-: SJC-13446, Commonwealth v. Raymond Gaines.
-: Okay, Attorney Lewis.
-: Good morning, may it please the court,
my name is David Lewis and I represent the Commonwealth.
The motion judge made
a number of errors of law in this matter.
The Commonwealth believes that her order should be vacated
and the convictions in this matter should be affirmed.
I'd like to start talking about a particular error
of law in holding that an affidavit created some 14 years
after the conviction was qualified as a Brady obligation
to be disclosed, and that that was an error
entitling the defendant to a new trial.
Defendant's rights at trial, there can be,
perhaps there's maybe no starker difference
than between the rights that a defendant is entitled to
when he's presumed innocent at a time of trial
and then the rights that attach post-conviction.
-: You concede it's a matter
of a rule of professional conduct?
-: Yeah, 3.8 I, J, and K.
-: That's controlling?
-: I believe that is controlling, if you look at the case,
which I believe is consistent with post-conviction conduct
that placed once the conviction enters,
and the Commonwealth has proved
beyond a reasonable doubt someone is guilty,
I think you look at the case law court rules
and the rules of professional conduct together.
-: We haven't said anything one way or the other on Brady.
Atty. Lewis: Pardon me?
-: We haven't said anything one way
or the other on Brady post-trial?
-: That's correct, yeah.
Material that exists did not exist at the time of trial,
that's correct.
No, I did not find anything in that regard, and-
-: That's the beginning of it so,
but you still have an obligation, right?
And it's, you know, you have the main witness recanting.
Don't you have to pass that on
even if it comes up in a co-defendant's case?
-: I don't believe, I would,
I disagree that he's the main witness.
I don't believe this is sort of a Jenga tower
that removing him changes anything.
-: He's a pretty important witness.
He's the one who identifies his client for the first time.
It's his son who's the original person
they identified, right?
-: There was, no, his wife's,
I think it was his wife's son,
and then ended up being son-in-law who testified,
Alfred Hamilton testified at trial.
-: Important witness, yeah?
-: So between, the Anderson transcripts are part
of this record, and between the two cases,
there are 19 Commonwealth witnesses.
There's six that don't overlap
that testified at one and not the other.
And you have civilian witnesses, you have police,
you have from different phases of the whole-
-: Before we get to harmlessness, though, but it just seems
like this is a material witness recanting post-conviction.
Whether it's a code
of professional responsibility obligation
or a Brady, this is the kind
of thing we want turned over, don't we?
Because otherwise, there are real problems out there.
-: Well, that's the thing.
I think if you look at page 131
of the Commonwealth's appendix,
you have the Commonwealth's position at the time
of this document, of this first affidavit,
actually, of the two affidavits, and what it seems to me
that does create something new comes in,
and what the Commonwealth absolutely has
under duty or competence is to inquire
into that is new material or credible.
That's what the ethical rules require,
and in this case, unquestionably,
that's exactly what happened.
They looked at it, they didn't just dismiss it
because it looked like it was written
by a jailhouse lawyer or whatever, it wasn't that.
If you read the Commonwealth's opposition that was filed
in the Funderberg new trial motion
that was litigated in 1992 before Judge Tuttle,
it's very clear they have references to the record
in that case and the Anderson trial, and-
-: Just to push that a second,
and Justice Gaziano's better at this than I am
'cause he wrote it, but didn't we say we don't want
credibility determinations pre-trial being made
by the prosecutors?
Now we're going to say that the prosecutors can make
credibility determinations post-trial
on this kind of information?
-: Well, in this particular case,
it was validated by a superior court judge.
-: Well, baked into the rule
of professional conduct is credible, as opposed to Brady.
-: Adopted in 2016, absolutely.
-: But if we were moved to a Brady,
then that would take it out of that.
That credibility assessment would leave
if we were to make it a,
if we were to have a post Brady,
a post-trial Brady obligation.
-: Right, but you'd also, you'd be changing the basis
that of the case law of court rules
and that the rules of professional conduct,
'cause don't forget on the post-conviction rules,
now that they're convicted, Rule 30-C4 puts the burden
on a defendant to come forward with affidavits
or other matter from 30-30-C3,
and create a prima facie evidence
that they're entitled to move further discovery,
presuming of course they follow,
Commonwealth has followed Brady and turned everything over
that they're supposed to, right?
