're- -: No, I'm sorry.
The other part about the child, the other child-
-: I mean, marginally relevant is what happens
with the kid named Big D and whether or not you sought care.
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 they...
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 a
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.
-: I think you had too big a hill on the pay.
I think you gotta go to Mayfield and-
-: That was gonna, 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 (indistinct)
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 testified simply says,
this is what, there's no suggestion
that they were defrauding or doing something nefarious.
-: But you can see this was a mistake.
-: I think it was a mistake in retrospect, yes, Your Honor.
I understand (indistinct).
-: You keep saying in hindsight
to argument that it was not ex-anti,
affirmatively irrelevant and just prejudicial.
-: Well, I don't think it was completely irrelevant
and prejudicial in a way that would require-
-: But how is it to 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 into a separate-
-: 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 indict-
-: What about- -: especially with all
the other evidence. I'm sorry, Your Honor.
-: No, it was me, I interrupted you.
But before we lose you,
what about the 12-year-old daughter's testimony
and is there a sort of an O'Dell distortion
as it relates to what is put in and what it isn't put in?
-: I think it was a, I do think it was a misstatement
that mischaracterized what she had observed,
in a very specific sense.
But I will say that certainly the grand jury
had access to those statements.
They could have watched the statements in their entirety.
Obviously, we presume that they (indistinct) 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 doing 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.
-: Sorry, this condition is which?
Can you separate out which condition?
-: 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?
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 have 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 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 have 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- -: Child, big, big,
whatever big. -: Mm hmm.
I think it was about two years before this
and he had been coughing a puss.
And yeah, there's obviously a difference
I think between child.
-: He 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.
-: 102's not that high for a little kid. Right?
-: I think it is, but I'm not a parent,
so, I don't take baby's 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 wanna 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.
If there are no further other questions, Your Honors.
-: Thank you.
Okay, attorney 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 (indistinct)
Judge Agostini gave.
-: We laid out the factual issue about whether or not
they should have 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 persistent cough, we have a lack of fluids,
a fever, and lethargy. Correct?
-: We have an on and, that's mostly correct, I think.
-: Tell me what's wrong about that.
Or 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 lethargic,
there is evidence of 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, administering fluids by an eye dropper.
-: I think that was liquids.
There's also a mention of a sippy cup.
I forget which parent mentions that.
-: 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 the nature of the risk
that needs to be appreciated in mind.
The other thing I want to sort of stress,
I plan to end with this, but I may not get there, is-
-: Wait, on your first stressful point.
-: 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 they know that the-
-: Respectfully, I think you may be misstating the standard.
As I read Levesque and Welansky
in the model 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 harms means
in this context is death or grave bodily harm.
-: Well, 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 what Carrillo is about.
But anyway, we'll look at that.
-: So, he's 10 months old though.
Sorry, did I cut you off?
-: It's 10 months. -: Right, the child's
10 months old and that video is deeply shocking. Right?
There's just, it's heartbreaking to listen to that
level of roaring 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 ordinary, it's really loud.
The kid is clearly gasping. Right?
-: So, a few things about the video.
The first thing I just want to reemphasize 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...
versus getting on the phone at least
and calling a doctor or taking the kid to a doctor.
'Cause 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 just 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 standard, right?
-: Correct. -: So I think, you know,
those are great argue...
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 (indistinct) health,
and the palpable reticence that Cassandra's discussing
about the whole process of dealing with a sick child
after hours.
-: I think 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 under reporting, 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 wanna 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, and it is voluminous,
but we need to not lose sight of the basic,
line drawing 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...
Before I begin on the O'Dell argument,
I just really do wanna point out,
because I think the Commonwealth has overstated
the testimony of Ms. Wood who was in the home
three days before.
What she actually said was she vaguely remembered
having a quick, look, 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 ask one follow-up on that?
-: Of course. -: Did she actually,
the child, child was ill, right?
So, she doesn't get to spend much time with him.
-: She's working with the younger daughter in the family
who has cerebral palsy. -: Right.
-: Not cystic fibrosis as is something I'll get to,
but they were in the same room.
-: So, they're in the same room and she's not even there
for that child. -: Right.
-: Mm, maybe you should go to the doctor with that kid.
-: 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 should be seen by anyone?"
Now, the whole family had been sick.
In fact, 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, Your Honor.
-: And she was told not to bring that...
-: She had really about the same length of illness.
-: So, turn to the issue
that you have divvied up with counsel.
-: Yes, yes, yes, yes. -: Before we side track
both of you.
