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<v ->SJC-13528, Commonwealth versus Markeese Mitchell.</v>

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SJC-13529, Commonwealth versus Pedro Ortiz.

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SJC-13530, Commonwealth versus Terrance Pabon.

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<v ->Okay, Attorney Neaves.</v>

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<v ->Good morning, Cathryn Neaves,</v>

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representing Defendant Appellant Markeese Mitchell.

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With me at Council table are Richard Klibaner,

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counsel for Pedro Ortiz,

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and Richard Goldman, counsel for Terrance Pabon.

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I will be presenting argument on behalf

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of all three defendants appellants this morning.

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If you ask me a question,

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and I fully understand the question,

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and I have a clear memory

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on the subject matter of the question,

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and I know my answer is "Yes," but I say, "No."

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<v Justice Gaziano>We've gotten conditional answers</v>

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from lawyers before, though. (chuckling)

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<v ->I'm sorry.</v>

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<v Justice Gaziano>We've gotten conditional answers</v>

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from lawyers before.

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(Attorney Neaves laughing)

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<v ->Right, answer's not an honest answer, right?</v>

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I know the answer is false.

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I know the answer is "Yes," but I say, "No,"

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I know the answer is false.

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Or in the parlance of the trial judge in this case,

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my answer is "knowingly inaccurate."

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And in the context of this case,

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and in my hypothetical,

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honest and knowingly inaccurate are synonymous.

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<v ->Can I ask you about the standard of review?</v>

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Because we're looking at abuse of discretion, correct?

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And clearly erroneous on the judge's factual findings

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regarding the juror.

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<v ->Yes, and I have no quarrel</v>

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with the judge's factual finding.

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She found that the juror's answer was knowingly inaccurate.

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That means the juror wasn't mistaken

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like the juror in Amirault.

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She did not have a failure of memory

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like the juror in Amirault,.

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She knew, and to quote the judge,

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"The answer was inaccurate."

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And the juror knew it was inaccurate

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in that the juror knew Karl had been convicted of crimes

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and was incarcerated.

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That's at Defendant's Brief at 59.

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<v ->What about the conditional part</v>

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that the judge glossed onto it?

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<v ->At the end, I think that's not a factual finding.</v>

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That's a faulty application

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of this court's constitutional principle in Amirault.

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Whether the juror was aware the answer was false,

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which is the first prong of the two-prong standard,

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which is derived from McDonough as well.

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You know, the inaccuracy was not dishonest, however,

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in that it did not arise from any motive

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to mislead or conceal,

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but was based on the juror's independent evaluation

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of relevance.

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So the factual finding is the juror's answer was inaccurate

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and she knew it was inaccurate.

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That's her factual finding in this court's words.

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She was aware her answer was false.

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That's the question

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of whether the answer was honest in Amirault.

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And I think that's the only way

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that you can get to an answer like this, is the juror aware,

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when she gives the answer, that it's false?

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So the independent evaluation of relevance

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goes to bias, right?

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And it's not bias.

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Bias doesn't necessarily have to be toward these defendants,

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although there are troubling connections

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that were developed post-conviction.

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But bias is a potential juror

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who will favor her own sense

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of what she thinks she should do or disclose

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or not disclose

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and what the court tells her she needs to do.

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This is a juror who answered, "No," to the question

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whether she had a family member

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who was charged with a crime, convicted of a crime,

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despite the fact that she knew her half-brother

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was incarcerated at the time for gun charges out of Boston.

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She failed to correct her answer on voir dire

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after the trial judge very carefully said,

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"Look, a lot of times people don't fill this out completely.

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We really need you.

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You know, and so maybe your questionnaire isn't complete?

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But we really need to know,

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even if you think it's irrelevant,

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please tell us at sidebar.

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We need to know."

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She came to sidebar, she said nothing.

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<v ->[Justice Wendlandt] What do we do with the fact</v>

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that the judge relied on the fact

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that this juror had also denied her own involvement

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with criminal convictions?

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<v ->Well, I think what the trial judge said is that yes,</v>

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she also exercised her own independent evaluation

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of relevance as to driving without insurance.

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She didn't disclose that as well.

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<v ->[Justice Wendlandt] So she was consistent</v>

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in her independence.

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<v ->Consistent in choosing what she was going</v>

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to tell the court

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based on what she decided she'd tell the court.

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<v ->Right, in that particular instance,</v>

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the judge decided that it, she wouldn't be excused for cause

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after explanation, isn't that right?

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<v ->No, the parties said no problem because, oh, she-</v>

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<v ->[Justice Wendlandt] So the parties also agreeing?</v>

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<v ->The parties said, with respect to that,</v>

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okay, you know, she said, "Oh, I, you know,

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it was just a driving without insurance.

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I didn't think it was a big deal."

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The parties in that context said, "We'll let it go."

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<v ->But that's relatively common.</v>

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<v ->Yeah, I mean that's not, you know, I mean it's not,</v>

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my brother is the leader of the Lucerne Street Doggz

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and he's incarcerated for gun charges

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and it's, you know, that's significant.

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And in fact, the trial judge in this case

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highlighted that question

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<v Justice Budd>And the parties had a chance to evaluate</v>

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whether or not they wanted to let her go based on this?

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<v ->Well, just based on that.</v>
<v ->Right.</v>

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No, that's what I'm saying.
<v ->Just based on that.</v>

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Yeah, I mean, and I think certainly

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I'm sure the thinking was it was a minor issue.

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She's from the community, you know, you don't know anymore.

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You say, "Oh, I'll take that juror."

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<v Justice Gaziano>Can you help me?</v>

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How do we evaluate whether or not

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this would've been a challenge for cause?

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It seems very speculative.

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<v ->I don't think it is.</v>

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And I think, I think, you know, what the trial judge,

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and I think this is also something

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that the trial judge erred

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in applying the constitutional principle

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on the second prong,

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which is once you determine

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that a juror has failed

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to answer honestly a material question,

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you look at whether there would've been a challenge

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for cause.

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And, you know, you look at, you know,

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the judge, an objective judge,

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looks at the dishonesty and the reason for the dishonesty

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to decide whether the juror was capable of, you know,

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being an impartial juror.

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In this situation, however-

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<v Justice Kafker>She disqualified,</v>

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the trial judge disqualified another juror, right?

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For the same mistake, right?

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<v Attorney Neaves>Absolutely.</v>

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<v ->And describe the other juror for me, just remind me.</v>

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<v ->He had juvenile adjudications that were sealed</v>

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and he did not disclose those on his juror questionnaire.

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<v Justice Kafker>And she disqualified him for cause, what?</v>

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<v ->He was, it was discovered</v>

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when the Commonwealth ran his quarry and found them,

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and they brought him in and he said,

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"I thought they were sealed.

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I didn't read the form carefully.

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I didn't realize."

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I mean, he sort of did the same kind of thing.

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There were sealed,

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I didn't think I needed to tell the court, right?

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The same sort of evaluation.

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What's the scale we use when someone,

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say we get past the first Amirault step

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where someone is dishonest?

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<v Attorney Neaves>Yes.</v>

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<v ->And then we go on to whether</v>

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or not this would be appropriate basis for cause.

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So with the juror that Justice Kafker mentioned,

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the person misrepresented his own criminal history,

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and the judge said, "No, we can't have that on the jury."

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Here we have this case.

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But what would be an example of a case

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where a juror is dishonest,

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but there there does not lie a challenge for cause.

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Can you think of one?

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<v ->I mean I, you know, I don't,</v>

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I can't think of one right now off the top of my head.

