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<v ->SJC-13503, Roberto Cruz versus Commonwealth.</v>

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<v ->Okay, attorney Isley, whenever you're ready.</v>

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<v ->May it please the court, Kate Isley</v>

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on behalf of the Commonwealth.

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Mr. Cruz, in this 258-D case is ineligible

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because his convictions for indecent assault

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and battery were not reversed on grounds tending

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to establish his innocence of the indicted charge

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of assault and battery.

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<v ->It's kind of a strange case,</v>

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and I'm not suggesting that Mr. Cruz is commendable,

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but we're dealing with a footnote

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in an appeals court decision when they say,

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Oh, by the way, he probably was guilty of A and B.

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And then we look what happened on the ground

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and the government dismissed the A and B,

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so it was never before a jury.

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So how does that jive?

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<v ->Well, this is a unique case.</v>
<v ->Right.</v>

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<v ->However, in determining eligibility under 258-D,</v>

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courts are required to look at the judicial relief.

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Overturning the conviction here, that's Cruz 1-

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<v ->Was this dicta, though?</v>

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<v ->No, throughout Cruz 1, in more than just footnote eight,</v>

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the appeals court flat out said the defendant

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gave Jane a third hug without her permission.

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That was at page 137.

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<v ->Right, that was a factual...</v>

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<v Judge>That's a factual finding.</v>

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<v ->That's a factual finding, there's no liability.</v>

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<v ->Well, Cruz 1 also found that Cruz intentionally-</v>

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<v ->By the way, is that, I looked at the record.</v>

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The only statements, the judge essentially

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twice emphasizes consent is not an issue anymore

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because you dropped the assault and battery charge.

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So he doesn't allow any kind of development of the facts.

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Rightfully so, I'm not criticizing the judge.

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And all we have is, at one point she says

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she's a little bit alarmed,

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and at another point she makes a comment

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about, "I didn't ask for the hug."

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Those are the only two factual statements

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in the record on this.

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So isn't this not only dictum,

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but some level of appellate court fact finding-

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<v Kate>No, Your Honor</v>
<v ->That you don't like?</v>

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<v ->Two things, first, I would point the court</v>

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to this court's Guzman decision where it said

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that facts adduced of guilt at the criminal trial

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is not required by the statute.

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This is a civil statute.

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And the language that we should be looking at

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in eligibility is Section 1B2,

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which provides that a court of competent jurisdiction

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has to have overturned a conviction on grounds tending

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to establish innocence.

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That innocence as set forth in-

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<v ->Let me just push you on that.</v>

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'Cause grounds tending to establish innocence.

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And I think you're correct.

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We obviously have to look at everything indicted.

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I think I disagree with his interpretation

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that we only look, but the grounds

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of the decision are twofold.

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One, there's not enough evidence

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for indecent assault and battery.

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Two, you null prossed the assault and battery.

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Now, I understand there are different meanings we can draw

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from your decision to null pros,

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but those are the most important grounds of the decision.

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<v ->Right.</v>

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<v ->So first, the prosecutor can null pros</v>

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a charge for a myriad of reasons.

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<v Judge>I agree.</v>

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<v ->And that could be</v>

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because the prosecutor wanted to pursue the charge

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that had carried a higher sentence

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or for a myriad of reasons

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that are not, we don't have the fact.

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<v ->But another reason is I may wanna avoid this whole issue</v>

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of consent because this young lady at one point asked,

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do you want the hug again?

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She's also got some,

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I can't remember mental health questions related to this.

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So this issue of consent may be complicated.

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They don't want to get into it.

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There are all kinds

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of reasons why you could have null prosed this.

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<v ->Right, the--</v>
<v ->You did null pros it.</v>

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<v ->Yes, and the statute provides</v>

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that the Cruz-1 has

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to be on grounds tending to establish Mr. Cruz's

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innocence, it shows absolutely the opposite.

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That nearly 60-year-old man brought a 13-year-old girl

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to a secluded room, hugged her very tightly

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around her waist without her permission.

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<v ->But all of that, you still have the problem though,</v>

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because a few minutes ago

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before Justice Caffrey's questions, you kept saying

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that the facts, the facts, there are no facts.

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And although you might wanna look at that footnote

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or some of the things that were adduced at trial,

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there are no facts here.

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And this is what Jones Pinnell said we can't do

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as an appellate court.

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So yeah, you're right.

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You have the discretion to null pros anything you want.

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But the consequence of that

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for this case is we haven't any facts on this issue.

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So how do we say that it's not applicable here?

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<v ->The statute requires</v>

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ineligibility for the court to look at the four corners

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of Cruz-1.

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And this court has construed tends to establish

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as looking at the facts

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and circumstances probative

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of whether Mr. Cruz is innocent of the crime or--

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<v ->That's exactly what I'm getting at.</v>

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You said it again.
<v ->Charged in the indictment.</v>

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<v ->You said it again,</v>

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facts and circumstances, the trial judge,

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because of the Commonwealth's decision, there are no facts

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and circumstances that we have here that have been tested

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during the course of the trial.

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<v ->Well, if you look at Cruz-1 at page 138,</v>

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the appeals court says

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that the facts are not in dispute as to Mr. Cruz's intent.

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His intentional touching

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of Jane without any legal justification or excuse.

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<v ->Was it open to the appeals court</v>

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to have reversed the indecent A and B

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and remanded for new trial on A and B?

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<v ->No, because as the court said,</v>

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simple A and B is not a lesser included charge

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of indecent assault and battery.

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That's not the standard that the legislature has set

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in creating chapter 258-D, which...

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<v ->So he stands acquitted of indecent A</v>

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and B under the courts?

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<v ->Yes, but that, but being acquitted is not the same.</v>

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Being acquitted either through a null pros

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or a reversing of conviction is not the same

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as being innocent or eligible under chapter 258-D

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as this court has had a number

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of 258-D cases that differ entirely

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from Mr. Cruz's situation.

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<v ->I thought, you're not suggesting that he is,</v>

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that the appeals court found insufficient evidence

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that it was indecent, correct?

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<v Attorney Isley>That's correct.</v>

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<v ->So there he is innocent of indecent A and B.</v>

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<v Attorney Isley>That's correct.</v>

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<v ->So the only issue is what significance</v>

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we have when we have an acquittal on that,

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on innocence grounds and we have, you null prossing,

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so we can't make a fact finding on consent

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or lack of consent here.

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It doesn't mean he's gonna win,

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doesn't that get him over the eligibility threshold?

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<v ->No, because Cruz-1 was not on grounds tending</v>

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to establish innocence.

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This might be helpful to you.

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<v ->Well, he's innocent of indecent A</v>

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and B, meaning what he did was not indecent.

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I'm not, by the way, I'm not commending it in any

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way, shape or form.

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But the appeals court concluded it wasn't indecent.

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<v ->Okay, unlike Guzman and Drummond</v>

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and Renault where their convictions were overturned

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on grounds that they were not the perpetrator

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of the crime either through misidentification

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or witnesses recanting or being, you know,

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the person in the car without the constructive possession

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in the Angel Santa.

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<v ->I'm not saying that--</v>
<v ->This is Mr. Cruz,</v>

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we know he--

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<v ->You're not saying that's the only grounds that are covered</v>

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by the statute identification, are you?

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<v Attorney Isley>I'm sorry?</v>

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<v ->You're not suggesting that the only grounds covered</v>

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by this statute are identification, right?

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<v ->Absolutely not, but grounds that tend to establish</v>

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that an individual is not the perpetrator of the crime

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as the amicus,

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the New England Innocence Project Hypothetical set forth.

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If the person that is alleged of

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murdering the cab driver,

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if his DNA exonerated, it's likely that

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that exoneration would also tend

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to establish his innocence of any related.

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<v Judge>So in your view...</v>

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<v ->Charges of assault--</v>

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<v ->In your view, all you need is the first piece?</v>

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Because if it's in your view, if you get over the hump

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of it doesn't establish actual

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innocence, then you're out.

