-: Good morning. May it please the court.
I'm attorney Dana Gravina. I represent William Camuti.
The sole issue before the court this morning in this case
is whether or not the motion judge erred
when he concluded that a reasonably effective attorney
would not have sought DNA testing
of the shirt worn by Stephen Rakes on the-
-: The reasonably effective juror
want testing to step on what really was
the only defense that they had,
that there was no forensic evidence
connecting the defendant to the murder.
And I'm not gonna go through it all.
But in the face of the GPS, the confession,
the searches on the internet,
they got one issue.
And you're gonna step on that one issue
and maybe have forensic evidence that ties the defendant.
What reasonable lawyer would do that?
-: Your Honor, that was not the status of the case,
and that was not the status of the defense.
The defense did not rely upon the fact
that no DNA testing had been done on this shirt.
When you look at what the defense-
-: Maybe.
I mean, there was a Bowden element,
but that's not really my point.
The point is that there's nothing forensically
to connect this defendant to this murder
in the face of all of that other evidence.
Do you take that defense that you have
and then take a chance of stepping on it
in the face of what else is going on?
-: But again, that was not the defense.
The defense was not, there's no forensic evidence here,
and that if you test the shirt,
it's going to deprive us of that defense.
The defense was that there was,
and this was not the main defense.
Part of the defense
was that there was no biological evidence,
meaning there was nothing of Stephen Rakes,
no blood, no DNA, found in Mr. Camuti's vehicle,
in his apartment, in his storage unit.
And there were no tire impressions,
footwear impressions found at the scene.
Those were the things that defense counsel did address.
None of that would be affected
by having the shirt tested for DNA,
regardless of whether the results came back
that Mr. Camuti's DNA was on the shirt or not.
-: But trial counsel took advantage of that.
And I know that, again,
you're doing the best you can on appeal
to give the best case that you,
or the best gloss to your case that you can.
But on cross-examination,
there was absolutely cross-examination done
with the state trooper investigation and DNA witness
to say that there wasn't any.
So the idea that somehow it wasn't a part of this.
And again, back to justice Lowy's point,
there's a lot of evidence here against Mr. Rakes.
-: So this one part that you do ask about
on cross-examination of the state's DNA expert,
that wouldn't be a dumb thing to do
as a trial lawyer to do that, to step on that?
-: Your Honor, it was, there were five pages of testimony
out of over 1,600 pages of testimony-
-: Sure. But how- -: in which that was addressed.
-: How much testimony do you need to say, "No and none?"
-: And I think, again, there was very little testimony,
and then it is not referenced at all in closing argument.
Not once does trial counsel in his closing argument
say anything about the fact that the shirt was not tested.
-: You're being a little,
so the closing argument, the defense attorney said
there was zero trace evidence, correct?
-: Correct.
-: Right, and the evidence on the shirt
would've been trace evidence, right?
-: That's not what he was referring to.
He was referring to there's no evidence
in the sense of footwear impressions,
tire track impressions.
That's what he was talking about in terms of trace evidence.
-: Writ large, basically, there's no physical evidence
connecting Mr. Camuti to the crime scene.
That was the theme of the defense or a theme of the defense.
-: A very minor theme of the defense
was that there was no biological evidence
found in the car, the apartment or the storage unit,
and there were no tire track impressions,
no footwear impressions.
It was not a big part of the defense.
-: What was the defense then?
-: The defense was that there was no motive
for Mr. Camuti to have done this
because Mr. Rakes was his best friend,
was his business partner,
and that Mr. Camuti's debts that he owed to various people,
that he had the best chance possible
of repaying those debts not by killing Mr. Rakes,
but by keeping Mr. Rakes alive
because those business deals he had with Mr. Rakes
were the way that he could possibly get out of debt,
had those business deals, you know, been productive
and gone forward.
In addition, part of the defense was
that there was no way that Mr. Camuti,
who is an older gentleman,
very small, much, much smaller than Mr. Rakes,
could have pulled him out of the car
and dragged him into the woods.
