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<v ->SJC-13428, Commonwealth v Khalid Kalila.</v>

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<v ->May it please the court.</v>

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My name is Jay Carney,

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and I represent the appellant in this case, Khalid Kalila.

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I've been thinking this week about the fact

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that I became a member of this bar in 1978

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as a full-time Massachusetts defender in Boston,

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and I distinctly remember the cases of Levin

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and Allen and Hodge, where this court, or the appeals court,

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made it clear that there is almost a presumption

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that a person would get a stay provided

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that there was a meritorious issue to be presented,

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and there were not facts that would support

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that the defendant was a danger

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to the community or a flight risk.

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I was very pleased to see, in Nash, this court reviewed,

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with greater detail, the basis for a stay of execution.

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But in essence,

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it was the same standard that this court had set

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in 1979 and 1980.

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Excuse me.

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<v ->Of course, on that fascinating issue,</v>

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you clearly have, on the heft issue,

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that it's gonna create a dialectical discussion.

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You're good there.

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I'm not even sure the Commonwealth would say otherwise.

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So moving on to the security flight issues is probably

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where we're going to be here.

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<v ->Yes, your Honor.</v>

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<v Justice Kafker>And can I layer onto that one thing,</v>

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additional thing?
<v ->Certainly, your Honor.</v>

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<v ->Which is, we seem to be saying that</v>

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if the security flight possibility is high enough,

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that's determinative in this context, right?

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We've said that, right, multiple times.

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<v ->Yes.</v>
<v ->Okay.</v>

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So go for Justice Lowy's question then.

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(Justice Kafker chuckling)

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<v ->But my claim is that both Justice Ricciuti</v>

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and Justice Desmond abused their discretion

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by taking a perfect bail argument on behalf of someone

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and turning it on its head,

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and saying, "See, he's been working full time

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at the same jobs that he was working at

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before he was arrested,

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and through the three years that he has been awaiting trial.

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He's been working at the same job,

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and that's so he can save his funds to flee.

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Where the heck did that come from?

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<v Justice Gaziano>So it's the speculation</v>

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that is the most problematic, Mr. Carney?

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<v ->Yes, it is, your Honor.</v>

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The problem is the defendant's background was one

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of the best bail arguments a lawyer could ever make,

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and I speak as someone who spent 40 years

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of my career arguing for bail

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and the other five years arguing

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for a little bit more bail when I was a prosecutor.

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But my point is that,

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when you look at this person's background,

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he was born a United States citizen

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because his mother was American and his father was Moroccan.

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So he had dual citizenship.

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He came to the United States when he was 13 years old,

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and he married his high school girlfriend

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when they were 18 years old,

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and they moved here and stayed here.

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They had three children.

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<v ->So we might make a different decision than Judge Ricciuti,</v>

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but I mean, our review is for abuse of discretion.

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Why couldn't Judge Ricciuti review this differently

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than the narrative that you're saying.

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<v Jay>Oh, I think he gave a clue.</v>

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<v ->Those factors indicate that the defendant has the capacity</v>

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and now the impetus to flee.

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<v ->It was pure speculation.</v>

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<v Justice Kafker>Oh, is it?</v>

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<v ->There's a quote I put in there about,</v>

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"Sometimes a lawyer will give a reduced fee

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for someone to do the appeal."

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That was not excluded as a consideration by the court.

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He just speculated that they've got all this money

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and will use it to flee, and the problem is-

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<v ->Based on...</v>

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I thought there was something in the record

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about the defendant actually going to Morocco.

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<v Jay>Yes.</v>
<v ->Okay.</v>

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<v ->He had gone to Morocco</v>

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with his wife.

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<v ->So it wasn't pure speculation.</v>

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It was based on evidence of actually doing it.

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<v ->He went to Morocco with his wife and three children.</v>

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They have an aunt in Morocco still.

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All the rest of the family had moved to the United States,

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except one brother, who moved to Germany.

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But I think Judge Ricciuti gave a clue

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as to why he had this problem on the stay.

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He twice stated that Mr. Kalila can "leave this country

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and evade the punishment which I have imposed,"

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and the second time he talked about it,

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and he said, "Escape the punishment I imposed."

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Well, if you're looking at a decision on whether

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to grant the stay of execution,

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you simply have to know that a stay

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of execution will prevent a person

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from immediately serving the sentence.

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That happens in every single stay.

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<v ->When the appeals court fights over this, you know,</v>

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they recognize maybe some of the overstatements,

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you know, you're talking about,

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but this person has a viable life in both places.

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You know, he has connections to Morocco.

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His father's there.

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He has family connections there.

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He had a passport there.

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The Milkey-Massing description

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of all these factors are both plausible.

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So, doesn't that come down to,

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there's no abuse of discretion here?

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They're both reasonable interpretations

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of this possibility of flight.

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<v ->Because it's not reasonable.</v>

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<v ->Really?</v>
<v ->Respectfully, your Honor.</v>

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<v ->He's not a defendant with no obvious place to go.</v>

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He also has a very supportive family, which is fantastic.

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So he's not financially on his own either.

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I mean, I recognize your point

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that the judge overread the financial point

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and shouldn't have been focused on the fact

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that you're so good and so expensive, whatever.

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But there is sort of a very global description

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of all of the relevant factors, you know,

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by both single justices and the appeals court,

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and it comes down to a,

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you know, a discretionary call, doesn't it?

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<v ->An abuse of discretion should not be</v>

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as rare as pigs flying.

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That's my favorite quote of the last 45 years.

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The way it's...

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Oh, I'm sorry.

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But your Honor, the reason why it's an abuse of discretion.

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If your statement, just now,

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that if a person comes from another country,

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then he can't be released.

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<v ->Again, the trial judge goes through a lot of factors.</v>

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He is not someone without connections to Morocco.

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He visits there.

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His father lives there.

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We're just not projecting flight out of the country

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in some undetermined way.

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He also, the trial judge has the benefit

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of having been there for the trial.

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I know you think he's trying to, you know, enforce his rule,

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but he also observed the trial testimony on credibility.

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He has a sense of what could happen on a retrial

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that's probably better than anyone else's.

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It may be prejudiced, you're saying, I guess.

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But again, it's abuse of discretion standard,

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and it's going through all the Nash factors.

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Nash, I mean, again,

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Judge Massing talks about Nash as being emphasized

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that you didn't really even consider the factors

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or you undervalued them dramatically.

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There are judgment calls on each of these factors,

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and you can go both ways

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as the two appeals court justices do, but it seems...

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<v ->Respectfully, your Honor, you can't.</v>

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There has to be a point

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where someone is gonna abuse the discretion.

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For example, saying this defendant came from Morocco.

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He came to the United States at age 13,

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already a United States citizen.

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He graduated from the local high school in Revere.

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He began working.
<v ->He's a tremendous</v>

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success story here.

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I think Judge Milkey does a very nice job of saying,

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"It's gonna be tough to leave this country

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for this man and his family."

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<v ->Well, you should see his first opinion.</v>

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<v ->Right, so I get that.</v>

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But at the same time,

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he's facing going to prison for four to five years.

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He knows what happened last time.

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Even if this gets reversed, he's gonna be retried,

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and his life here is not gonna be the same

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if he's convicted, right?

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It's just gonna be dramatically different.

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He's gonna be away from his family for four or five years.

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Will he run to a place he has connections,

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to where his dad lives?

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It's just hard to substitute our judgment here, I find.

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<v ->It's an abuse of discretion to say,</v>

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"Simply because a person has a relative in another country

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and every summer he goes to see that relative-

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<v ->It's more than that.</v>

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It's that this man's life...

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There's a distinct possibility of him going to jail

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for five years, and that changes your calculus.

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Even if you love this country

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and you've been a great success here,

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that's frightening for anybody.

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So it's not just that he has family in Morocco.

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It's complicated.

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There are a lot of these factors, when you go through them,

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that makes this...

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This guy has a terrible decision to face.

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<v ->Like what, your Honor?</v>

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Like, he hired private counsel,

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and so we're gonna hold that against him?

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That's what Judge Ricciuti did.

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Held it against him that his family hired me

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to represent him.

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<v ->I agree that that was probably ill-advised.</v>

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But again, the appeals, Judge Massing talks about that,

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and I thought in an intelligent way,

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puts it into the calculus, diminishing it, by the way.

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<v ->Justice Georges, Justice Lowy, Justice Gaziano,</v>

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the three of you have an advantage

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of having set bails for years,

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and I'm not being disrespectful to you, your Honor.

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<v ->No, a totally appropriate comment.</v>

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<v ->But the three of you, you know, have set bail for years.</v>

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And if you look at this person's background,

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and he's being arraigned in the South Boston District Court

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in the morning after an arrest the night before

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and bail being posted at the police station,

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he shows up at South Boston for his arraignment-

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Mr. Carney, the point, though, is bail is different, right?

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I get to make that point as an appellate judge, right?

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Bail is a different determination than this.

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This is a different standard, correct?