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If it does tend to establish actual innocence,

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there's no need to go any further.

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<v ->I think I understand your hypothetical.</v>

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If Cruz-1 tended to establish his innocence,

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not just of his convictions,

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but any crimes for which he was indicted

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or other reasonably related felonies,

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and I submit that that happens in cases of DNA exoneration

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or where it's not the guy committed the crime

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or the person who didn't do the act.

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<v ->We know Mr. Cruz did this act and what we--</v>

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<v ->No, we don't know whether it's a wanted or unwanted.</v>

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<v ->That's it, that's the consent issue.</v>

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And I, again, I'm gonna push back

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because this seems to be a Justice Lowey day,

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but you null pros the case, right?

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So any of the things that tend to support, in your view,

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you're saying he's gotta be factually innocent,

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but let's just talk about legally innocent.

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You null pros the A and B count.

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So all of the things that even if you're going to put all

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of this stress on what they say in Cruz-1,

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none of that, and this is the Justice Lowey part,

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has been tested

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under the crucible of cross-examination.

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So you've got no, there's no way that we can test

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what are the facts

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because all of the stuff that in Cruz-1

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that the appeals court is talking about, haven't been tested

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because you null prossed it

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and the judge said no testimony on this.

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So how can you say it's a fact when it's just one side?

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That's not how we do trials.

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The other side gets to cross examine that.

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<v ->Well, I would, well first at page 20</v>

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of Mr. Cruz's brief, he concedes that evidence

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of a battery was of course admitted at trial.

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But the analysis for 258-D is not to look back

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at evidentiary decisions

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by the criminal trial court, is to look at

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the judicial relief, overturning the convictions,

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the four corners of it

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and say, is there anything in that,

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in that judicial decision that tends

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to establish this individual's innocence

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of not just his convictions but his other indicted crimes

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or related felonies.

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And here there's nothing in Cruz-1 that tends

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to establish he is innocent of the indicted charge

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of simple assault and battery.

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<v ->Well, there's your decision in null process has</v>

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multiple meanings.

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You know, and let me pose this hypothetical.

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If the evidence was that she wanted the hug

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and that, if the evidence was leaning that way,

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as you oppose, you say it goes the other way,

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but if the evidence were that way,

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00:13:02.100 --> 00:13:06.520
would you still be arguing that this appeals court decision

255
00:13:06.520 --> 00:13:11.520
does not tend to support whatever the language is?

256
00:13:12.540 --> 00:13:14.970
If the facts are the opposite,

257
00:13:14.970 --> 00:13:17.280
then it looks like she agreed to the hug.

258
00:13:17.280 --> 00:13:18.960
'cause she wanted the gift.

259
00:13:18.960 --> 00:13:22.350
<v ->If Cruz-1, the language of the decision</v>

260
00:13:22.350 --> 00:13:25.649
of the majority said the plaintiff gave her,

261
00:13:25.649 --> 00:13:29.050
or I'm sorry, the victim gave her consent.

262
00:13:29.050 --> 00:13:31.260
We would be in a different...

263
00:13:31.260 --> 00:13:33.660
<v ->What if it said the following,</v>

264
00:13:33.660 --> 00:13:35.640
you know, maybe we could have,

265
00:13:35.640 --> 00:13:38.430
maybe you should, you could have brought it to A and B

266
00:13:38.430 --> 00:13:40.923
because the issue of consent is unclear here.

267
00:13:42.017 --> 00:13:44.460
<v ->Mr. Cruz is still not eligible because--</v>

268
00:13:44.460 --> 00:13:45.293
<v Judge>Really?</v>

269
00:13:45.293 --> 00:13:47.594
<v ->Yes, because the statute,</v>

270
00:13:47.594 --> 00:13:49.997
that would be consistent with innocence.

271
00:13:49.997 --> 00:13:52.230
And if you look at the legislative history

272
00:13:52.230 --> 00:13:56.340
of chapter 258-D the first version was consistent

273
00:13:56.340 --> 00:13:58.080
with innocence and that was,

274
00:13:58.080 --> 00:14:01.230
I believe vetoed, a gubernatorial amendment was added

275
00:14:01.230 --> 00:14:04.650
to make it more restrictive, it has to tend to establish,

276
00:14:04.650 --> 00:14:08.760
so an acquittal is perhaps consistent with innocence,

277
00:14:08.760 --> 00:14:12.180
but it is not, does not tend to show innocence.

278
00:14:12.180 --> 00:14:15.600
This case is more like the Peterson case

279
00:14:15.600 --> 00:14:20.280
where the exit order out of the car was, did not tend

280
00:14:20.280 --> 00:14:21.690
to establish innocence.

281
00:14:21.690 --> 00:14:24.180
It's more like the Forgata case,

282
00:14:24.180 --> 00:14:25.920
which was in a appellate case

283
00:14:25.920 --> 00:14:26.940
that was not reported,

284
00:14:26.940 --> 00:14:30.810
but where the Commonwealth, one theory

285
00:14:30.810 --> 00:14:32.100
of their...

286
00:14:32.100 --> 00:14:34.830
<v ->But Justice Gantz in that case</v>

287
00:14:34.830 --> 00:14:37.860
says the appeals court, you should have

288
00:14:37.860 --> 00:14:40.290
and invites what happens here too a little bit.

289
00:14:40.290 --> 00:14:42.390
It says you shouldn't have,

290
00:14:42.390 --> 00:14:44.250
you should have addressed the insufficiency

291
00:14:44.250 --> 00:14:46.620
of the evidence issue in your decision

292
00:14:46.620 --> 00:14:49.590
because there wasn't sufficient evidence in that case

293
00:14:49.590 --> 00:14:50.760
and you shouldn't have done this motion.

294
00:14:50.760 --> 00:14:53.986
But I have no idea whether that's correct or not.

295
00:14:53.986 --> 00:14:57.000
But here we can't,

296
00:14:57.000 --> 00:15:00.030
we don't know whether it was insufficient or not.

297
00:15:00.030 --> 00:15:02.760
Isn't that the next stage of this thing?

298
00:15:02.760 --> 00:15:04.800
<v ->I'm glad you brought up Justice Gantz</v>

299
00:15:04.800 --> 00:15:06.690
because I meant to talk about that too

300
00:15:06.690 --> 00:15:09.310
because his concurrent said that

301
00:15:10.470 --> 00:15:13.140
appellate, criminal appellate courts,

302
00:15:13.140 --> 00:15:15.360
their decisions have consequences

303
00:15:15.360 --> 00:15:17.910
later in 258-D litigation.

304
00:15:17.910 --> 00:15:20.100
And that if Mr. Peterson is correct,

305
00:15:20.100 --> 00:15:24.480
that the dangerous weapon wasn't a dangerous weapon

306
00:15:24.480 --> 00:15:28.575
that his conviction might have been on grounds

307
00:15:28.575 --> 00:15:30.330
heading to establish innocence.

308
00:15:30.330 --> 00:15:32.480
<v ->In that case, he could look at the record</v>

309
00:15:33.519 --> 00:15:36.030
and an appellate court can legitimately look at a record

310
00:15:36.030 --> 00:15:39.570
and say there's insufficient evidence to justify

311
00:15:39.570 --> 00:15:41.453
and that's what they did here

312
00:15:41.453 --> 00:15:43.530
on the indecent assault and battery, right?

313
00:15:43.530 --> 00:15:47.010
But what the appeals court does here is something different

314
00:15:47.010 --> 00:15:49.350
without having a factual record,

315
00:15:49.350 --> 00:15:54.180
it opines and it may be right in the end of the day,

316
00:15:54.180 --> 00:15:57.510
but you didn't pros, you didn't prosecute that case

317
00:15:57.510 --> 00:15:59.220
and we don't have any fact finding on it.

