WEBVTT

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<v ->SJC-13408, Commonwealth v. Cassandra L. Barlow-Tucker,</v>

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and SJC-13409, Commonwealth v. Matthew J.-

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<v ->So, we'll start with Attorney Zalnasky.</v>

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<v ->Good morning, Your Honor, it's Jennifer Zalnasky,</v>

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special assistant district attorney

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representing the Commonwealth this morning.

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There is no doubt that this is a tragic case.

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It's always difficult to hold a parent or a caregiver

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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 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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<v ->Can I ask you about the legal standard for a second?</v>

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In his written opinion, the motion judge

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sets out the McCarthy standard, two of our cases,

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it says it's between one-
<v ->Yes.</v>

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<v ->And the other.</v>

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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 does these facts other than to cite our case law?

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<v ->And that's part of the problem and challenge in this case,</v>

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Your Honor, that he does lay out

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the proper McCarthy and O'Dell as well.

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But then his analysis, he starts to go into

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more of a sufficiency of the evidence.

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It almost reads like he's addressing a motion

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for a new trial.
<v ->I don't know about that.</v>

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I mean, he goes into sufficiency as, I mean,

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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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Won't get, the factual issue's 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 about sufficiency

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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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<v ->Because I think-</v>
<v ->Might say he was wrong,</v>

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but applying the wrong standard I think is way off.

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<v ->Well, I think because he does the wrong analysis,</v>

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his conclusion is also wrong.

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<v ->How is his analysis wrong?</v>

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<v ->Well, I think that does,</v>

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new 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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And he starts weighing-
<v ->Stop there.</v>

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How else are you supposed to find sufficiency of evidence

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without parsing the evidence presented to the grand jury?

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<v ->Well, there are cases about grand jury indictments</v>

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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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<v ->And that's what he-</v>
<v ->Which I don't think he does.</v>

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<v ->Well, that's what he said.</v>

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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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how he applied
<v ->Sure.</v>

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<v ->the McCarthy standard.</v>

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But to say he didn't use the McCarthy standard,

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I think is really farfetched.

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<v ->I think in my brief I outlined</v>

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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, he makes the statement

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that this case is somewhere between Galison and Mashad.

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And 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 grand jury indictments,

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but in one of them 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,

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they may not make it...

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Acknowledge that as well 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 in the favor

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of allowing the indictment,

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the review of this evidence should have been

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on the other side 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 the things

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that the Commonwealth presented as evidence that they did.

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So to me, I get that it's a very fine point, Your Honor,

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but I think that that's...

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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 are caregivers

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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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for the child passed away, she makes a comment

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to the defendant that she thinks that child

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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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He's turning that evidence around.

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Similarly when he is weighing out some of the-

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<v Judge>Why do you say that's not what happened?</v>

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<v ->Because there was no question about whether or not,</v>

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nobody asked if she felt this was emergency room situation

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or whether it was urgent.

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But she did say that she, 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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<v ->Could I ask you, first of all, I just want to,</v>

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you agree that if you're going to apply a probable cause

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and you're going to apply 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 it was in that when the judge goes through carefully,

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he is applying, there's no reason to think

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he isn't applying McCarthy.

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There's nothing about going through the elements

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that suggests you're not applying McCarthy.

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<v ->Oh, no, of course, he has to go through the elements</v>

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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 motion.

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<v ->Is there any difference between Cassandra and Matthew?</v>

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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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<v ->Yes, I think there's some differences on the facts.</v>

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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 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 that shows his

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reckless disregard for how ill the baby was

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at that point in time.

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I think with Cassandra, you know,

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we don't have that kind of video view,

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but I think if you, there's a couple things that-

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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 that that sound

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and that struggle 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 another place of 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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<v ->Isn't it more important</v>

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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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When did 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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<v ->It's not a DCF worker,</v>

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it's a early intervention speech pathologist.

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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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<v ->That's a week-</v>
<v ->That's about three days.</v>

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<v ->Three days.</v>
<v ->Three days.</v>

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And there is also evidence 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, 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.

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Except this one stays sicker longer.

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And I think that, Justice Kafker, when you're talking about

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the two time periods, that's crucial.

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<v ->So, the testimony on the,</v>

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'cause, it's hard to measure

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recklessness in a second, right?

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<v ->Sure.</v>

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<v ->The issue is should they have called the doctor?</v>

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Should they have taken the child to the doctor?

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And you know, 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, the light most favorable to you.

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I understand.
<v ->Sure.</v>

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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 is probably when

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they should have been on note...

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than 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.

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And yet, when he...

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There is no call to a doctor.

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<v ->Compromised lungs is strong right?</v>

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Dr. Sumar thinks that it may be a dog allergy. Right?

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<v ->Absolutely.</v>

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Yeah, the earlier part 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 the (indistinct) 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,

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well, she tells them that she called DCF

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to take him to the doctor, but we know

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that there's no evidence that that actually happened.

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<v ->Can I ask about some of the extraneous stuff?</v>

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<v ->Sure.</v>
<v ->So, the judge is focused</v>

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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 one of the kids, I can't remember,

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the bigger kid, the big kid, whatever he's,

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I don't wanna use his exact name.

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<v ->Sure.</v>
<v ->So, there's some suggestion</v>

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that at least Cassandra makes negative comments

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about taking kids to the doctor.

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<v ->Right.</v>
<v ->In this blog, right?</v>

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That it's burdensome.

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So, does that, that seems relevant, right?

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<v ->Mm hmm.</v>
<v ->Some of the other stuff</v>

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seems irrelevant, whether they got paid

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after the child died seems really irrelevant.

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<v ->Sure.</v>
<v ->And inflammatory.</v>

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<v ->The other part-</v>
<v ->Yeah, in retrospect</v>

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it does, yes.
<v ->Well, even then</v>

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it should be, but that part is important, right?

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That, you know, we're trying to measure

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why they didn't go to the doctor, right?

251
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<v ->Yes, I outlined in my brief,</v>

252
00:11:56.280 --> 00:11:58.473
and I think it's an important point.

253
00:11:59.370 --> 00:12:01.800
The judge overlooks it because he's so focused on

254
00:12:01.800 --> 00:12:04.920
this potential prejudice, but those posts,

255
00:12:04.920 --> 00:12:07.200
and the prosecutor says this,

256
00:12:07.200 --> 00:12:08.790
they're put in for state of mind

257
00:12:08.790 --> 00:12:11.820
and it goes to the wanton and recklessness.

258
00:12:11.820 --> 00:12:14.880
<v ->Now, made a financial and...</v>

259
00:12:14.880 --> 00:12:16.770
The fact that they're-
<v ->No, I'm sorry.</v>

260
00:12:16.770 --> 00:12:18.703
The other part about the child, the other child-

261
00:12:18.703 --> 00:12:20.760
<v ->I mean, marginally relevant is what happens</v>

262
00:12:20.760 --> 00:12:24.810
with the kid named Big D and whether or not you sought care.

263
00:12:24.810 --> 00:12:26.340
I'll give you that.

264
00:12:26.340 --> 00:12:28.920
But the other stuff is incredibly inflammatory

265
00:12:28.920 --> 00:12:30.843
and not relevant at all.

266
00:12:32.460 --> 00:12:37.460
How probative of the duty of care is it they...

267
00:12:38.070 --> 00:12:39.450
once the child passed away?

268
00:12:39.450 --> 00:12:41.130
<v ->I don't think it was,</v>

269
00:12:41.130 --> 00:12:44.010
I agree with you that looking back it's problematic.

270
00:12:44.010 --> 00:12:47.430
At the time it was to a

271
00:12:47.430 --> 00:12:49.110
set up that there was a duty of care.

272
00:12:49.110 --> 00:12:50.359
<v ->Oh, come on.</v>

273
00:12:50.359 --> 00:12:53.430
That's not an issue, that's just-

274
00:12:53.430 --> 00:12:54.810
<v ->I understand what you're saying, Your Honor,</v>

275
00:12:54.810 --> 00:12:57.330
but I don't think even if that's the case,

276
00:12:57.330 --> 00:13:01.080
even if this court says that it shouldn't have been put in

277
00:13:01.080 --> 00:13:03.510
and it was inflammatory, it's a very minor part

278
00:13:03.510 --> 00:13:04.980
of the evidence that was put in this case.

279
00:13:04.980 --> 00:13:09.300
<v ->I think you had too big a hill on the pay.</v>

280
00:13:09.300 --> 00:13:11.430
I think you gotta go to Mayfield and-

281
00:13:11.430 --> 00:13:14.100
<v ->That was gonna, that's where I was going, Justice Lowy.</v>

282
00:13:14.100 --> 00:13:15.780
But when you go to that analysis,

283
00:13:15.780 --> 00:13:19.140
which it doesn't seem that this judge did in his decision,

284
00:13:19.140 --> 00:13:22.770
and I think I'm pretty safe in saying that,

285
00:13:22.770 --> 00:13:27.630
he doesn't get to that last part of Mayfield.

286
00:13:27.630 --> 00:13:29.790
And this court recently addressed that in (indistinct)

287
00:13:29.790 --> 00:13:33.390
put in volumes of DOC records that laid out

288
00:13:33.390 --> 00:13:35.010
all kinds of disciplinary reports

289
00:13:35.010 --> 00:13:36.780
and all kinds of poor behavior

290
00:13:36.780 --> 00:13:39.120
to establish a relationship between the co-defendants.