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I'm sure there is such a thing.

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I mean, it's not just the, it's not just the-

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<v ->Would it be similar to the first incident</v>

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that happened with the juror

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where the juror says, you know, "I got a coif,

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I thought that case was dismissed."

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<v ->Right, right, "I didn't realize."</v>

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Yeah, I think, you know, it's not honest

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because you know you have that, right?

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So, and you should have disclosed it

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because honest means free from deceit or any untruthfulness.

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But in the context of can this juror be impartial?

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Right?

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And getting back to your honor's question,

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I think that you have to look necessarily,

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when you're in this context, post-conviction,

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when you're looking at a motion for a new trial,

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that's the only time this came to light

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was because her brother taunted Mr. Ortiz saying,

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"You know, that's why my sister was on your jury."

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So it goes in for a new trial, the juror gets brought in,

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and the court learns a lot of things.

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You can't put, you know, and the trial judge said,

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"Well, if I'd, you know,

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if she disclosed that her brother was in jail,

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we wouldn't have learned much more."

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You can't pretend.

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You're trying, you know,

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the defendants here were entitled to an impartial jury.

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If you've got a juror, if you find out you've got a juror,

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a juror who sat on that jury who was not impartial,

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and you don't find out till afterward, it's still an error.

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<v ->So you have to look at what's developed.</v>

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<v ->I guess the judge was saying is that, at the time,</v>

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it would've been really difficult to make that connection

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between the Lucerne Street Doggz

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and this juror that comes later.

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So at the moment it would have been,

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I have experience with the law,

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that being my brother is in jail.

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<v Attorney Neaves>But I think that-</v>

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<v ->Which would usually tend towards</v>

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being against the Commonwealth, ironically.

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<v ->Right, absolutely, that's true.</v>

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But I think that, in that context,

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when you are the trial judge post-conviction,

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and you've got all this information now,

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you can't pretend that it doesn't exist

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and that the person didn't sit on the jury,

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and that the person didn't convict these people.

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<v ->But I think, I think our, what we're supposed to do</v>

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is decide whether there would've been a basis

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for for cause challenge.

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So could you talk through for us exactly

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how we should decide that here?

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And particularly, you know,

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obviously the Commonwealth is saying

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there was so little there that, you know, nothing further,

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and that's what the judge found.

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There wouldn't have been a for cause challenge.

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Do we imagine whether someone would've asked,

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"What is your brother's name?"

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Do we speculate that someone would've run his quarry?

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Could you talk us through

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how we do the for cause analysis here?

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<v ->Well, I think, thank you, your Honor, that's correct.</v>

256
00:10:58.980 --> 00:11:03.750
If she disclosed, my brother was convicted,

257
00:11:03.750 --> 00:11:07.080
is incarcerated right now, he's convicted.

258
00:11:07.080 --> 00:11:08.610
I mean, I've read enough transcripts.

259
00:11:08.610 --> 00:11:10.957
The next question is, "What county is it?"

260
00:11:10.957 --> 00:11:12.517
"It's Suffolk County."

261
00:11:12.517 --> 00:11:14.940
"Okay, what's your brother's name?"

262
00:11:14.940 --> 00:11:16.800
You know, "What were the charges?

263
00:11:16.800 --> 00:11:18.300
What was going on?"

264
00:11:18.300 --> 00:11:22.800
And in this case, just that alone,

265
00:11:22.800 --> 00:11:24.037
would get you dismissed for cause,

266
00:11:24.037 --> 00:11:26.700
you know, can you be fair and impartial?

267
00:11:26.700 --> 00:11:27.533
Yeah.

268
00:11:27.533 --> 00:11:28.500
But usually on this.

269
00:11:28.500 --> 00:11:30.030
<v ->This is a little bit weird,</v>

270
00:11:30.030 --> 00:11:31.860
because usually that scenario,

271
00:11:31.860 --> 00:11:32.880
it would be the government

272
00:11:32.880 --> 00:11:35.490
asking for the person to be excused.

273
00:11:35.490 --> 00:11:39.360
<v ->Exactly, and it likely would've happened,</v>

274
00:11:39.360 --> 00:11:40.980
but we're in this posture.

275
00:11:40.980 --> 00:11:44.610
And so as far as the for cause challenge,

276
00:11:44.610 --> 00:11:47.580
I mean even leaving aside what could have been learned

277
00:11:47.580 --> 00:11:50.580
and what was learned about this juror's connections

278
00:11:50.580 --> 00:11:54.930
to this case, however, tangentially or peripherally,

279
00:11:54.930 --> 00:11:59.670
the fact that she chose to withhold this information,

280
00:11:59.670 --> 00:12:01.233
material information,

281
00:12:02.310 --> 00:12:04.740
is itself a powerful indicator of bias,

282
00:12:04.740 --> 00:12:06.990
which the First Circuit's just recently said

283
00:12:06.990 --> 00:12:08.640
in the Tsarnaev case.

284
00:12:08.640 --> 00:12:13.230
And the cite for that is 96 F.4th 41.

285
00:12:13.230 --> 00:12:15.090
That alone can be enough.

286
00:12:15.090 --> 00:12:18.423
And as Justice Blackmon concurred in McDonough,

287
00:12:19.980 --> 00:12:23.160
that in most cases the honesty or dishonesty

288
00:12:23.160 --> 00:12:26.130
of a juror's response is the best initial indicator

289
00:12:26.130 --> 00:12:29.130
of whether the juror was in fact impartial.

290
00:12:29.130 --> 00:12:30.876
So you don't learn these things till after.

291
00:12:30.876 --> 00:12:35.876
<v ->But we here are a bit hemmed in by, in our speculation,</v>

292
00:12:36.150 --> 00:12:37.766
by the factual findings below,

293
00:12:37.766 --> 00:12:42.766
which were to credit the juror that she did not know about,

294
00:12:43.260 --> 00:12:47.130
as she put it, the lifestyle choices of her half-brother.

295
00:12:47.130 --> 00:12:50.029
And, you know, she did not know,

296
00:12:50.029 --> 00:12:52.170
and we have no, you know, the judge found

297
00:12:52.170 --> 00:12:54.900
that she believed the juror that she did not know.

298
00:12:54.900 --> 00:12:57.750
So she, on the record before us,

299
00:12:57.750 --> 00:13:00.990
it's not that she was specifically hiding

300
00:13:00.990 --> 00:13:05.460
her brother's specific connection to these groups.

301
00:13:05.460 --> 00:13:10.460
It's just that she chose not to divulge knowingly, you know,

302
00:13:13.404 --> 00:13:16.470
as the judge found, gave an inaccurate answer.

303
00:13:16.470 --> 00:13:21.240
So what is your best case for the proposition

304
00:13:21.240 --> 00:13:25.750
that simply knowingly not divulging

305
00:13:26.730 --> 00:13:30.390
or knowingly giving a wrong answer is enough

306
00:13:30.390 --> 00:13:33.210
because it shows a disinclination

307
00:13:33.210 --> 00:13:35.490
to follow the judge's instructions.

308
00:13:35.490 --> 00:13:40.230
<v ->I would say that any of the cases out of the First Circuit</v>

309
00:13:40.230 --> 00:13:41.820
that talk about that,

310
00:13:41.820 --> 00:13:44.400
because that, again, going to my point,

311
00:13:44.400 --> 00:13:49.260
that a juror who consistently will use her own notion

312
00:13:49.260 --> 00:13:51.540
of what she's going to tell the court

313
00:13:51.540 --> 00:13:53.820
and ignore the court's instruction

314
00:13:53.820 --> 00:13:56.040
and do what she wants to do.