The issue of the (indistinct), former trial judge
you would say, "Boy, that's not admissible
and it's overly prejudicial
and the probative value's minimal."
We're in the grand jury stage, however,
and what concerns me about the motion judge's decision
is he never mentioned instruction
that 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 hope to get to today.
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 of 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
and how burdensome it is that this child had strep.
Meaning they must have got some discussion
about what strep can mean.
You know, 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,
and I would like to finish also the-
-: Yeah, no, I don't wanna- -: And then to (indistinct).
-: I don't wanna 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-
-: You don't go to the emergency room,
a lot of us go to- -: No, no.
Unless someone's really sick, do you wanna spend all night
in the emergency room?
But what that venting was about was,
-: That's the issue. -: I wish Big D
could have told us sooner so that we could take him
to a routine appointment.
So, 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 post,
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 post,
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.
-: Yeah, I have it in your brief when you said it was given-
-: Oh, I'm sorry.
-: No, I mean, you said it was given after lunch.
I think it was, because we've never said
in any reported decision, forget any limited instructions
given after lunch, or if it was given at the end,
versus the beginning. -: I agree, Your Honor.
But it was not given at the beginning either which is-
-: In your well done brief I didn't really get that part.
Agree with that part. -: 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 and misleading evidence,
really to depict a wildly inaccurate
picture of these people.
-: Are we, we're in Mayfield now?
-: Yes, and I would say the judge clearly did find
the third Mayfield...
found that 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 disagree with the...
The combination and I would like to run through briefly,
if I may, what led to this gross distortion
of the Tuckers as a kind of neglectful,
uncaring foster parents who wouldn't wanna take children
to the doctor, who were in the,
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 it
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 DV... to workers.
And then there were other DVDs.
There were 2,000 pages.
-: And I take your quote
to Justice Hines appeals court decision
-: I'm sorry, I don't think that's a satisfactory excuse.
That was hidden and it does bring to mind a very
nice comment made in another case that the...
"But the Commonwealth can't hide the evidence
and expect the grand jury to find it."
Justice Gaziano: That was the Justice Hines quote.
-: I'm sorry? -: That's Justice Hines's-
-: Yeah, it's Justice Hines in Hunt.
It's a wonderful quote.
So, and they, this kind of, and it is 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 concedes 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 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.
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
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 the failure to indicate the whole statement,
which supports 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, a lie. And-
-: The synergistic effect of an O'Dell
and a Mayfield violation. -: Absolutely, Your Honor.
-: Can I ask you something to- -: 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,
extraneous information, but we disagree with you
as far as the duty of care part of it,
is a remedy motion to dismiss without prejudice is allowed
and they can re-indict it in the proper manner?
-: Dismissal without prejudice,
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, that's a different story.
But if we find the evidence sufficient,
but we agree with part two of your argument.
The remedy is to... -: The remedy is
to dismiss without prejudice and the Commonwealth
would have to make a decision.
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 wanna get into,
because this had come up- -: That's true,
regardless of, even if both prongs were lacking
that they didn't present sufficient evidence,
that would be a dismissal with prejudice?
-: Without, they could, we don't know
what other evidence they have, so it'd be without prejudice.
-: Yeah, the judge found...
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 to routine medical appointment,
you know, 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 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 he 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,
you know, 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
had 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 responded saying,
"We'll look into it," and they never got back to her.
-: Can I ask a follow-up question
with Justice Gaziano just pointed out?
-: Yes. -: Are there good cases,
are there good cases that we can look at
where the sufficiency thing is clear,
but the misconduct thing requires, you know,
a dismissal without prejudice?
So, are there are 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.
-: Washington W's a good case for us to look at.
-: Yes, I think so, Your Honor.
There are, you know, Mr. Daniels and I also provide
cases about probity, you know, prejudicial more than probity
but this is, I would have to say was 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 wanna make a couple more points if that's all right.
Although, and as I mentioned about the cystic fibrosis,
a juror misunderstood and an 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- -: Well, wait,
can I interrupt for a minute, counsel?
Wasn't the young girl 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,
for a breathing condition, like the other child was.
-: Really came up in the, 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.
Justice Cypher: That's also, counsel,
isn't that also just evidence,
whether it's prejudicial, the question is 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 parties misrepresentations
to the police affect this case in that
both the foster father and the foster mother say
that they in fact, 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 their-
Justice Cypher: But this is 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 what great caretakers they are
and how wonderful they, 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 at night,
I think that Cassandra could have been confused with a nap.
But I would certainly assert 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.
-: I think that I'm probably, unless there are questions
and I apologize, I may have forgotten.