-: SJC-13450, Commonwealth v. Daniel Rogers.
-: Attorney Nathanson, good morning.
-: Good morning, Chief Justice Budd,
and may it please the court.
David Nathanson for Daniel Rogers.
I hope to reach three arguments today,
the ineffective assistance claim and its sub-issues.
Hope to very quickly hit the shoplifting issue,
statutory interpretation, and then the reduction in verdict.
But really throughout, I'm asking the court
to please focus on the basic reality of this situation.
Danny Rogers was a five foot five Black homeless man
stealing, shoplifting toothpaste.
He snuck out of the CVS.
He ran, he tried to get away.
He was chased down by three people
with knives shouting, come here, N-word.
He dropped most of the toothpaste.
They slammed him against a concrete wall.
They knocked him to the sidewalk.
In the altercation, he sustained a defensive wound
to his non-dominant hand.
So, he was charged with and convicted of felony murder.
The jury did not convict him of assault
with intent to murder of Henry Young.
They did not convict him
of deliberate premeditation of Christian Giambrone.
He could never avoid life without parole though
unless he defeated armed robbery.
The jury were given a path to felony murder
built on technicalities.
What this court called constructs
in its opinion on direct appeal,
and those constructs starts on armed robbery,
because he used force in the escape phase.
And so, he's constructively the first aggressor,
even though he is not in fact the first person to use force.
And because he's constructively the first aggressor,
there's no self-defense.
And so, it's felony murder.
Dr. Rinn's testimony presented a way off
that highly technical path to felony murder.
Presenting a fight or flight theory
to the jury just makes common sense, right?
-: When did that fight or flight theory
trigger for your client?
-: The testimony is it triggers
when the physical confrontation begins
and reaches its apex when he believes he sees a knife.
-: And that is after the toothpaste is taken?
-: Yes, yes. -: After he runs.
And he's at that point armed with
a three-inch pocket knife, is that right?
-: It is three or two,
but yes, it's a folding pocket knife.
-: [Justice Wendlandt] Okay. -: It's in his pocket.
-: And what is the, you know, a testimony
about Dr, is it Rinn's?
-: Rinn, yeah. -: Dr. Rinn's basis
in science for this theory that the panic attack,
I guess is what he calls it,-
-: Panic episode. -: happened when your client
was slammed against the wall?
-: Right, so what he testifies is that.
-: Does he cite to any journals or other authority
that this type of instantaneous-ish panic attack
is something that is scientifically sound?
-: So, he never testifies that it's instantaneous.
What he testifies to is that it begins
and then reaches its apex at the point.
And when it reaches its apex,
that's when it overwhelms the higher cortical functions,
the subcortical functions take over.
-: Okay. So, when this apex happens,
is there any authority that he references in his testimony
or in his report that supports that?
-: Yes. -: What is that?
-: So, first of all, he testifies to his qualifications.
-: No, no, I'm not, I think that
the motion judge said he was qualified.
I'm focused on the scientific basis for this apex of panic.
-: So, there's two answers to that.
The first and most direct answer is in his report,
he cites an article by Fikretoglu.
-: I'm sorry, by who?
-: F-I-K-R-E-T-O-G-L-U.
-: Okay. -: It's in his report.
And we certainly could have gone further into that,
but nobody asked, right?
-: Well, I mean, the defendant
bears the burden of proof at this point, right?
-: Well, so.
-: You're offering expert testimony.
It has to be able to pass Daubert-Lanigan.
So, the Fikretoglu article is what is being relied on
for the scientific soundness of an apex panic attack theory.
-: So, that's not only it, right?
-: Okay, so that's one thing there.
-: That's one. -: Anything else?
-: Yes, he testifies that it's
a recognized phenomenon in the field
that there were five.
-: But what is his bases, is there a footnote,
or, you know, something that says
it's recognized in such study, in such book,
in such journal, anything?
-: So, I addressed that in my brief.
-: Yeah, can you do it now?
-: Yeah, and yes, of course. -: This is what
I'm concerned about, yeah.
-: Right, and what I say in my brief,
and what I'm saying to you now,
is that he's not allowed to get into hearsay
basis of support on direct examination.
That's the rule.
