WEBVTT
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Good morning. May it please the court.
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I'm attorney Dana Gravina. I represent William Camuti.
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The sole issue before the court this morning in this case
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is whether or not the motion judge erred
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when he concluded that a reasonably effective attorney
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would not have sought DNA testing
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of the shirt worn by Stephen Rakes on the-
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The reasonably effective juror
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want testing to step on what really was
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the only defense that they had,
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that there was no forensic evidence
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connecting the defendant to the murder.
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And I'm not gonna go through it all.
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But in the face of the GPS, the confession,
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the searches on the internet,
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they got one issue.
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And you're gonna step on that one issue
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and maybe have forensic evidence that ties the defendant.
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What reasonable lawyer would do that?
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Your Honor, that was not the status of the case,
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and that was not the status of the defense.
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The defense did not rely upon the fact
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that no DNA testing had been done on this shirt.
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When you look at what the defense-
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Maybe.
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I mean, there was a Bowden element,
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but that's not really my point.
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The point is that there's nothing forensically
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to connect this defendant to this murder
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in the face of all of that other evidence.
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Do you take that defense that you have
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and then take a chance of stepping on it
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in the face of what else is going on?
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But again, that was not the defense.
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The defense was not, there's no forensic evidence here,
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and that if you test the shirt,
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it's going to deprive us of that defense.
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The defense was that there was,
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and this was not the main defense.
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Part of the defense
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was that there was no biological evidence,
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meaning there was nothing of Stephen Rakes,
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no blood, no DNA, found in Mr. Camuti's vehicle,
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in his apartment, in his storage unit.
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And there were no tire impressions,
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footwear impressions found at the scene.
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Those were the things that defense counsel did address.
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None of that would be affected
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by having the shirt tested for DNA,
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regardless of whether the results came back
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that Mr. Camuti's DNA was on the shirt or not.
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But trial counsel took advantage of that.
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And I know that, again,
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you're doing the best you can on appeal
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to give the best case that you,
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or the best gloss to your case that you can.
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But on cross-examination,
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there was absolutely cross-examination done
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with the state trooper investigation and DNA witness
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to say that there wasn't any.
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So the idea that somehow it wasn't a part of this.
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And again, back to justice Lowy's point,
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there's a lot of evidence here against Mr. Rakes.
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So this one part that you do ask about
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on cross-examination of the state's DNA expert,
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that wouldn't be a dumb thing to do
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as a trial lawyer to do that, to step on that?
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Your Honor, it was, there were five pages of testimony
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out of over 1,600 pages of testimony-
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Sure. But how-
in which that was addressed.
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How much testimony do you need to say, "No and none?"
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And I think, again, there was very little testimony,
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and then it is not referenced at all in closing argument.
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Not once does trial counsel in his closing argument
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say anything about the fact that the shirt was not tested.
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You're being a little,
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so the closing argument, the defense attorney said
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there was zero trace evidence, correct?
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Correct.
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Right, and the evidence on the shirt
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would've been trace evidence, right?
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That's not what he was referring to.
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He was referring to there's no evidence
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in the sense of footwear impressions,
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tire track impressions.
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That's what he was talking about in terms of trace evidence.
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Writ large, basically, there's no physical evidence
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connecting Mr. Camuti to the crime scene.
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That was the theme of the defense or a theme of the defense.
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A very minor theme of the defense
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was that there was no biological evidence
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found in the car, the apartment or the storage unit,
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and there were no tire track impressions,
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no footwear impressions.
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It was not a big part of the defense.
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What was the defense then?
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The defense was that there was no motive
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for Mr. Camuti to have done this
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because Mr. Rakes was his best friend,
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was his business partner,
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and that Mr. Camuti's debts that he owed to various people,
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that he had the best chance possible
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of repaying those debts not by killing Mr. Rakes,
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but by keeping Mr. Rakes alive
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because those business deals he had with Mr. Rakes
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were the way that he could possibly get out of debt,
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had those business deals, you know, been productive
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and gone forward.
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In addition, part of the defense was
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that there was no way that Mr. Camuti,
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who is an older gentleman,
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very small, much, much smaller than Mr. Rakes,
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could have pulled him out of the car
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and dragged him into the woods.
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That that was simply impossible.
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Another part of the defense-
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And so that part of the defense
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wouldn't potentially be jeopardized by the DNA testing?
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Absolutely not.
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Mr. Camuti admitted that Mr. Rakes and he met that day
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when Mr. Rakes died,
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that they had a meeting,
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that Mr. Rakes was in his car.
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So he had a completely innocent explanation
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for why his DNA may have been on the shirt.
