WEBVTT
1
00:00:00.000 --> 00:00:04.593
SJC-13446, Commonwealth v. Raymond Gaines.
2
00:00:05.580 --> 00:00:07.470
Okay, Attorney Lewis.
3
00:00:07.470 --> 00:00:08.850
Good morning, may it please the court,
4
00:00:08.850 --> 00:00:12.060
my name is David Lewis and I represent the Commonwealth.
5
00:00:12.060 --> 00:00:12.990
The motion judge made
6
00:00:12.990 --> 00:00:15.240
a number of errors of law in this matter.
7
00:00:15.240 --> 00:00:18.090
The Commonwealth believes that her order should be vacated
8
00:00:18.090 --> 00:00:20.880
and the convictions in this matter should be affirmed.
9
00:00:20.880 --> 00:00:24.300
I'd like to start talking about a particular error
10
00:00:24.300 --> 00:00:28.500
of law in holding that an affidavit created some 14 years
11
00:00:28.500 --> 00:00:33.069
after the conviction was qualified as a Brady obligation
12
00:00:33.069 --> 00:00:36.210
to be disclosed, and that that was an error
13
00:00:36.210 --> 00:00:38.913
entitling the defendant to a new trial.
14
00:00:42.630 --> 00:00:46.020
Defendant's rights at trial, there can be,
15
00:00:46.020 --> 00:00:49.020
perhaps there's maybe no starker difference
16
00:00:49.020 --> 00:00:52.950
than between the rights that a defendant is entitled to
17
00:00:52.950 --> 00:00:55.380
when he's presumed innocent at a time of trial
18
00:00:55.380 --> 00:00:58.230
and then the rights that attach post-conviction.
19
00:00:58.230 --> 00:01:00.360
You concede it's a matter
20
00:01:00.360 --> 00:01:03.150
of a rule of professional conduct?
21
00:01:03.150 --> 00:01:05.580
Yeah, 3.8 I, J, and K.
22
00:01:05.580 --> 00:01:06.750
That's controlling?
23
00:01:06.750 --> 00:01:08.970
I believe that is controlling, if you look at the case,
24
00:01:08.970 --> 00:01:12.480
which I believe is consistent with post-conviction conduct
25
00:01:12.480 --> 00:01:16.290
that placed once the conviction enters,
26
00:01:16.290 --> 00:01:17.640
and the Commonwealth has proved
27
00:01:17.640 --> 00:01:19.890
beyond a reasonable doubt someone is guilty,
28
00:01:19.890 --> 00:01:21.720
I think you look at the case law court rules
29
00:01:21.720 --> 00:01:26.460
and the rules of professional conduct together.
30
00:01:26.460 --> 00:01:29.040
We haven't said anything one way or the other on Brady.
31
00:01:29.040 --> 00:01:29.873
Pardon me?
32
00:01:29.873 --> 00:01:31.110
We haven't said anything one way
33
00:01:31.110 --> 00:01:32.760
or the other on Brady post-trial?
34
00:01:32.760 --> 00:01:34.110
That's correct, yeah.
35
00:01:34.110 --> 00:01:37.590
Material that exists did not exist at the time of trial,
36
00:01:37.590 --> 00:01:38.490
that's correct.
37
00:01:38.490 --> 00:01:43.271
No, I did not find anything in that regard, and-
38
00:01:43.271 --> 00:01:45.228
That's the beginning of it so,
39
00:01:45.228 --> 00:01:47.640
but you still have an obligation, right?
40
00:01:47.640 --> 00:01:52.230
And it's, you know, you have the main witness recanting.
41
00:01:52.230 --> 00:01:54.330
Don't you have to pass that on
42
00:01:54.330 --> 00:01:57.960
even if it comes up in a co-defendant's case?
43
00:01:57.960 --> 00:01:59.940
I don't believe, I would,
44
00:01:59.940 --> 00:02:02.280
I disagree that he's the main witness.
45
00:02:02.280 --> 00:02:04.320
I don't believe this is sort of a Jenga tower
46
00:02:04.320 --> 00:02:06.300
that removing him changes anything.
47
00:02:06.300 --> 00:02:07.770
He's a pretty important witness.
48
00:02:07.770 --> 00:02:12.770
He's the one who identifies his client for the first time.
49
00:02:15.330 --> 00:02:18.120
It's his son who's the original person
50
00:02:18.120 --> 00:02:19.710
they identified, right?
51
00:02:19.710 --> 00:02:21.120
There was, no, his wife's,
52
00:02:21.120 --> 00:02:22.230
I think it was his wife's son,
53
00:02:22.230 --> 00:02:25.230
and then ended up being son-in-law who testified,
54
00:02:25.230 --> 00:02:27.570
Alfred Hamilton testified at trial.
55
00:02:27.570 --> 00:02:29.400
Important witness, yeah?
56
00:02:29.400 --> 00:02:32.850
So between, the Anderson transcripts are part
57
00:02:32.850 --> 00:02:36.630
of this record, and between the two cases,
58
00:02:36.630 --> 00:02:38.340
there are 19 Commonwealth witnesses.
59
00:02:38.340 --> 00:02:39.870
There's six that don't overlap
60
00:02:39.870 --> 00:02:42.690
that testified at one and not the other.
61
00:02:42.690 --> 00:02:45.210
And you have civilian witnesses, you have police,
62
00:02:45.210 --> 00:02:47.940
you have from different phases of the whole-
63
00:02:47.940 --> 00:02:49.890
Before we get to harmlessness, though, but it just seems
64
00:02:49.890 --> 00:02:54.890
like this is a material witness recanting post-conviction.
65
00:02:56.070 --> 00:02:58.050
Whether it's a code
66
00:02:58.050 --> 00:03:00.510
of professional responsibility obligation
67
00:03:00.510 --> 00:03:03.870
or a Brady, this is the kind
68
00:03:03.870 --> 00:03:05.910
of thing we want turned over, don't we?
69
00:03:05.910 --> 00:03:09.480
Because otherwise, there are real problems out there.
70
00:03:09.480 --> 00:03:11.015
Well, that's the thing.
71
00:03:11.015 --> 00:03:12.440
I think if you look at page 131
72
00:03:12.440 --> 00:03:13.710
of the Commonwealth's appendix,
73
00:03:13.710 --> 00:03:16.710
you have the Commonwealth's position at the time
74
00:03:16.710 --> 00:03:19.569
of this document, of this first affidavit,
75
00:03:19.569 --> 00:03:24.569
actually, of the two affidavits, and what it seems to me
76
00:03:24.570 --> 00:03:27.540
that does create something new comes in,
77
00:03:27.540 --> 00:03:29.670
and what the Commonwealth absolutely has
78
00:03:29.670 --> 00:03:32.070
under duty or competence is to inquire
79
00:03:32.070 --> 00:03:34.440
into that is new material or credible.
80
00:03:34.440 --> 00:03:36.720
That's what the ethical rules require,
81
00:03:36.720 --> 00:03:38.850
and in this case, unquestionably,
82
00:03:38.850 --> 00:03:40.650
that's exactly what happened.
83
00:03:40.650 --> 00:03:42.240
They looked at it, they didn't just dismiss it
84
00:03:42.240 --> 00:03:44.640
because it looked like it was written
85
00:03:44.640 --> 00:03:47.760
by a jailhouse lawyer or whatever, it wasn't that.
86
00:03:47.760 --> 00:03:49.920
If you read the Commonwealth's opposition that was filed
87
00:03:49.920 --> 00:03:51.192
in the Funderberg new trial motion
88
00:03:51.192 --> 00:03:54.990
that was litigated in 1992 before Judge Tuttle,
89
00:03:54.990 --> 00:03:57.270
it's very clear they have references to the record
90
00:03:57.270 --> 00:03:59.700
in that case and the Anderson trial, and-
91
00:03:59.700 --> 00:04:01.137
Just to push that a second,
92
00:04:01.137 --> 00:04:03.839
and Justice Gaziano's better at this than I am
93
00:04:03.839 --> 00:04:07.080
'cause he wrote it, but didn't we say we don't want
94
00:04:07.080 --> 00:04:11.460
credibility determinations pre-trial being made
95
00:04:11.460 --> 00:04:13.200
by the prosecutors?
96
00:04:13.200 --> 00:04:17.601
Now we're going to say that the prosecutors can make
97
00:04:17.601 --> 00:04:20.700
credibility determinations post-trial
98
00:04:20.700 --> 00:04:22.830
on this kind of information?
99
00:04:22.830 --> 00:04:23.720
Well, in this particular case,
100
00:04:23.720 --> 00:04:26.070
it was validated by a superior court judge.
101
00:04:26.070 --> 00:04:27.930
Well, baked into the rule
102
00:04:27.930 --> 00:04:32.930
of professional conduct is credible, as opposed to Brady.
103
00:04:33.150 --> 00:04:35.640
Adopted in 2016, absolutely.
104
00:04:35.640 --> 00:04:37.020
But if we were moved to a Brady,
105
00:04:37.020 --> 00:04:39.120
then that would take it out of that.
106
00:04:39.120 --> 00:04:42.930
That credibility assessment would leave
107
00:04:42.930 --> 00:04:44.339
if we were to make it a,
108
00:04:44.339 --> 00:04:46.770
if we were to have a post Brady,
109
00:04:46.770 --> 00:04:48.377
a post-trial Brady obligation.
110
00:04:48.377 --> 00:04:51.930
Right, but you'd also, you'd be changing the basis
111
00:04:51.930 --> 00:04:54.360
that of the case law of court rules
112
00:04:54.360 --> 00:04:56.910
and that the rules of professional conduct,
113
00:04:56.910 --> 00:04:58.980
'cause don't forget on the post-conviction rules,
114
00:04:58.980 --> 00:05:02.490
now that they're convicted, Rule 30-C4 puts the burden
115
00:05:02.490 --> 00:05:04.980
on a defendant to come forward with affidavits
116
00:05:04.980 --> 00:05:07.530
or other matter from 30-30-C3,
117
00:05:07.530 --> 00:05:09.930
and create a prima facie evidence
118
00:05:09.930 --> 00:05:12.270
that they're entitled to move further discovery,
119
00:05:12.270 --> 00:05:13.620
presuming of course they follow,
120
00:05:13.620 --> 00:05:15.900
Commonwealth has followed Brady and turned everything over
121
00:05:15.900 --> 00:05:17.790
that they're supposed to, right?