291
00:13:39.120 --> 00:13:42.093
And this court in that case said,

292
00:13:43.530 --> 00:13:45.240
well, first of all, the prosecutor gave

293
00:13:45.240 --> 00:13:47.700
the proper instruction following

294
00:13:47.700 --> 00:13:49.860
right after the blog posts go in.

295
00:13:49.860 --> 00:13:50.880
But I think more importantly,

296
00:13:50.880 --> 00:13:53.120
this is not a major part of the case.

297
00:13:53.120 --> 00:13:56.130
It is three pages of documents

298
00:13:56.130 --> 00:13:58.590
within thousands of documents.

299
00:13:58.590 --> 00:14:03.060
And the sergeant that testified simply says,

300
00:14:03.060 --> 00:14:04.950
this is what, there's no suggestion

301
00:14:04.950 --> 00:14:08.250
that they were defrauding or doing something nefarious.

302
00:14:08.250 --> 00:14:10.650
<v ->But you can see this was a mistake.</v>

303
00:14:10.650 --> 00:14:13.170
<v ->I think it was a mistake in retrospect, yes, Your Honor.</v>

304
00:14:13.170 --> 00:14:14.520
I understand (indistinct).

305
00:14:14.520 --> 00:14:16.030
<v ->You keep saying in hindsight</v>

306
00:14:17.700 --> 00:14:20.550
to argument that it was not ex-anti,

307
00:14:20.550 --> 00:14:23.940
affirmatively irrelevant and just prejudicial.

308
00:14:23.940 --> 00:14:26.010
<v ->Well, I don't think it was completely irrelevant</v>

309
00:14:26.010 --> 00:14:27.960
and prejudicial in a way that would require-

310
00:14:27.960 --> 00:14:29.790
<v ->But how is it to the financial documents?</v>

311
00:14:29.790 --> 00:14:31.233
I mean, that just seems.

312
00:14:32.070 --> 00:14:34.260
Do you have an argument on relevancy on that?

313
00:14:34.260 --> 00:14:37.830
<v ->Yeah, the argument was that it was put into a separate-</v>

314
00:14:37.830 --> 00:14:40.050
<v ->They were paid afterwards have anything to do</v>

315
00:14:40.050 --> 00:14:41.100
with the duty of care?

316
00:14:41.100 --> 00:14:42.303
<v ->There wasn't really,</v>

317
00:14:43.320 --> 00:14:44.850
that was just what the documents said.

318
00:14:44.850 --> 00:14:46.140
And the sergeant was just explaining

319
00:14:46.140 --> 00:14:47.640
what the documents said.

320
00:14:47.640 --> 00:14:48.780
There was no suggestion

321
00:14:48.780 --> 00:14:50.790
that there was any kind of nefarious conduct.

322
00:14:50.790 --> 00:14:54.060
It was they were paid and that established the relationship,

323
00:14:54.060 --> 00:14:56.490
they were overpaid and then they refunded the money.

324
00:14:56.490 --> 00:14:59.280
Which in these types of situations,

325
00:14:59.280 --> 00:15:02.520
when children are being moved from DCF, that happens.

326
00:15:02.520 --> 00:15:04.830
But again, going to, as Justice Lowy pointed out,

327
00:15:04.830 --> 00:15:08.760
I don't think under Mayfield those factors,

328
00:15:08.760 --> 00:15:12.330
this small, tiny piece of evidence, prejudicial or not,

329
00:15:12.330 --> 00:15:15.152
in a grand jury situation, is enough to dismiss the indict-

330
00:15:15.152 --> 00:15:15.990
<v ->What about-</v>
<v ->especially with all</v>

331
00:15:15.990 --> 00:15:17.490
the other evidence. I'm sorry, Your Honor.

332
00:15:17.490 --> 00:15:20.280
<v ->No, it was me, I interrupted you.</v>

333
00:15:20.280 --> 00:15:22.710
But before we lose you,

334
00:15:22.710 --> 00:15:27.150
what about the 12-year-old daughter's testimony

335
00:15:27.150 --> 00:15:31.830
and is there a sort of an O'Dell distortion

336
00:15:31.830 --> 00:15:36.600
as it relates to what is put in and what it isn't put in?

337
00:15:36.600 --> 00:15:39.930
<v ->I think it was a, I do think it was a misstatement</v>

338
00:15:39.930 --> 00:15:44.930
that mischaracterized what she had observed,

339
00:15:46.050 --> 00:15:47.940
in a very specific sense.

340
00:15:47.940 --> 00:15:51.120
But I will say that certainly the grand jury

341
00:15:51.120 --> 00:15:52.620
had access to those statements.

342
00:15:52.620 --> 00:15:56.100
They could have watched the statements in their entirety.

343
00:15:56.100 --> 00:15:58.770
Obviously, we presume that they (indistinct) carefully.

344
00:15:58.770 --> 00:16:00.300
But again, I don't think it's something

345
00:16:00.300 --> 00:16:03.090
that rises to the level,

346
00:16:03.090 --> 00:16:06.330
especially in light of all the other evidence that came in

347
00:16:06.330 --> 00:16:08.280
with regards to how sick this child was

348
00:16:08.280 --> 00:16:10.230
and how dire his situation was,

349
00:16:10.230 --> 00:16:13.233
that this would be something that would be grounds.

350
00:16:14.220 --> 00:16:15.940
<v ->Doesn't the nebulizer treatment</v>

351
00:16:17.790 --> 00:16:20.340
show that they were doing what they thought

352
00:16:20.340 --> 00:16:23.790
they should be doing just within their own experience?

353
00:16:23.790 --> 00:16:28.680
<v ->Well, there's a couple of issues with the nebulizer.</v>

354
00:16:28.680 --> 00:16:29.910
First of all, it wasn't

355
00:16:29.910 --> 00:16:31.680
because he hadn't received any medical care

356
00:16:31.680 --> 00:16:32.790
for this condition.

357
00:16:32.790 --> 00:16:34.210
It was prescribed about two months earlier.

358
00:16:34.210 --> 00:16:36.000
<v ->Sorry, this condition is which?</v>

359
00:16:36.000 --> 00:16:37.620
Can you separate out which condition?

360
00:16:37.620 --> 00:16:40.620
<v ->Sure, the ultimate pneumonia that led to his death.</v>

361
00:16:40.620 --> 00:16:43.050
<v ->Okay, but they didn't know he had pneumonia.</v>

362
00:16:43.050 --> 00:16:44.910
<v ->They didn't because they didn't get him</v>

363
00:16:44.910 --> 00:16:46.230
the medical care that he needed.

364
00:16:46.230 --> 00:16:48.087
<v ->But how would they know that?</v>

365
00:16:48.087 --> 00:16:51.510
How were they to know that the nebulizer treatment

366
00:16:51.510 --> 00:16:54.930
that they had was not what they were supposed to be doing?

367
00:16:54.930 --> 00:16:59.930
I guess I'm just concerned that we're putting too much

368
00:17:02.010 --> 00:17:04.200
on what the parents are expected to know.

369
00:17:04.200 --> 00:17:05.700
They're not doctors.

370
00:17:05.700 --> 00:17:09.090
They have had experience with sick children

371
00:17:09.090 --> 00:17:14.090
and so they did what they do with their sick children.

372
00:17:14.580 --> 00:17:18.270
<v ->Sure, but I think part of the challenge there, Your Honor,</v>

373
00:17:18.270 --> 00:17:22.230
is that he was continuing to get more and more sick

374
00:17:22.230 --> 00:17:24.960
in those last couple of days before he passed away.

375
00:17:24.960 --> 00:17:26.820
So, the nebulizer may have given him

376
00:17:26.820 --> 00:17:29.400
a brief amount of relief, which, you know,

377
00:17:29.400 --> 00:17:31.113
that's what their statement is.

378
00:17:31.950 --> 00:17:35.400
The ME testifies that it likely wouldn't have helped

379
00:17:35.400 --> 00:17:37.650
by the end because the lung was so blocked

380
00:17:37.650 --> 00:17:39.390
that they could have given it to him

381
00:17:39.390 --> 00:17:41.430
and it really wouldn't have made its way into his lungs

382
00:17:41.430 --> 00:17:42.840
to help anyway.

383
00:17:42.840 --> 00:17:44.400
And that it wasn't the right treatment

384
00:17:44.400 --> 00:17:49.080
for this type of infection, and that part of the problem

385
00:17:49.080 --> 00:17:52.770
is that he was getting sicker and sicker,

386
00:17:52.770 --> 00:17:54.720
the other children had gotten better,

387
00:17:54.720 --> 00:17:57.480
and there was no medical care to address the fact

388
00:17:57.480 --> 00:17:58.710
that he wasn't getting better.

389
00:17:58.710 --> 00:18:01.590
So, it wasn't that he had the same thing that they had,

390
00:18:01.590 --> 00:18:03.300
or maybe he had the same cold

391
00:18:03.300 --> 00:18:06.240
and it developed into something worse for him,

392
00:18:06.240 --> 00:18:10.080
given his status, but they didn't react to that.

393
00:18:10.080 --> 00:18:11.250
There was no medical care.