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<v ->No.</v>

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This court has said repeatedly that the process

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that a trial judge should use

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in terms of setting an amount of money

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for a stay of execution is the identical process

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that you use to set bail.

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Because the same factors-

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<v ->I'm not gonna read other cases</v>

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that say the standard is different here.

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We've got a lot of cases out there.

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Does Nash even make that point?

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I can't remember.

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<v Jay>I can't remember.</v>

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<v ->The presumptions are different.</v>

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That's the issue, right?

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<v ->Right, but the factors-</v>

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<v ->The factors are the same, yeah.</v>

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We said that you have to apply the bail factors,

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but the presumptions of liberty are different.

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<v ->Why don't we do this?</v>

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You have a minute left.

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And as part of your brief

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that the Commonwealth doesn't really address

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and as part of their position that you don't really address,

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I don't think they address your point of,

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00:14:31.042 --> 00:14:33.512
that factor one's so strong

258
00:14:33.512 --> 00:14:36.270
that it should feed into factor two.

259
00:14:36.270 --> 00:14:37.350
<v Jay>Absolutely.</v>

260
00:14:37.350 --> 00:14:42.350
<v ->And you don't address that, okay, factor one's strong,</v>

261
00:14:42.583 --> 00:14:46.407
but factor two has to account for

262
00:14:46.407 --> 00:14:50.520
that he's already been convicted once

263
00:14:50.520 --> 00:14:55.520
and may choose, as Justice Kafker is suggesting,

264
00:14:56.130 --> 00:14:58.230
to take an opportunity that he has

265
00:14:58.230 --> 00:15:01.433
rather than being convicted a second time.

266
00:15:01.433 --> 00:15:04.710
I'm not saying they can't address your point,

267
00:15:04.710 --> 00:15:07.320
and I'm not saying you can't address theirs,

268
00:15:07.320 --> 00:15:10.060
but why don't you take a shot at addressing this?

269
00:15:10.060 --> 00:15:11.610
<v ->At addressing their issue?</v>

270
00:15:11.610 --> 00:15:13.200
<v ->Well, what's the point?</v>

271
00:15:13.200 --> 00:15:14.130
He can be retried.

272
00:15:14.130 --> 00:15:16.830
He said, "I've been tried once and been found guilty."

273
00:15:16.830 --> 00:15:19.892
He's got a risk of flight because five years is a long time.

274
00:15:19.892 --> 00:15:24.892
Even if your Horatio Alger and all's done great,

275
00:15:24.930 --> 00:15:28.710
it doesn't mean that you necessarily want

276
00:15:28.710 --> 00:15:31.950
to play those odds.

277
00:15:31.950 --> 00:15:36.160
<v ->I perhaps showed hubris during the stay hearing</v>

278
00:15:37.170 --> 00:15:39.998
when I said to Judge Ricciuti,

279
00:15:39.998 --> 00:15:44.998
I have educated my client into what structural error means

280
00:15:48.060 --> 00:15:48.893
and that I-

281
00:15:48.893 --> 00:15:50.280
<v Justice Gaziano>But I can't believe you showed hubris.</v>

282
00:15:50.280 --> 00:15:51.113
<v ->What's that?</v>

283
00:15:51.113 --> 00:15:52.898
<v ->I can't believe you showed hubris was what I said.</v>

284
00:15:52.898 --> 00:15:54.750
<v ->Yes, hubris.</v>

285
00:15:54.750 --> 00:15:58.500
<v ->And that's my argument on-</v>
<v ->I told the judge</v>

286
00:15:58.500 --> 00:16:00.919
that I've told my client

287
00:16:00.919 --> 00:16:04.050
that this conviction will not stand,

288
00:16:04.050 --> 00:16:06.570
and I said that to Judge Ricciuti.

289
00:16:06.570 --> 00:16:08.730
I explained to my client-

290
00:16:08.730 --> 00:16:11.160
<v ->That's what we started though, Mr. Carney,</v>

291
00:16:11.160 --> 00:16:13.507
that's what we started, that...

292
00:16:13.507 --> 00:16:18.003
I think you've got a really good issue that's, at a minimum,

293
00:16:19.050 --> 00:16:22.380
an issue of heft that's going to be an impetus

294
00:16:22.380 --> 00:16:24.300
for a dialectical discussion.

295
00:16:24.300 --> 00:16:25.382
I think you're good.

296
00:16:25.382 --> 00:16:28.743
And they're gonna have to address why

297
00:16:28.743 --> 00:16:33.743
that doesn't leak into point 2 as you've suggested it does.

298
00:16:34.165 --> 00:16:37.590
But you've gotta face the,

299
00:16:37.590 --> 00:16:40.301
as far as the abuse of discretion issue goes,

300
00:16:40.301 --> 00:16:44.190
what they're gonna say is, "Yeah, we had a really good case.

301
00:16:44.190 --> 00:16:46.287
We still have a really good case."

302
00:16:47.610 --> 00:16:50.895
<v ->The jury was out for four days of deliberation.</v>

303
00:16:50.895 --> 00:16:55.170
That shows that there was a lot of discussion going on

304
00:16:55.170 --> 00:16:57.660
on a very straightforward case.

305
00:16:57.660 --> 00:17:00.003
Four days of deliberation.

306
00:17:01.500 --> 00:17:05.699
Those jurors are trying to weigh what the allegation was.

307
00:17:05.699 --> 00:17:09.633
And so, keeping a jury out for four days,

308
00:17:11.018 --> 00:17:14.700
that shows the trial had some legs.

309
00:17:14.700 --> 00:17:16.380
<v ->On the issue of abuse of discretion,</v>

310
00:17:16.380 --> 00:17:18.450
can you list for me, Mr. Carney,

311
00:17:18.450 --> 00:17:20.730
the things Ricciuti got wrong

312
00:17:20.730 --> 00:17:22.350
as far as the speculation goes?

313
00:17:22.350 --> 00:17:23.183
<v ->Certainly.</v>

314
00:17:24.090 --> 00:17:27.107
He refused to appreciate

315
00:17:27.107 --> 00:17:31.690
that the defendant was born an American citizen

316
00:17:32.849 --> 00:17:37.849
and came to the United States at age 13,

317
00:17:40.292 --> 00:17:43.443
attended local school in Revere,

318
00:17:44.640 --> 00:17:49.640
and then began working as a maintenance person,

319
00:17:50.760 --> 00:17:53.927
overseeing 60 employees at,

320
00:17:53.927 --> 00:17:56.370
I think it's nine different settings,

321
00:17:56.370 --> 00:18:01.370
including Granite Links, a pretty terrific golf course.

322
00:18:03.420 --> 00:18:07.587
Then, he has three children.

323
00:18:07.587 --> 00:18:09.107
<v ->I don't think that's,</v>

324
00:18:09.107 --> 00:18:11.070
if you don't mind me saying Justice Gaziano,

325
00:18:11.070 --> 00:18:12.390
I don't think that's your question.

326
00:18:12.390 --> 00:18:14.365
What the argument was

327
00:18:14.365 --> 00:18:18.930
for bail is what he should inappropriately consider.

328
00:18:18.930 --> 00:18:21.300
<v ->Right, 'cause the the first point you made</v>

329
00:18:21.300 --> 00:18:25.447
that he took the money part of it, and said,

330
00:18:25.447 --> 00:18:28.380
"He's stashing money to flee, " the speculation.

331
00:18:28.380 --> 00:18:30.008
To me, that strikes a chord.

332
00:18:30.008 --> 00:18:33.370
Are there other things like that as well?

333
00:18:33.370 --> 00:18:38.370
<v ->His view that the defendant has sufficient family</v>

334
00:18:40.140 --> 00:18:44.430
in Morocco to move his wife

335
00:18:44.430 --> 00:18:46.440
and their three young children,

336
00:18:46.440 --> 00:18:51.000
who have permanently resided in Massachusetts,

337
00:18:51.000 --> 00:18:54.003
that they would pick up and leave.

338
00:18:55.758 --> 00:18:59.340
Another thing he got wrong, which we've already discussed,

339
00:18:59.340 --> 00:19:03.630
is the fact that I'm a private counsel is a factor

340
00:19:03.630 --> 00:19:08.490
that should be considered, and I submit it should not be.

341
00:19:08.490 --> 00:19:13.490
Mr. Kalila had no prior criminal record, except for-

342
00:19:13.912 --> 00:19:15.654
<v ->Could you stick to the errors?</v>

343
00:19:15.654 --> 00:19:16.890
It would be really helpful,

344
00:19:16.890 --> 00:19:21.210
'cause your best chance of reversing this is,

345
00:19:21.210 --> 00:19:25.590
what is not sort of marginal that you left out,

346
00:19:25.590 --> 00:19:27.060
but what errors did he make?

347
00:19:27.060 --> 00:19:30.240
So it seems to me it's the stashing money

348
00:19:30.240 --> 00:19:33.450
and private counsel are the two that you emphasize.

349
00:19:33.450 --> 00:19:34.361
Is there any-

350
00:19:34.361 --> 00:19:36.900
<v ->I think you also mentioned the bail,</v>

351
00:19:37.887 --> 00:19:40.167
the make post and bail issue.