122
00:05:17.790 --> 00:05:21.780
What would be wrong with a legal regime
123
00:05:21.780 --> 00:05:26.100
that would require prosecutors to disclose
124
00:05:26.100 --> 00:05:29.073
this kind of recantation affidavit?
125
00:05:30.690 --> 00:05:33.000
What would be the problem either practically
126
00:05:33.000 --> 00:05:35.970
or legally with that kind of regime?
127
00:05:35.970 --> 00:05:39.060
So I think you've actually got, just to step back
128
00:05:39.060 --> 00:05:41.730
a little bit, and I will get to your answer,
129
00:05:41.730 --> 00:05:43.410
I think you've got two issues here,
130
00:05:43.410 --> 00:05:46.830
and they get a little conflated in this case I believe.
131
00:05:46.830 --> 00:05:49.656
You have one issue where you have
132
00:05:49.656 --> 00:05:52.440
co-defendants who were consolidated at trial,
133
00:05:52.440 --> 00:05:54.360
who are usually consolidated for on appeal
134
00:05:54.360 --> 00:05:56.820
in front of your court or the appeals court,
135
00:05:56.820 --> 00:06:00.090
and then post that direct appeal just procedurally,
136
00:06:00.090 --> 00:06:02.880
everyone sort of goes into their silo, right?
137
00:06:02.880 --> 00:06:05.640
So you've sort of got a, you've got a situation of,
138
00:06:05.640 --> 00:06:07.770
for lack of a better way to put it, sort of transparency
139
00:06:07.770 --> 00:06:11.539
of notice between previously consolidated co-defendants
140
00:06:11.539 --> 00:06:13.410
post direct appeal.
141
00:06:13.410 --> 00:06:16.050
They litigate their cases and there's no obligation
142
00:06:16.050 --> 00:06:18.990
to tell anybody what they're doing, whether it's,
143
00:06:18.990 --> 00:06:20.730
it may pertain to them,
144
00:06:20.730 --> 00:06:22.374
but they have no obligation to tell them,
145
00:06:22.374 --> 00:06:24.960
and to get to your, and the second issue is
146
00:06:24.960 --> 00:06:28.500
what we're sort of talking about now is material that comes
147
00:06:28.500 --> 00:06:30.690
to the Commonwealth, right?
148
00:06:30.690 --> 00:06:33.330
That the Commonwealth is making as assessment,
149
00:06:33.330 --> 00:06:35.250
at least under the current professional conduct rules,
150
00:06:35.250 --> 00:06:36.907
making this assessment, and you're saying
151
00:06:36.907 --> 00:06:41.370
what happens if you just require it all to go?
152
00:06:41.370 --> 00:06:45.760
And what I'm saying is, is the current, for good reason,
153
00:06:48.150 --> 00:06:52.140
the current case law court rule of professional conduct
154
00:06:52.140 --> 00:06:55.140
put the burden on the defendant as the most interested party
155
00:06:55.140 --> 00:06:58.800
to come forward with affidavits in 30-C3
156
00:06:58.800 --> 00:06:59.940
to prove their point in 30-C4.
157
00:06:59.940 --> 00:07:02.880
I'm sorry, with affidavits of what?
158
00:07:02.880 --> 00:07:05.490
To support the reasons why they require a new trial
159
00:07:05.490 --> 00:07:07.860
or need a new trial under 30-C3, right?
160
00:07:07.860 --> 00:07:11.070
30-C4, and this is why that's important,
161
00:07:11.070 --> 00:07:14.520
particularly important is, well, two reasons,
162
00:07:14.520 --> 00:07:16.050
one, you're putting the burden
163
00:07:16.050 --> 00:07:17.730
on the most interested party, right?
164
00:07:17.730 --> 00:07:21.510
You want them to be, that party to be the party moving.
165
00:07:21.510 --> 00:07:23.700
It's also important because they're also gonna be
166
00:07:23.700 --> 00:07:26.130
the most knowledgeable party at that point.
167
00:07:26.130 --> 00:07:27.540
The Commonwealth's not investigating anymore.
168
00:07:27.540 --> 00:07:29.070
They've already turned everything over.
169
00:07:29.070 --> 00:07:31.050
Counsel, I do have to stop you,
170
00:07:31.050 --> 00:07:34.950
because I still want to get to Justice Wendlandt's question.
171
00:07:34.950 --> 00:07:38.370
Okay, I give you all that when it's
172
00:07:38.370 --> 00:07:40.830
the defendant is looking for trial.
173
00:07:40.830 --> 00:07:45.830
What I'm, what's the principled reason in this case
174
00:07:46.110 --> 00:07:48.630
where you have co-defendants in another case,
175
00:07:48.630 --> 00:07:50.850
the Commonwealth gets an affidavit
176
00:07:50.850 --> 00:07:53.940
that arguably is recanted for all purposes,
177
00:07:53.940 --> 00:07:56.520
and whether it's not the other codefendant is moving
178
00:07:56.520 --> 00:07:58.650
for a new trial or not, you get it.
179
00:07:58.650 --> 00:07:59.940
What's the principled reason
180
00:07:59.940 --> 00:08:03.480
to not require the Commonwealth post disposition,
181
00:08:03.480 --> 00:08:06.330
post-trial to say, "I'm gonna turn it over."
182
00:08:06.330 --> 00:08:08.910
What's the principle reason for that?
183
00:08:08.910 --> 00:08:11.160
The principal reason for that is it's entire,
184
00:08:11.160 --> 00:08:15.090
no, in this particular case, it's entirely not credible,
185
00:08:15.090 --> 00:08:19.223
and the second affidavit comes in from the same person.
186
00:08:19.223 --> 00:08:21.780
I mean, the Commonwealth's position is always gonna be
187
00:08:21.780 --> 00:08:25.770
that it's not credible because the witness is recanting.
188
00:08:25.770 --> 00:08:27.060
I'm confused by that.
189
00:08:27.060 --> 00:08:29.160
I mean, could that really be the metric?
190
00:08:29.160 --> 00:08:32.280
Like you have, let's just assume for the purposes
191
00:08:32.280 --> 00:08:34.620
of argument that this was a material witness
192
00:08:34.620 --> 00:08:36.900
who said, "This defendant did it.
193
00:08:36.900 --> 00:08:39.392
He was the one that ran into my apartment,
194
00:08:39.392 --> 00:08:43.830
and I heard him interacting with the other co-defendants,"
195
00:08:43.830 --> 00:08:45.210
the Commonwealth position
196
00:08:45.210 --> 00:08:49.080
which they marshaled at trial is that that's true,
197
00:08:49.080 --> 00:08:52.987
and now we have a affidavit that's saying,
198
00:08:52.987 --> 00:08:54.660
"I completely made that up."
199
00:08:54.660 --> 00:08:57.360
And the Commonwealth did exactly what you would want them
200
00:08:57.360 --> 00:08:58.890
to do in this case, what did they do?
201
00:08:58.890 --> 00:09:00.900
They go to the evidence that was in the case
202
00:09:00.900 --> 00:09:03.090
and they see his wife testified the same,
203
00:09:03.090 --> 00:09:04.860
Alfred Hamilton testified the same.
204
00:09:04.860 --> 00:09:05.814
Anderson gives a voluntary confession.
205
00:09:05.814 --> 00:09:08.610
Right, right, so get to my question,
206
00:09:08.610 --> 00:09:10.680
which I don't think you ever answered, is
207
00:09:10.680 --> 00:09:13.500
what would be wrong with the legal regime
208
00:09:13.500 --> 00:09:15.240
that would require the Commonwealth
209
00:09:15.240 --> 00:09:17.823
to disclose that to the codefendant?
210
00:09:19.290 --> 00:09:23.850
I'm not saying that the recantation is true, not true,
211
00:09:23.850 --> 00:09:26.430
I don't know, but why do we have
212
00:09:26.430 --> 00:09:28.560
the Commonwealth making that call?
213
00:09:28.560 --> 00:09:31.110
What would be, what's the value of that?
214
00:09:31.110 --> 00:09:31.943
Tell me that.
Because at that point,
215
00:09:31.943 --> 00:09:33.420
the defendant's the most knowledgeable party.
216
00:09:33.420 --> 00:09:34.560
The Commonwealth gonna-
217
00:09:34.560 --> 00:09:37.140
The defendant doesn't know about the affidavit.
218
00:09:37.140 --> 00:09:40.410
The Commonwealth is gonna have no idea of any
219
00:09:40.410 --> 00:09:43.170
of the security issues involved with turning that over.
220
00:09:43.170 --> 00:09:45.750
You have no idea, right?
221
00:09:45.750 --> 00:09:48.270
You have no idea if it, there are, if you look at some
222
00:09:48.270 --> 00:09:50.880
of the rules that are I think New York State.
223
00:09:50.880 --> 00:09:52.323
Sorry, what security issues?
224
00:09:52.323 --> 00:09:54.360
What if their one, what if the affidavit,
225
00:09:54.360 --> 00:09:57.117
what if their affidavit, say something comes in,
226
00:09:57.117 --> 00:09:58.530
and if there's a security issue
227
00:09:58.530 --> 00:09:59.820
with one of the other witnesses?
228
00:09:59.820 --> 00:10:03.780
Like you don't, you know how it impacts?
229
00:10:03.780 --> 00:10:05.723
No, I'm just trying to understand what you're saying.
230
00:10:05.723 --> 00:10:09.330
There's no lawyer anymore for the codefendant,
231
00:10:09.330 --> 00:10:12.450
so you would be giving the affidavit
232
00:10:12.450 --> 00:10:15.960
to the codefendant who's serving a prison sentence,
233
00:10:15.960 --> 00:10:17.700
Right, or I mean, you have no idea,
234
00:10:17.700 --> 00:10:20.670
because the Commonwealth at that point,
235
00:10:20.670 --> 00:10:22.260
post-conviction, the Commonwealth attorney
236
00:10:22.260 --> 00:10:25.620
that's on this is not gonna have
237
00:10:25.620 --> 00:10:28.020
the knowledge of the case file and to know all that.
238
00:10:28.020 --> 00:10:29.880
Well, this gets to my question, which is maybe
239
00:10:29.880 --> 00:10:32.670
just a different version of Justice Wendlandt's question.
