-: SJC-13428, Commonwealth v Khalid Kalila.
-: May it please the court.
My name is Jay Carney,
and I represent the appellant in this case, Khalid Kalila.
I've been thinking this week about the fact
that I became a member of this bar in 1978
as a full-time Massachusetts defender in Boston,
and I distinctly remember the cases of Levin
and Allen and Hodge, where this court, or the appeals court,
made it clear that there is almost a presumption
that a person would get a stay provided
that there was a meritorious issue to be presented,
and there were not facts that would support
that the defendant was a danger
to the community or a flight risk.
I was very pleased to see, in Nash, this court reviewed,
with greater detail, the basis for a stay of execution.
But in essence,
it was the same standard that this court had set
in 1979 and 1980.
Excuse me.
-: Of course, on that fascinating issue,
you clearly have, on the heft issue,
that it's gonna create a dialectical discussion.
You're good there.
I'm not even sure the Commonwealth would say otherwise.
So moving on to the security flight issues is probably
where we're going to be here.
-: Yes, your Honor.
Justice Kafker: And can I layer onto that one thing,
additional thing? -: Certainly, your Honor.
-: Which is, we seem to be saying that
if the security flight possibility is high enough,
that's determinative in this context, right?
We've said that, right, multiple times.
-: Yes. -: Okay.
So go for Justice Lowy's question then.
(Justice Kafker chuckling)
-: But my claim is that both Justice Ricciuti
and Justice Desmond abused their discretion
by taking a perfect bail argument on behalf of someone
and turning it on its head,
and saying, "See, he's been working full time
at the same jobs that he was working at
before he was arrested,
and through the three years that he has been awaiting trial.
He's been working at the same job,
and that's so he can save his funds to flee.
Where the heck did that come from?
Justice Gaziano: So it's the speculation
that is the most problematic, Mr. Carney?
-: Yes, it is, your Honor.
The problem is the defendant's background was one
of the best bail arguments a lawyer could ever make,
and I speak as someone who spent 40 years
of my career arguing for bail
and the other five years arguing
for a little bit more bail when I was a prosecutor.
But my point is that,
when you look at this person's background,
he was born a United States citizen
because his mother was American and his father was Moroccan.
So he had dual citizenship.
He came to the United States when he was 13 years old,
and he married his high school girlfriend
when they were 18 years old,
and they moved here and stayed here.
They had three children.
-: So we might make a different decision than Judge Ricciuti,
but I mean, our review is for abuse of discretion.
Why couldn't Judge Ricciuti review this differently
than the narrative that you're saying.
Jay: Oh, I think he gave a clue.
-: Those factors indicate that the defendant has the capacity
and now the impetus to flee.
-: It was pure speculation.
Justice Kafker: Oh, is it?
-: There's a quote I put in there about,
"Sometimes a lawyer will give a reduced fee
for someone to do the appeal."
That was not excluded as a consideration by the court.
He just speculated that they've got all this money
and will use it to flee, and the problem is-
-: Based on...
I thought there was something in the record
about the defendant actually going to Morocco.
Jay: Yes. -: Okay.
-: He had gone to Morocco
with his wife.
-: So it wasn't pure speculation.
It was based on evidence of actually doing it.
-: He went to Morocco with his wife and three children.
They have an aunt in Morocco still.
All the rest of the family had moved to the United States,
except one brother, who moved to Germany.
But I think Judge Ricciuti gave a clue
as to why he had this problem on the stay.
He twice stated that Mr. Kalila can "leave this country
and evade the punishment which I have imposed,"
and the second time he talked about it,
and he said, "Escape the punishment I imposed."
Well, if you're looking at a decision on whether
to grant the stay of execution,
you simply have to know that a stay
of execution will prevent a person
from immediately serving the sentence.
That happens in every single stay.
-: When the appeals court fights over this, you know,
they recognize maybe some of the overstatements,
you know, you're talking about,
but this person has a viable life in both places.
You know, he has connections to Morocco.
His father's there.
He has family connections there.
He had a passport there.
The Milkey-Massing description
of all these factors are both plausible.