318
00:15:59.220 --> 00:16:02.460
<v ->Well, two things, Cruz-1 occurred after Peterson.</v>

319
00:16:02.460 --> 00:16:05.580
So the Cruz court can be presumed on notice

320
00:16:05.580 --> 00:16:09.000
of Justice Gantz' concurrence

321
00:16:09.000 --> 00:16:12.780
and it elected in grappling with Mr. Cruz's conduct,

322
00:16:12.780 --> 00:16:16.650
whether it was indecent under the commonwealth's indecency

323
00:16:16.650 --> 00:16:20.730
laws or if it was just intentional, inappropriate,

324
00:16:20.730 --> 00:16:23.280
and amounted to, I would suggest

325
00:16:23.280 --> 00:16:26.850
that footnote one makes explicit its entire decision

326
00:16:26.850 --> 00:16:30.720
that his conduct was both unwanted, intentional

327
00:16:30.720 --> 00:16:33.690
and without any legal excuse or justification.

328
00:16:33.690 --> 00:16:36.810
And 258-D requires us to look at the four corners

329
00:16:36.810 --> 00:16:38.440
of the judicial decision

330
00:16:39.840 --> 00:16:44.840
and the fact that the appeals court

331
00:16:46.320 --> 00:16:51.320
in Cruz elected to describe it that way.

332
00:16:51.891 --> 00:16:53.880
<v ->Find facts.</v>
<v ->Find facts.</v>

333
00:16:53.880 --> 00:16:58.530
<v ->What's the difference between 258-D 1(B)</v>

334
00:16:58.530 --> 00:17:03.060
and 258-D 1(C) in your view?

335
00:17:03.060 --> 00:17:07.350
<v ->Well, 258-D 1B2 and 1B1</v>

336
00:17:07.350 --> 00:17:10.830
are the eligibility provisions

337
00:17:10.830 --> 00:17:15.540
and 258-D 1C is the merits argument,

338
00:17:15.540 --> 00:17:20.540
however, 258-D 1B2 incorporates clause six

339
00:17:23.880 --> 00:17:28.170
of 258-D 1C in a way that...

340
00:17:28.170 --> 00:17:30.240
<v ->You've lost me, you've lost me.</v>

341
00:17:30.240 --> 00:17:32.220
<v Attorney Isley>Right, so--</v>

342
00:17:32.220 --> 00:17:33.600
<v ->There's two parts, right?</v>

343
00:17:33.600 --> 00:17:38.600
First you have to show you're eligible for the possible

344
00:17:38.760 --> 00:17:43.760
compensation and then if you, if you cross that threshold,

345
00:17:44.190 --> 00:17:45.240
you have to show by clear

346
00:17:45.240 --> 00:17:47.490
and convincing evidence that you're innocent.

347
00:17:48.690 --> 00:17:52.680
But it sounds to me like you are saying that Mr. Cruz has

348
00:17:52.680 --> 00:17:55.890
to show by clear and convincing evidence that he's innocent

349
00:17:55.890 --> 00:18:00.060
before and that's the one thing he has to do to get

350
00:18:00.060 --> 00:18:01.860
by the eligibility.

351
00:18:01.860 --> 00:18:05.920
<v ->No, so and admittedly the statute</v>

352
00:18:07.062 --> 00:18:07.895
is complicated,

353
00:18:07.895 --> 00:18:12.280
but if you look at B2, it says that

354
00:18:13.260 --> 00:18:16.140
the judicial relief has to be tending,

355
00:18:16.140 --> 00:18:18.600
overturned on, tending to establish innocence

356
00:18:18.600 --> 00:18:21.540
of the individual as set forth in,

357
00:18:21.540 --> 00:18:24.930
and those are the key words as set forth in.

358
00:18:24.930 --> 00:18:26.180
<v Judge>The indictment.</v>

359
00:18:27.630 --> 00:18:31.860
<v ->Clause six of subsection C.</v>

360
00:18:31.860 --> 00:18:33.780
So not all of subsection C.

361
00:18:33.780 --> 00:18:36.210
<v ->Okay, but what does clause six say?</v>

362
00:18:36.210 --> 00:18:38.520
<v ->Clause six says crime</v>

363
00:18:38.520 --> 00:18:42.690
or crimes charged in the indictment or complaint

364
00:18:42.690 --> 00:18:45.720
and that's the important language here.

365
00:18:45.720 --> 00:18:48.090
Assault and battery was charged in the indictment

366
00:18:48.090 --> 00:18:51.870
and goes on to say or other felonies reasonably related

367
00:18:51.870 --> 00:18:55.410
to the facts of the case or something like that.

368
00:18:55.410 --> 00:18:56.610
I can get you the actual language,

369
00:18:56.610 --> 00:18:58.060
but the relevant language is,

370
00:18:59.346 --> 00:19:04.346
so clause six defines the innocence of the individual

371
00:19:04.530 --> 00:19:07.503
that the judicial relief must tend to show.

372
00:19:08.460 --> 00:19:10.623
And that is complicated, I'll admit that.

373
00:19:11.589 --> 00:19:13.080
But if you...

374
00:19:13.080 --> 00:19:14.950
<v ->How do they, when you null pros</v>

375
00:19:15.900 --> 00:19:19.050
the additional charge

376
00:19:19.050 --> 00:19:23.820
and how are they ever gonna show innocence

377
00:19:23.820 --> 00:19:26.343
then if in your world,

378
00:19:28.020 --> 00:19:29.760
'cause you've null prossed it,

379
00:19:29.760 --> 00:19:33.330
the appeals court gave you a raft to cling to,

380
00:19:33.330 --> 00:19:34.353
this dictum,

381
00:19:35.421 --> 00:19:39.720
but you null prossed this, there's not a factual record.

382
00:19:39.720 --> 00:19:41.799
I just don't know how we're,

383
00:19:41.799 --> 00:19:43.680
how anyone's ever gonna establish

384
00:19:43.680 --> 00:19:46.653
if there's always a possibility you could have brought it,

385
00:19:47.490 --> 00:19:48.930
you know, I don't know, tell me.

386
00:19:48.930 --> 00:19:50.370
<v ->Well, that goes back to the fact</v>

387
00:19:50.370 --> 00:19:51.810
that this is a bit of a unique case.

388
00:19:51.810 --> 00:19:55.426
Most 258-D cases, all of the 258-D cases

389
00:19:55.426 --> 00:20:00.426
where this court has found eligibility pertain to folks who,

390
00:20:01.170 --> 00:20:04.050
whose claims were reversed on grounds

391
00:20:04.050 --> 00:20:05.340
that they were not the culprit

392
00:20:05.340 --> 00:20:08.220
or the perpetrator of the particular crime.

393
00:20:08.220 --> 00:20:13.220
The ones that were found not to be eligible like in Peterson

394
00:20:14.160 --> 00:20:18.300
and Omar Santana and Ragata

395
00:20:18.300 --> 00:20:19.950
and Riley,

396
00:20:19.950 --> 00:20:22.890
those all are in a different subset

397
00:20:22.890 --> 00:20:26.518
and I would suggest that Cruz is in that subset.

398
00:20:26.518 --> 00:20:28.080
<v ->What subset is that?</v>

399
00:20:28.080 --> 00:20:30.270
<v ->The subset of not eligible...</v>

400
00:20:30.270 --> 00:20:32.250
<v ->But that's just the conclusion.</v>

401
00:20:32.250 --> 00:20:34.833
But what's the conduit?

402
00:20:35.940 --> 00:20:38.726
<v ->The conduit is the decisions</v>

403
00:20:38.726 --> 00:20:42.030
overturning their convictions said nothing

404
00:20:42.030 --> 00:20:47.030
about that tended to establish the innocence of,

405
00:20:47.490 --> 00:20:50.201
so when Peterson's a great example,

406
00:20:50.201 --> 00:20:51.851
and I think closest to this case,

407
00:20:53.310 --> 00:20:56.310
Mr. Peterson's convictions were overturned

408
00:20:56.310 --> 00:20:58.890
because of the unconstitutional exit order.

409
00:20:58.890 --> 00:21:02.550
And even though he raised on appeal, the fact

410
00:21:02.550 --> 00:21:05.250
that the knife was not a dangerous weapon,

411
00:21:05.250 --> 00:21:07.170
the court did not reach that.