-: What would be wrong with a legal regime
that would require prosecutors to disclose
this kind of recantation affidavit?
What would be the problem either practically
or legally with that kind of regime?
-: So I think you've actually got, just to step back
a little bit, and I will get to your answer,
I think you've got two issues here,
and they get a little conflated in this case I believe.
You have one issue where you have
co-defendants who were consolidated at trial,
who are usually consolidated for on appeal
in front of your court or the appeals court,
and then post that direct appeal just procedurally,
everyone sort of goes into their silo, right?
So you've sort of got a, you've got a situation of,
for lack of a better way to put it, sort of transparency
of notice between previously consolidated co-defendants
post direct appeal.
They litigate their cases and there's no obligation
to tell anybody what they're doing, whether it's,
it may pertain to them,
but they have no obligation to tell them,
and to get to your, and the second issue is
what we're sort of talking about now is material that comes
to the Commonwealth, right?
That the Commonwealth is making as assessment,
at least under the current professional conduct rules,
making this assessment, and you're saying
what happens if you just require it all to go?
And what I'm saying is, is the current, for good reason,
the current case law court rule of professional conduct
put the burden on the defendant as the most interested party
to come forward with affidavits in 30-C3
to prove their point in 30-C4.
-: I'm sorry, with affidavits of what?
-: To support the reasons why they require a new trial
or need a new trial under 30-C3, right?
30-C4, and this is why that's important,
particularly important is, well, two reasons,
one, you're putting the burden
on the most interested party, right?
You want them to be, that party to be the party moving.
It's also important because they're also gonna be
the most knowledgeable party at that point.
The Commonwealth's not investigating anymore.
They've already turned everything over.
-: Counsel, I do have to stop you,
because I still want to get to Justice Wendlandt's question.
Okay, I give you all that when it's
the defendant is looking for trial.
What I'm, what's the principled reason in this case
where you have co-defendants in another case,
the Commonwealth gets an affidavit
that arguably is recanted for all purposes,
and whether it's not the other codefendant is moving
for a new trial or not, you get it.
What's the principled reason
to not require the Commonwealth post disposition,
post-trial to say, "I'm gonna turn it over."
What's the principle reason for that?
-: The principal reason for that is it's entire,
no, in this particular case, it's entirely not credible,
and the second affidavit comes in from the same person.
-: I mean, the Commonwealth's position is always gonna be
that it's not credible because the witness is recanting.
I'm confused by that.
I mean, could that really be the metric?
Like you have, let's just assume for the purposes
of argument that this was a material witness
who said, "This defendant did it.
He was the one that ran into my apartment,
and I heard him interacting with the other co-defendants,"
the Commonwealth position
which they marshaled at trial is that that's true,
and now we have a affidavit that's saying,
"I completely made that up."
-: And the Commonwealth did exactly what you would want them
to do in this case, what did they do?
They go to the evidence that was in the case
and they see his wife testified the same,
Alfred Hamilton testified the same.
Anderson gives a voluntary confession.
-: Right, right, so get to my question,
which I don't think you ever answered, is
what would be wrong with the legal regime
that would require the Commonwealth
to disclose that to the codefendant?
I'm not saying that the recantation is true, not true,
I don't know, but why do we have
the Commonwealth making that call?
What would be, what's the value of that?
Tell me that. -: Because at that point,
the defendant's the most knowledgeable party.
The Commonwealth gonna-
-: The defendant doesn't know about the affidavit.
-: The Commonwealth is gonna have no idea of any
of the security issues involved with turning that over.
You have no idea, right?
You have no idea if it, there are, if you look at some
of the rules that are I think New York State.
-: Sorry, what security issues?
-: What if their one, what if the affidavit,
what if their affidavit, say something comes in,
and if there's a security issue
with one of the other witnesses?
Like you don't, you know how it impacts?
-: No, I'm just trying to understand what you're saying.
-: There's no lawyer anymore for the codefendant,
so you would be giving the affidavit
to the codefendant who's serving a prison sentence,
-: Right, or I mean, you have no idea,
because the Commonwealth at that point,
post-conviction, the Commonwealth attorney
that's on this is not gonna have
the knowledge of the case file and to know all that.
-: Well, this gets to my question, which is maybe
just a different version of Justice Wendlandt's question.
So in my understanding,
when we think about Brady violations,
the focus is on the prosecution team.
