-: SJC-13503, Roberto Cruz versus Commonwealth.
-: Okay, attorney Isley, whenever you're ready.
-: May it please the court, Kate Isley
on behalf of the Commonwealth.
Mr. Cruz, in this 258-D case is ineligible
because his convictions for indecent assault
and battery were not reversed on grounds tending
to establish his innocence of the indicted charge
of assault and battery.
-: It's kind of a strange case,
and I'm not suggesting that Mr. Cruz is commendable,
but we're dealing with a footnote
in an appeals court decision when they say,
Oh, by the way, he probably was guilty of A and B.
And then we look what happened on the ground
and the government dismissed the A and B,
so it was never before a jury.
So how does that jive?
-: Well, this is a unique case. -: Right.
-: However, in determining eligibility under 258-D,
courts are required to look at the judicial relief.
Overturning the conviction here, that's Cruz 1-
-: Was this dicta, though?
-: No, throughout Cruz 1, in more than just footnote eight,
the appeals court flat out said the defendant
gave Jane a third hug without her permission.
That was at page 137.
-: Right, that was a factual...
Judge: That's a factual finding.
-: That's a factual finding, there's no liability.
-: Well, Cruz 1 also found that Cruz intentionally-
-: By the way, is that, I looked at the record.
The only statements, the judge essentially
twice emphasizes consent is not an issue anymore
because you dropped the assault and battery charge.
So he doesn't allow any kind of development of the facts.
Rightfully so, I'm not criticizing the judge.
And all we have is, at one point she says
she's a little bit alarmed,
and at another point she makes a comment
about, "I didn't ask for the hug."
Those are the only two factual statements
in the record on this.
So isn't this not only dictum,
but some level of appellate court fact finding-
Kate: No, Your Honor -: That you don't like?
-: Two things, first, I would point the court
to this court's Guzman decision where it said
that facts adduced of guilt at the criminal trial
is not required by the statute.
This is a civil statute.
And the language that we should be looking at
in eligibility is Section 1B2,
which provides that a court of competent jurisdiction
has to have overturned a conviction on grounds tending
to establish innocence.
That innocence as set forth in-
-: Let me just push you on that.
'Cause grounds tending to establish innocence.
And I think you're correct.
We obviously have to look at everything indicted.
I think I disagree with his interpretation
that we only look, but the grounds
of the decision are twofold.
One, there's not enough evidence
for indecent assault and battery.
Two, you null prossed the assault and battery.
Now, I understand there are different meanings we can draw
from your decision to null pros,
but those are the most important grounds of the decision.
-: Right.
-: So first, the prosecutor can null pros
a charge for a myriad of reasons.
Judge: I agree.
-: And that could be
because the prosecutor wanted to pursue the charge
that had carried a higher sentence
or for a myriad of reasons
that are not, we don't have the fact.
-: But another reason is I may wanna avoid this whole issue
of consent because this young lady at one point asked,
do you want the hug again?
She's also got some,
I can't remember mental health questions related to this.
So this issue of consent may be complicated.
They don't want to get into it.
There are all kinds
of reasons why you could have null prosed this.
-: Right, the-- -: You did null pros it.
-: Yes, and the statute provides
that the Cruz-1 has
to be on grounds tending to establish Mr. Cruz's
innocence, it shows absolutely the opposite.
That nearly 60-year-old man brought a 13-year-old girl
to a secluded room, hugged her very tightly
around her waist without her permission.
-: But all of that, you still have the problem though,
because a few minutes ago
before Justice Caffrey's questions, you kept saying
that the facts, the facts, there are no facts.
And although you might wanna look at that footnote
or some of the things that were adduced at trial,
there are no facts here.
And this is what Jones Pinnell said we can't do
as an appellate court.
So yeah, you're right.
You have the discretion to null pros anything you want.
But the consequence of that
for this case is we haven't any facts on this issue.
So how do we say that it's not applicable here?
-: The statute requires
ineligibility for the court to look at the four corners
of Cruz-1.
And this court has construed tends to establish
as looking at the facts
and circumstances probative
of whether Mr. Cruz is innocent of the crime or--
-: That's exactly what I'm getting at.
You said it again. -: Charged in the indictment.