394
00:18:11.250 --> 00:18:12.630
And had they called the doctor,

395
00:18:12.630 --> 00:18:16.920
maybe the doctor would have prescribed the antibiotics

396
00:18:16.920 --> 00:18:19.920
that the ME talks about, that could have been the treatment

397
00:18:19.920 --> 00:18:20.855
in this particular case.

398
00:18:20.855 --> 00:18:23.670
<v ->But strep's pretty unusual in this circumstance.</v>

399
00:18:23.670 --> 00:18:24.960
<v ->It is for this age.</v>

400
00:18:24.960 --> 00:18:27.090
I believe the pediatrician does say that,

401
00:18:27.090 --> 00:18:30.390
but he also does talk about how significant

402
00:18:30.390 --> 00:18:32.127
the breathing is in this child.

403
00:18:32.127 --> 00:18:33.450
And that if a child like that

404
00:18:33.450 --> 00:18:34.590
had been brought into his office,

405
00:18:34.590 --> 00:18:37.050
he would've sent them immediately to the emergency room.

406
00:18:37.050 --> 00:18:40.260
So, this is not-
<v ->Child, big, big,</v>

407
00:18:40.260 --> 00:18:42.130
whatever big.
<v ->Mm hmm.</v>

408
00:18:59.010 --> 00:19:01.260
I think it was about two years before this

409
00:19:01.260 --> 00:19:03.570
and he had been coughing a puss.

410
00:19:03.570 --> 00:19:06.750
And yeah, there's obviously a difference

411
00:19:06.750 --> 00:19:08.310
I think between child.

412
00:19:08.310 --> 00:19:09.900
<v ->He took that four-year-old to the hospital.</v>

413
00:19:09.900 --> 00:19:12.420
<v ->They did take that child to the hospital.</v>

414
00:19:12.420 --> 00:19:13.740
They also called the doctor

415
00:19:13.740 --> 00:19:16.443
about one of their other children who had been sick,

416
00:19:17.820 --> 00:19:18.960
because they were concerned about her.

417
00:19:18.960 --> 00:19:23.730
But her fever had never risen as high as this child.

418
00:19:23.730 --> 00:19:26.010
<v ->102's not that high for a little kid. Right?</v>

419
00:19:26.010 --> 00:19:28.860
<v ->I think it is, but I'm not a parent,</v>

420
00:19:28.860 --> 00:19:31.620
so, I don't take baby's temperatures all that often.

421
00:19:31.620 --> 00:19:36.620
But I think 102, both the doctor, the pediatrician

422
00:19:37.230 --> 00:19:38.830
and Cassandra also says

423
00:19:40.620 --> 00:19:43.320
that when your fever gets to that high watch.

424
00:19:43.320 --> 00:19:44.153
But nothing happens.

425
00:19:44.153 --> 00:19:45.510
And in addition to having a fever,

426
00:19:45.510 --> 00:19:47.760
he had other signs that he wasn't well,

427
00:19:47.760 --> 00:19:49.830
that he was coughing and struggling to breathe

428
00:19:49.830 --> 00:19:53.940
and was looking ill and was lethargic and wasn't drinking.

429
00:19:53.940 --> 00:19:56.310
And they comment that his diapers were more dry.

430
00:19:56.310 --> 00:19:59.820
And this is all happening in the days before.

431
00:19:59.820 --> 00:20:01.440
So, I see my time's up,

432
00:20:01.440 --> 00:20:03.690
but I just wanna make this point real quick.

433
00:20:03.690 --> 00:20:06.030
They also indicate to the police

434
00:20:06.030 --> 00:20:07.350
two things that are problematic.

435
00:20:07.350 --> 00:20:10.740
First, that they had called DCF to take him to the doctor,

436
00:20:10.740 --> 00:20:12.360
which did not happen.

437
00:20:12.360 --> 00:20:14.400
But to me that suggests that they understood

438
00:20:14.400 --> 00:20:16.200
that this child needed medical care.

439
00:20:17.940 --> 00:20:20.310
And then, there is the comment in which they...

440
00:20:20.310 --> 00:20:22.080
Going to the doctor with one of their other kids

441
00:20:22.080 --> 00:20:24.300
and taking him along to be seen.

442
00:20:24.300 --> 00:20:27.510
That to me indicates that they had an awareness

443
00:20:27.510 --> 00:20:29.463
that this child needed medical care,

444
00:20:30.660 --> 00:20:33.060
but they didn't act on that duty.

445
00:20:33.060 --> 00:20:36.300
If there are no further other questions, Your Honors.

446
00:20:36.300 --> 00:20:37.133
<v ->Thank you.</v>

447
00:20:38.610 --> 00:20:41.583
Okay, attorney Daniels.

448
00:20:44.430 --> 00:20:46.470
<v ->Good morning, may it please the court.</v>

449
00:20:46.470 --> 00:20:48.060
My name is attorney Josh Daniels,

450
00:20:48.060 --> 00:20:49.980
I'm appearing for Matthew Tucker.

451
00:20:49.980 --> 00:20:52.110
With me is attorney Nancy Dolberg,

452
00:20:52.110 --> 00:20:56.160
who is appearing for Cassandra Barlow-Tucker.

453
00:20:56.160 --> 00:20:57.390
I don't know if they're here yet,

454
00:20:57.390 --> 00:21:00.720
but I know that the Tuckers were planning to attend.

455
00:21:00.720 --> 00:21:04.260
Just by way of a roadmap, my focus will be on probable cause

456
00:21:04.260 --> 00:21:06.660
while attorney Dolberg will address the material

457
00:21:07.860 --> 00:21:09.540
impairment of the grand jury.

458
00:21:09.540 --> 00:21:12.000
And together we're asking you to affirm (indistinct)

459
00:21:12.000 --> 00:21:13.530
Judge Agostini gave.

460
00:21:13.530 --> 00:21:16.710
<v ->We laid out the factual issue about whether or not</v>

461
00:21:16.710 --> 00:21:18.750
they should have gone to medical intervention.

462
00:21:18.750 --> 00:21:20.940
And I think as I read the record,

463
00:21:20.940 --> 00:21:24.483
and correct me if any of these are wrong. Okay?

464
00:21:26.130 --> 00:21:28.410
As far as what the parents have for evidence,

465
00:21:28.410 --> 00:21:32.493
we have a persistent cough, we have a lack of fluids,

466
00:21:33.840 --> 00:21:37.083
a fever, and lethargy. Correct?

467
00:21:38.310 --> 00:21:43.310
<v ->We have an on and, that's mostly correct, I think.</v>

468
00:21:44.370 --> 00:21:45.940
<v ->Tell me what's wrong about that.</v>

469
00:21:45.940 --> 00:21:48.060
Or if there's anything I'm missing.

470
00:21:48.060 --> 00:21:51.420
<v ->So, there is some suggestion that he's drinking less.</v>

471
00:21:51.420 --> 00:21:55.530
They are making concerted efforts to keep him hydrated.

472
00:21:55.530 --> 00:21:59.160
There is evidence that he is lethargic,

473
00:21:59.160 --> 00:22:02.190
there is evidence of persistent coughing.

474
00:22:02.190 --> 00:22:05.070
And the fever, I think is mostly described as off and on.

475
00:22:05.070 --> 00:22:06.780
It comes on in the morning and then

476
00:22:06.780 --> 00:22:10.080
as he gets fluids into him, and goes throughout the day,

477
00:22:10.080 --> 00:22:11.437
it comes right back down.

478
00:22:11.437 --> 00:22:14.310
<v ->There was some testimony, I think it was from your client</v>

479
00:22:14.310 --> 00:22:18.453
about feeding, administering fluids by an eye dropper.

480
00:22:19.620 --> 00:22:21.780
<v ->I think that was liquids.</v>

481
00:22:21.780 --> 00:22:23.580
There's also a mention of a sippy cup.

482
00:22:23.580 --> 00:22:27.243
I forget which parent mentions that.

483
00:22:29.080 --> 00:22:31.620
<v ->But it was at the state where they had to use-</v>

484
00:22:31.620 --> 00:22:34.260
<v ->A syringe to push fluids.</v>

485
00:22:34.260 --> 00:22:35.310
Yes.
<v ->Right.</v>

486
00:22:35.310 --> 00:22:37.500
Which is concerning.
<v ->It is.</v>

487
00:22:37.500 --> 00:22:41.910
But I think where I plan to begin is

488
00:22:41.910 --> 00:22:45.540
I think we need to unpack the nature of the risk

489
00:22:45.540 --> 00:22:47.520
that needs to be appreciated for recklessness,

490
00:22:47.520 --> 00:22:50.490
because I don't think it's actually in the abstract

491
00:22:50.490 --> 00:22:52.897
whether you know that this person

492
00:22:52.897 --> 00:22:54.990
has to be taken to the doctor.

493
00:22:54.990 --> 00:22:57.360
The risk is more specific than that

494
00:22:57.360 --> 00:22:58.760
that you need to appreciate.

495
00:22:59.730 --> 00:23:02.400
The reasonable person must appreciate

496
00:23:02.400 --> 00:23:04.680
that there is a high degree of likelihood of death

497
00:23:04.680 --> 00:23:08.700
or grave bodily harm, not just continued discomfort,

498
00:23:08.700 --> 00:23:10.680
not just continued sickness.

