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<v ->SJC-13450, Commonwealth v. Daniel Rogers.</v>

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<v ->Attorney Nathanson, good morning.</v>

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<v ->Good morning, Chief Justice Budd,</v>

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and may it please the court.

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David Nathanson for Daniel Rogers.

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I hope to reach three arguments today,

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the ineffective assistance claim and its sub-issues.

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Hope to very quickly hit the shoplifting issue,

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statutory interpretation, and then the reduction in verdict.

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But really throughout, I'm asking the court

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to please focus on the basic reality of this situation.

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Danny Rogers was a five foot five Black homeless man

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stealing, shoplifting toothpaste.

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He snuck out of the CVS.

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He ran, he tried to get away.

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He was chased down by three people

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with knives shouting, come here, N-word.

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He dropped most of the toothpaste.

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They slammed him against a concrete wall.

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They knocked him to the sidewalk.

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In the altercation, he sustained a defensive wound

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to his non-dominant hand.

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So, he was charged with and convicted of felony murder.

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The jury did not convict him of assault

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with intent to murder of Henry Young.

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They did not convict him

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of deliberate premeditation of Christian Giambrone.

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He could never avoid life without parole though

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unless he defeated armed robbery.

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The jury were given a path to felony murder

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built on technicalities.

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What this court called constructs

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in its opinion on direct appeal,

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and those constructs starts on armed robbery,

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because he used force in the escape phase.

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And so, he's constructively the first aggressor,

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even though he is not in fact the first person to use force.

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And because he's constructively the first aggressor,

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there's no self-defense.

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And so, it's felony murder.

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Dr. Rinn's testimony presented a way off

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that highly technical path to felony murder.

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Presenting a fight or flight theory

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to the jury just makes common sense, right?

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<v ->When did that fight or flight theory</v>

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trigger for your client?

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<v ->The testimony is it triggers</v>

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when the physical confrontation begins

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and reaches its apex when he believes he sees a knife.

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<v ->And that is after the toothpaste is taken?</v>

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<v ->Yes, yes.</v>
<v ->After he runs.</v>

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And he's at that point armed with

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a three-inch pocket knife, is that right?

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<v ->It is three or two,</v>

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but yes, it's a folding pocket knife.

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<v ->[Justice Wendlandt] Okay.</v>
<v ->It's in his pocket.</v>

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<v ->And what is the, you know, a testimony</v>

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about Dr, is it Rinn's?

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<v ->Rinn, yeah.</v>
<v ->Dr. Rinn's basis</v>

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in science for this theory that the panic attack,

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I guess is what he calls it,-

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<v ->Panic episode.</v>
<v ->happened when your client</v>

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was slammed against the wall?

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<v ->Right, so what he testifies is that.</v>

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<v ->Does he cite to any journals or other authority</v>

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that this type of instantaneous-ish panic attack

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is something that is scientifically sound?

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<v ->So, he never testifies that it's instantaneous.</v>

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What he testifies to is that it begins

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and then reaches its apex at the point.

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And when it reaches its apex,

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that's when it overwhelms the higher cortical functions,

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the subcortical functions take over.

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<v ->Okay. So, when this apex happens,</v>

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is there any authority that he references in his testimony

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or in his report that supports that?

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<v ->Yes.</v>
<v ->What is that?</v>

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<v ->So, first of all, he testifies to his qualifications.</v>

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<v ->No, no, I'm not, I think that</v>

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the motion judge said he was qualified.

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I'm focused on the scientific basis for this apex of panic.

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<v ->So, there's two answers to that.</v>

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The first and most direct answer is in his report,

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he cites an article by Fikretoglu.

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<v ->I'm sorry, by who?</v>

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<v ->F-I-K-R-E-T-O-G-L-U.</v>

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<v ->Okay.</v>
<v ->It's in his report.</v>

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And we certainly could have gone further into that,

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but nobody asked, right?

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<v ->Well, I mean, the defendant</v>

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bears the burden of proof at this point, right?

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<v ->Well, so.</v>

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<v ->You're offering expert testimony.</v>

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It has to be able to pass Daubert-Lanigan.

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So, the Fikretoglu article is what is being relied on

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for the scientific soundness of an apex panic attack theory.

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<v ->So, that's not only it, right?</v>

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<v ->Okay, so that's one thing there.</v>

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<v ->That's one.</v>
<v ->Anything else?</v>

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<v ->Yes, he testifies that it's</v>

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a recognized phenomenon in the field

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that there were five.

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<v ->But what is his bases, is there a footnote,</v>

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or, you know, something that says

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it's recognized in such study, in such book,

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in such journal, anything?

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<v ->So, I addressed that in my brief.</v>

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<v ->Yeah, can you do it now?</v>

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<v ->Yeah, and yes, of course.</v>
<v ->This is what</v>

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I'm concerned about, yeah.

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<v ->Right, and what I say in my brief,</v>

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and what I'm saying to you now,

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is that he's not allowed to get into hearsay

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basis of support on direct examination.

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That's the rule.

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The Commonwealth never examined him

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on the scholarly basis, the methods, right?

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They just examined him on didn't you consider this fact,

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didn't you consider that fact, right?

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The Commonwealth filed a motion,

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but they filed an opposition

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in which the only thing that they substantively, pardon me.

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The only thing that they substantively argued

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in the opposition was that Dr. Rinn wasn't qualified

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and complained about not having the CV,

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which I then provided to them well in advance

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of the motion for a new trial.

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And it was in fact introduced at the motion for a new trial.

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That was the only substantive challenge

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to Dr. Rinn's testimony.

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When we got through Dr. Rinn's qualifications,

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I asked the motion judge, "May I proceed?"

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<v ->Oh yeah, you're focused on his qualifications.</v>

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And I think the motion judge found that he was qualified?

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<v ->He was qualified, yes.</v>
<v ->Right, okay.</v>

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<v ->And so, what we then have is no further questions, right?</v>

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So, I asked him about, you know,

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is it supported in the field?

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Yes, you know, he's the author

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of one of the lines of research.

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It's been studied in detail.

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No further questions.

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<v ->So, there's the Fikretoglu article,</v>

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and then Dr. Rinn himself has a line of research

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you're saying that was.

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<v ->Yes.</v>

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<v ->In referenced where?</v>

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In his testimony, in a report, affidavit?

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<v ->[Attorney Nathanson] Both.</v>

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<v ->His line of research?</v>

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

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<v ->talking about cortical versus subcortical functions</v>

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and which takes over, right?

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<v ->No, but in this particular aspect</v>

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of the apex theory of panic attacks?

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<v ->No.</v>
<v ->Okay.</v>

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<v ->No, not that.</v>
<v ->So, not that?</v>

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<v ->Okay.</v>
<v ->Okay, but.</v>

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<v ->The motion judge says,</v>

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"My search for medical or psychological support

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for Dr. Rinn's opinions was unsuccessful."

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So, he's just equally importantly,

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a computer search of the use of such theory

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in court cases produce meager results.

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So, all that's wrong, the judge is wrong on that?

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<v ->It's a notice and opportunity problem.</v>

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That's the problem, right?

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<v ->You're talking in code.</v>

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What do you mean?

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<v ->Yeah, yeah, so what I'm saying is</v>

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I was presented with a specific challenge

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to the doubt having to do with qualifications.

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I addressed it, we moved on.

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There were 19 days.

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<v ->Putting in a novel medical theory.</v>

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Don't you need to, and the judge says,

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"Look, this isn't what the DSMR says.

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This is something different."

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Don't you need to put in an article?

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Don't you need to submit some support for that?

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<v ->No, and the reason for that.</v>

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<v ->And let me ask a follow-up question.</v>

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And you're really prohibited from putting that in on direct,

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you're prohibited from putting in

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that study you just mentioned?

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<v ->Yes, that's the rule it's recited in my brief.</v>

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<v ->I'm sorry, what rule of evidence is that?</v>

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<v ->You can't elicit hearsay basis of support</v>

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for your opinion on direct appeal.

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It's only when you've been crossed on your basis, right?

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<v ->The Commonwealth versus juvenile line of cases.</v>

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<v ->Yes, yes, exactly.</v>
<v ->Okay.</v>

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<v ->But there's two problems with that.</v>

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The DSM is improper judicial notice, right?

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But also, the notice and opportunity problem.

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<v ->If you don't meet the DSMR, whatever,</v>

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I got my initials wrong.

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If you don't meet that

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and you're doing something different.

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You can put in the DSMR,

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but if the DSMR says the opposite, this isn't.

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<v ->[Justice Wendlandt] DSM-5.</v>

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<v ->Yeah, yes.</v>
<v ->The five,</v>

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doesn't support that.

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Don't you need to do something?

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<v ->First of all, there's no proper evidence</v>

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that it doesn't, right?

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<v ->The judge does a pretty detailed description</v>

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of why it's not on point.

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<v ->Right, and that was.</v>
<v ->Yeah, go ahead.</v>

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<v ->[Attorney Nathanson] I apologize.</v>

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<v ->Is your comment about notice and opportunity</v>

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is that this was surprise?