412
00:21:07.170 --> 00:21:12.120
So his, when he brought his 258-D case, it was not found,

413
00:21:12.120 --> 00:21:13.230
he was not eligible

414
00:21:13.230 --> 00:21:16.020
because his conviction was overturned,

415
00:21:16.020 --> 00:21:18.600
not on grounds tending to establish innocence.

416
00:21:18.600 --> 00:21:20.520
That's exactly what we have here.

417
00:21:20.520 --> 00:21:24.167
Mr. Cruz, his conviction was overturned

418
00:21:24.167 --> 00:21:28.020
because his conduct was found to be not indecent,

419
00:21:28.020 --> 00:21:31.740
but his conduct was not found to be and didn't,

420
00:21:31.740 --> 00:21:33.780
and I said found to be, it should, it did not tend

421
00:21:33.780 --> 00:21:37.830
to establish, which is a term this court has construed.

422
00:21:37.830 --> 00:21:39.510
<v ->I know you're going a little bit long</v>

423
00:21:39.510 --> 00:21:42.360
and I just wanna make sure that I have you

424
00:21:42.360 --> 00:21:44.040
crystallize this for me.

425
00:21:44.040 --> 00:21:48.720
So you are saying in a world where the commonwealth

426
00:21:48.720 --> 00:21:52.710
null process a case, a charge, excuse me,

427
00:21:52.710 --> 00:21:56.820
and there's no facts deduced at trial on this,

428
00:21:56.820 --> 00:22:00.300
that somehow we're still in a position

429
00:22:00.300 --> 00:22:05.300
to divine whether what we have

430
00:22:05.520 --> 00:22:08.370
demonstrates the threshold issue of tending

431
00:22:08.370 --> 00:22:10.680
to establish innocence?

432
00:22:10.680 --> 00:22:12.510
<v ->Yes, the plain language</v>

433
00:22:12.510 --> 00:22:16.415
of the statute says nothing about null prosing

434
00:22:16.415 --> 00:22:18.120
or dismissing a case.

435
00:22:18.120 --> 00:22:21.030
It says it tends to establish the innocence

436
00:22:21.030 --> 00:22:23.550
of the individual of the crime

437
00:22:23.550 --> 00:22:25.863
or crimes charged in the indictment.

438
00:22:27.390 --> 00:22:28.990
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

439
00:22:31.350 --> 00:22:32.763
<v ->Attorney Rappaport.</v>

440
00:22:33.690 --> 00:22:34.740
<v ->Well, good morning.</v>

441
00:22:36.210 --> 00:22:39.090
I'd like to begin

442
00:22:39.090 --> 00:22:41.460
by distinguishing the Peterson case

443
00:22:41.460 --> 00:22:44.112
from this case if I may, because it's come up.

444
00:22:44.112 --> 00:22:47.490
In Peterson, there were basically two issues presented

445
00:22:47.490 --> 00:22:48.630
to the appellate court.

446
00:22:48.630 --> 00:22:51.630
One was the illegal exit order,

447
00:22:51.630 --> 00:22:56.190
and two was the knife, did it meet the qualifications

448
00:22:56.190 --> 00:22:58.950
to be considered a dangerous weapon?

449
00:22:58.950 --> 00:23:01.410
The court had jurisdiction to deal

450
00:23:01.410 --> 00:23:02.880
with both of those issues.

451
00:23:02.880 --> 00:23:05.340
Both of those issues were raised on appeal.

452
00:23:05.340 --> 00:23:06.747
<v Judge>And it had a full record on both of those.</v>

453
00:23:06.747 --> 00:23:07.890
<v ->And they had a full record.</v>

454
00:23:07.890 --> 00:23:11.640
Right, the fact that the court chose to deal

455
00:23:11.640 --> 00:23:14.670
with the exit order and the exit order only

456
00:23:14.670 --> 00:23:18.570
and reversed a conviction on that basis had nothing to do

457
00:23:18.570 --> 00:23:22.293
with whether or not the defendant in that case was innocent

458
00:23:22.293 --> 00:23:24.935
because he didn't commit a crime

459
00:23:24.935 --> 00:23:29.616
if the knife didn't comport with what was illegal.

460
00:23:29.616 --> 00:23:34.616
So the court just chose which issue to deal with

461
00:23:35.220 --> 00:23:36.900
and Judge Gantz said, hey, look,

462
00:23:36.900 --> 00:23:38.250
court should be careful about this

463
00:23:38.250 --> 00:23:40.920
because it might have impact down the road,

464
00:23:40.920 --> 00:23:43.680
but what the court did was totally appropriate.

465
00:23:43.680 --> 00:23:46.016
They dealt with an issue, reversed the case.

466
00:23:46.016 --> 00:23:47.190
<v ->But didn't it invite sort,</v>

467
00:23:47.190 --> 00:23:50.700
of doesn't Justice, Chief Justice Gantz' approach invite

468
00:23:50.700 --> 00:23:55.350
with the appeals court did hear a little bit, which is okay,

469
00:23:55.350 --> 00:23:58.650
I'm gonna be criticized if I don't deal

470
00:23:58.650 --> 00:24:00.060
with this little elephant in the room.

471
00:24:00.060 --> 00:24:01.866
<v ->I would submit no,</v>

472
00:24:01.866 --> 00:24:04.950
because whereas the appeals court had the jurisdiction on

473
00:24:04.950 --> 00:24:08.160
both issues in Peterson,

474
00:24:08.160 --> 00:24:11.370
but they begin the opinion in this case

475
00:24:11.370 --> 00:24:16.233
by saying there's only one question presented by this case,

476
00:24:16.233 --> 00:24:20.820
were the touchings indecent, not were they inappropriate,

477
00:24:20.820 --> 00:24:23.580
not were they icky.

478
00:24:23.580 --> 00:24:26.970
Look, there's no question that this is not going to be

479
00:24:26.970 --> 00:24:31.710
an easy case to win for Mr. Cruz at trial.

480
00:24:31.710 --> 00:24:33.960
I mean, there's no question about it.

481
00:24:33.960 --> 00:24:37.323
The question here though is was he,

482
00:24:38.400 --> 00:24:39.810
is he eligible

483
00:24:39.810 --> 00:24:44.640
because his case was reversed on grounds that facts

484
00:24:44.640 --> 00:24:48.060
and circumstances that tend to indicate his innocence,

485
00:24:48.060 --> 00:24:50.850
his innocence of what he was convicted of,

486
00:24:50.850 --> 00:24:52.107
he was convicted of two counts.

487
00:24:52.107 --> 00:24:53.520
<v ->No, but it has to be both.</v>

488
00:24:53.520 --> 00:24:55.920
It has to be beyond what he's convicted of, right?

489
00:24:55.920 --> 00:24:57.900
Because the statute,

490
00:24:57.900 --> 00:25:00.810
your opposing counsel is clearly correct

491
00:25:00.810 --> 00:25:04.050
that you look at the charges in the indictment, not just

492
00:25:04.050 --> 00:25:05.400
what he was convicted of.

493
00:25:05.400 --> 00:25:08.000
So you're stuck with that part of this.

494
00:25:08.000 --> 00:25:10.110
<v ->At trial, at trial.</v>

495
00:25:10.110 --> 00:25:12.570
<v ->No, but it would include less included offenses.</v>

496
00:25:12.570 --> 00:25:13.607
Right?

497
00:25:13.607 --> 00:25:14.880
<v ->Well that's interesting judge,</v>

498
00:25:14.880 --> 00:25:17.428
because obviously this is not a lesser included offense.

499
00:25:17.428 --> 00:25:18.261
<v Judge>Right.</v>

500
00:25:18.261 --> 00:25:20.670
<v ->But I actually find the language</v>

501
00:25:20.670 --> 00:25:24.240
even more confusing than everybody else does.