499
00:23:10.680 --> 00:23:14.820
And so, I think we need to keep the nature of the risk

500
00:23:14.820 --> 00:23:16.953
that needs to be appreciated in mind.

501
00:23:17.820 --> 00:23:20.430
The other thing I want to sort of stress,

502
00:23:20.430 --> 00:23:23.730
I plan to end with this, but I may not get there, is-

503
00:23:23.730 --> 00:23:26.040
<v ->Wait, on your first stressful point.</v>

504
00:23:26.040 --> 00:23:27.630
<v ->Yep.</v>

505
00:23:27.630 --> 00:23:30.330
<v ->What about the evidence</v>

506
00:23:30.330 --> 00:23:32.860
that Justice Gaziano just summarized

507
00:23:35.250 --> 00:23:37.920
doesn't lead to probable cause

508
00:23:37.920 --> 00:23:41.790
that would've understood the risk to the baby?

509
00:23:41.790 --> 00:23:44.250
<v ->I think where it falls down is sort of</v>

510
00:23:44.250 --> 00:23:47.593
high likelihood of death or grave bodily harm.

511
00:23:47.593 --> 00:23:51.630
I think it's undisputed that they know that the-

512
00:23:51.630 --> 00:23:54.120
<v ->Respectfully, I think you may be misstating the standard.</v>

513
00:23:54.120 --> 00:23:56.870
As I read Levesque and Welansky

514
00:23:56.870 --> 00:23:59.437
in the model homicide instructions,

515
00:23:59.437 --> 00:24:01.410
"A failure to act as wanton and reckless

516
00:24:01.410 --> 00:24:03.330
involves a high degree of likelihood

517
00:24:03.330 --> 00:24:05.220
that substantial harm will result

518
00:24:05.220 --> 00:24:07.260
to the person to whom the duty is owed."

519
00:24:07.260 --> 00:24:10.727
<v ->Correct, and in Carrillo-</v>
<v ->You said death or-</v>

520
00:24:10.727 --> 00:24:14.490
<v ->That's how Carrillo defines what substantial harms means</v>

521
00:24:14.490 --> 00:24:17.760
in this context is death or grave bodily harm.

522
00:24:17.760 --> 00:24:21.390
<v ->Well, the Carrillo context was an overdose, correct?</v>

523
00:24:21.390 --> 00:24:23.070
<v ->Pardon?</v>
<v ->Carrillo was an overdose.</v>

524
00:24:23.070 --> 00:24:25.260
<v ->Yes, but it's still about,</v>

525
00:24:25.260 --> 00:24:27.480
it's still involuntary manslaughter.

526
00:24:27.480 --> 00:24:29.280
It's still recklessness I think it's-

527
00:24:29.280 --> 00:24:30.509
<v ->I understand what Carrillo is about.</v>

528
00:24:30.509 --> 00:24:34.080
But anyway, we'll look at that.

529
00:24:34.080 --> 00:24:35.943
<v ->So, he's 10 months old though.</v>

530
00:24:37.440 --> 00:24:38.963
Sorry, did I cut you off?

531
00:24:38.963 --> 00:24:41.100
<v ->It's 10 months.</v>
<v ->Right, the child's</v>

532
00:24:41.100 --> 00:24:46.100
10 months old and that video is deeply shocking. Right?

533
00:24:48.570 --> 00:24:52.440
There's just, it's heartbreaking to listen to that

534
00:24:52.440 --> 00:24:56.010
level of roaring coming out of that little kid.

535
00:24:56.010 --> 00:24:58.950
That's the hard part for you, isn't it?

536
00:24:58.950 --> 00:25:00.810
To deal with that.

537
00:25:00.810 --> 00:25:03.003
That's not, I mean,

538
00:25:04.950 --> 00:25:08.883
that's not ordinary, it's really loud.

539
00:25:10.380 --> 00:25:12.450
The kid is clearly gasping. Right?

540
00:25:12.450 --> 00:25:14.040
<v ->So, a few things about the video.</v>

541
00:25:14.040 --> 00:25:18.270
The first thing I just want to reemphasize again is

542
00:25:18.270 --> 00:25:23.270
as I mentioned in my brief, there's a real bias here

543
00:25:23.520 --> 00:25:26.310
because everyone who has ever seen that video

544
00:25:26.310 --> 00:25:28.860
has done so with the foreknowledge of what the outcome is.

545
00:25:28.860 --> 00:25:33.860
And I think that sort of inevitably colors how bad it sounds

546
00:25:34.350 --> 00:25:36.382
because we know what it leads to.

547
00:25:36.382 --> 00:25:38.040
<v ->I think you do a very good job of that.</v>

548
00:25:38.040 --> 00:25:40.683
But again, it's,

549
00:25:42.660 --> 00:25:46.590
it's the level of the...

550
00:25:46.590 --> 00:25:49.470
versus getting on the phone at least

551
00:25:49.470 --> 00:25:54.470
and calling a doctor or taking the kid to a doctor.

552
00:25:55.620 --> 00:25:59.627
'Cause it's not an ordinary coughing sound. Right?

553
00:26:00.810 --> 00:26:03.000
It's just, it sounds...

554
00:26:03.000 --> 00:26:05.260
<v ->So, the other thing I would say is</v>

555
00:26:06.120 --> 00:26:10.317
to remind us all that recording just often distorts

556
00:26:12.390 --> 00:26:14.970
even as it captures and playback distorts again,

557
00:26:14.970 --> 00:26:16.620
and to unpack what I mean by that.

558
00:26:16.620 --> 00:26:20.070
<v ->But you're at the probable cause standard, right?</v>

559
00:26:20.070 --> 00:26:21.420
<v ->Correct.</v>
<v ->So I think, you know,</v>

560
00:26:21.420 --> 00:26:22.320
those are great argue...

561
00:26:22.320 --> 00:26:24.650
but right now, we should stick to basics.

562
00:26:24.650 --> 00:26:26.580
<v ->At the very least, I think it's relevant</v>

563
00:26:26.580 --> 00:26:29.280
in terms of deciding whether this is close enough

564
00:26:29.280 --> 00:26:31.530
for the grand jury, for the O'Dell arguments

565
00:26:31.530 --> 00:26:33.993
not to preempt what my sister is about to say,

566
00:26:34.830 --> 00:26:38.300
for those to actually matter, for there to be a fair...

567
00:26:40.410 --> 00:26:42.300
Distortions in the grand jury process

568
00:26:42.300 --> 00:26:43.500
really did matter here.

569
00:26:43.500 --> 00:26:45.420
<v ->But could you argue the other way though,</v>

570
00:26:45.420 --> 00:26:49.200
as it relates to the blogs and the discussions

571
00:26:49.200 --> 00:26:54.200
of how frustrating it is to go to the emergency room,

572
00:26:56.130 --> 00:26:59.400
how frustrating it is to (indistinct) health,

573
00:26:59.400 --> 00:27:04.400
and the palpable reticence that Cassandra's discussing

574
00:27:05.700 --> 00:27:10.650
about the whole process of dealing with a sick child

575
00:27:10.650 --> 00:27:13.950
after hours.

576
00:27:13.950 --> 00:27:17.370
<v ->I think what my colleague is going to say.</v>

577
00:27:17.370 --> 00:27:20.130
I think one thing to sort of keep in mind

578
00:27:20.130 --> 00:27:22.770
is also that the Big D situation is different

579
00:27:22.770 --> 00:27:25.020
in ways besides age.

580
00:27:25.020 --> 00:27:30.020
It's also that it's hard to suss out

581
00:27:31.015 --> 00:27:34.260
what he's under reporting, his symptoms,

582
00:27:34.260 --> 00:27:35.490
but there's also suggestion

583
00:27:35.490 --> 00:27:37.350
that he's over reporting his symptoms

584
00:27:37.350 --> 00:27:40.050
because he likes how the medicine tastes.

585
00:27:40.050 --> 00:27:42.210
The last thing I just wanna wrap up with

586
00:27:42.210 --> 00:27:45.280
if that's all right, is I think we need to be

587
00:27:46.620 --> 00:27:49.200
really careful not to get so hyper-focused

588
00:27:49.200 --> 00:27:52.200
on the specifics here, and it is voluminous,

589
00:27:52.200 --> 00:27:55.710
but we need to not lose sight of the basic,

590
00:27:55.710 --> 00:27:58.080
line drawing problem that this case represents,

591
00:27:58.080 --> 00:28:00.660
which is that the kinds of decisions

592
00:28:00.660 --> 00:28:03.840
that we are talking about here, how serious is this?

593
00:28:03.840 --> 00:28:06.150
Do I need to take my kid to the doctor?

594
00:28:06.150 --> 00:28:08.100
Is what's in the medicine cabinet enough?

595
00:28:08.100 --> 00:28:11.760
Is this a dire emergency or is this just a bad night?

596
00:28:11.760 --> 00:28:13.560
These are decisions that all parents

597
00:28:13.560 --> 00:28:14.670
have to make constantly.

598
00:28:14.670 --> 00:28:15.930
They usually have to make them

599
00:28:15.930 --> 00:28:18.450
on the basis of imperfect information,

600
00:28:18.450 --> 00:28:21.810
equivocal information, incomplete information,

601
00:28:21.810 --> 00:28:23.550
and it can be really hard to suss out.

