-: SJC-13430, Commonwealth v. Denzel McFarlane.
Judge: Okay, Attorney Cohen.
-: Good morning Your Honors.
Attorney Cohen on behalf of Appellate and Denzel McFarlane.
This case is about the Commonwealth's obligation
to turn over exculpatory Brady evidence
related to a pending civil lawsuit for police misconduct.
Particularly in this case, false arrest.
Defendant McFarlane's defense at trial
essentially was false arrest.
He had testified that he had recently purchased,
just minutes before purchased a used vehicle.
Was driving down the road,
had a problem with the vehicle, pulled over.
But he had done a brief inspection of the vehicle.
He checked the engine, he checked the mileage, the windows.
A brief inspection and he had seen no gun.
He testified that he had no gun,
there was no gun. -: Mister Cohen,
what are the bounds to the discovery obligation
on civil actions?
Or civil complaints?
-: Sure, well in regards to exculpatory evidence
I would suggest any evidence
having to do with police misconduct, almost by definition
is exculpatory.
-: So if a police officer pulls me over
and is rude to me and I go to the Chief and I say,
"That person was a jerk when he pulled me over for speeding,
"do something about him."
That's misconduct right?
Is that discoverable?
-: Your Honor, I would suggest.
-: Probably get you to say,
because we have. -: Yes.
-: You know, we have the inmate grand jury case right
dealing with credibility and the like.
We don't have 608B yet, maybe we will, I don't know.
But what are the bounds of this rule
you want us to get into?
-: I would suggest police misconduct
rising to a level, certainly,
that involves civil litigation for false arrest.
That would rise to a level that
would be discoverable. -: Why?
Why?
I'm not being glib, you can allege anything.
So if somebody files a civil lawsuit,
and they allege all manner of thing,
whether it's proved or not proved,
it would fall in your category of
this is what you've gotta turn over.
-: Sure. -: So back
to Justice Gaziano's point.
It would seem to encompass then,
if there's a complaint because you were rude to me,
it hasn't been proven.
Just like a civil complaint that's just been filed,
that's not been tested by anything.
It's just a conclusory complaint.
-: Sure, I would suggest and admit
that perhaps the value of a civil lawsuit itself,
the mere civil lawsuit perhaps has a minimal level
of exculpatory value.
But what's important about the civil lawsuit
is the underlying specific allegations within the lawsuit.
Again, in McFarlane's case,
there was a specific allegation of false arrest.
This was the thrust of his defense, false arrest
and so,
I'm sorry. Gotta gather my thoughts for a moment.
-: That's okay, I don't mean to short circuit your argument
but you're putting a lot about the fact that your,
McFarlane's complaint focuses on this officer.
But it really leads into the last part of the analysis
with the prejudice.
Because you're putting a lot in saying,
let's assume for the minute, sake of argument,
you get rid of this officer.
Isn't his testimony duplicative
of actually really the main actor,
the main police officer who had all the interactions?
Had all the statements from him, found the gun.
So when you,
if we assume for the sake of argument
that this is all exculpatory
and it should've been turned over,
don't you have a real tough road to hoe
on the prejudice aspect?
-: Certainly there was another officer on the scene
in Officer Phillips.
Officer Phillips was the one that initially saw,
claims to have seen the gun in plain view.
However, in McFarlane's trial,
essentially it's a credibility contest.
On the defense side you had two witnesses,
Mister McFarlane and his passenger, Chandi Jones
who both testified there was no gun.
We saw no gun, there was no gun.
The implication is that if there was a gun,
perhaps it had been pushed further between the seat.
Again he had just purchased the vehicle,
perhaps it had been repositioned by the police,
i.e. a false arrest.
On the Commonwealth side you had two officers
reinforcing each other.
I would suggest that if you were to credit
McFarlane's testimony that there was a false arrest,
that this gun was repositioned.
That that in fact impugns, both officers.
Certainly it casts some doubt
over the creditability. -: Can I ask you?
Was the civil lawsuit a collusion, coverup kind of lawsuit
where Moynahan was accused of covering up
or colluding with
a fellow Springfield Police Department Officer?
-: Because it seems to me. -: Yeah.
-: That if that were the case and I don't know,
sitting here today, that that might lend some credibility
to your impeachment of Phillips
through the impeachment of Moynahan but I don't?
-: I guess I would say yes Your Honor
because as I consider that case,
as I consider that case,
again that involved false arrest.
The officers acted in concert.
Two officers in fact were found liable.
-: You don't know, you don't know.
My question was a factual one.
Do you know if that civil lawsuit was a collusive kind of?
-: The way I view it, I would suggest it is.
There were two officers that were found liable,
they were acting together in concert.
Moynahan in that case, again,
was found liable for false arrest.
Just Moynahan's testimony alone in the Bradley lawsuit,
he sort of implicated himself
and this criminal trial transcript by the way
would've been available to defense counsel
in McFarlane's case.
There was no adjudication of the civil lawsuit yet,
but had he been informed of the civil lawsuit,
that would allow defense counsel
to get to Bradley's criminal trial transcript.
