-: SJC-13528, Commonwealth versus Markeese Mitchell.
SJC-13529, Commonwealth versus Pedro Ortiz.
SJC-13530, Commonwealth versus Terrance Pabon.
-: Okay, Attorney Neaves.
-: Good morning, Cathryn Neaves,
representing Defendant Appellant Markeese Mitchell.
With me at Council table are Richard Klibaner,
counsel for Pedro Ortiz,
and Richard Goldman, counsel for Terrance Pabon.
I will be presenting argument on behalf
of all three defendants appellants this morning.
If you ask me a question,
and I fully understand the question,
and I have a clear memory
on the subject matter of the question,
and I know my answer is "Yes," but I say, "No."
Justice Gaziano: We've gotten conditional answers
from lawyers before, though. (chuckling)
-: I'm sorry.
Justice Gaziano: We've gotten conditional answers
from lawyers before.
(Attorney Neaves laughing)
-: Right, answer's not an honest answer, right?
I know the answer is false.
I know the answer is "Yes," but I say, "No,"
I know the answer is false.
Or in the parlance of the trial judge in this case,
my answer is "knowingly inaccurate."
And in the context of this case,
and in my hypothetical,
honest and knowingly inaccurate are synonymous.
-: Can I ask you about the standard of review?
Because we're looking at abuse of discretion, correct?
And clearly erroneous on the judge's factual findings
regarding the juror.
-: Yes, and I have no quarrel
with the judge's factual finding.
She found that the juror's answer was knowingly inaccurate.
That means the juror wasn't mistaken
like the juror in Amirault.
She did not have a failure of memory
like the juror in Amirault,.
She knew, and to quote the judge,
"The answer was inaccurate."
And the juror knew it was inaccurate
in that the juror knew Karl had been convicted of crimes
and was incarcerated.
That's at Defendant's Brief at 59.
-: What about the conditional part
that the judge glossed onto it?
-: At the end, I think that's not a factual finding.
That's a faulty application
of this court's constitutional principle in Amirault.
Whether the juror was aware the answer was false,
which is the first prong of the two-prong standard,
which is derived from McDonough as well.
You know, the inaccuracy was not dishonest, however,
in that it did not arise from any motive
to mislead or conceal,
but was based on the juror's independent evaluation
of relevance.
So the factual finding is the juror's answer was inaccurate
and she knew it was inaccurate.
That's her factual finding in this court's words.
She was aware her answer was false.
That's the question
of whether the answer was honest in Amirault.
And I think that's the only way
that you can get to an answer like this, is the juror aware,
when she gives the answer, that it's false?
So the independent evaluation of relevance
goes to bias, right?
And it's not bias.
Bias doesn't necessarily have to be toward these defendants,
although there are troubling connections
that were developed post-conviction.
But bias is a potential juror
who will favor her own sense
of what she thinks she should do or disclose
or not disclose
and what the court tells her she needs to do.
This is a juror who answered, "No," to the question
whether she had a family member
who was charged with a crime, convicted of a crime,
despite the fact that she knew her half-brother
was incarcerated at the time for gun charges out of Boston.
She failed to correct her answer on voir dire
after the trial judge very carefully said,
"Look, a lot of times people don't fill this out completely.
We really need you.
You know, and so maybe your questionnaire isn't complete?
But we really need to know,
even if you think it's irrelevant,
please tell us at sidebar.
We need to know."
She came to sidebar, she said nothing.
-: [Justice Wendlandt] What do we do with the fact
that the judge relied on the fact
that this juror had also denied her own involvement
with criminal convictions?
-: Well, I think what the trial judge said is that yes,
she also exercised her own independent evaluation
of relevance as to driving without insurance.
She didn't disclose that as well.
-: [Justice Wendlandt] So she was consistent
in her independence.
-: Consistent in choosing what she was going
to tell the court
based on what she decided she'd tell the court.
-: Right, in that particular instance,
the judge decided that it, she wouldn't be excused for cause
after explanation, isn't that right?
-: No, the parties said no problem because, oh, she-
-: [Justice Wendlandt] So the parties also agreeing?
-: The parties said, with respect to that,
okay, you know, she said, "Oh, I, you know,
it was just a driving without insurance.
I didn't think it was a big deal."
The parties in that context said, "We'll let it go."
-: But that's relatively common.
-: Yeah, I mean that's not, you know, I mean it's not,
my brother is the leader of the Lucerne Street Doggz
and he's incarcerated for gun charges
and it's, you know, that's significant.
And in fact, the trial judge in this case
highlighted that question
Justice Budd: And the parties had a chance to evaluate
whether or not they wanted to let her go based on this?