352
00:19:40.167 --> 00:19:44.130
<v ->Well, he had posted bail the night of his arrest</v>

353
00:19:44.130 --> 00:19:45.423
at the police station.

354
00:19:46.500 --> 00:19:49.773
The court, the following morning, kept the same bail.

355
00:19:50.640 --> 00:19:53.700
The case was added

356
00:19:53.700 --> 00:19:57.000
to when the government sought a criminal complaint

357
00:19:57.000 --> 00:19:58.230
for mayhem.

358
00:19:58.230 --> 00:20:01.752
He was arraigned on that, and the bail stayed the same.

359
00:20:01.752 --> 00:20:04.770
Then, he appeared in the superior court.

360
00:20:04.770 --> 00:20:06.543
The bail stayed the same.

361
00:20:07.890 --> 00:20:10.860
He was on that bail for three years

362
00:20:10.860 --> 00:20:12.390
during the period of COVID.

363
00:20:12.390 --> 00:20:16.140
He never missed a single court appearance.

364
00:20:16.140 --> 00:20:18.540
<v ->But the judge noted he never missed it.</v>

365
00:20:18.540 --> 00:20:22.233
He noted he was a model citizen, besides this event.

366
00:20:23.490 --> 00:20:26.730
Again, trying to focus on errors.

367
00:20:26.730 --> 00:20:30.300
<v ->All right, here's one of the errors he made,</v>

368
00:20:30.300 --> 00:20:33.013
saying that, "If I grant this stay,

369
00:20:33.013 --> 00:20:38.013
the defendant would either evade or escape punishment."

370
00:20:40.050 --> 00:20:41.340
<v ->Does he do that in his opinion,</v>

371
00:20:41.340 --> 00:20:43.620
or is that somewhere else?

372
00:20:43.620 --> 00:20:45.532
That's in some oral con...

373
00:20:45.532 --> 00:20:47.910
Does that appear in his actual decision,

374
00:20:47.910 --> 00:20:50.190
or is that something you're pulling from the transcript?

375
00:20:50.190 --> 00:20:52.980
<v ->It's from the transcript of the stay hearing.</v>

376
00:20:52.980 --> 00:20:56.392
And he says it twice with that one word difference.

377
00:20:56.392 --> 00:20:59.550
<v ->Was there an issue of extradition that he got wrong?</v>

378
00:20:59.550 --> 00:21:00.784
<v ->Yes.</v>

379
00:21:00.784 --> 00:21:05.784
He said, "If he goes to Morocco, we can't get him back."

380
00:21:07.830 --> 00:21:10.170
Well, we've submitted in our brief

381
00:21:10.170 --> 00:21:13.440
that there is an agreement, and has been for decades,

382
00:21:13.440 --> 00:21:18.180
with Morocco to extradite people from Morocco

383
00:21:18.180 --> 00:21:19.906
to the United States.

384
00:21:19.906 --> 00:21:22.530
So, he got that fact wrong.

385
00:21:22.530 --> 00:21:23.850
<v ->And was there an error</v>

386
00:21:23.850 --> 00:21:27.390
about the ability to get a passport?

387
00:21:27.390 --> 00:21:29.070
Was there also an error on that or not?

388
00:21:29.070 --> 00:21:29.903
I can't remember.

389
00:21:29.903 --> 00:21:33.870
<v ->Yes, Judge Ricciuti said he can just get a passport</v>

390
00:21:33.870 --> 00:21:35.717
and leave the country.

391
00:21:35.717 --> 00:21:39.660
And it turns out, in order to leave the country,

392
00:21:39.660 --> 00:21:42.780
he has to go through Homeland Security,

393
00:21:42.780 --> 00:21:47.280
and he's gotta present identification.

394
00:21:47.280 --> 00:21:49.350
<v ->But I think Judge Ricciuti is saying</v>

395
00:21:49.350 --> 00:21:52.110
he'll have a Moroccan passport that's valid,

396
00:21:52.110 --> 00:21:55.680
and therefore, he can go through passport control.

397
00:21:55.680 --> 00:21:59.910
<v ->If he is barred from leaving the United States</v>

398
00:21:59.910 --> 00:22:02.970
that shows up in the Homeland Security records.

399
00:22:02.970 --> 00:22:06.524
And if someone tries to leave the country,

400
00:22:06.524 --> 00:22:11.524
they get caught at the border, at the airport.

401
00:22:13.050 --> 00:22:15.906
<v ->Whether or not they have a foreign passport?</v>

402
00:22:15.906 --> 00:22:18.117
<v ->He had an expired passport</v>

403
00:22:18.117 --> 00:22:21.900
and a present United States passport.

404
00:22:21.900 --> 00:22:24.030
<v ->So if someone comes in...</v>

405
00:22:24.030 --> 00:22:25.140
I just want to, again,

406
00:22:25.140 --> 00:22:28.020
'cause I'm focused on errors, not quibbling.

407
00:22:28.020 --> 00:22:33.020
But if someone goes with a valid Moroccan passport to the,

408
00:22:35.467 --> 00:22:37.593
you know, the airport,

409
00:22:38.430 --> 00:22:41.013
it is going to really register with,

410
00:22:42.269 --> 00:22:46.650
and their name is not some, an incredibly unusual name,

411
00:22:46.650 --> 00:22:47.880
it's gonna register that you're

412
00:22:47.880 --> 00:22:50.433
on a list banning you from leaving the country.

413
00:22:51.300 --> 00:22:52.980
'Cause he's not using his American...

414
00:22:52.980 --> 00:22:55.350
I understand if he was using his American passport,

415
00:22:55.350 --> 00:22:58.890
but he's gonna be using, in Judge Ricciuti's example,

416
00:22:58.890 --> 00:23:01.221
a Moroccan passport.

417
00:23:01.221 --> 00:23:05.430
<v ->If he were barred from leaving the country,</v>

418
00:23:05.430 --> 00:23:08.310
which is not an unusual condition

419
00:23:08.310 --> 00:23:11.490
of release imposed by judges,

420
00:23:11.490 --> 00:23:16.490
then the word is conveyed to Homeland Security

421
00:23:16.940 --> 00:23:20.760
that this person cannot leave the United States.

422
00:23:20.760 --> 00:23:22.530
<v ->And we'll find that in the record. Mr. Carney?</v>

423
00:23:22.530 --> 00:23:23.363
<v ->I'm sorry?</v>

424
00:23:23.363 --> 00:23:24.870
<v ->We'll find that in the record, right?</v>

425
00:23:24.870 --> 00:23:28.810
<v ->In my brief, I gave the court the guidance of that.</v>

426
00:23:31.050 --> 00:23:34.311
And that one has to go through Homeland Security

427
00:23:34.311 --> 00:23:39.240
and show that you are allowed to leave the country.

428
00:23:39.240 --> 00:23:43.140
<v ->And I'll just ask you, Mr. Carney, in the time remaining,</v>

429
00:23:43.140 --> 00:23:44.850
could you let us know

430
00:23:44.850 --> 00:23:46.931
if there's any other errors you wanna point out

431
00:23:46.931 --> 00:23:49.173
in the decision?

432
00:23:51.356 --> 00:23:55.440
<v ->Sometimes when you see clues</v>

433
00:23:55.440 --> 00:24:00.440
that a judge is purely speculating about stuff that,

434
00:24:01.620 --> 00:24:05.995
in fact, has no basis in fact in the record.

435
00:24:05.995 --> 00:24:10.995
And the judge twice says, "If I grant a stay,

436
00:24:11.610 --> 00:24:16.610
he will escape the punishment that I imposed on him"

437
00:24:17.640 --> 00:24:20.193
and variations of that, twice,

438
00:24:21.240 --> 00:24:25.200
that's not a judge who is honoring the teachings

439
00:24:25.200 --> 00:24:27.780
of this court, whether it be Levin,

440
00:24:27.780 --> 00:24:31.524
Allen and Hodge, or Nash.

441
00:24:31.524 --> 00:24:36.524
And that's another error that clouds everything he said.

442
00:24:38.040 --> 00:24:38.880
<v ->Thank you Mr. Carney.</v>

443
00:24:38.880 --> 00:24:40.080
<v ->Thank you, your Honor.</v>

444
00:24:40.080 --> 00:24:41.133
Thank you very much.

445
00:24:50.850 --> 00:24:51.810
<v Justice Gaziano>Attorney Jordan.</v>

446
00:24:51.810 --> 00:24:52.643
<v ->Good morning.</v>

447
00:24:52.643 --> 00:24:53.476
May it please the court,

448
00:24:53.476 --> 00:24:54.870
Darcy Jordan on behalf of the Commonwealth,

449
00:24:54.870 --> 00:24:56.767
and with me is ADA Lynn Feigenbaum,

450
00:24:56.767 --> 00:24:58.320
who is the trial attorney.