Within the criminal trial transcript,
Moynahan says that Defendant Bradley,
that he was moving in a suspicious manner
and he pulled him out of the vehicle.
On cross examination,
Moynahan admits despite this suspicious movement,
he didn't illuminate the area with his flashlight.
He didn't ask the defendant, or Bradley
if he had a weapon.
He just immediately pulled him out
and it continued from there but again,
he was found liable for false arrest among other things.
-: So doesn't that sound like a trial within a trial?
I mean it really does get very complicated,
you know, to agree with your position
that this should've come in.
-: Well I mean, it's a rather brief colloquy.
You know?
-: Especially where we have a civil lawsuit,
not a grand jury indictment
like we had in re Grand Jury right?
-: Right.
-: Isn't that?
-: But it's in black and white in the transcript.
It's a relatively brief exchange.
Moynahan's own words on direct and then cross,
it appears that it may have been a false arrest
whereas McFarlane is asserting essentially
it was a false arrest.
There was no gun, i.e. if there was one it was repositioned.
It's a credibility contest.
You have two witnesses on the defense,
two witnesses on the Commonwealth side.
The jury has to weigh who to believe.
McFarlane was asserting false arrest
and if this cross-examine were to,
cross examination of Moynahan were to raise this doubt
of false arrest,
certainly I suggest that's prejudice.
The jury very well could've,
would've considered this evidence differently
and very well may have come to a not guilty find.
-: Counsel that,
but if you take that math and you're saying
you have to go all of these different layers,
dovetailing off of Justice Wendlandt's question.
This is an abuse of discretion standard right?
For the trial judge to say, you can't go into this.
I'm not going to let you go into this.
So given all of these back and forth
and it has to be this, it might be that.
How can this be an abuse of discretion?
Because it's gotta be clear right?
I mean if we know what the definition
of what an abuse of discretion standard is,
that no trial judge would come down and say,
"No, I'm not going to let you go through all
"of this kind of Rube Goldberg kind of ways
"that we go back to how this may be relevant."
Because I have to get into the testimony
of the underlying criminal case
where we'd see whether or not this is collusive
and whether or not there's a false arrest.
I mean sure.
Illuminate that for me?
-: The Appeals Court indicated in its decision
that it wouldn't have necessarily agreed
with Judge Murphy's decision to deny
our motion for new trial on that basis.
The motion judge said something
about this evidence concerning Moynahan being too old,
yet at the same time, it wasn't right
because it wasn't adjudicated.
Of course you know,
the judge ultimately has discretion
whether to admit this evidence but you know,
particularly with McFarlane I think the real key is
the thrust of his defense was essentially a false arrest,
one of the two testifying arresting officers,
Moynahan was very much involved.
Almost as much as Officer Phillips was, I would suggest
and yet it appears he was involved with a false arrest.
This is very much on point of the heart
of McFarlane's defense.
So I would suggest yes, that's an abuse of discretion.
He was denied the ability to put on the case,
the strongest case,
relating to the heart of his defense.
Kimberly: Anything else?
-: Just to, perhaps I should mention Guardado briefly.
I know the Commonwealth brought up another case,
Bookman and there was the issue of prejudice in Guardado.
The Commonwealth argues that there was no prejudice
in this case because McFarlane admitted
that he had no license to carry.
I would suggest that if McFarlane were granted a new trial,
counsel possibly could file a motion to suppress
that statement that he had no license to carry.
Perhaps the argument would be that Officer Phillips.
-: This just goes to whether it gets a new trial
versus whether it's vacated right?
The Guardado issue.
-: Right, right.
The argument would be that Officer Phillips
demanded that he turn over his license to carry
and it puts McFarlane in a position where you know,
essentially arguably that statement was involuntary.
He was responding to a demand.
So I suggest there is some prejudice
that would go to Guardado.
-: Okay. -: And actually,
if I can add one more thing.
I know the Commonwealth talks about the,
the POST Commission website.
The POST Commission website elucidates
disciplinary actions within the police department itself.
I took a look at it in regards
to Officer Moynahan particularly.
There are a couple of cryptic mentions
having to do with improper processing of a prisoner,
discipline other.
Conduct unbecoming, written reprimand
but despite the supposed publicity
relating to the McFarlane civil lawsuit,
there's no mention of that whatsoever.
The POST Commission website does not get to issue such a,
what's relevant here which is a pending civil lawsuit.
I don't think the POST Commission website,
certainly doesn't fully address
defense counsel's need for exculpatory evidence
in this way.
I know the Hampton County District Attorney's Office
for example currently has certain questions.
-: Doesn't that suggest there needs to be limitations
on this too?
Because if, are we gonna have a trial within a trial
on all nine of those
that's in the Commission's disciplinary?
Are we gonna have each one of those revisited?
-: No my point is simply the POST Commission website
is insufficient.
It doesn't expose this type of misconduct
and you know, a simple question.
Obviously prior to trial,
a prosecutor needs to converse with
testifying police witnesses.