-: Well, just based on that. -: Right.
No, that's what I'm saying. -: Just based on that.
Yeah, I mean, and I think certainly
I'm sure the thinking was it was a minor issue.
She's from the community, you know, you don't know anymore.
You say, "Oh, I'll take that juror."
Justice Gaziano: Can you help me?
How do we evaluate whether or not
this would've been a challenge for cause?
It seems very speculative.
-: I don't think it is.
And I think, I think, you know, what the trial judge,
and I think this is also something
that the trial judge erred
in applying the constitutional principle
on the second prong,
which is once you determine
that a juror has failed
to answer honestly a material question,
you look at whether there would've been a challenge
for cause.
And, you know, you look at, you know,
the judge, an objective judge,
looks at the dishonesty and the reason for the dishonesty
to decide whether the juror was capable of, you know,
being an impartial juror.
In this situation, however-
Justice Kafker: She disqualified,
the trial judge disqualified another juror, right?
For the same mistake, right?
Attorney Neaves: Absolutely.
-: And describe the other juror for me, just remind me.
-: He had juvenile adjudications that were sealed
and he did not disclose those on his juror questionnaire.
Justice Kafker: And she disqualified him for cause, what?
-: He was, it was discovered
when the Commonwealth ran his quarry and found them,
and they brought him in and he said,
"I thought they were sealed.
I didn't read the form carefully.
I didn't realize."
I mean, he sort of did the same kind of thing.
There were sealed,
I didn't think I needed to tell the court, right?
The same sort of evaluation.
What's the scale we use when someone,
say we get past the first Amirault step
where someone is dishonest?
Attorney Neaves: Yes.
-: And then we go on to whether
or not this would be appropriate basis for cause.
So with the juror that Justice Kafker mentioned,
the person misrepresented his own criminal history,
and the judge said, "No, we can't have that on the jury."
Here we have this case.
But what would be an example of a case
where a juror is dishonest,
but there there does not lie a challenge for cause.
Can you think of one?
-: I mean I, you know, I don't,
I can't think of one right now off the top of my head.
I'm sure there is such a thing.
I mean, it's not just the, it's not just the-
-: Would it be similar to the first incident
that happened with the juror
where the juror says, you know, "I got a coif,
I thought that case was dismissed."
-: Right, right, "I didn't realize."
Yeah, I think, you know, it's not honest
because you know you have that, right?
So, and you should have disclosed it
because honest means free from deceit or any untruthfulness.
But in the context of can this juror be impartial?
Right?
And getting back to your honor's question,
I think that you have to look necessarily,
when you're in this context, post-conviction,
when you're looking at a motion for a new trial,
that's the only time this came to light
was because her brother taunted Mr. Ortiz saying,
"You know, that's why my sister was on your jury."
So it goes in for a new trial, the juror gets brought in,
and the court learns a lot of things.
You can't put, you know, and the trial judge said,
"Well, if I'd, you know,
if she disclosed that her brother was in jail,
we wouldn't have learned much more."
You can't pretend.
You're trying, you know,
the defendants here were entitled to an impartial jury.
If you've got a juror, if you find out you've got a juror,
a juror who sat on that jury who was not impartial,
and you don't find out till afterward, it's still an error.
-: So you have to look at what's developed.
-: I guess the judge was saying is that, at the time,
it would've been really difficult to make that connection
between the Lucerne Street Doggz
and this juror that comes later.
So at the moment it would have been,
I have experience with the law,
that being my brother is in jail.
Attorney Neaves: But I think that-
-: Which would usually tend towards
being against the Commonwealth, ironically.
-: Right, absolutely, that's true.
But I think that, in that context,
when you are the trial judge post-conviction,
and you've got all this information now,
you can't pretend that it doesn't exist
and that the person didn't sit on the jury,
and that the person didn't convict these people.
-: But I think, I think our, what we're supposed to do
is decide whether there would've been a basis
for for cause challenge.
So could you talk through for us exactly
how we should decide that here?
And particularly, you know,
obviously the Commonwealth is saying
there was so little there that, you know, nothing further,
and that's what the judge found.
There wouldn't have been a for cause challenge.
Do we imagine whether someone would've asked,
"What is your brother's name?"
Do we speculate that someone would've run his quarry?
Could you talk us through
how we do the for cause analysis here?
-: Well, I think, thank you, your Honor, that's correct.
If she disclosed, my brother was convicted,
is incarcerated right now, he's convicted.
I mean, I've read enough transcripts.
The next question is, "What county is it?"