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<v ->Yes.</v>
<v ->Yeah, that you didn't</v>

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have the chance to address it.

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<v ->Yes, it was essentially a bait and switch.</v>

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I was told that the problem was qualifications.

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19 days passed between the close of Dr. Rinn's testimony

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and the hearing on the motion,

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on the argument on the motion for a new trial.

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When we argued the motion for a new trial,

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the judge never asked me about the DSM.

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The judge never asked me about any Daubert issues.

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The Commonwealth never argued any Daubert issues.

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The Commonwealth never argued any DSM.

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So, it is a notice and opportunity issue.

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And the DSM itself says,

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"Lay people shall not use this diagnostically."

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Right, so that is in an improper use of the DSM.

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And I just wanna say this court has said

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that when testimony, expert psychological testimony,

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has been approved in the past,

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Daubert is presumptively satisfied, right?

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<v ->So yeah, that was my other question.</v>

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Has this apex theory of panic attack

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been approved in the past?

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<v ->Well, panic as an impairment, right?</v>

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Panic as an impairment.

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<v ->Not a panic disorder.</v>

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<v ->[Attorney Nathanson] No.</v>

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<v ->Okay.</v>
<v ->Right, and that's Gray.</v>

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<v ->Your actual theory that Dr. Rinn was pursuing,</v>

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has that been accepted?

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<v ->[Attorney Nathanson] Yes.</v>

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<v ->In any case in the past?</v>
<v ->Yes.</v>

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<v ->Okay, what case is that?</v>
<v ->Gray, Gray,</v>

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which is at volume 399 of Massachusetts reports.

248
00:11:26.647 --> 00:11:30.060
<v ->That is a panic attack theory apex.</v>

249
00:11:30.060 --> 00:11:33.360
<v ->Not attack, that was a person who, of low IQ</v>

250
00:11:33.360 --> 00:11:34.193
<v ->Yep.</v>

251
00:11:34.193 --> 00:11:36.030
<v ->Who panicked in a situation</v>

252
00:11:36.030 --> 00:11:41.030
where he was telling people not to back away from him.

253
00:11:41.304 --> 00:11:45.840
And them backing away from him made him panic

254
00:11:45.840 --> 00:11:46.860
and he stabbed them.

255
00:11:46.860 --> 00:11:49.350
It is pretty close, right?

256
00:11:49.350 --> 00:11:53.130
Mr. Rogers, the evidence is that

257
00:11:53.130 --> 00:11:55.650
he is a person of somewhat low IQ

258
00:11:55.650 --> 00:11:58.533
and that he panicked, right?

259
00:12:00.450 --> 00:12:04.290
And there's all this evidence beyond Dr. Rinn, right?

260
00:12:04.290 --> 00:12:07.950
From Michael Andrick, that the trauma

261
00:12:07.950 --> 00:12:12.270
from being a homeless person makes people hyper defensive.

262
00:12:12.270 --> 00:12:15.360
Dr. Rinn testified that in neurology

263
00:12:15.360 --> 00:12:18.720
this provides what's called kindling for panic.

264
00:12:18.720 --> 00:12:20.820
It's a neurological kindling.

265
00:12:20.820 --> 00:12:23.940
And so, Dr. Rinn's testimony

266
00:12:23.940 --> 00:12:27.810
was a standard psychological opinion.

267
00:12:27.810 --> 00:12:30.713
There was no reason to question it.

268
00:12:30.713 --> 00:12:34.770
<v ->But other than the Gray case,</v>

269
00:12:34.770 --> 00:12:37.140
which sounds slightly different,

270
00:12:37.140 --> 00:12:39.759
you're arguing an effective assistance of counsel, right?

271
00:12:39.759 --> 00:12:40.592
<v ->[Attorney Nathanson] Yes.</v>

272
00:12:40.592 --> 00:12:44.880
<v ->So, what made the decision</v>

273
00:12:44.880 --> 00:12:47.880
or the failure to pursue this defense

274
00:12:47.880 --> 00:12:51.250
as opposed to the intoxication and drug defense

275
00:12:52.830 --> 00:12:55.860
fall below the ordinary fallible lawyer mark?

276
00:12:55.860 --> 00:12:58.140
<v ->Because he was pursuing an impairment theory</v>

277
00:12:58.140 --> 00:12:59.910
based on intoxication,

278
00:12:59.910 --> 00:13:03.360
but he never had his client evaluated.

279
00:13:03.360 --> 00:13:05.610
And so, the failure to investigate,

280
00:13:05.610 --> 00:13:08.370
a choice, a strategic choice,

281
00:13:08.370 --> 00:13:12.060
can never be reasonable unless it's based on investigation.

282
00:13:12.060 --> 00:13:15.000
And that's what this court has said in any number of cases.

283
00:13:15.000 --> 00:13:17.100
And he didn't complete the investigation

284
00:13:17.100 --> 00:13:18.960
before he made that choice.

285
00:13:18.960 --> 00:13:22.890
<v ->So, anytime a lawyer fails to subject their client</v>

286
00:13:22.890 --> 00:13:25.953
to a mental health professional, that's ineffective?

287
00:13:26.850 --> 00:13:28.620
So, obviously not, right?

288
00:13:28.620 --> 00:13:33.620
So, what in your client presented to the lawyer

289
00:13:38.790 --> 00:13:43.650
information to suggest that a mental health evaluation

290
00:13:43.650 --> 00:13:46.740
would have been fruitful?

291
00:13:46.740 --> 00:13:50.820
<v ->So, he raised intoxication that, right?</v>

292
00:13:50.820 --> 00:13:51.890
<v ->That's a mental, right?</v>

293
00:13:51.890 --> 00:13:53.160
<v ->'Cause he was actually intoxicated,</v>

294
00:13:53.160 --> 00:13:55.290
wasn't he shooting up heroin I think?

295
00:13:55.290 --> 00:13:56.123
<v ->Yes.</v>
<v ->Yeah.</v>

296
00:13:56.123 --> 00:13:58.212
So, that makes sense-

297
00:13:58.212 --> 00:13:59.045
<v ->[Attorney Nathanson] That's right.</v>

298
00:13:59.045 --> 00:14:00.757
<v ->in an appropriate investigation.</v>

299
00:14:00.757 --> 00:14:03.360
<v ->[Attorney Nathanson] Right, and so that, I apologize.</v>

300
00:14:03.360 --> 00:14:04.193
<v ->So, I'm sorry.</v>

301
00:14:04.193 --> 00:14:08.990
So, how does that dovetail with a mental health evaluation?

302
00:14:09.900 --> 00:14:12.480
<v ->Because he's raising Mr. Rogers' mental state.</v>

303
00:14:12.480 --> 00:14:15.360
<v ->Once you've raised a defensive intoxication</v>

304
00:14:15.360 --> 00:14:19.110
or impairment of some sort, you have to then go beyond

305
00:14:19.110 --> 00:14:22.770
and do a mental health evaluation.

306
00:14:22.770 --> 00:14:25.210
<v ->You have to investigate, yes, yes.</v>

307
00:14:25.210 --> 00:14:28.320
<v ->Okay, so every time a mental impairment</v>

308
00:14:28.320 --> 00:14:31.470
as a result of drugs and/or alcohol

309
00:14:31.470 --> 00:14:33.840
is raised under your regime

310
00:14:33.840 --> 00:14:37.320
would require the lawyer also to subject the client

311
00:14:37.320 --> 00:14:38.820
to a mental health evaluation.

312
00:14:38.820 --> 00:14:41.160
<v ->In these circumstances, yes.</v>

313
00:14:41.160 --> 00:14:43.710
<v ->Okay, what circumstances?</v>

314
00:14:43.710 --> 00:14:46.080
<v ->I'd really like to get to the reduction.</v>

315
00:14:46.080 --> 00:14:47.226
And I think I can.

316
00:14:47.226 --> 00:14:48.059
<v ->Or can you answer my question?</v>

317
00:14:48.059 --> 00:14:49.719
<v ->Oh, I'm sorry.</v>
<v ->Yeah.</v>

318
00:14:49.719 --> 00:14:50.940
<v ->I'm sorry, I didn't hear the full question.</v>

319
00:14:50.940 --> 00:14:52.233
Can, I'm sorry.

320
00:14:52.233 --> 00:14:53.066
<v ->I know 'cause you cut me off.</v>

321
00:14:53.066 --> 00:14:53.899
<v ->[Attorney Nathanson] I'm sorry.</v>

322
00:14:53.899 --> 00:14:55.140
<v ->Mental health impairment,</v>

323
00:14:55.140 --> 00:14:57.090
and you said in these circumstances,

324
00:14:57.090 --> 00:14:59.790
I had set forth a proposition that

325
00:14:59.790 --> 00:15:04.470
once you as a defense lawyer in your regime

326
00:15:04.470 --> 00:15:08.190
you raise impairment because of drugs and alcohol,

327
00:15:08.190 --> 00:15:12.120
you also you must subject your client

328
00:15:12.120 --> 00:15:14.040
to a mental health evaluation.

329
00:15:14.040 --> 00:15:16.440
And you said, "Yes, in these circumstances."