I'd suggest it's not too much of a stretch
for that prosecutor to ask a question,
"Do you have any pending civil allegations
"of police misconduct?"
I know the Hampton County District Attorney's Office
is currently utilizing a brief questionnaire of that effect
and those questions are appropriate and again,
we argue that should,
it's certainly exculpatory and should be turned over
to the defense counsel.
If there's nothing further, I'll rest on the briefs.
-: Thank you.
Attorney Cohen: Thank you.
-: Attorney Jacobstein.
-: Good morning Your Honors.
Rebecca Jacobstein for amici CPCS
and the ACLU of Massachusetts.
Thank you for granting us oral argument time today.
I'd like to address two issues.
First, the parameter of a prosecutor's
automatic duty of inquiry
and the suggestion by other amici
that the POST Commission database
is sufficient to fulfill that obligation.
But first, an area on which we have agreement I think
which is that I agree with the District Attorneys
and the State Police
that this court should provide guidance
about the scope of the Commonwealth's duty of inquiry.
It appears the DAs are concerned
about their working relationships with the police
and clear and explicit requirements from this court
will enable the DAs to obtain the materials
to which defendants are constitutionally entitled
while not taking the blame for asking for them.
So the law regarding the prosecutorial obligation is clear.
Prosecutors must obtain and disclose exculpatory evidence,
they must err on the side of disclosure.
If the police have it, the prosecutor has it
but exculpatory evidence need not be admissible,
it just needs to lead to admissible evidence
and just because we have it,
doesn't mean we always get to put it in.
So just to address the questions
that the Court was asking counsel,
if things are going to lead to a trial within a trial,
if they are not relevant, they don't come in
but that doesn't mean
they shouldn't automatically be disclosed
and I think a reasonable inquiry
is one that gets information about the case
but also gets information,
like relevant impeachment information
about all the officers involved.
-: All right, so we've gotta get down to brass tacks
as far as the civil cases and the like.
Because we have, my my, we have In re Grand Jury
which stands for proposition of,
that was an indictment.
And it had to do with credibility right?
So that's our guidance from this Court thus far
and we don't have 608B right?
So where do we draw any line
for this guidance that we all want to give to everybody
as far as civilian complaints, civil lawsuits, et cetera.
-: So I think Your Honor,
that the inquiry is expansive
and I also think the disclosure's expansive.
Maybe the admission is not,
but the disclosure is and so for instance,
I have a list.
Criminal charges against an officer,
civil cases relating to the officer's professional duties.
Not all civil cases, just those.
That are either pending or have settled or there's a guilty.
-: Miss, are you getting this from a federal Giglio case
or how?
-: This comes from my own personal wishlist
but also from the Giglio and just you know,
experiences and also Milke, the 9th Circuit case.
-: Because that's what I'm going to ask you for
because when we're writing the decision,
trying to get guidance,
a good source would be to see where the federal courts
have gone on Giglio obligations right, on civil cases.
-: Right, I don't know if Milke has civil.
We quote a case from New York
about civil cases in our brief
but I don't know if Milke actually addresses civil.
I know it addresses judicial determinations,
both of truthfulness and Constitutional violations.
-: All right, so you've told me about the source
because obviously we need to check that
and obviously I trust what you write and tell us.
But give us your wishlist again,
and this time I won't interrupt.
-: That's okay.
Internal Affairs investigations
that are sustained, pending or relate to the case at hand.
Milke actually did rule that contrary
to clearly established federal law,
when prosecutors fail to disclose findings
in an Internal Affairs report.
Judicial findings that an officer was not truthful,
that the testimony was inconsistent
with another officer's testimony,
or with the physical evidence.
Orders on motions to suppress or dismiss
where the officer is found to have violated
a defendant's Constitutional rights.
Again, I think both of those are in Milke
and evidence of bias which I just took out
from the fact that bias evidence is always admissible.
-: The Internal Affairs investigations,
is that, do you include anything that's been opened
or things that have been finalized?
-: I would argue that it's those that are pending
and those where there has been a sustained finding.
-: So go, I get pulled over for speeding.
Rebecca: I'm sorry?
-: I get pulled over for speeding.
-: Yes. -: I think the Officer's rude.
I file a complaint.
-: Yes. -: Discoverable?
-: Absolutely.
Well while it's still pending and even if it's sustained,
does that come into evidence?
Is that even of any use to me?
No, it depends. -: I mean we have to be careful
because I mean we obviously
came down hard on prosecutors last month, this month.
So as far as discovery obligations go.
So they have to basically ask every police officer,
"Do you have any irate motorists
"that are mad because you pulled them over?"
-: No I think the question is,
is "Do you have any open, pending or sustained
"Internal Affairs investigations against you
"that you know about?"
-: Open, so again.
Anyone angry can file complaints right?
-: Yes. -: It's opened.
-: It could be complete nonsense.
-: Could be. -: Could be filed
by a mentally ill person right?
I mean we're. -: And I guess your point
is that it's just discoverable,
not that it's admissible.
Rebecca: That's exactly right Your Honor.