That that was simply impossible.
Another part of the defense-
-: And so that part of the defense
wouldn't potentially be jeopardized by the DNA testing?
-: Absolutely not.
Mr. Camuti admitted that Mr. Rakes and he met that day
when Mr. Rakes died,
that they had a meeting,
that Mr. Rakes was in his car.
So he had a completely innocent explanation
for why his DNA may have been on the shirt.
-: So best case scenario,
what would you hope that the DNA evidence would show?
-: That there was another individual's shirt,
another individual's DNA on the shirt,
and that that would have provided
a third-party culprit defense to Mr. Camuti.
And there's reason to think
that there would've been another person's DNA on the shirt.
Again, one of the things that was put forward
was this was-
-: Can you explain that last statement?
Why was there reason to believe
that a third-party culprit's DNA would be on there?
-: Because Mr. Camuti,
and the jury had an opportunity to view this,
and counsel did point it out,
was an older gentleman, very, very small gentleman.
Mr. Rakes was a large gentleman.
The idea that Mr. Camuti could have dragged Mr. Rakes
out of the car after Mr. Rakes was deceased
and dragged him into the woods is very hard to believe.
-: What point does that make?
Justice Wendlandt's point is, what I'm thinking,
"Well, gee, don't test the shirt.
You've got a great argument there.
Maybe the only argument you have."
Why would you step on that argument and test the shirt
in the face of the confessions,
in the face of the internet searches
and the email on the GPS?
That seems to me, as Justice Wendlandt was suggesting,
a really good reason not to test the shirt.
-: Your Honor, all of the evidence that you're pointing out
is the exact reason why you have to test the shirt.
No jury was going to come back,
or I would say no reasonable attorney would think
that a jury is going to come back with a not guilty verdict
in light of all of that evidence that you've pointed out
by simply arguing to the jury,
"Well, Mr. Camuti's DNA is not on the shirt."
They never tested it.
-: We have to look at the exculpatory value,
the potential exculpatory value
of the thing that wasn't tested, correct?
And here we're dealing with trace evidence.
This is unlike a rape where there's, you know,
biological material clearly identifying
who the perpetrator is.
This is trace evidence on a shirt that could be deposited
who knows when, right?
It could be a waiter that bumps into somebody.
It's really.
So address the exculpatory value of the,
and this is what Winton says,
of the trace evidence.
-: Your Honor, again, had the shirt been tested,
we don't know what the results would've been, right?
I mean, we know that had the shirt been tested possibly-
-: Best case scenario,
it comes to someone other than your client.
-: Correct.
And it's run through core links
and it comes back to someone
who has a history of violent crimes,
maybe someone who knows Stephen Rakes
and has motive to kill him.
We don't know.
That's the problem.
This hasn't been done.
We don't know what that is going to,
what's going to turn up.
I mean, Mr. Rakes, the day that he showed up
on the side of the woods deceased,
he was that day believed that the following day
he was going to be called as a witness
at the federal trial involving Whitey Bulger.
So,
there's no way to know for sure
what was going to be on that shirt when we test it for DNA.
But had it been tested,
and had it come back that there was a third party,
that that third party had a motive to kill Mr. Rakes,
then that certainly would've provided
very, very helpful evidence to Mr. Camuti's defense.
And again, this is not the standard
of would every attorney have done this?
The standard isn't would this attorney
that actually tried this case have done this.
The standard is would a reasonable attorney have-
-: It's (indistinct), but lesser than (indistinct).
-: Much less.
It's would "a reasonable,"
any reasonably effective attorney have done this?
And, our position is that in light of the evidence-
-: Would a reasonably-effective lawyer,
basically, torpedo their lack of trace evidence argument?
-: Again, it would not have torpedoed it
because there was an innocent explanation
for why the DNA would've been,
why Mr. Camuti's DNA would be on the shirt.
And there was still all of those other aspects
of the defense which could have been pointed out.
-: But then your closing would say something like,
"There's no trace evidence tying my client to the victim
other than the DNA."