315
00:13:56.040 --> 00:13:57.270
<v ->Well in the Samson case,</v>

316
00:13:57.270 --> 00:13:58.920
which is I assume what you're referring to,

317
00:13:58.920 --> 00:14:01.410
there was a lot more dishonesty.

318
00:14:01.410 --> 00:14:03.916
That juror had answered, had hidden,

319
00:14:03.916 --> 00:14:05.400
I forget how many questions.

320
00:14:05.400 --> 00:14:07.620
It was like seven or 10 questions she had

321
00:14:07.620 --> 00:14:08.640
lied in response to.

322
00:14:08.640 --> 00:14:10.020
And then the, the First Circuit

323
00:14:10.020 --> 00:14:11.490
went through a bunch of different ways

324
00:14:11.490 --> 00:14:14.550
in which those dishonest answers

325
00:14:14.550 --> 00:14:18.450
really kind of aligned with the case in some ways.

326
00:14:18.450 --> 00:14:19.283
<v Attorney Neaves>Yes.</v>

327
00:14:19.283 --> 00:14:22.380
<v ->So what is your best sort of similar analysis here?</v>

328
00:14:22.380 --> 00:14:26.580
<v ->Well, I mean, along with the fact of the lie</v>

329
00:14:26.580 --> 00:14:28.980
about something highly significant,

330
00:14:28.980 --> 00:14:33.980
at the hearing, she testified that she didn't, you know,

331
00:14:35.310 --> 00:14:36.390
she knew about her brother,

332
00:14:36.390 --> 00:14:38.970
but he didn't bring that sort of nonsense to me

333
00:14:38.970 --> 00:14:40.290
and her daughter's father.

334
00:14:40.290 --> 00:14:43.320
And he didn't bring that kind of nonsense to me.

335
00:14:43.320 --> 00:14:45.438
And you can't ignore, you know, she knew there was nonsense.

336
00:14:45.438 --> 00:14:47.733
<v ->[Justice Wendlandt] Was that untrue?</v>

337
00:14:49.260 --> 00:14:50.130
<v ->Well that's what she said.</v>

338
00:14:50.130 --> 00:14:50.963
She testified to that.

339
00:14:50.963 --> 00:14:55.140
<v ->Right, right, and weren't they estranged at the time?</v>

340
00:14:55.140 --> 00:14:57.420
<v ->I'm sorry, I don't understand the question.</v>

341
00:14:57.420 --> 00:15:00.909
<v ->Well, so in Samson,</v>

342
00:15:00.909 --> 00:15:05.909
the juror continued to lie even post-trial

343
00:15:07.440 --> 00:15:09.870
when she was brought in for questioning.

344
00:15:09.870 --> 00:15:12.300
Are you suggesting that that's what's happening here?

345
00:15:12.300 --> 00:15:14.630
<v ->Certainly did continue to lie.</v>

346
00:15:14.630 --> 00:15:16.410
She testified at the hearing

347
00:15:16.410 --> 00:15:18.480
that she didn't learn that her brother was in a gang

348
00:15:18.480 --> 00:15:20.700
until after he got out after the trial,

349
00:15:20.700 --> 00:15:23.010
and she read the article and it said he was in a gang.

350
00:15:23.010 --> 00:15:24.120
And she said

351
00:15:24.120 --> 00:15:26.820
<v ->So the fact that she learned from an article</v>

352
00:15:26.820 --> 00:15:28.233
that he was in a gang was something

353
00:15:28.233 --> 00:15:30.390
that she should have disclosed?

354
00:15:30.390 --> 00:15:33.350
<v ->She talked about it with his mother and her sister.</v>

355
00:15:33.350 --> 00:15:34.550
<v ->[Justice Wendlandt] The gang affiliation?</v>

356
00:15:34.550 --> 00:15:35.670
<v ->About the article,</v>

357
00:15:35.670 --> 00:15:37.470
what the charges were about and what it was about.

358
00:15:37.470 --> 00:15:39.355
<v ->If we credit the judge</v>

359
00:15:39.355 --> 00:15:41.520
and find it's not clearly erroneous,

360
00:15:41.520 --> 00:15:46.050
at bottom, we have a misrepresentation about the custody,

361
00:15:46.050 --> 00:15:48.240
about the brother being in custody.

362
00:15:48.240 --> 00:15:50.580
And as I think it's called, that nonsense,

363
00:15:50.580 --> 00:15:54.450
the gang stuff is out of the equation, correct?

364
00:15:54.450 --> 00:15:56.370
If we credit the judge?

365
00:15:56.370 --> 00:15:58.050
<v Attorney Neaves>If you credit the judge</v>

366
00:15:58.050 --> 00:15:58.883
as far as, right.

367
00:15:58.883 --> 00:16:00.480
<v ->If we find no abuse of discretion</v>

368
00:16:00.480 --> 00:16:02.580
and we follow the judge's findings-

369
00:16:02.580 --> 00:16:04.050
<v Attorney Neaves>Right.</v>

370
00:16:04.050 --> 00:16:05.580
<v ->At the best case scenario for you,</v>

371
00:16:05.580 --> 00:16:08.790
if we do that is a misrepresentation

372
00:16:08.790 --> 00:16:12.390
that nobody in my family's been involved in the law

373
00:16:12.390 --> 00:16:16.803
up to including the brother's incarceration, correct?

374
00:16:17.910 --> 00:16:19.050
<v ->Yeah, and I would say that</v>

375
00:16:19.050 --> 00:16:21.150
that's a clearly erroneous decision

376
00:16:21.150 --> 00:16:23.100
based on what was developed.

377
00:16:23.100 --> 00:16:24.027
So, and I don't think that.

378
00:16:24.027 --> 00:16:26.460
<v ->But do you depend, does your analysis,</v>

379
00:16:26.460 --> 00:16:29.310
as far as prejudice, depend upon that finding?

380
00:16:29.310 --> 00:16:32.110
Or is the fact of incarceration enough

381
00:16:33.390 --> 00:16:35.589
for you to get the for cause challenge?

382
00:16:35.589 --> 00:16:37.590
<v ->Yes, absolutely.</v>

383
00:16:37.590 --> 00:16:41.970
But I also think the court can't ignore what happened here,

384
00:16:41.970 --> 00:16:46.970
that these defendants and this juror had connection

385
00:16:48.180 --> 00:16:50.490
that was undisclosed and was never learned about.

386
00:16:50.490 --> 00:16:54.150
And what triggered this whole case

387
00:16:54.150 --> 00:16:58.477
was the fact that her brother taunted Mr. Ortiz with,

388
00:16:58.477 --> 00:17:00.660
"That's why my sister convicted you."

389
00:17:00.660 --> 00:17:01.920
That's how this started, nobody-

390
00:17:01.920 --> 00:17:03.960
<v ->Except for we're trying to figure out</v>

391
00:17:03.960 --> 00:17:05.730
what the next, you know, with the next case,

392
00:17:05.730 --> 00:17:07.560
where you don't have all of that,

393
00:17:07.560 --> 00:17:09.210
those things that came out in the end.

394
00:17:09.210 --> 00:17:12.930
<v ->I think this court has to just reaffirm Amirault,</v>

395
00:17:12.930 --> 00:17:15.060
because it is the clearest explanation

396
00:17:15.060 --> 00:17:17.070
of what you do in that context.