-: So maybe whether it's admissible
would go to the strength of the allegation,
the stage but you're just asking for it to be disclosed
to defense counsel right?
-: Right, that's exactly right.
We just want the judge to be able to decide
whether it's admissible or us to even decide before that,
if we want it to be admissible before,
instead of the prosecutor or the police determining
whether even we get to know it.
-: I get the first part is much more generous
and we've expressly stated that.
But I get to the second part
because you're running out of time.
-: I'm out of time. -: Because that seems to be
where the rubber hits the road.
We've got all kinds of civil cases,
this Court gets sued nonstop with civil cases.
They always get thrown out
because they're often nonsensical.
Similar things can be filed against police officers,
I mean don't we have to be careful
about where we're going here?
Because otherwise we're gonna be,
we're not gonna be able to have a police officer testify
without a trial on 25 prior incidents.
Where are we going here?
-: I don't think, Your Honor, that most people, officers have
25 prior incidents. -: Oh really?
You don't think most,
you don't think there are civil,
there are little grievances filed in all the time
and there are civil complaints.
Many of which are dismissed out of hand,
class action suits that we gotta wrestle with?
We need line-drawing here
or we're not gonna be able to proceed in this case.
Dalila: Can I ask you, I'm sorry Justice Kafker.
Scott: I can chance with it.
Can we ask, where do we draw lines in civil cases
on the hard part?
-: When you're sitting,
as should it come into evidence
or whether it should even be disclosed?
-: I get the disclosure issue and we've talked about that.
I'm much more worried about the second part of this
and are we going to encourage
kinds of nonsensical complaints against officers as well
because then all of a sudden,
that becomes part of every criminal prosecution too.
Tell us your wishlist of where the line is now
on the second part of this?
-: On the should it be admissible?
Scott: Yeah.
-: I think that the line there is already drawn
which is if it's not relevant, if it's not material.
-: But would you say,
at least in discovery, could it lead to something relevant?
Does it have to be, and what is relevant?
I mean a false arrest can be 18 different things.
A false arrest can be there actually wasn't enough
for reasonable suspicion or a false arrest can be
they made up the claim. -: Yes.
-: A made up one is totally different
from a bad judgment call on reasonable suspicion isn't it?
-: I agree and I think that judges will understand that.
And I think that for our purposes,
what we really need is to have it.
If we don't have it, we can't have these discussions
about should it come in, should it not come in.
Is it a trial within a trial or do I just say,
"And you were found to have violated."?
-: Again, I think the easier. -: Don't you always win though?
On that, basically.
Just give it to us, then we'll figure out later.
So every time you have a wishlist and you say,
"Ah we're not saying it's admissible
"but you have to come and find it."
Then we have these discovery obligations
we're imposing on the Commonwealth.
We say, "Well just give it to them, what's the harm?"
That's the answer?
-: I agree and I mean,
I think that they are able to do it.
We have these,
that I think believe with the State Police's amicus brief.
There was a provision of some worksheets
that they send to, or questionnaires
that the District Attorney's offices are using.
So it's doable and.
-: It's been a long time but I remember in federal court
we had questionnaires we would send
local law enforcement authorities
under Giglio obligations, correct.
-: I believe that there are a lot going on
in federal court that didn't necessarily go along here.
-: Can I ask you one last question?
The DOJ guidance on this,
do they ask about pending civil lawsuits?
-: I think they don't, but I'm gonna double check
and be sure.
-: Because we can't, as we said in grand jury,
tell the DAs to do Giglio lists
but we can tell them what their obligations are,
then they have to comply with it.
-: That's exactly right.
Thank you Your Honor.
-: Thank you.
Okay, Attorney Sheppard prep.
-: Thank you, may it please the Court.
Judge: What's wrong with asking?
-: So, and I think the problem is
that we've conflated asking with disclosure
because the list in In re Grand Jury,
that part of the policy of all of those things,
those are things that the agency must turn over
to the prosecutor.
That's not a list of what gets turned over
to defense counsel.
That information in the Giglio policy
goes to the prosecutor.
The prosecutor then looks at it and says,
"Is this material?
"Is it relevant?"
-: Well that's kind of dangerous isn't it?
-: Right. -: But that's what,
I mean that's what the federal policy is.
And the federal. -: So you want.
-: Is that consistent with the federal law
that requires the disclosure
of even possibly exculpatory information?
-: I mean it is because. -: You want that obligation?
-: The obligation to?
-: To ferret out what you think they deserve?
-: Right, and isn't that always gonna be looked
through the glean of a prosecutor's eye?
-: Well, it is our obligation whether we want it to be or not
and we certainly have,
I mean our policy is certainly to disclose
if we're uncertain.
I mean that's our policy.
What is Constitutionally required
and what our policy is are two very different things
because Constitutionally,
and for Article 30 purposes, what this court can require
is, is it material, is it exculpatory in the Brady sense?
If it's not, we can still turn it over at our discretion
and we do, most of the time.
I will tell you that a lot of the times
when we've made these disclosures,
we've actually gotten motions after the fact saying,
"Tell us why this is exculpatory."