330
00:15:16.440 --> 00:15:19.800
What circumstances are you referring to?

331
00:15:19.800 --> 00:15:21.420
<v ->I'm referring to that he raised it</v>

332
00:15:21.420 --> 00:15:24.753
both in a motion to suppress and at trial,

333
00:15:25.800 --> 00:15:27.750
and it was key.

334
00:15:27.750 --> 00:15:32.580
There was no way to escape a life without parole conviction

335
00:15:32.580 --> 00:15:37.580
in this case without raising an impairment defense

336
00:15:37.860 --> 00:15:39.060
to the armed robbery.

337
00:15:39.060 --> 00:15:40.740
Those are the circumstances.

338
00:15:40.740 --> 00:15:42.840
I see that my time is over.

339
00:15:42.840 --> 00:15:44.490
<v ->No, I'd like you to address, you know,</v>

340
00:15:44.490 --> 00:15:45.600
the issue you wanna address,

341
00:15:45.600 --> 00:15:47.100
'cause I have, the judge seems

342
00:15:47.100 --> 00:15:48.897
to not like our Brown decision

343
00:15:48.897 --> 00:15:52.980
and that's driving a lot of what he's doing.

344
00:15:52.980 --> 00:15:55.500
<v ->So, I don't think that that's true, Your Honor.</v>

345
00:15:55.500 --> 00:15:57.759
<v ->He says, he finds that,</v>

346
00:15:57.759 --> 00:16:02.759
he comments on Brown not being consistent with this so.

347
00:16:04.200 --> 00:16:06.239
<v ->I really don't mean it that way.</v>

348
00:16:06.239 --> 00:16:07.590
<v ->What is the basis of what he's,</v>

349
00:16:07.590 --> 00:16:09.630
what is the legitimate basis

350
00:16:09.630 --> 00:16:12.330
of what he's doing to lower the verdict?

351
00:16:12.330 --> 00:16:15.960
'Cause it's not that Brown is not a good decision.

352
00:16:15.960 --> 00:16:17.133
That's not his call.

353
00:16:18.540 --> 00:16:23.540
<v ->So, I just direct the court to addendum page 102,</v>

354
00:16:23.640 --> 00:16:25.803
which is the motion judge's decision.

355
00:16:27.420 --> 00:16:28.443
I'm sorry, 112.

356
00:16:29.550 --> 00:16:33.300
And he just says, "Look, I recognize

357
00:16:33.300 --> 00:16:34.800
that Brown is not retroactive.

358
00:16:34.800 --> 00:16:37.110
That's not what I'm doing here.

359
00:16:37.110 --> 00:16:42.110
I am just using my Rule 25 powers to reduce a conviction,

360
00:16:44.160 --> 00:16:45.660
which is out of proportion

361
00:16:45.660 --> 00:16:47.700
to the defendant's culpability," right?

362
00:16:47.700 --> 00:16:49.290
And that's what happened in Brown.

363
00:16:49.290 --> 00:16:51.960
Brown didn't get the benefit of Brown, right?

364
00:16:51.960 --> 00:16:54.900
He got a proportionality reduction, right?

365
00:16:54.900 --> 00:16:56.760
Having to do with culpability.

366
00:16:56.760 --> 00:17:00.750
And Mr. Rogers' culpability in this case

367
00:17:00.750 --> 00:17:04.590
is especially where it's built on multiple legal constructs

368
00:17:04.590 --> 00:17:07.110
where the jury never considered whether he had malice.

369
00:17:07.110 --> 00:17:10.080
And in fact, when they had the opportunity

370
00:17:10.080 --> 00:17:11.880
to consider whether he had malice,

371
00:17:11.880 --> 00:17:16.260
both as to Henry Young and as to Christian Giambrone,

372
00:17:16.260 --> 00:17:18.060
they rejected it, right?

373
00:17:18.060 --> 00:17:20.077
So, what the judge is saying,

374
00:17:20.077 --> 00:17:22.440
"I've read the transcript,

375
00:17:22.440 --> 00:17:25.230
I've heard the testimony of Michael Andrick

376
00:17:25.230 --> 00:17:26.490
as to hyper defensiveness.

377
00:17:26.490 --> 00:17:28.130
I've heard the testimony of Dr. Rinn

378
00:17:28.130 --> 00:17:30.210
to the extent that he accepted it.

379
00:17:30.210 --> 00:17:33.720
And I think that this conviction of first degree murder

380
00:17:33.720 --> 00:17:36.330
is out of proportion to his culpability

381
00:17:36.330 --> 00:17:41.330
that has long been a proper basis under Rule 25."

382
00:17:44.490 --> 00:17:47.310
And so, you know, what the Commonwealth

383
00:17:47.310 --> 00:17:48.360
wants this court to do

384
00:17:48.360 --> 00:17:52.260
is overrule 40 years worth of precedent, right?

385
00:17:52.260 --> 00:17:56.163
This court said, "We read Rule 25(b)(2) this way,

386
00:17:57.480 --> 00:18:00.970
you know, the power to reduce continues

387
00:18:01.920 --> 00:18:05.400
and if the legislature doesn't like it, they can change it."

388
00:18:05.400 --> 00:18:07.920
It's been 40 years, they haven't changed it.

389
00:18:07.920 --> 00:18:11.130
So, this is really just a straight ahead,

390
00:18:11.130 --> 00:18:13.170
culpability-based reduction.

391
00:18:13.170 --> 00:18:14.587
The judge properly said,

392
00:18:14.587 --> 00:18:17.520
"Brown does not apply to this case."

393
00:18:17.520 --> 00:18:19.050
And so, this is not a time.

394
00:18:19.050 --> 00:18:22.350
What the Commonwealth is saying is

395
00:18:22.350 --> 00:18:24.660
you should overrule precedent

396
00:18:24.660 --> 00:18:28.560
and take away judge's ability to do justice.

397
00:18:28.560 --> 00:18:30.120
This is not the time for that.

398
00:18:30.120 --> 00:18:35.120
We are at a time in which we are finally coming to grips

399
00:18:35.520 --> 00:18:39.333
with some of the real flaws in our criminal legal system.

400
00:18:40.230 --> 00:18:42.630
Racism, both systemic and acute,

401
00:18:42.630 --> 00:18:46.350
flawed forensics, inflexible rules.

402
00:18:46.350 --> 00:18:47.670
These are things that.

403
00:18:47.670 --> 00:18:49.260
<v ->Last part that you wanted to talk about,</v>

404
00:18:49.260 --> 00:18:50.580
there were three things.

405
00:18:50.580 --> 00:18:53.070
<v ->I'm clearly not gonna get to it, Your Honor,</v>

406
00:18:53.070 --> 00:18:53.903
unless you want me to.

407
00:18:53.903 --> 00:18:56.550
<v ->Tell me what it is.</v>
<v ->Certainly.</v>

408
00:18:56.550 --> 00:18:59.040
The shoplifting issue, the statutory interpretation.

409
00:18:59.040 --> 00:19:02.610
<v ->Isn't he responsible for the cough medicine</v>

410
00:19:02.610 --> 00:19:04.200
and the other things that the other guys

411
00:19:04.200 --> 00:19:05.910
are stealing at the same time?

412
00:19:05.910 --> 00:19:07.800
'Cause it's a joint venture, right?

413
00:19:07.800 --> 00:19:09.540
So, I understand the toothpaste

414
00:19:09.540 --> 00:19:11.790
may not amount to a hundred bucks,

415
00:19:11.790 --> 00:19:15.570
but there are three guys

416
00:19:15.570 --> 00:19:17.400
shoplifting at the same time, right?

417
00:19:17.400 --> 00:19:19.890
So, don't we add all those together?

418
00:19:19.890 --> 00:19:21.750
<v ->We have no evidence.</v>

419
00:19:21.750 --> 00:19:22.583
<v ->Oh, we do.</v>

420
00:19:22.583 --> 00:19:25.350
We know that the other two are stealing cough medicine

421
00:19:25.350 --> 00:19:26.800
and some other things, right?

422
00:19:27.870 --> 00:19:30.129
<v ->Boy, that's never come up, Your Honor.</v>

423
00:19:30.129 --> 00:19:31.680
<v ->To me it seems obvious</v>

424
00:19:31.680 --> 00:19:33.450
that I'm not just looking at toothpaste.

425
00:19:33.450 --> 00:19:35.610
I see your point of, I'm just looking at toothpaste.

426
00:19:35.610 --> 00:19:37.530
It's hard to steal $100 worth

427
00:19:37.530 --> 00:19:39.240
whatever the number is of toothpaste,

428
00:19:39.240 --> 00:19:41.370
but they're stealing a bunch of things.

429
00:19:41.370 --> 00:19:43.560
They're basically running through

430
00:19:43.560 --> 00:19:45.720
this pharmacy taking things.

431
00:19:45.720 --> 00:19:47.373
<v ->So, I'd have to review the,</v>

432
00:19:48.570 --> 00:19:50.970
I'd like the opportunity to respond to that in a letter.

433
00:19:50.970 --> 00:19:52.350
I'll review the record to see,

434
00:19:52.350 --> 00:19:54.810
if there's evidence of the value of the other items.