602
00:28:23.550 --> 00:28:27.450
And what this court has said for going on 40 years now,

603
00:28:27.450 --> 00:28:29.910
is that while it's possible

604
00:28:29.910 --> 00:28:31.650
to make these sorts of misjudgments,

605
00:28:31.650 --> 00:28:34.860
those misjudgments just aren't recklessness

606
00:28:34.860 --> 00:28:38.010
no matter how terrible the consequences end up being,

607
00:28:38.010 --> 00:28:40.530
even the death of a child.

608
00:28:40.530 --> 00:28:43.710
I think Judge Agostini appreciated all of this

609
00:28:43.710 --> 00:28:46.200
and I would urge this court to do the same

610
00:28:46.200 --> 00:28:47.310
and affirm his decision.

611
00:28:47.310 --> 00:28:50.163
If there are no other questions, I'll turn it over.

612
00:28:51.110 --> 00:28:53.610
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

613
00:28:55.200 --> 00:28:56.590
<v ->Okay, attorney Dolberg.</v>

614
00:28:57.810 --> 00:29:02.810
<v ->Your Honor, may it please the court, I'm Nancy Dolberg</v>

615
00:29:02.940 --> 00:29:04.560
on behalf of Cassandra Barlow...

616
00:29:04.560 --> 00:29:06.630
Before I begin on the O'Dell argument,

617
00:29:06.630 --> 00:29:08.220
I just really do wanna point out,

618
00:29:08.220 --> 00:29:12.180
because I think the Commonwealth has overstated

619
00:29:12.180 --> 00:29:15.150
the testimony of Ms. Wood who was in the home

620
00:29:15.150 --> 00:29:16.440
three days before.

621
00:29:16.440 --> 00:29:19.530
What she actually said was she vaguely remembered

622
00:29:19.530 --> 00:29:22.050
having a quick, look, like, maybe he needed

623
00:29:22.050 --> 00:29:23.340
to be seen by someone.

624
00:29:23.340 --> 00:29:26.760
And also had a vague recollection of Cassandra's intention

625
00:29:26.760 --> 00:29:28.350
to bring him to the doctor

626
00:29:28.350 --> 00:29:30.300
if his condition worsened the next day.

627
00:29:30.300 --> 00:29:31.560
<v ->Can I ask one follow-up on that?</v>

628
00:29:31.560 --> 00:29:34.620
<v ->Of course.</v>
<v ->Did she actually,</v>

629
00:29:34.620 --> 00:29:37.890
the child, child was ill, right?

630
00:29:37.890 --> 00:29:40.470
So, she doesn't get to spend much time with him.

631
00:29:40.470 --> 00:29:45.120
<v ->She's working with the younger daughter in the family</v>

632
00:29:45.120 --> 00:29:47.370
who has cerebral palsy.
<v ->Right.</v>

633
00:29:47.370 --> 00:29:49.830
<v ->Not cystic fibrosis as is something I'll get to,</v>

634
00:29:49.830 --> 00:29:52.560
but they were in the same room.

635
00:29:52.560 --> 00:29:56.040
<v ->So, they're in the same room and she's not even there</v>

636
00:29:56.040 --> 00:29:59.190
for that child.
<v ->Right.</v>

637
00:29:59.190 --> 00:30:00.990
<v ->Mm, maybe you should go to the doctor with that kid.</v>

638
00:30:00.990 --> 00:30:04.320
<v ->Well, she notices that he has a respiratory cold.</v>

639
00:30:04.320 --> 00:30:05.940
That's how it struck her.

640
00:30:05.940 --> 00:30:08.797
And she makes a comment like many of us do.

641
00:30:08.797 --> 00:30:13.200
"Oh, do you think he should be seen by anyone?"

642
00:30:13.200 --> 00:30:15.270
Now, the whole family had been sick.

643
00:30:15.270 --> 00:30:19.500
In fact, two weeks at that point and had just,

644
00:30:19.500 --> 00:30:22.800
all her early intervention appointments

645
00:30:22.800 --> 00:30:24.420
had been canceled until that day.

646
00:30:24.420 --> 00:30:26.670
<v ->The youngest daughter was how old?</v>

647
00:30:26.670 --> 00:30:27.600
<v ->Two, I think.</v>

648
00:30:27.600 --> 00:30:30.960
<v ->And that was the child with cerebral palsy?</v>

649
00:30:30.960 --> 00:30:32.817
<v Nancy>That is the child with cerebral palsy, Your Honor.</v>

650
00:30:32.817 --> 00:30:34.850
<v ->And she was told not to bring that...</v>

651
00:30:35.825 --> 00:30:39.720
<v ->She had really about the same length of illness.</v>

652
00:30:39.720 --> 00:30:41.040
<v ->So, turn to the issue</v>

653
00:30:41.040 --> 00:30:43.560
that you have divvied up with counsel.

654
00:30:43.560 --> 00:30:45.660
<v ->Yes, yes, yes, yes.</v>
<v ->Before we side track</v>

655
00:30:45.660 --> 00:30:46.493
both of you.

656
00:30:49.058 --> 00:30:51.930
The issue of the (indistinct), former trial judge

657
00:30:51.930 --> 00:30:53.850
you would say, "Boy, that's not admissible

658
00:30:53.850 --> 00:30:55.350
and it's overly prejudicial

659
00:30:55.350 --> 00:30:57.510
and the probative value's minimal."

660
00:30:57.510 --> 00:31:00.840
We're in the grand jury stage, however,

661
00:31:00.840 --> 00:31:03.880
and what concerns me about the motion judge's decision

662
00:31:05.400 --> 00:31:07.620
is he never mentioned instruction

663
00:31:07.620 --> 00:31:11.880
that Commonwealth gave the grand jurors in his analysis.

664
00:31:11.880 --> 00:31:13.290
Is that a problem?

665
00:31:13.290 --> 00:31:16.380
<v ->I would say it's not a problem for many reasons.</v>

666
00:31:16.380 --> 00:31:21.380
That instruction just went to the blog posts.

667
00:31:22.080 --> 00:31:25.143
It did not, categories that I hope to get to today.

668
00:31:25.992 --> 00:31:30.240
It gave the jury permission to consider

669
00:31:30.240 --> 00:31:33.840
all of the blog posts as to the nature of a relationship

670
00:31:33.840 --> 00:31:36.690
that was totally removed, and respectfully, I think,

671
00:31:36.690 --> 00:31:38.490
highly irrelevant to this situation,

672
00:31:38.490 --> 00:31:40.200
not just highly prejudicial,

673
00:31:40.200 --> 00:31:43.500
but highly irrelevant because it was an older child

674
00:31:43.500 --> 00:31:45.990
with a completely different set of issues.

675
00:31:45.990 --> 00:31:50.990
And as the DCF worker said, this was about Cassandra venting

676
00:31:51.210 --> 00:31:54.660
about shortcomings in the foster care system

677
00:31:54.660 --> 00:31:56.550
and difficulties of fostering.

678
00:31:56.550 --> 00:31:59.219
It did not have anything to do with the care of children.

679
00:31:59.219 --> 00:32:00.120
<v ->Really?</v>
<v ->That was not presented</v>

680
00:32:00.120 --> 00:32:02.910
to the grand jury.
<v ->I agree that most,</v>

681
00:32:02.910 --> 00:32:07.290
a lot of what the officer testifies to seems inappropriate.

682
00:32:07.290 --> 00:32:11.250
But some of it, I mean, some of it,

683
00:32:11.250 --> 00:32:15.153
particularly regarding the big child seems relevant.

684
00:32:15.989 --> 00:32:20.577
That one, they're angry that they have to go to the doctor

685
00:32:20.577 --> 00:32:25.577
and how burdensome it is that this child had strep.

686
00:32:28.710 --> 00:32:31.560
Meaning they must have got some discussion

687
00:32:31.560 --> 00:32:33.360
about what strep can mean.

688
00:32:33.360 --> 00:32:35.160
You know, it just, it doesn't seem,

689
00:32:35.160 --> 00:32:37.200
that part seems relevant.

690
00:32:37.200 --> 00:32:39.780
It may have been layered on

691
00:32:39.780 --> 00:32:42.180
with a bunch of stuff that's inflammatory,

692
00:32:42.180 --> 00:32:45.690
but that part seems quite relevant when the issue is

693
00:32:45.690 --> 00:32:49.080
did they not go to the doctor for the right reasons

694
00:32:49.080 --> 00:32:51.840
or the wrong reasons, or reckless reasons,

695
00:32:51.840 --> 00:32:53.550
or negligent reasons?

696
00:32:53.550 --> 00:32:55.500
<v ->I would like to respond to Your Honor,</v>

697
00:32:55.500 --> 00:32:56.940
and then get back to,

698
00:32:56.940 --> 00:32:58.735
and I would like to finish also the-

699
00:32:58.735 --> 00:33:00.420
<v ->Yeah, no, I don't wanna-</v>
<v ->And then to (indistinct).</v>

700
00:33:00.420 --> 00:33:02.760
<v ->I don't wanna cut Justice Gaziano off.</v>

701
00:33:02.760 --> 00:33:05.433
<v ->No, I will get to everyone. Thank you.</v>

702
00:33:06.900 --> 00:33:10.770
So, this was a child who was much older

703
00:33:10.770 --> 00:33:13.620
than the 10-month-old we're talking about here.