And our answer is it's not, we just turned it over
because really, the wishlist is let them you know,
let them have it so they can decide.
The wishlist is let us fail to turn something over
so that then they come back and say,
"Oh you didn't turn it over."
-: Why is it, going back to Justice Gaziano's question,
so onerous on the prosecutor to ask their police witnesses,
"Is there a pending civil lawsuit against you?"
-: So let me take you down to the Springfield District Court
where a prosecutor is on trial.
He or she has a case list of maybe 12 cases
that are on trial that day.
Each of those cases,
probably has seven police officers
or eight police officers listed on the police report.
They're probably not going to actually meet
with more than two of them,
probably only put on one or two for trial.
We have to pull 20, 30 police officers off the street
and have this conversation with them?
It's not practical.
-: Well that's not really,
that's not really an accurate lens
because you're saying that obligation
springs at the time of trial.
I mean, from the time of the arraignment,
the District Attorney's office is going to have the one one
and see all of the officers
that are involved in this collar
and all of that stuff could be asked
long before we get to the day of trial.
So I don't follow that.
-: I mean, that's the thing.
Is the only time that we're able to meet
with these police officers is right before trial.
That same person who has 12 cases on for that week
or that day has a caseload of 3, 400 cases.
-: Well that just suggests
maybe there should be a policy about tracking
how you disclose that.
It doesn't mean that it would be onerous for you to ask.
It's just a matter of how you keep track of the information.
-: Well we do keep track of the information and we have,
when we discover information that we think
might be potentially exculpatory or frankly,
even when it's not potentially exculpatory
but we don't want to be accused of not turning it over.
We have. -: So if you stumble upon
any relevantly exculpatory information then you have what?
-: We do have a database
where we keep all of this exculpatory information.
-: Why can't you just ask?
I get it that on the eve of trial,
maybe it's hard to pull, as you say,
officers off the street
but there must be another way?
-: Well, so there is another way
and it doesn't work under our state system.
-: Can you explain that, that would be helpful.
-: So under the Giglio policy,
the agency reports to the DOJ,
the DOJ is run by the Attorney General.
Everybody reports to the Attorney General.
If I go to a police officer
or to a police department and say,
unless court said and want us,
if I go to the police and say,
"Give me your IA files."
They can tell me no and there's nothing I can do about that.
And so we don't, the District Attorney's office
doesn't have the authority
over any of the police departments
to require them to turn over any of this information.
-: You have the authority over the prosecution.
-: Correct.
So anyone on, anyone in our office.
-: And you have the authority as to who to call as witnesses?
-: Correct.
-: That's the hammer right?
-: Well, right.
So essentially, we're gonna have to say,
"Well if you don't turn it over,
"we're not gonna prosecute your cases."?
That's not in the public interest.
We can't, we can't have a policy like that
because these cases are,
you know some of them are serious felony cases.
We can't hold that,
we would be derelict in our responsibility.
-: Or if you don't answer discovery,
we're not gonna call you Officer Smith, as a witness.
-: Right, but again,
that's not, that's not a,
we would be giving up our responsibility
to protect the public in doing that.
-: So you think the price for that responsibility
is that the defendant is not entitled to Brady information?
-: Well the defendant isn't? -: You don't ask for it.
Unless you stumble upon it, as you said earlier,
you don't ask for it because it would be too onerous?
More important things to do.
-: Well, no. -: And that's not,
that's not really true right?
You do ask for certain things
and you don't ask for other things.
-: We ask for Brady information.
-: I mean I haven't read the case we're hearing on Wednesday
involving the Springfield but my understanding is
there's a policy in place to produce certain types of things
and the question is, what does it cover?
So you do have a policy right?
-: That's correct, we have a policy
and we have been asking officers these questions
and it turns up with no Brady information.
We might turn it,
we sometimes turn it over anyway but we.
-: You don't say to them, "Give me Brady."?
-: No. -: You do
a modified wishlist?
Or a modified questionnaire. -: Well we've been ordered
based on footnote 16 to ask those questions.
Now we get a lot of responses from police officers which is,
"What does that even mean?"
And our answer is, we don't know.
-: I'm sorry, footnote 16?
-: From the Appeals Court decision in this case
but there have been judges issuing orders saying you know,
ask your police officers these questions and we do
and they go, "What does that even mean?"
And we say we don't know, that's just.
-: Which word don't you understand in footnote 16?
Elspeth: Could I jump in at some point?
You go ahead and answer that
but I would like to ask a question afterward.
-: Okay, so which word in footnote 16
do you not understand?
-: So what an informal external charge of misconduct is.
-: I think that goes back to Justice Gaziano's example
of you know,
he gets pulled over, he goes in and complains
the cop was mean to me.
That may be an internal informal charge of misconduct.
Is somebody driving by a police officer saying,
"Oh that guy's a jerk."
Is that an informal external charge?
I just don't know what that is.
So I can't tell my police officers
what they need to tell me if I can't tell them
what that is.
You know, I know what an IA investigation is.
-: Okay. -: And they know
what an IA investigation is.