-: You said it again,
facts and circumstances, the trial judge,
because of the Commonwealth's decision, there are no facts
and circumstances that we have here that have been tested
during the course of the trial.
-: Well, if you look at Cruz-1 at page 138,
the appeals court says
that the facts are not in dispute as to Mr. Cruz's intent.
His intentional touching
of Jane without any legal justification or excuse.
-: Was it open to the appeals court
to have reversed the indecent A and B
and remanded for new trial on A and B?
-: No, because as the court said,
simple A and B is not a lesser included charge
of indecent assault and battery.
That's not the standard that the legislature has set
in creating chapter 258-D, which...
-: So he stands acquitted of indecent A
and B under the courts?
-: Yes, but that, but being acquitted is not the same.
Being acquitted either through a null pros
or a reversing of conviction is not the same
as being innocent or eligible under chapter 258-D
as this court has had a number
of 258-D cases that differ entirely
from Mr. Cruz's situation.
-: I thought, you're not suggesting that he is,
that the appeals court found insufficient evidence
that it was indecent, correct?
Attorney Isley: That's correct.
-: So there he is innocent of indecent A and B.
Attorney Isley: That's correct.
-: So the only issue is what significance
we have when we have an acquittal on that,
on innocence grounds and we have, you null prossing,
so we can't make a fact finding on consent
or lack of consent here.
It doesn't mean he's gonna win,
doesn't that get him over the eligibility threshold?
-: No, because Cruz-1 was not on grounds tending
to establish innocence.
This might be helpful to you.
-: Well, he's innocent of indecent A
and B, meaning what he did was not indecent.
I'm not, by the way, I'm not commending it in any
way, shape or form.
But the appeals court concluded it wasn't indecent.
-: Okay, unlike Guzman and Drummond
and Renault where their convictions were overturned
on grounds that they were not the perpetrator
of the crime either through misidentification
or witnesses recanting or being, you know,
the person in the car without the constructive possession
in the Angel Santa.
-: I'm not saying that-- -: This is Mr. Cruz,
we know he--
-: You're not saying that's the only grounds that are covered
by the statute identification, are you?
Attorney Isley: I'm sorry?
-: You're not suggesting that the only grounds covered
by this statute are identification, right?
-: Absolutely not, but grounds that tend to establish
that an individual is not the perpetrator of the crime
as the amicus,
the New England Innocence Project Hypothetical set forth.
If the person that is alleged of
murdering the cab driver,
if his DNA exonerated, it's likely that
that exoneration would also tend
to establish his innocence of any related.
Judge: So in your view...
-: Charges of assault--
-: In your view, all you need is the first piece?
Because if it's in your view, if you get over the hump
of it doesn't establish actual
innocence, then you're out.
If it does tend to establish actual innocence,
there's no need to go any further.
-: I think I understand your hypothetical.
If Cruz-1 tended to establish his innocence,
not just of his convictions,
but any crimes for which he was indicted
or other reasonably related felonies,
and I submit that that happens in cases of DNA exoneration
or where it's not the guy committed the crime
or the person who didn't do the act.
-: We know Mr. Cruz did this act and what we--
-: No, we don't know whether it's a wanted or unwanted.
-: That's it, that's the consent issue.
And I, again, I'm gonna push back
because this seems to be a Justice Lowey day,
but you null pros the case, right?
So any of the things that tend to support, in your view,
you're saying he's gotta be factually innocent,
but let's just talk about legally innocent.
You null pros the A and B count.
So all of the things that even if you're going to put all
of this stress on what they say in Cruz-1,
none of that, and this is the Justice Lowey part,
has been tested
under the crucible of cross-examination.
So you've got no, there's no way that we can test
what are the facts
because all of the stuff that in Cruz-1
that the appeals court is talking about, haven't been tested
because you null prossed it
and the judge said no testimony on this.
So how can you say it's a fact when it's just one side?
That's not how we do trials.
The other side gets to cross examine that.
-: Well, I would, well first at page 20
of Mr. Cruz's brief, he concedes that evidence
of a battery was of course admitted at trial.
But the analysis for 258-D is not to look back
at evidentiary decisions
by the criminal trial court, is to look at
the judicial relief, overturning the convictions,
the four corners of it
and say, is there anything in that,
in that judicial decision that tends
to establish this individual's innocence
of not just his convictions but his other indicted crimes
or related felonies.
