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SJC-13430, Commonwealth v. Denzel McFarlane.
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Okay, Attorney Cohen.
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Good morning Your Honors.
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Attorney Cohen on behalf of Appellate and Denzel McFarlane.
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This case is about the Commonwealth's obligation
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to turn over exculpatory Brady evidence
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related to a pending civil lawsuit for police misconduct.
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Particularly in this case, false arrest.
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Defendant McFarlane's defense at trial
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essentially was false arrest.
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He had testified that he had recently purchased,
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just minutes before purchased a used vehicle.
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Was driving down the road,
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had a problem with the vehicle, pulled over.
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But he had done a brief inspection of the vehicle.
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He checked the engine, he checked the mileage, the windows.
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A brief inspection and he had seen no gun.
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He testified that he had no gun,
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there was no gun.
Mister Cohen,
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what are the bounds to the discovery obligation
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on civil actions?
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Or civil complaints?
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Sure, well in regards to exculpatory evidence
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I would suggest any evidence
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having to do with police misconduct, almost by definition
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is exculpatory.
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So if a police officer pulls me over
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and is rude to me and I go to the Chief and I say,
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"That person was a jerk when he pulled me over for speeding,
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"do something about him."
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That's misconduct right?
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Is that discoverable?
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Your Honor, I would suggest.
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Probably get you to say,
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because we have.
Yes.
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You know, we have the inmate grand jury case right
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dealing with credibility and the like.
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We don't have 608B yet, maybe we will, I don't know.
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But what are the bounds of this rule
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you want us to get into?
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I would suggest police misconduct
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rising to a level, certainly,
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that involves civil litigation for false arrest.
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That would rise to a level that
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would be discoverable.
Why?
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Why?
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I'm not being glib, you can allege anything.
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So if somebody files a civil lawsuit,
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and they allege all manner of thing,
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whether it's proved or not proved,
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it would fall in your category of
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this is what you've gotta turn over.
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Sure.
So back
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to Justice Gaziano's point.
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It would seem to encompass then,
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if there's a complaint because you were rude to me,
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it hasn't been proven.
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Just like a civil complaint that's just been filed,
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that's not been tested by anything.
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It's just a conclusory complaint.
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Sure, I would suggest and admit
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that perhaps the value of a civil lawsuit itself,
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the mere civil lawsuit perhaps has a minimal level
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of exculpatory value.
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But what's important about the civil lawsuit
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is the underlying specific allegations within the lawsuit.
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Again, in McFarlane's case,
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there was a specific allegation of false arrest.
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This was the thrust of his defense, false arrest
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and so,
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I'm sorry. Gotta gather my thoughts for a moment.
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That's okay, I don't mean to short circuit your argument
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but you're putting a lot about the fact that your,
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McFarlane's complaint focuses on this officer.
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But it really leads into the last part of the analysis
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with the prejudice.
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Because you're putting a lot in saying,
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let's assume for the minute, sake of argument,
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you get rid of this officer.
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Isn't his testimony duplicative
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of actually really the main actor,
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the main police officer who had all the interactions?
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Had all the statements from him, found the gun.
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So when you,
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if we assume for the sake of argument
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that this is all exculpatory
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and it should've been turned over,
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don't you have a real tough road to hoe
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on the prejudice aspect?
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Certainly there was another officer on the scene
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in Officer Phillips.
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Officer Phillips was the one that initially saw,
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claims to have seen the gun in plain view.
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However, in McFarlane's trial,
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essentially it's a credibility contest.
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On the defense side you had two witnesses,
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Mister McFarlane and his passenger, Chandi Jones
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who both testified there was no gun.
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We saw no gun, there was no gun.
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The implication is that if there was a gun,
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perhaps it had been pushed further between the seat.
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Again he had just purchased the vehicle,
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perhaps it had been repositioned by the police,
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i.e. a false arrest.
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On the Commonwealth side you had two officers
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reinforcing each other.
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I would suggest that if you were to credit
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McFarlane's testimony that there was a false arrest,
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that this gun was repositioned.
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That that in fact impugns, both officers.
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Certainly it casts some doubt
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over the creditability.
Can I ask you?
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Was the civil lawsuit a collusion, coverup kind of lawsuit
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where Moynahan was accused of covering up
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or colluding with
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a fellow Springfield Police Department Officer?
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Because it seems to me.
Yeah.
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That if that were the case and I don't know,
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sitting here today, that that might lend some credibility
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to your impeachment of Phillips
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through the impeachment of Moynahan but I don't?
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I guess I would say yes Your Honor
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because as I consider that case,
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as I consider that case,
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again that involved false arrest.
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The officers acted in concert.
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Two officers in fact were found liable.
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You don't know, you don't know.
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My question was a factual one.
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Do you know if that civil lawsuit was a collusive kind of?
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The way I view it, I would suggest it is.
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There were two officers that were found liable,
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they were acting together in concert.
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Moynahan in that case, again,
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was found liable for false arrest.
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Just Moynahan's testimony alone in the Bradley lawsuit,
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he sort of implicated himself
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and this criminal trial transcript by the way
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would've been available to defense counsel
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in McFarlane's case.
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There was no adjudication of the civil lawsuit yet,
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but had he been informed of the civil lawsuit,
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that would allow defense counsel
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to get to Bradley's criminal trial transcript.
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Within the criminal trial transcript,
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Moynahan says that Defendant Bradley,
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that he was moving in a suspicious manner
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and he pulled him out of the vehicle.
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On cross examination,
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Moynahan admits despite this suspicious movement,
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he didn't illuminate the area with his flashlight.
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He didn't ask the defendant, or Bradley
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if he had a weapon.
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He just immediately pulled him out
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and it continued from there but again,
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he was found liable for false arrest among other things.
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So doesn't that sound like a trial within a trial?
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I mean it really does get very complicated,
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you know, to agree with your position
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that this should've come in.
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Well I mean, it's a rather brief colloquy.
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You know?
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Especially where we have a civil lawsuit,
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not a grand jury indictment
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like we had in re Grand Jury right?
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Right.
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Isn't that?
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But it's in black and white in the transcript.
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It's a relatively brief exchange.
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Moynahan's own words on direct and then cross,
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it appears that it may have been a false arrest
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whereas McFarlane is asserting essentially
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it was a false arrest.
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There was no gun, i.e. if there was one it was repositioned.
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It's a credibility contest.
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You have two witnesses on the defense,
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two witnesses on the Commonwealth side.
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The jury has to weigh who to believe.
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McFarlane was asserting false arrest
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and if this cross-examine were to,
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cross examination of Moynahan were to raise this doubt
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of false arrest,
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certainly I suggest that's prejudice.
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The jury very well could've,
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would've considered this evidence differently
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and very well may have come to a not guilty find.
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Counsel that,
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but if you take that math and you're saying
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you have to go all of these different layers,
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dovetailing off of Justice Wendlandt's question.
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This is an abuse of discretion standard right?
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For the trial judge to say, you can't go into this.
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I'm not going to let you go into this.
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So given all of these back and forth
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and it has to be this, it might be that.
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How can this be an abuse of discretion?
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Because it's gotta be clear right?
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I mean if we know what the definition
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of what an abuse of discretion standard is,
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that no trial judge would come down and say,
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"No, I'm not going to let you go through all
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"of this kind of Rube Goldberg kind of ways
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"that we go back to how this may be relevant."
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Because I have to get into the testimony
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of the underlying criminal case
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where we'd see whether or not this is collusive
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and whether or not there's a false arrest.
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I mean sure.
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Illuminate that for me?
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The Appeals Court indicated in its decision
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that it wouldn't have necessarily agreed
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with Judge Murphy's decision to deny
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our motion for new trial on that basis.
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The motion judge said something
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about this evidence concerning Moynahan being too old,
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yet at the same time, it wasn't right
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because it wasn't adjudicated.
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Of course you know,
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the judge ultimately has discretion
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whether to admit this evidence but you know,
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particularly with McFarlane I think the real key is
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the thrust of his defense was essentially a false arrest,
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one of the two testifying arresting officers,
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Moynahan was very much involved.
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Almost as much as Officer Phillips was, I would suggest
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and yet it appears he was involved with a false arrest.
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This is very much on point of the heart
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of McFarlane's defense.
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So I would suggest yes, that's an abuse of discretion.
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He was denied the ability to put on the case,
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the strongest case,
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relating to the heart of his defense.
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Anything else?
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Just to, perhaps I should mention Guardado briefly.
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I know the Commonwealth brought up another case,
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Bookman and there was the issue of prejudice in Guardado.
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The Commonwealth argues that there was no prejudice
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in this case because McFarlane admitted
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that he had no license to carry.
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I would suggest that if McFarlane were granted a new trial,
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counsel possibly could file a motion to suppress
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that statement that he had no license to carry.
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Perhaps the argument would be that Officer Phillips.
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This just goes to whether it gets a new trial
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versus whether it's vacated right?
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The Guardado issue.
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Right, right.
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The argument would be that Officer Phillips
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demanded that he turn over his license to carry
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and it puts McFarlane in a position where you know,
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essentially arguably that statement was involuntary.
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He was responding to a demand.
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So I suggest there is some prejudice
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that would go to Guardado.
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Okay.
And actually,
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if I can add one more thing.
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I know the Commonwealth talks about the,
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the POST Commission website.
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The POST Commission website elucidates
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disciplinary actions within the police department itself.
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I took a look at it in regards
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to Officer Moynahan particularly.
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There are a couple of cryptic mentions
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having to do with improper processing of a prisoner,
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discipline other.
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Conduct unbecoming, written reprimand
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but despite the supposed publicity
268
00:12:35.220 --> 00:12:37.890
relating to the McFarlane civil lawsuit,
269
00:12:37.890 --> 00:12:40.620
there's no mention of that whatsoever.
270
00:12:40.620 --> 00:12:44.940
The POST Commission website does not get to issue such a,
271
00:12:44.940 --> 00:12:48.933
what's relevant here which is a pending civil lawsuit.
272
00:12:50.240 --> 00:12:52.290
I don't think the POST Commission website,
273
00:12:52.290 --> 00:12:54.240
certainly doesn't fully address
274
00:12:54.240 --> 00:12:57.453
defense counsel's need for exculpatory evidence
275
00:12:57.453 --> 00:12:59.550
in this way.
276
00:12:59.550 --> 00:13:02.100
I know the Hampton County District Attorney's Office
277
00:13:02.100 --> 00:13:05.190
for example currently has certain questions.
278
00:13:05.190 --> 00:13:08.670
Doesn't that suggest there needs to be limitations
279
00:13:08.670 --> 00:13:10.256
on this too?
280
00:13:10.256 --> 00:13:13.350
Because if, are we gonna have a trial within a trial
281
00:13:13.350 --> 00:13:14.710
on all nine of those
282
00:13:15.553 --> 00:13:17.553
that's in the Commission's disciplinary?
283
00:13:18.555 --> 00:13:20.280
Are we gonna have each one of those revisited?