So, doesn't that come down to,
there's no abuse of discretion here?
They're both reasonable interpretations
of this possibility of flight.
-: Because it's not reasonable.
-: Really? -: Respectfully, your Honor.
-: He's not a defendant with no obvious place to go.
He also has a very supportive family, which is fantastic.
So he's not financially on his own either.
I mean, I recognize your point
that the judge overread the financial point
and shouldn't have been focused on the fact
that you're so good and so expensive, whatever.
But there is sort of a very global description
of all of the relevant factors, you know,
by both single justices and the appeals court,
and it comes down to a,
you know, a discretionary call, doesn't it?
-: An abuse of discretion should not be
as rare as pigs flying.
That's my favorite quote of the last 45 years.
The way it's...
Oh, I'm sorry.
But your Honor, the reason why it's an abuse of discretion.
If your statement, just now,
that if a person comes from another country,
then he can't be released.
-: Again, the trial judge goes through a lot of factors.
He is not someone without connections to Morocco.
He visits there.
His father lives there.
We're just not projecting flight out of the country
in some undetermined way.
He also, the trial judge has the benefit
of having been there for the trial.
I know you think he's trying to, you know, enforce his rule,
but he also observed the trial testimony on credibility.
He has a sense of what could happen on a retrial
that's probably better than anyone else's.
It may be prejudiced, you're saying, I guess.
But again, it's abuse of discretion standard,
and it's going through all the Nash factors.
Nash, I mean, again,
Judge Massing talks about Nash as being emphasized
that you didn't really even consider the factors
or you undervalued them dramatically.
There are judgment calls on each of these factors,
and you can go both ways
as the two appeals court justices do, but it seems...
-: Respectfully, your Honor, you can't.
There has to be a point
where someone is gonna abuse the discretion.
For example, saying this defendant came from Morocco.
He came to the United States at age 13,
already a United States citizen.
He graduated from the local high school in Revere.
He began working. -: He's a tremendous
success story here.
I think Judge Milkey does a very nice job of saying,
"It's gonna be tough to leave this country
for this man and his family."
-: Well, you should see his first opinion.
-: Right, so I get that.
But at the same time,
he's facing going to prison for four to five years.
He knows what happened last time.
Even if this gets reversed, he's gonna be retried,
and his life here is not gonna be the same
if he's convicted, right?
It's just gonna be dramatically different.
He's gonna be away from his family for four or five years.
Will he run to a place he has connections,
to where his dad lives?
It's just hard to substitute our judgment here, I find.
-: It's an abuse of discretion to say,
"Simply because a person has a relative in another country
and every summer he goes to see that relative-
-: It's more than that.
It's that this man's life...
There's a distinct possibility of him going to jail
for five years, and that changes your calculus.
Even if you love this country
and you've been a great success here,
that's frightening for anybody.
So it's not just that he has family in Morocco.
It's complicated.
There are a lot of these factors, when you go through them,
that makes this...
This guy has a terrible decision to face.
-: Like what, your Honor?
Like, he hired private counsel,
and so we're gonna hold that against him?
That's what Judge Ricciuti did.
Held it against him that his family hired me
to represent him.
-: I agree that that was probably ill-advised.
But again, the appeals, Judge Massing talks about that,
and I thought in an intelligent way,
puts it into the calculus, diminishing it, by the way.
-: Justice Georges, Justice Lowy, Justice Gaziano,
the three of you have an advantage
of having set bails for years,
and I'm not being disrespectful to you, your Honor.
-: No, a totally appropriate comment.
-: But the three of you, you know, have set bail for years.
And if you look at this person's background,
and he's being arraigned in the South Boston District Court
in the morning after an arrest the night before
and bail being posted at the police station,
he shows up at South Boston for his arraignment-
Mr. Carney, the point, though, is bail is different, right?
I get to make that point as an appellate judge, right?
Bail is a different determination than this.
This is a different standard, correct?
-: No.
This court has said repeatedly that the process
that a trial judge should use
in terms of setting an amount of money
for a stay of execution is the identical process
that you use to set bail.