"It's Suffolk County."
"Okay, what's your brother's name?"
You know, "What were the charges?
What was going on?"
And in this case, just that alone,
would get you dismissed for cause,
you know, can you be fair and impartial?
Yeah.
But usually on this.
-: This is a little bit weird,
because usually that scenario,
it would be the government
asking for the person to be excused.
-: Exactly, and it likely would've happened,
but we're in this posture.
And so as far as the for cause challenge,
I mean even leaving aside what could have been learned
and what was learned about this juror's connections
to this case, however, tangentially or peripherally,
the fact that she chose to withhold this information,
material information,
is itself a powerful indicator of bias,
which the First Circuit's just recently said
in the Tsarnaev case.
And the cite for that is 96 F.4th 41.
That alone can be enough.
And as Justice Blackmon concurred in McDonough,
that in most cases the honesty or dishonesty
of a juror's response is the best initial indicator
of whether the juror was in fact impartial.
So you don't learn these things till after.
-: But we here are a bit hemmed in by, in our speculation,
by the factual findings below,
which were to credit the juror that she did not know about,
as she put it, the lifestyle choices of her half-brother.
And, you know, she did not know,
and we have no, you know, the judge found
that she believed the juror that she did not know.
So she, on the record before us,
it's not that she was specifically hiding
her brother's specific connection to these groups.
It's just that she chose not to divulge knowingly, you know,
as the judge found, gave an inaccurate answer.
So what is your best case for the proposition
that simply knowingly not divulging
or knowingly giving a wrong answer is enough
because it shows a disinclination
to follow the judge's instructions.
-: I would say that any of the cases out of the First Circuit
that talk about that,
because that, again, going to my point,
that a juror who consistently will use her own notion
of what she's going to tell the court
and ignore the court's instruction
and do what she wants to do.
-: Well in the Samson case,
which is I assume what you're referring to,
there was a lot more dishonesty.
That juror had answered, had hidden,
I forget how many questions.
It was like seven or 10 questions she had
lied in response to.
And then the, the First Circuit
went through a bunch of different ways
in which those dishonest answers
really kind of aligned with the case in some ways.
Attorney Neaves: Yes.
-: So what is your best sort of similar analysis here?
-: Well, I mean, along with the fact of the lie
about something highly significant,
at the hearing, she testified that she didn't, you know,
she knew about her brother,
but he didn't bring that sort of nonsense to me
and her daughter's father.
And he didn't bring that kind of nonsense to me.
And you can't ignore, you know, she knew there was nonsense.
-: [Justice Wendlandt] Was that untrue?
-: Well that's what she said.
She testified to that.
-: Right, right, and weren't they estranged at the time?
-: I'm sorry, I don't understand the question.
-: Well, so in Samson,
the juror continued to lie even post-trial
when she was brought in for questioning.
Are you suggesting that that's what's happening here?
-: Certainly did continue to lie.
She testified at the hearing
that she didn't learn that her brother was in a gang
until after he got out after the trial,
and she read the article and it said he was in a gang.
And she said
-: So the fact that she learned from an article
that he was in a gang was something
that she should have disclosed?
-: She talked about it with his mother and her sister.
-: [Justice Wendlandt] The gang affiliation?
-: About the article,
what the charges were about and what it was about.
-: If we credit the judge
and find it's not clearly erroneous,
at bottom, we have a misrepresentation about the custody,
about the brother being in custody.
And as I think it's called, that nonsense,
the gang stuff is out of the equation, correct?
If we credit the judge?
Attorney Neaves: If you credit the judge
as far as, right.
-: If we find no abuse of discretion
and we follow the judge's findings-
Attorney Neaves: Right.
-: At the best case scenario for you,
if we do that is a misrepresentation
that nobody in my family's been involved in the law
up to including the brother's incarceration, correct?
-: Yeah, and I would say that
that's a clearly erroneous decision
based on what was developed.
So, and I don't think that.
-: But do you depend, does your analysis,
as far as prejudice, depend upon that finding?
Or is the fact of incarceration enough
for you to get the for cause challenge?
-: Yes, absolutely.
But I also think the court can't ignore what happened here,
that these defendants and this juror had connection
that was undisclosed and was never learned about.
And what triggered this whole case
was the fact that her brother taunted Mr. Ortiz with,
"That's why my sister convicted you."
That's how this started, nobody-
-: Except for we're trying to figure out
what the next, you know, with the next case,
where you don't have all of that,
those things that came out in the end.
-: I think this court has to just reaffirm Amirault,
because it is the clearest explanation
of what you do in that context.