704
00:33:13.620 --> 00:33:17.520
The illness that this 10-month-old had was very rare.

705
00:33:17.520 --> 00:33:22.080
And I can't tell you, like, one in how many thousands.

706
00:33:22.080 --> 00:33:24.600
Even a doctor wouldn't suspect that a child

707
00:33:24.600 --> 00:33:26.100
would have this strep A.

708
00:33:26.100 --> 00:33:29.820
And they didn't have any idea that their other child had it

709
00:33:29.820 --> 00:33:33.990
until after, unfortunately, the death of this child.

710
00:33:33.990 --> 00:33:38.990
So, all of this about Big D was about venting with DCF.

711
00:33:39.270 --> 00:33:42.000
They didn't apparently give a Mass health card.

712
00:33:42.000 --> 00:33:44.880
We all know it's impossible to go to the emergency room

713
00:33:44.880 --> 00:33:47.730
with a sick child, so, that's not something you favor.

714
00:33:47.730 --> 00:33:49.293
In this case, Big D-

715
00:33:51.420 --> 00:33:53.070
<v ->You don't go to the emergency room,</v>

716
00:33:53.070 --> 00:33:55.200
a lot of us go to-
<v ->No, no.</v>

717
00:33:55.200 --> 00:33:57.690
Unless someone's really sick, do you wanna spend all night

718
00:33:57.690 --> 00:33:58.523
in the emergency room?

719
00:33:58.523 --> 00:34:02.024
But what that venting was about was,

720
00:34:02.024 --> 00:34:03.000
<v ->That's the issue.</v>
<v ->I wish Big D</v>

721
00:34:03.000 --> 00:34:05.670
could have told us sooner so that we could take him

722
00:34:05.670 --> 00:34:07.860
to a routine appointment.

723
00:34:07.860 --> 00:34:11.490
So, as to that, as to the instruction,

724
00:34:11.490 --> 00:34:12.930
and I'm happy to return to this

725
00:34:12.930 --> 00:34:13.763
as well.
<v ->No, no.</v>

726
00:34:13.763 --> 00:34:14.596
Go to Justice Gaziano.
<v ->As the instruction,</v>

727
00:34:14.596 --> 00:34:16.680
not only was it only about the blog post,

728
00:34:16.680 --> 00:34:19.860
not only did it give, unlike the other cases that have found

729
00:34:19.860 --> 00:34:22.830
instructions to be effective, permission to the jury

730
00:34:22.830 --> 00:34:27.210
to consider all of the information, it was given,

731
00:34:27.210 --> 00:34:29.760
even though there were at least 15 pages

732
00:34:29.760 --> 00:34:31.560
devoted just to the blog post,

733
00:34:31.560 --> 00:34:33.540
it was not given at the beginning of that.

734
00:34:33.540 --> 00:34:35.460
It wasn't even given at the end of that.

735
00:34:35.460 --> 00:34:39.090
It was given after the prosecution,

736
00:34:39.090 --> 00:34:42.150
after the jury went to lunch.

737
00:34:42.150 --> 00:34:44.081
<v ->Yeah, I have it in your brief when you said it was given-</v>

738
00:34:44.081 --> 00:34:45.042
<v ->Oh, I'm sorry.</v>

739
00:34:45.042 --> 00:34:46.530
<v ->No, I mean, you said it was given after lunch.</v>

740
00:34:46.530 --> 00:34:49.916
I think it was, because we've never said

741
00:34:49.916 --> 00:34:54.000
in any reported decision, forget any limited instructions

742
00:34:54.000 --> 00:34:56.520
given after lunch, or if it was given at the end,

743
00:34:56.520 --> 00:34:58.633
versus the beginning.
<v ->I agree, Your Honor.</v>

744
00:34:58.633 --> 00:35:00.660
But it was not given at the beginning either which is-

745
00:35:00.660 --> 00:35:04.020
<v ->In your well done brief I didn't really get that part.</v>

746
00:35:04.020 --> 00:35:05.784
Agree with that part.
<v ->It wasn't given</v>

747
00:35:05.784 --> 00:35:08.910
at the beginning, but I don't really think

748
00:35:08.910 --> 00:35:11.280
that any instruction, on top of all of that,

749
00:35:11.280 --> 00:35:13.500
I don't think any instruction would've been effective here

750
00:35:13.500 --> 00:35:16.740
because the Commonwealth engaged in the pervasive use

751
00:35:16.740 --> 00:35:18.270
of false and misleading evidence,

752
00:35:18.270 --> 00:35:20.610
really to depict a wildly inaccurate

753
00:35:20.610 --> 00:35:21.670
picture of these people.

754
00:35:21.670 --> 00:35:23.790
<v ->Are we, we're in Mayfield now?</v>

755
00:35:23.790 --> 00:35:26.730
<v ->Yes, and I would say the judge clearly did find</v>

756
00:35:26.730 --> 00:35:27.780
the third Mayfield...

757
00:35:28.800 --> 00:35:31.170
found that this evidence undoubtedly tended to

758
00:35:31.170 --> 00:35:34.740
influence the lens through which the grand jury

759
00:35:34.740 --> 00:35:37.320
judged the Tucker's conduct and choices

760
00:35:37.320 --> 00:35:39.570
with respect to the child's illness.

761
00:35:39.570 --> 00:35:43.920
His decision was about Mayfield.

762
00:35:43.920 --> 00:35:47.190
So, I disagree with the...

763
00:35:47.190 --> 00:35:50.103
The combination and I would like to run through briefly,

764
00:35:51.300 --> 00:35:56.290
if I may, what led to this gross distortion

765
00:35:57.180 --> 00:35:59.190
of the Tuckers as a kind of neglectful,

766
00:35:59.190 --> 00:36:03.420
uncaring foster parents who wouldn't wanna take children

767
00:36:03.420 --> 00:36:05.310
to the doctor, who were in the,

768
00:36:05.310 --> 00:36:07.020
and who would be callously indifferent

769
00:36:07.020 --> 00:36:08.370
to a child's medical needs.

770
00:36:08.370 --> 00:36:10.890
And that does start with the financial information.

771
00:36:10.890 --> 00:36:13.050
And I won't belabor it because I believe the court

772
00:36:13.050 --> 00:36:15.840
recognizes that this information

773
00:36:15.840 --> 00:36:17.850
about what they received in payment,

774
00:36:17.850 --> 00:36:20.460
not only for the care of the child,

775
00:36:20.460 --> 00:36:23.610
but for their adopted children, was, you know,

776
00:36:23.610 --> 00:36:26.460
emphasized by the grand jury. It was presented to them.

777
00:36:26.460 --> 00:36:29.100
It was in testimony emphasized to them.

778
00:36:29.100 --> 00:36:34.100
In terms of the blog posts, I really, you know,

779
00:36:34.290 --> 00:36:37.170
the language that they used was very inflammatory.

780
00:36:37.170 --> 00:36:39.570
And it was introduced by the district attorney

781
00:36:39.570 --> 00:36:43.020
as meaningful because, again, the Tuckers saw this

782
00:36:43.020 --> 00:36:45.660
as a job for money and didn't like to take children

783
00:36:45.660 --> 00:36:48.300
to routine medical care appointments,

784
00:36:48.300 --> 00:36:51.870
which later they provided other information about it

785
00:36:51.870 --> 00:36:53.850
that was deceptive, I will get to.

786
00:36:53.850 --> 00:36:58.230
In terms of the judge's findings,

787
00:36:58.230 --> 00:37:01.680
they stated falsely that the Tuckers had been disciplined.

788
00:37:01.680 --> 00:37:03.360
That was false.

789
00:37:03.360 --> 00:37:06.900
And in fact, they never told the grand jury

790
00:37:06.900 --> 00:37:09.900
what the social workers actually had to say about them,

791
00:37:09.900 --> 00:37:12.487
which was typically, oh, let's see.

792
00:37:12.487 --> 00:37:15.030
"Matthew and Cassandra are probably honestly

793
00:37:15.030 --> 00:37:18.090
two of the most conscientious, engaging, forthcoming

794
00:37:18.090 --> 00:37:19.130
foster parents-"
<v ->That was buried</v>

795
00:37:19.130 --> 00:37:20.643
in the written documents.

796
00:37:21.480 --> 00:37:25.500
<v ->That is on a DVD one of four DV... to workers.</v>

797
00:37:25.500 --> 00:37:27.042
And then there were other DVDs.

798
00:37:27.042 --> 00:37:28.350
There were 2,000 pages.

799
00:37:28.350 --> 00:37:29.250
<v ->And I take your quote</v>

800
00:37:29.250 --> 00:37:31.410
to Justice Hines appeals court decision

801
00:37:31.410 --> 00:37:34.170
<v ->I'm sorry, I don't think that's a satisfactory excuse.</v>

802
00:37:34.170 --> 00:37:37.000
That was hidden and it does bring to mind a very

803
00:37:39.240 --> 00:37:42.997
nice comment made in another case that the...