Because the same factors-
-: I'm not gonna read other cases
that say the standard is different here.
We've got a lot of cases out there.
Does Nash even make that point?
I can't remember.
Jay: I can't remember.
-: The presumptions are different.
That's the issue, right?
-: Right, but the factors-
-: The factors are the same, yeah.
We said that you have to apply the bail factors,
but the presumptions of liberty are different.
-: Why don't we do this?
You have a minute left.
And as part of your brief
that the Commonwealth doesn't really address
and as part of their position that you don't really address,
I don't think they address your point of,
that factor one's so strong
that it should feed into factor two.
Jay: Absolutely.
-: And you don't address that, okay, factor one's strong,
but factor two has to account for
that he's already been convicted once
and may choose, as Justice Kafker is suggesting,
to take an opportunity that he has
rather than being convicted a second time.
I'm not saying they can't address your point,
and I'm not saying you can't address theirs,
but why don't you take a shot at addressing this?
-: At addressing their issue?
-: Well, what's the point?
He can be retried.
He said, "I've been tried once and been found guilty."
He's got a risk of flight because five years is a long time.
Even if your Horatio Alger and all's done great,
it doesn't mean that you necessarily want
to play those odds.
-: I perhaps showed hubris during the stay hearing
when I said to Judge Ricciuti,
I have educated my client into what structural error means
and that I-
Justice Gaziano: But I can't believe you showed hubris.
-: What's that?
-: I can't believe you showed hubris was what I said.
-: Yes, hubris.
-: And that's my argument on- -: I told the judge
that I've told my client
that this conviction will not stand,
and I said that to Judge Ricciuti.
I explained to my client-
-: That's what we started though, Mr. Carney,
that's what we started, that...
I think you've got a really good issue that's, at a minimum,
an issue of heft that's going to be an impetus
for a dialectical discussion.
I think you're good.
And they're gonna have to address why
that doesn't leak into point 2 as you've suggested it does.
But you've gotta face the,
as far as the abuse of discretion issue goes,
what they're gonna say is, "Yeah, we had a really good case.
We still have a really good case."
-: The jury was out for four days of deliberation.
That shows that there was a lot of discussion going on
on a very straightforward case.
Four days of deliberation.
Those jurors are trying to weigh what the allegation was.
And so, keeping a jury out for four days,
that shows the trial had some legs.
-: On the issue of abuse of discretion,
can you list for me, Mr. Carney,
the things Ricciuti got wrong
as far as the speculation goes?
-: Certainly.
He refused to appreciate
that the defendant was born an American citizen
and came to the United States at age 13,
attended local school in Revere,
and then began working as a maintenance person,
overseeing 60 employees at,
I think it's nine different settings,
including Granite Links, a pretty terrific golf course.
Then, he has three children.
-: I don't think that's,
if you don't mind me saying Justice Gaziano,
I don't think that's your question.
What the argument was
for bail is what he should inappropriately consider.
-: Right, 'cause the the first point you made
that he took the money part of it, and said,
"He's stashing money to flee, " the speculation.
To me, that strikes a chord.
Are there other things like that as well?
-: His view that the defendant has sufficient family
in Morocco to move his wife
and their three young children,
who have permanently resided in Massachusetts,
that they would pick up and leave.
Another thing he got wrong, which we've already discussed,
is the fact that I'm a private counsel is a factor
that should be considered, and I submit it should not be.
Mr. Kalila had no prior criminal record, except for-
-: Could you stick to the errors?
It would be really helpful,
'cause your best chance of reversing this is,
what is not sort of marginal that you left out,
but what errors did he make?
So it seems to me it's the stashing money
and private counsel are the two that you emphasize.
Is there any-
-: I think you also mentioned the bail,
the make post and bail issue.
-: Well, he had posted bail the night of his arrest
at the police station.
The court, the following morning, kept the same bail.
The case was added
to when the government sought a criminal complaint
for mayhem.
He was arraigned on that, and the bail stayed the same.
Then, he appeared in the superior court.
The bail stayed the same.
He was on that bail for three years
during the period of COVID.
He never missed a single court appearance.
-: But the judge noted he never missed it.