284
00:13:20.280 --> 00:13:23.910
No my point is simply the POST Commission website
285
00:13:23.910 --> 00:13:25.681
is insufficient.
286
00:13:25.681 --> 00:13:28.110
It doesn't expose this type of misconduct
287
00:13:28.110 --> 00:13:30.900
and you know, a simple question.
288
00:13:30.900 --> 00:13:32.880
Obviously prior to trial,
289
00:13:32.880 --> 00:13:34.770
a prosecutor needs to converse with
290
00:13:34.770 --> 00:13:36.480
testifying police witnesses.
291
00:13:36.480 --> 00:13:38.790
I'd suggest it's not too much of a stretch
292
00:13:38.790 --> 00:13:40.297
for that prosecutor to ask a question,
293
00:13:40.297 --> 00:13:43.657
"Do you have any pending civil allegations
294
00:13:43.657 --> 00:13:46.140
"of police misconduct?"
295
00:13:46.140 --> 00:13:48.150
I know the Hampton County District Attorney's Office
296
00:13:48.150 --> 00:13:52.020
is currently utilizing a brief questionnaire of that effect
297
00:13:52.020 --> 00:13:55.440
and those questions are appropriate and again,
298
00:13:55.440 --> 00:13:57.480
we argue that should,
299
00:13:57.480 --> 00:13:59.070
it's certainly exculpatory and should be turned over
300
00:13:59.070 --> 00:14:00.220
to the defense counsel.
301
00:14:03.234 --> 00:14:05.250
If there's nothing further, I'll rest on the briefs.
302
00:14:05.250 --> 00:14:06.083
Thank you.
303
00:14:06.083 --> 00:14:07.500
Thank you.
304
00:14:08.802 --> 00:14:09.635
Attorney Jacobstein.
305
00:14:18.930 --> 00:14:19.763
Good morning Your Honors.
306
00:14:19.763 --> 00:14:21.627
Rebecca Jacobstein for amici CPCS
307
00:14:21.627 --> 00:14:24.120
and the ACLU of Massachusetts.
308
00:14:24.120 --> 00:14:26.880
Thank you for granting us oral argument time today.
309
00:14:26.880 --> 00:14:28.770
I'd like to address two issues.
310
00:14:28.770 --> 00:14:31.230
First, the parameter of a prosecutor's
311
00:14:31.230 --> 00:14:33.090
automatic duty of inquiry
312
00:14:33.090 --> 00:14:35.160
and the suggestion by other amici
313
00:14:35.160 --> 00:14:37.150
that the POST Commission database
314
00:14:38.518 --> 00:14:40.713
is sufficient to fulfill that obligation.
315
00:14:42.360 --> 00:14:45.720
But first, an area on which we have agreement I think
316
00:14:45.720 --> 00:14:49.560
which is that I agree with the District Attorneys
317
00:14:49.560 --> 00:14:50.880
and the State Police
318
00:14:50.880 --> 00:14:52.650
that this court should provide guidance
319
00:14:52.650 --> 00:14:55.733
about the scope of the Commonwealth's duty of inquiry.
320
00:14:55.733 --> 00:14:57.900
It appears the DAs are concerned
321
00:14:57.900 --> 00:15:00.300
about their working relationships with the police
322
00:15:00.300 --> 00:15:03.300
and clear and explicit requirements from this court
323
00:15:03.300 --> 00:15:05.820
will enable the DAs to obtain the materials
324
00:15:05.820 --> 00:15:08.280
to which defendants are constitutionally entitled
325
00:15:08.280 --> 00:15:11.013
while not taking the blame for asking for them.
326
00:15:12.000 --> 00:15:17.000
So the law regarding the prosecutorial obligation is clear.
327
00:15:18.060 --> 00:15:20.730
Prosecutors must obtain and disclose exculpatory evidence,
328
00:15:20.730 --> 00:15:23.360
they must err on the side of disclosure.
329
00:15:23.360 --> 00:15:26.160
If the police have it, the prosecutor has it
330
00:15:26.160 --> 00:15:29.070
but exculpatory evidence need not be admissible,
331
00:15:29.070 --> 00:15:31.560
it just needs to lead to admissible evidence
332
00:15:31.560 --> 00:15:33.870
and just because we have it,
333
00:15:33.870 --> 00:15:36.525
doesn't mean we always get to put it in.
334
00:15:36.525 --> 00:15:37.358
So just to address the questions
335
00:15:37.358 --> 00:15:40.180
that the Court was asking counsel,
336
00:15:40.180 --> 00:15:42.810
if things are going to lead to a trial within a trial,
337
00:15:42.810 --> 00:15:45.420
if they are not relevant, they don't come in
338
00:15:45.420 --> 00:15:46.253
but that doesn't mean
339
00:15:46.253 --> 00:15:48.600
they shouldn't automatically be disclosed
340
00:15:48.600 --> 00:15:50.160
and I think a reasonable inquiry
341
00:15:50.160 --> 00:15:52.890
is one that gets information about the case
342
00:15:52.890 --> 00:15:54.753
but also gets information,
343
00:15:55.658 --> 00:15:59.494
like relevant impeachment information
344
00:15:59.494 --> 00:16:01.113
about all the officers involved.
345
00:16:01.984 --> 00:16:03.330
All right, so we've gotta get down to brass tacks
346
00:16:03.330 --> 00:16:06.780
as far as the civil cases and the like.
347
00:16:06.780 --> 00:16:09.900
Because we have, my my, we have In re Grand Jury
348
00:16:09.900 --> 00:16:11.490
which stands for proposition of,
349
00:16:11.490 --> 00:16:12.640
that was an indictment.
350
00:16:13.799 --> 00:16:15.087
And it had to do with credibility right?
351
00:16:15.087 --> 00:16:17.370
So that's our guidance from this Court thus far
352
00:16:18.330 --> 00:16:22.050
and we don't have 608B right?
353
00:16:22.050 --> 00:16:24.960
So where do we draw any line
354
00:16:24.960 --> 00:16:28.020
for this guidance that we all want to give to everybody
355
00:16:28.020 --> 00:16:33.020
as far as civilian complaints, civil lawsuits, et cetera.
356
00:16:33.450 --> 00:16:34.770
So I think Your Honor,
357
00:16:34.770 --> 00:16:37.230
that the inquiry is expansive
358
00:16:37.230 --> 00:16:39.690
and I also think the disclosure's expansive.
359
00:16:39.690 --> 00:16:41.130
Maybe the admission is not,
360
00:16:41.130 --> 00:16:42.990
but the disclosure is and so for instance,
361
00:16:42.990 --> 00:16:43.983
I have a list.
362
00:16:46.187 --> 00:16:48.300
Criminal charges against an officer,
363
00:16:48.300 --> 00:16:50.520
civil cases relating to the officer's professional duties.
364
00:16:50.520 --> 00:16:53.310
Not all civil cases, just those.
365
00:16:53.310 --> 00:16:56.403
That are either pending or have settled or there's a guilty.
366
00:16:56.403 --> 00:16:58.555
Miss, are you getting this from a federal Giglio case
367
00:16:58.555 --> 00:16:59.946
or how?
368
00:16:59.946 --> 00:17:02.850
This comes from my own personal wishlist
369
00:17:02.850 --> 00:17:07.230
but also from the Giglio and just you know,
370
00:17:07.230 --> 00:17:11.340
experiences and also Milke, the 9th Circuit case.
371
00:17:11.340 --> 00:17:13.155
Because that's what I'm going to ask you for
372
00:17:13.155 --> 00:17:14.130
because when we're writing the decision,
373
00:17:14.130 --> 00:17:17.490
trying to get guidance,
374
00:17:17.490 --> 00:17:20.190
a good source would be to see where the federal courts
375
00:17:20.190 --> 00:17:24.060
have gone on Giglio obligations right, on civil cases.
376
00:17:24.060 --> 00:17:28.356
Right, I don't know if Milke has civil.
377
00:17:28.356 --> 00:17:30.280
We quote a case from New York
378
00:17:31.125 --> 00:17:33.600
about civil cases in our brief
379
00:17:33.600 --> 00:17:37.689
but I don't know if Milke actually addresses civil.
380
00:17:37.689 --> 00:17:39.850
I know it addresses judicial determinations,
381
00:17:39.850 --> 00:17:44.301
both of truthfulness and Constitutional violations.
382
00:17:44.301 --> 00:17:45.540
All right, so you've told me about the source
383
00:17:45.540 --> 00:17:47.520
because obviously we need to check that
384
00:17:47.520 --> 00:17:51.163
and obviously I trust what you write and tell us.
385
00:17:51.163 --> 00:17:51.996
But give us your wishlist again,
386
00:17:51.996 --> 00:17:53.910
and this time I won't interrupt.
387
00:17:53.910 --> 00:17:54.743
That's okay.
388
00:17:55.983 --> 00:17:56.970
Internal Affairs investigations
389
00:17:56.970 --> 00:18:00.273
that are sustained, pending or relate to the case at hand.
390
00:18:01.140 --> 00:18:05.130
Milke actually did rule that contrary
391
00:18:05.130 --> 00:18:06.570
to clearly established federal law,
392
00:18:06.570 --> 00:18:08.730
when prosecutors fail to disclose findings
393
00:18:08.730 --> 00:18:10.230
in an Internal Affairs report.
394
00:18:11.760 --> 00:18:14.220
Judicial findings that an officer was not truthful,
395
00:18:14.220 --> 00:18:16.787
that the testimony was inconsistent
396
00:18:16.787 --> 00:18:18.480
with another officer's testimony,
397
00:18:18.480 --> 00:18:20.790
or with the physical evidence.
398
00:18:20.790 --> 00:18:22.770
Orders on motions to suppress or dismiss
399
00:18:22.770 --> 00:18:24.210
where the officer is found to have violated
400
00:18:24.210 --> 00:18:26.723
a defendant's Constitutional rights.
401
00:18:26.723 --> 00:18:28.980
Again, I think both of those are in Milke
402
00:18:28.980 --> 00:18:31.650
and evidence of bias which I just took out
403
00:18:31.650 --> 00:18:35.493
from the fact that bias evidence is always admissible.
404
00:18:36.420 --> 00:18:39.044
The Internal Affairs investigations,
405
00:18:39.044 --> 00:18:41.941
is that, do you include anything that's been opened
406
00:18:41.941 --> 00:18:44.073
or things that have been finalized?
407
00:18:45.424 --> 00:18:47.010
I would argue that it's those that are pending
408
00:18:47.010 --> 00:18:50.159
and those where there has been a sustained finding.
409
00:18:50.159 --> 00:18:52.530
So go, I get pulled over for speeding.
410
00:18:52.530 --> 00:18:54.201
I'm sorry?
411
00:18:54.201 --> 00:18:55.034
I get pulled over for speeding.
412
00:18:55.034 --> 00:18:56.280
Yes.
I think the Officer's rude.
413
00:18:56.280 --> 00:18:57.360
I file a complaint.
414
00:18:57.360 --> 00:18:58.740
Yes.
Discoverable?