804
00:37:42.997 --> 00:37:45.060
"But the Commonwealth can't hide the evidence

805
00:37:45.060 --> 00:37:46.290
and expect the grand jury to find it."

806
00:37:46.290 --> 00:37:48.540
<v Justice Gaziano>That was the Justice Hines quote.</v>

807
00:37:48.540 --> 00:37:49.950
<v ->I'm sorry?</v>
<v ->That's Justice Hines's-</v>

808
00:37:49.950 --> 00:37:51.360
<v ->Yeah, it's Justice Hines in Hunt.</v>

809
00:37:51.360 --> 00:37:52.510
It's a wonderful quote.

810
00:37:54.870 --> 00:37:59.550
So, and they, this kind of, and it is clear by the way

811
00:37:59.550 --> 00:38:02.190
that the jury was affected by

812
00:38:02.190 --> 00:38:04.350
what the judge complained about,

813
00:38:04.350 --> 00:38:06.540
because they wanted to know, you know,

814
00:38:06.540 --> 00:38:09.420
what happened to Big D?

815
00:38:09.420 --> 00:38:12.870
Even the Commonwealth concedes that the exchange about that

816
00:38:12.870 --> 00:38:14.820
would have led the grand jury to believe

817
00:38:14.820 --> 00:38:16.770
that he was removed for substandard care

818
00:38:16.770 --> 00:38:19.560
and the record indicates otherwise.

819
00:38:19.560 --> 00:38:23.130
As to the statement of the daughter,

820
00:38:23.130 --> 00:38:26.370
the true statement of their daughter,

821
00:38:26.370 --> 00:38:31.370
who was described as being 12, was that, let's see,

822
00:38:32.003 --> 00:38:36.270
he was asked by the district attorney

823
00:38:36.270 --> 00:38:39.390
did he watch this video of the statement

824
00:38:39.390 --> 00:38:41.910
and what did the daughter have to say?

825
00:38:41.910 --> 00:38:44.700
And he said that she said he was struggling to breathe

826
00:38:44.700 --> 00:38:46.950
the day before he died.

827
00:38:46.950 --> 00:38:49.170
Actually what she said that he was coughing a little bit

828
00:38:49.170 --> 00:38:51.240
and having a little trouble breathing.

829
00:38:51.240 --> 00:38:53.850
That he was getting better, seemed fine,

830
00:38:53.850 --> 00:38:55.590
and pretty cheerful.

831
00:38:55.590 --> 00:38:57.840
But she never said he was struggling to breathe.

832
00:38:57.840 --> 00:39:01.770
And this is the juror's comment in response to this

833
00:39:01.770 --> 00:39:03.367
is so significant.

834
00:39:03.367 --> 00:39:06.210
"I'm struck that their 12-year-old daughter recognizes

835
00:39:06.210 --> 00:39:08.880
that the child is struggling to breathe

836
00:39:08.880 --> 00:39:11.460
and yet the father states that they believed

837
00:39:11.460 --> 00:39:13.200
he was going to be okay."

838
00:39:13.200 --> 00:39:15.637
And then the juror asked the trooper,

839
00:39:15.637 --> 00:39:17.760
"whether you believed him."

840
00:39:17.760 --> 00:39:22.023
So, it's clear from all of this that the jury was,

841
00:39:22.968 --> 00:39:26.070
the credibility of the Tuckers was undermined

842
00:39:26.070 --> 00:39:27.450
by this false testimony

843
00:39:27.450 --> 00:39:30.480
and the failure to indicate the whole statement,

844
00:39:30.480 --> 00:39:34.800
which supports their statements.

845
00:39:34.800 --> 00:39:39.450
And by the way, this misstatement and omission

846
00:39:39.450 --> 00:39:42.030
immediately followed Matthew's statement,

847
00:39:42.030 --> 00:39:44.640
which immediately followed Cassandra's statement.

848
00:39:44.640 --> 00:39:45.900
This basically said, you know,

849
00:39:45.900 --> 00:39:50.220
when they said that he was getting better, a lie. And-

850
00:39:50.220 --> 00:39:53.040
<v ->The synergistic effect of an O'Dell</v>

851
00:39:53.040 --> 00:39:57.150
and a Mayfield violation.
<v ->Absolutely, Your Honor.</v>

852
00:39:57.150 --> 00:39:59.000
<v ->Can I ask you something to-</v>
<v ->Yes.</v>

853
00:39:59.934 --> 00:40:02.460
<v ->to parse it out a little bit.</v>

854
00:40:02.460 --> 00:40:04.920
If we agree with you as far as the fairness

855
00:40:04.920 --> 00:40:06.510
of the grand jury presentation

856
00:40:06.510 --> 00:40:09.570
as it relates to, call it bad act evidence,

857
00:40:09.570 --> 00:40:13.650
extraneous information, but we disagree with you

858
00:40:13.650 --> 00:40:17.940
as far as the duty of care part of it,

859
00:40:17.940 --> 00:40:22.940
is a remedy motion to dismiss without prejudice is allowed

860
00:40:23.760 --> 00:40:27.513
and they can re-indict it in the proper manner?

861
00:40:29.100 --> 00:40:31.050
<v ->Dismissal without prejudice,</v>

862
00:40:31.050 --> 00:40:33.450
the Commonwealth can certainly re-indict.

863
00:40:33.450 --> 00:40:35.520
I'm not sure I understood what you-

864
00:40:35.520 --> 00:40:38.430
<v ->Right, so, if we find the evidence is insufficient,</v>

865
00:40:38.430 --> 00:40:39.720
of course, that's a different story.

866
00:40:39.720 --> 00:40:41.670
But if we find the evidence sufficient,

867
00:40:42.870 --> 00:40:46.290
but we agree with part two of your argument.

868
00:40:46.290 --> 00:40:48.570
The remedy is to...
<v ->The remedy is</v>

869
00:40:48.570 --> 00:40:51.360
to dismiss without prejudice and the Commonwealth

870
00:40:51.360 --> 00:40:52.523
would have to make a decision.

871
00:40:52.523 --> 00:40:54.810
And that is what the judge did here

872
00:40:54.810 --> 00:40:58.500
and that's what we would be asking this court to do.

873
00:40:58.500 --> 00:41:02.835
If I may, I just wanna get into,

874
00:41:02.835 --> 00:41:03.750
because this had come up-
<v ->That's true,</v>

875
00:41:03.750 --> 00:41:08.750
regardless of, even if both prongs were lacking

876
00:41:10.440 --> 00:41:12.480
that they didn't present sufficient evidence,

877
00:41:12.480 --> 00:41:15.093
that would be a dismissal with prejudice?

878
00:41:15.930 --> 00:41:17.343
<v ->Without, they could, we don't know</v>

879
00:41:17.343 --> 00:41:20.355
what other evidence they have, so it'd be without prejudice.

880
00:41:20.355 --> 00:41:21.188
<v ->Yeah, the judge found...</v>

881
00:41:21.188 --> 00:41:22.470
Dismissed without prejudice.

882
00:41:22.470 --> 00:41:26.320
<v ->So, the Commonwealth could have just tried to re-indict</v>

883
00:41:27.360 --> 00:41:30.390
without having appealed the decision?

884
00:41:30.390 --> 00:41:32.010
<v ->Yes, yes, absolutely.</v>

885
00:41:32.010 --> 00:41:35.460
Let me just mention this theme about

886
00:41:35.460 --> 00:41:40.080
not wanting to take children to routine medical appointment,

887
00:41:40.080 --> 00:41:41.730
you know, is really a gross distortion

888
00:41:41.730 --> 00:41:43.290
and it was created by the Commonwealth.

889
00:41:43.290 --> 00:41:45.120
Of course, there's evidence in the record

890
00:41:45.120 --> 00:41:48.900
about this youngest child who was a foster child,

891
00:41:48.900 --> 00:41:53.190
who was adopted and has 23 medical people.

892
00:41:53.190 --> 00:41:54.930
But that said, you know,

893
00:41:55.920 --> 00:41:58.200
the Commonwealth went out of its way to suggest

894
00:41:58.200 --> 00:42:00.360
that the Tuckers were responsible

895
00:42:00.360 --> 00:42:03.120
for a December 18th medical appointment,

896
00:42:03.120 --> 00:42:07.170
which might not seem important except that it was a medical

897
00:42:07.170 --> 00:42:10.170
following one he had before which he was taken to DCF.

898
00:42:10.170 --> 00:42:13.230
And the Commonwealth set up a scenario

899
00:42:13.230 --> 00:42:16.027
where they read from a manual that said,

900
00:42:16.027 --> 00:42:18.127
"Foster parents are responsible for making

901
00:42:19.590 --> 00:42:21.450
and keeping these appointments."

902
00:42:21.450 --> 00:42:23.403
Was the child taken?

903
00:42:25.410 --> 00:42:27.540
Grand jurors were asking, "Did the Tuckers

904
00:42:27.540 --> 00:42:30.630
ever take the child to a medical appointment after,

905
00:42:30.630 --> 00:42:32.220
you know, this December 18th

906
00:42:32.220 --> 00:42:35.760
and before the two-week illness?"