435
00:19:54.810 --> 00:19:56.910
But the prosecutor in opening

436
00:19:56.910 --> 00:19:59.490
admitted that it wasn't more than $40,

437
00:19:59.490 --> 00:20:01.890
and that's what he focused on.

438
00:20:01.890 --> 00:20:03.630
<v ->Toothpaste, was it more than $40</v>

439
00:20:03.630 --> 00:20:05.000
or that everything was it.
<v ->Yes.</v>

440
00:20:05.000 --> 00:20:06.090
And that was the only focus.

441
00:20:06.090 --> 00:20:07.980
<v ->It's a joint venture, right?</v>

442
00:20:07.980 --> 00:20:09.360
<v ->So, I don't believe the jury</v>

443
00:20:09.360 --> 00:20:12.213
was ever charged with joint venture.

444
00:20:14.190 --> 00:20:17.490
<v ->I thought it's a joint venture felony murder, it's not?</v>

445
00:20:17.490 --> 00:20:18.480
<v ->No.</v>
<v ->Okay, it's not.</v>

446
00:20:18.480 --> 00:20:19.413
<v ->No, no.</v>

447
00:20:21.150 --> 00:20:22.470
If there are no further questions,

448
00:20:22.470 --> 00:20:24.214
I rest on get my brief, thank you.

449
00:20:24.214 --> 00:20:25.680
<v ->Thank you very much.</v>

450
00:20:25.680 --> 00:20:27.090
<v ->I'm sorry, Justice Wendlandt,</v>

451
00:20:27.090 --> 00:20:28.290
I apologize for cutting you off.

452
00:20:28.290 --> 00:20:29.760
I'm sorry.
<v ->Not at all.</v>

453
00:20:29.760 --> 00:20:31.653
We only get 15 minutes, so I'm eager.

454
00:20:32.880 --> 00:20:34.130
<v ->Okay, Attorney MacLean.</v>

455
00:20:35.250 --> 00:20:36.450
<v ->Good morning, may it please the court.</v>

456
00:20:36.450 --> 00:20:38.670
Ian MacLean on behalf of the Commonwealth.

457
00:20:38.670 --> 00:20:40.350
I'd like to acknowledge the family

458
00:20:40.350 --> 00:20:42.630
of 17-year-old murder victim Christian Giambrone,

459
00:20:42.630 --> 00:20:43.650
including his mother that are

460
00:20:43.650 --> 00:20:46.023
watching the live stream now this morning.

461
00:20:46.890 --> 00:20:49.260
Your Honors, 25(b)(2) plays a role,

462
00:20:49.260 --> 00:20:51.150
an important role in our system,

463
00:20:51.150 --> 00:20:53.040
but it's a limited role.

464
00:20:53.040 --> 00:20:54.990
In Q when this court altered

465
00:20:54.990 --> 00:20:57.180
basically the wording of 25(b)(2),

466
00:20:57.180 --> 00:20:59.550
it significantly expanded that role.

467
00:20:59.550 --> 00:21:01.740
And when it did so in Q in footnote three,

468
00:21:01.740 --> 00:21:03.240
it invited this court

469
00:21:03.240 --> 00:21:05.280
after we had operated under that new system,

470
00:21:05.280 --> 00:21:06.360
they were basically creating,

471
00:21:06.360 --> 00:21:09.510
it invited this court to revisit it and reconsider it.

472
00:21:09.510 --> 00:21:11.490
And that's what we're asking the court to do now.

473
00:21:11.490 --> 00:21:13.890
We're not asking the court to eliminate Rule 25(b)(2),

474
00:21:13.890 --> 00:21:16.590
we recognize the need for a safety valve

475
00:21:16.590 --> 00:21:19.080
in the immediate aftermath of a jury verdict.

476
00:21:19.080 --> 00:21:21.450
Where while a verdict was legally sufficient,

477
00:21:21.450 --> 00:21:23.550
it may not be appropriate.

478
00:21:23.550 --> 00:21:25.590
And we think trial judges should have that authority

479
00:21:25.590 --> 00:21:28.350
in the immediate aftermath of the trial.

480
00:21:28.350 --> 00:21:30.270
However, that doesn't exist in perpetuity.

481
00:21:30.270 --> 00:21:32.663
It shouldn't exist in perpetuity as occurred here.

482
00:21:32.663 --> 00:21:34.830
<v ->Haven't we said multiple times</v>

483
00:21:34.830 --> 00:21:36.420
that the strict time deadline

484
00:21:36.420 --> 00:21:39.180
that you're trying to impose, we reject?

485
00:21:39.180 --> 00:21:41.534
It's not just one case, haven't we?

486
00:21:41.534 --> 00:21:43.450
<v ->Yeah, did we.</v>
<v ->Do that by furthers?</v>

487
00:21:43.450 --> 00:21:45.540
<v ->Yes, very recently.</v>
<v ->A bunch of them.</v>

488
00:21:45.540 --> 00:21:46.596
<v ->Yeah.</v>

489
00:21:46.596 --> 00:21:47.970
<v ->In Pfeiffer, the court declined to reach the argument.</v>

490
00:21:47.970 --> 00:21:49.017
It was my case,

491
00:21:49.017 --> 00:21:51.420
and the court declined to reach the argument itself.

492
00:21:51.420 --> 00:21:52.890
So, this court has never actually,

493
00:21:52.890 --> 00:21:54.510
legitimately grappled with the question.

494
00:21:54.510 --> 00:21:56.730
<v ->Practicality is we did the opposite</v>

495
00:21:56.730 --> 00:21:58.470
of what you're arguing, right?

496
00:21:58.470 --> 00:22:03.030
We allowed something not within this strict timeframe,

497
00:22:03.030 --> 00:22:05.880
and we've done it I don't know how many times.

498
00:22:05.880 --> 00:22:10.140
Aren't you paddling seriously upstream here on this?

499
00:22:10.140 --> 00:22:11.100
<v ->Well, that's fine, Your Honor,</v>

500
00:22:11.100 --> 00:22:12.810
but I'm saying that this court

501
00:22:12.810 --> 00:22:14.700
now that it's got some years of experience

502
00:22:14.700 --> 00:22:17.610
with the system that was created as a result of the Q case,

503
00:22:17.610 --> 00:22:19.050
when this court in a footnote

504
00:22:19.050 --> 00:22:21.240
invited the court to revisit it at some point

505
00:22:21.240 --> 00:22:22.680
and see if there should be a limitation

506
00:22:22.680 --> 00:22:24.240
imposed on the second sentence.

507
00:22:24.240 --> 00:22:26.040
Now, we have that world of cases

508
00:22:26.040 --> 00:22:28.770
and it's time for us to look at and reconsider it.

509
00:22:28.770 --> 00:22:30.510
And I'm not saying.
<v ->What is your best argument</v>

510
00:22:30.510 --> 00:22:32.310
for, you know, what's happened

511
00:22:32.310 --> 00:22:34.710
in the course of the time that's caused

512
00:22:34.710 --> 00:22:37.090
sort of a disruption in the legal regime

513
00:22:38.160 --> 00:22:40.560
that would warrant revisiting

514
00:22:40.560 --> 00:22:44.860
and/or changing the way we decide 25(b)(2).

515
00:22:44.860 --> 00:22:46.500
<v ->Well, so respectfully, Your Honor,</v>

516
00:22:46.500 --> 00:22:47.333
I would characterize it as

517
00:22:47.333 --> 00:22:49.980
correctly recognizing 25(b)(2)'s place in the system.

518
00:22:49.980 --> 00:22:51.090
And there are a series of things.

519
00:22:51.090 --> 00:22:54.030
The first of which is a direct comparison to Rule 30.

520
00:22:54.030 --> 00:22:55.530
We're talking about rules of criminal.

521
00:22:55.530 --> 00:22:56.730
<v ->That existed at the time.</v>

522
00:22:56.730 --> 00:22:58.323
So, what's different now?

523
00:22:59.670 --> 00:23:03.600
You know, at any time was in Rule 30 at the time,

524
00:23:03.600 --> 00:23:06.060
Gilbert was decided saying that 25(b)(2)

525
00:23:06.060 --> 00:23:09.810
allowed Judge Gants on the Superior Court at the time

526
00:23:09.810 --> 00:23:14.810
to revisit something that had already undergone 33E review.

527
00:23:15.000 --> 00:23:15.833
<v ->Well, Your Honor, the point is</v>

528
00:23:15.833 --> 00:23:18.390
that there's now been enough time that this court has seen,

529
00:23:18.390 --> 00:23:20.280
I counted 10 cases that you've had

530
00:23:20.280 --> 00:23:22.020
that were post direct appeal.

531
00:23:22.020 --> 00:23:24.450
A 25(b)(2) allowed post direct appeal

532
00:23:24.450 --> 00:23:26.280
is 10 is the number that I counted.

533
00:23:26.280 --> 00:23:27.330
There's a litany of other cases

534
00:23:27.330 --> 00:23:28.590
that don't make it here to you,

535
00:23:28.590 --> 00:23:29.820
but 10 that this court has had.