502
00:25:24.240 --> 00:25:26.580
I know sometimes I stand up here and say it's easy,

503
00:25:26.580 --> 00:25:29.070
but no, it's not easy because,

504
00:25:29.070 --> 00:25:32.640
or any other felony, right?

505
00:25:32.640 --> 00:25:36.030
Well, does that refer to the charges?

506
00:25:36.030 --> 00:25:37.410
<v Judge>I would assume.</v>

507
00:25:37.410 --> 00:25:39.450
<v ->What's charged in the indictment must</v>

508
00:25:39.450 --> 00:25:41.036
be a felony.
<v ->Right.</v>

509
00:25:41.036 --> 00:25:42.960
<v ->You were a Superior Court judge.</v>

510
00:25:42.960 --> 00:25:46.140
I know that I appeared in front of many occasions,

511
00:25:46.140 --> 00:25:51.090
how many times in my last two murder cases, one last March

512
00:25:51.090 --> 00:25:54.180
and one last July, there were

513
00:25:54.180 --> 00:25:57.076
misdemeanor charges brought along

514
00:25:57.076 --> 00:26:00.090
with the murder charge, in one case,

515
00:26:00.090 --> 00:26:04.712
I believe it was firing the gun within

516
00:26:04.712 --> 00:26:07.010
500 feet of a...

517
00:26:07.950 --> 00:26:09.297
And judge looked at the prosecutor

518
00:26:09.297 --> 00:26:12.840
and said, you really wanna bring that in this murder case?

519
00:26:12.840 --> 00:26:15.510
And at that point the prosecutor said, maybe not,

520
00:26:15.510 --> 00:26:17.370
and dismissed the case.

521
00:26:17.370 --> 00:26:21.480
Okay, let's just assume, let's just assume

522
00:26:21.480 --> 00:26:25.530
that down the road a person did fire a gun

523
00:26:25.530 --> 00:26:27.690
but had nothing to do with the murder.

524
00:26:27.690 --> 00:26:31.800
And 10 years later that's established.

525
00:26:31.800 --> 00:26:35.820
But he never had his opportunity in court to say, no,

526
00:26:35.820 --> 00:26:38.040
I didn't fire that gun.

527
00:26:38.040 --> 00:26:40.740
He was indicted for it.

528
00:26:40.740 --> 00:26:44.340
Nothing in the eventual opinion that

529
00:26:44.340 --> 00:26:48.510
he's released on says anything at all about that gun.

530
00:26:48.510 --> 00:26:52.170
You mean to say if the person gets a DNA exoneration on

531
00:26:52.170 --> 00:26:55.860
on the shooting after 15 years, the bringing of

532
00:26:55.860 --> 00:27:00.060
that indictment for firing the...

533
00:27:00.060 --> 00:27:01.800
That's gonna prevent the person from?

534
00:27:01.800 --> 00:27:03.750
<v ->But civil recovery, you know,</v>

535
00:27:03.750 --> 00:27:07.410
this is a potential significant recovery

536
00:27:07.410 --> 00:27:11.430
and they've defined tending to establish your innocence

537
00:27:11.430 --> 00:27:13.020
of everything you were charged with.

538
00:27:13.020 --> 00:27:14.610
I mean, I don't think you can read

539
00:27:14.610 --> 00:27:15.870
that language out of this.

540
00:27:15.870 --> 00:27:17.670
I understand it creates all kinds of problems like

541
00:27:17.670 --> 00:27:18.780
what we're confronting here.

542
00:27:18.780 --> 00:27:19.613
<v ->Judge.</v>

543
00:27:21.350 --> 00:27:24.600
I was not appellate counsel for Cruz,

544
00:27:24.600 --> 00:27:26.670
but let's assume I was

545
00:27:26.670 --> 00:27:31.170
and I see what the issue is, especially in the appeals.

546
00:27:31.170 --> 00:27:32.790
I'm not saying necessarily here,

547
00:27:32.790 --> 00:27:34.350
if I don't dot my Is

548
00:27:34.350 --> 00:27:36.120
and cross my Ts when I write a brief,

549
00:27:36.120 --> 00:27:37.890
my brief gets rejected.

550
00:27:37.890 --> 00:27:42.450
If I were to violate appellate rules 16,

551
00:27:42.450 --> 00:27:45.750
seven or nine, if I were to put in a whole statement

552
00:27:45.750 --> 00:27:47.640
of facts supporting the fact

553
00:27:47.640 --> 00:27:50.340
that Cruz did not commit the assault

554
00:27:50.340 --> 00:27:54.000
and battery, there's no place for that in my brief,

555
00:27:54.000 --> 00:27:55.740
it's not an issue on appeal.

556
00:27:55.740 --> 00:27:56.573
<v Judge>Right.</v>

557
00:27:56.573 --> 00:27:59.580
<v ->When I make an argument, I'm not gonna argue that,</v>

558
00:27:59.580 --> 00:28:03.270
that he's not guilty of assault and battery, simple assault

559
00:28:03.270 --> 00:28:07.080
and battery because it's not an issue on appeal.

560
00:28:07.080 --> 00:28:09.780
The court takes the facts in a light most

561
00:28:09.780 --> 00:28:11.730
favorable to the commonwealth

562
00:28:11.730 --> 00:28:14.923
where there's been no advocacy at all

563
00:28:14.923 --> 00:28:19.680
by any counsel on behalf of Mr. Cruz to say, no,

564
00:28:19.680 --> 00:28:21.510
this is not an assault and battery

565
00:28:21.510 --> 00:28:26.510
because consent, lack of consent was never established.

566
00:28:26.640 --> 00:28:29.220
And we do know factually on the record,

567
00:28:29.220 --> 00:28:33.480
the judge precluded the establishment of lack of consent.

568
00:28:33.480 --> 00:28:37.380
First when the prosecutor tried to get into the issue, no,

569
00:28:37.380 --> 00:28:38.850
no, no, no, on his own,

570
00:28:38.850 --> 00:28:42.720
the judge just says, no, consent has no place in this case.

571
00:28:42.720 --> 00:28:46.800
Then when defense counsel says, well, did you ask him

572
00:28:46.800 --> 00:28:48.480
to take his hand off

573
00:28:48.480 --> 00:28:51.930
or words to that effect, the prosecutor objects

574
00:28:51.930 --> 00:28:55.620
as she should because the judge has already laid down

575
00:28:55.620 --> 00:28:56.770
the law of the case

576
00:28:58.487 --> 00:29:01.950
and no, ladies, you can't ask that question.

577
00:29:01.950 --> 00:29:03.510
Forget about that answer.

578
00:29:03.510 --> 00:29:06.240
It doesn't have any place in this case whatsoever.

579
00:29:06.240 --> 00:29:08.790
How is there gonna be a statement?

580
00:29:08.790 --> 00:29:09.623
<v Judge>So how do we?</v>

581
00:29:09.623 --> 00:29:12.030
<v ->In support of the defendant under the circumstances?</v>

582
00:29:12.030 --> 00:29:14.130
<v ->I totally get what you're saying.</v>

583
00:29:14.130 --> 00:29:15.570
The problem I've got is,

584
00:29:15.570 --> 00:29:20.320
how do we analyze these issues when legislature included

585
00:29:22.020 --> 00:29:25.440
basically this context,

586
00:29:25.440 --> 00:29:27.690
which is something is dropped.

587
00:29:27.690 --> 00:29:30.000
<v ->Well, two things I'm gonna say.</v>

588
00:29:30.000 --> 00:29:32.940
<v ->And by the way, it's not, you know, there are lots</v>

589
00:29:32.940 --> 00:29:34.590
of reasons why they dropped those claims.

590
00:29:34.590 --> 00:29:37.322
They may not want, they may want this

591
00:29:37.322 --> 00:29:38.155
to be an all or nothing.

592
00:29:38.155 --> 00:29:39.990
They may think this is not worth,

593
00:29:39.990 --> 00:29:42.240
this may not be worth the time to do an inquiry.