The Commonwealth never examined him
on the scholarly basis, the methods, right?
They just examined him on didn't you consider this fact,
didn't you consider that fact, right?
The Commonwealth filed a motion,
but they filed an opposition
in which the only thing that they substantively, pardon me.
The only thing that they substantively argued
in the opposition was that Dr. Rinn wasn't qualified
and complained about not having the CV,
which I then provided to them well in advance
of the motion for a new trial.
And it was in fact introduced at the motion for a new trial.
That was the only substantive challenge
to Dr. Rinn's testimony.
When we got through Dr. Rinn's qualifications,
I asked the motion judge, "May I proceed?"
-: Oh yeah, you're focused on his qualifications.
And I think the motion judge found that he was qualified?
-: He was qualified, yes. -: Right, okay.
-: And so, what we then have is no further questions, right?
So, I asked him about, you know,
is it supported in the field?
Yes, you know, he's the author
of one of the lines of research.
It's been studied in detail.
No further questions.
-: So, there's the Fikretoglu article,
and then Dr. Rinn himself has a line of research
you're saying that was.
-: Yes.
-: In referenced where?
In his testimony, in a report, affidavit?
-: [Attorney Nathanson] Both.
-: His line of research?
-: Yes,- -: Okay.
-: talking about cortical versus subcortical functions
and which takes over, right?
-: No, but in this particular aspect
of the apex theory of panic attacks?
-: No. -: Okay.
-: No, not that. -: So, not that?
-: Okay. -: Okay, but.
-: The motion judge says,
"My search for medical or psychological support
for Dr. Rinn's opinions was unsuccessful."
So, he's just equally importantly,
a computer search of the use of such theory
in court cases produce meager results.
So, all that's wrong, the judge is wrong on that?
-: It's a notice and opportunity problem.
That's the problem, right?
-: You're talking in code.
What do you mean?
-: Yeah, yeah, so what I'm saying is
I was presented with a specific challenge
to the doubt having to do with qualifications.
I addressed it, we moved on.
There were 19 days.
-: Putting in a novel medical theory.
Don't you need to, and the judge says,
"Look, this isn't what the DSMR says.
This is something different."
Don't you need to put in an article?
Don't you need to submit some support for that?
-: No, and the reason for that.
-: And let me ask a follow-up question.
And you're really prohibited from putting that in on direct,
you're prohibited from putting in
that study you just mentioned?
-: Yes, that's the rule it's recited in my brief.
-: I'm sorry, what rule of evidence is that?
-: You can't elicit hearsay basis of support
for your opinion on direct appeal.
It's only when you've been crossed on your basis, right?
-: The Commonwealth versus juvenile line of cases.
-: Yes, yes, exactly. -: Okay.
-: But there's two problems with that.
The DSM is improper judicial notice, right?
But also, the notice and opportunity problem.
-: If you don't meet the DSMR, whatever,
I got my initials wrong.
If you don't meet that
and you're doing something different.
You can put in the DSMR,
but if the DSMR says the opposite, this isn't.
-: [Justice Wendlandt] DSM-5.
-: Yeah, yes. -: The five,
doesn't support that.
Don't you need to do something?
-: First of all, there's no proper evidence
that it doesn't, right?
-: The judge does a pretty detailed description
of why it's not on point.
-: Right, and that was. -: Yeah, go ahead.
-: [Attorney Nathanson] I apologize.
-: Is your comment about notice and opportunity
is that this was surprise?
-: Yes. -: Yeah, that you didn't
have the chance to address it.
-: Yes, it was essentially a bait and switch.
I was told that the problem was qualifications.
19 days passed between the close of Dr. Rinn's testimony
and the hearing on the motion,
on the argument on the motion for a new trial.
When we argued the motion for a new trial,
the judge never asked me about the DSM.
The judge never asked me about any Daubert issues.
The Commonwealth never argued any Daubert issues.
The Commonwealth never argued any DSM.
So, it is a notice and opportunity issue.
And the DSM itself says,
"Lay people shall not use this diagnostically."
Right, so that is in an improper use of the DSM.
And I just wanna say this court has said
that when testimony, expert psychological testimony,
has been approved in the past,
Daubert is presumptively satisfied, right?