451
00:24:58.320 --> 00:24:59.153
<v ->Sorry.</v>
<v ->That's okay.</v>

452
00:24:59.153 --> 00:24:59.986
<v ->Thank you.</v>

453
00:25:02.310 --> 00:25:03.960
<v ->Can I ask you to start</v>

454
00:25:03.960 --> 00:25:08.100
with the question whether a strong showing

455
00:25:08.100 --> 00:25:13.100
on likelihood of success has any bearing on the analysis

456
00:25:13.620 --> 00:25:15.570
under the security factors

457
00:25:15.570 --> 00:25:16.650
<v ->In short, no.</v>

458
00:25:16.650 --> 00:25:18.390
I do go into it at length in my brief.

459
00:25:18.390 --> 00:25:20.010
And I think this is the real nugget

460
00:25:20.010 --> 00:25:24.420
before the court is how these two distinctive factors,

461
00:25:24.420 --> 00:25:25.560
if they should at all...

462
00:25:25.560 --> 00:25:26.610
<v ->The question.</v>
<v ->That's the question.</v>

463
00:25:26.610 --> 00:25:27.480
<v ->So, what's your answer?</v>

464
00:25:27.480 --> 00:25:29.700
<v ->My question is no, and I think...</v>

465
00:25:29.700 --> 00:25:31.350
Well, I think if I could start at the end

466
00:25:31.350 --> 00:25:33.720
and explain why.

467
00:25:33.720 --> 00:25:38.700
I think to do so is to really invalidate what a legal,

468
00:25:38.700 --> 00:25:41.078
valid verdict, a judgment,

469
00:25:41.078 --> 00:25:43.410
means in the criminal justice system.

470
00:25:43.410 --> 00:25:45.090
And if we could just hear me out.

471
00:25:45.090 --> 00:25:48.330
Because in motion to stay the first factor

472
00:25:48.330 --> 00:25:49.367
as it currently stands,

473
00:25:49.367 --> 00:25:51.990
the defendant just needs to raise a claim of error.

474
00:25:51.990 --> 00:25:55.500
It's a very liberal threshold that benefits the defendant,

475
00:25:55.500 --> 00:25:56.730
as it should, right?

476
00:25:56.730 --> 00:25:58.092
Because we're saying...

477
00:25:58.092 --> 00:26:01.507
<v ->Right, but this defendant didn't make just a sort of,</v>

478
00:26:01.507 --> 00:26:03.870
"Hey, this passes the laugh test kind of thing."

479
00:26:03.870 --> 00:26:06.780
He made a quite substantial argument that there is going

480
00:26:06.780 --> 00:26:08.790
to be a reversal of this verdict.

481
00:26:08.790 --> 00:26:09.990
<v ->Yes, he did.</v>

482
00:26:09.990 --> 00:26:13.590
And I suggest what the defendant is postulating is that,

483
00:26:13.590 --> 00:26:16.200
that the defendant, in a motion to stay,

484
00:26:16.200 --> 00:26:18.810
not just raise a claim of error, right,

485
00:26:18.810 --> 00:26:20.970
that will be eventually litigated by a panel

486
00:26:20.970 --> 00:26:25.207
in the appellate courts, but is basically raising to say,

487
00:26:25.207 --> 00:26:28.410
"My claim is so strong that it rebuts the presumption

488
00:26:28.410 --> 00:26:30.090
of the valid judgment

489
00:26:30.090 --> 00:26:32.790
that it so deems my current valid sentence

490
00:26:32.790 --> 00:26:34.924
after a valid legal judgment illegal,"

491
00:26:34.924 --> 00:26:38.979
and I think what that then has to logically mean is

492
00:26:38.979 --> 00:26:43.827
that that verdict from the trial does not mean

493
00:26:43.827 --> 00:26:46.522
that final judgment, and what that has...

494
00:26:46.522 --> 00:26:47.610
<v ->Well, it's not final.</v>

495
00:26:47.610 --> 00:26:50.340
<v ->Well, it is final for the purposes of sentencing,</v>

496
00:26:50.340 --> 00:26:51.810
and that's really what we're talking about.

497
00:26:51.810 --> 00:26:53.190
Or, I should say it's the purpose

498
00:26:53.190 --> 00:26:55.470
of curtailing the defendant's freedom

499
00:26:55.470 --> 00:26:57.330
that the verdict is final.

500
00:26:57.330 --> 00:27:00.408
Because we can probably all agree that the word finality

501
00:27:00.408 --> 00:27:03.660
in the criminal justice system has different meanings

502
00:27:03.660 --> 00:27:05.362
in different contexts, right?

503
00:27:05.362 --> 00:27:07.920
'Cause we can talk about the judgment, a verdict,

504
00:27:07.920 --> 00:27:10.200
having a finality in that it allows

505
00:27:10.200 --> 00:27:11.580
for the curtailing of freedoms

506
00:27:11.580 --> 00:27:13.701
and the abrogation of substantial rights.

507
00:27:13.701 --> 00:27:16.140
But we can also, as an appellate court,

508
00:27:16.140 --> 00:27:18.940
talk about the finality of judgment and say a re-script.

509
00:27:21.000 --> 00:27:22.710
Believe you me, as an appellate attorney...

510
00:27:22.710 --> 00:27:24.090
<v ->But this particular issue,</v>

511
00:27:24.090 --> 00:27:27.600
why shouldn't we consider prong one

512
00:27:27.600 --> 00:27:29.010
in analysis of prong two?

513
00:27:29.010 --> 00:27:31.723
To me, if you have a really good case

514
00:27:31.723 --> 00:27:34.020
that this is gonna be flipped on appeal,

515
00:27:34.020 --> 00:27:36.663
it might affect things like flight.

516
00:27:37.808 --> 00:27:38.641
<v ->Yes.</v>

517
00:27:38.641 --> 00:27:40.710
<v ->The likelihood of flight, right?</v>

518
00:27:40.710 --> 00:27:43.500
If I'm definitely gonna get a second shot at this,

519
00:27:43.500 --> 00:27:44.727
maybe don't go.

520
00:27:44.727 --> 00:27:46.620
<v ->Well, yes and no,</v>

521
00:27:46.620 --> 00:27:48.150
and I think that dovetails to a question

522
00:27:48.150 --> 00:27:50.342
that Justice Lowy had raised to my brother.

523
00:27:50.342 --> 00:27:53.490
But I think what we have to think about is,

524
00:27:53.490 --> 00:27:55.533
how does this process work?

525
00:27:56.926 --> 00:28:01.926
That valid judgment that we talked about, by the jury,

526
00:28:01.950 --> 00:28:04.613
that can only be abrogated or vacated, overruled,

527
00:28:04.613 --> 00:28:06.399
by an appellate court.

528
00:28:06.399 --> 00:28:08.880
And just by raising the claim

529
00:28:08.880 --> 00:28:11.124
that I have a strong claim and a motion to stay

530
00:28:11.124 --> 00:28:15.648
after that verdict isn't enough to rebut the presumption

531
00:28:15.648 --> 00:28:17.160
of that valid verdict.

532
00:28:17.160 --> 00:28:19.200
<v ->So I guess my suggestion is not</v>

533
00:28:19.200 --> 00:28:23.040
that just raising the claim, but raising the claim,

534
00:28:23.040 --> 00:28:24.787
citing the cases, and saying,

535
00:28:24.787 --> 00:28:27.810
"I'm just like that," it's pretty good.

536
00:28:27.810 --> 00:28:30.208
<v ->Right, well, I think just not like that if we look</v>

537
00:28:30.208 --> 00:28:33.074
at the appellate brief, that we also argued.

538
00:28:33.074 --> 00:28:35.370
I don't think it's that simple to say that.

539
00:28:35.370 --> 00:28:37.770
Because what you're basically saying is that,

540
00:28:37.770 --> 00:28:38.910
in a motion to stay,

541
00:28:38.910 --> 00:28:41.190
a defendant can raise an appellate issue,

542
00:28:41.190 --> 00:28:44.460
essentially litigate it, based on the facts in the record,

543
00:28:44.460 --> 00:28:48.690
and prove, essentially, that my judgment isn't valid.

544
00:28:48.690 --> 00:28:51.148
And I think that is totally contradictory

545
00:28:51.148 --> 00:28:53.370
to our whole criminal justice practice.

546
00:28:53.370 --> 00:28:56.580
<v ->Right, but also, aren't we...</v>

547
00:28:56.580 --> 00:28:58.350
All you do is go back to trial.

548
00:28:58.350 --> 00:28:59.570
You can get hooked again.

549
00:28:59.570 --> 00:29:01.363
I mean, you can get hooked again,

550
00:29:01.363 --> 00:29:04.830
and the idea that the strength

551
00:29:04.830 --> 00:29:07.770
of the appeal might be so great, wonderful.

552
00:29:07.770 --> 00:29:10.050
But you might be right back at square one

553
00:29:10.050 --> 00:29:11.280
and right back at square two

554
00:29:11.280 --> 00:29:12.900
when the verdict comes back the same way.