594
00:29:42.240 --> 00:29:44.010
<v ->Reading the trial transcripts.</v>

595
00:29:44.010 --> 00:29:48.570
I know that I tend to put some nefarious motives

596
00:29:48.570 --> 00:29:53.040
behind certain prosecutors, not all prosecutors,

597
00:29:53.040 --> 00:29:55.353
but in this particular case,

598
00:29:57.690 --> 00:30:00.540
and there's discussions between the prosecutor

599
00:30:00.540 --> 00:30:02.190
and the judge about this.

600
00:30:02.190 --> 00:30:05.280
Well, if you're gonna let it go to the jury on the basis

601
00:30:05.280 --> 00:30:07.410
of indecent, I want to take away

602
00:30:07.410 --> 00:30:09.540
the simple assault and battery

603
00:30:09.540 --> 00:30:13.200
because a jury in a case like this might actually use common

604
00:30:13.200 --> 00:30:16.710
sense and come back assault and battery.

605
00:30:16.710 --> 00:30:18.393
I don't want that to happen.

606
00:30:19.500 --> 00:30:21.540
I mean this was done so he could get...

607
00:30:21.540 --> 00:30:22.373
<v ->That's sort of what the appeal--</v>

608
00:30:22.373 --> 00:30:23.940
<v ->A fair sentence as opposed to a house...</v>

609
00:30:23.940 --> 00:30:26.252
<v ->That's what sort of what the appeals court did, right?</v>

610
00:30:26.252 --> 00:30:27.085
<v Rappaport>Excuse me?</v>

611
00:30:27.085 --> 00:30:29.100
<v ->The appeals court sort of exercised</v>

612
00:30:29.100 --> 00:30:31.410
its common sense as you put it

613
00:30:31.410 --> 00:30:35.190
and kind of served a pining on this.

614
00:30:35.190 --> 00:30:39.660
<v ->The appeals court listed facts, which are going to be</v>

615
00:30:39.660 --> 00:30:42.810
very difficult for Mr. Cruz

616
00:30:42.810 --> 00:30:46.950
to show at trial that he didn't commit this crime.

617
00:30:46.950 --> 00:30:49.110
If that's in fact what he has to show.

618
00:30:49.110 --> 00:30:52.500
And I still say to this court that the more

619
00:30:52.500 --> 00:30:55.080
and more I read the statute, every time I read the statute,

620
00:30:55.080 --> 00:30:58.957
I find something else that seems to be odd.

621
00:31:00.660 --> 00:31:04.320
In this particular statute you talk about, well,

622
00:31:04.320 --> 00:31:08.730
no other crimes committed or other felonies,

623
00:31:08.730 --> 00:31:12.780
and then it also says lesser included felonies.

624
00:31:12.780 --> 00:31:15.323
Are we merely talking about felonies

625
00:31:15.323 --> 00:31:18.017
or are we talking about any crime

626
00:31:18.017 --> 00:31:20.880
that was alleged in the indictment?

627
00:31:20.880 --> 00:31:24.810
<v ->Well, I know you're saying that this is the only thing</v>

628
00:31:24.810 --> 00:31:25.950
that we should be looking at

629
00:31:25.950 --> 00:31:28.380
is what he was ultimately vindicated on,

630
00:31:28.380 --> 00:31:31.020
on appeal, and that's the indecent, but let's just deal

631
00:31:31.020 --> 00:31:33.480
with the no other crimes thing.

632
00:31:33.480 --> 00:31:35.790
So how can,

633
00:31:35.790 --> 00:31:40.790
and how can we divine the gating requirement

634
00:31:41.070 --> 00:31:45.720
in a case where the charge has been null prossed,

635
00:31:45.720 --> 00:31:47.760
the trial judge has said we're not,

636
00:31:47.760 --> 00:31:50.313
I'm not allowing any evidence on that.

637
00:31:52.756 --> 00:31:57.720
I know what you're saying is you'd rather win on the stuff

638
00:31:57.720 --> 00:31:59.760
that was adjudicated at the appeal,

639
00:31:59.760 --> 00:32:02.310
but don't you also win on this other part

640
00:32:02.310 --> 00:32:04.590
where if there's no facts on here,

641
00:32:04.590 --> 00:32:08.040
how can we determine that he's out

642
00:32:08.040 --> 00:32:09.660
of the gate on at least getting a trial?

643
00:32:09.660 --> 00:32:11.310
<v ->I absolutely agree with the court.</v>

644
00:32:11.310 --> 00:32:14.580
I'm just trying to look at worst case scenario

645
00:32:14.580 --> 00:32:19.580
and still justify Mr. Cruz's ability to now,

646
00:32:20.130 --> 00:32:22.230
that he's eligible, bring this lawsuit.

647
00:32:22.230 --> 00:32:24.090
<v ->So if we had a situation</v>

648
00:32:24.090 --> 00:32:26.280
where if there was a lesser included

649
00:32:26.280 --> 00:32:28.810
or a felony that's out there

650
00:32:29.850 --> 00:32:33.210
and the legislature says basically you're not eligible

651
00:32:33.210 --> 00:32:35.400
because there's this felony you've probably committed,

652
00:32:35.400 --> 00:32:40.260
so we're not going to let you sue for wrongful conviction.

653
00:32:40.260 --> 00:32:43.860
But when it's a misdemeanor, it's a different, strangely...

654
00:32:43.860 --> 00:32:46.440
<v ->Well, and I also find it odd</v>

655
00:32:46.440 --> 00:32:49.413
that this felony out there that's never been charged,

656
00:32:51.060 --> 00:32:54.870
this statute would almost preclude

657
00:32:54.870 --> 00:32:59.700
a claimant from the ability to bring lawsuit.

658
00:32:59.700 --> 00:33:00.870
<v ->I guess what, you know...</v>

659
00:33:00.870 --> 00:33:03.960
<v ->Some felony that somebody, an appellate court says,</v>

660
00:33:03.960 --> 00:33:08.100
you know, this isn't really before us,

661
00:33:08.100 --> 00:33:10.920
but when you look at these facts,

662
00:33:10.920 --> 00:33:15.150
a prosecutor could have brought this particular charge,

663
00:33:15.150 --> 00:33:16.645
a felony.

664
00:33:16.645 --> 00:33:18.540
<v ->Unless there's a remand from</v>

665
00:33:18.540 --> 00:33:22.503
manslaughter or you know, then you're guilty of,

666
00:33:23.640 --> 00:33:26.310
we're gonna find required finding in so much,

667
00:33:26.310 --> 00:33:28.560
the judge should have required, issued a required finding

668
00:33:28.560 --> 00:33:31.230
of first degree, but we're gonna remand it

669
00:33:31.230 --> 00:33:32.640
and you could try 'em for manslaughter

670
00:33:32.640 --> 00:33:34.890
or second degree, that happens...

671
00:33:34.890 --> 00:33:37.427
<v ->Regularly.</v>
<v ->Frequently, right?</v>

672
00:33:37.427 --> 00:33:39.270
And that means you wouldn't be eligible

673
00:33:39.270 --> 00:33:42.030
to sue for a civil suit.

674
00:33:42.030 --> 00:33:46.470
<v ->Well, but there, you still committed the crime.</v>

675
00:33:46.470 --> 00:33:50.880
I mean, and it's been adjudicated first by the jury

676
00:33:50.880 --> 00:33:53.280
and now you're getting the break

677
00:33:53.280 --> 00:33:54.600
from the appellate court.

678
00:33:54.600 --> 00:33:57.300
You've been adjudicated, you've had a fair chance

679
00:33:57.300 --> 00:33:58.890
to present your case.

680
00:33:58.890 --> 00:34:01.410
In this situation, you don't even have a chance

681
00:34:01.410 --> 00:34:05.580
to present your case to say, no, I'm not guilty

682
00:34:05.580 --> 00:34:09.480
of simple assault and battery, there was consent here.