He noted he was a model citizen, besides this event.
Again, trying to focus on errors.
-: All right, here's one of the errors he made,
saying that, "If I grant this stay,
the defendant would either evade or escape punishment."
-: Does he do that in his opinion,
or is that somewhere else?
That's in some oral con...
Does that appear in his actual decision,
or is that something you're pulling from the transcript?
-: It's from the transcript of the stay hearing.
And he says it twice with that one word difference.
-: Was there an issue of extradition that he got wrong?
-: Yes.
He said, "If he goes to Morocco, we can't get him back."
Well, we've submitted in our brief
that there is an agreement, and has been for decades,
with Morocco to extradite people from Morocco
to the United States.
So, he got that fact wrong.
-: And was there an error
about the ability to get a passport?
Was there also an error on that or not?
I can't remember.
-: Yes, Judge Ricciuti said he can just get a passport
and leave the country.
And it turns out, in order to leave the country,
he has to go through Homeland Security,
and he's gotta present identification.
-: But I think Judge Ricciuti is saying
he'll have a Moroccan passport that's valid,
and therefore, he can go through passport control.
-: If he is barred from leaving the United States
that shows up in the Homeland Security records.
And if someone tries to leave the country,
they get caught at the border, at the airport.
-: Whether or not they have a foreign passport?
-: He had an expired passport
and a present United States passport.
-: So if someone comes in...
I just want to, again,
'cause I'm focused on errors, not quibbling.
But if someone goes with a valid Moroccan passport to the,
you know, the airport,
it is going to really register with,
and their name is not some, an incredibly unusual name,
it's gonna register that you're
on a list banning you from leaving the country.
'Cause he's not using his American...
I understand if he was using his American passport,
but he's gonna be using, in Judge Ricciuti's example,
a Moroccan passport.
-: If he were barred from leaving the country,
which is not an unusual condition
of release imposed by judges,
then the word is conveyed to Homeland Security
that this person cannot leave the United States.
-: And we'll find that in the record. Mr. Carney?
-: I'm sorry?
-: We'll find that in the record, right?
-: In my brief, I gave the court the guidance of that.
And that one has to go through Homeland Security
and show that you are allowed to leave the country.
-: And I'll just ask you, Mr. Carney, in the time remaining,
could you let us know
if there's any other errors you wanna point out
in the decision?
-: Sometimes when you see clues
that a judge is purely speculating about stuff that,
in fact, has no basis in fact in the record.
And the judge twice says, "If I grant a stay,
he will escape the punishment that I imposed on him"
and variations of that, twice,
that's not a judge who is honoring the teachings
of this court, whether it be Levin,
Allen and Hodge, or Nash.
And that's another error that clouds everything he said.
-: Thank you Mr. Carney.
-: Thank you, your Honor.
Thank you very much.
Justice Gaziano: Attorney Jordan.
-: Good morning.
May it please the court,
Darcy Jordan on behalf of the Commonwealth,
and with me is ADA Lynn Feigenbaum,
who is the trial attorney.
-: Sorry. -: That's okay.
-: Thank you.
-: Can I ask you to start
with the question whether a strong showing
on likelihood of success has any bearing on the analysis
under the security factors
-: In short, no.
I do go into it at length in my brief.
And I think this is the real nugget
before the court is how these two distinctive factors,
if they should at all...
-: The question. -: That's the question.
-: So, what's your answer?
-: My question is no, and I think...
Well, I think if I could start at the end
and explain why.
I think to do so is to really invalidate what a legal,
valid verdict, a judgment,
means in the criminal justice system.
And if we could just hear me out.
Because in motion to stay the first factor
as it currently stands,
the defendant just needs to raise a claim of error.
It's a very liberal threshold that benefits the defendant,
as it should, right?
Because we're saying...
-: Right, but this defendant didn't make just a sort of,
"Hey, this passes the laugh test kind of thing."
He made a quite substantial argument that there is going
to be a reversal of this verdict.
-: Yes, he did.