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So best case scenario,
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what would you hope that the DNA evidence would show?
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That there was another individual's shirt,
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another individual's DNA on the shirt,
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and that that would have provided
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a third-party culprit defense to Mr. Camuti.
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And there's reason to think
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that there would've been another person's DNA on the shirt.
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Again, one of the things that was put forward
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was this was-
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Can you explain that last statement?
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Why was there reason to believe
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that a third-party culprit's DNA would be on there?
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Because Mr. Camuti,
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and the jury had an opportunity to view this,
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and counsel did point it out,
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was an older gentleman, very, very small gentleman.
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Mr. Rakes was a large gentleman.
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The idea that Mr. Camuti could have dragged Mr. Rakes
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out of the car after Mr. Rakes was deceased
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and dragged him into the woods is very hard to believe.
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What point does that make?
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Justice Wendlandt's point is, what I'm thinking,
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"Well, gee, don't test the shirt.
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You've got a great argument there.
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Maybe the only argument you have."
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Why would you step on that argument and test the shirt
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in the face of the confessions,
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in the face of the internet searches
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and the email on the GPS?
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That seems to me, as Justice Wendlandt was suggesting,
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a really good reason not to test the shirt.
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Your Honor, all of the evidence that you're pointing out
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is the exact reason why you have to test the shirt.
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No jury was going to come back,
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or I would say no reasonable attorney would think
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that a jury is going to come back with a not guilty verdict
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in light of all of that evidence that you've pointed out
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by simply arguing to the jury,
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"Well, Mr. Camuti's DNA is not on the shirt."
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They never tested it.
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We have to look at the exculpatory value,
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the potential exculpatory value
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of the thing that wasn't tested, correct?
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And here we're dealing with trace evidence.
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This is unlike a rape where there's, you know,
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biological material clearly identifying
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who the perpetrator is.
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This is trace evidence on a shirt that could be deposited
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who knows when, right?
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It could be a waiter that bumps into somebody.
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It's really.
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So address the exculpatory value of the,
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and this is what Winton says,
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of the trace evidence.
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Your Honor, again, had the shirt been tested,
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we don't know what the results would've been, right?
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I mean, we know that had the shirt been tested possibly-
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Best case scenario,
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it comes to someone other than your client.
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Correct.
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And it's run through core links
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and it comes back to someone
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who has a history of violent crimes,
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maybe someone who knows Stephen Rakes
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and has motive to kill him.
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We don't know.
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That's the problem.
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This hasn't been done.
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We don't know what that is going to,
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what's going to turn up.
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I mean, Mr. Rakes, the day that he showed up
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on the side of the woods deceased,
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he was that day believed that the following day
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he was going to be called as a witness
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at the federal trial involving Whitey Bulger.
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So,
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there's no way to know for sure
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what was going to be on that shirt when we test it for DNA.
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But had it been tested,
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and had it come back that there was a third party,
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that that third party had a motive to kill Mr. Rakes,
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then that certainly would've provided
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very, very helpful evidence to Mr. Camuti's defense.
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And again, this is not the standard
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of would every attorney have done this?
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The standard isn't would this attorney
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that actually tried this case have done this.
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The standard is would a reasonable attorney have-
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It's (indistinct), but lesser than (indistinct).
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Much less.
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It's would "a reasonable,"
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any reasonably effective attorney have done this?
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And, our position is that in light of the evidence-
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Would a reasonably-effective lawyer,
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basically, torpedo their lack of trace evidence argument?
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Again, it would not have torpedoed it
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because there was an innocent explanation
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for why the DNA would've been,
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why Mr. Camuti's DNA would be on the shirt.
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And there was still all of those other aspects
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of the defense which could have been pointed out.
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But then your closing would say something like,
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"There's no trace evidence tying my client to the victim
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other than the DNA."
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Isn't that a problem?
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Not at all.
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And he has the DNA because they met for McDonald's
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where they had the coffee and where my client,
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you know, did the cyanide thing.
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No, and he was in my client's car.
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I mean, Mr. Camuti admitted that he was in the car.
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Yeah, but again, you're isolating this.
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And I think that you're not in, when you're,
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when Justice Barry Smith is looking at this.
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You're taking it in isolation, okay.
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And you're saying there's innocent explanation
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for why he was in the car.
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Yeah, but that innocent explanation
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is on the heels of two different stories about that meeting.
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So it's not just,
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"Hey, we can explain it 'cause he was in my car."
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You lied about it twice about how it went down, okay.
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So you have that.
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So you've got a problem with that.
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So when you're looking at the preponderance
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of the evidence standard, and you're saying,
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"Here's all of this stuff that the Commonwealth has.