A lot of times they don't know it's going on.
So asking them doesn't get you the answer.
-: When you say a lot of times they don't know it's going on,
what do you mean?
-: Pending IA investigations,
the police officer is not necessarily made aware
of a pending IA investigation.
They will be made aware once there's a finding
or at a certain stage in the investigation
but in the initial stages,
they might not actually be aware of it.
So, and as this Court said in Juanus, we don't have IA.
We don't have those files, the cities have those files
and they won't give them to us.
I mean we've tried, we try to get them
and they often say no we can't have them
and there's nothing we can do about that.
Dalila: Justice Cypher?
Elspeth: Are you ready for my question now?
-: Yes, thank you.
Elspeth: I have queries for a couple things.
Counsel, what is your reasoning
in writing the brief that you agree
that you were in control and custody
of this particular information?
-: [Attorney Sheppard] I'm sorry, I couldn't understand.
What's the? -: You can't hear me?
-: Yeah what's the belief that you are under control,
custody of this information?
Correct Justice Cypher?
Elspeth: Right, why did they believe that?
What was the narrative in there?
The reason they said that.
-: So I'm sorry. -: Why did you say,
or not say if you were in control and custody
of this information in this case?
-: So I mean,
because the Officer was part of the prosecution team,
in theory we would have control of this information.
Certainly there are courts that have said
that we don't have this information.
-: Wait, an officer on the prosecution team
knows that there's a pending civil lawsuit
and you say there's courts that say
that that's not within the prosecution team's control?
-: That's correct.
There's a federal case cited within my brief.
-: Is that the law in Massachusetts?
-: The law in Massachusetts is not settled on this point
as to you know, what.
We certainly know what the police officer knows
with regards to the case.
But asking, and it's the case where they say
it's one thing to ask your police officers
for potentially exculpatory information
in the underlying case.
It's another thing to ask us to conduct
complete disciplinary inquiries
on every person who has touched this case.
-: But that seems a far cry from asking the officer
if there's a pending civil lawsuit against him or her.
-: Well, but, I mean.
-: We're not asking you know,
"Hey can you see if Moynahan ever committed something?"
It's just, "Officer Moynahan,
"do you know if there's a civil lawsuit against you?"
-: Well again, there are a lot of frivolous lawsuits.
-: I mean, you didn't pay your credit card bill
or you didn't pay your phone bill
and Verizon's brought you into small claims court.
That's a civil lawsuit.
I take it we don't have to?
-: Oh no, related to your conduct as an officer.
I'm sorry, that's a good point Justice Kafker.
Elspeth: Okay, I believe that this went one.
Could that be argued that it's related
to the conduct of an officer
in those responsible have been following regulations?
-: I'm sorry, I'm having really trouble.
Elspeth: That's okay, you can skip that question.
That was a different point.
Let me ask you another question.
Is there, okay what about your credibility
of the witnesses?
Could this be and should this be extended to.
-: Justice Cypher,
maybe if you pull away from the microphone a little bit.
Elspeth: All right, would this apply
to your civilian witnesses?
-: What about?
Sorry, to our civilian witnesses?
Elspeth: Would the argument that the next step of this be
that you should investigate or ask
all your civilian witnesses the same questions?
-: I mean it is,
although they're even less under our control
and they're not part of the prosecution team
and I think that is sort of the slippery slope argument
that you know,
that we'll be having to do,
have the same conversations with our witnesses which,
and I would, you know,
I'd like to go back to the.
-: But you pointed out, they're not part of your team.
-: Well right.
-: So it seems like
there could be a limiting principle right?
You know credibility calls about people on your team,
related to their conduct as officers.
-: Right, but I think the limiting principle
is more than that.
Because police officer misconduct is a huge category.
What we're talking about here is in
the very limited exception of police officer misconduct
that relates to their credibility
and only to their credibility.
And I would point out.
-: Grand jury's a little more open ended than that right?
I mean it starts out by talking about credibility
and then it moves into misconduct.
It's hard to know whether it's misconduct
directly related to credibility or broader right?
-: Well, right.
So I think that it's a little ambiguous
but what I would go back to is our rule of evidence
which is Giglio is based on the federal rule, 608B
which says specific instances of misconduct
relating to the officer's truthfulness
are admissible on cross-examination
and there's no trial within a trial.
Because if they deny it,
extrinsic evidence doesn't come in, it's done.
But that's on that very limited issue
of character for truthfulness.
Now this court.
Elspeth: I have one more question if we have a moment.
And that is what is the point at this point
of having the status
between the specific request
and a general request for discovery?
Is that in at this point?
-: I'm sorry, it's.
I'm having trouble hearing.
-: The distinction between a general request for discovery
and a specific request on the standard of review.
Is that even a thing anymore basically,
given this widespread disclosure?
-: Well, right.
And I mean, I think that the reason
that you have the specific request versus general request
is I don't know what the defense strategy is.
I can try and guess but if you tell me,
"My case is about lying police officers,
"I want to know if your cops
"have ever been found responsible for lying."