397
00:17:17.070 --> 00:17:20.790
But I think the court also has to say that a juror

398
00:17:20.790 --> 00:17:21.867
who sat on that jury,

399
00:17:21.867 --> 00:17:24.900
and if that's discovered post-conviction,

400
00:17:24.900 --> 00:17:26.670
you can't pretend that you don't know

401
00:17:26.670 --> 00:17:29.520
what you learned post-conviction on investigation.

402
00:17:29.520 --> 00:17:31.260
<v ->Okay.</v>
<v ->I think you just can't.</v>

403
00:17:31.260 --> 00:17:33.010
All right, thank you.
<v ->Thank you.</v>

404
00:17:36.450 --> 00:17:37.473
<v ->Attorney Hartley.</v>

405
00:17:41.220 --> 00:17:42.570
<v ->Good morning, and may it please the Court,</v>

406
00:17:42.570 --> 00:17:43.830
Brooke Hartley for the Commonwealth.

407
00:17:43.830 --> 00:17:45.120
And I'd just like to note for the court

408
00:17:45.120 --> 00:17:46.500
that members of the victim's family

409
00:17:46.500 --> 00:17:48.090
may either be present in the courtroom

410
00:17:48.090 --> 00:17:50.550
or watching on the live stream.

411
00:17:50.550 --> 00:17:52.110
This court should affirm the orders

412
00:17:52.110 --> 00:17:54.501
denying the defendant's motions for new trial

413
00:17:54.501 --> 00:17:56.760
and for disqualification of the trial judge,

414
00:17:56.760 --> 00:17:59.793
turning first to the juror issue.

415
00:18:01.050 --> 00:18:03.330
The judge properly denied the defendant's motion

416
00:18:03.330 --> 00:18:04.380
for new trial

417
00:18:04.380 --> 00:18:08.610
where Juror 15 answered the question inaccurately,

418
00:18:08.610 --> 00:18:10.500
but without intent to deceive.

419
00:18:10.500 --> 00:18:12.240
The defendant has not met his burden.

420
00:18:12.240 --> 00:18:14.670
Under the first prong of Amirault,

421
00:18:14.670 --> 00:18:15.930
the defendant must show

422
00:18:15.930 --> 00:18:18.150
that the juror failed to answer the question honestly.

423
00:18:18.150 --> 00:18:20.580
And I think it's extremely significant here,

424
00:18:20.580 --> 00:18:22.170
that that is a question of fact

425
00:18:22.170 --> 00:18:23.430
that rests with the trial judge,

426
00:18:23.430 --> 00:18:26.460
only to be disturbed if clearly erroneous.

427
00:18:26.460 --> 00:18:27.753
And there's a reason for this.

428
00:18:27.753 --> 00:18:31.170
That's because a hearing permits the trial judge

429
00:18:31.170 --> 00:18:33.387
to observe the juror's demeanor

430
00:18:33.387 --> 00:18:36.150
and to evaluate the juror's answers.

431
00:18:36.150 --> 00:18:37.320
<v ->What do we do with this?</v>

432
00:18:37.320 --> 00:18:42.320
The relevance filter that the juror put into the answer?

433
00:18:42.390 --> 00:18:45.150
<v ->So I think the relevance filter</v>

434
00:18:45.150 --> 00:18:48.240
is directly related to the juror's observation,

435
00:18:48.240 --> 00:18:50.100
the, excuse me, the judge's observations

436
00:18:50.100 --> 00:18:53.160
of this individual and the motivation for lying.

437
00:18:53.160 --> 00:18:57.990
So the judge had the opportunity to lay eyes on this person

438
00:18:57.990 --> 00:19:01.230
and determine whether or not the person

439
00:19:01.230 --> 00:19:02.790
was intending to deceive the court.

440
00:19:02.790 --> 00:19:04.140
So there's no question

441
00:19:04.140 --> 00:19:06.870
that the juror had this information in her head.

442
00:19:06.870 --> 00:19:09.630
She knew that she's related to Karl Baxter,

443
00:19:09.630 --> 00:19:11.550
but she didn't know at the time

444
00:19:11.550 --> 00:19:14.685
that that was responsive to the question.

445
00:19:14.685 --> 00:19:18.455
And I think, if you look at the testimony at the hearing-

446
00:19:18.455 --> 00:19:20.160
<v ->Didn't she know it was responsive,</v>

447
00:19:20.160 --> 00:19:22.260
but she thought it didn't matter.

448
00:19:22.260 --> 00:19:24.150
<v ->And I think that's kind of the same thing.</v>

449
00:19:24.150 --> 00:19:28.620
So she made this relevancy determination on her own,

450
00:19:28.620 --> 00:19:30.060
which was wrong,

451
00:19:30.060 --> 00:19:32.370
that's not what we want jurors to do.

452
00:19:32.370 --> 00:19:34.979
But the remedy for that isn't necessarily a new trial.

453
00:19:34.979 --> 00:19:38.135
The remedy is to bring that person in for a hearing

454
00:19:38.135 --> 00:19:40.650
where the defendant makes a showing,

455
00:19:40.650 --> 00:19:41.880
to bring that person in for a hearing,

456
00:19:41.880 --> 00:19:43.830
and for the judge to lay eyes on that person

457
00:19:43.830 --> 00:19:45.930
and to determine what the motives

458
00:19:45.930 --> 00:19:47.490
for that inaccuracy were.

459
00:19:47.490 --> 00:19:49.500
And that's how you get to honest.

460
00:19:49.500 --> 00:19:51.990
And so I think if you look at the transcript.

461
00:19:51.990 --> 00:19:54.070
<v ->But is the judge adding another element to it?</v>

462
00:19:54.070 --> 00:19:59.070
I just, I mean, the juror knows it's inaccurate,

463
00:19:59.400 --> 00:20:02.340
but then the judge is adding this,

464
00:20:02.340 --> 00:20:05.160
okay, the juror's doing their own kind of determination

465
00:20:05.160 --> 00:20:07.410
of what the legal requirement is.

466
00:20:07.410 --> 00:20:09.570
Isn't that new?

467
00:20:09.570 --> 00:20:11.490
And isn't that a question of law?

468
00:20:11.490 --> 00:20:13.560
Not a question of fact for us?

469
00:20:13.560 --> 00:20:14.670
<v ->I don't think so, your Honor.</v>

470
00:20:14.670 --> 00:20:19.380
And I think if I go to the, really the lines at issue

471
00:20:19.380 --> 00:20:21.810
from the transcript here, it illustrates why.

472
00:20:21.810 --> 00:20:23.437
So the judge asked the juror,

473
00:20:23.437 --> 00:20:25.500
"Can you just tell us with respect to Karl,

474
00:20:25.500 --> 00:20:27.450
why did you check no to that box?"

475
00:20:27.450 --> 00:20:29.467
And she answers reasonably,

476
00:20:29.467 --> 00:20:31.320
"Because Karl didn't live in my household."

477
00:20:31.320 --> 00:20:32.940
Then the judge presses further

478
00:20:32.940 --> 00:20:36.720
with what's really at issue here is the or family part.

479
00:20:36.720 --> 00:20:37.777
And the judge says,

480
00:20:37.777 --> 00:20:40.140
"Did you think of him as a member of your family?"

481
00:20:40.140 --> 00:20:42.176
And she says, "Yes, but I didn't think that,

482
00:20:42.176 --> 00:20:44.206
I didn't think he had any relation to this trial.

483
00:20:44.206 --> 00:20:45.780
So why would I say, 'Yes'?"

484
00:20:45.780 --> 00:20:48.090
Now when I read this transcript,

485
00:20:48.090 --> 00:20:50.970
I think, you know, a lot is lost when you're-

486
00:20:50.970 --> 00:20:53.820
<v ->That's a big, that's a big no-no.</v>

487
00:20:53.820 --> 00:20:55.410
What she does there, right, you know?