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Here's all of this stuff that's against us."
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And again, back to Justice Wendlandt's closing,
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that's gonna be, "Yeah, I know you've got the differences
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in the different stories he told about McDonald's,
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about the cyanide that he's buying,
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about the GPS, all of that stuff.
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I get all of that stuff,
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and nothing else ties my, except for the shirt now."
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And you say that's not a problem?
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Absolutely not because there is an innocent explanation
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for why the DNA is on,
265
00:12:12.330 --> 00:12:14.190
why Mr. Camuti's DNA would be on the shirt
266
00:12:14.190 --> 00:12:16.440
if that in fact ended up being the case.
267
00:12:16.440 --> 00:12:17.368
We don't know that.
268
00:12:17.368 --> 00:12:19.593
Can I ask you just a science question,
269
00:12:21.060 --> 00:12:23.070
and I don't know the answer to this.
270
00:12:23.070 --> 00:12:24.030
My colleagues may.
271
00:12:24.030 --> 00:12:27.720
But, you know, the DNA testing, would it be by site,
272
00:12:27.720 --> 00:12:32.513
you know, location on the shirt, so, like, armpits, back.
273
00:12:34.530 --> 00:12:37.410
And I'm wondering if that's true,
274
00:12:37.410 --> 00:12:41.310
and your client's DNA was on the back or the armpits,
275
00:12:41.310 --> 00:12:42.547
would you still have the
276
00:12:42.547 --> 00:12:45.900
"oh, we were at McDonald's together" defense?
277
00:12:45.900 --> 00:12:46.733
Absolutely.
278
00:12:46.733 --> 00:12:48.090
Okay, is that how it works?
279
00:12:48.090 --> 00:12:50.490
The DNA will just distribute throughout the shirt
280
00:12:50.490 --> 00:12:52.350
if you meet somebody for coffee.
281
00:12:52.350 --> 00:12:54.510
No, but if they're in your car,
282
00:12:54.510 --> 00:12:59.280
I mean, presumably Mr. Camuti's DNA is in his vehicle.
283
00:12:59.280 --> 00:13:00.780
There's no reason to think
284
00:13:00.780 --> 00:13:03.420
that the DNA wouldn't be transferred from the seat.
285
00:13:03.420 --> 00:13:05.703
To the armpits? To the armpits?
286
00:13:07.170 --> 00:13:09.150
Well, when you're sitting in a chair,
287
00:13:09.150 --> 00:13:10.680
and your back is touching,
288
00:13:10.680 --> 00:13:11.880
I mean, there's no reason to think
289
00:13:11.880 --> 00:13:15.510
that Mr. Rakes' armpit area just in the back
290
00:13:15.510 --> 00:13:17.310
would not be touching the car.
291
00:13:17.310 --> 00:13:18.300
We don't know.
292
00:13:18.300 --> 00:13:22.980
Did they hug when they met at the restaurant for coffee?
293
00:13:22.980 --> 00:13:27.180
Did Mr. Camuti at some point put his arm on Mr. Rakes
294
00:13:27.180 --> 00:13:28.350
as they were meeting for coffee?
295
00:13:28.350 --> 00:13:29.460
We don't know that.
296
00:13:29.460 --> 00:13:33.450
Detail the level of explanation that you have to give.
297
00:13:33.450 --> 00:13:36.210
Doesn't that call into question the reasonableness
298
00:13:36.210 --> 00:13:38.490
of doing the testing to begin with?
299
00:13:38.490 --> 00:13:39.450
Absolutely not.
300
00:13:39.450 --> 00:13:44.100
And again, the standard is whether a reasonable attorney,
301
00:13:44.100 --> 00:13:45.927
not everyone, but a reasonable attorney,
302
00:13:45.927 --> 00:13:49.080
and I think it is entirely appropriate to say,
303
00:13:49.080 --> 00:13:51.153
as a reasonably effective attorney,
304
00:13:53.190 --> 00:13:58.190
I am not giving my client a real defense
305
00:13:58.560 --> 00:14:03.300
by just pointing out that a shirt wasn't tested for DNA.
306
00:14:03.300 --> 00:14:08.070
But I am giving my client a realistic defense
307
00:14:08.070 --> 00:14:10.440
if I have that shirt tested,
308
00:14:10.440 --> 00:14:13.590
and someone else's DNA is on that shirt,
309
00:14:13.590 --> 00:14:17.520
and they have a motive to kill Stephen Rakes.