240
00:10:32.670 --> 00:10:34.740
So in my understanding,
241
00:10:34.740 --> 00:10:36.300
when we think about Brady violations,
242
00:10:36.300 --> 00:10:39.150
the focus is on the prosecution team.
243
00:10:39.150 --> 00:10:43.343
And how do you conceive of,
244
00:10:43.343 --> 00:10:45.000
and particularly in the circumstances of this case
245
00:10:45.000 --> 00:10:47.670
where it was so many years later, how do you conceive
246
00:10:47.670 --> 00:10:51.000
of what if the court were to go in the Brady direction,
247
00:10:51.000 --> 00:10:52.620
what the prosecution team would be?
248
00:10:52.620 --> 00:10:54.780
And also, second part of the question,
249
00:10:54.780 --> 00:10:56.809
I'm not familiar enough with this record to know
250
00:10:56.809 --> 00:11:00.180
the personnel who are present at this key moment
251
00:11:00.180 --> 00:11:02.790
in the early 1990s versus the personnel at trial,
252
00:11:02.790 --> 00:11:05.940
and can you comment on if there's any continuity there
253
00:11:05.940 --> 00:11:08.460
or not vis-a-vis the point that you were just making
254
00:11:08.460 --> 00:11:10.500
about the Commonwealth having
255
00:11:10.500 --> 00:11:13.537
the knowledge to connect all these pieces?
256
00:11:13.537 --> 00:11:16.800
Second question first, completely different.
257
00:11:16.800 --> 00:11:17.633
It was-
258
00:11:17.633 --> 00:11:18.690
Oh, that's enough said.
259
00:11:18.690 --> 00:11:20.130
But so can you go back to the first question
260
00:11:20.130 --> 00:11:21.930
about the meaning of the prosecution team?
261
00:11:21.930 --> 00:11:25.200
Do we just conceive of the whole DA's office
262
00:11:25.200 --> 00:11:29.040
as the prosecution team once it gets to be post-conviction?
263
00:11:29.040 --> 00:11:31.050
I mean, it's gonna be typically, at least in Suffolk,
264
00:11:31.050 --> 00:11:32.550
it's gonna be in the appeals unit,
265
00:11:32.550 --> 00:11:36.030
and especially 15 years later, it's not gonna be,
266
00:11:36.030 --> 00:11:39.120
no one's gonna be involved in the case that knows the case
267
00:11:39.120 --> 00:11:42.930
to any depth of specificity as far as what is,
268
00:11:42.930 --> 00:11:44.430
what does this mean to another co-defendant?
269
00:11:44.430 --> 00:11:45.483
Or what does this mean in this case?
270
00:11:45.483 --> 00:11:46.890
They don't, they may not know.
271
00:11:46.890 --> 00:11:50.250
Well, the affidavit itself specifically recants testimony
272
00:11:50.250 --> 00:11:53.040
inculpating a specific man who's in prison,
273
00:11:53.040 --> 00:11:55.817
so the Commonwealth in this case, it's pretty easy, right?
274
00:11:55.817 --> 00:11:57.780
Well, I think in this case it's pretty easy
275
00:11:57.780 --> 00:11:59.130
in the sense that the Commonwealth,
276
00:11:59.130 --> 00:12:00.660
I think they were eminently reasonable to wait
277
00:12:00.660 --> 00:12:03.420
until the litigation for the new trial motion played out.
278
00:12:03.420 --> 00:12:06.030
I mean, I think that's absolutely reasonable,
279
00:12:06.030 --> 00:12:07.950
because then a second affidavit comes in
280
00:12:07.950 --> 00:12:10.200
inculpating Mr. Gaines, that same witness comes
281
00:12:10.200 --> 00:12:13.590
into the hearing testimony again inculpates Mr. Gaines,
282
00:12:13.590 --> 00:12:16.037
he puts a gun, the gun that killed Mr. Sulfaro,
283
00:12:16.037 --> 00:12:19.080
the 22 caliber weapon, there's support in the record
284
00:12:19.080 --> 00:12:20.880
that that was Mr. Gaines's weapon,
285
00:12:20.880 --> 00:12:24.030
so on page 459 of the Anderson transcripts.
286
00:12:24.030 --> 00:12:26.190
So I think they were eminently reasonable
287
00:12:26.190 --> 00:12:27.690
at that point to wait.
288
00:12:27.690 --> 00:12:30.360
Then Judge Tuttle sees the witness, right?
289
00:12:30.360 --> 00:12:32.440
Sees him, he testifies, finds him not credible.
290
00:12:32.440 --> 00:12:35.223
Yeah, because he's drunk.
291
00:12:36.510 --> 00:12:38.430
Well, he finds him, he reviews the record.
292
00:12:38.430 --> 00:12:39.780
It's not like he's drunk, I'm not believing
293
00:12:39.780 --> 00:12:42.348
anything he says, he reviews the record.
294
00:12:42.348 --> 00:12:45.240
Bass's testimony shifts, correct?
295
00:12:45.240 --> 00:12:46.440
In that regard, yes.
296
00:12:46.440 --> 00:12:49.830
The first affidavit says, you know,
297
00:12:49.830 --> 00:12:51.660
not Funderberg, Gaines, and Anderson,
298
00:12:51.660 --> 00:12:53.730
and then he comes in later with second affidavit, said,
299
00:12:53.730 --> 00:12:55.620
well, it was actually was just not Funderberg.
300
00:12:55.620 --> 00:12:56.880
It was Gaines and Anderson,
301
00:12:56.880 --> 00:12:58.500
and then that's the way he testifies
302
00:12:58.500 --> 00:13:00.600
according to Judge Tuttle's order, yes.
303
00:13:00.600 --> 00:13:02.550
To the second version?
304
00:13:02.550 --> 00:13:03.480
Correct.
305
00:13:03.480 --> 00:13:05.790
Can you address, I mean, when we look
306
00:13:05.790 --> 00:13:10.790
at Brescia and Rosario in this confluence on Rule 30,
307
00:13:11.760 --> 00:13:14.343
what you say essentially in your brief is
308
00:13:14.343 --> 00:13:17.280
that the judge cherry picked and didn't take
309
00:13:17.280 --> 00:13:18.930
into account inculpatory facts.
310
00:13:18.930 --> 00:13:20.760
Can you expand on that?
311
00:13:20.760 --> 00:13:25.760
Sure, so I understand, and I would never argue
312
00:13:25.920 --> 00:13:29.580
that a judge has to catalog every, make a catalog
313
00:13:29.580 --> 00:13:32.040
of evidence in their case in an order like this,
314
00:13:32.040 --> 00:13:34.050
because I mean, nothing would ever get done.
315
00:13:34.050 --> 00:13:36.690
That's just, it would never, you can't say that.
316
00:13:36.690 --> 00:13:37.680
But what you can say,
317
00:13:37.680 --> 00:13:41.130
and I believe what the equate cases do say is
318
00:13:41.130 --> 00:13:44.910
that any order a judge issues has to be supported by that.
319
00:13:44.910 --> 00:13:49.590
It has to be consistent with the record in the case.
320
00:13:49.590 --> 00:13:52.290
And what I'm saying is, is that was an error,
321
00:13:52.290 --> 00:13:54.420
because if you look at the record in this case,
322
00:13:54.420 --> 00:13:57.690
things she never mentioned, that a second officer heard
323
00:13:57.690 --> 00:13:59.940
Mr. Gaines's admission on the flight back from Iowa,
324
00:13:59.940 --> 00:14:01.800
Mr. Anderson confessed.
325
00:14:01.800 --> 00:14:04.710
That was played, there was a voir dire at his hearing,
326
00:14:04.710 --> 00:14:06.540
it was found admissible by that judge.
327
00:14:06.540 --> 00:14:09.565
The tape and the transcripts were presented to the jury.
328
00:14:09.565 --> 00:14:13.080
This court reviewed, at the direction of the Commonwealth,
329
00:14:13.080 --> 00:14:17.613
this court in 1997 reviewed those confessions,
330
00:14:19.440 --> 00:14:22.200
reviewed the record to see if there was any evidence
331
00:14:22.200 --> 00:14:25.200
of lack of volunteering and found there was none.
332
00:14:25.200 --> 00:14:28.170
So there's the confession out there that Anderson, Gaines,
333
00:14:28.170 --> 00:14:30.570
and Funderberg committed this robbery and murder,
334
00:14:30.570 --> 00:14:34.740
and she never discusses that, and I mean, I could go on,
335
00:14:34.740 --> 00:14:35.940
but I mean, I think there's,
336
00:14:35.940 --> 00:14:40.410
certainly there is a lack of attention to
337
00:14:40.410 --> 00:14:44.220
or explanation of contrary evidence
338
00:14:44.220 --> 00:14:46.410
that's directly contrary,
339
00:14:46.410 --> 00:14:50.040
and I'm not talking sort of nitpicking facts,
340
00:14:50.040 --> 00:14:51.990
I'm talking major facts.
341
00:14:51.990 --> 00:14:53.970
The second affidavit, Deloche,
342
00:14:53.970 --> 00:14:56.310
Anderson's voluntary confession,
343
00:14:56.310 --> 00:14:59.340
I mean, it's never dealt with, it's never addressed.
344
00:14:59.340 --> 00:15:01.290
The other question I had was with respect
345
00:15:01.290 --> 00:15:05.700
to the expert witness testimony on identification,
346
00:15:05.700 --> 00:15:10.110
Gomes, it says the jury instructions are prospective.
347
00:15:10.110 --> 00:15:14.880
Here, we have changes in law and science similar to DNA.
348
00:15:14.880 --> 00:15:17.670
Are you saying that because expert witness
349
00:15:17.670 --> 00:15:19.890
on identification is a soft science,
350
00:15:19.890 --> 00:15:22.740
or are you saying that we shouldn't look at it
351
00:15:22.740 --> 00:15:25.200
for future cases, because as I see it,
352
00:15:25.200 --> 00:15:30.200
it's a change as we did in Epps, it's a change in the law,
353
00:15:30.540 --> 00:15:32.610
and the effect of it could be different.
354
00:15:32.610 --> 00:15:34.320
I mean, DNA evidence as you know,
355
00:15:34.320 --> 00:15:36.150
from doing the work you do,
356
00:15:36.150 --> 00:15:38.190
could be exculpatory or could be meaningless.