536
00:23:29.820 --> 00:23:30.890
So, I think we got some experience.

537
00:23:30.890 --> 00:23:32.040
<v ->Yeah. So, what's wrong with that?</v>

538
00:23:32.040 --> 00:23:33.750
<v ->Because you're reopening the wounds</v>

539
00:23:33.750 --> 00:23:35.700
for the families of the murder victims

540
00:23:35.700 --> 00:23:37.950
years or decades after the fact

541
00:23:37.950 --> 00:23:40.080
when they've been told the conviction is final.

542
00:23:40.080 --> 00:23:42.210
You're basically undermining the jury system

543
00:23:42.210 --> 00:23:43.950
and the entire appellate review system

544
00:23:43.950 --> 00:23:45.960
where when you guys pass on a case

545
00:23:45.960 --> 00:23:47.460
and conduct 33E review,

546
00:23:47.460 --> 00:23:49.590
looking at the whole case as you're required

547
00:23:49.590 --> 00:23:51.390
to then allow them to reopen

548
00:23:51.390 --> 00:23:53.400
the family's wounds and reopen the case.

549
00:23:53.400 --> 00:23:55.920
Not on the basis of a legal error.

550
00:23:55.920 --> 00:23:58.530
<v ->Well, but it is based on it,</v>

551
00:23:58.530 --> 00:24:00.900
it can be based on legal error, right?

552
00:24:00.900 --> 00:24:02.970
I mean that's part of what we're looking at.

553
00:24:02.970 --> 00:24:05.190
<v ->So, respectfully, Your.</v>
<v ->So, I mean,</v>

554
00:24:05.190 --> 00:24:08.100
Mr. Nathanson stands up and talks about,

555
00:24:08.100 --> 00:24:12.330
you know, the whole Innocence Project,

556
00:24:12.330 --> 00:24:14.490
you know, sort of conception of criminal law

557
00:24:14.490 --> 00:24:16.230
and now you're doing the opposite.

558
00:24:16.230 --> 00:24:18.660
So, I mean, and it's more nuanced

559
00:24:18.660 --> 00:24:20.820
than both of you are presenting, isn't it?

560
00:24:20.820 --> 00:24:21.810
<v ->I don't believe so, Your Honor.</v>

561
00:24:21.810 --> 00:24:24.330
I think Rule 25 and Rule 30 work in concert.

562
00:24:24.330 --> 00:24:28.020
Rule 30 exists with express language saying at any time,

563
00:24:28.020 --> 00:24:30.810
which 25(b)(2) does not have.

564
00:24:30.810 --> 00:24:33.160
<v ->Counsel, I think when you were talking about,</v>

565
00:24:34.050 --> 00:24:37.560
you referenced the court's experience under this rule,

566
00:24:37.560 --> 00:24:40.050
which sounds like a stare decisis argument,

567
00:24:40.050 --> 00:24:41.610
which I think Justice Wendlandt was getting at.

568
00:24:41.610 --> 00:24:44.280
And you have not briefed the issue of stare decisis,

569
00:24:44.280 --> 00:24:46.080
but all of your arguments so far

570
00:24:46.080 --> 00:24:48.270
have gone to the consideration

571
00:24:48.270 --> 00:24:50.550
of whether the court's treatment in Gilbert

572
00:24:50.550 --> 00:24:52.050
and other cases was wrong,

573
00:24:52.050 --> 00:24:53.700
but that's only one factor.

574
00:24:53.700 --> 00:24:58.700
So, could you express an argument why it's correct

575
00:24:59.280 --> 00:25:00.900
in addition to arguments on the merits

576
00:25:00.900 --> 00:25:02.820
that you're making about finality

577
00:25:02.820 --> 00:25:05.850
why the court should revisit a rule

578
00:25:05.850 --> 00:25:07.470
that has been understood to be settled,

579
00:25:07.470 --> 00:25:10.416
a settled understanding of how Rule 25(b)(2) is?

580
00:25:10.416 --> 00:25:11.249
<v ->I respectfully, Your Honor, I would say</v>

581
00:25:11.249 --> 00:25:12.113
it's never been settled.

582
00:25:12.113 --> 00:25:14.850
And the footnote three in the case, in the Q case,

583
00:25:14.850 --> 00:25:19.850
in 1982, that broke 25(b)(2) into two separate components.

584
00:25:20.520 --> 00:25:22.747
In that very case, they dropped a footnote saying,

585
00:25:22.747 --> 00:25:25.080
"After we've operated under the system for a while,

586
00:25:25.080 --> 00:25:27.360
we invite this court to look at it

587
00:25:27.360 --> 00:25:28.590
and see how it's working."

588
00:25:28.590 --> 00:25:30.630
So, I don't think it's ever been clearly settled.

589
00:25:30.630 --> 00:25:31.860
And this court has never actually,

590
00:25:31.860 --> 00:25:32.940
legitimately grappled with it.

591
00:25:32.940 --> 00:25:34.620
It's always just been accepted,

592
00:25:34.620 --> 00:25:36.810
because we were needing to build up that body of cases

593
00:25:36.810 --> 00:25:37.800
and that body of laws that

594
00:25:37.800 --> 00:25:39.810
we would have enough to look at to consider

595
00:25:39.810 --> 00:25:41.800
whether 25(b)(2) was properly being interpreted or not.

596
00:25:41.800 --> 00:25:43.740
<v ->Okay, counsel, you might disagree with me,</v>

597
00:25:43.740 --> 00:25:47.640
but we didn't grapple with this and settle this

598
00:25:47.640 --> 00:25:50.529
in Pfeiffer last term with the term before.

599
00:25:50.529 --> 00:25:52.170
Did we just do that?

600
00:25:52.170 --> 00:25:53.970
<v ->Your Honor, the court may have discussed it ensemble,</v>

601
00:25:53.970 --> 00:25:55.350
I don't know, but in the published opinion,

602
00:25:55.350 --> 00:25:57.900
you said the argument's waived and we declined to reach it.

603
00:25:57.900 --> 00:25:59.610
So, while you may have had an opportunity

604
00:25:59.610 --> 00:26:01.284
to discuss it, now's the oppor.

605
00:26:01.284 --> 00:26:04.140
<v ->I thought we affirmed the court's reduction</v>

606
00:26:04.140 --> 00:26:06.180
under 25(b)(2)

607
00:26:06.180 --> 00:26:07.350
<v ->Yes, Your Honor, you did.</v>

608
00:26:07.350 --> 00:26:08.790
The argument that I'm making now

609
00:26:08.790 --> 00:26:11.400
is an argument that the court declined to address

610
00:26:11.400 --> 00:26:13.320
and expressly said it was waived.

611
00:26:13.320 --> 00:26:15.780
So, it's not waived here, we fully preserved it.

612
00:26:15.780 --> 00:26:17.490
So now, is I think the time for the court to grapple.

613
00:26:17.490 --> 00:26:19.170
<v ->I guess I'm not trying to split hairs with you,</v>

614
00:26:19.170 --> 00:26:21.457
but we had a verdict in Pfeiffer.

615
00:26:21.457 --> 00:26:22.290
<v ->[Attorney MacLean] Correct.</v>

616
00:26:22.290 --> 00:26:24.120
<v ->It was appealed.</v>
<v ->[Attorney MacLean] correct.</v>

617
00:26:24.120 --> 00:26:26.760
<v ->And then it went back to the judge</v>

618
00:26:26.760 --> 00:26:28.264
on motion for new trial.

619
00:26:28.264 --> 00:26:29.097
<v ->[Attorney MacLean] Correct.</v>

620
00:26:29.097 --> 00:26:31.020
<v ->And under 25(b)(2),</v>

621
00:26:31.020 --> 00:26:33.480
the judge reduced the level of culpability.

622
00:26:33.480 --> 00:26:35.913
It was appealed again and we affirmed that.

623
00:26:36.840 --> 00:26:41.840
So, I guess I'm just missing what we haven't said before

624
00:26:42.000 --> 00:26:43.890
that this is a proper tool

625
00:26:43.890 --> 00:26:45.510
and understanding all the consequences

626
00:26:45.510 --> 00:26:47.130
and all the implications to it,

627
00:26:47.130 --> 00:26:50.880
but we've reaffirmed trial judges' discretion

628
00:26:50.880 --> 00:26:54.390
to do this if justice requires.

629
00:26:54.390 --> 00:26:57.210
<v ->Yes, Your Honor, in Pfeiffer you said</v>

630
00:26:57.210 --> 00:26:59.940
the trial judge and motion judge, same judge,

631
00:26:59.940 --> 00:27:02.490
did not abuse her discretion in reducing the verdict.

632
00:27:02.490 --> 00:27:04.440
The argument that the Commonwealth was making was,

633
00:27:04.440 --> 00:27:07.110
yes, she did in that specific case, based on her reasoning,

634
00:27:07.110 --> 00:27:08.700
and she lacked the authority to do it all.

635
00:27:08.700 --> 00:27:10.500
25(b)(2) shouldn't apply then.