310
00:14:17.520 --> 00:14:19.110
In light of all of the evidence
311
00:14:19.110 --> 00:14:21.270
that's pointing at Mr. Camuti,
312
00:14:21.270 --> 00:14:26.270
that would be absolutely a reasonable decision.
313
00:14:26.340 --> 00:14:28.500
And an attorney, a reasonably effective attorney,
314
00:14:28.500 --> 00:14:31.740
would take that risk of I'm gonna have to explain
315
00:14:31.740 --> 00:14:35.460
the DNA on this shirt if it comes back that his DNA is there
316
00:14:35.460 --> 00:14:40.080
in order to get that realistic defense
317
00:14:40.080 --> 00:14:42.360
of someone else's DNA is on this shirt,
318
00:14:42.360 --> 00:14:44.370
and they have a motive to have done this.
319
00:14:44.370 --> 00:14:46.413
That's our position.
320
00:14:47.610 --> 00:14:48.443
I don't know.
321
00:14:48.443 --> 00:14:51.990
I think when you say that, you're thinking in terms of,
322
00:14:51.990 --> 00:14:55.350
well, what's the jury going to think is more likely,
323
00:14:55.350 --> 00:14:57.757
and that's not the standard.
324
00:14:57.757 --> 00:15:01.800
The Commonwealth has to prove the case to a moral certainty,
325
00:15:01.800 --> 00:15:04.710
and you stand up in closing argument
326
00:15:04.710 --> 00:15:07.590
when they have to prove the case to a moral certainty
327
00:15:07.590 --> 00:15:10.260
and go through all the different ways
328
00:15:10.260 --> 00:15:13.890
that there's just no trace evidence.
329
00:15:13.890 --> 00:15:14.723
There's nothing.
330
00:15:14.723 --> 00:15:19.610
I mean, that's a reasonable doubt argument that you have.
331
00:15:21.960 --> 00:15:26.960
Again, I would say that is an exceptionally weak argument
332
00:15:27.240 --> 00:15:28.560
in this case.
333
00:15:28.560 --> 00:15:32.070
That is not, I wouldn't try the case on that argument.
334
00:15:32.070 --> 00:15:33.063
I'll say that.
335
00:15:34.017 --> 00:15:37.290
I think that is a losing defense,
336
00:15:37.290 --> 00:15:39.060
and a reasonably effective attorney
337
00:15:39.060 --> 00:15:41.017
could see it that way and say,
338
00:15:41.017 --> 00:15:44.400
"To give my client a realistic defense,
339
00:15:44.400 --> 00:15:46.860
I need to have this shirt tested for DNA."
340
00:15:46.860 --> 00:15:49.320
The fact that this attorney didn't do that
341
00:15:49.320 --> 00:15:50.703
is not the standard.
342
00:15:51.780 --> 00:15:53.610
That's not what we're focused on.
343
00:15:53.610 --> 00:15:57.000
We're focused on could a reasonably effective attorney
344
00:15:57.000 --> 00:15:59.227
have seen it this way and said,
345
00:15:59.227 --> 00:16:02.880
"I am not going to give my client that real defense
346
00:16:02.880 --> 00:16:05.790
by just saying this shirt wasn't tested for DNA."
347
00:16:05.790 --> 00:16:06.960
And I think that the answer to that
348
00:16:06.960 --> 00:16:09.330
is you would have the shirt tested.
349
00:16:09.330 --> 00:16:10.290
Thank you.
350
00:16:10.290 --> 00:16:11.123
Thank you,
351
00:16:12.270 --> 00:16:13.220
Attorney Speight.
352
00:16:16.710 --> 00:16:17.543
Good morning.
353
00:16:17.543 --> 00:16:19.260
May it please the court, Hallie White Speight,
354
00:16:19.260 --> 00:16:21.060
assistant district attorney for Middlesex
355
00:16:21.060 --> 00:16:22.560
on behalf of the Commonwealth.
356
00:16:24.840 --> 00:16:26.729
You are all very close.
357
00:16:26.729 --> 00:16:27.900
(attendees chuckle)
358
00:16:27.900 --> 00:16:28.923
This is strange.
359
00:16:31.350 --> 00:16:33.660
First of all, the defendant is,
360
00:16:33.660 --> 00:16:38.660
not withstanding the attempts to minimize the role
361
00:16:39.180 --> 00:16:42.510
that the lack of forensic evidence,
362
00:16:42.510 --> 00:16:44.640
trace evidence, physical evidence played
363
00:16:44.640 --> 00:16:46.320
in the way this case was tried.