And how do you conceive of,
and particularly in the circumstances of this case
where it was so many years later, how do you conceive
of what if the court were to go in the Brady direction,
what the prosecution team would be?
And also, second part of the question,
I'm not familiar enough with this record to know
the personnel who are present at this key moment
in the early 1990s versus the personnel at trial,
and can you comment on if there's any continuity there
or not vis-a-vis the point that you were just making
about the Commonwealth having
the knowledge to connect all these pieces?
-: Second question first, completely different.
It was-
-: Oh, that's enough said.
But so can you go back to the first question
about the meaning of the prosecution team?
Do we just conceive of the whole DA's office
as the prosecution team once it gets to be post-conviction?
-: I mean, it's gonna be typically, at least in Suffolk,
it's gonna be in the appeals unit,
and especially 15 years later, it's not gonna be,
no one's gonna be involved in the case that knows the case
to any depth of specificity as far as what is,
what does this mean to another co-defendant?
Or what does this mean in this case?
They don't, they may not know.
-: Well, the affidavit itself specifically recants testimony
inculpating a specific man who's in prison,
so the Commonwealth in this case, it's pretty easy, right?
-: Well, I think in this case it's pretty easy
in the sense that the Commonwealth,
I think they were eminently reasonable to wait
until the litigation for the new trial motion played out.
I mean, I think that's absolutely reasonable,
because then a second affidavit comes in
inculpating Mr. Gaines, that same witness comes
into the hearing testimony again inculpates Mr. Gaines,
he puts a gun, the gun that killed Mr. Sulfaro,
the 22 caliber weapon, there's support in the record
that that was Mr. Gaines's weapon,
so on page 459 of the Anderson transcripts.
So I think they were eminently reasonable
at that point to wait.
Then Judge Tuttle sees the witness, right?
Sees him, he testifies, finds him not credible.
Justice Kafker: Yeah, because he's drunk.
-: Well, he finds him, he reviews the record.
It's not like he's drunk, I'm not believing
anything he says, he reviews the record.
-: Bass's testimony shifts, correct?
-: In that regard, yes.
The first affidavit says, you know,
not Funderberg, Gaines, and Anderson,
and then he comes in later with second affidavit, said,
well, it was actually was just not Funderberg.
It was Gaines and Anderson,
and then that's the way he testifies
according to Judge Tuttle's order, yes.
-: To the second version?
Atty. Lewis: Correct.
-: Can you address, I mean, when we look
at Brescia and Rosario in this confluence on Rule 30,
what you say essentially in your brief is
that the judge cherry picked and didn't take
into account inculpatory facts.
Can you expand on that?
-: Sure, so I understand, and I would never argue
that a judge has to catalog every, make a catalog
of evidence in their case in an order like this,
because I mean, nothing would ever get done.
That's just, it would never, you can't say that.
But what you can say,
and I believe what the equate cases do say is
that any order a judge issues has to be supported by that.
It has to be consistent with the record in the case.
And what I'm saying is, is that was an error,
because if you look at the record in this case,
things she never mentioned, that a second officer heard
Mr. Gaines's admission on the flight back from Iowa,
Mr. Anderson confessed.
That was played, there was a voir dire at his hearing,
it was found admissible by that judge.
The tape and the transcripts were presented to the jury.
This court reviewed, at the direction of the Commonwealth,
this court in 1997 reviewed those confessions,
reviewed the record to see if there was any evidence
of lack of volunteering and found there was none.
So there's the confession out there that Anderson, Gaines,
and Funderberg committed this robbery and murder,
and she never discusses that, and I mean, I could go on,
but I mean, I think there's,
certainly there is a lack of attention to
or explanation of contrary evidence
that's directly contrary,
and I'm not talking sort of nitpicking facts,
I'm talking major facts.
The second affidavit, Deloche,
Anderson's voluntary confession,
I mean, it's never dealt with, it's never addressed.
-: The other question I had was with respect
to the expert witness testimony on identification,
Gomes, it says the jury instructions are prospective.
Here, we have changes in law and science similar to DNA.
Are you saying that because expert witness
on identification is a soft science,
or are you saying that we shouldn't look at it
for future cases, because as I see it,
it's a change as we did in Epps, it's a change in the law,
and the effect of it could be different.
I mean, DNA evidence as you know,
from doing the work you do,
could be exculpatory or could be meaningless.