415
00:18:58.740 --> 00:18:59.670
Absolutely.
416
00:18:59.670 --> 00:19:02.550
Well while it's still pending and even if it's sustained,
417
00:19:02.550 --> 00:19:04.382
does that come into evidence?
418
00:19:04.382 --> 00:19:05.970
Is that even of any use to me?
419
00:19:05.970 --> 00:19:07.644
No, it depends.
I mean we have to be careful
420
00:19:07.644 --> 00:19:09.364
because I mean we obviously
421
00:19:09.364 --> 00:19:12.279
came down hard on prosecutors last month, this month.
422
00:19:12.279 --> 00:19:14.340
So as far as discovery obligations go.
423
00:19:14.340 --> 00:19:17.277
So they have to basically ask every police officer,
424
00:19:17.277 --> 00:19:21.043
"Do you have any irate motorists
425
00:19:21.043 --> 00:19:23.121
"that are mad because you pulled them over?"
426
00:19:23.121 --> 00:19:24.282
No I think the question is,
427
00:19:24.282 --> 00:19:27.097
is "Do you have any open, pending or sustained
428
00:19:27.097 --> 00:19:29.902
"Internal Affairs investigations against you
429
00:19:29.902 --> 00:19:30.917
"that you know about?"
430
00:19:33.785 --> 00:19:35.724
Open, so again.
431
00:19:35.724 --> 00:19:40.530
Anyone angry can file complaints right?
432
00:19:40.530 --> 00:19:41.763
Yes.
It's opened.
433
00:19:42.684 --> 00:19:43.770
It could be complete nonsense.
434
00:19:43.770 --> 00:19:45.581
Could be.
Could be filed
435
00:19:45.581 --> 00:19:47.322
by a mentally ill person right?
436
00:19:47.322 --> 00:19:48.480
I mean we're.
And I guess your point
437
00:19:48.480 --> 00:19:51.142
is that it's just discoverable,
438
00:19:51.142 --> 00:19:53.023
not that it's admissible.
439
00:19:53.023 --> 00:19:54.124
That's exactly right Your Honor.
440
00:19:54.124 --> 00:19:55.140
So maybe whether it's admissible
441
00:19:55.140 --> 00:19:58.201
would go to the strength of the allegation,
442
00:19:58.201 --> 00:20:00.930
the stage but you're just asking for it to be disclosed
443
00:20:00.930 --> 00:20:02.250
to defense counsel right?
444
00:20:02.250 --> 00:20:05.602
Right, that's exactly right.
445
00:20:05.602 --> 00:20:07.350
We just want the judge to be able to decide
446
00:20:07.350 --> 00:20:11.065
whether it's admissible or us to even decide before that,
447
00:20:11.065 --> 00:20:12.180
if we want it to be admissible before,
448
00:20:12.180 --> 00:20:15.244
instead of the prosecutor or the police determining
449
00:20:15.244 --> 00:20:16.077
whether even we get to know it.
450
00:20:17.706 --> 00:20:20.020
I get the first part is much more generous
451
00:20:20.020 --> 00:20:21.600
and we've expressly stated that.
452
00:20:21.600 --> 00:20:25.290
But I get to the second part
453
00:20:25.290 --> 00:20:27.261
because you're running out of time.
454
00:20:27.261 --> 00:20:28.325
I'm out of time.
Because that seems to be
455
00:20:28.325 --> 00:20:29.333
where the rubber hits the road.
456
00:20:31.222 --> 00:20:32.100
We've got all kinds of civil cases,
457
00:20:32.100 --> 00:20:35.493
this Court gets sued nonstop with civil cases.
458
00:20:36.720 --> 00:20:38.020
They always get thrown out
459
00:20:38.960 --> 00:20:40.660
because they're often nonsensical.
460
00:20:41.625 --> 00:20:44.550
Similar things can be filed against police officers,
461
00:20:44.550 --> 00:20:46.570
I mean don't we have to be careful
462
00:20:48.135 --> 00:20:49.583
about where we're going here?
463
00:20:49.583 --> 00:20:54.483
Because otherwise we're gonna be,
464
00:20:55.437 --> 00:20:58.690
we're not gonna be able to have a police officer testify
465
00:20:59.540 --> 00:21:01.863
without a trial on 25 prior incidents.
466
00:21:04.305 --> 00:21:05.138
Where are we going here?
467
00:21:06.162 --> 00:21:09.465
I don't think, Your Honor, that most people, officers have
468
00:21:09.465 --> 00:21:10.470
25 prior incidents.
Oh really?
469
00:21:10.470 --> 00:21:11.610
You don't think most,
470
00:21:11.610 --> 00:21:13.743
you don't think there are civil,
471
00:21:14.962 --> 00:21:17.640
there are little grievances filed in all the time
472
00:21:17.640 --> 00:21:19.503
and there are civil complaints.
473
00:21:20.704 --> 00:21:22.704
Many of which are dismissed out of hand,
474
00:21:23.583 --> 00:21:25.963
class action suits that we gotta wrestle with?
475
00:21:25.963 --> 00:21:28.720
We need line-drawing here
476
00:21:31.039 --> 00:21:33.690
or we're not gonna be able to proceed in this case.
477
00:21:33.690 --> 00:21:36.780
Can I ask you, I'm sorry Justice Kafker.
478
00:21:36.780 --> 00:21:38.427
I can chance with it.
479
00:21:38.427 --> 00:21:42.630
Can we ask, where do we draw lines in civil cases
480
00:21:42.630 --> 00:21:44.400
on the hard part?
481
00:21:44.400 --> 00:21:47.360
When you're sitting,
482
00:21:47.360 --> 00:21:48.601
as should it come into evidence
483
00:21:48.601 --> 00:21:49.830
or whether it should even be disclosed?
484
00:21:49.830 --> 00:21:54.299
I get the disclosure issue and we've talked about that.
485
00:21:54.299 --> 00:21:56.764
I'm much more worried about the second part of this
486
00:21:56.764 --> 00:22:00.183
and are we going to encourage
487
00:22:00.183 --> 00:22:05.002
kinds of nonsensical complaints against officers as well
488
00:22:05.002 --> 00:22:06.000
because then all of a sudden,
489
00:22:06.000 --> 00:22:11.000
that becomes part of every criminal prosecution too.
490
00:22:11.499 --> 00:22:15.450
Tell us your wishlist of where the line is now
491
00:22:15.450 --> 00:22:16.863
on the second part of this?
492
00:22:17.744 --> 00:22:19.143
On the should it be admissible?
493
00:22:19.143 --> 00:22:20.141
Yeah.
494
00:22:20.141 --> 00:22:21.922
I think that the line there is already drawn
495
00:22:21.922 --> 00:22:25.350
which is if it's not relevant, if it's not material.
496
00:22:25.350 --> 00:22:26.183
But would you say,
497
00:22:26.183 --> 00:22:30.300
at least in discovery, could it lead to something relevant?
498
00:22:30.300 --> 00:22:33.690
Does it have to be, and what is relevant?
499
00:22:33.690 --> 00:22:37.500
I mean a false arrest can be 18 different things.
500
00:22:37.500 --> 00:22:39.810
A false arrest can be there actually wasn't enough
501
00:22:39.810 --> 00:22:42.570
for reasonable suspicion or a false arrest can be
502
00:22:42.570 --> 00:22:45.720
they made up the claim.
Yes.
503
00:22:45.720 --> 00:22:47.700
A made up one is totally different
504
00:22:47.700 --> 00:22:52.020
from a bad judgment call on reasonable suspicion isn't it?
505
00:22:52.020 --> 00:22:55.159
I agree and I think that judges will understand that.
506
00:22:55.159 --> 00:22:57.992
And I think that for our purposes,
507
00:23:02.361 --> 00:23:04.602
what we really need is to have it.
508
00:23:04.602 --> 00:23:06.670
If we don't have it, we can't have these discussions
509
00:23:06.670 --> 00:23:09.565
about should it come in, should it not come in.
510
00:23:09.565 --> 00:23:10.957
Is it a trial within a trial or do I just say,
511
00:23:10.957 --> 00:23:13.901
"And you were found to have violated."?
512
00:23:13.901 --> 00:23:15.405
Again, I think the easier.
Don't you always win though?
513
00:23:15.405 --> 00:23:17.640
On that, basically.
514
00:23:17.640 --> 00:23:20.313
Just give it to us, then we'll figure out later.
515
00:23:21.802 --> 00:23:24.877
So every time you have a wishlist and you say,
516
00:23:24.877 --> 00:23:27.514
"Ah we're not saying it's admissible
517
00:23:27.514 --> 00:23:29.175
"but you have to come and find it."
518
00:23:29.175 --> 00:23:30.390
Then we have these discovery obligations
519
00:23:30.390 --> 00:23:32.220
we're imposing on the Commonwealth.
520
00:23:32.220 --> 00:23:35.787
We say, "Well just give it to them, what's the harm?"
521
00:23:36.901 --> 00:23:38.122
That's the answer?
522
00:23:38.122 --> 00:23:39.120
I agree and I mean,
523
00:23:39.120 --> 00:23:42.363
I think that they are able to do it.
524
00:23:42.363 --> 00:23:44.284
We have these,
525
00:23:44.284 --> 00:23:46.650
that I think believe with the State Police's amicus brief.
526
00:23:46.650 --> 00:23:50.010
There was a provision of some worksheets
527
00:23:50.010 --> 00:23:52.290
that they send to, or questionnaires
528
00:23:52.290 --> 00:23:55.080
that the District Attorney's offices are using.
529
00:23:55.080 --> 00:23:58.344
So it's doable and.
530
00:23:58.344 --> 00:24:00.720
It's been a long time but I remember in federal court
531
00:24:00.720 --> 00:24:03.000
we had questionnaires we would send
532
00:24:03.000 --> 00:24:05.002
local law enforcement authorities
533
00:24:05.002 --> 00:24:06.263
under Giglio obligations, correct.
534
00:24:07.619 --> 00:24:10.378
I believe that there are a lot going on
535
00:24:10.378 --> 00:24:13.533
in federal court that didn't necessarily go along here.
536
00:24:15.724 --> 00:24:17.141
Can I ask you one last question?
537
00:24:17.141 --> 00:24:18.259
The DOJ guidance on this,
538
00:24:18.259 --> 00:24:20.403
do they ask about pending civil lawsuits?
539
00:24:22.820 --> 00:24:24.901
I think they don't, but I'm gonna double check
540
00:24:24.901 --> 00:24:26.423
and be sure.
541
00:24:26.423 --> 00:24:28.470
Because we can't, as we said in grand jury,
542
00:24:28.470 --> 00:24:31.020
tell the DAs to do Giglio lists
543
00:24:31.020 --> 00:24:33.000
but we can tell them what their obligations are,
544
00:24:33.000 --> 00:24:34.650
then they have to comply with it.
545
00:24:36.000 --> 00:24:37.396
That's exactly right.
546
00:24:37.396 --> 00:24:39.542
Thank you Your Honor.