364
00:16:46.320 --> 00:16:49.840
And again, I think there is absolutely no reason
365
00:16:50.999 --> 00:16:55.710
to try to carve out the DNA testing on the shirt
366
00:16:55.710 --> 00:16:57.450
from all the other arguments
367
00:16:57.450 --> 00:17:01.920
about no tire tracks tested, no footprints examined.
368
00:17:01.920 --> 00:17:05.790
Vegetative matter was not kept and examined,
369
00:17:05.790 --> 00:17:07.383
no fingerprints, no blood.
370
00:17:12.040 --> 00:17:14.550
The forensic evidence was crucial to this case.
371
00:17:14.550 --> 00:17:17.430
And that is because of something
372
00:17:17.430 --> 00:17:20.280
that I think my brother has not mentioned at all
373
00:17:20.280 --> 00:17:21.120
in his argument.
374
00:17:21.120 --> 00:17:23.820
And that is, this is a case where we had a confession.
375
00:17:25.560 --> 00:17:28.260
Defendant moved to suppress the confession.
376
00:17:28.260 --> 00:17:29.430
Unsuccessful.
377
00:17:29.430 --> 00:17:32.730
This will probably be an issue on direct appeal.
378
00:17:32.730 --> 00:17:34.260
The confession is in.
379
00:17:34.260 --> 00:17:37.650
The defendant puts on experts to say
380
00:17:37.650 --> 00:17:39.813
he was not in his right mind.
381
00:17:41.100 --> 00:17:42.540
It wasn't voluntary.
382
00:17:42.540 --> 00:17:44.640
He was in the hospital. He was on painkillers.
383
00:17:44.640 --> 00:17:46.743
He was weak. He had lost a lot of blood.
384
00:17:48.240 --> 00:17:49.110
That's fine.
385
00:17:49.110 --> 00:17:51.480
You can put on all the evidence you want
386
00:17:51.480 --> 00:17:53.970
that it's involuntary.
387
00:17:53.970 --> 00:17:58.143
But because of the confessions before the jury,
388
00:17:59.190 --> 00:18:02.490
not withstanding, obviously, the humane practice instruction
389
00:18:02.490 --> 00:18:03.540
that he would've gotten,
390
00:18:03.540 --> 00:18:05.763
you also have to show that it's false.
391
00:18:06.810 --> 00:18:07.950
I don't get that argument
392
00:18:07.950 --> 00:18:12.480
because at least, I think, in Commonwealth versus Wade,
393
00:18:12.480 --> 00:18:16.170
with respect to DNA testing or forensic testing,
394
00:18:16.170 --> 00:18:17.790
we don't say you look at the strength
395
00:18:17.790 --> 00:18:18.900
of the case of the Commonwealth.
396
00:18:18.900 --> 00:18:21.747
That cuts against your argument because, you know,
397
00:18:21.747 --> 00:18:25.560
and I take the lack of trace evidence is your argument,
398
00:18:25.560 --> 00:18:27.330
but whether or not he confessed
399
00:18:27.330 --> 00:18:29.010
or whether or not there was a bloody fingerprint
400
00:18:29.010 --> 00:18:32.400
or whether or not there's a videotape of him doing it,
401
00:18:32.400 --> 00:18:35.490
the question is would a reasonable attorney
402
00:18:35.490 --> 00:18:36.840
have tested the shirt.
403
00:18:36.840 --> 00:18:39.210
I don't get where you're going with the confession
404
00:18:39.210 --> 00:18:41.610
in the wake of Wade and the other cases
405
00:18:41.610 --> 00:18:42.870
that say we don't look at the strength
406
00:18:42.870 --> 00:18:43.860
of Commonwealth's case.
407
00:18:43.860 --> 00:18:44.693
Because we don't say,
408
00:18:44.693 --> 00:18:47.190
"You don't get DNA tested if you have a strong case."
409
00:18:47.190 --> 00:18:50.254
No, and no one said, I'm not, that's not my argument.
410
00:18:50.254 --> 00:18:51.810
All right, so where are you goin' with this?
411
00:18:51.810 --> 00:18:52.710
When we started out,
412
00:18:52.710 --> 00:18:55.000
the first two cases that this court decided
413
00:18:56.190 --> 00:18:57.570
construing this statute,
414
00:18:57.570 --> 00:18:59.040
Wade and Donald,
415
00:18:59.040 --> 00:19:02.400
both had sort of procedural peculiarities
416
00:19:02.400 --> 00:19:04.770
that I think have kind of resonated
417
00:19:04.770 --> 00:19:08.280
through the case law ever since.
418
00:19:08.280 --> 00:19:10.530
You know, in Donald, we had a defendant
419
00:19:10.530 --> 00:19:12.180
who filed monthly motions.