357
00:15:38.190 --> 00:15:40.470
It depends on if it's roadside glitter
358
00:15:40.470 --> 00:15:43.105
as we had in cases or if it's the bloodstain, right?
359
00:15:43.105 --> 00:15:43.938
Right.
360
00:15:43.938 --> 00:15:48.120
So why doesn't expert identification issues
361
00:15:48.120 --> 00:15:53.120
or testimony have the same post-conviction inquiry
362
00:15:54.450 --> 00:15:56.733
as does DNA or any other science?
363
00:15:57.870 --> 00:16:00.380
I think it's different, because the DNA
364
00:16:00.380 --> 00:16:05.250
or the shaken baby cases, it's just depending on the result,
365
00:16:05.250 --> 00:16:08.070
it's just the case ends, right?
366
00:16:08.070 --> 00:16:11.640
If the DNA comes back and there's YSCL exclusion, it's over,
367
00:16:11.640 --> 00:16:13.380
pretty much, no, but-
It depends.
368
00:16:13.380 --> 00:16:14.400
We've had a lot of cases.
369
00:16:14.400 --> 00:16:17.730
It depends on what DNA we're talking about.
370
00:16:17.730 --> 00:16:21.840
What I'm saying with this is the court has had, you know,
371
00:16:21.840 --> 00:16:25.680
has issued a report, it has issued Gomes in its sort
372
00:16:25.680 --> 00:16:29.940
of progeny discussing this with a instruction
373
00:16:29.940 --> 00:16:32.520
that's now required to be given.
374
00:16:32.520 --> 00:16:36.540
What I'm saying is, is that to me,
375
00:16:36.540 --> 00:16:41.100
that identification science is sort of a prism
376
00:16:41.100 --> 00:16:45.030
that it allows you to look and assess a risk factor,
377
00:16:45.030 --> 00:16:48.210
and what you do is you can see, 'cause some cases,
378
00:16:48.210 --> 00:16:50.550
you can say, "All right, let's take a look,"
379
00:16:50.550 --> 00:16:52.590
and there might be no risk, there might be a low,
380
00:16:52.590 --> 00:16:54.690
or whatever, you know, you can see the facts
381
00:16:54.690 --> 00:16:56.760
of the case sort of zooming in close,
382
00:16:56.760 --> 00:16:58.920
but then pulling back under a sort
383
00:16:58.920 --> 00:17:01.293
of confluence of factors analysis, right?
384
00:17:01.293 --> 00:17:03.510
Then you pull back and you can look at that.
385
00:17:03.510 --> 00:17:04.950
Once you know what you've got,
386
00:17:04.950 --> 00:17:07.380
then you look at the broad sweep.
387
00:17:07.380 --> 00:17:08.213
We've had a case-
388
00:17:08.213 --> 00:17:10.130
I'm confused what you're saying there.
389
00:17:11.070 --> 00:17:15.397
Like the shaken baby, in the shaken baby case,
390
00:17:15.397 --> 00:17:20.280
we said, "Okay, there's new science here
391
00:17:20.280 --> 00:17:23.160
that enables you to question this more.
392
00:17:23.160 --> 00:17:25.140
It's not conclusive."
393
00:17:25.140 --> 00:17:27.690
Isn't that similar to what we're dealing with here,
394
00:17:27.690 --> 00:17:31.080
which is the eyewitness stuff is shakier
395
00:17:31.080 --> 00:17:33.270
than we originally thought,
396
00:17:33.270 --> 00:17:35.970
and therefore there's new evidence here?
397
00:17:35.970 --> 00:17:39.450
I'm just, to me, I understand this is a big deal,
398
00:17:39.450 --> 00:17:42.390
'cause we've got thousands and thousands of cases
399
00:17:42.390 --> 00:17:44.553
based on eyewitness identification.
400
00:17:45.660 --> 00:17:47.940
But I'm just trying to understand why it's different
401
00:17:47.940 --> 00:17:50.970
than like the shaken baby decision we issued.
402
00:17:50.970 --> 00:17:54.030
I guess what I could say is some of the reviews we've done
403
00:17:54.030 --> 00:17:57.660
where you look at some of these older cases, like you say,
404
00:17:57.660 --> 00:18:01.940
and they're just, it's just the way they did things
405
00:18:01.940 --> 00:18:04.440
in the '70s or '80s, right?
406
00:18:04.440 --> 00:18:06.840
And you look at, you sort of zoom in,
407
00:18:06.840 --> 00:18:08.040
you look at how it was done,
408
00:18:08.040 --> 00:18:10.260
it's like high risk whatever, right?
409
00:18:10.260 --> 00:18:12.870
What did that, what actually happened?
410
00:18:12.870 --> 00:18:17.870
And then you look at the evidence in the case.
411
00:18:18.178 --> 00:18:20.490
I understand the second part of the analysis
412
00:18:20.490 --> 00:18:23.910
when we've gotta look at how meaningful this is,
413
00:18:23.910 --> 00:18:28.530
but isn't it new evidence in the same way?
414
00:18:28.530 --> 00:18:29.550
Go ahead, sorry.
415
00:18:29.550 --> 00:18:33.780
How we used to do things is we used to do blood typing.
416
00:18:33.780 --> 00:18:34.860
Yeah, serology tests, sure.
417
00:18:34.860 --> 00:18:36.567
Right, going back,
418
00:18:36.567 --> 00:18:41.567
but now we do STR, PCR based, very minute,
419
00:18:43.170 --> 00:18:46.067
so the answer isn't this is how we used to do things.
420
00:18:46.067 --> 00:18:49.980
'cause we have exonerations based upon STR testing
421
00:18:49.980 --> 00:18:53.280
when we had convictions on blood group,
422
00:18:53.280 --> 00:18:54.333
and so I don't think that's the answer is
423
00:18:54.333 --> 00:18:55.707
this is how we used to do things.
424
00:18:55.707 --> 00:18:58.080
No, no, no, what I'm saying is,
425
00:18:58.080 --> 00:19:00.630
and I'll just a specific example.
426
00:19:00.630 --> 00:19:03.520
So we've had a case where we looked at it
427
00:19:04.380 --> 00:19:08.430
mid '70s identification procedures, right?
428
00:19:08.430 --> 00:19:10.650
Then we go and we look at the evidence
429
00:19:10.650 --> 00:19:12.930
in the case, and there was nothing.
430
00:19:12.930 --> 00:19:14.700
There was literally nothing else.
431
00:19:14.700 --> 00:19:15.533
No, no.
432
00:19:15.533 --> 00:19:17.670
And we knew, and that ended up being we assented
433
00:19:17.670 --> 00:19:18.900
to that new trial motion.
434
00:19:18.900 --> 00:19:21.467
Right, and that's what we're doing here.
435
00:19:21.467 --> 00:19:22.300
Yeah, that's what I'm saying,
436
00:19:22.300 --> 00:19:24.030
and what I'm saying here, right?
437
00:19:24.030 --> 00:19:27.975
Is you look at the procedures that were used, right?
438
00:19:27.975 --> 00:19:31.387
And then you sort of go zoom back out and you say,
439
00:19:31.387 --> 00:19:35.556
"Look, issue was argued to the jury,
440
00:19:35.556 --> 00:19:37.710
fully presented to the jury," right?
441
00:19:37.710 --> 00:19:41.220
Minus the expert, obviously. 'cause that's now, right?
442
00:19:41.220 --> 00:19:43.657
Commonwealth in its closing right up front says,
443
00:19:43.657 --> 00:19:46.200
"We've made mistakes in this case in the beginning,"
444
00:19:46.200 --> 00:19:49.350
and it is very upfront with the jury about it, right?
445
00:19:49.350 --> 00:19:54.350
And then you've got a situation where the jury deliberated
446
00:19:54.480 --> 00:19:56.820
for, you know, two hours or whatever,
447
00:19:56.820 --> 00:19:59.850
and then you got in the case record,
448
00:19:59.850 --> 00:20:03.420
you have an Anderson voluntary confession,
449
00:20:03.420 --> 00:20:05.490
you have an admission from the defendant,
450
00:20:05.490 --> 00:20:09.510
you have evidence of other witnesses
451
00:20:09.510 --> 00:20:12.420
who are not compromised in any way,
452
00:20:12.420 --> 00:20:14.250
no even accusation of it,
453
00:20:14.250 --> 00:20:17.430
and they all support those confessions.
454
00:20:17.430 --> 00:20:19.770
It's all consistent with those confessions.
455
00:20:19.770 --> 00:20:21.840
And you look at that and you say, "Yeah, there's no."
456
00:20:21.840 --> 00:20:22.770
Is there a risk?
457
00:20:22.770 --> 00:20:24.960
Yes, was there a substantial risk of a miscarriage
458
00:20:24.960 --> 00:20:27.450
of justice in this case based on the totality of evidence?
459
00:20:27.450 --> 00:20:29.223
No, there was not.
460
00:20:30.210 --> 00:20:31.290
Those three men were the men
461
00:20:31.290 --> 00:20:33.113
who committed this robbery and murder.
462
00:20:35.220 --> 00:20:37.378
Okay, thank you.
463
00:20:37.378 --> 00:20:38.633
If there's no further questions.
464
00:20:42.330 --> 00:20:43.380
Attorney Schnipper.
465
00:20:47.730 --> 00:20:49.440
Good morning, excuse me, good morning,
466
00:20:49.440 --> 00:20:50.940
may it please the court, I'm Merritt Schnipper,
467
00:20:50.940 --> 00:20:53.490
here on behalf of Raymond Gaines today.
468
00:20:53.490 --> 00:20:55.800
Mr. Gaines is able to be here with us today in the courtroom
469
00:20:55.800 --> 00:20:58.950
after serving 45 years in prison on the record
470
00:20:58.950 --> 00:21:01.530
that's now before this court, and I think it's fair to say
471
00:21:01.530 --> 00:21:04.593
that that record today looks remarkably different
472
00:21:04.593 --> 00:21:07.743
than it did the last time this court reviewed it in 1978.