Isn't that a problem?
Dana: Not at all.
-: And he has the DNA because they met for McDonald's
where they had the coffee and where my client,
you know, did the cyanide thing.
-: No, and he was in my client's car.
I mean, Mr. Camuti admitted that he was in the car.
-: Yeah, but again, you're isolating this.
And I think that you're not in, when you're,
when Justice Barry Smith is looking at this.
You're taking it in isolation, okay.
And you're saying there's innocent explanation
for why he was in the car.
Yeah, but that innocent explanation
is on the heels of two different stories about that meeting.
So it's not just,
"Hey, we can explain it 'cause he was in my car."
You lied about it twice about how it went down, okay.
So you have that.
So you've got a problem with that.
So when you're looking at the preponderance
of the evidence standard, and you're saying,
"Here's all of this stuff that the Commonwealth has.
Here's all of this stuff that's against us."
And again, back to Justice Wendlandt's closing,
that's gonna be, "Yeah, I know you've got the differences
in the different stories he told about McDonald's,
about the cyanide that he's buying,
about the GPS, all of that stuff.
I get all of that stuff,
and nothing else ties my, except for the shirt now."
And you say that's not a problem?
-: Absolutely not because there is an innocent explanation
for why the DNA is on,
why Mr. Camuti's DNA would be on the shirt
if that in fact ended up being the case.
We don't know that.
-: Can I ask you just a science question,
and I don't know the answer to this.
My colleagues may.
But, you know, the DNA testing, would it be by site,
you know, location on the shirt, so, like, armpits, back.
And I'm wondering if that's true,
and your client's DNA was on the back or the armpits,
would you still have the
"oh, we were at McDonald's together" defense?
-: Absolutely.
-: Okay, is that how it works?
The DNA will just distribute throughout the shirt
if you meet somebody for coffee.
-: No, but if they're in your car,
I mean, presumably Mr. Camuti's DNA is in his vehicle.
There's no reason to think
that the DNA wouldn't be transferred from the seat.
-: To the armpits? To the armpits?
-: Well, when you're sitting in a chair,
and your back is touching,
I mean, there's no reason to think
that Mr. Rakes' armpit area just in the back
would not be touching the car.
We don't know.
Did they hug when they met at the restaurant for coffee?
Did Mr. Camuti at some point put his arm on Mr. Rakes
as they were meeting for coffee?
We don't know that.
-: Detail the level of explanation that you have to give.
Doesn't that call into question the reasonableness
of doing the testing to begin with?
-: Absolutely not.
And again, the standard is whether a reasonable attorney,
not everyone, but a reasonable attorney,
and I think it is entirely appropriate to say,
as a reasonably effective attorney,
I am not giving my client a real defense
by just pointing out that a shirt wasn't tested for DNA.
But I am giving my client a realistic defense
if I have that shirt tested,
and someone else's DNA is on that shirt,
and they have a motive to kill Stephen Rakes.
In light of all of the evidence
that's pointing at Mr. Camuti,
that would be absolutely a reasonable decision.
And an attorney, a reasonably effective attorney,
would take that risk of I'm gonna have to explain
the DNA on this shirt if it comes back that his DNA is there
in order to get that realistic defense
of someone else's DNA is on this shirt,
and they have a motive to have done this.
That's our position.
-: I don't know.
I think when you say that, you're thinking in terms of,
well, what's the jury going to think is more likely,
and that's not the standard.
The Commonwealth has to prove the case to a moral certainty,
and you stand up in closing argument
when they have to prove the case to a moral certainty
and go through all the different ways
that there's just no trace evidence.
There's nothing.
I mean, that's a reasonable doubt argument that you have.
-: Again, I would say that is an exceptionally weak argument
in this case.
That is not, I wouldn't try the case on that argument.
I'll say that.
I think that is a losing defense,
and a reasonably effective attorney
could see it that way and say,
"To give my client a realistic defense,
I need to have this shirt tested for DNA."
The fact that this attorney didn't do that
is not the standard.
That's not what we're focused on.