555
00:29:12.900 --> 00:29:14.294
<v ->Right.</v>

556
00:29:14.294 --> 00:29:15.127
And now, you have a different judge

557
00:29:15.127 --> 00:29:17.160
with a different opinion based on fact,

558
00:29:17.160 --> 00:29:18.600
not by an appellate court.

559
00:29:18.600 --> 00:29:20.100
But also, if I could tail dove that

560
00:29:20.100 --> 00:29:22.740
into what this, again, globally means.

561
00:29:22.740 --> 00:29:25.230
Because if this idea that there's a claim

562
00:29:25.230 --> 00:29:28.350
so strong that it's so obvious and egregious

563
00:29:28.350 --> 00:29:30.240
that will warrant vacating, well,

564
00:29:30.240 --> 00:29:33.163
if we take a look at what really happens at trial,

565
00:29:33.163 --> 00:29:35.850
there's a whole universe of remedies

566
00:29:35.850 --> 00:29:37.920
if such egregious error that arises, right?

567
00:29:37.920 --> 00:29:40.920
And we trust our trial judges to remedy that.

568
00:29:40.920 --> 00:29:43.479
<v ->The judge forgets to instruct on an element.</v>

569
00:29:43.479 --> 00:29:46.282
The judge should grant them a motion for new trial.

570
00:29:46.282 --> 00:29:49.440
<v ->Exactly.</v>

571
00:29:49.440 --> 00:29:52.080
We can talk about 2-11-3, you know,

572
00:29:52.080 --> 00:29:55.110
or even if it's immediately thereafter, 25B.

573
00:29:55.110 --> 00:29:56.460
But when there's a verdict,

574
00:29:56.460 --> 00:30:00.210
it meaningfully changes not only the government's interest

575
00:30:00.210 --> 00:30:01.110
in that verdict,

576
00:30:01.110 --> 00:30:03.600
but it changes the remedies available to the defendant.

577
00:30:03.600 --> 00:30:04.890
And a motion to stay-

578
00:30:04.890 --> 00:30:08.190
<v ->But we're analyzing the judge for abuse of discretion.</v>

579
00:30:08.190 --> 00:30:12.870
Let me posit the way your brother argued for a second.

580
00:30:12.870 --> 00:30:16.140
He said, "Okay, we've got an error here that's,

581
00:30:16.140 --> 00:30:18.690
basically, every judge who's looked

582
00:30:18.690 --> 00:30:21.180
at it now is concerned about it.

583
00:30:21.180 --> 00:30:26.102
Two, the trial judge sort of is rewriting a little bit.

584
00:30:26.102 --> 00:30:29.043
So he's concerned about it too.

585
00:30:30.080 --> 00:30:35.080
Three, that may be affecting his analysis

586
00:30:38.160 --> 00:30:40.620
on the other side of things."

587
00:30:40.620 --> 00:30:42.180
I think that's what we have to worry about.

588
00:30:42.180 --> 00:30:45.820
Is the judge analyzing the security issue

589
00:30:47.190 --> 00:30:50.310
in the context of dealing with his own error,

590
00:30:50.310 --> 00:30:51.600
or potential error?

591
00:30:51.600 --> 00:30:54.510
And that's where this gets a little more complicated, right?

592
00:30:54.510 --> 00:30:57.510
'Cause this looks like a reversal.

593
00:30:57.510 --> 00:30:58.999
Let's be honest.

594
00:30:58.999 --> 00:31:01.176
It looks like a reversal.

595
00:31:01.176 --> 00:31:05.373
The appeals court is, essentially, recognizing that too.

596
00:31:06.291 --> 00:31:09.375
But again, there's gonna be another trial on this thing.

597
00:31:09.375 --> 00:31:11.850
But it looks like a reversal,

598
00:31:11.850 --> 00:31:14.610
and the judge is digging in a little bit.

599
00:31:14.610 --> 00:31:16.830
<v ->I respectfully disagree based on my appellate brief</v>

600
00:31:16.830 --> 00:31:18.423
that it...

601
00:31:18.423 --> 00:31:19.920
<v ->You think you're gonna win this one</v>

602
00:31:19.920 --> 00:31:23.030
on the jury disqualification issue...

603
00:31:25.110 --> 00:31:26.340
Just let me pose this.

604
00:31:26.340 --> 00:31:30.720
You think you're gonna win that one, basically that it is...

605
00:31:30.720 --> 00:31:31.970
Forget about genuineness.

606
00:31:33.120 --> 00:31:36.450
But that it is not an adequate critique

607
00:31:36.450 --> 00:31:40.605
to say that the juror has family members

608
00:31:40.605 --> 00:31:44.490
in the very police department that's investigating this.

609
00:31:44.490 --> 00:31:49.429
I've read about 10,000 cases where we say that's adequate.

610
00:31:49.429 --> 00:31:53.010
<v ->I think my brother and I frame that issue differently,</v>

611
00:31:53.010 --> 00:31:55.920
and I frame it differently, respectfully, than your Honor.

612
00:31:55.920 --> 00:31:57.230
Because in those cases,

613
00:31:57.230 --> 00:31:59.070
it was isolated to one juror

614
00:31:59.070 --> 00:32:01.650
and the Commonwealth's postulation, which was the judge's.

615
00:32:01.650 --> 00:32:02.566
is that that-

616
00:32:02.566 --> 00:32:04.227
<v ->That relates to genuineness, not adequacy.</v>

617
00:32:04.227 --> 00:32:05.060
<v ->Adequacy.</v>

618
00:32:05.060 --> 00:32:07.950
And again, as I described in the appellate brief,

619
00:32:07.950 --> 00:32:09.480
that I think he was struggling with the idea

620
00:32:09.480 --> 00:32:12.900
of implicit bias, which I know this court has addressed,

621
00:32:12.900 --> 00:32:14.430
and it is real,

622
00:32:14.430 --> 00:32:17.880
and it's definitely hard to harness and identify

623
00:32:17.880 --> 00:32:19.200
and create rules around it.

624
00:32:19.200 --> 00:32:20.033
And I think

625
00:32:20.033 --> 00:32:22.142
that's exactly what the justice was struggling with.

626
00:32:22.142 --> 00:32:24.420
But I think, as the Commonwealth,

627
00:32:24.420 --> 00:32:28.500
and I agree with how Judge Ricciuti framed it,

628
00:32:28.500 --> 00:32:30.750
was that it's not isolated to that one jury.

629
00:32:30.750 --> 00:32:31.860
And I don't disagree with you,

630
00:32:31.860 --> 00:32:34.500
if it was isolated to that one juror,

631
00:32:34.500 --> 00:32:36.750
but here we have a comparative juror,

632
00:32:36.750 --> 00:32:39.570
where the judge said...

633
00:32:39.570 --> 00:32:40.500
<v ->Wait, wait.</v>

634
00:32:40.500 --> 00:32:42.397
Just back up on the facts.

635
00:32:42.397 --> 00:32:47.250
There was another juror who had family, presently,

636
00:32:47.250 --> 00:32:48.900
in the Boston Police Department,

637
00:32:48.900 --> 00:32:49.980
<v ->No, other police.</v>

638
00:32:49.980 --> 00:32:51.567
And I think what it's gonna come down to there...

639
00:32:51.567 --> 00:32:54.210
<v ->And the witnesses were from the Boston Police Department?</v>

640
00:32:54.210 --> 00:32:55.043
<v ->That's correct.</v>
<v ->Okay.</v>

641
00:32:55.043 --> 00:32:58.132
<v ->So nobody who was identical to this particular juror?</v>

642
00:32:58.132 --> 00:32:58.965
<v ->Correct.</v>

643
00:32:58.965 --> 00:33:01.230
And I think what it's gonna come down to there is whether

644
00:33:01.230 --> 00:33:03.076
or not it was an abuse of discretion for that judge

645
00:33:03.076 --> 00:33:05.322
to look at that categorically wider

646
00:33:05.322 --> 00:33:06.903
than the defendant is offering.

647
00:33:07.860 --> 00:33:09.476
<v ->Okay, so then we've got to get</v>

648
00:33:09.476 --> 00:33:12.033
into this security analysis.

649
00:33:13.023 --> 00:33:16.736
And again, I read it as a separate inquiry.

650
00:33:16.736 --> 00:33:21.736
But at the same time, is the judge overly committed?

651
00:33:22.530 --> 00:33:27.367
Again, Mr. Carney just talks about the judge saying,

652
00:33:27.367 --> 00:33:29.565
"Escape my judgment," or, "Evade my judgment."

653
00:33:29.565 --> 00:33:32.043
He doesn't use that in his decision.

654
00:33:32.880 --> 00:33:34.263
Do we consider that?

655
00:33:35.880 --> 00:33:37.710
He says it at the transcript,

656
00:33:37.710 --> 00:33:39.746
that he may evade my judgment or what...

657
00:33:39.746 --> 00:33:40.579
I haven't read it.

658
00:33:40.579 --> 00:33:44.047
<v ->I think he was saying evade period, end of story.</v>

659
00:33:44.047 --> 00:33:46.350
I don't think he was necessarily...