420
00:19:12.180 --> 00:19:13.500
Tons of evidence against the defendant.
421
00:19:13.500 --> 00:19:16.740
Tons of evidence, overwhelming and, you know,
422
00:19:16.740 --> 00:19:19.470
what we call a frequent filer.
423
00:19:19.470 --> 00:19:22.380
And when this motion came across a judge's desk
424
00:19:22.380 --> 00:19:25.020
not realizing, not appreciating fully,
425
00:19:25.020 --> 00:19:29.820
that 278A really meant to shift the landscape on this,
426
00:19:29.820 --> 00:19:31.410
she got out her rubber stamp
427
00:19:31.410 --> 00:19:33.300
and said evidence was overwhelming.
428
00:19:33.300 --> 00:19:34.383
Motion is denied.
429
00:19:35.490 --> 00:19:37.890
And his court quite rightly said
430
00:19:37.890 --> 00:19:42.180
that you cannot deny a 278A motion based solely
431
00:19:42.180 --> 00:19:44.010
on the strength of the Commonwealth's evidence.
432
00:19:44.010 --> 00:19:48.270
That's precisely what it's meant not to do,
433
00:19:48.270 --> 00:19:51.390
was to give a defendant a chance,
434
00:19:51.390 --> 00:19:53.160
even where the evidence was overwhelming,
435
00:19:53.160 --> 00:19:55.760
even where it's so overwhelming that he pled guilty.
436
00:19:57.540 --> 00:20:00.900
And Wade had some, you know, in Wade,
437
00:20:00.900 --> 00:20:04.770
the defendant had moved for a new trial before 278A,
438
00:20:04.770 --> 00:20:07.710
arguing that his trial counsel was ineffective
439
00:20:07.710 --> 00:20:11.040
for not having sought the DNA testing
440
00:20:11.040 --> 00:20:12.870
that he was now seeking under the new statute.
441
00:20:12.870 --> 00:20:13.703
All right, so we've established the strength
442
00:20:13.703 --> 00:20:15.570
of the Commonwealth's case is not the test for 278A.
443
00:20:15.570 --> 00:20:17.040
It's not the test.
444
00:20:17.040 --> 00:20:18.840
But I also wanna remind the court
445
00:20:18.840 --> 00:20:22.680
that both the first Wade case and the first Donald case
446
00:20:22.680 --> 00:20:25.773
were Section 3 cases.
447
00:20:28.170 --> 00:20:29.820
They were not decided.
448
00:20:29.820 --> 00:20:32.370
Yeah, but we don't-
Under section-
449
00:20:32.370 --> 00:20:33.203
We don't shift, hold on.
450
00:20:33.203 --> 00:20:34.620
Section 3 is whether you get a hearing.
451
00:20:34.620 --> 00:20:36.616
We're passed that and the judge appropriately said
452
00:20:36.616 --> 00:20:37.736
there's a hearing.
453
00:20:37.736 --> 00:20:38.569
And we had a hearing.
454
00:20:38.569 --> 00:20:39.678
But where does the strength of the case
455
00:20:39.678 --> 00:20:41.250
come in statutorily in Section 7?
456
00:20:41.250 --> 00:20:42.810
I'm not arguing the strength of the case.
457
00:20:42.810 --> 00:20:45.000
I'm arguing the character of the evidence.
458
00:20:45.000 --> 00:20:49.710
What it was, how it came in, how it fit together.
459
00:20:49.710 --> 00:20:53.280
I don't, honestly, I don't know how you can make
460
00:20:53.280 --> 00:20:57.570
an assessment of whether a reasonably effective attorney
461
00:20:57.570 --> 00:21:00.000
would seek testing in a given case
462
00:21:00.000 --> 00:21:02.190
without an understanding of what the other evidence is.
463
00:21:02.190 --> 00:21:07.170
I'm still baffled about your discussion of the confession
464
00:21:07.170 --> 00:21:10.380
because if he's claiming it's a false confession,
465
00:21:10.380 --> 00:21:13.440
wouldn't you want the DNA evidence to exculpate,
466
00:21:13.440 --> 00:21:15.030
to say, "Yeah, it really was."
467
00:21:15.030 --> 00:21:17.940
Only if it exculpates him.
468
00:21:17.940 --> 00:21:18.773
Right, which is-
469
00:21:18.773 --> 00:21:20.790
And it would have some force if you did that.
470
00:21:20.790 --> 00:21:25.790
But if there's a match to the defendant,
471
00:21:27.630 --> 00:21:30.570
then not only have you lost your argument
472
00:21:30.570 --> 00:21:33.243
that there's no forensic evidence,
473
00:21:34.530 --> 00:21:39.530
but suddenly the confession is corroborated.