We're focused on could a reasonably effective attorney
have seen it this way and said,
"I am not going to give my client that real defense
by just saying this shirt wasn't tested for DNA."
And I think that the answer to that
is you would have the shirt tested.
-: Thank you.
-: Thank you,
-: Attorney Speight.
Good morning.
May it please the court, Hallie White Speight,
assistant district attorney for Middlesex
on behalf of the Commonwealth.
You are all very close.
(attendees chuckle)
This is strange.
First of all, the defendant is,
not withstanding the attempts to minimize the role
that the lack of forensic evidence,
trace evidence, physical evidence played
in the way this case was tried.
And again, I think there is absolutely no reason
to try to carve out the DNA testing on the shirt
from all the other arguments
about no tire tracks tested, no footprints examined.
Vegetative matter was not kept and examined,
no fingerprints, no blood.
The forensic evidence was crucial to this case.
And that is because of something
that I think my brother has not mentioned at all
in his argument.
And that is, this is a case where we had a confession.
Defendant moved to suppress the confession.
Unsuccessful.
This will probably be an issue on direct appeal.
The confession is in.
The defendant puts on experts to say
he was not in his right mind.
It wasn't voluntary.
He was in the hospital. He was on painkillers.
He was weak. He had lost a lot of blood.
That's fine.
You can put on all the evidence you want
that it's involuntary.
But because of the confessions before the jury,
not withstanding, obviously, the humane practice instruction
that he would've gotten,
you also have to show that it's false.
-: I don't get that argument
because at least, I think, in Commonwealth versus Wade,
with respect to DNA testing or forensic testing,
we don't say you look at the strength
of the case of the Commonwealth.
That cuts against your argument because, you know,
and I take the lack of trace evidence is your argument,
but whether or not he confessed
or whether or not there was a bloody fingerprint
or whether or not there's a videotape of him doing it,
the question is would a reasonable attorney
have tested the shirt.
I don't get where you're going with the confession
in the wake of Wade and the other cases
that say we don't look at the strength
of Commonwealth's case.
Because we don't say,
"You don't get DNA tested if you have a strong case."
-: No, and no one said, I'm not, that's not my argument.
-: All right, so where are you goin' with this?
-: When we started out,
the first two cases that this court decided
construing this statute,
Wade and Donald,
both had sort of procedural peculiarities
that I think have kind of resonated
through the case law ever since.
You know, in Donald, we had a defendant
who filed monthly motions.
-: Tons of evidence against the defendant.
-: Tons of evidence, overwhelming and, you know,
what we call a frequent filer.
And when this motion came across a judge's desk
not realizing, not appreciating fully,
that 278A really meant to shift the landscape on this,
she got out her rubber stamp
and said evidence was overwhelming.
Motion is denied.
And his court quite rightly said
that you cannot deny a 278A motion based solely
on the strength of the Commonwealth's evidence.
That's precisely what it's meant not to do,
was to give a defendant a chance,
even where the evidence was overwhelming,
even where it's so overwhelming that he pled guilty.
And Wade had some, you know, in Wade,
the defendant had moved for a new trial before 278A,
arguing that his trial counsel was ineffective
for not having sought the DNA testing
that he was now seeking under the new statute.
-: All right, so we've established the strength
of the Commonwealth's case is not the test for 278A.
-: It's not the test.
But I also wanna remind the court
that both the first Wade case and the first Donald case
were Section 3 cases.
They were not decided.
-: Yeah, but we don't- -: Under section-
-: We don't shift, hold on.
Section 3 is whether you get a hearing.
We're passed that and the judge appropriately said
there's a hearing.
-: And we had a hearing.
-: But where does the strength of the case
come in statutorily in Section 7?
-: I'm not arguing the strength of the case.
I'm arguing the character of the evidence.
What it was, how it came in, how it fit together.
I don't, honestly, I don't know how you can make
an assessment of whether a reasonably effective attorney
would seek testing in a given case
without an understanding of what the other evidence is.