It depends on if it's roadside glitter
as we had in cases or if it's the bloodstain, right?
Atty. Lewis: Right.
-: So why doesn't expert identification issues
or testimony have the same post-conviction inquiry
as does DNA or any other science?
-: I think it's different, because the DNA
or the shaken baby cases, it's just depending on the result,
it's just the case ends, right?
If the DNA comes back and there's YSCL exclusion, it's over,
pretty much, no, but- -: It depends.
We've had a lot of cases.
It depends on what DNA we're talking about.
-: What I'm saying with this is the court has had, you know,
has issued a report, it has issued Gomes in its sort
of progeny discussing this with a instruction
that's now required to be given.
What I'm saying is, is that to me,
that identification science is sort of a prism
that it allows you to look and assess a risk factor,
and what you do is you can see, 'cause some cases,
you can say, "All right, let's take a look,"
and there might be no risk, there might be a low,
or whatever, you know, you can see the facts
of the case sort of zooming in close,
but then pulling back under a sort
of confluence of factors analysis, right?
Then you pull back and you can look at that.
Once you know what you've got,
then you look at the broad sweep.
We've had a case-
-: I'm confused what you're saying there.
Like the shaken baby, in the shaken baby case,
we said, "Okay, there's new science here
that enables you to question this more.
It's not conclusive."
Isn't that similar to what we're dealing with here,
which is the eyewitness stuff is shakier
than we originally thought,
and therefore there's new evidence here?
I'm just, to me, I understand this is a big deal,
'cause we've got thousands and thousands of cases
based on eyewitness identification.
But I'm just trying to understand why it's different
than like the shaken baby decision we issued.
-: I guess what I could say is some of the reviews we've done
where you look at some of these older cases, like you say,
and they're just, it's just the way they did things
in the '70s or '80s, right?
And you look at, you sort of zoom in,
you look at how it was done,
it's like high risk whatever, right?
What did that, what actually happened?
And then you look at the evidence in the case.
-: I understand the second part of the analysis
when we've gotta look at how meaningful this is,
but isn't it new evidence in the same way?
Go ahead, sorry.
-: How we used to do things is we used to do blood typing.
Atty. Lewis: Yeah, serology tests, sure.
-: Right, going back,
but now we do STR, PCR based, very minute,
so the answer isn't this is how we used to do things.
'cause we have exonerations based upon STR testing
when we had convictions on blood group,
and so I don't think that's the answer is
this is how we used to do things.
-: No, no, no, what I'm saying is,
and I'll just a specific example.
So we've had a case where we looked at it
mid '70s identification procedures, right?
Then we go and we look at the evidence
in the case, and there was nothing.
There was literally nothing else.
J. Gaziano: No, no.
-: And we knew, and that ended up being we assented
to that new trial motion.
J. Gaziano: Right, and that's what we're doing here.
-: Yeah, that's what I'm saying,
and what I'm saying here, right?
Is you look at the procedures that were used, right?
And then you sort of go zoom back out and you say,
"Look, issue was argued to the jury,
fully presented to the jury," right?
Minus the expert, obviously. 'cause that's now, right?
Commonwealth in its closing right up front says,
"We've made mistakes in this case in the beginning,"
and it is very upfront with the jury about it, right?
And then you've got a situation where the jury deliberated
for, you know, two hours or whatever,
and then you got in the case record,
you have an Anderson voluntary confession,
you have an admission from the defendant,
you have evidence of other witnesses
who are not compromised in any way,
no even accusation of it,
and they all support those confessions.
It's all consistent with those confessions.
And you look at that and you say, "Yeah, there's no."
Is there a risk?
Yes, was there a substantial risk of a miscarriage
of justice in this case based on the totality of evidence?
No, there was not.
Those three men were the men
who committed this robbery and murder.
J. Budd: Okay, thank you.
-: If there's no further questions.
-: Attorney Schnipper.
-: Good morning, excuse me, good morning,
may it please the court, I'm Merritt Schnipper,
here on behalf of Raymond Gaines today.
Mr. Gaines is able to be here with us today in the courtroom
after serving 45 years in prison on the record
that's now before this court, and I think it's fair to say
that that record today looks remarkably different
than it did the last time this court reviewed it in 1978.
Before I get into the big picture issues,
and this case presents many, I want to just push back
against my brother's assertion
that post-conviction criminal defendants are
all on their own separate silo.