474
00:21:43.080 --> 00:21:44.880
And so that's something more than just
475
00:21:44.880 --> 00:21:47.850
there's no evidence to link.
476
00:21:47.850 --> 00:21:49.800
There's no physical evidence to link the defendant
477
00:21:49.800 --> 00:21:50.633
to the crime.
478
00:21:50.633 --> 00:21:54.630
It's suddenly, "Oh, that confession looks a little different
479
00:21:54.630 --> 00:21:57.297
once we have some DNA to corroborate it."
480
00:21:58.260 --> 00:22:00.810
And I also wanna point out that, you know,
481
00:22:00.810 --> 00:22:03.903
if you're swabbing the chest and the armpits of the shirt,
482
00:22:04.920 --> 00:22:09.920
the innocent explanation is a lot harder to make out.
483
00:22:10.440 --> 00:22:13.590
Let's take the appellant argument, though,
484
00:22:13.590 --> 00:22:18.590
which is that they're facing an overwhelmingly strong case.
485
00:22:20.490 --> 00:22:21.630
That's their argument.
486
00:22:21.630 --> 00:22:23.017
Their argument is,
487
00:22:23.017 --> 00:22:26.130
"My goodness, look at what he's searching for
488
00:22:26.130 --> 00:22:27.180
on the internet.
489
00:22:27.180 --> 00:22:28.680
Look at the email.
490
00:22:28.680 --> 00:22:33.680
My goodness, the GPS matches where the body's dropped off
491
00:22:35.250 --> 00:22:37.260
and the timing matches."
492
00:22:37.260 --> 00:22:38.657
And I'm not gonna go on everything else
493
00:22:38.657 --> 00:22:40.653
'cause I'm gonna run out of fingers.
494
00:22:42.892 --> 00:22:44.670
There's very strong evidence.
495
00:22:44.670 --> 00:22:46.923
Why not throw the Hail Mary?
496
00:22:49.380 --> 00:22:53.193
Because the Hail Mary eviscerates the entire defense.
497
00:22:54.690 --> 00:22:55.650
Yeah, I understand,
498
00:22:55.650 --> 00:22:58.530
but I think that they had a good response to that.
499
00:22:58.530 --> 00:23:02.160
The entire defense, what they're saying was,
500
00:23:02.160 --> 00:23:04.890
in the face of all this running out of fingers,
501
00:23:04.890 --> 00:23:07.530
talking about the defense,
502
00:23:07.530 --> 00:23:10.023
that they needed a Hail Mary.
503
00:23:11.370 --> 00:23:15.090
Not every lawyer, but a reasonable lawyer wouldn't go out
504
00:23:15.090 --> 00:23:20.090
a closing argument and just rely on the forensics
505
00:23:21.930 --> 00:23:23.370
as a trial strategy.
506
00:23:23.370 --> 00:23:26.340
The craft of advocacy's gonna need something else
507
00:23:26.340 --> 00:23:28.050
to get to not guilty here.
508
00:23:28.050 --> 00:23:31.530
I think a reasonable lawyer could very well do that.
509
00:23:31.530 --> 00:23:34.380
And I think it's more likely than not.
510
00:23:34.380 --> 00:23:36.720
And that's the standard on Section 7.
511
00:23:36.720 --> 00:23:38.130
I think it's more likely than not
512
00:23:38.130 --> 00:23:41.280
that a reasonable attorney would not roll the dice on that.
513
00:23:41.280 --> 00:23:43.710
Because if it does come back to the defendant,
514
00:23:43.710 --> 00:23:46.650
it's very, very bad indeed for him.
515
00:23:46.650 --> 00:23:48.387
But how much worse is it?
516
00:23:48.387 --> 00:23:51.060
But I guess that's the point of Justice Lowy's question
517
00:23:51.060 --> 00:23:53.787
is that, you know, it's lookin' pretty bad.
518
00:23:53.787 --> 00:23:54.957
I think it, I think it's pretty-
519
00:23:54.957 --> 00:23:57.120
And maybe if I roll the dice,
520
00:23:57.120 --> 00:23:59.664
and it shows up that there's, you know, somebody else's-
521
00:23:59.664 --> 00:24:01.710
We get a full profile on the armpits of the shirt.
522
00:24:01.710 --> 00:24:03.090
Unless he's gonna claim
523
00:24:03.090 --> 00:24:05.760
that they were wrestling in the parking lot
524
00:24:05.760 --> 00:24:08.340
or that they were having a tango lesson,
525
00:24:08.340 --> 00:24:12.090
I don't know how you explain that.