And I suggest what the defendant is postulating is that,
that the defendant, in a motion to stay,
not just raise a claim of error, right,
that will be eventually litigated by a panel
in the appellate courts, but is basically raising to say,
"My claim is so strong that it rebuts the presumption
of the valid judgment
that it so deems my current valid sentence
after a valid legal judgment illegal,"
and I think what that then has to logically mean is
that that verdict from the trial does not mean
that final judgment, and what that has...
-: Well, it's not final.
-: Well, it is final for the purposes of sentencing,
and that's really what we're talking about.
Or, I should say it's the purpose
of curtailing the defendant's freedom
that the verdict is final.
Because we can probably all agree that the word finality
in the criminal justice system has different meanings
in different contexts, right?
'Cause we can talk about the judgment, a verdict,
having a finality in that it allows
for the curtailing of freedoms
and the abrogation of substantial rights.
But we can also, as an appellate court,
talk about the finality of judgment and say a re-script.
Believe you me, as an appellate attorney...
-: But this particular issue,
why shouldn't we consider prong one
in analysis of prong two?
To me, if you have a really good case
that this is gonna be flipped on appeal,
it might affect things like flight.
-: Yes.
-: The likelihood of flight, right?
If I'm definitely gonna get a second shot at this,
maybe don't go.
-: Well, yes and no,
and I think that dovetails to a question
that Justice Lowy had raised to my brother.
But I think what we have to think about is,
how does this process work?
That valid judgment that we talked about, by the jury,
that can only be abrogated or vacated, overruled,
by an appellate court.
And just by raising the claim
that I have a strong claim and a motion to stay
after that verdict isn't enough to rebut the presumption
of that valid verdict.
-: So I guess my suggestion is not
that just raising the claim, but raising the claim,
citing the cases, and saying,
"I'm just like that," it's pretty good.
-: Right, well, I think just not like that if we look
at the appellate brief, that we also argued.
I don't think it's that simple to say that.
Because what you're basically saying is that,
in a motion to stay,
a defendant can raise an appellate issue,
essentially litigate it, based on the facts in the record,
and prove, essentially, that my judgment isn't valid.
And I think that is totally contradictory
to our whole criminal justice practice.
-: Right, but also, aren't we...
All you do is go back to trial.
You can get hooked again.
I mean, you can get hooked again,
and the idea that the strength
of the appeal might be so great, wonderful.
But you might be right back at square one
and right back at square two
when the verdict comes back the same way.
-: Right.
And now, you have a different judge
with a different opinion based on fact,
not by an appellate court.
But also, if I could tail dove that
into what this, again, globally means.
Because if this idea that there's a claim
so strong that it's so obvious and egregious
that will warrant vacating, well,
if we take a look at what really happens at trial,
there's a whole universe of remedies
if such egregious error that arises, right?
And we trust our trial judges to remedy that.
-: The judge forgets to instruct on an element.
The judge should grant them a motion for new trial.
-: Exactly.
We can talk about 2-11-3, you know,
or even if it's immediately thereafter, 25B.
But when there's a verdict,
it meaningfully changes not only the government's interest
in that verdict,
but it changes the remedies available to the defendant.
And a motion to stay-
-: But we're analyzing the judge for abuse of discretion.
Let me posit the way your brother argued for a second.
He said, "Okay, we've got an error here that's,
basically, every judge who's looked
at it now is concerned about it.
Two, the trial judge sort of is rewriting a little bit.
So he's concerned about it too.
Three, that may be affecting his analysis
on the other side of things."
I think that's what we have to worry about.
Is the judge analyzing the security issue
in the context of dealing with his own error,
or potential error?
And that's where this gets a little more complicated, right?
'Cause this looks like a reversal.
Let's be honest.
It looks like a reversal.
The appeals court is, essentially, recognizing that too.
But again, there's gonna be another trial on this thing.
But it looks like a reversal,
and the judge is digging in a little bit.
-: I respectfully disagree based on my appellate brief
that it...
-: You think you're gonna win this one
on the jury disqualification issue...
Just let me pose this.
You think you're gonna win that one, basically that it is...
Forget about genuineness.
But that it is not an adequate critique
to say that the juror has family members
in the very police department that's investigating this.