473
00:21:08.670 --> 00:21:09.990
Before I get into the big picture issues,
474
00:21:09.990 --> 00:21:12.840
and this case presents many, I want to just push back
475
00:21:12.840 --> 00:21:14.010
against my brother's assertion
476
00:21:14.010 --> 00:21:15.780
that post-conviction criminal defendants are
477
00:21:15.780 --> 00:21:18.060
all on their own separate silo.
478
00:21:18.060 --> 00:21:19.080
The rules of procedure
479
00:21:19.080 --> 00:21:22.230
and specifically rule of criminal procedure 32-A requires
480
00:21:22.230 --> 00:21:25.200
all motion papers and responses thereto
481
00:21:25.200 --> 00:21:28.140
in all criminal proceedings to be served on codefendants
482
00:21:28.140 --> 00:21:30.960
as well as the Commonwealth or all parties.
483
00:21:30.960 --> 00:21:32.760
And if you look at the reporter's notes, it says
484
00:21:32.760 --> 00:21:36.240
that's specifically to ensure the full dissemination
485
00:21:36.240 --> 00:21:39.120
of relevant information, so it's difficult to think
486
00:21:39.120 --> 00:21:41.610
of a case that more exemplifies
487
00:21:41.610 --> 00:21:44.121
what happens when that rule fails,
488
00:21:44.121 --> 00:21:46.980
because, and that's a failure
489
00:21:46.980 --> 00:21:48.210
both by Mr. Funderberg's counsel
490
00:21:48.210 --> 00:21:50.250
who also didn't serve Mr. Gaines, it's worth noting,
491
00:21:50.250 --> 00:21:52.856
but only one of those two parties as to Mr. Funderberg
492
00:21:52.856 --> 00:21:57.720
and the Commonwealth is responsible for depriving Mr. Gaines
493
00:21:57.720 --> 00:21:59.160
of his liberty and sending him to prison
494
00:21:59.160 --> 00:22:00.780
for his entire life.
495
00:22:00.780 --> 00:22:02.970
So with regard, moving to the big picture issues here,
496
00:22:02.970 --> 00:22:05.061
unless there are any questions about rule 32.
497
00:22:05.061 --> 00:22:07.560
That rule you cited, is it pre-trial or post-trial rule?
498
00:22:07.560 --> 00:22:09.570
It applies without restriction
499
00:22:09.570 --> 00:22:12.150
to pre or post-trial motions, and I would certainly note
500
00:22:12.150 --> 00:22:16.290
that it follows Rule 30 itself in the rules of procedure,
501
00:22:16.290 --> 00:22:19.380
but it does not refer to pre or post-trial motions,
502
00:22:19.380 --> 00:22:22.500
and you can contrast, say, rule 13 in that.
503
00:22:22.500 --> 00:22:23.640
Sorry, the rule is which?
504
00:22:23.640 --> 00:22:27.243
Rule 32-A, but I just want to,
505
00:22:28.500 --> 00:22:32.130
the idea that the motion judge was required to consider
506
00:22:32.130 --> 00:22:35.490
an inadmissible confession for purposes of assessing
507
00:22:35.490 --> 00:22:39.240
whether this jury trial resulted in an outcome
508
00:22:39.240 --> 00:22:41.070
that was inconsistent with justice,
509
00:22:41.070 --> 00:22:43.560
one thing that the Commonwealth has never addressed,
510
00:22:43.560 --> 00:22:46.440
and that's neither below nor in its briefing here,
511
00:22:46.440 --> 00:22:48.240
and of course thus the motion judge didn't have
512
00:22:48.240 --> 00:22:51.300
the opportunity to weigh in on was the relevance
513
00:22:51.300 --> 00:22:55.170
of the Bruton rule to any potential consideration
514
00:22:55.170 --> 00:22:57.419
of that confession, Bruton's-
515
00:22:57.419 --> 00:22:58.470
Are you referring to Anderson?
516
00:22:58.470 --> 00:23:00.540
I'm referring to Robert Anderson's confession
517
00:23:00.540 --> 00:23:03.870
because one of the Commonwealth's primary contentions is
518
00:23:03.870 --> 00:23:07.470
that despite the just disarray that this record lies in
519
00:23:07.470 --> 00:23:09.480
in light of our post-conviction case,
520
00:23:09.480 --> 00:23:12.270
the court can look past all the errors that the motion judge
521
00:23:12.270 --> 00:23:15.090
and her very comprehensive ruling found,
522
00:23:15.090 --> 00:23:17.610
because Robert Anderson separately confessed
523
00:23:17.610 --> 00:23:18.690
to this crime, of course he-
524
00:23:18.690 --> 00:23:20.340
What about Deloche?
525
00:23:20.340 --> 00:23:22.080
Sure, do you want to hear about the confession,
526
00:23:22.080 --> 00:23:23.680
or should I go right to Deloche?
527
00:23:24.990 --> 00:23:26.790
Well, you have 12 minutes.
528
00:23:26.790 --> 00:23:28.230
Why don't you go ahead with that?
529
00:23:28.230 --> 00:23:30.720
Well, so the thing about Detective Deloche is that
530
00:23:30.720 --> 00:23:32.520
of course, he does claim
531
00:23:32.520 --> 00:23:34.620
that he overheard Mr. Gaines speaking
532
00:23:34.620 --> 00:23:37.080
to Detective O'Malley on the plane, right?
533
00:23:37.080 --> 00:23:38.880
So the question then becomes,
534
00:23:38.880 --> 00:23:43.500
does that testimony from Detective Deloche require
535
00:23:43.500 --> 00:23:44.850
the motion judge to find
536
00:23:44.850 --> 00:23:46.800
that a jury would not have been impacted
537
00:23:46.800 --> 00:23:50.610
by all the other massive array of post-conviction evidence?
538
00:23:50.610 --> 00:23:52.320
And that's the recantation,
539
00:23:52.320 --> 00:23:54.810
that's the pretrial Brady violation in terms of the arrest
540
00:23:54.810 --> 00:23:57.540
of David Bass at his shooting gallery by Detective O'Malley,
541
00:23:57.540 --> 00:24:00.150
that's the new eyewitness identification science,
542
00:24:00.150 --> 00:24:03.405
and that's the significant evidence of misconduct
543
00:24:03.405 --> 00:24:06.450
by Detective O'Malley in this case, in multiple cases.
544
00:24:06.450 --> 00:24:08.820
But Counsel, one thing you don't, you leave out is
545
00:24:08.820 --> 00:24:11.370
Mr. Gaines's own words, putting himself there.
546
00:24:11.370 --> 00:24:13.230
I'm addressing that, and that's kind of what I think
547
00:24:13.230 --> 00:24:14.820
Detective Deloche is about,
548
00:24:14.820 --> 00:24:18.300
because we've significantly impeached
549
00:24:18.300 --> 00:24:20.100
Detective O'Malley's testimony.
550
00:24:20.100 --> 00:24:21.930
Detective O'Malley is the person who claimed
551
00:24:21.930 --> 00:24:23.400
Mr. Gaines confessed to him.
552
00:24:23.400 --> 00:24:26.340
Detective Deloche, we were unable to uncover 50 years
553
00:24:26.340 --> 00:24:30.030
after the fact any evidence to specifically impeach him.
554
00:24:30.030 --> 00:24:32.460
So I would ask the court to look at that question
555
00:24:32.460 --> 00:24:33.900
in light of a number of factors.
556
00:24:33.900 --> 00:24:35.970
There's significant evidence of misconduct
557
00:24:35.970 --> 00:24:38.580
by Detective O'Malley, both in this case and out of it.
558
00:24:38.580 --> 00:24:40.920
There's evidence of Detective Kotter's misconduct
559
00:24:40.920 --> 00:24:42.759
in this case by covering up the idea of this call
560
00:24:42.759 --> 00:24:46.729
to Paul Sulfaro in February 1975 by someone named Murphy
561
00:24:46.729 --> 00:24:49.500
telling him that he had chosen the wrong persons
562
00:24:49.500 --> 00:24:51.297
the first time he did an identification procedure,
563
00:24:51.297 --> 00:24:53.820
and the police needed to come by and tell him,
564
00:24:53.820 --> 00:24:55.800
show him some new pictures, thus implying
565
00:24:55.800 --> 00:24:57.813
that not only did they, you know,
566
00:24:57.813 --> 00:24:59.970
were the wrong guys picked the first time,
567
00:24:59.970 --> 00:25:01.620
but now we got the right guys in there
568
00:25:01.620 --> 00:25:03.540
in the array you're gonna see this time.
569
00:25:03.540 --> 00:25:07.710
We also have, of course, the motion judge's adoption of,
570
00:25:07.710 --> 00:25:10.320
at my request an adverse inference against the Commonwealth
571
00:25:10.320 --> 00:25:12.840
that it was withholding further probative evidence
572
00:25:12.840 --> 00:25:14.940
of police misconduct in discovery,
573
00:25:14.940 --> 00:25:16.530
and then finally what we have,
574
00:25:16.530 --> 00:25:18.630
and I think I would really urge the court to think about
575
00:25:18.630 --> 00:25:19.740
when you think about Detective Deloche
576
00:25:19.740 --> 00:25:21.000
specifically in this point,
577
00:25:21.000 --> 00:25:24.360
I think is very articulately raised in the amicus brief
578
00:25:24.360 --> 00:25:26.100
by the Harvard Criminal Justice Institute
579
00:25:26.100 --> 00:25:27.690
and Families for Justice as Healing is
580
00:25:27.690 --> 00:25:30.930
that police misconduct exists as part of a culture.
581
00:25:30.930 --> 00:25:34.620
It is not acts of individual misbehavior by people
582
00:25:34.620 --> 00:25:37.290
who are deviating from a group requirement.
583
00:25:37.290 --> 00:25:38.640
What they're doing, of course,
584
00:25:38.640 --> 00:25:40.350
they are individual police officers.
585
00:25:40.350 --> 00:25:42.330
We don't have fact finding on that though, right?
586
00:25:42.330 --> 00:25:43.163
We do not.
587
00:25:43.163 --> 00:25:45.660
We've got two big, big issues in this case.
588
00:25:45.660 --> 00:25:47.130
Sure.
589
00:25:47.130 --> 00:25:49.710
I don't wanna lose you before you address both of them,
590
00:25:49.710 --> 00:25:54.710
which is are we going to have a post trial Brady equivalent,
591
00:25:56.070 --> 00:26:01.070
and are we gonna treat eyewitness identification science
592
00:26:02.790 --> 00:26:05.827
the same way we treated DNA in shaken baby?