660
00:33:46.350 --> 00:33:48.310
I think Judge Ricciuti was saying

661
00:33:49.170 --> 00:33:53.880
that the defendant's ability, possibility,

662
00:33:53.880 --> 00:33:57.303
of leaving regardless of the decision on the first,

663
00:33:58.260 --> 00:34:00.600
I'm sorry, the first factor, outweighs everything.

664
00:34:00.600 --> 00:34:03.570
And I think what Judge Ricciuti

665
00:34:03.570 --> 00:34:05.700
was doing was applying Nash, right?

666
00:34:05.700 --> 00:34:08.280
The first question is strictly a question of law.

667
00:34:08.280 --> 00:34:09.840
Do you cross the threshold?

668
00:34:09.840 --> 00:34:11.370
Okay, I get it.

669
00:34:11.370 --> 00:34:13.560
And he says, "I might've muddled it,

670
00:34:13.560 --> 00:34:14.760
but let me clear it up."

671
00:34:15.720 --> 00:34:19.380
But all day long you cross that threshold.

672
00:34:19.380 --> 00:34:21.900
The law does not provide for this apex,

673
00:34:21.900 --> 00:34:23.430
and I think it doesn't because of some

674
00:34:23.430 --> 00:34:26.340
of the reasons I described earlier.

675
00:34:26.340 --> 00:34:28.020
But what judge-

676
00:34:28.020 --> 00:34:29.760
<v ->It certainly doesn't...</v>

677
00:34:29.760 --> 00:34:31.920
They want you to be able to bring that

678
00:34:31.920 --> 00:34:33.180
to satisfy that prong.

679
00:34:33.180 --> 00:34:35.014
But I think Judge Wendlandt's question is,

680
00:34:35.014 --> 00:34:37.664
when it's really clear it's an error,

681
00:34:37.664 --> 00:34:40.713
does that somehow impact the analysis?

682
00:34:41.670 --> 00:34:43.200
<v ->Well, I guess my answer is,</v>

683
00:34:43.200 --> 00:34:45.750
I think that's an erroneous reading of the law,

684
00:34:45.750 --> 00:34:47.490
and I think why it's erroneous is

685
00:34:47.490 --> 00:34:52.110
that it contravenes what final judgment, in the trial sense,

686
00:34:52.110 --> 00:34:53.010
what that means.

687
00:34:53.010 --> 00:34:57.234
<v ->So, Commonwealth versus Hernandez is not irrelevant</v>

688
00:34:57.234 --> 00:34:59.520
to how we think about prong one.

689
00:34:59.520 --> 00:35:00.353
<v ->Exactly.</v>

690
00:35:00.353 --> 00:35:03.300
And I cite Hernandez for exactly that idea.

691
00:35:03.300 --> 00:35:06.390
Because what my brother is asking is basically

692
00:35:06.390 --> 00:35:08.040
for the court to move the goalpost

693
00:35:08.040 --> 00:35:10.890
of what finality means in a criminal system, right?

694
00:35:10.890 --> 00:35:12.900
Because finality of judgment,

695
00:35:12.900 --> 00:35:15.300
this valid judgment of a jury verdict,

696
00:35:15.300 --> 00:35:16.560
it allows for the abrogation

697
00:35:16.560 --> 00:35:17.670
of the defendant's rights, right?

698
00:35:17.670 --> 00:35:19.755
So we say, "You don't get to go home,

699
00:35:19.755 --> 00:35:24.242
unless there's these other countervailing factors,"

700
00:35:24.242 --> 00:35:26.731
which Ricciuti says are not present here.

701
00:35:26.731 --> 00:35:28.987
But what my brother really wants to do is say,

702
00:35:28.987 --> 00:35:30.360
"It's not final judgment.

703
00:35:30.360 --> 00:35:35.360
We're gonna presume my judgment and the sentence is illegal.

704
00:35:35.400 --> 00:35:36.780
We have to presume that until a rescript,"

705
00:35:36.780 --> 00:35:39.367
is really what he's asking for, to say,

706
00:35:39.367 --> 00:35:40.440
"I should be out free,

707
00:35:40.440 --> 00:35:42.810
because I have a great appellate claim

708
00:35:42.810 --> 00:35:44.040
that hasn't been litigated."

709
00:35:44.040 --> 00:35:47.490
<v ->I think that you're overstating the argument.</v>

710
00:35:47.490 --> 00:35:50.370
I would state it as follows.

711
00:35:50.370 --> 00:35:54.030
Prong one is a very low threshold,

712
00:35:54.030 --> 00:35:58.920
but if I make a really compelling showing,

713
00:35:58.920 --> 00:36:03.060
it might affect the analysis on prong two.

714
00:36:03.060 --> 00:36:06.060
It's not saying that the conviction isn't, quote unquote,

715
00:36:06.060 --> 00:36:08.340
final, or there hasn't been a jury verdict.

716
00:36:08.340 --> 00:36:10.320
We're not getting to those issues.

717
00:36:10.320 --> 00:36:11.153
We're just saying,

718
00:36:11.153 --> 00:36:16.153
when you make a really compelling argument,

719
00:36:16.311 --> 00:36:20.868
and you've shown it in your motion to stay execution,

720
00:36:20.868 --> 00:36:25.857
it might be something to consider when analyzing prong two.

721
00:36:25.857 --> 00:36:28.530
We're not getting rid of the jury system,

722
00:36:28.530 --> 00:36:31.109
or sort of the parade of horribles that you're envisioning.

723
00:36:31.109 --> 00:36:33.567
We're just saying, "Consider it in the analysis."

724
00:36:33.567 --> 00:36:35.760
<v ->And my illustration is in the parade of horribles,</v>

725
00:36:35.760 --> 00:36:39.161
but it's more indicating that there is purpose in meeting

726
00:36:39.161 --> 00:36:40.860
for the way it is right now,

727
00:36:40.860 --> 00:36:42.930
that it's a threshold and not an apex of plan.

728
00:36:42.930 --> 00:36:44.910
<v ->So there's no sliding scale in our case law?</v>

729
00:36:44.910 --> 00:36:47.640
<v ->Right, and I think the reason there is no sliding scale is</v>

730
00:36:47.640 --> 00:36:50.430
because that preserves the appellate process,

731
00:36:50.430 --> 00:36:53.070
which allows only for the affirmation

732
00:36:53.070 --> 00:36:56.269
or vacating or remand back.

733
00:36:56.269 --> 00:36:58.680
<v ->It would also be incredibly difficult</v>

734
00:36:58.680 --> 00:37:02.021
to apply in a truncated appellate setting.

735
00:37:02.021 --> 00:37:04.290
<v ->Absolutely, and I list a few reasons</v>

736
00:37:04.290 --> 00:37:06.327
why I think it's, overall-

737
00:37:06.327 --> 00:37:09.150
<v ->Attorney Jordan, how about this, though,</v>

738
00:37:09.150 --> 00:37:10.320
because you really haven't touched

739
00:37:10.320 --> 00:37:12.783
upon Attorney Carney's point?

740
00:37:13.699 --> 00:37:16.683
At some point, doesn't this just become illusory,

741
00:37:17.940 --> 00:37:21.618
the potential for a stay after a sentence?

742
00:37:21.618 --> 00:37:23.250
I mean, if you look at somebody,

743
00:37:23.250 --> 00:37:25.113
like in Mr. Kalila's position,

744
00:37:25.113 --> 00:37:28.052
and one thing that Attorney Carney didn't mention is some

745
00:37:28.052 --> 00:37:31.740
of us have been in a position of granting stays,

746
00:37:31.740 --> 00:37:33.420
and those people are still in the wind,

747
00:37:33.420 --> 00:37:38.173
and I have that in the past.

748
00:37:38.173 --> 00:37:43.050
And so, back to what Justice Kafker was alluding to,

749
00:37:43.050 --> 00:37:45.210
that you're doubling down on the fact

750
00:37:45.210 --> 00:37:47.030
that you've made this error,

751
00:37:47.030 --> 00:37:50.190
and if the defendant is vindicated,

752
00:37:50.190 --> 00:37:53.310
and before the second trial, he's in the wind.

753
00:37:53.310 --> 00:37:54.210
And so, therefore,

754
00:37:54.210 --> 00:37:57.660
you can always reverse engineer security risk here.

755
00:37:57.660 --> 00:38:01.050
When do we ever get to the point of an abuse of discretion,

756
00:38:01.050 --> 00:38:03.566
if you can always go back, and say,

757
00:38:03.566 --> 00:38:06.300
what Judge Ricciuti does, in this case,

758
00:38:06.300 --> 00:38:08.960
even though it has pretty much...

759
00:38:10.500 --> 00:38:11.463
It's not likely.

760
00:38:12.652 --> 00:38:16.890
There's nothing in the record to say any of this is likely.

761
00:38:16.890 --> 00:38:18.540
<v ->Well, I think it goes back...</v>

762
00:38:18.540 --> 00:38:21.240
It really is grounded in what an abuse of discretion is,

763
00:38:21.240 --> 00:38:24.810
whether or not there's relevant factors that are grounded

764
00:38:24.810 --> 00:38:27.060
in the record that have reasonable inferences,

765
00:38:27.060 --> 00:38:31.170
and I don't disagree with you that, this idea of all...