I've read about 10,000 cases where we say that's adequate.
-: I think my brother and I frame that issue differently,
and I frame it differently, respectfully, than your Honor.
Because in those cases,
it was isolated to one juror
and the Commonwealth's postulation, which was the judge's.
is that that-
-: That relates to genuineness, not adequacy.
-: Adequacy.
And again, as I described in the appellate brief,
that I think he was struggling with the idea
of implicit bias, which I know this court has addressed,
and it is real,
and it's definitely hard to harness and identify
and create rules around it.
And I think
that's exactly what the justice was struggling with.
But I think, as the Commonwealth,
and I agree with how Judge Ricciuti framed it,
was that it's not isolated to that one jury.
And I don't disagree with you,
if it was isolated to that one juror,
but here we have a comparative juror,
where the judge said...
-: Wait, wait.
Just back up on the facts.
There was another juror who had family, presently,
in the Boston Police Department,
-: No, other police.
And I think what it's gonna come down to there...
-: And the witnesses were from the Boston Police Department?
-: That's correct. -: Okay.
-: So nobody who was identical to this particular juror?
-: Correct.
And I think what it's gonna come down to there is whether
or not it was an abuse of discretion for that judge
to look at that categorically wider
than the defendant is offering.
-: Okay, so then we've got to get
into this security analysis.
And again, I read it as a separate inquiry.
But at the same time, is the judge overly committed?
Again, Mr. Carney just talks about the judge saying,
"Escape my judgment," or, "Evade my judgment."
He doesn't use that in his decision.
Do we consider that?
He says it at the transcript,
that he may evade my judgment or what...
I haven't read it.
-: I think he was saying evade period, end of story.
I don't think he was necessarily...
I think Judge Ricciuti was saying
that the defendant's ability, possibility,
of leaving regardless of the decision on the first,
I'm sorry, the first factor, outweighs everything.
And I think what Judge Ricciuti
was doing was applying Nash, right?
The first question is strictly a question of law.
Do you cross the threshold?
Okay, I get it.
And he says, "I might've muddled it,
but let me clear it up."
But all day long you cross that threshold.
The law does not provide for this apex,
and I think it doesn't because of some
of the reasons I described earlier.
But what judge-
-: It certainly doesn't...
They want you to be able to bring that
to satisfy that prong.
But I think Judge Wendlandt's question is,
when it's really clear it's an error,
does that somehow impact the analysis?
-: Well, I guess my answer is,
I think that's an erroneous reading of the law,
and I think why it's erroneous is
that it contravenes what final judgment, in the trial sense,
what that means.
-: So, Commonwealth versus Hernandez is not irrelevant
to how we think about prong one.
-: Exactly.
And I cite Hernandez for exactly that idea.
Because what my brother is asking is basically
for the court to move the goalpost
of what finality means in a criminal system, right?
Because finality of judgment,
this valid judgment of a jury verdict,
it allows for the abrogation
of the defendant's rights, right?
So we say, "You don't get to go home,
unless there's these other countervailing factors,"
which Ricciuti says are not present here.
But what my brother really wants to do is say,
"It's not final judgment.
We're gonna presume my judgment and the sentence is illegal.
We have to presume that until a rescript,"
is really what he's asking for, to say,
"I should be out free,
because I have a great appellate claim
that hasn't been litigated."
-: I think that you're overstating the argument.
I would state it as follows.
Prong one is a very low threshold,
but if I make a really compelling showing,
it might affect the analysis on prong two.
It's not saying that the conviction isn't, quote unquote,
final, or there hasn't been a jury verdict.
We're not getting to those issues.
We're just saying,
when you make a really compelling argument,
and you've shown it in your motion to stay execution,
it might be something to consider when analyzing prong two.
We're not getting rid of the jury system,
or sort of the parade of horribles that you're envisioning.
We're just saying, "Consider it in the analysis."
-: And my illustration is in the parade of horribles,
but it's more indicating that there is purpose in meeting
for the way it is right now,
that it's a threshold and not an apex of plan.
-: So there's no sliding scale in our case law?