488
00:20:55.410 --> 00:20:56.243
<v ->Of course.</v>

489
00:20:56.243 --> 00:20:58.200
And we don't encourage jurors to do that.

490
00:20:58.200 --> 00:21:00.540
But again, I think the remedy is the hearing.

491
00:21:00.540 --> 00:21:03.545
But what I wanna point out here is that the words

492
00:21:03.545 --> 00:21:05.400
on the page of the transcript,

493
00:21:05.400 --> 00:21:07.350
there's a lot lost that we don't get,

494
00:21:07.350 --> 00:21:08.370
that the judge did get.

495
00:21:08.370 --> 00:21:11.340
So when I read that, I unequivocally said, "Yes,"

496
00:21:11.340 --> 00:21:14.070
but we don't know what the juror's demeanor was

497
00:21:14.070 --> 00:21:15.270
when she answered that question.

498
00:21:15.270 --> 00:21:17.760
Did she say, "Yes," and then go on?

499
00:21:17.760 --> 00:21:18.780
The judge does know.

500
00:21:18.780 --> 00:21:21.060
So, you know, just because she's aware

501
00:21:21.060 --> 00:21:23.576
of this biological relationship,

502
00:21:23.576 --> 00:21:27.289
that leaves out a lot of important context, I think.

503
00:21:27.289 --> 00:21:28.980
This is an individual,

504
00:21:28.980 --> 00:21:31.710
the juror only found out that this person was incarcerated

505
00:21:31.710 --> 00:21:33.930
through reading a newspaper article.

506
00:21:33.930 --> 00:21:35.130
This is her half-brother.

507
00:21:35.130 --> 00:21:37.299
<v ->[Justice Wendlandt] I thought she had confirmed it</v>

508
00:21:37.299 --> 00:21:39.510
with other family members?

509
00:21:39.510 --> 00:21:41.318
<v ->After she read the article, so she first-</v>

510
00:21:41.318 --> 00:21:43.470
<v ->[Justice Wendlandt] Right, but before she was empaneled.</v>

511
00:21:43.470 --> 00:21:44.402
<v ->That's right.</v>

512
00:21:44.402 --> 00:21:45.259
<v ->Okay.</v>
<v ->But I'm just-</v>

513
00:21:45.259 --> 00:21:46.230
<v ->So at the time of impanelment,</v>

514
00:21:46.230 --> 00:21:50.640
she knew that her half-brother was incarcerated

515
00:21:50.640 --> 00:21:53.220
and she identified him as family.

516
00:21:53.220 --> 00:21:54.930
<v ->So she identified him as family</v>

517
00:21:54.930 --> 00:21:56.940
when pressed afterwards at this hearing.

518
00:21:56.940 --> 00:21:58.255
I think my point is that.

519
00:21:58.255 --> 00:22:00.037
<v Justice Kafker>Can I add another fact?</v>

520
00:22:00.037 --> 00:22:00.870
<v ->Sure.</v>

521
00:22:00.870 --> 00:22:01.703
<v ->In the newspaper report,</v>

522
00:22:01.703 --> 00:22:05.550
whether it's accurate or not, reported it as a gang related.

523
00:22:05.550 --> 00:22:08.160
So whether she knows he's in a gang or not,

524
00:22:08.160 --> 00:22:10.170
she's aware that, you know,

525
00:22:10.170 --> 00:22:13.590
the "Boston Herald" has described him as such, right?

526
00:22:13.590 --> 00:22:14.640
<v ->Certainly, yeah.</v>

527
00:22:14.640 --> 00:22:16.500
She learned from reading that article

528
00:22:16.500 --> 00:22:18.600
that he was the leader of the Lucerne Street Doggz,

529
00:22:18.600 --> 00:22:19.740
she didn't know that before.

530
00:22:19.740 --> 00:22:22.560
She didn't gain any other further information after.

531
00:22:22.560 --> 00:22:24.510
But she was aware of that.

532
00:22:24.510 --> 00:22:26.940
And I think, my point here,

533
00:22:26.940 --> 00:22:30.960
is that her response to that question, "No,"

534
00:22:30.960 --> 00:22:33.960
doesn't necessarily, just because it's inaccurate,

535
00:22:33.960 --> 00:22:37.800
mean that she was intentionally trying to deceive the court.

536
00:22:37.800 --> 00:22:41.070
I think family means different things to different people.

537
00:22:41.070 --> 00:22:43.110
And you're going to get some varied responses here,

538
00:22:43.110 --> 00:22:44.490
which is why the judge

539
00:22:44.490 --> 00:22:46.830
gave those further instructions about relevancy,

540
00:22:46.830 --> 00:22:49.200
which she still obviously didn't heed.

541
00:22:49.200 --> 00:22:52.890
But I think that just goes to show that she,

542
00:22:52.890 --> 00:22:54.840
in her mind at the time,

543
00:22:54.840 --> 00:22:57.870
believed that this was not a responsive answer

544
00:22:57.870 --> 00:22:58.703
to the question.
<v ->I thought that-</v>

545
00:22:58.703 --> 00:22:59.536
I'm sorry, go ahead, Chief.

546
00:22:59.536 --> 00:23:00.369
<v ->I was just gonna say,</v>

547
00:23:00.369 --> 00:23:02.280
it seems like your rule is pretty broad

548
00:23:02.280 --> 00:23:06.240
and it allows jurors to determine what's relevant,

549
00:23:06.240 --> 00:23:07.740
what's not relevant,

550
00:23:07.740 --> 00:23:12.740
without needing to be honest on the questionnaire

551
00:23:13.530 --> 00:23:15.060
and during the voir dire.

552
00:23:15.060 --> 00:23:16.890
<v ->Well, I disagree with that, your Honor.</v>

553
00:23:16.890 --> 00:23:19.467
I think jurors absolutely need to be honest,

554
00:23:19.467 --> 00:23:22.743
and the remedy, you know, again,

555
00:23:22.743 --> 00:23:25.110
what I don't think we want to encourage jurors

556
00:23:25.110 --> 00:23:26.970
to use their own relevancy filters,

557
00:23:26.970 --> 00:23:30.180
but the remedy for that, it's going to happen,

558
00:23:30.180 --> 00:23:32.940
but the remedy for that is to bring the person in

559
00:23:32.940 --> 00:23:34.140
and to have a hearing.

560
00:23:34.140 --> 00:23:36.845
That's how the defendants due process rights are satisfied,

561
00:23:36.845 --> 00:23:39.960
by the judge getting to lay eyes on this person

562
00:23:39.960 --> 00:23:44.960
and determining whether that person is biased or not.

563
00:23:45.000 --> 00:23:49.710
And I think if you look at McDonough Power Equipment,

564
00:23:49.710 --> 00:23:53.700
it's analogous to this case and instructive for this court.

565
00:23:53.700 --> 00:23:56.460
That's a case, it's a civil case, of course,

566
00:23:56.460 --> 00:23:58.380
but the question at issue there was

567
00:23:58.380 --> 00:24:00.030
how many of you have yourselves

568
00:24:00.030 --> 00:24:02.040
or any members of your immediate family

569
00:24:02.040 --> 00:24:03.750
sustained a severe injury,

570
00:24:03.750 --> 00:24:05.940
not necessarily as severe as Billy's,

571
00:24:05.940 --> 00:24:07.512
that was the plaintiff in the case.