526
00:24:12.090 --> 00:24:15.510
Like, the absolute best case scenario for the defendant
527
00:24:15.510 --> 00:24:20.510
is a couple of flakes of epithelial DNA
528
00:24:21.000 --> 00:24:22.920
that don't match him,
529
00:24:22.920 --> 00:24:27.300
which is of extremely limited probative value,
530
00:24:27.300 --> 00:24:29.040
given that it's the outside of the shirt,
531
00:24:29.040 --> 00:24:31.713
and DNA can be picked up from anywhere.
532
00:24:33.720 --> 00:24:36.270
And there's this, you know, imaginary person
533
00:24:36.270 --> 00:24:40.510
who has a motive to kill Rakes
534
00:24:41.430 --> 00:24:43.203
but has not been suspected or not.
535
00:24:45.914 --> 00:24:48.150
You know, maybe if we had a little more
536
00:24:48.150 --> 00:24:50.940
developed third-party culprit,
537
00:24:50.940 --> 00:24:54.633
an actual third-party culprit instead of an imaginary one,
538
00:24:56.220 --> 00:24:58.170
the balance could shift a little bit.
539
00:24:58.170 --> 00:25:00.840
I mean, this is why I think we're not just talking
540
00:25:00.840 --> 00:25:02.040
about the strength of the evidence.
541
00:25:02.040 --> 00:25:04.290
We're talking about what was the evidence
542
00:25:04.290 --> 00:25:09.290
and what role would this play if the testing were done.
543
00:25:09.420 --> 00:25:10.253
How prevalent was Bowden?
544
00:25:10.253 --> 00:25:11.340
I think the court has to consider that.
545
00:25:11.340 --> 00:25:13.800
How prevalent was Bowden?
546
00:25:13.800 --> 00:25:15.330
Bowden?
547
00:25:15.330 --> 00:25:17.730
I'm trying to remember if there was a Bowden instruction
548
00:25:17.730 --> 00:25:19.830
requested or given.
549
00:25:19.830 --> 00:25:22.860
I don't think that's dispositive.
550
00:25:22.860 --> 00:25:25.560
All of the investigative witnesses,
551
00:25:25.560 --> 00:25:28.990
virtually, were cross-examined with the fact
552
00:25:30.253 --> 00:25:31.560
that they didn't find a fingerprint.
553
00:25:31.560 --> 00:25:33.780
They didn't examine the tire tracks
554
00:25:33.780 --> 00:25:36.420
to compare them to a car that at that point
555
00:25:36.420 --> 00:25:37.770
we didn't know what it was.
556
00:25:38.610 --> 00:25:40.293
We didn't examine the footprints.
557
00:25:41.250 --> 00:25:44.070
That shirt was never tested.
558
00:25:44.070 --> 00:25:46.050
They didn't find fingerprints in the car.
559
00:25:46.050 --> 00:25:48.063
They didn't find blood in the car.
560
00:25:49.980 --> 00:25:53.010
I mean, if you count up the number of pages,
561
00:25:53.010 --> 00:25:57.690
maybe it's not as voluminous
562
00:25:57.690 --> 00:26:00.000
as some other bits of testimony,
563
00:26:00.000 --> 00:26:02.643
but it was a crucial part of the case.
564
00:26:04.380 --> 00:26:08.670
And it goes away if suddenly you have
565
00:26:08.670 --> 00:26:11.430
the defendant's DNA in the very spot
566
00:26:11.430 --> 00:26:16.430
where someone dragging his body into the woods would be.
567
00:26:21.060 --> 00:26:26.060
And suddenly, that confession is a lot less challengeable
568
00:26:28.410 --> 00:26:31.470
than it was at trial.
569
00:26:31.470 --> 00:26:34.590
And I would submit, I don't think even,
570
00:26:34.590 --> 00:26:35.760
you know, we don't have to prove
571
00:26:35.760 --> 00:26:39.780
that every competent attorney would seek the testing.
572
00:26:39.780 --> 00:26:42.300
By the same token, I don't think that the motion
573
00:26:42.300 --> 00:26:45.360
has to be allowed unless a court finds
574
00:26:45.360 --> 00:26:48.480
that no competent attorney would seek the testing.
575
00:26:48.480 --> 00:26:52.050
I think we're close to that in this case.
576
00:26:52.050 --> 00:26:53.370
And if there are no further questions,
577
00:26:53.370 --> 00:26:55.050
I'll rely on my brief and ask the court
578
00:26:55.050 --> 00:26:56.940
to affirm the denial.
579
00:26:56.940 --> 00:26:57.773
Thank you.