-: Right, and I think the reason there is no sliding scale is
because that preserves the appellate process,
which allows only for the affirmation
or vacating or remand back.
-: It would also be incredibly difficult
to apply in a truncated appellate setting.
-: Absolutely, and I list a few reasons
why I think it's, overall-
-: Attorney Jordan, how about this, though,
because you really haven't touched
upon Attorney Carney's point?
At some point, doesn't this just become illusory,
the potential for a stay after a sentence?
I mean, if you look at somebody,
like in Mr. Kalila's position,
and one thing that Attorney Carney didn't mention is some
of us have been in a position of granting stays,
and those people are still in the wind,
and I have that in the past.
And so, back to what Justice Kafker was alluding to,
that you're doubling down on the fact
that you've made this error,
and if the defendant is vindicated,
and before the second trial, he's in the wind.
And so, therefore,
you can always reverse engineer security risk here.
When do we ever get to the point of an abuse of discretion,
if you can always go back, and say,
what Judge Ricciuti does, in this case,
even though it has pretty much...
It's not likely.
There's nothing in the record to say any of this is likely.
-: Well, I think it goes back...
It really is grounded in what an abuse of discretion is,
whether or not there's relevant factors that are grounded
in the record that have reasonable inferences,
and I don't disagree with you that, this idea of all...
-: Is it a reasonable inference for a married husband
and father of three to just leave?
And the reason why I'm mentioning that,
it's not also in the vacuum.
We're not talking about a 20-year sentence he got.
I'm not saying that any deprivation of liberty is minuscule,
but it was a five-year sentence, right?
And he's going to up and leave his family
and move to Morocco and do all of these things,
and move them to Morocco for that?
-: I don't know, because I think what we have to do is,
what is reasonable in inference?
But I think your concerns,
they rub up against the government's interest
in this valid judgment that they have already.
And of course, there's tension between that.
-: Could you address the errors?
'Cause that I think is...
It appears that-
-: That it's all part of the same thing, yeah.
-: 'Cause I think, to me, Justice Gaziano's question
about errors is the thing that...
It's very hard to prove abuse of discretion,
unless we can point to obvious errors.
Because this is really difficult.
We don't know whether he'll leave or not.
I mean, it's projections.
But address the errors, 'cause Nash, from what I understand,
the error was not dealing with factors.
Here the judge deals with the factors.
The question is, are they erroneously dealt with?
Can you go through the different errors?
-: Oh, I don't have them listed
-: Here they are.
There's that he's stashing money away,
that private counsel has been taken
as opposed to public counsel.
I can't remember some of the others.
Oh, the passport issue.
Justice Georges: The extradition.
-: The extradition issue.
If you're gonna lose, it's gonna come out in there probably.
So why don't you address that?
-: And I think it just also sort of dovetails
with my other point that Justice Wendlandt
and I were discussing is that,
well, if you can raise this claim
and put all your eggs in the basket in the stay, well, then,
it makes all of these things much more incentivized
to leave.
I don't know if the court follows what...
-: There's a grasp in that straws aspects
that you start to read, when you say,
"Well, if he has a lot of money,
he's hoarding money to flee."
That, to me, smacks of grasping at straws,
which cause him to question the rest of the findings.
So, that's what you have to convince me that,
if he's speculative, grasping at straws,
the rest of the findings are valid.
-: Well, I think what Judge Ricciuti does of close reading,
it looks like he rebuts all the points made
in the defendant's memorandum.
And I think part of what he did there-
-: Heads I win, tails you lose.
If he says, "I have financial resources,"
he says, "Ah, you're stashing money."
-: Right, right.
-: And further, you know, you have a close family.
Oh, they'll help you.
-: Right, and I think I conceded an oral argument
that cuts both ways,
which I think is part of the abuse of discretion standard,
that if any of these factors-
-: Again, I think they all cut both ways.
So address whether these are errors or not.
-: Well, I think the private counsel, I think,
is dealt with in the appeals court's majority opinion.
Justice Kafker: Which is what?
-: Which is, basically, that it's not
as meaningful regarding getting counsel, right?