And here there's nothing in Cruz-1 that tends
to establish he is innocent of the indicted charge
of simple assault and battery.
-: Well, there's your decision in null process has
multiple meanings.
You know, and let me pose this hypothetical.
If the evidence was that she wanted the hug
and that, if the evidence was leaning that way,
as you oppose, you say it goes the other way,
but if the evidence were that way,
would you still be arguing that this appeals court decision
does not tend to support whatever the language is?
If the facts are the opposite,
then it looks like she agreed to the hug.
'cause she wanted the gift.
-: If Cruz-1, the language of the decision
of the majority said the plaintiff gave her,
or I'm sorry, the victim gave her consent.
We would be in a different...
-: What if it said the following,
you know, maybe we could have,
maybe you should, you could have brought it to A and B
because the issue of consent is unclear here.
-: Mr. Cruz is still not eligible because--
Judge: Really?
-: Yes, because the statute,
that would be consistent with innocence.
And if you look at the legislative history
of chapter 258-D the first version was consistent
with innocence and that was,
I believe vetoed, a gubernatorial amendment was added
to make it more restrictive, it has to tend to establish,
so an acquittal is perhaps consistent with innocence,
but it is not, does not tend to show innocence.
This case is more like the Peterson case
where the exit order out of the car was, did not tend
to establish innocence.
It's more like the Forgata case,
which was in a appellate case
that was not reported,
but where the Commonwealth, one theory
of their...
-: But Justice Gantz in that case
says the appeals court, you should have
and invites what happens here too a little bit.
It says you shouldn't have,
you should have addressed the insufficiency
of the evidence issue in your decision
because there wasn't sufficient evidence in that case
and you shouldn't have done this motion.
But I have no idea whether that's correct or not.
But here we can't,
we don't know whether it was insufficient or not.
Isn't that the next stage of this thing?
-: I'm glad you brought up Justice Gantz
because I meant to talk about that too
because his concurrent said that
appellate, criminal appellate courts,
their decisions have consequences
later in 258-D litigation.
And that if Mr. Peterson is correct,
that the dangerous weapon wasn't a dangerous weapon
that his conviction might have been on grounds
heading to establish innocence.
-: In that case, he could look at the record
and an appellate court can legitimately look at a record
and say there's insufficient evidence to justify
and that's what they did here
on the indecent assault and battery, right?
But what the appeals court does here is something different
without having a factual record,
it opines and it may be right in the end of the day,
but you didn't pros, you didn't prosecute that case
and we don't have any fact finding on it.
-: Well, two things, Cruz-1 occurred after Peterson.
So the Cruz court can be presumed on notice
of Justice Gantz' concurrence
and it elected in grappling with Mr. Cruz's conduct,
whether it was indecent under the commonwealth's indecency
laws or if it was just intentional, inappropriate,
and amounted to, I would suggest
that footnote one makes explicit its entire decision
that his conduct was both unwanted, intentional
and without any legal excuse or justification.
And 258-D requires us to look at the four corners
of the judicial decision
and the fact that the appeals court
in Cruz elected to describe it that way.
-: Find facts. -: Find facts.
-: What's the difference between 258-D 1(B)
and 258-D 1(C) in your view?
-: Well, 258-D 1B2 and 1B1
are the eligibility provisions
and 258-D 1C is the merits argument,
however, 258-D 1B2 incorporates clause six
of 258-D 1C in a way that...
-: You've lost me, you've lost me.
Attorney Isley: Right, so--
-: There's two parts, right?
First you have to show you're eligible for the possible
compensation and then if you, if you cross that threshold,
you have to show by clear
and convincing evidence that you're innocent.
But it sounds to me like you are saying that Mr. Cruz has
to show by clear and convincing evidence that he's innocent
before and that's the one thing he has to do to get
by the eligibility.
-: No, so and admittedly the statute
is complicated,
but if you look at B2, it says that
the judicial relief has to be tending,
overturned on, tending to establish innocence
of the individual as set forth in,
and those are the key words as set forth in.
Judge: The indictment.
-: Clause six of subsection C.