Okay that I can ask about.
But if it's just a general fishing expedition,
I mean I don't know what rock I'm supposed to look under
but I do know what's admissible
and what's not admissible and none of this.
I mean we have the Buchanan exception
which I suggest that it may be time for a retirement
given that it was based on the idea
that we don't trust rape victims.
So it's a little questionable
whether that should even still stand
but you have this,
okay so now we don't also trust police officers.
That's the second category under Buchanan,
it's rape victims and police officers.
But we don't have this rule of evidence,
we don't allow prior instances
of misconduct that relate to an individual's truthfulness,
you're not allowed to ask about that.
Unless there's a conviction.
If there's a conviction it comes in,
but absent of criminal conviction,
it's not admissible under our rules of evidence.
It's not likely to lead to admissible evidence.
If we have a police officer.
-: Wait, there's a difference.
Between disclosing something
that might lead to admissible evidence
and the admissibility of that evidence.
-: There is. -: That we should
collapse the two because we don't yet have a 608B?
And that Buchanan should be retired
because rape victims are similar to police officers?
-: Well what I'm saying is that we should,
one of the, I like the language from People v. Garrett
which the amici relied on for a different proposition
and then People V. Smith
which stands for the unremarkable proposition
that law enforcement witnesses
should be treated in the same manner and the same
as any other prosecution witness
for the purposes of cross examination.
So my point is we don't allow anybody else
other than rape victims to be cross examined
on these sort of prior false allegations.
-: There's a small window in re Grand Jury case though right?
-: Right. -: That says
in a judge's discretion,
this bad act evidence can come in right?
-: It can come in, right.
So if it is.
-: We have, we don't have 608B
but there's a sliver of it in re Grand Jury case.
-: Right, so if it relates to the officer's character
for truthfulness.
If it is an allegation
that they have filed a false police report
that is sustained.
If there is a claim that they have committed perjury,
obviously that's exculpatory.
But that an officer, and in this case,
if you read the federal trial, the federal criminal trial,
civil trial rather.
Basically the jury was instructed
that furtive movements are insufficient
for a pat frisk or an exit order under Massachusetts law.
They were not told that
unless it's consistent with retrieving an object.
So the jury here basically found
that he issued an exist order without reasonable suspicion
and arrested him without probable cause.
Based on the instructions, it was a very close case.
This court decides cases like that all the time where,
"Well the officer thought they were doing the right thing.
"Turns out they didn't have it."
That doesn't relate to their character for truthfulness.
-: But that's still your view of it
because that doesn't take into account
the other side of what was argued beforehand.
Because if you don't disclose this case,
they can't look at the underlying case,
the underlying criminal case that gave rise to it
and if you then marry
the potentially lead to admissible evidence,
that is the part where they get to go home
and look at the transcript of the underlying criminal case
and in fact, get evidence that might be relevant
to the character for truthfulness.
And they can't get there
if you don't disclose that they have this open civil case.
You can't, you just can't get there.
They can't know what they don't know.
-: Right, and we can't know what we don't know.
-: You can know if you ask.
-: I mean, one, we can ask but we don't always get.
-: Sure, I mean people can always not tell you the truth
but what we're talking about is whether or not
you should have an obligation to ask
and what might lead there from.
-: But if we have an obligation to ask
and we ask and we don't get,
they're more on the hook for it
when this is never coming in.
This stuff is,
this was never coming in,
the judge was never gonna let in.
-: But then you got the prejudice argument.
-: Well right. -: The question is
whether or not you should ask.
That's the question before us.
-: Well, I think that's difficult
because the question for. -: Because you're suggesting
that your officers will lie when you ask them
which I don't know if that's really what you're.
-: No, my argument is sometimes they don't know
and sometimes they don't,
sometimes they don't remember because it's been 20 years
and then there's that,
what are we doing at that point?
I mean a criminal conviction that's over 10 years old,
even if it's a felony doesn't come in.
-: Okay I'm gonna say we've fleshed this out pretty well.
Thank you. -: All right, thank you.
-: And I'm gonna ask Attorney Hanley to come on up.
-: Good morning, Chief Justice Budd, members of the Court.
Thank you on behalf of the State Police Association
of Massachusetts and the President who's here today
for allowing me to present today
and with my colleague Beth Keeley.
I'd like to, rather than go to what I prepared to say,
I'd like to try to jump into some of the questions
that I've heard already.
So in terms of creating a bright line rule,
I'd suggest that a proven allegation of misconduct,
wherever it was proven.
Whether it's to the POST Commission,
in a civil lawsuit, in a criminal lawsuit
or in Internal Affairs,
that's reasonable to look for.
Where the police officer was a party,
so that distinguishes from a motion to suppress
that maybe a judge concluded
that there wasn't probable cause to issue,
to search a car or something like that
because the police officer's not a party
and isn't preparing the case.
So I think that's distinguishable.
-: So say, if the police officer is a party
to a civil litigation?
-: Yes, if they're a part to the civil litigation
I'd suggest that if the,
I'm gonna get to what the reasonable inquiry should be
but I'd suggest that it should be turned over
if it is found.