547
00:24:39.542 --> 00:24:40.542
Thank you.
548
00:24:43.524 --> 00:24:44.483
Okay, Attorney Sheppard prep.
549
00:24:47.923 --> 00:24:49.225
Thank you, may it please the Court.
550
00:24:49.225 --> 00:24:50.058
What's wrong with asking?
551
00:24:52.530 --> 00:24:56.290
So, and I think the problem is
552
00:24:57.264 --> 00:24:59.414
that we've conflated asking with disclosure
553
00:25:00.324 --> 00:25:03.145
because the list in In re Grand Jury,
554
00:25:03.145 --> 00:25:06.240
that part of the policy of all of those things,
555
00:25:06.240 --> 00:25:09.943
those are things that the agency must turn over
556
00:25:09.943 --> 00:25:11.201
to the prosecutor.
557
00:25:11.201 --> 00:25:13.124
That's not a list of what gets turned over
558
00:25:13.124 --> 00:25:15.360
to defense counsel.
559
00:25:15.360 --> 00:25:18.330
That information in the Giglio policy
560
00:25:18.330 --> 00:25:20.280
goes to the prosecutor.
561
00:25:20.280 --> 00:25:21.937
The prosecutor then looks at it and says,
562
00:25:21.937 --> 00:25:23.437
"Is this material?
563
00:25:23.437 --> 00:25:25.298
"Is it relevant?"
564
00:25:25.298 --> 00:25:26.701
Well that's kind of dangerous isn't it?
565
00:25:26.701 --> 00:25:27.921
Right.
But that's what,
566
00:25:27.921 --> 00:25:30.153
I mean that's what the federal policy is.
567
00:25:31.050 --> 00:25:32.803
And the federal.
So you want.
568
00:25:32.803 --> 00:25:35.125
Is that consistent with the federal law
569
00:25:35.125 --> 00:25:36.565
that requires the disclosure
570
00:25:36.565 --> 00:25:38.615
of even possibly exculpatory information?
571
00:25:39.818 --> 00:25:41.810
I mean it is because.
You want that obligation?
572
00:25:41.810 --> 00:25:44.193
The obligation to?
573
00:25:45.118 --> 00:25:47.582
To ferret out what you think they deserve?
574
00:25:47.582 --> 00:25:49.818
Right, and isn't that always gonna be looked
575
00:25:49.818 --> 00:25:51.683
through the glean of a prosecutor's eye?
576
00:25:52.662 --> 00:25:55.442
Well, it is our obligation whether we want it to be or not
577
00:25:55.442 --> 00:25:59.643
and we certainly have,
578
00:26:00.521 --> 00:26:03.780
I mean our policy is certainly to disclose
579
00:26:03.780 --> 00:26:05.343
if we're uncertain.
580
00:26:06.304 --> 00:26:07.980
I mean that's our policy.
581
00:26:07.980 --> 00:26:09.840
What is Constitutionally required
582
00:26:09.840 --> 00:26:13.360
and what our policy is are two very different things
583
00:26:14.320 --> 00:26:15.510
because Constitutionally,
584
00:26:15.510 --> 00:26:20.040
and for Article 30 purposes, what this court can require
585
00:26:20.040 --> 00:26:25.040
is, is it material, is it exculpatory in the Brady sense?
586
00:26:26.342 --> 00:26:29.541
If it's not, we can still turn it over at our discretion
587
00:26:29.541 --> 00:26:31.198
and we do, most of the time.
588
00:26:31.198 --> 00:26:32.031
I will tell you that a lot of the times
589
00:26:32.031 --> 00:26:34.110
when we've made these disclosures,
590
00:26:34.110 --> 00:26:37.207
we've actually gotten motions after the fact saying,
591
00:26:37.207 --> 00:26:39.057
"Tell us why this is exculpatory."
592
00:26:39.984 --> 00:26:42.120
And our answer is it's not, we just turned it over
593
00:26:42.120 --> 00:26:46.740
because really, the wishlist is let them you know,
594
00:26:46.740 --> 00:26:49.110
let them have it so they can decide.
595
00:26:49.110 --> 00:26:53.670
The wishlist is let us fail to turn something over
596
00:26:53.670 --> 00:26:55.537
so that then they come back and say,
597
00:26:55.537 --> 00:26:56.987
"Oh you didn't turn it over."
598
00:26:57.863 --> 00:27:00.180
Why is it, going back to Justice Gaziano's question,
599
00:27:00.180 --> 00:27:04.383
so onerous on the prosecutor to ask their police witnesses,
600
00:27:05.440 --> 00:27:08.298
"Is there a pending civil lawsuit against you?"
601
00:27:08.298 --> 00:27:10.080
So let me take you down to the Springfield District Court
602
00:27:10.080 --> 00:27:12.183
where a prosecutor is on trial.
603
00:27:13.885 --> 00:27:18.140
He or she has a case list of maybe 12 cases
604
00:27:18.140 --> 00:27:19.320
that are on trial that day.
605
00:27:19.320 --> 00:27:20.520
Each of those cases,
606
00:27:20.520 --> 00:27:23.730
probably has seven police officers
607
00:27:23.730 --> 00:27:27.660
or eight police officers listed on the police report.
608
00:27:27.660 --> 00:27:30.750
They're probably not going to actually meet
609
00:27:30.750 --> 00:27:32.550
with more than two of them,
610
00:27:32.550 --> 00:27:34.650
probably only put on one or two for trial.
611
00:27:35.820 --> 00:27:39.450
We have to pull 20, 30 police officers off the street
612
00:27:39.450 --> 00:27:41.963
and have this conversation with them?
613
00:27:41.963 --> 00:27:42.962
It's not practical.
614
00:27:42.962 --> 00:27:43.882
Well that's not really,
615
00:27:43.882 --> 00:27:45.600
that's not really an accurate lens
616
00:27:45.600 --> 00:27:47.670
because you're saying that obligation
617
00:27:47.670 --> 00:27:50.010
springs at the time of trial.
618
00:27:50.010 --> 00:27:52.590
I mean, from the time of the arraignment,
619
00:27:52.590 --> 00:27:55.680
the District Attorney's office is going to have the one one
620
00:27:55.680 --> 00:27:57.360
and see all of the officers
621
00:27:57.360 --> 00:27:58.960
that are involved in this collar
622
00:27:59.886 --> 00:28:00.870
and all of that stuff could be asked
623
00:28:00.870 --> 00:28:04.170
long before we get to the day of trial.
624
00:28:04.170 --> 00:28:05.320
So I don't follow that.
625
00:28:06.420 --> 00:28:10.884
I mean, that's the thing.
626
00:28:10.884 --> 00:28:12.907
Is the only time that we're able to meet
627
00:28:12.907 --> 00:28:15.210
with these police officers is right before trial.
628
00:28:15.210 --> 00:28:18.480
That same person who has 12 cases on for that week
629
00:28:18.480 --> 00:28:22.803
or that day has a caseload of 3, 400 cases.
630
00:28:23.687 --> 00:28:24.520
Well that just suggests
631
00:28:24.520 --> 00:28:27.120
maybe there should be a policy about tracking
632
00:28:27.120 --> 00:28:28.890
how you disclose that.
633
00:28:28.890 --> 00:28:32.493
It doesn't mean that it would be onerous for you to ask.
634
00:28:33.342 --> 00:28:36.365
It's just a matter of how you keep track of the information.
635
00:28:36.365 --> 00:28:39.070
Well we do keep track of the information and we have,
636
00:28:39.070 --> 00:28:43.590
when we discover information that we think
637
00:28:43.590 --> 00:28:46.020
might be potentially exculpatory or frankly,
638
00:28:46.020 --> 00:28:48.390
even when it's not potentially exculpatory
639
00:28:48.390 --> 00:28:51.630
but we don't want to be accused of not turning it over.
640
00:28:51.630 --> 00:28:53.940
We have.
So if you stumble upon
641
00:28:53.940 --> 00:28:58.053
any relevantly exculpatory information then you have what?
642
00:28:59.143 --> 00:28:59.976
We do have a database
643
00:28:59.976 --> 00:29:02.664
where we keep all of this exculpatory information.
644
00:29:02.664 --> 00:29:03.914
Why can't you just ask?
645
00:29:06.705 --> 00:29:08.626
I get it that on the eve of trial,
646
00:29:08.626 --> 00:29:10.230
maybe it's hard to pull, as you say,
647
00:29:10.230 --> 00:29:11.550
officers off the street
648
00:29:11.550 --> 00:29:15.153
but there must be another way?
649
00:29:16.022 --> 00:29:17.803
Well, so there is another way
650
00:29:17.803 --> 00:29:19.890
and it doesn't work under our state system.
651
00:29:19.890 --> 00:29:22.366
Can you explain that, that would be helpful.
652
00:29:22.366 --> 00:29:24.540
So under the Giglio policy,
653
00:29:24.540 --> 00:29:27.201
the agency reports to the DOJ,
654
00:29:27.201 --> 00:29:29.507
the DOJ is run by the Attorney General.
655
00:29:29.507 --> 00:29:32.610
Everybody reports to the Attorney General.
656
00:29:32.610 --> 00:29:35.190
If I go to a police officer
657
00:29:35.190 --> 00:29:37.470
or to a police department and say,
658
00:29:37.470 --> 00:29:39.480
unless court said and want us,
659
00:29:39.480 --> 00:29:41.879
if I go to the police and say,
660
00:29:41.879 --> 00:29:42.712
"Give me your IA files."
661
00:29:42.712 --> 00:29:45.723
They can tell me no and there's nothing I can do about that.
662
00:29:47.345 --> 00:29:49.680
And so we don't, the District Attorney's office
663
00:29:49.680 --> 00:29:51.570
doesn't have the authority
664
00:29:51.570 --> 00:29:53.620
over any of the police departments
665
00:29:54.462 --> 00:29:57.001
to require them to turn over any of this information.
666
00:29:57.001 --> 00:29:58.110
You have the authority over the prosecution.
667
00:29:58.110 --> 00:29:59.745
Correct.
668
00:29:59.745 --> 00:30:02.400
So anyone on, anyone in our office.
669
00:30:02.400 --> 00:30:04.933
And you have the authority as to who to call as witnesses?
670
00:30:04.933 --> 00:30:05.766
Correct.
671
00:30:07.326 --> 00:30:08.280
That's the hammer right?
672
00:30:08.280 --> 00:30:09.600
Well, right.
673
00:30:09.600 --> 00:30:12.697
So essentially, we're gonna have to say,
674
00:30:12.697 --> 00:30:14.857
"Well if you don't turn it over,
675
00:30:14.857 --> 00:30:17.100
"we're not gonna prosecute your cases."?
676
00:30:17.100 --> 00:30:19.860
That's not in the public interest.
677
00:30:19.860 --> 00:30:22.230
We can't, we can't have a policy like that
678
00:30:22.230 --> 00:30:24.886
because these cases are,
679
00:30:24.886 --> 00:30:26.866
you know some of them are serious felony cases.