636
00:27:10.500 --> 00:27:12.090
My understanding of the Pfeiffer opinion

637
00:27:12.090 --> 00:27:14.490
is the court said you're arguing about

638
00:27:14.490 --> 00:27:16.260
the legitimacy of 25(b)(2) is waived,

639
00:27:16.260 --> 00:27:17.400
we're not addressing it.

640
00:27:17.400 --> 00:27:20.250
She did not abuse her discretion in that individual case.

641
00:27:20.250 --> 00:27:21.240
So, that's why I would say the court

642
00:27:21.240 --> 00:27:23.190
has not actually passed on this issue.

643
00:27:23.190 --> 00:27:25.260
And I think recognizing,

644
00:27:25.260 --> 00:27:27.506
and I'd also point to the appeals court in 2018.

645
00:27:27.506 --> 00:27:29.370
<v ->What are the 10 other cases that you mentioned</v>

646
00:27:29.370 --> 00:27:31.800
that we've done this, right?

647
00:27:31.800 --> 00:27:32.850
You said there are 10 of them

648
00:27:32.850 --> 00:27:35.430
where we've gone ahead and done this.

649
00:27:35.430 --> 00:27:39.000
Any same sense of waiver in all of those cases or?

650
00:27:39.000 --> 00:27:41.340
<v ->No, Your Honor, but never actually substantively addressed</v>

651
00:27:41.340 --> 00:27:42.870
in anything that's been written.

652
00:27:42.870 --> 00:27:45.030
So, I don't, from my perspective, the court has

653
00:27:45.030 --> 00:27:46.230
squarely grappled.
<v ->Well, I'm sorry.</v>

654
00:27:46.230 --> 00:27:48.963
I thought Gilbert directly addressed this.

655
00:27:50.910 --> 00:27:51.990
<v ->I don't read it that way, Your Honor,</v>

656
00:27:51.990 --> 00:27:53.632
I read Gilbert has a discussion about

657
00:27:53.632 --> 00:27:55.920
what's the difference between 30 and 25

658
00:27:55.920 --> 00:27:57.750
and what power does the judge have under each,

659
00:27:57.750 --> 00:27:59.310
not whether 25.
<v ->In Gilbert,</v>

660
00:27:59.310 --> 00:28:04.310
didn't the motion judge reduce the sentence under 25(b)?

661
00:28:07.080 --> 00:28:08.490
<v ->Not the sentence, Your Honor,</v>

662
00:28:08.490 --> 00:28:10.343
former Chief Justice Gant.
<v ->I'm sorry, yes.</v>

663
00:28:10.343 --> 00:28:11.970
<v ->Reduced a murder one to a murder two,</v>

664
00:28:11.970 --> 00:28:13.650
because there was instructional error

665
00:28:13.650 --> 00:28:16.080
in the murder one instruction that was never addressed

666
00:28:16.080 --> 00:28:17.730
during the appellate process on the case.

667
00:28:17.730 --> 00:28:20.160
So really, Gilbert is a Rule 30

668
00:28:20.160 --> 00:28:22.830
where there was a legal error that existed in the case.

669
00:28:22.830 --> 00:28:24.480
The legal error only infected so much

670
00:28:24.480 --> 00:28:26.280
of the cases addressed first degree.

671
00:28:26.280 --> 00:28:28.350
So, Judge Justice Gants gave the Commonwealth

672
00:28:28.350 --> 00:28:30.540
the opportunity to accept the rest of the trial

673
00:28:30.540 --> 00:28:32.490
that the legal error didn't touch.

674
00:28:32.490 --> 00:28:35.730
So, really that decision, despite what was called,

675
00:28:35.730 --> 00:28:38.387
was really a Rule 30 ruling and we're not.

676
00:28:38.387 --> 00:28:42.947
<v ->Okay. So, we understand your argument on this so.</v>

677
00:28:42.947 --> 00:28:44.026
<v ->Can I ask you, oh, sorry.</v>

678
00:28:44.026 --> 00:28:45.030
<v ->No, go ahead. No, go ahead.</v>

679
00:28:45.030 --> 00:28:48.483
<v ->So, speaking of waiver and Pfeiffer,</v>

680
00:28:49.410 --> 00:28:52.650
did the Commonwealth here wave any challenge

681
00:28:52.650 --> 00:28:56.820
to the scientific methodology used by Dr. Rinn?

682
00:28:56.820 --> 00:28:58.620
<v ->No, Your Honor, in the written.</v>

683
00:28:58.620 --> 00:29:00.330
<v ->Addressed specifically, then opposing</v>

684
00:29:00.330 --> 00:29:03.000
counsel's argument to that effect?

685
00:29:03.000 --> 00:29:05.310
<v ->Well, yes.</v>

686
00:29:05.310 --> 00:29:07.260
The Commonwealth is under no burden to ensure

687
00:29:07.260 --> 00:29:09.000
that adequate evidence is.

688
00:29:09.000 --> 00:29:11.130
I'm under no burden on cross to bring out evidence

689
00:29:11.130 --> 00:29:12.300
to address the different elements

690
00:29:12.300 --> 00:29:14.280
of the Daubert-Lanigan test.

691
00:29:14.280 --> 00:29:17.580
Our initial written opposition cited Daubert-Lanigan.

692
00:29:17.580 --> 00:29:19.740
He was on notice that, that was part of the challenge.

693
00:29:19.740 --> 00:29:21.660
<v ->And was the opposition focused</v>

694
00:29:21.660 --> 00:29:25.710
on the qualifications of Dr. Rinn as counsel suggest?

695
00:29:25.710 --> 00:29:27.780
<v ->Focused, yes. Focused, yes.</v>

696
00:29:27.780 --> 00:29:31.627
<v ->Was there any mention as to the acceptability</v>

697
00:29:33.630 --> 00:29:37.053
of the methodology of this apex theory of panic attacks?

698
00:29:38.460 --> 00:29:39.840
<v ->If you read the specific page</v>

699
00:29:39.840 --> 00:29:42.330
of the Commonwealth's initial written opposition

700
00:29:42.330 --> 00:29:43.650
that cites Daubert-Lanigan,

701
00:29:43.650 --> 00:29:45.900
it talks about the admissibility of the opinion.

702
00:29:45.900 --> 00:29:47.760
So yes, the defendant was on notice

703
00:29:47.760 --> 00:29:50.130
that he had to establish the admissibility of the opinion.

704
00:29:50.130 --> 00:29:52.050
It's not the Commonwealth's burden during the hearing

705
00:29:52.050 --> 00:29:53.280
to make sure that he's aware

706
00:29:53.280 --> 00:29:55.410
of the five components of the Daubert-Lanigan test

707
00:29:55.410 --> 00:29:56.790
and to make sure he presents evidence

708
00:29:56.790 --> 00:29:57.810
on those five components.

709
00:29:57.810 --> 00:30:00.570
<v ->And now, he suggests in oral argument at least</v>

710
00:30:00.570 --> 00:30:05.570
that he was not able to bring forward,

711
00:30:05.700 --> 00:30:07.260
because it would've been hearsay

712
00:30:07.260 --> 00:30:10.620
any support outside of Dr. Rinn's testimony.

713
00:30:10.620 --> 00:30:11.850
Can you address that?

714
00:30:11.850 --> 00:30:14.580
<v ->He can offer as many studies or reports or exhibits</v>

715
00:30:14.580 --> 00:30:16.440
as he wants to offer in the evidentiary hearing.

716
00:30:16.440 --> 00:30:18.630
He offered what he offered.

717
00:30:18.630 --> 00:30:19.740
And the motion judge found that,

718
00:30:19.740 --> 00:30:21.540
that didn't meet the Daubert-Lanigan factors.

719
00:30:21.540 --> 00:30:23.250
And Your Honor, respectfully, we've already,

720
00:30:23.250 --> 00:30:25.110
in addressing the merits, we've already jumped over

721
00:30:25.110 --> 00:30:27.810
the actual gatekeeper aspect of this, of whether this claim,

722
00:30:27.810 --> 00:30:29.730
this entire claim is new and substantial.

723
00:30:29.730 --> 00:30:33.420
<v ->Well, ineffective assistance of counsel isn't that new?</v>

724
00:30:33.420 --> 00:30:35.040
<v ->No, Your Honor.</v>
<v ->No?</v>

725
00:30:35.040 --> 00:30:37.290
So, you're saying that trial counsel,

726
00:30:37.290 --> 00:30:40.080
even though that same person was appellate counsel,

727
00:30:40.080 --> 00:30:42.510
could have raised an ineffective assistance of counsel?

728
00:30:42.510 --> 00:30:44.280
<v ->Absolutely, Your Honor.</v>
<v ->Okay.</v>

729
00:30:44.280 --> 00:30:46.800
<v ->There's no prohibition on that at all.</v>

730
00:30:46.800 --> 00:30:48.600
He was convicted in 2007.

731
00:30:48.600 --> 00:30:51.450
His direct appeal happened in 2011.

732
00:30:51.450 --> 00:30:53.490
That's a four-year timeframe when they could have

733
00:30:53.490 --> 00:30:54.720
raised a motion for a new trial

734
00:30:54.720 --> 00:30:56.370
alleging ineffective assistance of counsel.