So not all of subsection C.
-: Okay, but what does clause six say?
-: Clause six says crime
or crimes charged in the indictment or complaint
and that's the important language here.
Assault and battery was charged in the indictment
and goes on to say or other felonies reasonably related
to the facts of the case or something like that.
I can get you the actual language,
but the relevant language is,
so clause six defines the innocence of the individual
that the judicial relief must tend to show.
And that is complicated, I'll admit that.
But if you...
-: How do they, when you null pros
the additional charge
and how are they ever gonna show innocence
then if in your world,
'cause you've null prossed it,
the appeals court gave you a raft to cling to,
this dictum,
but you null prossed this, there's not a factual record.
I just don't know how we're,
how anyone's ever gonna establish
if there's always a possibility you could have brought it,
you know, I don't know, tell me.
-: Well, that goes back to the fact
that this is a bit of a unique case.
Most 258-D cases, all of the 258-D cases
where this court has found eligibility pertain to folks who,
whose claims were reversed on grounds
that they were not the culprit
or the perpetrator of the particular crime.
The ones that were found not to be eligible like in Peterson
and Omar Santana and Ragata
and Riley,
those all are in a different subset
and I would suggest that Cruz is in that subset.
-: What subset is that?
-: The subset of not eligible...
-: But that's just the conclusion.
But what's the conduit?
-: The conduit is the decisions
overturning their convictions said nothing
about that tended to establish the innocence of,
so when Peterson's a great example,
and I think closest to this case,
Mr. Peterson's convictions were overturned
because of the unconstitutional exit order.
And even though he raised on appeal, the fact
that the knife was not a dangerous weapon,
the court did not reach that.
So his, when he brought his 258-D case, it was not found,
he was not eligible
because his conviction was overturned,
not on grounds tending to establish innocence.
That's exactly what we have here.
Mr. Cruz, his conviction was overturned
because his conduct was found to be not indecent,
but his conduct was not found to be and didn't,
and I said found to be, it should, it did not tend
to establish, which is a term this court has construed.
-: I know you're going a little bit long
and I just wanna make sure that I have you
crystallize this for me.
So you are saying in a world where the commonwealth
null process a case, a charge, excuse me,
and there's no facts deduced at trial on this,
that somehow we're still in a position
to divine whether what we have
demonstrates the threshold issue of tending
to establish innocence?
-: Yes, the plain language
of the statute says nothing about null prosing
or dismissing a case.
It says it tends to establish the innocence
of the individual of the crime
or crimes charged in the indictment.
-: Okay, thank you. -: Thank you.
-: Attorney Rappaport.
-: Well, good morning.
I'd like to begin
by distinguishing the Peterson case
from this case if I may, because it's come up.
In Peterson, there were basically two issues presented
to the appellate court.
One was the illegal exit order,
and two was the knife, did it meet the qualifications
to be considered a dangerous weapon?
The court had jurisdiction to deal
with both of those issues.
Both of those issues were raised on appeal.
Judge: And it had a full record on both of those.
-: And they had a full record.
Right, the fact that the court chose to deal
with the exit order and the exit order only
and reversed a conviction on that basis had nothing to do
with whether or not the defendant in that case was innocent
because he didn't commit a crime
if the knife didn't comport with what was illegal.
So the court just chose which issue to deal with
and Judge Gantz said, hey, look,
court should be careful about this
because it might have impact down the road,
but what the court did was totally appropriate.
They dealt with an issue, reversed the case.
-: But didn't it invite sort,
of doesn't Justice, Chief Justice Gantz' approach invite
with the appeals court did hear a little bit, which is okay,
I'm gonna be criticized if I don't deal
with this little elephant in the room.
-: I would submit no,
because whereas the appeals court had the jurisdiction on
both issues in Peterson,
but they begin the opinion in this case
by saying there's only one question presented by this case,
were the touchings indecent, not were they inappropriate,
not were they icky.
Look, there's no question that this is not going to be
an easy case to win for Mr. Cruz at trial.
I mean, there's no question about it.
The question here though is was he,
is he eligible
because his case was reversed on grounds that facts
and circumstances that tend to indicate his innocence,
his innocence of what he was convicted of,
he was convicted of two counts.