680
00:30:26.866 --> 00:30:27.699
We can't hold that,
681
00:30:27.699 --> 00:30:30.120
we would be derelict in our responsibility.
682
00:30:30.120 --> 00:30:33.605
Or if you don't answer discovery,
683
00:30:33.605 --> 00:30:36.240
we're not gonna call you Officer Smith, as a witness.
684
00:30:36.240 --> 00:30:37.830
Right, but again,
685
00:30:37.830 --> 00:30:40.173
that's not, that's not a,
686
00:30:42.264 --> 00:30:45.570
we would be giving up our responsibility
687
00:30:45.570 --> 00:30:47.940
to protect the public in doing that.
688
00:30:47.940 --> 00:30:52.320
So you think the price for that responsibility
689
00:30:52.320 --> 00:30:56.463
is that the defendant is not entitled to Brady information?
690
00:30:57.778 --> 00:30:59.190
Well the defendant isn't?
You don't ask for it.
691
00:30:59.190 --> 00:31:02.100
Unless you stumble upon it, as you said earlier,
692
00:31:02.100 --> 00:31:05.640
you don't ask for it because it would be too onerous?
693
00:31:05.640 --> 00:31:07.040
More important things to do.
694
00:31:08.383 --> 00:31:09.544
Well, no.
And that's not,
695
00:31:09.544 --> 00:31:11.007
that's not really true right?
696
00:31:11.007 --> 00:31:13.140
You do ask for certain things
697
00:31:13.140 --> 00:31:14.861
and you don't ask for other things.
698
00:31:14.861 --> 00:31:17.166
We ask for Brady information.
699
00:31:17.166 --> 00:31:20.342
I mean I haven't read the case we're hearing on Wednesday
700
00:31:20.342 --> 00:31:23.627
involving the Springfield but my understanding is
701
00:31:23.627 --> 00:31:26.007
there's a policy in place to produce certain types of things
702
00:31:26.007 --> 00:31:28.203
and the question is, what does it cover?
703
00:31:29.827 --> 00:31:31.844
So you do have a policy right?
704
00:31:31.844 --> 00:31:33.522
That's correct, we have a policy
705
00:31:33.522 --> 00:31:37.560
and we have been asking officers these questions
706
00:31:37.560 --> 00:31:40.803
and it turns up with no Brady information.
707
00:31:42.063 --> 00:31:43.201
We might turn it,
708
00:31:43.201 --> 00:31:46.273
we sometimes turn it over anyway but we.
709
00:31:47.125 --> 00:31:49.204
You don't say to them, "Give me Brady."?
710
00:31:49.204 --> 00:31:50.037
No.
You do
711
00:31:50.037 --> 00:31:51.453
a modified wishlist?
712
00:31:52.385 --> 00:31:54.030
Or a modified questionnaire.
Well we've been ordered
713
00:31:54.030 --> 00:31:57.930
based on footnote 16 to ask those questions.
714
00:31:57.930 --> 00:32:02.002
Now we get a lot of responses from police officers which is,
715
00:32:02.002 --> 00:32:02.835
"What does that even mean?"
716
00:32:02.835 --> 00:32:05.073
And our answer is, we don't know.
717
00:32:06.427 --> 00:32:07.863
I'm sorry, footnote 16?
718
00:32:09.198 --> 00:32:10.620
From the Appeals Court decision in this case
719
00:32:10.620 --> 00:32:13.890
but there have been judges issuing orders saying you know,
720
00:32:13.890 --> 00:32:16.380
ask your police officers these questions and we do
721
00:32:16.380 --> 00:32:18.803
and they go, "What does that even mean?"
722
00:32:18.803 --> 00:32:20.446
And we say we don't know, that's just.
723
00:32:20.446 --> 00:32:22.523
Which word don't you understand in footnote 16?
724
00:32:23.685 --> 00:32:24.863
Could I jump in at some point?
725
00:32:25.920 --> 00:32:27.043
You go ahead and answer that
726
00:32:27.043 --> 00:32:28.973
but I would like to ask a question afterward.
727
00:32:31.426 --> 00:32:32.730
Okay, so which word in footnote 16
728
00:32:32.730 --> 00:32:34.143
do you not understand?
729
00:32:35.025 --> 00:32:38.403
So what an informal external charge of misconduct is.
730
00:32:39.385 --> 00:32:42.621
I think that goes back to Justice Gaziano's example
731
00:32:42.621 --> 00:32:45.210
of you know,
732
00:32:45.210 --> 00:32:47.520
he gets pulled over, he goes in and complains
733
00:32:47.520 --> 00:32:49.203
the cop was mean to me.
734
00:32:50.389 --> 00:32:54.420
That may be an internal informal charge of misconduct.
735
00:32:54.420 --> 00:32:58.837
Is somebody driving by a police officer saying,
736
00:32:58.837 --> 00:33:00.941
"Oh that guy's a jerk."
737
00:33:00.941 --> 00:33:03.120
Is that an informal external charge?
738
00:33:03.120 --> 00:33:04.670
I just don't know what that is.
739
00:33:06.021 --> 00:33:07.140
So I can't tell my police officers
740
00:33:07.140 --> 00:33:10.470
what they need to tell me if I can't tell them
741
00:33:10.470 --> 00:33:11.883
what that is.
742
00:33:12.845 --> 00:33:15.236
You know, I know what an IA investigation is.
743
00:33:15.236 --> 00:33:16.244
Okay.
And they know
744
00:33:16.244 --> 00:33:17.581
what an IA investigation is.
745
00:33:17.581 --> 00:33:20.010
A lot of times they don't know it's going on.
746
00:33:20.010 --> 00:33:23.485
So asking them doesn't get you the answer.
747
00:33:23.485 --> 00:33:26.190
When you say a lot of times they don't know it's going on,
748
00:33:26.190 --> 00:33:27.093
what do you mean?
749
00:33:27.967 --> 00:33:29.701
Pending IA investigations,
750
00:33:29.701 --> 00:33:32.310
the police officer is not necessarily made aware
751
00:33:32.310 --> 00:33:34.233
of a pending IA investigation.
752
00:33:35.250 --> 00:33:39.263
They will be made aware once there's a finding
753
00:33:39.263 --> 00:33:42.450
or at a certain stage in the investigation
754
00:33:42.450 --> 00:33:44.070
but in the initial stages,
755
00:33:44.070 --> 00:33:46.113
they might not actually be aware of it.
756
00:33:47.181 --> 00:33:50.190
So, and as this Court said in Juanus, we don't have IA.
757
00:33:50.190 --> 00:33:53.520
We don't have those files, the cities have those files
758
00:33:53.520 --> 00:33:55.070
and they won't give them to us.
759
00:33:56.160 --> 00:33:59.381
I mean we've tried, we try to get them
760
00:33:59.381 --> 00:34:01.930
and they often say no we can't have them
761
00:34:03.342 --> 00:34:04.526
and there's nothing we can do about that.
762
00:34:04.526 --> 00:34:05.359
Justice Cypher?
763
00:34:07.905 --> 00:34:09.623
Are you ready for my question now?
764
00:34:09.623 --> 00:34:10.925
Yes, thank you.
765
00:34:10.925 --> 00:34:14.133
I have queries for a couple things.
766
00:34:15.662 --> 00:34:17.860
Counsel, what is your reasoning
767
00:34:18.783 --> 00:34:23.378
in writing the brief that you agree
768
00:34:23.378 --> 00:34:25.366
that you were in control and custody
769
00:34:25.366 --> 00:34:28.500
of this particular information?
770
00:34:28.500 --> 00:34:29.825
[Attorney Sheppard] I'm sorry, I couldn't understand.
771
00:34:29.825 --> 00:34:32.707
What's the?
You can't hear me?
772
00:34:32.707 --> 00:34:35.940
Yeah what's the belief that you are under control,
773
00:34:35.940 --> 00:34:36.780
custody of this information?
774
00:34:36.780 --> 00:34:37.930
Correct Justice Cypher?
775
00:34:39.124 --> 00:34:41.460
Right, why did they believe that?
776
00:34:41.460 --> 00:34:44.865
What was the narrative in there?
777
00:34:44.865 --> 00:34:46.822
The reason they said that.
778
00:34:46.822 --> 00:34:48.171
So I'm sorry.
Why did you say,
779
00:34:48.171 --> 00:34:51.150
or not say if you were in control and custody
780
00:34:51.150 --> 00:34:53.430
of this information in this case?
781
00:34:53.430 --> 00:34:56.973
So I mean,
782
00:34:57.845 --> 00:35:02.263
because the Officer was part of the prosecution team,
783
00:35:02.263 --> 00:35:06.780
in theory we would have control of this information.
784
00:35:06.780 --> 00:35:10.523
Certainly there are courts that have said
785
00:35:10.523 --> 00:35:12.721
that we don't have this information.
786
00:35:12.721 --> 00:35:17.721
Wait, an officer on the prosecution team
787
00:35:17.850 --> 00:35:20.340
knows that there's a pending civil lawsuit
788
00:35:20.340 --> 00:35:23.621
and you say there's courts that say
789
00:35:23.621 --> 00:35:27.573
that that's not within the prosecution team's control?
790
00:35:28.676 --> 00:35:29.509
That's correct.
791
00:35:29.509 --> 00:35:32.373
There's a federal case cited within my brief.
792
00:35:33.520 --> 00:35:35.270
Is that the law in Massachusetts?
793
00:35:37.046 --> 00:35:41.447
The law in Massachusetts is not settled on this point
794
00:35:41.447 --> 00:35:43.050
as to you know, what.
795
00:35:43.050 --> 00:35:46.980
We certainly know what the police officer knows
796
00:35:46.980 --> 00:35:48.723
with regards to the case.
797
00:35:50.061 --> 00:35:52.500
But asking, and it's the case where they say
798
00:35:52.500 --> 00:35:55.230
it's one thing to ask your police officers
799
00:35:55.230 --> 00:35:57.985
for potentially exculpatory information
800
00:35:57.985 --> 00:35:59.850
in the underlying case.
801
00:35:59.850 --> 00:36:04.020
It's another thing to ask us to conduct
802
00:36:04.020 --> 00:36:06.060
complete disciplinary inquiries
803
00:36:06.060 --> 00:36:08.973
on every person who has touched this case.
804
00:36:09.862 --> 00:36:11.550
But that seems a far cry from asking the officer
805
00:36:11.550 --> 00:36:14.283
if there's a pending civil lawsuit against him or her.
806
00:36:15.963 --> 00:36:17.913
Well, but, I mean.
807
00:36:18.865 --> 00:36:19.864
We're not asking you know,
808
00:36:19.864 --> 00:36:24.342
"Hey can you see if Moynahan ever committed something?"
809
00:36:24.342 --> 00:36:25.297
It's just, "Officer Moynahan,
810
00:36:25.297 --> 00:36:29.040
"do you know if there's a civil lawsuit against you?"
811
00:36:29.040 --> 00:36:32.362
Well again, there are a lot of frivolous lawsuits.