-: So yeah, that was my other question.
Has this apex theory of panic attack
been approved in the past?
-: Well, panic as an impairment, right?
Panic as an impairment.
-: Not a panic disorder.
-: [Attorney Nathanson] No.
-: Okay. -: Right, and that's Gray.
-: Your actual theory that Dr. Rinn was pursuing,
has that been accepted?
-: [Attorney Nathanson] Yes.
-: In any case in the past? -: Yes.
-: Okay, what case is that? -: Gray, Gray,
which is at volume 399 of Massachusetts reports.
-: That is a panic attack theory apex.
-: Not attack, that was a person who, of low IQ
-: Yep.
-: Who panicked in a situation
where he was telling people not to back away from him.
And them backing away from him made him panic
and he stabbed them.
It is pretty close, right?
Mr. Rogers, the evidence is that
he is a person of somewhat low IQ
and that he panicked, right?
And there's all this evidence beyond Dr. Rinn, right?
From Michael Andrick, that the trauma
from being a homeless person makes people hyper defensive.
Dr. Rinn testified that in neurology
this provides what's called kindling for panic.
It's a neurological kindling.
And so, Dr. Rinn's testimony
was a standard psychological opinion.
There was no reason to question it.
-: But other than the Gray case,
which sounds slightly different,
you're arguing an effective assistance of counsel, right?
-: [Attorney Nathanson] Yes.
-: So, what made the decision
or the failure to pursue this defense
as opposed to the intoxication and drug defense
fall below the ordinary fallible lawyer mark?
-: Because he was pursuing an impairment theory
based on intoxication,
but he never had his client evaluated.
And so, the failure to investigate,
a choice, a strategic choice,
can never be reasonable unless it's based on investigation.
And that's what this court has said in any number of cases.
And he didn't complete the investigation
before he made that choice.
-: So, anytime a lawyer fails to subject their client
to a mental health professional, that's ineffective?
So, obviously not, right?
So, what in your client presented to the lawyer
information to suggest that a mental health evaluation
would have been fruitful?
-: So, he raised intoxication that, right?
-: That's a mental, right?
-: 'Cause he was actually intoxicated,
wasn't he shooting up heroin I think?
-: Yes. -: Yeah.
So, that makes sense-
-: [Attorney Nathanson] That's right.
-: in an appropriate investigation.
-: [Attorney Nathanson] Right, and so that, I apologize.
-: So, I'm sorry.
So, how does that dovetail with a mental health evaluation?
-: Because he's raising Mr. Rogers' mental state.
-: Once you've raised a defensive intoxication
or impairment of some sort, you have to then go beyond
and do a mental health evaluation.
-: You have to investigate, yes, yes.
-: Okay, so every time a mental impairment
as a result of drugs and/or alcohol
is raised under your regime
would require the lawyer also to subject the client
to a mental health evaluation.
-: In these circumstances, yes.
-: Okay, what circumstances?
-: I'd really like to get to the reduction.
And I think I can.
-: Or can you answer my question?
-: Oh, I'm sorry. -: Yeah.
-: I'm sorry, I didn't hear the full question.
Can, I'm sorry.
-: I know 'cause you cut me off.
-: [Attorney Nathanson] I'm sorry.
-: Mental health impairment,
and you said in these circumstances,
I had set forth a proposition that
once you as a defense lawyer in your regime
you raise impairment because of drugs and alcohol,
you also you must subject your client
to a mental health evaluation.
And you said, "Yes, in these circumstances."
What circumstances are you referring to?
-: I'm referring to that he raised it
both in a motion to suppress and at trial,
and it was key.
There was no way to escape a life without parole conviction
in this case without raising an impairment defense
to the armed robbery.
Those are the circumstances.
I see that my time is over.
-: No, I'd like you to address, you know,
the issue you wanna address,
'cause I have, the judge seems
to not like our Brown decision
and that's driving a lot of what he's doing.
-: So, I don't think that that's true, Your Honor.
-: He says, he finds that,
he comments on Brown not being consistent with this so.
-: I really don't mean it that way.
-: What is the basis of what he's,
what is the legitimate basis
of what he's doing to lower the verdict?