907
00:42:35.760 --> 00:42:38.400
And in fact, what they never told the grand jury

908
00:42:38.400 --> 00:42:41.160
is what the social workers had told them at length,

909
00:42:41.160 --> 00:42:44.100
which is there isn't a set policy between DCF

910
00:42:44.100 --> 00:42:46.410
and foster parents as to who would take a child

911
00:42:46.410 --> 00:42:47.790
for a routine appointment.

912
00:42:47.790 --> 00:42:50.490
Cassandra indicated in her statement that she believed

913
00:42:50.490 --> 00:42:53.100
the DCF worker was going to take him to the appointment

914
00:42:53.100 --> 00:42:54.903
had she had the prior appointment.

915
00:42:56.610 --> 00:42:58.350
But instead, they left that out.

916
00:42:58.350 --> 00:43:00.810
They also did not tell the grand jury that in fact,

917
00:43:00.810 --> 00:43:04.410
two days after December 18th, Cassandra sent an email

918
00:43:04.410 --> 00:43:06.187
to all the DCF workers saying,

919
00:43:06.187 --> 00:43:08.460
"Hey, what happened to that appointment?"

920
00:43:08.460 --> 00:43:10.777
And someone, a supervisor responded saying,

921
00:43:10.777 --> 00:43:13.833
"We'll look into it," and they never got back to her.

922
00:43:14.820 --> 00:43:16.890
<v ->Can I ask a follow-up question</v>

923
00:43:16.890 --> 00:43:18.990
with Justice Gaziano just pointed out?

924
00:43:18.990 --> 00:43:21.183
<v ->Yes.</v>
<v ->Are there good cases,</v>

925
00:43:22.560 --> 00:43:25.050
are there good cases that we can look at

926
00:43:25.050 --> 00:43:28.560
where the sufficiency thing is clear,

927
00:43:28.560 --> 00:43:32.847
but the misconduct thing requires, you know,

928
00:43:34.827 --> 00:43:36.090
a dismissal without prejudice?

929
00:43:36.090 --> 00:43:38.400
So, are there are a couple of good cases

930
00:43:38.400 --> 00:43:39.780
where you have parallels.

931
00:43:39.780 --> 00:43:42.963
Where there's plenty of evidence, but at the same time

932
00:43:42.963 --> 00:43:47.040
what the Commonwealth did requires a do-over.

933
00:43:47.040 --> 00:43:49.620
<v ->So, in Washington W., which ended up being</v>

934
00:43:49.620 --> 00:43:52.680
dismissed with prejudice for other reasons,

935
00:43:52.680 --> 00:43:56.730
Justice Gants said that there was probable cause,

936
00:43:56.730 --> 00:43:58.320
there was sufficient evidence,

937
00:43:58.320 --> 00:44:01.830
but the grand jury had been tainted by,

938
00:44:01.830 --> 00:44:06.150
in that case an omission that went directly to the case.

939
00:44:06.150 --> 00:44:08.490
<v ->Washington W's a good case for us to look at.</v>

940
00:44:08.490 --> 00:44:09.780
<v ->Yes, I think so, Your Honor.</v>

941
00:44:09.780 --> 00:44:14.700
There are, you know, Mr. Daniels and I also provide

942
00:44:14.700 --> 00:44:19.700
cases about probity, you know, prejudicial more than probity

943
00:44:19.800 --> 00:44:23.790
but this is, I would have to say was a very pervasive use

944
00:44:23.790 --> 00:44:26.880
of both misrepresentation and omission

945
00:44:26.880 --> 00:44:29.430
to paint these folks in a particular way

946
00:44:29.430 --> 00:44:32.370
that really would have affected the grand jury's decision.

947
00:44:32.370 --> 00:44:36.093
I just wanna make a couple more points if that's all right.

948
00:44:37.440 --> 00:44:40.893
Although, and as I mentioned about the cystic fibrosis,

949
00:44:42.240 --> 00:44:47.220
a juror misunderstood and an incorrect evidence was elicited

950
00:44:47.220 --> 00:44:52.220
from this same early, suggesting that this youngest child

951
00:44:53.250 --> 00:44:55.470
had cystic fibrosis.

952
00:44:55.470 --> 00:44:56.940
She doesn't, she has cerebral palsy.

953
00:44:56.940 --> 00:44:58.470
The Commonwealth knew that.

954
00:44:58.470 --> 00:45:01.500
And ordinarily, you know, it was not introduced

955
00:45:01.500 --> 00:45:04.230
by the Commonwealth, but the Commonwealth has an obligation

956
00:45:04.230 --> 00:45:06.984
not to allow false evidence to go uncorrected.

957
00:45:06.984 --> 00:45:09.897
And I have to say-
<v ->Well, wait,</v>

958
00:45:09.897 --> 00:45:11.913
can I interrupt for a minute, counsel?

959
00:45:12.990 --> 00:45:16.590
Wasn't the young girl being treated with a nebulizer?

960
00:45:16.590 --> 00:45:19.680
So, regardless of whether it's cerebral palsy

961
00:45:19.680 --> 00:45:21.870
or cystic fibrosis, she's being treated

962
00:45:21.870 --> 00:45:24.990
with a nebulizer for a lung condition,

963
00:45:24.990 --> 00:45:29.280
for a breathing condition, like the other child was.

964
00:45:29.280 --> 00:45:34.097
<v ->Really came up in the, the juror asked this witness</v>

965
00:45:35.137 --> 00:45:38.077
"Didn't the older child," so she was very confused,

966
00:45:38.077 --> 00:45:39.897
"have cystic fibrosis?"

967
00:45:41.130 --> 00:45:43.110
And the reason this becomes important is

968
00:45:43.110 --> 00:45:46.800
this grand juror says, "So that one could assume

969
00:45:46.800 --> 00:45:49.230
that the foster parents would have some understanding

970
00:45:49.230 --> 00:45:53.700
of a respiratory ailment, toward like the sound of one."

971
00:45:53.700 --> 00:45:56.760
So, this may go back to the video

972
00:45:56.760 --> 00:45:59.550
that the justices were talking about.

973
00:45:59.550 --> 00:46:04.550
That's a very obvious example of the jury being prejudiced.

974
00:46:07.230 --> 00:46:08.310
<v Justice Cypher>That's also, counsel,</v>

975
00:46:08.310 --> 00:46:09.900
isn't that also just evidence,

976
00:46:09.900 --> 00:46:13.320
whether it's prejudicial, the question is whether

977
00:46:13.320 --> 00:46:15.210
it's unfairly prejudicial?

978
00:46:15.210 --> 00:46:17.400
The grand jurors could look at that video

979
00:46:17.400 --> 00:46:19.740
and come to their own conclusion.

980
00:46:19.740 --> 00:46:24.740
Can you also address how the parties misrepresentations

981
00:46:24.840 --> 00:46:27.840
to the police affect this case in that

982
00:46:27.840 --> 00:46:32.280
both the foster father and the foster mother say

983
00:46:32.280 --> 00:46:35.880
that they in fact, that the foster mother

984
00:46:35.880 --> 00:46:39.030
put the child to bed when the video clearly shows

985
00:46:39.030 --> 00:46:40.350
that's not the case.

986
00:46:40.350 --> 00:46:43.290
How do you handle that kind of evidence in this context?

987
00:46:43.290 --> 00:46:46.170
<v ->Well, I would say as to a misstatement made</v>

988
00:46:46.170 --> 00:46:48.690
in the aftermath of this kind of trauma,

989
00:46:48.690 --> 00:46:52.380
it does not go to what their state of mind or their-

990
00:46:52.380 --> 00:46:53.730
<v Justice Cypher>But this is more than</v>

991
00:46:53.730 --> 00:46:56.400
a misstatement however, this was,

992
00:46:56.400 --> 00:46:58.590
when you read those statements you see that

993
00:46:58.590 --> 00:47:00.900
the foster father and the foster mother

994
00:47:00.900 --> 00:47:03.480
are saying the exact same thing

995
00:47:03.480 --> 00:47:08.480
and going on about what great caretakers they are

996
00:47:08.520 --> 00:47:13.140
and how wonderful they, how much they understand the system.

997
00:47:13.140 --> 00:47:15.300
It doesn't seem like a misstatement

998
00:47:15.300 --> 00:47:16.850
in the context of reading that.

999
00:47:19.890 --> 00:47:22.763
<v ->Well, Your Honor, I would disagree.</v>

1000
00:47:25.290 --> 00:47:28.320
I think that, you know, their assessment

1001
00:47:28.320 --> 00:47:31.170
of what occurred is what they recalled.

1002
00:47:31.170 --> 00:47:36.170
But in terms of the putting him down at night,

1003
00:47:36.300 --> 00:47:41.010
I think that Cassandra could have been confused with a nap.

1004
00:47:41.010 --> 00:47:44.790
But I would certainly assert that this is not,

1005
00:47:44.790 --> 00:47:49.660
does not go to whether they were aware at the time

1006
00:47:50.970 --> 00:47:55.590
that he faced, you know, that he had a deadly illness.

1007
00:47:55.590 --> 00:47:57.510
<v ->Can I get you to just say the last,</v>

1008
00:47:57.510 --> 00:48:00.693
the second thing you wanted to say very quickly.

1009
00:48:05.760 --> 00:48:08.610
<v ->I think that I'm probably, unless there are questions</v>

1010
00:48:08.610 --> 00:48:10.510
and I apologize, I may have forgotten.