The rules of procedure
and specifically rule of criminal procedure 32-A requires
all motion papers and responses thereto
in all criminal proceedings to be served on codefendants
as well as the Commonwealth or all parties.
And if you look at the reporter's notes, it says
that's specifically to ensure the full dissemination
of relevant information, so it's difficult to think
of a case that more exemplifies
what happens when that rule fails,
because, and that's a failure
both by Mr. Funderberg's counsel
who also didn't serve Mr. Gaines, it's worth noting,
but only one of those two parties as to Mr. Funderberg
and the Commonwealth is responsible for depriving Mr. Gaines
of his liberty and sending him to prison
for his entire life.
So with regard, moving to the big picture issues here,
unless there are any questions about rule 32.
-: That rule you cited, is it pre-trial or post-trial rule?
-: It applies without restriction
to pre or post-trial motions, and I would certainly note
that it follows Rule 30 itself in the rules of procedure,
but it does not refer to pre or post-trial motions,
and you can contrast, say, rule 13 in that.
-: Sorry, the rule is which?
-: Rule 32-A, but I just want to,
the idea that the motion judge was required to consider
an inadmissible confession for purposes of assessing
whether this jury trial resulted in an outcome
that was inconsistent with justice,
one thing that the Commonwealth has never addressed,
and that's neither below nor in its briefing here,
and of course thus the motion judge didn't have
the opportunity to weigh in on was the relevance
of the Bruton rule to any potential consideration
of that confession, Bruton's-
J. Wendlandt: Are you referring to Anderson?
-: I'm referring to Robert Anderson's confession
because one of the Commonwealth's primary contentions is
that despite the just disarray that this record lies in
in light of our post-conviction case,
the court can look past all the errors that the motion judge
and her very comprehensive ruling found,
because Robert Anderson separately confessed
to this crime, of course he-
J. Wendlandt: What about Deloche?
-: Sure, do you want to hear about the confession,
or should I go right to Deloche?
-: Well, you have 12 minutes.
Why don't you go ahead with that?
-: Well, so the thing about Detective Deloche is that
of course, he does claim
that he overheard Mr. Gaines speaking
to Detective O'Malley on the plane, right?
So the question then becomes,
does that testimony from Detective Deloche require
the motion judge to find
that a jury would not have been impacted
by all the other massive array of post-conviction evidence?
And that's the recantation,
that's the pretrial Brady violation in terms of the arrest
of David Bass at his shooting gallery by Detective O'Malley,
that's the new eyewitness identification science,
and that's the significant evidence of misconduct
by Detective O'Malley in this case, in multiple cases.
-: But Counsel, one thing you don't, you leave out is
Mr. Gaines's own words, putting himself there.
-: I'm addressing that, and that's kind of what I think
Detective Deloche is about,
because we've significantly impeached
Detective O'Malley's testimony.
Detective O'Malley is the person who claimed
Mr. Gaines confessed to him.
Detective Deloche, we were unable to uncover 50 years
after the fact any evidence to specifically impeach him.
So I would ask the court to look at that question
in light of a number of factors.
There's significant evidence of misconduct
by Detective O'Malley, both in this case and out of it.
There's evidence of Detective Kotter's misconduct
in this case by covering up the idea of this call
to Paul Sulfaro in February 1975 by someone named Murphy
telling him that he had chosen the wrong persons
the first time he did an identification procedure,
and the police needed to come by and tell him,
show him some new pictures, thus implying
that not only did they, you know,
were the wrong guys picked the first time,
but now we got the right guys in there
in the array you're gonna see this time.
We also have, of course, the motion judge's adoption of,
at my request an adverse inference against the Commonwealth
that it was withholding further probative evidence
of police misconduct in discovery,
and then finally what we have,
and I think I would really urge the court to think about
when you think about Detective Deloche
specifically in this point,
I think is very articulately raised in the amicus brief
by the Harvard Criminal Justice Institute
and Families for Justice as Healing is
that police misconduct exists as part of a culture.
It is not acts of individual misbehavior by people
who are deviating from a group requirement.
What they're doing, of course,
they are individual police officers.
-: We don't have fact finding on that though, right?
Atty. Schnipper: We do not.
-: We've got two big, big issues in this case.
Atty. Schnipper: Sure.