572
00:24:07.512 --> 00:24:09.180
<v ->See, the problem with that analogy,</v>

573
00:24:09.180 --> 00:24:11.610
is that that case was,

574
00:24:11.610 --> 00:24:15.960
required the juror to make a relative assessment.

575
00:24:15.960 --> 00:24:19.650
And what Justice Rehnquist, I think, says in his decision

576
00:24:19.650 --> 00:24:22.140
for the plurality of the court is that, you know,

577
00:24:22.140 --> 00:24:24.120
different people think severe injury

578
00:24:24.120 --> 00:24:25.860
is different things.

579
00:24:25.860 --> 00:24:30.120
Here, whether or not her brother was incarcerated

580
00:24:30.120 --> 00:24:32.730
is not a relative, you know,

581
00:24:32.730 --> 00:24:34.740
something that you gauge relatively.

582
00:24:34.740 --> 00:24:36.120
<v ->Well, I disagree, your Honor.</v>

583
00:24:36.120 --> 00:24:38.490
I think perhaps it's more clear when you,

584
00:24:38.490 --> 00:24:40.590
the juror is determining what the definition

585
00:24:40.590 --> 00:24:41.610
of severe injury is.

586
00:24:41.610 --> 00:24:43.350
Although the injury was quite similar

587
00:24:43.350 --> 00:24:45.330
to what happened in this case.

588
00:24:45.330 --> 00:24:47.730
But the same is true of family.

589
00:24:47.730 --> 00:24:50.460
This is an individual who had six half-brothers and sisters.

590
00:24:50.460 --> 00:24:53.100
This is a person who never grew up in the same household

591
00:24:53.100 --> 00:24:56.460
as Karl Baxter and who, as we'll find out at the hearing,

592
00:24:56.460 --> 00:25:00.390
had almost no relationship with him at the time.

593
00:25:00.390 --> 00:25:01.553
Later they developed a relationship.

594
00:25:01.553 --> 00:25:04.650
<v ->So your position is that she,</v>

595
00:25:04.650 --> 00:25:07.410
whether is that relatively,

596
00:25:07.410 --> 00:25:09.129
she didn't consider him family.

597
00:25:09.129 --> 00:25:09.962
<v ->Yes.</v>
<v ->Okay.</v>

598
00:25:09.962 --> 00:25:11.610
<v ->And I think that's what the judge found.</v>

599
00:25:11.610 --> 00:25:13.890
And I think that's why we have to be careful

600
00:25:13.890 --> 00:25:16.030
about this knowingly inaccurate.

601
00:25:16.030 --> 00:25:17.340
<v ->Sorry, can we just back up?</v>

602
00:25:17.340 --> 00:25:20.070
I thought that the judge very specifically found

603
00:25:20.070 --> 00:25:22.298
that she did consider him family.

604
00:25:22.298 --> 00:25:25.267
The juror was asked that question,

605
00:25:25.267 --> 00:25:26.640
"Did you consider him family?"

606
00:25:26.640 --> 00:25:28.890
The juror said, "Yes," and the judge credited

607
00:25:28.890 --> 00:25:32.700
that she considered him family and nevertheless,

608
00:25:32.700 --> 00:25:35.700
knowingly inaccurately answered the question.

609
00:25:35.700 --> 00:25:39.510
<v ->I think what I am trying to capture is</v>

610
00:25:39.510 --> 00:25:42.180
that she didn't think that it was responsive

611
00:25:42.180 --> 00:25:43.013
to the question at the time.

612
00:25:43.013 --> 00:25:45.330
<v ->I take your point, but even granting,</v>

613
00:25:45.330 --> 00:25:46.800
that you're, of course, right,

614
00:25:46.800 --> 00:25:49.350
that the term family can mean many things

615
00:25:49.350 --> 00:25:50.940
to different people and in that way

616
00:25:50.940 --> 00:25:55.170
it is similar to the question about severe injury,

617
00:25:55.170 --> 00:25:58.440
in this case, it seems like we have clear factual findings

618
00:25:58.440 --> 00:26:03.213
that this juror did consider her half-brother to be family,

619
00:26:04.080 --> 00:26:06.780
even though the word family could be open to interpretation.

620
00:26:06.780 --> 00:26:09.300
We have a factual finding that she did consider him family

621
00:26:09.300 --> 00:26:11.730
and that this was a knowingly inaccurate question.

622
00:26:11.730 --> 00:26:13.410
<v ->It was</v>
<v ->Answer, sorry.</v>

623
00:26:13.410 --> 00:26:14.910
<v ->It was knowingly inaccurate</v>

624
00:26:14.910 --> 00:26:17.730
in that she had this information

625
00:26:17.730 --> 00:26:19.920
somewhere in the universe of her brain.

626
00:26:19.920 --> 00:26:23.370
She was aware that she had this person was her half-brother.

627
00:26:23.370 --> 00:26:25.980
She had this biological relationship with him.

628
00:26:25.980 --> 00:26:28.800
I think the issue is whether,

629
00:26:28.800 --> 00:26:31.320
when she answered no to that question,

630
00:26:31.320 --> 00:26:33.503
whether she thought that that was responsive to

631
00:26:33.503 --> 00:26:38.220
was this person a member of your household or family?

632
00:26:38.220 --> 00:26:40.920
And I think her answer, at the hearing,

633
00:26:40.920 --> 00:26:42.630
what she first says is, "No,

634
00:26:42.630 --> 00:26:44.280
because he didn't live in my household,"

635
00:26:44.280 --> 00:26:45.720
is also very telling.

636
00:26:45.720 --> 00:26:47.760
And again, I think we, we have to,

637
00:26:47.760 --> 00:26:51.090
I don't think it's an appellate court's place

638
00:26:51.090 --> 00:26:52.830
to second guess the trial judge's findings

639
00:26:52.830 --> 00:26:55.740
where she was able to observe this person's answer.

640
00:26:55.740 --> 00:26:59.190
And again she said "Yes," but did she say, "Yes"?

641
00:26:59.190 --> 00:27:00.360
Did she say, "Yes"?

642
00:27:00.360 --> 00:27:02.190
It's difficult for us to know

643
00:27:02.190 --> 00:27:03.410
just by reading the words on the transcript.

644
00:27:03.410 --> 00:27:06.960
<v ->But I think Justice Dewar's point is that the judge found</v>

645
00:27:06.960 --> 00:27:09.410
that she thought he was family.

646
00:27:09.410 --> 00:27:10.243
<v ->[Attorney Hartley] And I think that's true.</v>

647
00:27:10.243 --> 00:27:12.367
<v ->And so it wasn't a relative thing,</v>

648
00:27:12.367 --> 00:27:15.000
you know, is he severely injured or not?

649
00:27:15.000 --> 00:27:18.150
It was really definitively yes, he was my family

650
00:27:18.150 --> 00:27:20.550
and I chose not to disclose it

651
00:27:20.550 --> 00:27:23.250
because I did not think it was relevant.

652
00:27:23.250 --> 00:27:24.487
<v ->I think that's true.</v>

653
00:27:24.487 --> 00:27:27.030
But I think if you get to,

654
00:27:27.030 --> 00:27:31.680
so the judge found that because that it was not dishonest,

655
00:27:31.680 --> 00:27:35.310
because it was not, she did not intend to deceive the court.

656
00:27:35.310 --> 00:27:36.143
And I think that

657
00:27:36.143 --> 00:27:38.043
has to be part of the definition of honest.

658
00:27:39.180 --> 00:27:44.180
<v ->Where in Amirault does it say that the juror's motive</v>

659
00:27:44.190 --> 00:27:46.290
for dishonesty comes into play?