766
00:38:31.170 --> 00:38:34.891
<v ->Is it a reasonable inference for a married husband</v>

767
00:38:34.891 --> 00:38:38.021
and father of three to just leave?

768
00:38:38.021 --> 00:38:40.080
And the reason why I'm mentioning that,

769
00:38:40.080 --> 00:38:41.550
it's not also in the vacuum.

770
00:38:41.550 --> 00:38:43.860
We're not talking about a 20-year sentence he got.

771
00:38:43.860 --> 00:38:48.240
I'm not saying that any deprivation of liberty is minuscule,

772
00:38:48.240 --> 00:38:51.870
but it was a five-year sentence, right?

773
00:38:51.870 --> 00:38:54.390
And he's going to up and leave his family

774
00:38:54.390 --> 00:38:57.480
and move to Morocco and do all of these things,

775
00:38:57.480 --> 00:39:01.173
and move them to Morocco for that?

776
00:39:02.040 --> 00:39:05.370
<v ->I don't know, because I think what we have to do is,</v>

777
00:39:05.370 --> 00:39:06.900
what is reasonable in inference?

778
00:39:06.900 --> 00:39:09.090
But I think your concerns,

779
00:39:09.090 --> 00:39:13.200
they rub up against the government's interest

780
00:39:13.200 --> 00:39:17.280
in this valid judgment that they have already.

781
00:39:17.280 --> 00:39:19.510
And of course, there's tension between that.

782
00:39:19.510 --> 00:39:21.510
<v ->Could you address the errors?</v>

783
00:39:21.510 --> 00:39:23.820
'Cause that I think is...

784
00:39:23.820 --> 00:39:24.653
It appears that-

785
00:39:24.653 --> 00:39:26.670
<v ->That it's all part of the same thing, yeah.</v>

786
00:39:26.670 --> 00:39:29.640
<v ->'Cause I think, to me, Justice Gaziano's question</v>

787
00:39:29.640 --> 00:39:32.435
about errors is the thing that...

788
00:39:32.435 --> 00:39:34.681
It's very hard to prove abuse of discretion,

789
00:39:34.681 --> 00:39:39.120
unless we can point to obvious errors.

790
00:39:39.120 --> 00:39:40.770
Because this is really difficult.

791
00:39:40.770 --> 00:39:42.240
We don't know whether he'll leave or not.

792
00:39:42.240 --> 00:39:43.740
I mean, it's projections.

793
00:39:43.740 --> 00:39:48.270
But address the errors, 'cause Nash, from what I understand,

794
00:39:48.270 --> 00:39:50.623
the error was not dealing with factors.

795
00:39:50.623 --> 00:39:53.070
Here the judge deals with the factors.

796
00:39:53.070 --> 00:39:55.170
The question is, are they erroneously dealt with?

797
00:39:55.170 --> 00:39:57.191
Can you go through the different errors?

798
00:39:57.191 --> 00:39:59.340
<v ->Oh, I don't have them listed</v>

799
00:39:59.340 --> 00:40:00.173
<v ->Here they are.</v>

800
00:40:00.173 --> 00:40:04.440
There's that he's stashing money away,

801
00:40:04.440 --> 00:40:09.300
that private counsel has been taken

802
00:40:09.300 --> 00:40:11.253
as opposed to public counsel.

803
00:40:12.264 --> 00:40:14.190
I can't remember some of the others.

804
00:40:14.190 --> 00:40:15.703
Oh, the passport issue.

805
00:40:15.703 --> 00:40:16.536
<v Justice Georges>The extradition.</v>

806
00:40:16.536 --> 00:40:17.583
<v ->The extradition issue.</v>

807
00:40:18.720 --> 00:40:22.500
If you're gonna lose, it's gonna come out in there probably.

808
00:40:22.500 --> 00:40:23.820
So why don't you address that?

809
00:40:23.820 --> 00:40:27.360
<v ->And I think it just also sort of dovetails</v>

810
00:40:27.360 --> 00:40:29.787
with my other point that Justice Wendlandt

811
00:40:29.787 --> 00:40:31.009
and I were discussing is that,

812
00:40:31.009 --> 00:40:33.150
well, if you can raise this claim

813
00:40:33.150 --> 00:40:36.330
and put all your eggs in the basket in the stay, well, then,

814
00:40:36.330 --> 00:40:40.710
it makes all of these things much more incentivized

815
00:40:40.710 --> 00:40:41.610
to leave.

816
00:40:41.610 --> 00:40:43.500
I don't know if the court follows what...

817
00:40:43.500 --> 00:40:45.870
<v ->There's a grasp in that straws aspects</v>

818
00:40:45.870 --> 00:40:48.062
that you start to read, when you say,

819
00:40:48.062 --> 00:40:51.630
"Well, if he has a lot of money,

820
00:40:51.630 --> 00:40:54.750
he's hoarding money to flee."

821
00:40:54.750 --> 00:40:58.620
That, to me, smacks of grasping at straws,

822
00:40:58.620 --> 00:41:01.770
which cause him to question the rest of the findings.

823
00:41:01.770 --> 00:41:04.530
So, that's what you have to convince me that,

824
00:41:04.530 --> 00:41:06.600
if he's speculative, grasping at straws,

825
00:41:06.600 --> 00:41:08.190
the rest of the findings are valid.

826
00:41:08.190 --> 00:41:10.800
<v ->Well, I think what Judge Ricciuti does of close reading,</v>

827
00:41:10.800 --> 00:41:13.233
it looks like he rebuts all the points made

828
00:41:13.233 --> 00:41:15.690
in the defendant's memorandum.

829
00:41:15.690 --> 00:41:18.120
And I think part of what he did there-

830
00:41:18.120 --> 00:41:19.670
<v ->Heads I win, tails you lose.</v>

831
00:41:19.670 --> 00:41:21.510
If he says, "I have financial resources,"

832
00:41:21.510 --> 00:41:22.890
he says, "Ah, you're stashing money."

833
00:41:22.890 --> 00:41:24.063
<v ->Right, right.</v>

834
00:41:26.400 --> 00:41:29.490
<v ->And further, you know, you have a close family.</v>

835
00:41:29.490 --> 00:41:30.737
Oh, they'll help you.

836
00:41:30.737 --> 00:41:33.330
<v ->Right, and I think I conceded an oral argument</v>

837
00:41:33.330 --> 00:41:34.290
that cuts both ways,

838
00:41:34.290 --> 00:41:37.140
which I think is part of the abuse of discretion standard,

839
00:41:37.140 --> 00:41:38.457
that if any of these factors-

840
00:41:38.457 --> 00:41:40.680
<v ->Again, I think they all cut both ways.</v>

841
00:41:40.680 --> 00:41:43.230
So address whether these are errors or not.

842
00:41:43.230 --> 00:41:45.135
<v ->Well, I think the private counsel, I think,</v>

843
00:41:45.135 --> 00:41:49.392
is dealt with in the appeals court's majority opinion.

844
00:41:49.392 --> 00:41:50.225
<v Justice Kafker>Which is what?</v>

845
00:41:50.225 --> 00:41:52.980
<v ->Which is, basically, that it's not</v>

846
00:41:52.980 --> 00:41:56.400
as meaningful regarding getting counsel, right?

847
00:41:56.400 --> 00:41:57.900
'Cause there's this idea that then it-

848
00:41:57.900 --> 00:41:59.730
<v ->I take it we shouldn't be doing this,</v>

849
00:41:59.730 --> 00:42:01.500
'cause you get to pick your...

850
00:42:01.500 --> 00:42:05.790
It raises constitutional issues if picking counsel is...

851
00:42:05.790 --> 00:42:06.623
Right?

852
00:42:06.623 --> 00:42:07.890
I worry about that one.

853
00:42:07.890 --> 00:42:09.120
<v ->Right, well, I think what...</v>

854
00:42:09.120 --> 00:42:11.460
'Cause one of the factors in bail that we talked

855
00:42:11.460 --> 00:42:14.241
about guides some of this is financial resources,

856
00:42:14.241 --> 00:42:17.010
and I think that is what Ricciuti is doing

857
00:42:17.010 --> 00:42:18.810
when he mentions the private counsel.

858
00:42:18.810 --> 00:42:21.600
I think what he's doing is trying to, essentially,

859
00:42:21.600 --> 00:42:22.553
hit the factors.

860
00:42:22.553 --> 00:42:24.240
<v ->I asked are there cases that say</v>

861
00:42:24.240 --> 00:42:26.610
that's legitimate or illegitimate?

862
00:42:26.610 --> 00:42:28.440
<v ->The financial?</v>

863
00:42:28.440 --> 00:42:30.780
<v ->When we do this financial means,</v>

864
00:42:30.780 --> 00:42:32.640
that you hired private lawyers,

865
00:42:32.640 --> 00:42:35.640
that you've got one of the major defense lawyers

866
00:42:35.640 --> 00:42:37.320
in the Commonwealth defending you,

867
00:42:37.320 --> 00:42:39.116
is that a legitimate thing to consider?