'Cause it's not that Brown is not a good decision.
That's not his call.
-: So, I just direct the court to addendum page 102,
which is the motion judge's decision.
I'm sorry, 112.
And he just says, "Look, I recognize
that Brown is not retroactive.
That's not what I'm doing here.
I am just using my Rule 25 powers to reduce a conviction,
which is out of proportion
to the defendant's culpability," right?
And that's what happened in Brown.
Brown didn't get the benefit of Brown, right?
He got a proportionality reduction, right?
Having to do with culpability.
And Mr. Rogers' culpability in this case
is especially where it's built on multiple legal constructs
where the jury never considered whether he had malice.
And in fact, when they had the opportunity
to consider whether he had malice,
both as to Henry Young and as to Christian Giambrone,
they rejected it, right?
So, what the judge is saying,
"I've read the transcript,
I've heard the testimony of Michael Andrick
as to hyper defensiveness.
I've heard the testimony of Dr. Rinn
to the extent that he accepted it.
And I think that this conviction of first degree murder
is out of proportion to his culpability
that has long been a proper basis under Rule 25."
And so, you know, what the Commonwealth
wants this court to do
is overrule 40 years worth of precedent, right?
This court said, "We read Rule 25(b)(2) this way,
you know, the power to reduce continues
and if the legislature doesn't like it, they can change it."
It's been 40 years, they haven't changed it.
So, this is really just a straight ahead,
culpability-based reduction.
The judge properly said,
"Brown does not apply to this case."
And so, this is not a time.
What the Commonwealth is saying is
you should overrule precedent
and take away judge's ability to do justice.
This is not the time for that.
We are at a time in which we are finally coming to grips
with some of the real flaws in our criminal legal system.
Racism, both systemic and acute,
flawed forensics, inflexible rules.
These are things that.
-: Last part that you wanted to talk about,
there were three things.
-: I'm clearly not gonna get to it, Your Honor,
unless you want me to.
-: Tell me what it is. -: Certainly.
The shoplifting issue, the statutory interpretation.
-: Isn't he responsible for the cough medicine
and the other things that the other guys
are stealing at the same time?
'Cause it's a joint venture, right?
So, I understand the toothpaste
may not amount to a hundred bucks,
but there are three guys
shoplifting at the same time, right?
So, don't we add all those together?
-: We have no evidence.
-: Oh, we do.
We know that the other two are stealing cough medicine
and some other things, right?
-: Boy, that's never come up, Your Honor.
-: To me it seems obvious
that I'm not just looking at toothpaste.
I see your point of, I'm just looking at toothpaste.
It's hard to steal $100 worth
whatever the number is of toothpaste,
but they're stealing a bunch of things.
They're basically running through
this pharmacy taking things.
-: So, I'd have to review the,
I'd like the opportunity to respond to that in a letter.
I'll review the record to see,
if there's evidence of the value of the other items.
But the prosecutor in opening
admitted that it wasn't more than $40,
and that's what he focused on.
-: Toothpaste, was it more than $40
or that everything was it. -: Yes.
And that was the only focus.
-: It's a joint venture, right?
-: So, I don't believe the jury
was ever charged with joint venture.
-: I thought it's a joint venture felony murder, it's not?
-: No. -: Okay, it's not.
-: No, no.
If there are no further questions,
I rest on get my brief, thank you.
-: Thank you very much.
-: I'm sorry, Justice Wendlandt,
I apologize for cutting you off.
I'm sorry. -: Not at all.
We only get 15 minutes, so I'm eager.
-: Okay, Attorney MacLean.
-: Good morning, may it please the court.
Ian MacLean on behalf of the Commonwealth.
I'd like to acknowledge the family
of 17-year-old murder victim Christian Giambrone,
including his mother that are
watching the live stream now this morning.
Your Honors, 25(b)(2) plays a role,
an important role in our system,
but it's a limited role.
In Q when this court altered
basically the wording of 25(b)(2),
it significantly expanded that role.
And when it did so in Q in footnote three,
it invited this court
after we had operated under that new system,
they were basically creating,
it invited this court to revisit it and reconsider it.
And that's what we're asking the court to do now.