-: I don't wanna lose you before you address both of them,
which is are we going to have a post trial Brady equivalent,
and are we gonna treat eyewitness identification science
the same way we treated DNA in shaken baby?
-: So let me take the second first and the first second.
We absolutely should treat them both,
so we should absolutely treat
eyewitness identification science
as newly available evidence
that defendants can bring in in appropriate cases
and show that their identifications were obtained
in violation of all the principles we now know.
-: And I just wanna understand how that's gonna work,
'cause I sort of agree with you
that I can't distinguish the shaken baby analysis in,
was it Marrero, I can't remember the name of the case, but-
J. Wendlandt: Epps.
-: Epps, so we've got thousands
and thousands of cases out there in which we have
the old way of eyewitness identification.
Does that mean every one of those cases is
a newly discovered evidence case if brought?
I mean, I'm just trying to understand that.
-: So for instance, any case that was tried
and convicted before the advent of DNA,
DNA could potentially be
newly discovered evidence in that case.
-: DNA is sort of much more conclusive.
Atty. Schnipper: There's nothing like DNA, for sure.
-: It's different.
This is more like the shaken baby.
-: It's more like Epps, it's more like Rosario.
There are advances in scientific inquiry
that allow the fact finder to interpret trial evidence
more effectively to determine the probative value
that the fact finder wants to assign
to that particular piece of evidence.
So in any case that is susceptible to that analysis
under an eyewitness identification regime,
it is appropriate, at least for a defendant
to have the opportunity to consult with an expert,
look at the identification procedure,
determine whether there's a basis, A, to claim that
that identification procedure itself was unfair
and produced unreliable results,
and B, to look at that identification procedure
in the context of the totality of the evidence at trial.
So I would say it's a lot like Epps,
it's a lot like Rosario,
but in one way it's so much more important
because you say there are thousands of cases.
That's right, there are thousands of cases,
and we have absolutely no idea sitting here today
how many of those people are wrongfully convicted.
But what we do know is that we now have a mechanism
of analysis that this court recognized in Gomes is
so powerful and represents the accumulation
of so much scientific inquiry
that is worth incorporating it to Massachusetts law.
We now have that tool available to us,
and we should simply not be afraid that we're gonna end up
with too much justice if we let Rule 30 claimants analyze
their identifications under this regime.
-: Just so I understand, your position is,
okay, so every every case is a new evidence,
almost every one of these is
potentially a new evidence case?
-: I think in each case it has to be assessed
whether the evidence is new-
-: For example, they didn't do the sequential photo.
I can't remember the different examples.
-: Well, for instance, this court has repeatedly said
we're actually not gonna go there in terms
of sequential versus continued at the same time
in terms of holding that that itself renders
an identification unfair.
What's different here is that you have
an eyewitness identification expert
who really takes apart this identification
in very, very close detail and talks about all the ways
in which subconscious cueing were in effect,
all the ways in which there were factors
that were suggesting the particular people
who should be identified to the witness.
So if you have that level of analysis
in any particular case,
then it's certainly worth presenting to the superior court.
-: Did the witness address the fact that there were
60 somewhat photographs, 63 photographs, as opposed
to these aren't the guys, right?
So if you had eight photographs, and there's a call
that says you picked the wrong people,
so take three out, now you've-
-: Did she address how it would've gone?
-: It's the number of photographs that are-
Atty. Schnipper: Well, what she said was-
-: It seemed to me that someone would memorize
60 photographs seems improbable.
-: Fair enough, and she certainly wasn't suggesting
that the witness would've memorized them.
-: Right, as opposed to eight photographs.
-: Yes sir, I certainly think she didn't testify as to this,
but I certainly-
J. Gaziano: Okay, that was the question I had,
whether she addressed that in terms of numbers.
-: No, but she did certainly say
that even in a mugshot book of this size, it's likely
that the witness is going to subconsciously recognize
the photos that have been gone through before,
and will also be a drawn to the ones
that have not been seen before, and those are the people
that the witness would not reasonably understand based
on the phone call the police believe are guilty,
and that's why they're in the lineup.
To go to the second part of the question
about should there be a post-conviction Brady obligation,
not only should there be, but there must be
if we are going to ensure
that the evidence in question is going to get into the hands
of the party that is a motivation to explore.
-: All right, walk me through this case how that would work
in that world.
Atty. Schnipper: Sure.
-: As far as, sorry, motion for new trial,
recantation, you represent a co-defendant,
you're off the case, right?