735
00:30:56.370 --> 00:30:58.500
When he could have sought a different attorney

736
00:30:58.500 --> 00:30:59.906
if he wanted, when he could have raised

737
00:30:59.906 --> 00:31:00.900
on his direct review.
<v ->You address our decision</v>

738
00:31:00.900 --> 00:31:05.100
then in 1998 Smith, where trial counsel

739
00:31:05.100 --> 00:31:07.050
as appellate counsel, on direct review

740
00:31:07.050 --> 00:31:09.240
the claim of ineffective assistance

741
00:31:09.240 --> 00:31:11.013
based on failure to act as new.

742
00:31:13.530 --> 00:31:15.000
<v ->No, I can't, Your Honor.</v>

743
00:31:15.000 --> 00:31:17.520
<v ->So, let's just assume Smith is still good law,</v>

744
00:31:17.520 --> 00:31:20.643
and the ineffective assistance of counsel is new.

745
00:31:23.640 --> 00:31:26.430
What about the judge's decision,

746
00:31:26.430 --> 00:31:28.890
the motion judge's decision,

747
00:31:28.890 --> 00:31:31.700
applying Daubert-Lanigan is correct?

748
00:31:35.100 --> 00:31:38.130
It seems to me that the motion judge did go off

749
00:31:38.130 --> 00:31:40.530
and become his own little mini scientist

750
00:31:40.530 --> 00:31:43.320
and looked at the DSM

751
00:31:43.320 --> 00:31:46.350
and started looking at these factors for panic disorder.

752
00:31:46.350 --> 00:31:49.230
And I'm wondering, you know, why is that acceptable?

753
00:31:49.230 --> 00:31:52.410
<v ->The motion judge went beyond trying to help the defense</v>

754
00:31:52.410 --> 00:31:54.789
and come up and make up for the inadequacies

755
00:31:54.789 --> 00:31:56.790
of their presentation in the evidentiary hearing.

756
00:31:56.790 --> 00:31:58.920
If anything, he did even more to try to help them

757
00:31:58.920 --> 00:31:59.820
than he was required to do.

758
00:31:59.820 --> 00:32:01.777
He could have simply written one paragraph and said,

759
00:32:01.777 --> 00:32:02.850
"You didn't even come close

760
00:32:02.850 --> 00:32:05.040
on the five Daubert-Lanigan factors, you lose."

761
00:32:05.040 --> 00:32:06.630
He did some legal research himself

762
00:32:06.630 --> 00:32:08.132
to see if he could find other cases

763
00:32:08.132 --> 00:32:12.120
where it had been used in courts, didn't find any.

764
00:32:12.120 --> 00:32:15.060
Now, their claim that he went all through the DSM

765
00:32:15.060 --> 00:32:17.010
and examined it himself is simply not accurate.

766
00:32:17.010 --> 00:32:18.510
Dr. Rinn testified.

767
00:32:18.510 --> 00:32:21.540
The closest thing in the DSM is this condition X,

768
00:32:21.540 --> 00:32:23.923
which I have not diagnosed him with.

769
00:32:23.923 --> 00:32:26.040
<v ->[Justice Wendlandt] The panic disorder?</v>

770
00:32:26.040 --> 00:32:26.873
<v ->Correct, Your Honor.</v>

771
00:32:26.873 --> 00:32:28.530
That's at transcript page 51.

772
00:32:28.530 --> 00:32:31.110
So right there, there's an admission from their expert

773
00:32:31.110 --> 00:32:33.060
that this condition is not.

774
00:32:33.060 --> 00:32:34.980
<v ->But that was the whole foundation of his testimony.</v>

775
00:32:34.980 --> 00:32:37.860
His testimony was not that this was related

776
00:32:37.860 --> 00:32:40.950
to a DSM four or five condition.

777
00:32:40.950 --> 00:32:42.900
That was the nature of his testimony.

778
00:32:42.900 --> 00:32:44.973
And the judge did talk about,

779
00:32:46.260 --> 00:32:47.610
please correct me if I've got taken

780
00:32:47.610 --> 00:32:48.870
a wrong impression from the briefs.

781
00:32:48.870 --> 00:32:50.400
But the judge talked about a number of things

782
00:32:50.400 --> 00:32:52.680
that the judge looked up in the DSM

783
00:32:52.680 --> 00:32:54.510
that were not at all discussed in the testimony

784
00:32:54.510 --> 00:32:59.510
such as regarding specifiers or specificity.

785
00:33:00.330 --> 00:33:02.670
Basically, the idea of panic as sort of a,

786
00:33:02.670 --> 00:33:04.830
I don't fully understand it, but a subcategory.

787
00:33:04.830 --> 00:33:06.090
Can you address that?

788
00:33:06.090 --> 00:33:08.340
<v ->Your Honor, even if you wanna strike that from his ruling,</v>

789
00:33:08.340 --> 00:33:10.350
how does it detract from the finding

790
00:33:10.350 --> 00:33:12.840
that this condition, the closest condition,

791
00:33:12.840 --> 00:33:15.150
that exists that's in the DSM

792
00:33:15.150 --> 00:33:16.320
is a condition that he doesn't have?

793
00:33:16.320 --> 00:33:18.150
<v ->Can you address the argument of the other side?</v>

794
00:33:18.150 --> 00:33:20.270
I'd be really interested to hear your thoughts like that.

795
00:33:20.270 --> 00:33:23.580
The whole point here is that this is about impairment

796
00:33:23.580 --> 00:33:26.040
and one can show impairment per Gray,

797
00:33:26.040 --> 00:33:29.970
not just from a DSM four or five condition.

798
00:33:29.970 --> 00:33:31.791
That's the whole argument here.

799
00:33:31.791 --> 00:33:34.620
The expert was not purporting to say

800
00:33:34.620 --> 00:33:37.193
that he had a particular DSM, et cetera.

801
00:33:37.193 --> 00:33:38.490
Can you address that?

802
00:33:38.490 --> 00:33:40.290
<v ->Well, I'd start with saying that</v>

803
00:33:40.290 --> 00:33:42.810
I think Gray is distinguishable

804
00:33:42.810 --> 00:33:44.010
and really the focus here is

805
00:33:44.010 --> 00:33:45.570
as it's an ineffective assistance claim

806
00:33:45.570 --> 00:33:48.060
it's whether the trial counsel's decision

807
00:33:48.060 --> 00:33:50.460
to not consult an expert fell measurably below

808
00:33:50.460 --> 00:33:51.420
that which would be expected

809
00:33:51.420 --> 00:33:52.980
of an ordinary otherwise fallible attorney.

810
00:33:52.980 --> 00:33:54.600
We're not on 33E, so it's the regular

811
00:33:54.600 --> 00:33:55.863
Seferian standard here.

812
00:33:56.880 --> 00:33:59.640
And there was no reason here

813
00:33:59.640 --> 00:34:01.620
why this defendant tipped him off

814
00:34:01.620 --> 00:34:04.080
that he needed to go out and get a mental health expert.

815
00:34:04.080 --> 00:34:06.120
This is not one of those categories of cases

816
00:34:06.120 --> 00:34:08.527
where it's demonstrably obvious or the defendant tells him,

817
00:34:08.527 --> 00:34:09.930
"I've got this mental health condition

818
00:34:09.930 --> 00:34:11.070
you should look into."

819
00:34:11.070 --> 00:34:13.080
What was apparent from the facts here,

820
00:34:13.080 --> 00:34:16.830
was what the defense that he pursued, intoxication,

821
00:34:16.830 --> 00:34:18.870
and he adequately pursued that.

822
00:34:18.870 --> 00:34:21.750
If you go so far as to say this falls measurably below,

823
00:34:21.750 --> 00:34:23.730
then you're saying that every lawyer in every case

824
00:34:23.730 --> 00:34:25.080
has to hire a mental health expert

825
00:34:25.080 --> 00:34:27.720
to evaluate the defendant and see if there's some basis.

826
00:34:27.720 --> 00:34:29.250
The facts of the case here

827
00:34:29.250 --> 00:34:31.440
show that the defendant was executing a plan.

828
00:34:31.440 --> 00:34:32.677
The day before he said,

829
00:34:32.677 --> 00:34:35.280
"If they pursue us out while we're stealing stuff,

830
00:34:35.280 --> 00:34:36.570
I'll stab 'em."

831
00:34:36.570 --> 00:34:37.403
Then what happened?

832
00:34:37.403 --> 00:34:38.610
He was pursued out the next day,

833
00:34:38.610 --> 00:34:40.230
took out his knife and stabbed two people.

834
00:34:40.230 --> 00:34:41.649
<v ->Did he say it that way.</v>

835
00:34:41.649 --> 00:34:42.630
Did he say, "I'll stab them,"

836
00:34:42.630 --> 00:34:45.090
or did he say, "I'll do something?"

837
00:34:45.090 --> 00:34:47.340
Right, I did he use the word stab?

838
00:34:47.340 --> 00:34:48.750
<v ->He used a profanity, Your Honor.</v>

839
00:34:48.750 --> 00:34:51.360
He said, "I'll fuck 'em up."