'Cause there's this idea that then it-
-: I take it we shouldn't be doing this,
'cause you get to pick your...
It raises constitutional issues if picking counsel is...
Right?
I worry about that one.
-: Right, well, I think what...
'Cause one of the factors in bail that we talked
about guides some of this is financial resources,
and I think that is what Ricciuti is doing
when he mentions the private counsel.
I think what he's doing is trying to, essentially,
hit the factors.
-: I asked are there cases that say
that's legitimate or illegitimate?
-: The financial?
-: When we do this financial means,
that you hired private lawyers,
that you've got one of the major defense lawyers
in the Commonwealth defending you,
is that a legitimate thing to consider?
I take it it's probably a bad idea.
-: I don't think I researched that particular fact,
but I think, in my brother's brief,
it's supported by Brannigan, which says, you know,
the due process right in a pre detainee.
And I do think that-
-: The author of Brannigan's turning over in her grave
at this point on that one.
Oh, actually, she's still alive.
-: Well, I think, because we're talking about,
are these errors?
And I'm gonna say they're not errors
in that Judge Ricciuti is tasked with looking
at the financial resources.
And again, the burden is on the defendant
to establish what finance he has.
And that's how Judge Ricciuti-
-: I'm gonna wrap it up with the question
from Justice Wendlandt, please.
What is the difference between Mr. Kalila and Mr. Nash?
You know, in Nash, we said this was an abuse of discretion,
even though the defendant had been convicted
of two times rape,
and he basically looks a lot like Mr. Kalila on paper,
except Mr. Nash has not got the dual citizenship.
What is the difference in your mind?
-: So, there's two things that come to light
if we're talking about that...
Nash didn't have any of those other...
It's balancing, right?
He didn't have any countervailing points to what Nash had.
So Nash did not have ties in other countries.
And I did look at the underlying ruling in Nash,
not just this court's opinion.
Didn't have any of those other, a brother in Germany.
-: So the difference between Mr. Nash and Mr. Kalila is
that he's a dual citizen and has those ties in Morocco?
-: I think so, but also in...
-: Tell me why that's not a problem?
-: Well, because the task at hand is the possibility
of flight.
It's not the certainty.
It is not, "Gee, do I agree with any of the incentives
to do so?"
It's, "Is there a possibility that the defendant is going
to abscond and not come back, if that's so allowed?"
And in Nash, the error there was basically not looking
at any mitigating-
-: Well, no, if you looked at the underlying opinion,
you saw that the single justice
did actually weigh the decisions.
It just wasn't sufficient for this court to consider.
You know, it wasn't sufficiently considered.
It was considered, but not sufficient.
And on that basis,
we said there's been an abuse of discretion
by the single justice.
Darcy: Yes. -: Yeah.
So the difference is the dual citizenship.
-: Well, I suggest it's not dual citizenship alone,
but all those other things that either coincide
with dual citizenship...
It's not just a loan, right?
It's the family ties.
It's the continuous relationship by giving money
to those people there.
So I don't wanna say that it's just that alone,
and that's the only decision.
-: We have a last and final.
-: Okay.
-: So, can you address whether the passport discussion
and the extradition discussions were errors?
-: I cite to a federal case that is sort of on point on this.
So, I did attach it to my brief
that talks about this idea of passports.
It's not as, if you will,
tight than I think has been kind of discussed
in my brother's brief,
that the idea that you can cross the border to Canada
and get a Moroccan passport.
It does not eliminate these possibilities.
And that is not what the judge is really tasked with.
He's not saying, "This is not convenient,"
or, "Probably not",
but it's the possibility of flight
and whether or not he would go above and beyond
to leave this country to avoid.
-: Again, mine's a very technical question.
Did the judge get wrong the discussion
of passport and extradition?
-: I don't think so.
I mean, I did look into what was available about this idea.
I have no idea about TSA.
I do know that this idea that he'd be on some list,
I think that is not really borne out
by the factual accuracies of what
that means in practicality.
So I think this idea that the judge was wrong
in saying it's not as straightforward
as the defendant is offering,
I think that is an accurate statement.