You're a trial counsel, what happens?
-: So what happens is the government says, okay,
and again, there's Brady and then there's Brady.
This is like super Brady.
This is, I lied at trial, and I lied
and cooked up this story with the investigating officers,
so that's powerful stuff.
So the first thing that happens is I go to the docket
and I say, "Okay, does the co-d have a lawyer
that's still of record?"
And if so, I just send that over
to the codefendant's counsel
and I'm done with my obligation as a prosecutor.
Again, 3.8-I is a rule that requires notification
to the court, in terms of security concerns,
it actually includes a provision
that the prosecutor can ask for a protective order
from the court to not disclose to the defendant
in certain circumstances.
But that's really not what the court should be thinking
about in terms of triggering a duty.
Triggering of the duty is from the right
to produce all proofs language of Article 12 itself.
It should be in Rule 3.8-D, the one that just says
the prosecution has the duty to disclose all evidence
that tends to negate the guilt of the accused.
There's no time limitation on that,
and as this court has discussed,
and as the motion judge specifically discussed,
there is a time limitation in Rule 14, right?
Rule 14 is a pretrial rule, nobody's disputing that.
But the fact that the defendant has a burden under Rule 30
to come forward with affidavits supporting his claim
to a new trial has nothing to do
with who has a disclosure obligation
when it comes into possession of exculpatory evidence.
-: What do we do with the credibility part
of the rule of professional conduct
where the Bass affidavit shifts,
and then there's a fine and then he's not credible.
-: So two things, so the first is with the credibility rule
of requirement of Rule 3.8-I,
that's why it doesn't just require,
like 'cause obviously pretrial prosecutors also think
lots of stuff isn't credible and they still-
-: And this is a strange case, right?
'cause when they first get it,
they don't know whether it's credible or not,
then it might trigger the disclosure.
-: But assuming that they decide it's not credible,
that relieves them of their duty to go to the court
and say, "Judge, we have a concern here.
There may be a wrongfully convicted person
in prison," right?
That's when the government has an obligation.
But of course, the defense has a very different perspective
on what this evidence might mean
for a person's freedom and person's liberty
versus wrongfulness of their conviction, right?
So the defense has a different incentive to investigate it.
Now, in terms of credibility of the David Bass affidavit
itself, as I expressly conceded during my discussion
with the motion judge that was extensive
at the evidentiary hearing,
David Bass is not a credible witness.
What makes the affidavit credible
or at least worth hanging a post-conviction case on
and building a post-conviction case around is
not simply what he says in its affidavit.
It's the corroboration of what he says in that affidavit
by an arrest report from April 1976
that shows that Detective O'Malley,
the lead detective in this case,
the person who convinced the court
to accept Paul Sulfaro's identification,
the person who is the only real testimony
to Mr. Gaines' supposed confession arrests David Bass
at the shooting gallery he's running two months before trial
for possession of needles and syringes,
a crime that multiple police officers acknowledged
that they knew he was committing for years
and they tolerated for whatever reason.
In his affidavit, David Bass says, "The first time I lied,
I lied to help my son, Antonio Daniels,
and my friend Alfred Hamilton get outta trouble.
The second time I lied, I lied to keep myself out of jail
and to keep my drug house open,
and my source of drugs available to me."
So I argued, and the motion judge accepted in her decision
that that indicated that what he was talking about is
the fact that the government, or sorry,
Detective O'Malley arrested him before trial,
and lo and behold, after he testified compliantly
in the Commonwealth's case, he receives no punishment
and gets a guilty filed and he goes right back.
-: What do you do with the other motion judge's decision
that finds him not credible?
Does that get the Commonwealth out
of the obligation to do anything?
-: I don't think it does.
I mean, it gets it out of a Rule 3.8-I obligation,
which hadn't even been enacted at the time
of those proceedings, but it doesn't get them out
of the obligation to disclose it,
because it's still facially exculpatory,
and it's not just facially exculpatory.
When you think about the way this court recently explicated
the duty to investigate in Graham versus Hampden D.A.,
so think about that for a second.
You get an affidavit recanting trial testimony in 1992.
The officer implicated
in the recantation is Detective O'Malley.