683
00:34:09.480 --> 00:34:10.313
<v Judge>Right.</v>

684
00:34:10.313 --> 00:34:11.730
<v ->Or at least there was no lack of consent.</v>

685
00:34:11.730 --> 00:34:13.650
<v ->I'm not guilty of everything they charge.</v>

686
00:34:13.650 --> 00:34:15.600
You don't get a chance to prove I'm not guilty

687
00:34:15.600 --> 00:34:17.340
of everything they charge me.

688
00:34:17.340 --> 00:34:19.950
And I spent two and a half years in prison because of that.

689
00:34:19.950 --> 00:34:21.300
Right, that's your argument.

690
00:34:21.300 --> 00:34:24.240
<v ->I spent two and a half years in prison under the worst</v>

691
00:34:24.240 --> 00:34:26.280
circumstances imaginable

692
00:34:26.280 --> 00:34:30.750
because I was convicted of a crime I never committed.

693
00:34:30.750 --> 00:34:32.520
<v ->Right, but you may have lucked out</v>

694
00:34:32.520 --> 00:34:36.420
that you were null prossed on one that you did, but...

695
00:34:36.420 --> 00:34:38.763
<v ->Maybe, but as Justice June says,</v>

696
00:34:39.930 --> 00:34:41.550
we don't know.

697
00:34:41.550 --> 00:34:44.400
There was never, the jury was never given

698
00:34:44.400 --> 00:34:46.260
the opportunity to decide.

699
00:34:46.260 --> 00:34:49.290
No fact finder ever decided.

700
00:34:49.290 --> 00:34:52.620
All the appeals court said was we look at these facts

701
00:34:52.620 --> 00:34:55.830
and these facts may have been an avenue

702
00:34:55.830 --> 00:34:59.520
toward a conviction of assault and battery,

703
00:34:59.520 --> 00:35:02.700
but for whatever reason, the commonwealth chose

704
00:35:02.700 --> 00:35:04.620
not to take that path.

705
00:35:04.620 --> 00:35:07.110
<v ->I'm just trying to get a sense, I'm trying to lend meaning</v>

706
00:35:07.110 --> 00:35:09.783
to the statute in this context.

707
00:35:10.950 --> 00:35:14.100
And maybe justice Gaziano's solution lends the meaning

708
00:35:14.100 --> 00:35:15.783
which is the lesser included,

709
00:35:17.325 --> 00:35:19.860
but that we're usually convicted of the lesser included.

710
00:35:19.860 --> 00:35:22.590
Right, even if they're dropped or...

711
00:35:22.590 --> 00:35:24.247
<v ->Well if the lesser included is dropped--</v>

712
00:35:24.247 --> 00:35:25.620
<v ->You guys are the pros in this.</v>

713
00:35:25.620 --> 00:35:27.810
<v ->You still include it in the charge</v>

714
00:35:27.810 --> 00:35:29.910
to the jury, the jury is still given the opportunity

715
00:35:29.910 --> 00:35:31.350
to come back on the lesser included.

716
00:35:31.350 --> 00:35:32.183
<v Judge>Right, okay.</v>

717
00:35:32.183 --> 00:35:34.110
<v ->There are a myriad lesser includeds</v>

718
00:35:34.110 --> 00:35:36.450
that aren't even raised.

719
00:35:36.450 --> 00:35:39.000
Like why would charge the B and E, right?

720
00:35:39.000 --> 00:35:41.940
Why would you charge, you could charge the...

721
00:35:41.940 --> 00:35:43.963
Home invasion.
<v ->But nonetheless,</v>

722
00:35:43.963 --> 00:35:46.380
nonetheless, in those cases, you still have the facts

723
00:35:46.380 --> 00:35:49.247
that have been made out on the record.

724
00:35:49.247 --> 00:35:51.037
<v ->I get your point.</v>
<v ->On the record.</v>

725
00:35:51.037 --> 00:35:51.990
<v ->I get your point that you,</v>

726
00:35:51.990 --> 00:35:53.884
you weren't giving the opportunity

727
00:35:53.884 --> 00:35:54.930
'cause the unique circumstances of this case

728
00:35:54.930 --> 00:35:57.900
where the judge says this is a 14-year-old,

729
00:35:57.900 --> 00:35:59.130
there's no consent issue.

730
00:35:59.130 --> 00:36:00.000
Don't talk about it.

731
00:36:00.000 --> 00:36:03.750
<v ->In fact, if you look at the Drumgold case,</v>

732
00:36:03.750 --> 00:36:07.680
if you look at the Guzman cases, two cases,

733
00:36:07.680 --> 00:36:09.000
I'm very familiar with, Guzman,

734
00:36:09.000 --> 00:36:10.320
I was appellate counsel and Drumgold,

735
00:36:10.320 --> 00:36:13.050
I was the trial lawyer.

736
00:36:13.050 --> 00:36:14.283
I know those cases,

737
00:36:15.240 --> 00:36:17.103
what happened in those cases were,

738
00:36:18.120 --> 00:36:22.290
important evidence was kept from the fact finder.

739
00:36:22.290 --> 00:36:23.790
Drumgold didn't come out

740
00:36:23.790 --> 00:36:26.160
and excuse me, Guzman didn't come out

741
00:36:26.160 --> 00:36:27.570
and say he's not guilty.

742
00:36:27.570 --> 00:36:32.280
What happened in Guzman was evidence was kept

743
00:36:32.280 --> 00:36:34.410
because of the conflict of interest.

744
00:36:34.410 --> 00:36:38.840
Evidence was kept from the jury that would've impacted

745
00:36:38.840 --> 00:36:41.280
and that wouldn't necessarily have meant

746
00:36:41.280 --> 00:36:42.900
that he was not guilty,

747
00:36:42.900 --> 00:36:46.050
but it would've impacted the finding as to whether

748
00:36:46.050 --> 00:36:48.030
or not he was guilty.

749
00:36:48.030 --> 00:36:51.900
In fact, in Drumgold, the decision,

750
00:36:51.900 --> 00:36:56.670
the decision which reversed the case

751
00:36:56.670 --> 00:37:00.060
specifically, and this court noted the decision,

752
00:37:00.060 --> 00:37:01.860
this is not a determination

753
00:37:01.860 --> 00:37:04.800
of the defendant's guilt or innocence.

754
00:37:04.800 --> 00:37:06.270
There's no determination, no,

755
00:37:06.270 --> 00:37:10.680
certainly no affirmative determination of guilt or innocence

756
00:37:10.680 --> 00:37:14.587
or innocence in either Guzman or in Drumgold.

757
00:37:14.587 --> 00:37:17.409
And the decision Drumgold said no,

758
00:37:17.409 --> 00:37:21.180
this decision doesn't have anything to do with,

759
00:37:21.180 --> 00:37:23.970
it was an unfair trial, period.

760
00:37:23.970 --> 00:37:26.730
They didn't say whether or not it...

761
00:37:26.730 --> 00:37:29.880
<v ->Although the evidence in those cases, right,</v>

762
00:37:29.880 --> 00:37:32.280
tend to establish that it's the wrong guy, right?

763
00:37:32.280 --> 00:37:34.530
The evidence that's precluded

764
00:37:34.530 --> 00:37:37.145
is identification evidence, right?

765
00:37:37.145 --> 00:37:38.340
And you know this better than I do.

766
00:37:38.340 --> 00:37:40.524
I don't remember those cases that well.

767
00:37:40.524 --> 00:37:45.120
<v ->Well, yeah, I mean, but when I first appeared</v>

768
00:37:45.120 --> 00:37:49.200
in the Superior Court on Guzman,

769
00:37:49.200 --> 00:37:50.430
it looked like I had two heads.

770
00:37:50.430 --> 00:37:52.590
Wait a minute, there's nothing in here

771
00:37:52.590 --> 00:37:55.620
that's saying he didn't commit the crime.

772
00:37:55.620 --> 00:37:57.690
I mean that's how the judge had originally looked

773
00:37:57.690 --> 00:37:59.550
at it, right?

774
00:37:59.550 --> 00:38:02.338
You have to look beyond sometimes

775
00:38:02.338 --> 00:38:04.413
the opinion itself, right?