593
00:26:05.827 --> 00:26:08.490
So let me take the second first and the first second.
594
00:26:08.490 --> 00:26:10.380
We absolutely should treat them both,
595
00:26:10.380 --> 00:26:11.536
so we should absolutely treat
596
00:26:11.536 --> 00:26:13.530
eyewitness identification science
597
00:26:13.530 --> 00:26:14.970
as newly available evidence
598
00:26:14.970 --> 00:26:17.490
that defendants can bring in in appropriate cases
599
00:26:17.490 --> 00:26:20.040
and show that their identifications were obtained
600
00:26:20.040 --> 00:26:22.740
in violation of all the principles we now know.
601
00:26:22.740 --> 00:26:25.410
And I just wanna understand how that's gonna work,
602
00:26:25.410 --> 00:26:28.800
'cause I sort of agree with you
603
00:26:28.800 --> 00:26:32.820
that I can't distinguish the shaken baby analysis in,
604
00:26:32.820 --> 00:26:34.800
was it Marrero, I can't remember the name of the case, but-
605
00:26:34.800 --> 00:26:35.633
Epps.
606
00:26:35.633 --> 00:26:40.633
Epps, so we've got thousands
607
00:26:40.710 --> 00:26:44.856
and thousands of cases out there in which we have
608
00:26:44.856 --> 00:26:49.140
the old way of eyewitness identification.
609
00:26:49.140 --> 00:26:52.880
Does that mean every one of those cases is
610
00:26:53.745 --> 00:26:58.470
a newly discovered evidence case if brought?
611
00:26:58.470 --> 00:27:00.360
I mean, I'm just trying to understand that.
612
00:27:00.360 --> 00:27:04.470
So for instance, any case that was tried
613
00:27:04.470 --> 00:27:06.960
and convicted before the advent of DNA,
614
00:27:06.960 --> 00:27:08.460
DNA could potentially be
615
00:27:08.460 --> 00:27:11.130
newly discovered evidence in that case.
616
00:27:11.130 --> 00:27:14.430
DNA is sort of much more conclusive.
617
00:27:14.430 --> 00:27:16.421
There's nothing like DNA, for sure.
618
00:27:16.421 --> 00:27:17.254
It's different.
619
00:27:17.254 --> 00:27:18.210
This is more like the shaken baby.
620
00:27:18.210 --> 00:27:20.370
It's more like Epps, it's more like Rosario.
621
00:27:20.370 --> 00:27:23.760
There are advances in scientific inquiry
622
00:27:23.760 --> 00:27:26.580
that allow the fact finder to interpret trial evidence
623
00:27:26.580 --> 00:27:29.520
more effectively to determine the probative value
624
00:27:29.520 --> 00:27:31.017
that the fact finder wants to assign
625
00:27:31.017 --> 00:27:33.120
to that particular piece of evidence.
626
00:27:33.120 --> 00:27:36.480
So in any case that is susceptible to that analysis
627
00:27:36.480 --> 00:27:38.850
under an eyewitness identification regime,
628
00:27:38.850 --> 00:27:40.860
it is appropriate, at least for a defendant
629
00:27:40.860 --> 00:27:43.770
to have the opportunity to consult with an expert,
630
00:27:43.770 --> 00:27:45.660
look at the identification procedure,
631
00:27:45.660 --> 00:27:48.900
determine whether there's a basis, A, to claim that
632
00:27:48.900 --> 00:27:51.150
that identification procedure itself was unfair
633
00:27:51.150 --> 00:27:52.650
and produced unreliable results,
634
00:27:52.650 --> 00:27:55.110
and B, to look at that identification procedure
635
00:27:55.110 --> 00:27:57.780
in the context of the totality of the evidence at trial.
636
00:27:57.780 --> 00:28:00.600
So I would say it's a lot like Epps,
637
00:28:00.600 --> 00:28:01.590
it's a lot like Rosario,
638
00:28:01.590 --> 00:28:04.380
but in one way it's so much more important
639
00:28:04.380 --> 00:28:06.450
because you say there are thousands of cases.
640
00:28:06.450 --> 00:28:08.400
That's right, there are thousands of cases,
641
00:28:08.400 --> 00:28:11.910
and we have absolutely no idea sitting here today
642
00:28:11.910 --> 00:28:14.040
how many of those people are wrongfully convicted.
643
00:28:14.040 --> 00:28:16.740
But what we do know is that we now have a mechanism
644
00:28:16.740 --> 00:28:19.770
of analysis that this court recognized in Gomes is
645
00:28:19.770 --> 00:28:22.830
so powerful and represents the accumulation
646
00:28:22.830 --> 00:28:24.540
of so much scientific inquiry
647
00:28:24.540 --> 00:28:26.850
that is worth incorporating it to Massachusetts law.
648
00:28:26.850 --> 00:28:28.574
We now have that tool available to us,
649
00:28:28.574 --> 00:28:31.380
and we should simply not be afraid that we're gonna end up
650
00:28:31.380 --> 00:28:35.610
with too much justice if we let Rule 30 claimants analyze
651
00:28:35.610 --> 00:28:37.650
their identifications under this regime.
652
00:28:37.650 --> 00:28:39.298
Just so I understand, your position is,
653
00:28:39.298 --> 00:28:43.380
okay, so every every case is a new evidence,
654
00:28:43.380 --> 00:28:44.640
almost every one of these is
655
00:28:44.640 --> 00:28:46.529
potentially a new evidence case?
656
00:28:46.529 --> 00:28:48.930
I think in each case it has to be assessed
657
00:28:48.930 --> 00:28:50.490
whether the evidence is new-
658
00:28:50.490 --> 00:28:54.300
For example, they didn't do the sequential photo.
659
00:28:54.300 --> 00:28:56.040
I can't remember the different examples.
660
00:28:56.040 --> 00:28:59.820
Well, for instance, this court has repeatedly said
661
00:28:59.820 --> 00:29:01.470
we're actually not gonna go there in terms
662
00:29:01.470 --> 00:29:05.136
of sequential versus continued at the same time
663
00:29:05.136 --> 00:29:08.430
in terms of holding that that itself renders
664
00:29:08.430 --> 00:29:09.660
an identification unfair.
665
00:29:09.660 --> 00:29:11.940
What's different here is that you have
666
00:29:11.940 --> 00:29:13.500
an eyewitness identification expert
667
00:29:13.500 --> 00:29:15.390
who really takes apart this identification
668
00:29:15.390 --> 00:29:19.200
in very, very close detail and talks about all the ways
669
00:29:19.200 --> 00:29:21.330
in which subconscious cueing were in effect,
670
00:29:21.330 --> 00:29:23.310
all the ways in which there were factors
671
00:29:23.310 --> 00:29:24.963
that were suggesting the particular people
672
00:29:24.963 --> 00:29:27.120
who should be identified to the witness.
673
00:29:27.120 --> 00:29:29.730
So if you have that level of analysis
674
00:29:29.730 --> 00:29:30.750
in any particular case,
675
00:29:30.750 --> 00:29:33.473
then it's certainly worth presenting to the superior court.
676
00:29:34.527 --> 00:29:36.270
Did the witness address the fact that there were
677
00:29:36.270 --> 00:29:39.900
60 somewhat photographs, 63 photographs, as opposed
678
00:29:39.900 --> 00:29:42.660
to these aren't the guys, right?
679
00:29:42.660 --> 00:29:46.020
So if you had eight photographs, and there's a call
680
00:29:46.020 --> 00:29:48.090
that says you picked the wrong people,
681
00:29:48.090 --> 00:29:50.310
so take three out, now you've-
682
00:29:50.310 --> 00:29:52.383
Did she address how it would've gone?
683
00:29:52.383 --> 00:29:55.200
It's the number of photographs that are-
684
00:29:55.200 --> 00:29:56.340
Well, what she said was-
685
00:29:56.340 --> 00:30:00.150
It seemed to me that someone would memorize
686
00:30:00.150 --> 00:30:02.460
60 photographs seems improbable.
687
00:30:02.460 --> 00:30:04.230
Fair enough, and she certainly wasn't suggesting
688
00:30:04.230 --> 00:30:05.880
that the witness would've memorized them.
689
00:30:05.880 --> 00:30:08.010
Right, as opposed to eight photographs.
690
00:30:08.010 --> 00:30:10.530
Yes sir, I certainly think she didn't testify as to this,
691
00:30:10.530 --> 00:30:11.363
but I certainly-
692
00:30:11.363 --> 00:30:12.660
Okay, that was the question I had,
693
00:30:12.660 --> 00:30:14.371
whether she addressed that in terms of numbers.
694
00:30:14.371 --> 00:30:15.204
No, but she did certainly say
695
00:30:15.204 --> 00:30:17.250
that even in a mugshot book of this size, it's likely
696
00:30:17.250 --> 00:30:19.270
that the witness is going to subconsciously recognize
697
00:30:19.270 --> 00:30:22.080
the photos that have been gone through before,
698
00:30:22.080 --> 00:30:24.620
and will also be a drawn to the ones
699
00:30:24.620 --> 00:30:28.050
that have not been seen before, and those are the people
700
00:30:28.050 --> 00:30:30.030
that the witness would not reasonably understand based
701
00:30:30.030 --> 00:30:32.190
on the phone call the police believe are guilty,
702
00:30:32.190 --> 00:30:34.110
and that's why they're in the lineup.
703
00:30:34.110 --> 00:30:35.820
To go to the second part of the question
704
00:30:35.820 --> 00:30:39.120
about should there be a post-conviction Brady obligation,
705
00:30:39.120 --> 00:30:42.000
not only should there be, but there must be
706
00:30:42.000 --> 00:30:44.220
if we are going to ensure
707
00:30:44.220 --> 00:30:47.250
that the evidence in question is going to get into the hands
708
00:30:47.250 --> 00:30:49.110
of the party that is a motivation to explore.
709
00:30:49.110 --> 00:30:51.049
All right, walk me through this case how that would work
710
00:30:51.049 --> 00:30:52.650
in that world.
711
00:30:52.650 --> 00:30:53.483
Sure.
712
00:30:53.483 --> 00:30:55.260
As far as, sorry, motion for new trial,
713
00:30:55.260 --> 00:30:57.162
recantation, you represent a co-defendant,
714
00:30:57.162 --> 00:30:59.910
you're off the case, right?