We're not asking the court to eliminate Rule 25(b)(2),
we recognize the need for a safety valve
in the immediate aftermath of a jury verdict.
Where while a verdict was legally sufficient,
it may not be appropriate.
And we think trial judges should have that authority
in the immediate aftermath of the trial.
However, that doesn't exist in perpetuity.
It shouldn't exist in perpetuity as occurred here.
-: Haven't we said multiple times
that the strict time deadline
that you're trying to impose, we reject?
It's not just one case, haven't we?
-: Yeah, did we. -: Do that by furthers?
-: Yes, very recently. -: A bunch of them.
-: Yeah.
-: In Pfeiffer, the court declined to reach the argument.
It was my case,
and the court declined to reach the argument itself.
So, this court has never actually,
legitimately grappled with the question.
-: Practicality is we did the opposite
of what you're arguing, right?
We allowed something not within this strict timeframe,
and we've done it I don't know how many times.
Aren't you paddling seriously upstream here on this?
-: Well, that's fine, Your Honor,
but I'm saying that this court
now that it's got some years of experience
with the system that was created as a result of the Q case,
when this court in a footnote
invited the court to revisit it at some point
and see if there should be a limitation
imposed on the second sentence.
Now, we have that world of cases
and it's time for us to look at and reconsider it.
And I'm not saying. -: What is your best argument
for, you know, what's happened
in the course of the time that's caused
sort of a disruption in the legal regime
that would warrant revisiting
and/or changing the way we decide 25(b)(2).
-: Well, so respectfully, Your Honor,
I would characterize it as
correctly recognizing 25(b)(2)'s place in the system.
And there are a series of things.
The first of which is a direct comparison to Rule 30.
We're talking about rules of criminal.
-: That existed at the time.
So, what's different now?
You know, at any time was in Rule 30 at the time,
Gilbert was decided saying that 25(b)(2)
allowed Judge Gants on the Superior Court at the time
to revisit something that had already undergone 33E review.
-: Well, Your Honor, the point is
that there's now been enough time that this court has seen,
I counted 10 cases that you've had
that were post direct appeal.
A 25(b)(2) allowed post direct appeal
is 10 is the number that I counted.
There's a litany of other cases
that don't make it here to you,
but 10 that this court has had.
So, I think we got some experience.
-: Yeah. So, what's wrong with that?
-: Because you're reopening the wounds
for the families of the murder victims
years or decades after the fact
when they've been told the conviction is final.
You're basically undermining the jury system
and the entire appellate review system
where when you guys pass on a case
and conduct 33E review,
looking at the whole case as you're required
to then allow them to reopen
the family's wounds and reopen the case.
Not on the basis of a legal error.
-: Well, but it is based on it,
it can be based on legal error, right?
I mean that's part of what we're looking at.
-: So, respectfully, Your. -: So, I mean,
Mr. Nathanson stands up and talks about,
you know, the whole Innocence Project,
you know, sort of conception of criminal law
and now you're doing the opposite.
So, I mean, and it's more nuanced
than both of you are presenting, isn't it?
-: I don't believe so, Your Honor.
I think Rule 25 and Rule 30 work in concert.
Rule 30 exists with express language saying at any time,
which 25(b)(2) does not have.
-: Counsel, I think when you were talking about,
you referenced the court's experience under this rule,
which sounds like a stare decisis argument,
which I think Justice Wendlandt was getting at.
And you have not briefed the issue of stare decisis,
but all of your arguments so far
have gone to the consideration
of whether the court's treatment in Gilbert
and other cases was wrong,
but that's only one factor.
So, could you express an argument why it's correct
in addition to arguments on the merits
that you're making about finality
why the court should revisit a rule
that has been understood to be settled,
a settled understanding of how Rule 25(b)(2) is?
-: I respectfully, Your Honor, I would say
it's never been settled.
And the footnote three in the case, in the Q case,
in 1982, that broke 25(b)(2) into two separate components.
In that very case, they dropped a footnote saying,
"After we've operated under the system for a while,
we invite this court to look at it
and see how it's working."
So, I don't think it's ever been clearly settled.
And this court has never actually,
legitimately grappled with it.