812
00:36:32.362 --> 00:36:34.290
I mean, you didn't pay your credit card bill
813
00:36:34.290 --> 00:36:36.304
or you didn't pay your phone bill
814
00:36:36.304 --> 00:36:38.742
and Verizon's brought you into small claims court.
815
00:36:38.742 --> 00:36:40.537
That's a civil lawsuit.
816
00:36:40.537 --> 00:36:41.604
I take it we don't have to?
817
00:36:41.604 --> 00:36:43.966
Oh no, related to your conduct as an officer.
818
00:36:43.966 --> 00:36:46.346
I'm sorry, that's a good point Justice Kafker.
819
00:36:46.346 --> 00:36:49.365
Okay, I believe that this went one.
820
00:36:49.365 --> 00:36:51.704
Could that be argued that it's related
821
00:36:51.704 --> 00:36:53.161
to the conduct of an officer
822
00:36:53.161 --> 00:36:58.161
in those responsible have been following regulations?
823
00:36:58.242 --> 00:36:59.483
I'm sorry, I'm having really trouble.
824
00:37:01.402 --> 00:37:03.358
That's okay, you can skip that question.
825
00:37:03.358 --> 00:37:04.560
That was a different point.
826
00:37:04.560 --> 00:37:06.453
Let me ask you another question.
827
00:37:07.422 --> 00:37:11.505
Is there, okay what about your credibility
828
00:37:11.505 --> 00:37:12.504
of the witnesses?
829
00:37:12.504 --> 00:37:14.784
Could this be and should this be extended to.
830
00:37:14.784 --> 00:37:16.376
Justice Cypher,
831
00:37:16.376 --> 00:37:20.820
maybe if you pull away from the microphone a little bit.
832
00:37:20.820 --> 00:37:22.520
All right, would this apply
833
00:37:23.701 --> 00:37:25.590
to your civilian witnesses?
834
00:37:25.590 --> 00:37:26.883
What about?
835
00:37:26.883 --> 00:37:28.533
Sorry, to our civilian witnesses?
836
00:37:29.564 --> 00:37:33.219
Would the argument that the next step of this be
837
00:37:33.219 --> 00:37:34.882
that you should investigate or ask
838
00:37:34.882 --> 00:37:38.707
all your civilian witnesses the same questions?
839
00:37:38.707 --> 00:37:41.186
I mean it is,
840
00:37:41.186 --> 00:37:44.565
although they're even less under our control
841
00:37:44.565 --> 00:37:46.080
and they're not part of the prosecution team
842
00:37:46.080 --> 00:37:49.530
and I think that is sort of the slippery slope argument
843
00:37:49.530 --> 00:37:53.100
that you know,
844
00:37:53.100 --> 00:37:54.573
that we'll be having to do,
845
00:37:55.481 --> 00:37:58.860
have the same conversations with our witnesses which,
846
00:37:58.860 --> 00:38:01.103
and I would, you know,
847
00:38:01.103 --> 00:38:02.130
I'd like to go back to the.
848
00:38:02.130 --> 00:38:05.700
But you pointed out, they're not part of your team.
849
00:38:05.700 --> 00:38:06.533
Well right.
850
00:38:09.061 --> 00:38:10.230
So it seems like
851
00:38:10.230 --> 00:38:11.820
there could be a limiting principle right?
852
00:38:11.820 --> 00:38:15.174
You know credibility calls about people on your team,
853
00:38:15.174 --> 00:38:16.500
related to their conduct as officers.
854
00:38:16.500 --> 00:38:18.584
Right, but I think the limiting principle
855
00:38:18.584 --> 00:38:20.760
is more than that.
856
00:38:20.760 --> 00:38:25.760
Because police officer misconduct is a huge category.
857
00:38:26.490 --> 00:38:29.467
What we're talking about here is in
858
00:38:29.467 --> 00:38:33.270
the very limited exception of police officer misconduct
859
00:38:33.270 --> 00:38:35.770
that relates to their credibility
860
00:38:36.760 --> 00:38:37.823
and only to their credibility.
861
00:38:38.800 --> 00:38:39.633
And I would point out.
862
00:38:39.633 --> 00:38:44.181
Grand jury's a little more open ended than that right?
863
00:38:44.181 --> 00:38:47.080
I mean it starts out by talking about credibility
864
00:38:47.080 --> 00:38:48.924
and then it moves into misconduct.
865
00:38:48.924 --> 00:38:50.850
It's hard to know whether it's misconduct
866
00:38:50.850 --> 00:38:53.970
directly related to credibility or broader right?
867
00:38:53.970 --> 00:38:55.703
Well, right.
868
00:38:55.703 --> 00:38:56.880
So I think that it's a little ambiguous
869
00:38:56.880 --> 00:38:59.580
but what I would go back to is our rule of evidence
870
00:38:59.580 --> 00:39:04.420
which is Giglio is based on the federal rule, 608B
871
00:39:05.300 --> 00:39:07.740
which says specific instances of misconduct
872
00:39:07.740 --> 00:39:10.350
relating to the officer's truthfulness
873
00:39:10.350 --> 00:39:13.470
are admissible on cross-examination
874
00:39:13.470 --> 00:39:16.837
and there's no trial within a trial.
875
00:39:16.837 --> 00:39:17.834
Because if they deny it,
876
00:39:17.834 --> 00:39:20.724
extrinsic evidence doesn't come in, it's done.
877
00:39:20.724 --> 00:39:23.250
But that's on that very limited issue
878
00:39:23.250 --> 00:39:25.563
of character for truthfulness.
879
00:39:26.523 --> 00:39:27.661
Now this court.
880
00:39:27.661 --> 00:39:29.443
I have one more question if we have a moment.
881
00:39:29.443 --> 00:39:34.443
And that is what is the point at this point
882
00:39:36.117 --> 00:39:37.117
of having the status
883
00:39:38.063 --> 00:39:39.270
between the specific request
884
00:39:39.270 --> 00:39:41.523
and a general request for discovery?
885
00:39:43.029 --> 00:39:44.279
Is that in at this point?
886
00:39:46.577 --> 00:39:47.477
I'm sorry, it's.
887
00:39:48.315 --> 00:39:49.614
I'm having trouble hearing.
888
00:39:49.614 --> 00:39:50.910
The distinction between a general request for discovery
889
00:39:50.910 --> 00:39:54.180
and a specific request on the standard of review.
890
00:39:54.180 --> 00:39:56.820
Is that even a thing anymore basically,
891
00:39:56.820 --> 00:39:58.980
given this widespread disclosure?
892
00:39:58.980 --> 00:40:00.855
Well, right.
893
00:40:00.855 --> 00:40:02.280
And I mean, I think that the reason
894
00:40:02.280 --> 00:40:06.495
that you have the specific request versus general request
895
00:40:06.495 --> 00:40:08.273
is I don't know what the defense strategy is.
896
00:40:09.240 --> 00:40:12.487
I can try and guess but if you tell me,
897
00:40:12.487 --> 00:40:14.767
"My case is about lying police officers,
898
00:40:14.767 --> 00:40:16.954
"I want to know if your cops
899
00:40:16.954 --> 00:40:18.810
"have ever been found responsible for lying."
900
00:40:18.810 --> 00:40:20.703
Okay that I can ask about.
901
00:40:21.859 --> 00:40:24.930
But if it's just a general fishing expedition,
902
00:40:24.930 --> 00:40:28.710
I mean I don't know what rock I'm supposed to look under
903
00:40:28.710 --> 00:40:30.960
but I do know what's admissible
904
00:40:30.960 --> 00:40:33.720
and what's not admissible and none of this.
905
00:40:33.720 --> 00:40:35.570
I mean we have the Buchanan exception
906
00:40:36.697 --> 00:40:39.090
which I suggest that it may be time for a retirement
907
00:40:39.090 --> 00:40:40.620
given that it was based on the idea
908
00:40:40.620 --> 00:40:42.720
that we don't trust rape victims.
909
00:40:42.720 --> 00:40:45.210
So it's a little questionable
910
00:40:45.210 --> 00:40:47.370
whether that should even still stand
911
00:40:47.370 --> 00:40:48.750
but you have this,
912
00:40:48.750 --> 00:40:51.976
okay so now we don't also trust police officers.
913
00:40:51.976 --> 00:40:54.296
That's the second category under Buchanan,
914
00:40:54.296 --> 00:40:56.039
it's rape victims and police officers.
915
00:40:56.039 --> 00:40:59.697
But we don't have this rule of evidence,
916
00:40:59.697 --> 00:41:02.280
we don't allow prior instances
917
00:41:02.280 --> 00:41:07.280
of misconduct that relate to an individual's truthfulness,
918
00:41:09.037 --> 00:41:10.296
you're not allowed to ask about that.
919
00:41:10.296 --> 00:41:11.579
Unless there's a conviction.
920
00:41:11.579 --> 00:41:12.480
If there's a conviction it comes in,
921
00:41:12.480 --> 00:41:15.030
but absent of criminal conviction,
922
00:41:15.030 --> 00:41:17.836
it's not admissible under our rules of evidence.
923
00:41:17.836 --> 00:41:20.130
It's not likely to lead to admissible evidence.
924
00:41:20.130 --> 00:41:22.350
If we have a police officer.
925
00:41:22.350 --> 00:41:24.161
Wait, there's a difference.
926
00:41:24.161 --> 00:41:26.910
Between disclosing something
927
00:41:26.910 --> 00:41:29.697
that might lead to admissible evidence
928
00:41:29.697 --> 00:41:31.647
and the admissibility of that evidence.
929
00:41:32.711 --> 00:41:33.859
There is.
That we should
930
00:41:33.859 --> 00:41:37.323
collapse the two because we don't yet have a 608B?
931
00:41:38.896 --> 00:41:39.870
And that Buchanan should be retired
932
00:41:39.870 --> 00:41:42.873
because rape victims are similar to police officers?
933
00:41:44.392 --> 00:41:46.410
Well what I'm saying is that we should,
934
00:41:46.410 --> 00:41:49.890
one of the, I like the language from People v. Garrett
935
00:41:49.890 --> 00:41:54.570
which the amici relied on for a different proposition
936
00:41:54.570 --> 00:41:56.460
and then People V. Smith
937
00:41:56.460 --> 00:41:58.770
which stands for the unremarkable proposition
938
00:41:58.770 --> 00:42:00.270
that law enforcement witnesses
939
00:42:00.270 --> 00:42:03.900
should be treated in the same manner and the same
940
00:42:03.900 --> 00:42:05.520
as any other prosecution witness
941
00:42:05.520 --> 00:42:07.800
for the purposes of cross examination.
942
00:42:07.800 --> 00:42:12.150
So my point is we don't allow anybody else
943
00:42:12.150 --> 00:42:15.090
other than rape victims to be cross examined
944
00:42:15.090 --> 00:42:19.914
on these sort of prior false allegations.
945
00:42:19.914 --> 00:42:23.580
There's a small window in re Grand Jury case though right?
946
00:42:23.580 --> 00:42:24.920
Right.