-: No, but it has to be both.
It has to be beyond what he's convicted of, right?
Because the statute,
your opposing counsel is clearly correct
that you look at the charges in the indictment, not just
what he was convicted of.
So you're stuck with that part of this.
-: At trial, at trial.
-: No, but it would include less included offenses.
Right?
-: Well that's interesting judge,
because obviously this is not a lesser included offense.
Judge: Right.
-: But I actually find the language
even more confusing than everybody else does.
I know sometimes I stand up here and say it's easy,
but no, it's not easy because,
or any other felony, right?
Well, does that refer to the charges?
Judge: I would assume.
-: What's charged in the indictment must
be a felony. -: Right.
-: You were a Superior Court judge.
I know that I appeared in front of many occasions,
how many times in my last two murder cases, one last March
and one last July, there were
misdemeanor charges brought along
with the murder charge, in one case,
I believe it was firing the gun within
500 feet of a...
And judge looked at the prosecutor
and said, you really wanna bring that in this murder case?
And at that point the prosecutor said, maybe not,
and dismissed the case.
Okay, let's just assume, let's just assume
that down the road a person did fire a gun
but had nothing to do with the murder.
And 10 years later that's established.
But he never had his opportunity in court to say, no,
I didn't fire that gun.
He was indicted for it.
Nothing in the eventual opinion that
he's released on says anything at all about that gun.
You mean to say if the person gets a DNA exoneration on
on the shooting after 15 years, the bringing of
that indictment for firing the...
That's gonna prevent the person from?
-: But civil recovery, you know,
this is a potential significant recovery
and they've defined tending to establish your innocence
of everything you were charged with.
I mean, I don't think you can read
that language out of this.
I understand it creates all kinds of problems like
what we're confronting here.
-: Judge.
I was not appellate counsel for Cruz,
but let's assume I was
and I see what the issue is, especially in the appeals.
I'm not saying necessarily here,
if I don't dot my Is
and cross my Ts when I write a brief,
my brief gets rejected.
If I were to violate appellate rules 16,
seven or nine, if I were to put in a whole statement
of facts supporting the fact
that Cruz did not commit the assault
and battery, there's no place for that in my brief,
it's not an issue on appeal.
Judge: Right.
-: When I make an argument, I'm not gonna argue that,
that he's not guilty of assault and battery, simple assault
and battery because it's not an issue on appeal.
The court takes the facts in a light most
favorable to the commonwealth
where there's been no advocacy at all
by any counsel on behalf of Mr. Cruz to say, no,
this is not an assault and battery
because consent, lack of consent was never established.
And we do know factually on the record,
the judge precluded the establishment of lack of consent.
First when the prosecutor tried to get into the issue, no,
no, no, no, on his own,
the judge just says, no, consent has no place in this case.
Then when defense counsel says, well, did you ask him
to take his hand off
or words to that effect, the prosecutor objects
as she should because the judge has already laid down
the law of the case
and no, ladies, you can't ask that question.
Forget about that answer.
It doesn't have any place in this case whatsoever.
How is there gonna be a statement?
Judge: So how do we?
-: In support of the defendant under the circumstances?
-: I totally get what you're saying.
The problem I've got is,
how do we analyze these issues when legislature included
basically this context,
which is something is dropped.
-: Well, two things I'm gonna say.
-: And by the way, it's not, you know, there are lots
of reasons why they dropped those claims.
They may not want, they may want this
to be an all or nothing.
They may think this is not worth,
this may not be worth the time to do an inquiry.
-: Reading the trial transcripts.
I know that I tend to put some nefarious motives
behind certain prosecutors, not all prosecutors,
but in this particular case,
and there's discussions between the prosecutor
and the judge about this.
Well, if you're gonna let it go to the jury on the basis
of indecent, I want to take away
the simple assault and battery
because a jury in a case like this might actually use common
sense and come back assault and battery.
I don't want that to happen.
I mean this was done so he could get...
-: That's sort of what the appeal--
-: A fair sentence as opposed to a house...
-: That's what sort of what the appeals court did, right?
Rappaport: Excuse me?
-: The appeals court sort of exercised
its common sense as you put it
and kind of served a pining on this.