It's always just been accepted,
because we were needing to build up that body of cases
and that body of laws that
we would have enough to look at to consider
whether 25(b)(2) was properly being interpreted or not.
-: Okay, counsel, you might disagree with me,
but we didn't grapple with this and settle this
in Pfeiffer last term with the term before.
Did we just do that?
-: Your Honor, the court may have discussed it ensemble,
I don't know, but in the published opinion,
you said the argument's waived and we declined to reach it.
So, while you may have had an opportunity
to discuss it, now's the oppor.
-: I thought we affirmed the court's reduction
under 25(b)(2)
-: Yes, Your Honor, you did.
The argument that I'm making now
is an argument that the court declined to address
and expressly said it was waived.
So, it's not waived here, we fully preserved it.
So now, is I think the time for the court to grapple.
-: I guess I'm not trying to split hairs with you,
but we had a verdict in Pfeiffer.
-: [Attorney MacLean] Correct.
-: It was appealed. -: [Attorney MacLean] correct.
-: And then it went back to the judge
on motion for new trial.
-: [Attorney MacLean] Correct.
-: And under 25(b)(2),
the judge reduced the level of culpability.
It was appealed again and we affirmed that.
So, I guess I'm just missing what we haven't said before
that this is a proper tool
and understanding all the consequences
and all the implications to it,
but we've reaffirmed trial judges' discretion
to do this if justice requires.
-: Yes, Your Honor, in Pfeiffer you said
the trial judge and motion judge, same judge,
did not abuse her discretion in reducing the verdict.
The argument that the Commonwealth was making was,
yes, she did in that specific case, based on her reasoning,
and she lacked the authority to do it all.
25(b)(2) shouldn't apply then.
My understanding of the Pfeiffer opinion
is the court said you're arguing about
the legitimacy of 25(b)(2) is waived,
we're not addressing it.
She did not abuse her discretion in that individual case.
So, that's why I would say the court
has not actually passed on this issue.
And I think recognizing,
and I'd also point to the appeals court in 2018.
-: What are the 10 other cases that you mentioned
that we've done this, right?
You said there are 10 of them
where we've gone ahead and done this.
Any same sense of waiver in all of those cases or?
-: No, Your Honor, but never actually substantively addressed
in anything that's been written.
So, I don't, from my perspective, the court has
squarely grappled. -: Well, I'm sorry.
I thought Gilbert directly addressed this.
-: I don't read it that way, Your Honor,
I read Gilbert has a discussion about
what's the difference between 30 and 25
and what power does the judge have under each,
not whether 25. -: In Gilbert,
didn't the motion judge reduce the sentence under 25(b)?
-: Not the sentence, Your Honor,
former Chief Justice Gant. -: I'm sorry, yes.
-: Reduced a murder one to a murder two,
because there was instructional error
in the murder one instruction that was never addressed
during the appellate process on the case.
So really, Gilbert is a Rule 30
where there was a legal error that existed in the case.
The legal error only infected so much
of the cases addressed first degree.
So, Judge Justice Gants gave the Commonwealth
the opportunity to accept the rest of the trial
that the legal error didn't touch.
So, really that decision, despite what was called,
was really a Rule 30 ruling and we're not.
-: Okay. So, we understand your argument on this so.
-: Can I ask you, oh, sorry.
-: No, go ahead. No, go ahead.
-: So, speaking of waiver and Pfeiffer,
did the Commonwealth here wave any challenge
to the scientific methodology used by Dr. Rinn?
-: No, Your Honor, in the written.
-: Addressed specifically, then opposing
counsel's argument to that effect?
-: Well, yes.
The Commonwealth is under no burden to ensure
that adequate evidence is.
I'm under no burden on cross to bring out evidence
to address the different elements
of the Daubert-Lanigan test.
Our initial written opposition cited Daubert-Lanigan.
He was on notice that, that was part of the challenge.
-: And was the opposition focused
on the qualifications of Dr. Rinn as counsel suggest?
-: Focused, yes. Focused, yes.
-: Was there any mention as to the acceptability
of the methodology of this apex theory of panic attacks?
-: If you read the specific page
of the Commonwealth's initial written opposition
that cites Daubert-Lanigan,
it talks about the admissibility of the opinion.