Again so in other words,
where they're a party, where it's adversarial.
-: What if in a motion to suppress,
the motion judge finds,
not just that the police officer was not credible
but that the police officer lied?
Would that be something that should be turned over?
I'd suggest no, not automatically
but I'm gonna get to that in my list if you don't mind.
-: Oh go ahead. -: Okay.
That's an area in my list.
I'd suggest that any pending criminal charges
are already discoverable.
So under Rule 14,
the DA's office is supposed to give all the names
of the police witnesses to probation,
probation is supposed to give criminal records
to the defense.
There's no caveat or carveout for police officers.
And in fact, the reporters notes for Rule 14 say
if a police officer, as rare as it may be,
I think is what the reporters notes say.
If that police officer has a criminal record,
that is discoverable too.
So that addresses pending criminal charges
and then to the, Justice Wendlandt,
I think this, the response I'm about to give you
dovetails with your question about the DOJ,
what do they have to turn over?
So the DOJ Manual says that if a judge
or the prosecutor's office concludes that,
for example, just to make it easy.
That a prosecutor, excuse me.
That a police officer has been untruthful,
then that is discloseable.
And is distinguishable from,
I think a, a pending lawsuit
or a complaint against that officer.
-: A finding of untruthfulness.
-: Finding of untruthfulness
and I think that's consistent with this court's
In re Grand Jury investigation
and that provides a way to draw a line.
That if there's a grand jury investigation
and there's a finding in that case I guess, not I guess.
Of untruthfulness that there,
you have reached a threshold to turn over information
that is exculpatory but maybe has not been adjudicated
and a DA's office with that responsibility
is in a position and has the obligation
to turn it over.
-: But that would include a finding by a judge
in a motion to suppress right?
-: It would.
The problem is I'd suggest
that it's not always totally clear whether or not
the decision on the motion to suppress.
-: Right, if a judge says I find that they didn't see things
in plain view, well you know,
and they couch it in sometimes overly polite
or whatever reason.
If they're ambiguous but if a judge says,
"I find that Officer Smith wasn't credible."
That's a finding of untruthfulness.
-: That's a finding of untruthfulness
and it's really not where myself.
-: Versus Officer Smith saying, "I saw it in plain view."
And the judge said, "No they didn't see in plain view."
-: Right, and I think that's not really,
that's not the battle for the Police Association.
If the DA's office has it,
if I'm in the DA's office, I turn that over right?
Because that's on the line.
Prosecutors should err on disclosing
and I think in that instance,
where that's known to the prosecutor's office,
why wouldn't they disclose it?
-: Does that complete your list of,
you gave us three things.
Does that complete your list?
-: I think it, it completes my list and then I get to,
okay what should they be asking for
in terms of what is reasonable inquiry?
-: Okay but before you do that
and similar to what I asked Miss Jacobstein
on her list, her wishlist
which is a little different than yours.
Attorney Hanley: I had the heads up.
-: Right, right, right.
Is yours based upon certain federal Giglio cases?
-: No I'd suggest it's based on what is,
ultimately what is, I think a common sense construction
of what is likely to provide significant aid
to the defense which is built into the definition
of exculpatory.
It seems like that's a fair place to put it and also,
you gotta put the line somewhere it seems.
And I think it's a fair place to put it,
it includes almost everything that I think
The Innocence Project and CPCS is interested in.
But it is,
it weeds out a complaint to the police chief
that has not been proven.
But it does not include.
-: Could I ask one complication?
So we have a pending civil case.
Now I'm not saying, say the facts are completely different.
There's a 1983 case that says this officer you know,
makes racist stops all the time
and this is pending but not decided.
And I'm worried about the situation which we're in
in this case which is the verdict comes down afterwards
and then we've sort of got a mess on our hands.
Are there exceptions to your rule
about pending civil cases or is it all civil cases?
-: I'd suggest that's a no
but it doesn't leave defense attorneys with no recourse.
They all have access to Google.
They all have access to PACER,
we all have access to MassCourts.
Is it cumbersome?
But this search can happen in 15 minutes and.
-: But which way does that cut?
I mean I guess I read that in the briefs
and it seemed to me well, then the prosecutor should do it.
-: Sure, but maybe the prosecutor could do it
but ultimately, I just suggest it's then what?
What comes?
You have an unproven allegation of misconduct.
It's unproven at that point.
It ends up being proven but at the point it's unproven,
it provides no significant aid
and so that's why I'm suggesting to this court
that that's where the line should be drawn.
And I'd suggest,
again I think I talked a lot about the POST Commission
in my brief and it was because, it seemed like a big deal.
That all the police misconduct in the Commonwealth
was being published on a website
and it's been updated, it's been updated since.
It was initially published,
and it really, the Appeals Court suggested
that prosecutors have greater access.
I think when the Appeals Court wrote that decision,
that was true.
I think now, access maybe tips to the prosecutors
because there might be some information they don't know
but overwhelmingly, the POST Commission
provides such great access
that it really solves this problem.