-: The appeals court listed facts, which are going to be
very difficult for Mr. Cruz
to show at trial that he didn't commit this crime.
If that's in fact what he has to show.
And I still say to this court that the more
and more I read the statute, every time I read the statute,
I find something else that seems to be odd.
In this particular statute you talk about, well,
no other crimes committed or other felonies,
and then it also says lesser included felonies.
Are we merely talking about felonies
or are we talking about any crime
that was alleged in the indictment?
-: Well, I know you're saying that this is the only thing
that we should be looking at
is what he was ultimately vindicated on,
on appeal, and that's the indecent, but let's just deal
with the no other crimes thing.
So how can,
and how can we divine the gating requirement
in a case where the charge has been null prossed,
the trial judge has said we're not,
I'm not allowing any evidence on that.
I know what you're saying is you'd rather win on the stuff
that was adjudicated at the appeal,
but don't you also win on this other part
where if there's no facts on here,
how can we determine that he's out
of the gate on at least getting a trial?
-: I absolutely agree with the court.
I'm just trying to look at worst case scenario
and still justify Mr. Cruz's ability to now,
that he's eligible, bring this lawsuit.
-: So if we had a situation
where if there was a lesser included
or a felony that's out there
and the legislature says basically you're not eligible
because there's this felony you've probably committed,
so we're not going to let you sue for wrongful conviction.
But when it's a misdemeanor, it's a different, strangely...
-: Well, and I also find it odd
that this felony out there that's never been charged,
this statute would almost preclude
a claimant from the ability to bring lawsuit.
-: I guess what, you know...
-: Some felony that somebody, an appellate court says,
you know, this isn't really before us,
but when you look at these facts,
a prosecutor could have brought this particular charge,
a felony.
-: Unless there's a remand from
manslaughter or you know, then you're guilty of,
we're gonna find required finding in so much,
the judge should have required, issued a required finding
of first degree, but we're gonna remand it
and you could try 'em for manslaughter
or second degree, that happens...
-: Regularly. -: Frequently, right?
And that means you wouldn't be eligible
to sue for a civil suit.
-: Well, but there, you still committed the crime.
I mean, and it's been adjudicated first by the jury
and now you're getting the break
from the appellate court.
You've been adjudicated, you've had a fair chance
to present your case.
In this situation, you don't even have a chance
to present your case to say, no, I'm not guilty
of simple assault and battery, there was consent here.
Judge: Right.
-: Or at least there was no lack of consent.
-: I'm not guilty of everything they charge.
You don't get a chance to prove I'm not guilty
of everything they charge me.
And I spent two and a half years in prison because of that.
Right, that's your argument.
-: I spent two and a half years in prison under the worst
circumstances imaginable
because I was convicted of a crime I never committed.
-: Right, but you may have lucked out
that you were null prossed on one that you did, but...
-: Maybe, but as Justice June says,
we don't know.
There was never, the jury was never given
the opportunity to decide.
No fact finder ever decided.
All the appeals court said was we look at these facts
and these facts may have been an avenue
toward a conviction of assault and battery,
but for whatever reason, the commonwealth chose
not to take that path.
-: I'm just trying to get a sense, I'm trying to lend meaning
to the statute in this context.
And maybe justice Gaziano's solution lends the meaning
which is the lesser included,
but that we're usually convicted of the lesser included.
Right, even if they're dropped or...
-: Well if the lesser included is dropped--
-: You guys are the pros in this.
-: You still include it in the charge
to the jury, the jury is still given the opportunity
to come back on the lesser included.
Judge: Right, okay.
-: There are a myriad lesser includeds
that aren't even raised.
Like why would charge the B and E, right?
Why would you charge, you could charge the...
Home invasion. -: But nonetheless,
nonetheless, in those cases, you still have the facts
that have been made out on the record.
-: I get your point. -: On the record.
-: I get your point that you,
you weren't giving the opportunity
'cause the unique circumstances of this case
where the judge says this is a 14-year-old,
there's no consent issue.
Don't talk about it.
-: In fact, if you look at the Drumgold case,
if you look at the Guzman cases, two cases,
I'm very familiar with, Guzman,
I was appellate counsel and Drumgold,
I was the trial lawyer.