715
00:30:59.910 --> 00:31:02.370
You're a trial counsel, what happens?
716
00:31:02.370 --> 00:31:04.290
So what happens is the government says, okay,
717
00:31:04.290 --> 00:31:06.150
and again, there's Brady and then there's Brady.
718
00:31:06.150 --> 00:31:08.070
This is like super Brady.
719
00:31:08.070 --> 00:31:11.490
This is, I lied at trial, and I lied
720
00:31:11.490 --> 00:31:14.670
and cooked up this story with the investigating officers,
721
00:31:14.670 --> 00:31:16.605
so that's powerful stuff.
722
00:31:16.605 --> 00:31:19.290
So the first thing that happens is I go to the docket
723
00:31:19.290 --> 00:31:21.578
and I say, "Okay, does the co-d have a lawyer
724
00:31:21.578 --> 00:31:23.490
that's still of record?"
725
00:31:23.490 --> 00:31:25.680
And if so, I just send that over
726
00:31:25.680 --> 00:31:27.150
to the codefendant's counsel
727
00:31:27.150 --> 00:31:29.520
and I'm done with my obligation as a prosecutor.
728
00:31:29.520 --> 00:31:32.730
Again, 3.8-I is a rule that requires notification
729
00:31:32.730 --> 00:31:35.100
to the court, in terms of security concerns,
730
00:31:35.100 --> 00:31:36.690
it actually includes a provision
731
00:31:36.690 --> 00:31:39.030
that the prosecutor can ask for a protective order
732
00:31:39.030 --> 00:31:41.070
from the court to not disclose to the defendant
733
00:31:41.070 --> 00:31:42.510
in certain circumstances.
734
00:31:42.510 --> 00:31:44.400
But that's really not what the court should be thinking
735
00:31:44.400 --> 00:31:45.990
about in terms of triggering a duty.
736
00:31:45.990 --> 00:31:48.120
Triggering of the duty is from the right
737
00:31:48.120 --> 00:31:51.270
to produce all proofs language of Article 12 itself.
738
00:31:51.270 --> 00:31:54.090
It should be in Rule 3.8-D, the one that just says
739
00:31:54.090 --> 00:31:56.730
the prosecution has the duty to disclose all evidence
740
00:31:56.730 --> 00:31:58.920
that tends to negate the guilt of the accused.
741
00:31:58.920 --> 00:32:00.414
There's no time limitation on that,
742
00:32:00.414 --> 00:32:02.070
and as this court has discussed,
743
00:32:02.070 --> 00:32:03.780
and as the motion judge specifically discussed,
744
00:32:03.780 --> 00:32:06.420
there is a time limitation in Rule 14, right?
745
00:32:06.420 --> 00:32:09.870
Rule 14 is a pretrial rule, nobody's disputing that.
746
00:32:09.870 --> 00:32:12.930
But the fact that the defendant has a burden under Rule 30
747
00:32:12.930 --> 00:32:14.790
to come forward with affidavits supporting his claim
748
00:32:14.790 --> 00:32:15.949
to a new trial has nothing to do
749
00:32:15.949 --> 00:32:17.918
with who has a disclosure obligation
750
00:32:17.918 --> 00:32:22.440
when it comes into possession of exculpatory evidence.
751
00:32:22.440 --> 00:32:23.820
What do we do with the credibility part
752
00:32:23.820 --> 00:32:25.890
of the rule of professional conduct
753
00:32:25.890 --> 00:32:28.962
where the Bass affidavit shifts,
754
00:32:28.962 --> 00:32:31.140
and then there's a fine and then he's not credible.
755
00:32:31.140 --> 00:32:33.810
So two things, so the first is with the credibility rule
756
00:32:33.810 --> 00:32:36.270
of requirement of Rule 3.8-I,
757
00:32:36.270 --> 00:32:39.000
that's why it doesn't just require,
758
00:32:39.000 --> 00:32:41.370
like 'cause obviously pretrial prosecutors also think
759
00:32:41.370 --> 00:32:43.439
lots of stuff isn't credible and they still-
760
00:32:43.439 --> 00:32:44.520
And this is a strange case, right?
761
00:32:44.520 --> 00:32:45.990
'cause when they first get it,
762
00:32:45.990 --> 00:32:47.730
they don't know whether it's credible or not,
763
00:32:47.730 --> 00:32:48.563
then it might trigger the disclosure.
764
00:32:48.563 --> 00:32:51.060
But assuming that they decide it's not credible,
765
00:32:51.060 --> 00:32:53.910
that relieves them of their duty to go to the court
766
00:32:53.910 --> 00:32:56.010
and say, "Judge, we have a concern here.
767
00:32:56.010 --> 00:32:57.600
There may be a wrongfully convicted person
768
00:32:57.600 --> 00:32:58.470
in prison," right?
769
00:32:58.470 --> 00:33:00.240
That's when the government has an obligation.
770
00:33:00.240 --> 00:33:02.400
But of course, the defense has a very different perspective
771
00:33:02.400 --> 00:33:03.720
on what this evidence might mean
772
00:33:03.720 --> 00:33:05.550
for a person's freedom and person's liberty
773
00:33:05.550 --> 00:33:07.470
versus wrongfulness of their conviction, right?
774
00:33:07.470 --> 00:33:10.110
So the defense has a different incentive to investigate it.
775
00:33:10.110 --> 00:33:11.832
Now, in terms of credibility of the David Bass affidavit
776
00:33:11.832 --> 00:33:16.470
itself, as I expressly conceded during my discussion
777
00:33:16.470 --> 00:33:17.640
with the motion judge that was extensive
778
00:33:17.640 --> 00:33:19.290
at the evidentiary hearing,
779
00:33:19.290 --> 00:33:21.540
David Bass is not a credible witness.
780
00:33:21.540 --> 00:33:23.760
What makes the affidavit credible
781
00:33:23.760 --> 00:33:26.700
or at least worth hanging a post-conviction case on
782
00:33:26.700 --> 00:33:28.440
and building a post-conviction case around is
783
00:33:28.440 --> 00:33:30.480
not simply what he says in its affidavit.
784
00:33:30.480 --> 00:33:33.270
It's the corroboration of what he says in that affidavit
785
00:33:33.270 --> 00:33:37.260
by an arrest report from April 1976
786
00:33:37.260 --> 00:33:38.730
that shows that Detective O'Malley,
787
00:33:38.730 --> 00:33:40.440
the lead detective in this case,
788
00:33:40.440 --> 00:33:41.730
the person who convinced the court
789
00:33:41.730 --> 00:33:43.860
to accept Paul Sulfaro's identification,
790
00:33:43.860 --> 00:33:46.967
the person who is the only real testimony
791
00:33:46.967 --> 00:33:50.329
to Mr. Gaines' supposed confession arrests David Bass
792
00:33:50.329 --> 00:33:53.610
at the shooting gallery he's running two months before trial
793
00:33:53.610 --> 00:33:55.530
for possession of needles and syringes,
794
00:33:55.530 --> 00:33:57.900
a crime that multiple police officers acknowledged
795
00:33:57.900 --> 00:33:59.880
that they knew he was committing for years
796
00:33:59.880 --> 00:34:02.070
and they tolerated for whatever reason.
797
00:34:02.070 --> 00:34:05.091
In his affidavit, David Bass says, "The first time I lied,
798
00:34:05.091 --> 00:34:09.390
I lied to help my son, Antonio Daniels,
799
00:34:09.390 --> 00:34:10.980
and my friend Alfred Hamilton get outta trouble.
800
00:34:10.980 --> 00:34:15.630
The second time I lied, I lied to keep myself out of jail
801
00:34:15.630 --> 00:34:16.860
and to keep my drug house open,
802
00:34:16.860 --> 00:34:18.480
and my source of drugs available to me."
803
00:34:18.480 --> 00:34:23.480
So I argued, and the motion judge accepted in her decision
804
00:34:23.730 --> 00:34:26.370
that that indicated that what he was talking about is
805
00:34:26.370 --> 00:34:28.410
the fact that the government, or sorry,
806
00:34:28.410 --> 00:34:31.260
Detective O'Malley arrested him before trial,
807
00:34:31.260 --> 00:34:33.320
and lo and behold, after he testified compliantly
808
00:34:33.320 --> 00:34:35.910
in the Commonwealth's case, he receives no punishment
809
00:34:35.910 --> 00:34:37.980
and gets a guilty filed and he goes right back.
810
00:34:37.980 --> 00:34:40.980
What do you do with the other motion judge's decision
811
00:34:40.980 --> 00:34:42.420
that finds him not credible?
812
00:34:42.420 --> 00:34:44.070
Does that get the Commonwealth out
813
00:34:44.070 --> 00:34:45.660
of the obligation to do anything?
814
00:34:45.660 --> 00:34:46.800
I don't think it does.
815
00:34:46.800 --> 00:34:50.250
I mean, it gets it out of a Rule 3.8-I obligation,
816
00:34:50.250 --> 00:34:52.800
which hadn't even been enacted at the time
817
00:34:52.800 --> 00:34:55.740
of those proceedings, but it doesn't get them out
818
00:34:55.740 --> 00:34:57.300
of the obligation to disclose it,
819
00:34:57.300 --> 00:34:59.190
because it's still facially exculpatory,
820
00:34:59.190 --> 00:35:01.653
and it's not just facially exculpatory.
821
00:35:01.653 --> 00:35:05.430
When you think about the way this court recently explicated
822
00:35:05.430 --> 00:35:08.305
the duty to investigate in Graham versus Hampden D.A.,
823
00:35:08.305 --> 00:35:10.777
so think about that for a second.
824
00:35:10.777 --> 00:35:15.390
You get an affidavit recanting trial testimony in 1992.
825
00:35:15.390 --> 00:35:16.770
The officer implicated
826
00:35:16.770 --> 00:35:19.170
in the recantation is Detective O'Malley.