So yes, the defendant was on notice
that he had to establish the admissibility of the opinion.
It's not the Commonwealth's burden during the hearing
to make sure that he's aware
of the five components of the Daubert-Lanigan test
and to make sure he presents evidence
on those five components.
-: And now, he suggests in oral argument at least
that he was not able to bring forward,
because it would've been hearsay
any support outside of Dr. Rinn's testimony.
Can you address that?
-: He can offer as many studies or reports or exhibits
as he wants to offer in the evidentiary hearing.
He offered what he offered.
And the motion judge found that,
that didn't meet the Daubert-Lanigan factors.
And Your Honor, respectfully, we've already,
in addressing the merits, we've already jumped over
the actual gatekeeper aspect of this, of whether this claim,
this entire claim is new and substantial.
-: Well, ineffective assistance of counsel isn't that new?
-: No, Your Honor. -: No?
So, you're saying that trial counsel,
even though that same person was appellate counsel,
could have raised an ineffective assistance of counsel?
-: Absolutely, Your Honor. -: Okay.
-: There's no prohibition on that at all.
He was convicted in 2007.
His direct appeal happened in 2011.
That's a four-year timeframe when they could have
raised a motion for a new trial
alleging ineffective assistance of counsel.
When he could have sought a different attorney
if he wanted, when he could have raised
on his direct review. -: You address our decision
then in 1998 Smith, where trial counsel
as appellate counsel, on direct review
the claim of ineffective assistance
based on failure to act as new.
-: No, I can't, Your Honor.
-: So, let's just assume Smith is still good law,
and the ineffective assistance of counsel is new.
What about the judge's decision,
the motion judge's decision,
applying Daubert-Lanigan is correct?
It seems to me that the motion judge did go off
and become his own little mini scientist
and looked at the DSM
and started looking at these factors for panic disorder.
And I'm wondering, you know, why is that acceptable?
-: The motion judge went beyond trying to help the defense
and come up and make up for the inadequacies
of their presentation in the evidentiary hearing.
If anything, he did even more to try to help them
than he was required to do.
He could have simply written one paragraph and said,
"You didn't even come close
on the five Daubert-Lanigan factors, you lose."
He did some legal research himself
to see if he could find other cases
where it had been used in courts, didn't find any.
Now, their claim that he went all through the DSM
and examined it himself is simply not accurate.
Dr. Rinn testified.
The closest thing in the DSM is this condition X,
which I have not diagnosed him with.
-: [Justice Wendlandt] The panic disorder?
-: Correct, Your Honor.
That's at transcript page 51.
So right there, there's an admission from their expert
that this condition is not.
-: But that was the whole foundation of his testimony.
His testimony was not that this was related
to a DSM four or five condition.
That was the nature of his testimony.
And the judge did talk about,
please correct me if I've got taken
a wrong impression from the briefs.
But the judge talked about a number of things
that the judge looked up in the DSM
that were not at all discussed in the testimony
such as regarding specifiers or specificity.
Basically, the idea of panic as sort of a,
I don't fully understand it, but a subcategory.
Can you address that?
-: Your Honor, even if you wanna strike that from his ruling,
how does it detract from the finding
that this condition, the closest condition,
that exists that's in the DSM
is a condition that he doesn't have?
-: Can you address the argument of the other side?
I'd be really interested to hear your thoughts like that.
The whole point here is that this is about impairment
and one can show impairment per Gray,
not just from a DSM four or five condition.
That's the whole argument here.
The expert was not purporting to say
that he had a particular DSM, et cetera.
Can you address that?
-: Well, I'd start with saying that
I think Gray is distinguishable
and really the focus here is
as it's an ineffective assistance claim
it's whether the trial counsel's decision
to not consult an expert fell measurably below
that which would be expected
of an ordinary otherwise fallible attorney.
We're not on 33E, so it's the regular
Seferian standard here.
And there was no reason here
why this defendant tipped him off
that he needed to go out and get a mental health expert.
This is not one of those categories of cases
where it's demonstrably obvious or the defendant tells him,
"I've got this mental health condition
you should look into."
What was apparent from the facts here,
was what the defense that he pursued, intoxication,
and he adequately pursued that.