I know those cases,
what happened in those cases were,
important evidence was kept from the fact finder.
Drumgold didn't come out
and excuse me, Guzman didn't come out
and say he's not guilty.
What happened in Guzman was evidence was kept
because of the conflict of interest.
Evidence was kept from the jury that would've impacted
and that wouldn't necessarily have meant
that he was not guilty,
but it would've impacted the finding as to whether
or not he was guilty.
In fact, in Drumgold, the decision,
the decision which reversed the case
specifically, and this court noted the decision,
this is not a determination
of the defendant's guilt or innocence.
There's no determination, no,
certainly no affirmative determination of guilt or innocence
or innocence in either Guzman or in Drumgold.
And the decision Drumgold said no,
this decision doesn't have anything to do with,
it was an unfair trial, period.
They didn't say whether or not it...
-: Although the evidence in those cases, right,
tend to establish that it's the wrong guy, right?
The evidence that's precluded
is identification evidence, right?
And you know this better than I do.
I don't remember those cases that well.
-: Well, yeah, I mean, but when I first appeared
in the Superior Court on Guzman,
it looked like I had two heads.
Wait a minute, there's nothing in here
that's saying he didn't commit the crime.
I mean that's how the judge had originally looked
at it, right?
You have to look beyond sometimes
the opinion itself, right?
-: So what are we to make of the part
of 1B2 that says that the person has to have been
granted judicial relief on grounds which tend
to establish the innocence.
What do we make of that part?
Do we just take it out?
-: No grounds that tend to establish innocence
in the opinion itself, he didn't commit this crime.
-: Innocence of the crime he's convicted of.
-: Excuse me?
-: We're reading it to be innocence of the crime
he was convicted of.
-: He was...
There is no reason for any
appellate lawyer or appellate decision
to address acquitted conduct.
It wasn't advocated in any way.
I mean it's so unfair.
First of all, you don't allow the fact finder
to make the determination
and then you don't have any argument with regard
to that particular appellate court finding of fact.
-: So grounds to establish, that tend
to establish the innocence of the individual.
Rappaport: Conviction,
-: That reads out language in the statute.
-: It does, that's the problem.
-: I would say that the language in the statute
then all goes back to what you have to establish at trial,
that you didn't do this, this or this,
or you have to prove that you're innocent
by showing you didn't commit this crime, this crime,
this crime or any crime.
-: Don't you win by with less?
You, don't you win if he was acquitted
on the charges they charged him on
and the null process itself, it's ambiguous,
but, and there's no fact finding
that supports conviction on the charge,
he was not, that he was charged with,
the crime he was charged with,
but not, that wasn't prosecuted.
That, you've got enough, the gist of the opinion,
the substance of the opinion tends to establish...
-: I would submit that that's true.
-: That's as far as we have to go.
We don't have to,
'cause your other reading presents all kinds of problems.
You're acquitted on various counts
and you're convicted on other counts.
Does that mean you were wrongfully convicted on the...
I mean you're innocent of the,
I don't know.
That just seems not what the legislature had in mind.
-: I know that when I do an appeal in a criminal case,
I look at certain issues, I raise those issues.
The Commonwealth deals with those issues.
The court then deals with those issues.
Unless it's a 33-E case, they're not going beyond those,
those particular issues.
Nor should they.
And that's the dissent in Cruz-2
is basically where's the court's jurisdiction
to even get into this.
It's not before them.
And for them to,
and frankly I don't even know that it's that clear
what the court's saying.
I think what the court is pointing out, you know,
the Commonwealth could have prosecuted this case,
but they chose not to get into whether
or not it was consensual or not.
It was the Commonwealth's decision.
So where is,
why is the appellate court even opining about something
that's not before it?
I just don't understand.
-: Just going back to this.
So grounds which tend to establish the innocence
of the individual to you means anything that's absence
of evidence, there's no evidence.
So that tends to establish the innocence of the individual?
-: Absence of evidence can tend to establish
the innocence of an individual.
Yes, absence of evidence.
-: Right, the absence of anything.
So then that tends to prove the innocence.
-: Well, I submit that both
the opinion and the concurrence say that,
but there was this absence of evidence.
So we really can't say whether
or not he committed an assault and battery
because the evidence isn't there.