-: I'm still baffled about your discussion of the confession
because if he's claiming it's a false confession,
wouldn't you want the DNA evidence to exculpate,
to say, "Yeah, it really was."
-: Only if it exculpates him.
-: Right, which is-
-: And it would have some force if you did that.
But if there's a match to the defendant,
then not only have you lost your argument
that there's no forensic evidence,
but suddenly the confession is corroborated.
And so that's something more than just
there's no evidence to link.
There's no physical evidence to link the defendant
to the crime.
It's suddenly, "Oh, that confession looks a little different
once we have some DNA to corroborate it."
And I also wanna point out that, you know,
if you're swabbing the chest and the armpits of the shirt,
the innocent explanation is a lot harder to make out.
-: Let's take the appellant argument, though,
which is that they're facing an overwhelmingly strong case.
That's their argument.
Their argument is,
"My goodness, look at what he's searching for
on the internet.
Look at the email.
My goodness, the GPS matches where the body's dropped off
and the timing matches."
And I'm not gonna go on everything else
'cause I'm gonna run out of fingers.
There's very strong evidence.
Why not throw the Hail Mary?
-: Because the Hail Mary eviscerates the entire defense.
-: Yeah, I understand,
but I think that they had a good response to that.
The entire defense, what they're saying was,
in the face of all this running out of fingers,
talking about the defense,
that they needed a Hail Mary.
Not every lawyer, but a reasonable lawyer wouldn't go out
a closing argument and just rely on the forensics
as a trial strategy.
The craft of advocacy's gonna need something else
to get to not guilty here.
-: I think a reasonable lawyer could very well do that.
And I think it's more likely than not.
And that's the standard on Section 7.
I think it's more likely than not
that a reasonable attorney would not roll the dice on that.
Because if it does come back to the defendant,
it's very, very bad indeed for him.
-: But how much worse is it?
But I guess that's the point of Justice Lowy's question
is that, you know, it's lookin' pretty bad.
-: I think it, I think it's pretty-
-: And maybe if I roll the dice,
and it shows up that there's, you know, somebody else's-
-: We get a full profile on the armpits of the shirt.
Unless he's gonna claim
that they were wrestling in the parking lot
or that they were having a tango lesson,
I don't know how you explain that.
Like, the absolute best case scenario for the defendant
is a couple of flakes of epithelial DNA
that don't match him,
which is of extremely limited probative value,
given that it's the outside of the shirt,
and DNA can be picked up from anywhere.
And there's this, you know, imaginary person
who has a motive to kill Rakes
but has not been suspected or not.
You know, maybe if we had a little more
developed third-party culprit,
an actual third-party culprit instead of an imaginary one,
the balance could shift a little bit.
I mean, this is why I think we're not just talking
about the strength of the evidence.
We're talking about what was the evidence
and what role would this play if the testing were done.
Justice Lowy: How prevalent was Bowden?
-: I think the court has to consider that.
Justice Lowy: How prevalent was Bowden?
-: Bowden?
I'm trying to remember if there was a Bowden instruction
requested or given.
I don't think that's dispositive.
All of the investigative witnesses,
virtually, were cross-examined with the fact
that they didn't find a fingerprint.
They didn't examine the tire tracks
to compare them to a car that at that point
we didn't know what it was.
We didn't examine the footprints.
That shirt was never tested.
They didn't find fingerprints in the car.
They didn't find blood in the car.
I mean, if you count up the number of pages,
maybe it's not as voluminous
as some other bits of testimony,
but it was a crucial part of the case.
And it goes away if suddenly you have
the defendant's DNA in the very spot
where someone dragging his body into the woods would be.
And suddenly, that confession is a lot less challengeable
than it was at trial.
And I would submit, I don't think even,
you know, we don't have to prove
that every competent attorney would seek the testing.
By the same token, I don't think that the motion
has to be allowed unless a court finds
that no competent attorney would seek the testing.
I think we're close to that in this case.
And if there are no further questions,
I'll rely on my brief and ask the court
to affirm the denial.
Thank you.