840
00:34:51.360 --> 00:34:52.760
<v ->That's a little different.</v>

841
00:34:53.970 --> 00:34:55.950
<v ->So, he stated a plan.</v>

842
00:34:55.950 --> 00:34:58.230
He executed that plan the next day.

843
00:34:58.230 --> 00:35:00.389
Immediately after the stabbing,

844
00:35:00.389 --> 00:35:02.520
his actions again suggest he is executing a plan.

845
00:35:02.520 --> 00:35:05.100
He then he stabs two people, one remains,

846
00:35:05.100 --> 00:35:07.530
he takes flight again, third person comes after him.

847
00:35:07.530 --> 00:35:09.810
He turns around and substantively engages that person

848
00:35:09.810 --> 00:35:11.430
and makes another threat.

849
00:35:11.430 --> 00:35:12.450
That person backs off.

850
00:35:12.450 --> 00:35:14.850
He continues his flight, discards his weapon.

851
00:35:14.850 --> 00:35:16.470
Now, he's trying to hide the evidence.

852
00:35:16.470 --> 00:35:18.720
Goes into a hospital through one door,

853
00:35:18.720 --> 00:35:21.210
changes his clothes, exits through another door.

854
00:35:21.210 --> 00:35:23.730
These are all things that indicate he's executing a plan.

855
00:35:23.730 --> 00:35:25.290
Not that he has a mental health issue

856
00:35:25.290 --> 00:35:28.020
that he needs to hire an expert to consult about.

857
00:35:28.020 --> 00:35:29.040
The thing that was apparent

858
00:35:29.040 --> 00:35:30.600
from the facts is the intoxication.

859
00:35:30.600 --> 00:35:32.370
That's what the trial counsel pursued.

860
00:35:32.370 --> 00:35:34.620
His conduct didn't fall measurably below.

861
00:35:34.620 --> 00:35:37.320
There's no ineffective assistance basis here.

862
00:35:37.320 --> 00:35:41.793
<v ->Can I ask you to address the shoplifting statute?</v>

863
00:35:42.660 --> 00:35:44.100
<v ->Well, Your Honor, I'm gonna start there</v>

864
00:35:44.100 --> 00:35:46.470
with again the same, it's a gatekeeper provision, right?

865
00:35:46.470 --> 00:35:49.830
So, the first two questions have to be new and substantial.

866
00:35:49.830 --> 00:35:52.290
New means it couldn't have been raised.

867
00:35:52.290 --> 00:35:53.820
The cases that the defendant cited

868
00:35:53.820 --> 00:35:57.690
are from '89, '07, '96, '82, 2001.

869
00:35:57.690 --> 00:35:59.850
<v ->So, assuming we reach it anyway,</v>

870
00:35:59.850 --> 00:36:01.710
can you address the merits?

871
00:36:01.710 --> 00:36:03.450
<v ->Well, I think there are two things, Your Honor.</v>

872
00:36:03.450 --> 00:36:04.860
First of all, it wasn't just that

873
00:36:04.860 --> 00:36:06.930
he grabbed a couple of tubes of toothpaste

874
00:36:06.930 --> 00:36:07.890
and stuffed him in his jacket.

875
00:36:07.890 --> 00:36:09.660
He was working in concert with a team of people

876
00:36:09.660 --> 00:36:11.850
that were robbing the store together.

877
00:36:11.850 --> 00:36:13.620
<v ->Was it a joint venture though?</v>

878
00:36:13.620 --> 00:36:15.843
Was he charged with a joint venture offense?

879
00:36:16.890 --> 00:36:18.330
<v ->I'll have to go back</v>

880
00:36:18.330 --> 00:36:19.500
and reread the instructions, Your Honor.

881
00:36:19.500 --> 00:36:21.600
That was how I had interpreted throughout.

882
00:36:23.080 --> 00:36:27.817
<v ->So, assuming Mr. Nathanson says that he wasn't,</v>

883
00:36:27.817 --> 00:36:28.650
I don't know if that's true or not,

884
00:36:28.650 --> 00:36:32.283
but if he wasn't, how do we get to the minimum number?

885
00:36:33.960 --> 00:36:35.520
That's a lot of toothpaste.

886
00:36:35.520 --> 00:36:36.360
<v ->Respectfully, Your Honor.</v>

887
00:36:36.360 --> 00:36:40.170
I think it's frankly absurd to think if somebody drew a gun,

888
00:36:40.170 --> 00:36:41.190
pointed it at me right now,

889
00:36:41.190 --> 00:36:42.660
robbed me of all the cash in my wallet,

890
00:36:42.660 --> 00:36:45.000
and I happen to have $99 that's not armed robbery.

891
00:36:45.000 --> 00:36:46.590
But if I had 100 it is.

892
00:36:46.590 --> 00:36:47.540
<v ->Hold on a second.</v>

893
00:36:48.840 --> 00:36:50.190
Is that what we're looking at,

894
00:36:50.190 --> 00:36:52.293
or how do we evaluate the number?

895
00:36:53.490 --> 00:36:55.770
Don't gloss over this, 'cause we may have a problem.

896
00:36:55.770 --> 00:36:58.530
So, why don't you confront the question,

897
00:36:58.530 --> 00:37:00.210
how do we deal with this?

898
00:37:00.210 --> 00:37:03.630
<v ->Well, Your Honor, I think the use of the word</v>

899
00:37:03.630 --> 00:37:05.310
in the armed robbery statute doesn't,

900
00:37:05.310 --> 00:37:09.390
I don't think it means larceny as is legally defined.

901
00:37:09.390 --> 00:37:11.820
I think it means larceny as in conjunction

902
00:37:11.820 --> 00:37:13.290
with the three words that proceeded,

903
00:37:13.290 --> 00:37:15.510
which I think are take or steal I think.

904
00:37:15.510 --> 00:37:17.970
I forget the exact wording of the statute.

905
00:37:17.970 --> 00:37:20.130
I think it's meant as a layman's use of that word,

906
00:37:20.130 --> 00:37:21.750
not as the legally defined term

907
00:37:21.750 --> 00:37:23.430
with a specific dollar amount attached to it.

908
00:37:23.430 --> 00:37:25.410
<v ->We need a felony, right?</v>

909
00:37:25.410 --> 00:37:26.243
<v ->Excuse me, Your Honor?</v>

910
00:37:26.243 --> 00:37:28.066
<v ->Okay, I don't know what</v>

911
00:37:28.066 --> 00:37:30.090
this is your shot.

912
00:37:30.090 --> 00:37:31.983
You better address it. So, go ahead.

913
00:37:32.820 --> 00:37:35.610
Tell us how we write this section of that opinion.

914
00:37:35.610 --> 00:37:36.960
<v ->How you write the section of that opinion</v>

915
00:37:36.960 --> 00:37:37.950
is the claim is not new

916
00:37:37.950 --> 00:37:39.480
so it doesn't get through the gatekeeper.

917
00:37:39.480 --> 00:37:42.150
<v ->Yeah, say you lose on the gatekeeper, go ahead</v>

918
00:37:42.150 --> 00:37:43.500
<v ->Then there are two ways, Your Honor.</v>

919
00:37:43.500 --> 00:37:45.900
First of all, you say if there is a specific dollar amount

920
00:37:45.900 --> 00:37:47.070
that it has to be attached to it,

921
00:37:47.070 --> 00:37:49.230
then here it was acting in concert with a series of people

922
00:37:49.230 --> 00:37:50.580
conducting an armed robbery together.

923
00:37:50.580 --> 00:37:52.290
He's responsible for everything that's stolen.

924
00:37:52.290 --> 00:37:55.710
<v ->It's not a joint venture prosecution.</v>

925
00:37:55.710 --> 00:37:56.820
<v ->Yes, Your Honor.</v>

926
00:37:56.820 --> 00:37:58.290
Yes, that's the first way.

927
00:37:58.290 --> 00:38:00.720
And then the second way is to realize, is to acknowledge,

928
00:38:00.720 --> 00:38:02.820
that the word in the armed robbery statute

929
00:38:02.820 --> 00:38:04.410
doesn't attach to the actual

930
00:38:04.410 --> 00:38:06.330
separate criminal offense of larceny,

931
00:38:06.330 --> 00:38:08.010
because it would be absurd.

932
00:38:08.010 --> 00:38:09.030
And that's something that we look at

933
00:38:09.030 --> 00:38:10.440
in statutory construction.

934
00:38:10.440 --> 00:38:13.080
It would be absurd to say, "Pointing a gun at me

935
00:38:13.080 --> 00:38:15.870
and robbing me when I have $99 in my wallet

936
00:38:15.870 --> 00:38:16.950
is not armed robbery,

937
00:38:16.950 --> 00:38:18.960
but if I have 100 it is?

938
00:38:18.960 --> 00:38:21.240
if you point a gun at me and rob me of $99,

939
00:38:21.240 --> 00:38:22.530
it's shoplifting?"

940
00:38:22.530 --> 00:38:24.330
That is an absurd result.

941
00:38:24.330 --> 00:38:27.720
So, that would not be the way to construe the statute.

942
00:38:27.720 --> 00:38:29.420
If there are no further questions.