That says
947
00:42:24.920 --> 00:42:25.950
in a judge's discretion,
948
00:42:25.950 --> 00:42:28.530
this bad act evidence can come in right?
949
00:42:28.530 --> 00:42:30.030
It can come in, right.
950
00:42:30.030 --> 00:42:31.800
So if it is.
951
00:42:31.800 --> 00:42:33.750
We have, we don't have 608B
952
00:42:33.750 --> 00:42:38.750
but there's a sliver of it in re Grand Jury case.
953
00:42:39.740 --> 00:42:42.000
Right, so if it relates to the officer's character
954
00:42:42.000 --> 00:42:43.675
for truthfulness.
955
00:42:43.675 --> 00:42:44.520
If it is an allegation
956
00:42:44.520 --> 00:42:47.270
that they have filed a false police report
957
00:42:47.270 --> 00:42:48.103
that is sustained.
958
00:42:48.103 --> 00:42:52.560
If there is a claim that they have committed perjury,
959
00:42:52.560 --> 00:42:54.990
obviously that's exculpatory.
960
00:42:54.990 --> 00:42:58.500
But that an officer, and in this case,
961
00:42:58.500 --> 00:43:03.210
if you read the federal trial, the federal criminal trial,
962
00:43:03.210 --> 00:43:04.980
civil trial rather.
963
00:43:04.980 --> 00:43:07.200
Basically the jury was instructed
964
00:43:07.200 --> 00:43:11.220
that furtive movements are insufficient
965
00:43:11.220 --> 00:43:16.220
for a pat frisk or an exit order under Massachusetts law.
966
00:43:16.560 --> 00:43:17.640
They were not told that
967
00:43:17.640 --> 00:43:20.618
unless it's consistent with retrieving an object.
968
00:43:20.618 --> 00:43:22.980
So the jury here basically found
969
00:43:22.980 --> 00:43:26.280
that he issued an exist order without reasonable suspicion
970
00:43:26.280 --> 00:43:28.863
and arrested him without probable cause.
971
00:43:29.700 --> 00:43:32.550
Based on the instructions, it was a very close case.
972
00:43:32.550 --> 00:43:35.467
This court decides cases like that all the time where,
973
00:43:35.467 --> 00:43:37.927
"Well the officer thought they were doing the right thing.
974
00:43:37.927 --> 00:43:40.355
"Turns out they didn't have it."
975
00:43:40.355 --> 00:43:43.530
That doesn't relate to their character for truthfulness.
976
00:43:43.530 --> 00:43:46.800
But that's still your view of it
977
00:43:46.800 --> 00:43:50.056
because that doesn't take into account
978
00:43:50.056 --> 00:43:54.990
the other side of what was argued beforehand.
979
00:43:54.990 --> 00:43:58.770
Because if you don't disclose this case,
980
00:43:58.770 --> 00:44:01.530
they can't look at the underlying case,
981
00:44:01.530 --> 00:44:05.040
the underlying criminal case that gave rise to it
982
00:44:05.040 --> 00:44:07.470
and if you then marry
983
00:44:07.470 --> 00:44:10.890
the potentially lead to admissible evidence,
984
00:44:10.890 --> 00:44:13.120
that is the part where they get to go home
985
00:44:14.158 --> 00:44:16.830
and look at the transcript of the underlying criminal case
986
00:44:16.830 --> 00:44:21.830
and in fact, get evidence that might be relevant
987
00:44:22.033 --> 00:44:23.400
to the character for truthfulness.
988
00:44:23.400 --> 00:44:24.930
And they can't get there
989
00:44:24.930 --> 00:44:29.930
if you don't disclose that they have this open civil case.
990
00:44:32.876 --> 00:44:34.197
You can't, you just can't get there.
991
00:44:34.197 --> 00:44:35.303
They can't know what they don't know.
992
00:44:36.257 --> 00:44:37.530
Right, and we can't know what we don't know.
993
00:44:37.530 --> 00:44:38.943
You can know if you ask.
994
00:44:41.354 --> 00:44:43.854
I mean, one, we can ask but we don't always get.
995
00:44:45.293 --> 00:44:47.400
Sure, I mean people can always not tell you the truth
996
00:44:47.400 --> 00:44:49.650
but what we're talking about is whether or not
997
00:44:49.650 --> 00:44:51.420
you should have an obligation to ask
998
00:44:51.420 --> 00:44:53.193
and what might lead there from.
999
00:44:54.373 --> 00:44:55.206
But if we have an obligation to ask
1000
00:44:55.206 --> 00:44:57.912
and we ask and we don't get,
1001
00:44:57.912 --> 00:44:58.745
they're more on the hook for it
1002
00:44:58.745 --> 00:45:01.143
when this is never coming in.
1003
00:45:02.275 --> 00:45:03.108
This stuff is,
1004
00:45:03.108 --> 00:45:04.816
this was never coming in,
1005
00:45:04.816 --> 00:45:06.258
the judge was never gonna let in.
1006
00:45:06.258 --> 00:45:08.160
But then you got the prejudice argument.
1007
00:45:08.160 --> 00:45:10.320
Well right.
The question is
1008
00:45:10.320 --> 00:45:12.678
whether or not you should ask.
1009
00:45:12.678 --> 00:45:14.496
That's the question before us.
1010
00:45:14.496 --> 00:45:16.399
Well, I think that's difficult
1011
00:45:16.399 --> 00:45:18.030
because the question for.
Because you're suggesting
1012
00:45:18.030 --> 00:45:21.330
that your officers will lie when you ask them
1013
00:45:21.330 --> 00:45:24.453
which I don't know if that's really what you're.
1014
00:45:24.453 --> 00:45:25.830
No, my argument is sometimes they don't know
1015
00:45:25.830 --> 00:45:27.600
and sometimes they don't,
1016
00:45:27.600 --> 00:45:30.360
sometimes they don't remember because it's been 20 years
1017
00:45:30.360 --> 00:45:32.339
and then there's that,
1018
00:45:32.339 --> 00:45:34.320
what are we doing at that point?
1019
00:45:34.320 --> 00:45:38.214
I mean a criminal conviction that's over 10 years old,
1020
00:45:38.214 --> 00:45:40.234
even if it's a felony doesn't come in.
1021
00:45:40.234 --> 00:45:43.034
Okay I'm gonna say we've fleshed this out pretty well.
1022
00:45:44.216 --> 00:45:45.049
Thank you.
All right, thank you.
1023
00:45:45.049 --> 00:45:47.493
And I'm gonna ask Attorney Hanley to come on up.
1024
00:45:56.430 --> 00:45:59.520
Good morning, Chief Justice Budd, members of the Court.
1025
00:45:59.520 --> 00:46:01.560
Thank you on behalf of the State Police Association
1026
00:46:01.560 --> 00:46:04.170
of Massachusetts and the President who's here today
1027
00:46:04.170 --> 00:46:06.070
for allowing me to present today
1028
00:46:06.915 --> 00:46:08.724
and with my colleague Beth Keeley.
1029
00:46:08.724 --> 00:46:12.330
I'd like to, rather than go to what I prepared to say,
1030
00:46:12.330 --> 00:46:14.310
I'd like to try to jump into some of the questions
1031
00:46:14.310 --> 00:46:16.239
that I've heard already.
1032
00:46:16.239 --> 00:46:18.150
So in terms of creating a bright line rule,
1033
00:46:18.150 --> 00:46:21.960
I'd suggest that a proven allegation of misconduct,
1034
00:46:21.960 --> 00:46:23.879
wherever it was proven.
1035
00:46:23.879 --> 00:46:24.712
Whether it's to the POST Commission,
1036
00:46:24.712 --> 00:46:26.970
in a civil lawsuit, in a criminal lawsuit
1037
00:46:26.970 --> 00:46:28.770
or in Internal Affairs,
1038
00:46:28.770 --> 00:46:31.500
that's reasonable to look for.
1039
00:46:31.500 --> 00:46:34.140
Where the police officer was a party,
1040
00:46:34.140 --> 00:46:37.770
so that distinguishes from a motion to suppress
1041
00:46:37.770 --> 00:46:40.020
that maybe a judge concluded
1042
00:46:40.020 --> 00:46:44.339
that there wasn't probable cause to issue,
1043
00:46:44.339 --> 00:46:46.680
to search a car or something like that
1044
00:46:46.680 --> 00:46:49.357
because the police officer's not a party
1045
00:46:49.357 --> 00:46:50.733
and isn't preparing the case.
1046
00:46:50.733 --> 00:46:51.566
So I think that's distinguishable.
1047
00:46:51.566 --> 00:46:54.901
So say, if the police officer is a party
1048
00:46:54.901 --> 00:46:56.677
to a civil litigation?
1049
00:46:56.677 --> 00:46:57.840
Yes, if they're a part to the civil litigation
1050
00:46:57.840 --> 00:46:59.403
I'd suggest that if the,
1051
00:47:00.741 --> 00:47:01.890
I'm gonna get to what the reasonable inquiry should be
1052
00:47:01.890 --> 00:47:04.170
but I'd suggest that it should be turned over
1053
00:47:04.170 --> 00:47:05.599
if it is found.
1054
00:47:05.599 --> 00:47:07.500
Again so in other words,
1055
00:47:07.500 --> 00:47:09.780
where they're a party, where it's adversarial.
1056
00:47:09.780 --> 00:47:12.150
What if in a motion to suppress,
1057
00:47:12.150 --> 00:47:14.880
the motion judge finds,
1058
00:47:14.880 --> 00:47:18.660
not just that the police officer was not credible
1059
00:47:18.660 --> 00:47:20.793
but that the police officer lied?
1060
00:47:21.917 --> 00:47:23.663
Would that be something that should be turned over?
1061
00:47:25.139 --> 00:47:27.097
I'd suggest no, not automatically
1062
00:47:27.097 --> 00:47:29.777
but I'm gonna get to that in my list if you don't mind.
1063
00:47:29.777 --> 00:47:30.894
Oh go ahead.
Okay.
1064
00:47:30.894 --> 00:47:33.780
That's an area in my list.
1065
00:47:33.780 --> 00:47:35.760
I'd suggest that any pending criminal charges
1066
00:47:35.760 --> 00:47:38.475
are already discoverable.
1067
00:47:38.475 --> 00:47:39.308
So under Rule 14,
1068
00:47:39.308 --> 00:47:42.120
the DA's office is supposed to give all the names
1069
00:47:42.120 --> 00:47:43.470
of the police witnesses to probation,
1070
00:47:43.470 --> 00:47:45.993
probation is supposed to give criminal records
1071
00:47:45.993 --> 00:47:46.826
to the defense.
1072
00:47:46.826 --> 00:47:50.640
There's no caveat or carveout for police officers.
1073
00:47:50.640 --> 00:47:53.700
And in fact, the reporters notes for Rule 14 say
1074
00:47:53.700 --> 00:47:56.910
if a police officer, as rare as it may be,
1075
00:47:56.910 --> 00:47:58.650
I think is what the reporters notes say.