827
00:35:19.170 --> 00:35:21.403
In 1991, just the year before Detective O'Malley had had
828
00:35:21.403 --> 00:35:24.150
findings made against him regarding misconduct
829
00:35:24.150 --> 00:35:27.300
in the Stewart case, if the duty investigate is triggered,
830
00:35:27.300 --> 00:35:29.910
which it should have been by the Commonwealth's receipt
831
00:35:29.910 --> 00:35:32.220
of that affidavit, it's gonna go to the police file
832
00:35:32.220 --> 00:35:34.770
in this case, and it's gonna say lo and behold,
833
00:35:34.770 --> 00:35:36.180
Detective O'Malley arrested
834
00:35:36.180 --> 00:35:38.140
this guy is recanting before trial,
835
00:35:38.140 --> 00:35:40.140
and that was never disclosed,
836
00:35:40.140 --> 00:35:43.350
or at least looking at our certificates of discovery,
837
00:35:43.350 --> 00:35:44.940
doesn't appear it was ever disclosed,
838
00:35:44.940 --> 00:35:47.370
and the government is suddenly then going to find itself,
839
00:35:47.370 --> 00:35:50.550
wow, we actually do have a pretty credible challenge
840
00:35:50.550 --> 00:35:52.470
to a conviction here, because we have an officer
841
00:35:52.470 --> 00:35:54.600
who's engaged in multiple acts of misconduct,
842
00:35:54.600 --> 00:35:56.460
we have a recanting witness who says he colluded
843
00:35:56.460 --> 00:35:59.970
with that officer, and we have a pretrial Brady violation
844
00:35:59.970 --> 00:36:02.250
based on a pretextual arrest by that officer.
845
00:36:02.250 --> 00:36:04.710
Can you address the issue of cherry picking
846
00:36:04.710 --> 00:36:09.710
where the bargain I think we have in Rosario
847
00:36:10.260 --> 00:36:13.754
and Brescia is, okay, we're not gonna have pigeonholes
848
00:36:13.754 --> 00:36:16.050
to keep justice from being done,
849
00:36:16.050 --> 00:36:18.720
so we're gonna open it up and have a holistic view,
850
00:36:18.720 --> 00:36:21.570
but that also entails a view of all of the evidence
851
00:36:21.570 --> 00:36:24.870
in the case, good and bad, and judges do the work.
852
00:36:24.870 --> 00:36:28.800
And here, we have instances for, you know,
853
00:36:28.800 --> 00:36:33.480
we have the issue of the injury, well, I didn't get,
854
00:36:33.480 --> 00:36:35.880
there's a note about injury and it was a Brady violation,
855
00:36:35.880 --> 00:36:37.530
but it was the defendant who was injured,
856
00:36:37.530 --> 00:36:40.140
and the defense attorney had hospital records,
857
00:36:40.140 --> 00:36:41.700
and the judge doesn't address that.
858
00:36:41.700 --> 00:36:43.920
There's a lot of inculpatory facts.
859
00:36:43.920 --> 00:36:44.910
The motion judge didn't address that.
860
00:36:44.910 --> 00:36:47.550
The motion judge doesn't address, which worried me,
861
00:36:47.550 --> 00:36:49.770
so give me your take on that.
862
00:36:49.770 --> 00:36:51.300
Sure, well, specifically with regards
863
00:36:51.300 --> 00:36:52.380
to the medical records issue,
864
00:36:52.380 --> 00:36:53.880
I mean, when this came up at trial
865
00:36:53.880 --> 00:36:55.890
and the government argued, hey, if he was injured,
866
00:36:55.890 --> 00:36:57.060
where are the medical records?
867
00:36:57.060 --> 00:36:59.130
The trial judge interrupted the closing to say
868
00:36:59.130 --> 00:37:02.730
to the prosecutor, "Counsel, the defendant doesn't have
869
00:37:02.730 --> 00:37:04.410
any obligation to produce evidence, and by the way,
870
00:37:04.410 --> 00:37:05.490
you could have gotten those records
871
00:37:05.490 --> 00:37:06.360
and you could have brought them in
872
00:37:06.360 --> 00:37:07.770
if they helped your case."
873
00:37:07.770 --> 00:37:10.590
As I pointed out, and my motion papers are gigantic
874
00:37:10.590 --> 00:37:12.450
and I couldn't summarize them all in my brief,
875
00:37:12.450 --> 00:37:16.560
but if the government had disclosed this affidavit
876
00:37:16.560 --> 00:37:19.560
when it received it, because the medical records
877
00:37:19.560 --> 00:37:21.442
in question were destroyed by virtue
878
00:37:21.442 --> 00:37:24.930
of an automatic destruction policy in 2004,
879
00:37:24.930 --> 00:37:26.850
the first thing I did when I got the affidavit is reached
880
00:37:26.850 --> 00:37:28.620
out to the Boston Medical Center to try to get them,
881
00:37:28.620 --> 00:37:30.450
and that's what their records keeper told me.
882
00:37:30.450 --> 00:37:33.060
I put that in my affidavit, in my motion papers.
883
00:37:33.060 --> 00:37:35.310
But so the point here is the motion judge didn't address it
884
00:37:35.310 --> 00:37:36.870
because she found, as I argued,
885
00:37:36.870 --> 00:37:38.880
and I think correctly, it's a red herring.
886
00:37:38.880 --> 00:37:41.580
This evidence was available to both sides.
887
00:37:41.580 --> 00:37:43.140
It wasn't used by both sides.
888
00:37:43.140 --> 00:37:45.000
The only conclusion there is we don't really know
889
00:37:45.000 --> 00:37:46.287
what those medical records could take.
890
00:37:46.287 --> 00:37:48.360
But you call it a Brady violation?
891
00:37:48.360 --> 00:37:51.120
Well, the Brady violation is that there's a police note
892
00:37:51.120 --> 00:37:53.370
that says, you know, Paps was shot in the leg,
893
00:37:53.370 --> 00:37:54.527
walking with crutches in the case.
894
00:37:54.527 --> 00:37:57.120
But anyway, but I guess continue on
895
00:37:57.120 --> 00:38:00.030
with my concerns about cherry picking.
896
00:38:00.030 --> 00:38:02.370
Well, I don't think cherry picking is going on here.
897
00:38:02.370 --> 00:38:04.350
I think there's an extremely comprehensive review
898
00:38:04.350 --> 00:38:07.440
of a trial record that has systematically been dismantled
899
00:38:07.440 --> 00:38:10.950
by a massive flow of post-conviction evidence.
900
00:38:10.950 --> 00:38:11.783
And I think when we talk
901
00:38:11.783 --> 00:38:13.770
about a confluence of factors, right?
902
00:38:13.770 --> 00:38:16.500
A confluence means multiple streams of a river coming
903
00:38:16.500 --> 00:38:18.750
together to form one single more powerful stream,
904
00:38:18.750 --> 00:38:20.580
and what we have here is a confluence
905
00:38:20.580 --> 00:38:22.320
of the multiple factors known
906
00:38:22.320 --> 00:38:23.670
to contribute to wrongful convictions.
907
00:38:23.670 --> 00:38:25.230
We have a bad identification,
908
00:38:25.230 --> 00:38:26.970
we have withheld exculpatory evidence,
909
00:38:26.970 --> 00:38:28.410
we have police misconduct.
910
00:38:28.410 --> 00:38:31.563
I mean, that's a confluence and it's a confluence in favor
911
00:38:31.563 --> 00:38:34.350
of the extremely thoughtful decision
912
00:38:34.350 --> 00:38:36.986
that this motion judge reached, and reached,
913
00:38:36.986 --> 00:38:39.480
it's important to note, in significant reliance
914
00:38:39.480 --> 00:38:42.540
on trial testimony that she heard and credited entirely.
915
00:38:42.540 --> 00:38:46.500
So I mean, she has not abused her discretion,
916
00:38:46.500 --> 00:38:47.970
I don't think there's any question
917
00:38:47.970 --> 00:38:49.200
that she hasn't abused her discretion.
918
00:38:49.200 --> 00:38:50.160
I think there's discreet
919
00:38:50.160 --> 00:38:53.190
and very significant legal questions that are subsidiary
920
00:38:53.190 --> 00:38:55.650
to that decision that the court is presented with.
921
00:38:55.650 --> 00:38:57.480
What was the rule that you cited
922
00:38:57.480 --> 00:39:00.720
before that requires disclosure to codefendants?
923
00:39:00.720 --> 00:39:03.290
32-A of the rule of criminal procedure.
924
00:39:03.290 --> 00:39:04.123
Yeah, okay.
925
00:39:04.123 --> 00:39:04.956
Yeah, and then if you look
926
00:39:04.956 --> 00:39:05.970
in the reporter's notes is where they talk
927
00:39:05.970 --> 00:39:08.430
about they changed the rule
928
00:39:08.430 --> 00:39:10.170
from it used to be just on adverse parties,
929
00:39:10.170 --> 00:39:11.340
then they made it to all parties,
930
00:39:11.340 --> 00:39:13.590
'cause they wanted to make sure that in codefendant cases,
931
00:39:13.590 --> 00:39:15.990
co-defendants might not be looked at as adverse,
932
00:39:15.990 --> 00:39:17.797
and they still needed to receive the information
933
00:39:17.797 --> 00:39:20.580
so that everyone gets all the information.
934
00:39:20.580 --> 00:39:22.650
And the reason everybody gets all the information is
935
00:39:22.650 --> 00:39:23.700
so a person doesn't have to spend
936
00:39:23.700 --> 00:39:26.010
an extra 25 or 30 years in prison
937
00:39:26.010 --> 00:39:30.330
before the just completely rotten foundation
938
00:39:30.330 --> 00:39:33.780
of the conviction that sent them there can be exposed.
939
00:39:33.780 --> 00:39:35.700
Forgive my ignorance, did that rule exist
940
00:39:35.700 --> 00:39:37.770
at the time of the post-trial?
941
00:39:37.770 --> 00:39:40.150
And forgive my ignorance for not being sure, right?
942
00:39:40.150 --> 00:39:41.790
Okay, I guess we'll both look it up.
943
00:39:41.790 --> 00:39:42.940
Yes, I guess we will.
944
00:39:43.830 --> 00:39:45.261
Well, I see my time is up.
945
00:39:45.261 --> 00:39:46.830
I don't know if there's any further questions.
946
00:39:46.830 --> 00:39:48.030
I think we're all set.
947
00:39:48.030 --> 00:39:49.170
But if not, I'll rest on my brief
948
00:39:49.170 --> 00:39:51.420
and ask that you affirm the order, thank you.