660
00:27:46.290 --> 00:27:48.300
<v ->So that comes from McDonough</v>

661
00:27:48.300 --> 00:27:51.390
and it's, "The motives for concealing information may vary,

662
00:27:51.390 --> 00:27:54.450
but only those reasons that affect a juror's impartiality

663
00:27:54.450 --> 00:27:56.910
can truly be said to affect the fairness of the trial."

664
00:27:56.910 --> 00:27:58.830
And I think that's what's at the crux

665
00:27:58.830 --> 00:28:00.743
of this honesty determination.

666
00:28:00.743 --> 00:28:05.460
<v ->But that still short circuits the defendant's right</v>

667
00:28:06.690 --> 00:28:10.410
to move to disqualify this person for cause,

668
00:28:10.410 --> 00:28:13.020
because I mean, you keep glossing over that,

669
00:28:13.020 --> 00:28:15.390
but that's really important thing.

670
00:28:15.390 --> 00:28:17.883
So we don't just get to sit back and say,

671
00:28:19.177 --> 00:28:21.060
"Please tell me the truth,

672
00:28:21.060 --> 00:28:23.940
then, "Please, please tell me the truth."

673
00:28:23.940 --> 00:28:27.337
Because that's the second time when Judge Fabricant say,

674
00:28:27.337 --> 00:28:30.660
"Don't use your definition of relevance," right?

675
00:28:30.660 --> 00:28:33.240
She specifically tells them that.

676
00:28:33.240 --> 00:28:37.410
And even with that, she goes off and doesn't say this.

677
00:28:37.410 --> 00:28:40.170
And I guess the question that I have for you is,

678
00:28:40.170 --> 00:28:41.757
you keep saying that we then get to go

679
00:28:41.757 --> 00:28:43.530
and the trial judge gets to go in

680
00:28:43.530 --> 00:28:46.530
and say, now I'm gonna play Carnac the Magnificent

681
00:28:46.530 --> 00:28:49.080
and try to figure out whether or not this person

682
00:28:49.080 --> 00:28:50.430
was trying to lie to me.

683
00:28:50.430 --> 00:28:51.990
But the second part of that

684
00:28:51.990 --> 00:28:54.997
short circuits the defendant's ability to say,

685
00:28:54.997 --> 00:28:58.050
"I want this person disqualified.

686
00:28:58.050 --> 00:29:00.810
I want this person disqualified for cause

687
00:29:00.810 --> 00:29:03.030
because I don't want to run the risk

688
00:29:03.030 --> 00:29:04.800
that there's some snakes slithering around

689
00:29:04.800 --> 00:29:06.180
in this person's head

690
00:29:06.180 --> 00:29:09.000
that would inure to my client's detriment."

691
00:29:09.000 --> 00:29:10.920
<v ->So I think the second part of the test</v>

692
00:29:10.920 --> 00:29:13.110
is not whether the defendant

693
00:29:13.110 --> 00:29:14.760
would raise a challenge for cause.

694
00:29:14.760 --> 00:29:17.700
I think it's, as Justice Gaziano said,

695
00:29:17.700 --> 00:29:19.140
it's probably likely that the Commonwealth

696
00:29:19.140 --> 00:29:20.580
would've raised a challenge for cause here,

697
00:29:20.580 --> 00:29:22.470
but the question is whether there was a basis

698
00:29:22.470 --> 00:29:26.100
for the judge to allow a challenge for cause,

699
00:29:26.100 --> 00:29:30.424
to find that that juror is not impartial.

700
00:29:30.424 --> 00:29:31.578
<v ->Sure.</v>
<v ->So it's not, right.</v>

701
00:29:31.578 --> 00:29:34.740
<v ->But that wouldn't have, that's not a huge thing, right?</v>

702
00:29:34.740 --> 00:29:36.810
Because whenever we get the question

703
00:29:36.810 --> 00:29:40.110
of whether you would choose to credit the testimony

704
00:29:40.110 --> 00:29:42.840
of a police officer more or less than any other witness,

705
00:29:42.840 --> 00:29:44.070
that's routinely asked,

706
00:29:44.070 --> 00:29:46.590
and if the hand goes up, it's routinely allowed.

707
00:29:46.590 --> 00:29:48.750
So we're not talking about a huge burden here

708
00:29:48.750 --> 00:29:50.190
for the three defendants

709
00:29:50.190 --> 00:29:54.480
in an accused gang-related shooting,

710
00:29:54.480 --> 00:29:56.437
retaliatory shooting to say,

711
00:29:56.437 --> 00:29:58.080
"I don't want the person whose brother

712
00:29:58.080 --> 00:30:01.671
happens to lead a rival gang on my jury."

713
00:30:01.671 --> 00:30:03.030
<v ->[Attorney Hartley] They didn't know that at the time.</v>

714
00:30:03.030 --> 00:30:03.863
<v ->Perhaps.</v>
<v ->But, yeah.</v>

715
00:30:03.863 --> 00:30:06.594
<v ->But they'd know that he was the leader of the gang.</v>

716
00:30:06.594 --> 00:30:10.506
<v ->Yes, and so I think the judge, in her discretion,</v>

717
00:30:10.506 --> 00:30:12.150
if it had gone there,

718
00:30:12.150 --> 00:30:14.580
if the juror had answered the question, "Yes,"

719
00:30:14.580 --> 00:30:16.560
could have allowed a challenge for cause.

720
00:30:16.560 --> 00:30:17.730
But that doesn't mean that the judge

721
00:30:17.730 --> 00:30:20.730
was required to allow a com a challenge for cause.

722
00:30:20.730 --> 00:30:24.060
If you look at Mattier from this court-

723
00:30:24.060 --> 00:30:26.490
<v ->How do we ignore the follow up,</v>

724
00:30:26.490 --> 00:30:28.890
the obvious follow up question point,

725
00:30:28.890 --> 00:30:33.210
which is once this person's identified,

726
00:30:33.210 --> 00:30:36.120
a lot of bells and whistles are gonna go off, right?

727
00:30:36.120 --> 00:30:40.710
That, okay, we got a gang issue here.

728
00:30:40.710 --> 00:30:43.710
We've got, they're gonna identify this person's name.

729
00:30:43.710 --> 00:30:47.580
Isn't all this gonna come out if she an answers honestly?

730
00:30:47.580 --> 00:30:49.800
<v ->No, your Honor, because what the findings</v>

731
00:30:49.800 --> 00:30:51.720
at the hearing were, that the juror,

732
00:30:51.720 --> 00:30:54.270
and this is what's very really important here,

733
00:30:54.270 --> 00:30:57.300
certainly defendants could have done research

734
00:30:57.300 --> 00:30:59.310
and found out more about Karl Baxter

735
00:30:59.310 --> 00:31:00.143
if they knew his name, or about-

736
00:31:00.143 --> 00:31:02.280
<v ->But if she answers the question honestly,</v>

737
00:31:02.280 --> 00:31:03.113
the first question,

738
00:31:03.113 --> 00:31:05.580
"Do you have a brother who's been incarcerated?"

739
00:31:05.580 --> 00:31:07.710
She's gonna say his, "Yes,"

740
00:31:07.710 --> 00:31:09.930
and then they're gonna ask his name.

741
00:31:09.930 --> 00:31:14.250
And isn't that gonna generate a defense challenge?

742
00:31:14.250 --> 00:31:16.020
'Cause they're gonna know who he is?