1076
00:47:58.650 --> 00:48:01.420
If that police officer has a criminal record,
1077
00:48:01.420 --> 00:48:02.958
that is discoverable too.
1078
00:48:02.958 --> 00:48:05.490
So that addresses pending criminal charges
1079
00:48:05.490 --> 00:48:09.450
and then to the, Justice Wendlandt,
1080
00:48:09.450 --> 00:48:12.540
I think this, the response I'm about to give you
1081
00:48:12.540 --> 00:48:15.898
dovetails with your question about the DOJ,
1082
00:48:15.898 --> 00:48:18.057
what do they have to turn over?
1083
00:48:18.057 --> 00:48:20.999
So the DOJ Manual says that if a judge
1084
00:48:20.999 --> 00:48:25.740
or the prosecutor's office concludes that,
1085
00:48:25.740 --> 00:48:27.900
for example, just to make it easy.
1086
00:48:27.900 --> 00:48:29.550
That a prosecutor, excuse me.
1087
00:48:29.550 --> 00:48:32.190
That a police officer has been untruthful,
1088
00:48:32.190 --> 00:48:34.890
then that is discloseable.
1089
00:48:34.890 --> 00:48:37.237
And is distinguishable from,
1090
00:48:37.237 --> 00:48:38.280
I think a, a pending lawsuit
1091
00:48:38.280 --> 00:48:40.140
or a complaint against that officer.
1092
00:48:40.140 --> 00:48:42.300
A finding of untruthfulness.
1093
00:48:42.300 --> 00:48:43.133
Finding of untruthfulness
1094
00:48:43.133 --> 00:48:46.350
and I think that's consistent with this court's
1095
00:48:46.350 --> 00:48:48.120
In re Grand Jury investigation
1096
00:48:48.120 --> 00:48:50.220
and that provides a way to draw a line.
1097
00:48:50.220 --> 00:48:51.930
That if there's a grand jury investigation
1098
00:48:51.930 --> 00:48:55.800
and there's a finding in that case I guess, not I guess.
1099
00:48:55.800 --> 00:48:59.340
Of untruthfulness that there,
1100
00:48:59.340 --> 00:49:03.390
you have reached a threshold to turn over information
1101
00:49:03.390 --> 00:49:07.350
that is exculpatory but maybe has not been adjudicated
1102
00:49:07.350 --> 00:49:12.330
and a DA's office with that responsibility
1103
00:49:12.330 --> 00:49:14.670
is in a position and has the obligation
1104
00:49:14.670 --> 00:49:16.348
to turn it over.
1105
00:49:16.348 --> 00:49:17.820
But that would include a finding by a judge
1106
00:49:17.820 --> 00:49:19.590
in a motion to suppress right?
1107
00:49:19.590 --> 00:49:21.488
It would.
1108
00:49:21.488 --> 00:49:22.680
The problem is I'd suggest
1109
00:49:22.680 --> 00:49:26.010
that it's not always totally clear whether or not
1110
00:49:26.010 --> 00:49:29.221
the decision on the motion to suppress.
1111
00:49:29.221 --> 00:49:33.180
Right, if a judge says I find that they didn't see things
1112
00:49:33.180 --> 00:49:34.830
in plain view, well you know,
1113
00:49:36.000 --> 00:49:38.940
and they couch it in sometimes overly polite
1114
00:49:38.940 --> 00:49:40.080
or whatever reason.
1115
00:49:40.080 --> 00:49:42.593
If they're ambiguous but if a judge says,
1116
00:49:42.593 --> 00:49:44.410
"I find that Officer Smith wasn't credible."
1117
00:49:44.410 --> 00:49:47.753
That's a finding of untruthfulness.
1118
00:49:47.753 --> 00:49:48.909
That's a finding of untruthfulness
1119
00:49:48.909 --> 00:49:50.303
and it's really not where myself.
1120
00:49:52.229 --> 00:49:54.232
Versus Officer Smith saying, "I saw it in plain view."
1121
00:49:54.232 --> 00:49:56.072
And the judge said, "No they didn't see in plain view."
1122
00:49:56.072 --> 00:49:57.732
Right, and I think that's not really,
1123
00:49:57.732 --> 00:50:00.431
that's not the battle for the Police Association.
1124
00:50:00.431 --> 00:50:01.920
If the DA's office has it,
1125
00:50:01.920 --> 00:50:04.110
if I'm in the DA's office, I turn that over right?
1126
00:50:04.110 --> 00:50:06.878
Because that's on the line.
1127
00:50:06.878 --> 00:50:10.770
Prosecutors should err on disclosing
1128
00:50:10.770 --> 00:50:12.330
and I think in that instance,
1129
00:50:12.330 --> 00:50:14.700
where that's known to the prosecutor's office,
1130
00:50:14.700 --> 00:50:15.720
why wouldn't they disclose it?
1131
00:50:15.720 --> 00:50:18.240
Does that complete your list of,
1132
00:50:18.240 --> 00:50:19.350
you gave us three things.
1133
00:50:19.350 --> 00:50:21.033
Does that complete your list?
1134
00:50:21.033 --> 00:50:24.240
I think it, it completes my list and then I get to,
1135
00:50:24.240 --> 00:50:26.070
okay what should they be asking for
1136
00:50:26.070 --> 00:50:28.731
in terms of what is reasonable inquiry?
1137
00:50:28.731 --> 00:50:29.760
Okay but before you do that
1138
00:50:29.760 --> 00:50:32.880
and similar to what I asked Miss Jacobstein
1139
00:50:32.880 --> 00:50:34.180
on her list, her wishlist
1140
00:50:35.171 --> 00:50:36.808
which is a little different than yours.
1141
00:50:36.808 --> 00:50:37.822
I had the heads up.
1142
00:50:37.822 --> 00:50:38.820
Right, right, right.
1143
00:50:38.820 --> 00:50:43.683
Is yours based upon certain federal Giglio cases?
1144
00:50:43.683 --> 00:50:47.253
No I'd suggest it's based on what is,
1145
00:50:48.145 --> 00:50:50.580
ultimately what is, I think a common sense construction
1146
00:50:50.580 --> 00:50:53.260
of what is likely to provide significant aid
1147
00:50:54.188 --> 00:50:57.030
to the defense which is built into the definition
1148
00:50:57.030 --> 00:50:57.993
of exculpatory.
1149
00:50:59.024 --> 00:51:02.190
It seems like that's a fair place to put it and also,
1150
00:51:02.190 --> 00:51:04.410
you gotta put the line somewhere it seems.
1151
00:51:04.410 --> 00:51:07.627
And I think it's a fair place to put it,
1152
00:51:07.627 --> 00:51:09.224
it includes almost everything that I think
1153
00:51:09.224 --> 00:51:12.762
The Innocence Project and CPCS is interested in.
1154
00:51:12.762 --> 00:51:14.640
But it is,
1155
00:51:14.640 --> 00:51:19.530
it weeds out a complaint to the police chief
1156
00:51:19.530 --> 00:51:20.880
that has not been proven.
1157
00:51:20.880 --> 00:51:22.888
But it does not include.
1158
00:51:22.888 --> 00:51:25.350
Could I ask one complication?
1159
00:51:25.350 --> 00:51:29.686
So we have a pending civil case.
1160
00:51:29.686 --> 00:51:31.230
Now I'm not saying, say the facts are completely different.
1161
00:51:31.230 --> 00:51:35.823
There's a 1983 case that says this officer you know,
1162
00:51:37.627 --> 00:51:38.880
makes racist stops all the time
1163
00:51:38.880 --> 00:51:41.343
and this is pending but not decided.
1164
00:51:43.260 --> 00:51:45.540
And I'm worried about the situation which we're in
1165
00:51:45.540 --> 00:51:50.310
in this case which is the verdict comes down afterwards
1166
00:51:50.310 --> 00:51:53.013
and then we've sort of got a mess on our hands.
1167
00:51:54.810 --> 00:51:56.520
Are there exceptions to your rule
1168
00:51:56.520 --> 00:51:59.973
about pending civil cases or is it all civil cases?
1169
00:52:01.463 --> 00:52:02.548
I'd suggest that's a no
1170
00:52:02.548 --> 00:52:05.883
but it doesn't leave defense attorneys with no recourse.
1171
00:52:07.238 --> 00:52:08.361
They all have access to Google.
1172
00:52:08.361 --> 00:52:09.360
They all have access to PACER,
1173
00:52:09.360 --> 00:52:10.740
we all have access to MassCourts.
1174
00:52:10.740 --> 00:52:12.500
Is it cumbersome?
1175
00:52:12.500 --> 00:52:15.423
But this search can happen in 15 minutes and.
1176
00:52:17.098 --> 00:52:18.638
But which way does that cut?
1177
00:52:18.638 --> 00:52:20.099
I mean I guess I read that in the briefs
1178
00:52:20.099 --> 00:52:22.230
and it seemed to me well, then the prosecutor should do it.
1179
00:52:23.959 --> 00:52:24.990
Sure, but maybe the prosecutor could do it
1180
00:52:24.990 --> 00:52:29.990
but ultimately, I just suggest it's then what?
1181
00:52:30.270 --> 00:52:31.650
What comes?
1182
00:52:31.650 --> 00:52:34.740
You have an unproven allegation of misconduct.
1183
00:52:34.740 --> 00:52:36.510
It's unproven at that point.
1184
00:52:36.510 --> 00:52:40.470
It ends up being proven but at the point it's unproven,
1185
00:52:40.470 --> 00:52:42.480
it provides no significant aid
1186
00:52:42.480 --> 00:52:45.600
and so that's why I'm suggesting to this court
1187
00:52:45.600 --> 00:52:48.802
that that's where the line should be drawn.
1188
00:52:48.802 --> 00:52:50.310
And I'd suggest,
1189
00:52:50.310 --> 00:52:53.550
again I think I talked a lot about the POST Commission
1190
00:52:53.550 --> 00:52:58.530
in my brief and it was because, it seemed like a big deal.
1191
00:52:58.530 --> 00:53:01.950
That all the police misconduct in the Commonwealth
1192
00:53:01.950 --> 00:53:03.637
was being published on a website
1193
00:53:03.637 --> 00:53:07.431
and it's been updated, it's been updated since.
1194
00:53:07.431 --> 00:53:09.303
It was initially published,
1195
00:53:11.790 --> 00:53:14.280
and it really, the Appeals Court suggested
1196
00:53:14.280 --> 00:53:17.434
that prosecutors have greater access.
1197
00:53:17.434 --> 00:53:19.770
I think when the Appeals Court wrote that decision,
1198
00:53:19.770 --> 00:53:20.603
that was true.
1199
00:53:20.603 --> 00:53:24.750
I think now, access maybe tips to the prosecutors
1200
00:53:24.750 --> 00:53:26.760
because there might be some information they don't know
1201
00:53:26.760 --> 00:53:28.770
but overwhelmingly, the POST Commission
1202
00:53:28.770 --> 00:53:30.540
provides such great access
1203
00:53:30.540 --> 00:53:33.513
that it really solves this problem.