If you go so far as to say this falls measurably below,
then you're saying that every lawyer in every case
has to hire a mental health expert
to evaluate the defendant and see if there's some basis.
The facts of the case here
show that the defendant was executing a plan.
The day before he said,
"If they pursue us out while we're stealing stuff,
I'll stab 'em."
Then what happened?
He was pursued out the next day,
took out his knife and stabbed two people.
-: Did he say it that way.
Did he say, "I'll stab them,"
or did he say, "I'll do something?"
Right, I did he use the word stab?
-: He used a profanity, Your Honor.
He said, "I'll fuck 'em up."
-: That's a little different.
-: So, he stated a plan.
He executed that plan the next day.
Immediately after the stabbing,
his actions again suggest he is executing a plan.
He then he stabs two people, one remains,
he takes flight again, third person comes after him.
He turns around and substantively engages that person
and makes another threat.
That person backs off.
He continues his flight, discards his weapon.
Now, he's trying to hide the evidence.
Goes into a hospital through one door,
changes his clothes, exits through another door.
These are all things that indicate he's executing a plan.
Not that he has a mental health issue
that he needs to hire an expert to consult about.
The thing that was apparent
from the facts is the intoxication.
That's what the trial counsel pursued.
His conduct didn't fall measurably below.
There's no ineffective assistance basis here.
-: Can I ask you to address the shoplifting statute?
-: Well, Your Honor, I'm gonna start there
with again the same, it's a gatekeeper provision, right?
So, the first two questions have to be new and substantial.
New means it couldn't have been raised.
The cases that the defendant cited
are from '89, '07, '96, '82, 2001.
-: So, assuming we reach it anyway,
can you address the merits?
-: Well, I think there are two things, Your Honor.
First of all, it wasn't just that
he grabbed a couple of tubes of toothpaste
and stuffed him in his jacket.
He was working in concert with a team of people
that were robbing the store together.
-: Was it a joint venture though?
Was he charged with a joint venture offense?
-: I'll have to go back
and reread the instructions, Your Honor.
That was how I had interpreted throughout.
-: So, assuming Mr. Nathanson says that he wasn't,
I don't know if that's true or not,
but if he wasn't, how do we get to the minimum number?
That's a lot of toothpaste.
-: Respectfully, Your Honor.
I think it's frankly absurd to think if somebody drew a gun,
pointed it at me right now,
robbed me of all the cash in my wallet,
and I happen to have $99 that's not armed robbery.
But if I had 100 it is.
-: Hold on a second.
Is that what we're looking at,
or how do we evaluate the number?
Don't gloss over this, 'cause we may have a problem.
So, why don't you confront the question,
how do we deal with this?
-: Well, Your Honor, I think the use of the word
in the armed robbery statute doesn't,
I don't think it means larceny as is legally defined.
I think it means larceny as in conjunction
with the three words that proceeded,
which I think are take or steal I think.
I forget the exact wording of the statute.
I think it's meant as a layman's use of that word,
not as the legally defined term
with a specific dollar amount attached to it.
-: We need a felony, right?
-: Excuse me, Your Honor?
-: Okay, I don't know what
this is your shot.
You better address it. So, go ahead.
Tell us how we write this section of that opinion.
-: How you write the section of that opinion
is the claim is not new
so it doesn't get through the gatekeeper.
-: Yeah, say you lose on the gatekeeper, go ahead
-: Then there are two ways, Your Honor.
First of all, you say if there is a specific dollar amount
that it has to be attached to it,
then here it was acting in concert with a series of people
conducting an armed robbery together.
He's responsible for everything that's stolen.
-: It's not a joint venture prosecution.
-: Yes, Your Honor.
Yes, that's the first way.
And then the second way is to realize, is to acknowledge,
that the word in the armed robbery statute
doesn't attach to the actual
separate criminal offense of larceny,
because it would be absurd.
And that's something that we look at
in statutory construction.
It would be absurd to say, "Pointing a gun at me
and robbing me when I have $99 in my wallet
is not armed robbery,
but if I have 100 it is?
if you point a gun at me and rob me of $99,
it's shoplifting?"
That is an absurd result.
So, that would not be the way to construe the statute.
If there are no further questions.