743
00:31:16.020 --> 00:31:17.910
<v ->Well, it maybe, it would have,</v>

744
00:31:17.910 --> 00:31:19.020
but the question is, again,

745
00:31:19.020 --> 00:31:21.960
not whether the defendant is going to raise a challenge.

746
00:31:21.960 --> 00:31:23.070
The question is whether the judge

747
00:31:23.070 --> 00:31:24.810
is required to excuse that juror.

748
00:31:24.810 --> 00:31:28.770
And if you look at the juror's testimony at the hearing,

749
00:31:28.770 --> 00:31:30.630
there are several crucial findings.

750
00:31:30.630 --> 00:31:33.570
So the juror was yes, aware that Karl was incarcerated

751
00:31:33.570 --> 00:31:36.600
at the time of the trial because she had read about it.

752
00:31:36.600 --> 00:31:38.832
But between the time the juror read that article

753
00:31:38.832 --> 00:31:40.380
and the beginning of the trial,

754
00:31:40.380 --> 00:31:43.440
the juror didn't learn any other information about the gang

755
00:31:43.440 --> 00:31:46.080
or about Karl's affiliation with the gang.

756
00:31:46.080 --> 00:31:48.180
She never had a conversation with Karl

757
00:31:48.180 --> 00:31:50.850
about why he was incarcerated or gang affiliation.

758
00:31:50.850 --> 00:31:54.480
<v ->But again, I'm not concerned so much with,</v>

759
00:31:54.480 --> 00:31:56.280
it's, they're gonna say,

760
00:31:56.280 --> 00:31:58.230
she's gonna answer the question honestly, "Yes,"

761
00:31:58.230 --> 00:32:01.500
and then isn't the "Herald" article gonna come out,

762
00:32:01.500 --> 00:32:05.100
and then no judge is gonna allow this person on

763
00:32:05.100 --> 00:32:07.320
if it's a rival gang person, right?

764
00:32:07.320 --> 00:32:08.910
<v ->Well, I think that's all speculative.</v>

765
00:32:08.910 --> 00:32:11.610
And what matters under McDonough

766
00:32:11.610 --> 00:32:15.990
and under this court's case law in Amirault is the juror,

767
00:32:15.990 --> 00:32:17.940
and whether the juror was impartial?

768
00:32:17.940 --> 00:32:21.510
And based on her universe of knowledge, at this time,

769
00:32:21.510 --> 00:32:22.830
she didn't know anything more.

770
00:32:22.830 --> 00:32:24.960
And the judge found to that effect,

771
00:32:24.960 --> 00:32:28.230
that if she had answered the question accurately,

772
00:32:28.230 --> 00:32:30.420
further questions would not have yield much,

773
00:32:30.420 --> 00:32:32.910
any information, because she didn't know anything.

774
00:32:32.910 --> 00:32:35.700
All she knew was that she had a brother

775
00:32:35.700 --> 00:32:37.800
who was incarcerated at the time,

776
00:32:37.800 --> 00:32:39.570
she didn't know about,

777
00:32:39.570 --> 00:32:41.370
anything about the Lucerne Street Doggz.

778
00:32:41.370 --> 00:32:42.600
She read it in the newspaper article.

779
00:32:42.600 --> 00:32:44.610
She didn't know about any affiliations

780
00:32:44.610 --> 00:32:46.620
or rivalries between the Lucerne Street Doggz.

781
00:32:46.620 --> 00:32:51.620
She didn't know anything about MOB, and-

782
00:32:51.810 --> 00:32:55.470
<v ->So is it irrelevant what the defendants</v>

783
00:32:55.470 --> 00:32:59.130
would have found out if she had been honest?

784
00:32:59.130 --> 00:33:00.240
<v ->Yes, I think it is.</v>

785
00:33:00.240 --> 00:33:02.880
I think the question, we're looking just at this juror,

786
00:33:02.880 --> 00:33:05.010
and what this juror knew at the time,

787
00:33:05.010 --> 00:33:06.870
and whether or not this juror was impartial.

788
00:33:06.870 --> 00:33:09.750
I think that's the crux of the inquiry

789
00:33:09.750 --> 00:33:12.960
under the second prong, under the prejudice prong.

790
00:33:12.960 --> 00:33:15.000
<v ->Chief, could I ask one?</v>

791
00:33:15.000 --> 00:33:16.380
Counsel, I just wanna go back to the,

792
00:33:16.380 --> 00:33:18.260
at least the first question again.

793
00:33:18.260 --> 00:33:20.640
So you have a situation where the trial judge

794
00:33:20.640 --> 00:33:22.830
during voir dire asked this question,

795
00:33:22.830 --> 00:33:27.830
the trial judge follows up after the fact and says,

796
00:33:28.117 --> 00:33:31.890
"Please don't superimpose your definition of relevance.

797
00:33:31.890 --> 00:33:34.650
Tell us everything, everything.

798
00:33:34.650 --> 00:33:37.938
And then years later, during this evidentiary hearing,

799
00:33:37.938 --> 00:33:42.630
you say, because there's an ability to observe this person

800
00:33:42.630 --> 00:33:47.490
during the hearing that that precludes us

801
00:33:47.490 --> 00:33:50.580
from finding that it was clearly erroneous

802
00:33:50.580 --> 00:33:53.529
that she intended to deceive.

803
00:33:53.529 --> 00:33:57.840
Is there ever a chance or is there ever a world

804
00:33:57.840 --> 00:34:00.330
where that can't always be said

805
00:34:00.330 --> 00:34:01.560
after an evidentiary hearing?

806
00:34:01.560 --> 00:34:04.440
And we we've said that after evidentiary hearings, right?

807
00:34:04.440 --> 00:34:07.980
<v ->Yes. I think if there was testimony that was, you know,</v>

808
00:34:07.980 --> 00:34:10.675
conflicted the trial judges finding,

809
00:34:10.675 --> 00:34:13.726
then this court could certainly find it clearly erroneous

810
00:34:13.726 --> 00:34:17.430
and over overrule that judge's factual finding.

811
00:34:17.430 --> 00:34:18.660
But this isn't that case, your Honor.

812
00:34:18.660 --> 00:34:21.817
<v ->But when she says, (chuckling)</v>

813
00:34:21.817 --> 00:34:23.310
"I thought it was irrelevant,"

814
00:34:23.310 --> 00:34:27.240
even though I told you don't add your definition

815
00:34:27.240 --> 00:34:29.130
of irrelevant or relevance,

816
00:34:29.130 --> 00:34:31.050
that that's not clearly erroneous?

817
00:34:31.050 --> 00:34:33.270
<v ->No, your Honor, because the trial judge determined,</v>

818
00:34:33.270 --> 00:34:35.850
and I think a lot of this comes down

819
00:34:35.850 --> 00:34:38.160
to what the definition of honesty is,

820
00:34:38.160 --> 00:34:39.540
the trial judge determined

821
00:34:39.540 --> 00:34:41.430
that she was not intending to deceive the court.

822
00:34:41.430 --> 00:34:42.660
And the Commonwealth's position

823
00:34:42.660 --> 00:34:44.340
is that the definition of honest

824
00:34:44.340 --> 00:34:46.230
is not just knowingly inaccurate,

825
00:34:46.230 --> 00:34:48.960
but is that intent to deceive the court.

826
00:34:48.960 --> 00:34:51.210
So whether or not she had this knowledge in her head,

827
00:34:51.210 --> 00:34:53.730
was she purposely withholding it

828
00:34:53.730 --> 00:34:54.900
to conceal it from the court?

829
00:34:54.900 --> 00:34:57.213
I think that's, that's the crux of the issue.