776
00:38:05.610 --> 00:38:09.390
<v ->So what are we to make of the part</v>

777
00:38:09.390 --> 00:38:14.390
of 1B2 that says that the person has to have been

778
00:38:18.090 --> 00:38:21.090
granted judicial relief on grounds which tend

779
00:38:21.090 --> 00:38:23.040
to establish the innocence.

780
00:38:23.040 --> 00:38:24.570
What do we make of that part?

781
00:38:24.570 --> 00:38:25.740
Do we just take it out?

782
00:38:25.740 --> 00:38:28.500
<v ->No grounds that tend to establish innocence</v>

783
00:38:28.500 --> 00:38:31.920
in the opinion itself, he didn't commit this crime.

784
00:38:31.920 --> 00:38:34.710
<v ->Innocence of the crime he's convicted of.</v>

785
00:38:34.710 --> 00:38:35.543
<v ->Excuse me?</v>

786
00:38:35.543 --> 00:38:37.260
<v ->We're reading it to be innocence of the crime</v>

787
00:38:37.260 --> 00:38:39.120
he was convicted of.

788
00:38:39.120 --> 00:38:40.170
<v ->He was...</v>

789
00:38:40.170 --> 00:38:43.410
There is no reason for any

790
00:38:43.410 --> 00:38:45.990
appellate lawyer or appellate decision

791
00:38:45.990 --> 00:38:48.591
to address acquitted conduct.

792
00:38:48.591 --> 00:38:52.350
It wasn't advocated in any way.

793
00:38:52.350 --> 00:38:54.360
I mean it's so unfair.

794
00:38:54.360 --> 00:38:57.030
First of all, you don't allow the fact finder

795
00:38:57.030 --> 00:38:58.950
to make the determination

796
00:38:58.950 --> 00:39:03.900
and then you don't have any argument with regard

797
00:39:03.900 --> 00:39:08.310
to that particular appellate court finding of fact.

798
00:39:08.310 --> 00:39:10.290
<v ->So grounds to establish, that tend</v>

799
00:39:10.290 --> 00:39:12.903
to establish the innocence of the individual.

800
00:39:13.830 --> 00:39:15.053
<v Rappaport>Conviction,</v>

801
00:39:16.350 --> 00:39:18.450
<v ->That reads out language in the statute.</v>

802
00:39:18.450 --> 00:39:20.183
<v ->It does, that's the problem.</v>

803
00:39:20.183 --> 00:39:21.240
<v ->I would say that the language in the statute</v>

804
00:39:21.240 --> 00:39:26.240
then all goes back to what you have to establish at trial,

805
00:39:26.730 --> 00:39:29.220
that you didn't do this, this or this,

806
00:39:29.220 --> 00:39:31.290
or you have to prove that you're innocent

807
00:39:31.290 --> 00:39:33.750
by showing you didn't commit this crime, this crime,

808
00:39:33.750 --> 00:39:34.950
this crime or any crime.

809
00:39:34.950 --> 00:39:37.050
<v ->Don't you win by with less?</v>

810
00:39:37.050 --> 00:39:40.470
You, don't you win if he was acquitted

811
00:39:40.470 --> 00:39:44.100
on the charges they charged him on

812
00:39:44.100 --> 00:39:48.780
and the null process itself, it's ambiguous,

813
00:39:48.780 --> 00:39:51.610
but, and there's no fact finding

814
00:39:52.920 --> 00:39:55.203
that supports conviction on the charge,

815
00:39:56.257 --> 00:39:58.650
he was not, that he was charged with,

816
00:39:58.650 --> 00:40:00.150
the crime he was charged with,

817
00:40:01.123 --> 00:40:02.430
but not, that wasn't prosecuted.

818
00:40:02.430 --> 00:40:04.860
That, you've got enough, the gist of the opinion,

819
00:40:04.860 --> 00:40:07.830
the substance of the opinion tends to establish...

820
00:40:07.830 --> 00:40:09.570
<v ->I would submit that that's true.</v>

821
00:40:09.570 --> 00:40:11.160
<v ->That's as far as we have to go.</v>

822
00:40:11.160 --> 00:40:12.540
We don't have to,

823
00:40:12.540 --> 00:40:15.990
'cause your other reading presents all kinds of problems.

824
00:40:15.990 --> 00:40:17.550
You're acquitted on various counts

825
00:40:17.550 --> 00:40:19.832
and you're convicted on other counts.

826
00:40:19.832 --> 00:40:24.180
Does that mean you were wrongfully convicted on the...

827
00:40:24.180 --> 00:40:25.650
I mean you're innocent of the,

828
00:40:25.650 --> 00:40:27.043
I don't know.

829
00:40:27.043 --> 00:40:28.440
That just seems not what the legislature had in mind.

830
00:40:28.440 --> 00:40:33.120
<v ->I know that when I do an appeal in a criminal case,</v>

831
00:40:33.120 --> 00:40:37.710
I look at certain issues, I raise those issues.

832
00:40:37.710 --> 00:40:40.110
The Commonwealth deals with those issues.

833
00:40:40.110 --> 00:40:42.510
The court then deals with those issues.

834
00:40:42.510 --> 00:40:46.620
Unless it's a 33-E case, they're not going beyond those,

835
00:40:46.620 --> 00:40:48.213
those particular issues.

836
00:40:49.380 --> 00:40:50.964
Nor should they.

837
00:40:50.964 --> 00:40:53.597
And that's the dissent in Cruz-2

838
00:40:53.597 --> 00:40:56.550
is basically where's the court's jurisdiction

839
00:40:56.550 --> 00:40:58.650
to even get into this.

840
00:40:58.650 --> 00:41:00.870
It's not before them.

841
00:41:00.870 --> 00:41:03.120
And for them to,

842
00:41:03.120 --> 00:41:06.180
and frankly I don't even know that it's that clear

843
00:41:06.180 --> 00:41:08.400
what the court's saying.

844
00:41:08.400 --> 00:41:11.130
I think what the court is pointing out, you know,

845
00:41:11.130 --> 00:41:13.770
the Commonwealth could have prosecuted this case,

846
00:41:13.770 --> 00:41:17.850
but they chose not to get into whether

847
00:41:17.850 --> 00:41:19.650
or not it was consensual or not.

848
00:41:19.650 --> 00:41:21.400
It was the Commonwealth's decision.

849
00:41:22.839 --> 00:41:24.630
So where is,

850
00:41:24.630 --> 00:41:28.260
why is the appellate court even opining about something

851
00:41:28.260 --> 00:41:29.310
that's not before it?

852
00:41:29.310 --> 00:41:30.990
I just don't understand.

853
00:41:30.990 --> 00:41:32.880
<v ->Just going back to this.</v>

854
00:41:32.880 --> 00:41:36.180
So grounds which tend to establish the innocence

855
00:41:36.180 --> 00:41:40.650
of the individual to you means anything that's absence

856
00:41:40.650 --> 00:41:43.380
of evidence, there's no evidence.

857
00:41:43.380 --> 00:41:48.210
So that tends to establish the innocence of the individual?

858
00:41:48.210 --> 00:41:52.020
<v ->Absence of evidence can tend to establish</v>

859
00:41:52.020 --> 00:41:53.820
the innocence of an individual.

860
00:41:53.820 --> 00:41:55.560
Yes, absence of evidence.

861
00:41:55.560 --> 00:41:57.870
<v ->Right, the absence of anything.</v>

862
00:41:57.870 --> 00:42:00.000
So then that tends to prove the innocence.

863
00:42:00.000 --> 00:42:02.418
<v ->Well, I submit that both</v>

864
00:42:02.418 --> 00:42:07.418
the opinion and the concurrence say that,

865
00:42:09.600 --> 00:42:11.670
but there was this absence of evidence.

866
00:42:11.670 --> 00:42:14.220
So we really can't say whether

867
00:42:14.220 --> 00:42:17.070
or not he committed an assault and battery

868
00:42:17.070 --> 00:42:19.203
because the evidence isn't there.