868
00:42:39.116 --> 00:42:41.768
I take it it's probably a bad idea.

869
00:42:41.768 --> 00:42:45.150
<v ->I don't think I researched that particular fact,</v>

870
00:42:45.150 --> 00:42:47.580
but I think, in my brother's brief,

871
00:42:47.580 --> 00:42:50.133
it's supported by Brannigan, which says, you know,

872
00:42:50.133 --> 00:42:53.760
the due process right in a pre detainee.

873
00:42:53.760 --> 00:42:54.894
And I do think that-

874
00:42:54.894 --> 00:42:57.720
<v ->The author of Brannigan's turning over in her grave</v>

875
00:42:57.720 --> 00:43:00.472
at this point on that one.

876
00:43:00.472 --> 00:43:02.283
Oh, actually, she's still alive.

877
00:43:03.452 --> 00:43:06.210
<v ->Well, I think, because we're talking about,</v>

878
00:43:06.210 --> 00:43:07.140
are these errors?

879
00:43:07.140 --> 00:43:09.210
And I'm gonna say they're not errors

880
00:43:09.210 --> 00:43:12.360
in that Judge Ricciuti is tasked with looking

881
00:43:12.360 --> 00:43:13.920
at the financial resources.

882
00:43:13.920 --> 00:43:16.110
And again, the burden is on the defendant

883
00:43:16.110 --> 00:43:19.950
to establish what finance he has.

884
00:43:19.950 --> 00:43:21.000
And that's how Judge Ricciuti-

885
00:43:21.000 --> 00:43:23.940
<v ->I'm gonna wrap it up with the question</v>

886
00:43:23.940 --> 00:43:25.050
from Justice Wendlandt, please.

887
00:43:25.050 --> 00:43:30.050
What is the difference between Mr. Kalila and Mr. Nash?

888
00:43:30.641 --> 00:43:34.503
You know, in Nash, we said this was an abuse of discretion,

889
00:43:35.534 --> 00:43:37.800
even though the defendant had been convicted

890
00:43:37.800 --> 00:43:39.086
of two times rape,

891
00:43:39.086 --> 00:43:44.086
and he basically looks a lot like Mr. Kalila on paper,

892
00:43:45.210 --> 00:43:48.960
except Mr. Nash has not got the dual citizenship.

893
00:43:48.960 --> 00:43:50.911
What is the difference in your mind?

894
00:43:50.911 --> 00:43:53.910
<v ->So, there's two things that come to light</v>

895
00:43:53.910 --> 00:43:55.290
if we're talking about that...

896
00:43:55.290 --> 00:43:57.761
Nash didn't have any of those other...

897
00:43:57.761 --> 00:43:59.430
It's balancing, right?

898
00:43:59.430 --> 00:44:04.080
He didn't have any countervailing points to what Nash had.

899
00:44:04.080 --> 00:44:07.107
So Nash did not have ties in other countries.

900
00:44:07.107 --> 00:44:10.620
And I did look at the underlying ruling in Nash,

901
00:44:10.620 --> 00:44:12.337
not just this court's opinion.

902
00:44:12.337 --> 00:44:15.840
Didn't have any of those other, a brother in Germany.

903
00:44:15.840 --> 00:44:19.080
<v ->So the difference between Mr. Nash and Mr. Kalila is</v>

904
00:44:19.080 --> 00:44:22.050
that he's a dual citizen and has those ties in Morocco?

905
00:44:22.050 --> 00:44:24.150
<v ->I think so, but also in...</v>

906
00:44:24.150 --> 00:44:25.950
<v ->Tell me why that's not a problem?</v>

907
00:44:25.950 --> 00:44:30.600
<v ->Well, because the task at hand is the possibility</v>

908
00:44:30.600 --> 00:44:31.433
of flight.

909
00:44:31.433 --> 00:44:33.480
It's not the certainty.

910
00:44:33.480 --> 00:44:36.870
It is not, "Gee, do I agree with any of the incentives

911
00:44:36.870 --> 00:44:37.890
to do so?"

912
00:44:37.890 --> 00:44:40.897
It's, "Is there a possibility that the defendant is going

913
00:44:40.897 --> 00:44:45.897
to abscond and not come back, if that's so allowed?"

914
00:44:47.013 --> 00:44:52.013
And in Nash, the error there was basically not looking

915
00:44:52.113 --> 00:44:53.228
at any mitigating-

916
00:44:53.228 --> 00:44:55.980
<v ->Well, no, if you looked at the underlying opinion,</v>

917
00:44:55.980 --> 00:44:57.270
you saw that the single justice

918
00:44:57.270 --> 00:44:58.800
did actually weigh the decisions.

919
00:44:58.800 --> 00:45:02.070
It just wasn't sufficient for this court to consider.

920
00:45:02.070 --> 00:45:04.440
You know, it wasn't sufficiently considered.

921
00:45:04.440 --> 00:45:06.240
It was considered, but not sufficient.

922
00:45:06.240 --> 00:45:07.500
And on that basis,

923
00:45:07.500 --> 00:45:09.630
we said there's been an abuse of discretion

924
00:45:09.630 --> 00:45:11.190
by the single justice.

925
00:45:11.190 --> 00:45:12.360
<v Darcy>Yes.</v>
<v ->Yeah.</v>

926
00:45:12.360 --> 00:45:14.910
So the difference is the dual citizenship.

927
00:45:14.910 --> 00:45:18.270
<v ->Well, I suggest it's not dual citizenship alone,</v>

928
00:45:18.270 --> 00:45:21.600
but all those other things that either coincide

929
00:45:21.600 --> 00:45:22.830
with dual citizenship...

930
00:45:22.830 --> 00:45:24.240
It's not just a loan, right?

931
00:45:24.240 --> 00:45:25.440
It's the family ties.

932
00:45:25.440 --> 00:45:28.320
It's the continuous relationship by giving money

933
00:45:28.320 --> 00:45:29.640
to those people there.

934
00:45:29.640 --> 00:45:33.210
So I don't wanna say that it's just that alone,

935
00:45:33.210 --> 00:45:34.500
and that's the only decision.

936
00:45:34.500 --> 00:45:35.970
<v ->We have a last and final.</v>

937
00:45:35.970 --> 00:45:37.077
<v ->Okay.</v>

938
00:45:37.077 --> 00:45:40.992
<v ->So, can you address whether the passport discussion</v>

939
00:45:40.992 --> 00:45:43.653
and the extradition discussions were errors?

940
00:45:44.880 --> 00:45:48.600
<v ->I cite to a federal case that is sort of on point on this.</v>

941
00:45:48.600 --> 00:45:50.697
So, I did attach it to my brief

942
00:45:50.697 --> 00:45:54.570
that talks about this idea of passports.

943
00:45:54.570 --> 00:45:55.950
It's not as, if you will,

944
00:45:55.950 --> 00:46:00.210
tight than I think has been kind of discussed

945
00:46:00.210 --> 00:46:01.937
in my brother's brief,

946
00:46:01.937 --> 00:46:05.430
that the idea that you can cross the border to Canada

947
00:46:05.430 --> 00:46:07.830
and get a Moroccan passport.

948
00:46:07.830 --> 00:46:10.465
It does not eliminate these possibilities.

949
00:46:10.465 --> 00:46:13.650
And that is not what the judge is really tasked with.

950
00:46:13.650 --> 00:46:16.140
He's not saying, "This is not convenient,"

951
00:46:16.140 --> 00:46:17.637
or, "Probably not",

952
00:46:17.637 --> 00:46:19.920
but it's the possibility of flight

953
00:46:19.920 --> 00:46:22.830
and whether or not he would go above and beyond

954
00:46:22.830 --> 00:46:25.530
to leave this country to avoid.

955
00:46:25.530 --> 00:46:27.780
<v ->Again, mine's a very technical question.</v>

956
00:46:27.780 --> 00:46:31.800
Did the judge get wrong the discussion

957
00:46:31.800 --> 00:46:33.390
of passport and extradition?

958
00:46:33.390 --> 00:46:34.223
<v ->I don't think so.</v>

959
00:46:34.223 --> 00:46:38.880
I mean, I did look into what was available about this idea.

960
00:46:38.880 --> 00:46:42.644
I have no idea about TSA.

961
00:46:42.644 --> 00:46:47.109
I do know that this idea that he'd be on some list,

962
00:46:47.109 --> 00:46:49.920
I think that is not really borne out

963
00:46:49.920 --> 00:46:51.870
by the factual accuracies of what

964
00:46:51.870 --> 00:46:53.599
that means in practicality.

965
00:46:53.599 --> 00:46:58.020
So I think this idea that the judge was wrong

966
00:46:58.020 --> 00:46:59.996
in saying it's not as straightforward

967
00:46:59.996 --> 00:47:02.160
as the defendant is offering,

968
00:47:02.160 --> 00:47:05.073
I think that is an accurate statement.