In 1991, just the year before Detective O'Malley had had
findings made against him regarding misconduct
in the Stewart case, if the duty investigate is triggered,
which it should have been by the Commonwealth's receipt
of that affidavit, it's gonna go to the police file
in this case, and it's gonna say lo and behold,
Detective O'Malley arrested
this guy is recanting before trial,
and that was never disclosed,
or at least looking at our certificates of discovery,
doesn't appear it was ever disclosed,
and the government is suddenly then going to find itself,
wow, we actually do have a pretty credible challenge
to a conviction here, because we have an officer
who's engaged in multiple acts of misconduct,
we have a recanting witness who says he colluded
with that officer, and we have a pretrial Brady violation
based on a pretextual arrest by that officer.
-: Can you address the issue of cherry picking
where the bargain I think we have in Rosario
and Brescia is, okay, we're not gonna have pigeonholes
to keep justice from being done,
so we're gonna open it up and have a holistic view,
but that also entails a view of all of the evidence
in the case, good and bad, and judges do the work.
And here, we have instances for, you know,
we have the issue of the injury, well, I didn't get,
there's a note about injury and it was a Brady violation,
but it was the defendant who was injured,
and the defense attorney had hospital records,
and the judge doesn't address that.
There's a lot of inculpatory facts.
Atty. Schnipper: The motion judge didn't address that.
-: The motion judge doesn't address, which worried me,
so give me your take on that.
-: Sure, well, specifically with regards
to the medical records issue,
I mean, when this came up at trial
and the government argued, hey, if he was injured,
where are the medical records?
The trial judge interrupted the closing to say
to the prosecutor, "Counsel, the defendant doesn't have
any obligation to produce evidence, and by the way,
you could have gotten those records
and you could have brought them in
if they helped your case."
As I pointed out, and my motion papers are gigantic
and I couldn't summarize them all in my brief,
but if the government had disclosed this affidavit
when it received it, because the medical records
in question were destroyed by virtue
of an automatic destruction policy in 2004,
the first thing I did when I got the affidavit is reached
out to the Boston Medical Center to try to get them,
and that's what their records keeper told me.
I put that in my affidavit, in my motion papers.
But so the point here is the motion judge didn't address it
because she found, as I argued,
and I think correctly, it's a red herring.
This evidence was available to both sides.
It wasn't used by both sides.
The only conclusion there is we don't really know
what those medical records could take.
-: But you call it a Brady violation?
-: Well, the Brady violation is that there's a police note
that says, you know, Paps was shot in the leg,
walking with crutches in the case.
-: But anyway, but I guess continue on
with my concerns about cherry picking.
-: Well, I don't think cherry picking is going on here.
I think there's an extremely comprehensive review
of a trial record that has systematically been dismantled
by a massive flow of post-conviction evidence.
And I think when we talk
about a confluence of factors, right?
A confluence means multiple streams of a river coming
together to form one single more powerful stream,
and what we have here is a confluence
of the multiple factors known
to contribute to wrongful convictions.
We have a bad identification,
we have withheld exculpatory evidence,
we have police misconduct.
I mean, that's a confluence and it's a confluence in favor
of the extremely thoughtful decision
that this motion judge reached, and reached,
it's important to note, in significant reliance
on trial testimony that she heard and credited entirely.
So I mean, she has not abused her discretion,
I don't think there's any question
that she hasn't abused her discretion.
I think there's discreet
and very significant legal questions that are subsidiary
to that decision that the court is presented with.
-: What was the rule that you cited
before that requires disclosure to codefendants?
Atty. Schnipper: 32-A of the rule of criminal procedure.
-: Yeah, okay.
-: Yeah, and then if you look
in the reporter's notes is where they talk
about they changed the rule
from it used to be just on adverse parties,
then they made it to all parties,
'cause they wanted to make sure that in codefendant cases,
co-defendants might not be looked at as adverse,
and they still needed to receive the information
so that everyone gets all the information.
And the reason everybody gets all the information is
so a person doesn't have to spend
an extra 25 or 30 years in prison
before the just completely rotten foundation
of the conviction that sent them there can be exposed.
-: Forgive my ignorance, did that rule exist
at the time of the post-trial?
-: And forgive my ignorance for not being sure, right?
J. Gaziano: Okay, I guess we'll both look it up.
-: Yes, I guess we will.
Well, I see my time is up.
I don't know if there's any further questions.
J. Budd: I think we're all set.
-: But if not, I'll rest on my brief
and ask that you affirm the order, thank you.