But I think the court also has to say that a juror
who sat on that jury,
and if that's discovered post-conviction,
you can't pretend that you don't know
what you learned post-conviction on investigation.
-: Okay. -: I think you just can't.
All right, thank you. -: Thank you.
-: Attorney Hartley.
-: Good morning, and may it please the Court,
Brooke Hartley for the Commonwealth.
And I'd just like to note for the court
that members of the victim's family
may either be present in the courtroom
or watching on the live stream.
This court should affirm the orders
denying the defendant's motions for new trial
and for disqualification of the trial judge,
turning first to the juror issue.
The judge properly denied the defendant's motion
for new trial
where Juror 15 answered the question inaccurately,
but without intent to deceive.
The defendant has not met his burden.
Under the first prong of Amirault,
the defendant must show
that the juror failed to answer the question honestly.
And I think it's extremely significant here,
that that is a question of fact
that rests with the trial judge,
only to be disturbed if clearly erroneous.
And there's a reason for this.
That's because a hearing permits the trial judge
to observe the juror's demeanor
and to evaluate the juror's answers.
-: What do we do with this?
The relevance filter that the juror put into the answer?
-: So I think the relevance filter
is directly related to the juror's observation,
the, excuse me, the judge's observations
of this individual and the motivation for lying.
So the judge had the opportunity to lay eyes on this person
and determine whether or not the person
was intending to deceive the court.
So there's no question
that the juror had this information in her head.
She knew that she's related to Karl Baxter,
but she didn't know at the time
that that was responsive to the question.
And I think, if you look at the testimony at the hearing-
-: Didn't she know it was responsive,
but she thought it didn't matter.
-: And I think that's kind of the same thing.
So she made this relevancy determination on her own,
which was wrong,
that's not what we want jurors to do.
But the remedy for that isn't necessarily a new trial.
The remedy is to bring that person in for a hearing
where the defendant makes a showing,
to bring that person in for a hearing,
and for the judge to lay eyes on that person
and to determine what the motives
for that inaccuracy were.
And that's how you get to honest.
And so I think if you look at the transcript.
-: But is the judge adding another element to it?
I just, I mean, the juror knows it's inaccurate,
but then the judge is adding this,
okay, the juror's doing their own kind of determination
of what the legal requirement is.
Isn't that new?
And isn't that a question of law?
Not a question of fact for us?
-: I don't think so, your Honor.
And I think if I go to the, really the lines at issue
from the transcript here, it illustrates why.
So the judge asked the juror,
"Can you just tell us with respect to Karl,
why did you check no to that box?"
And she answers reasonably,
"Because Karl didn't live in my household."
Then the judge presses further
with what's really at issue here is the or family part.
And the judge says,
"Did you think of him as a member of your family?"
And she says, "Yes, but I didn't think that,
I didn't think he had any relation to this trial.
So why would I say, 'Yes'?"
Now when I read this transcript,
I think, you know, a lot is lost when you're-
-: That's a big, that's a big no-no.
What she does there, right, you know?
-: Of course.
And we don't encourage jurors to do that.
But again, I think the remedy is the hearing.
But what I wanna point out here is that the words
on the page of the transcript,
there's a lot lost that we don't get,
that the judge did get.
So when I read that, I unequivocally said, "Yes,"
but we don't know what the juror's demeanor was
when she answered that question.
Did she say, "Yes," and then go on?
The judge does know.
So, you know, just because she's aware
of this biological relationship,
that leaves out a lot of important context, I think.
This is an individual,
the juror only found out that this person was incarcerated
through reading a newspaper article.
This is her half-brother.
-: [Justice Wendlandt] I thought she had confirmed it
with other family members?
-: After she read the article, so she first-
-: [Justice Wendlandt] Right, but before she was empaneled.
-: That's right.
-: Okay. -: But I'm just-
-: So at the time of impanelment,
she knew that her half-brother was incarcerated
and she identified him as family.
-: So she identified him as family
when pressed afterwards at this hearing.
I think my point is that.
Justice Kafker: Can I add another fact?
-: Sure.
-: In the newspaper report,
whether it's accurate or not, reported it as a gang related.
So whether she knows he's in a gang or not,
she's aware that, you know,
the "Boston Herald" has described him as such, right?
-: Certainly, yeah.
She learned from reading that article
that he was the leader of the Lucerne Street Doggz,
she didn't know that before.
She didn't gain any other further information after.
But she was aware of that.
And I think, my point here,
is that her response to that question, "No,"
doesn't necessarily, just because it's inaccurate,
mean that she was intentionally trying to deceive the court.
I think family means different things to different people.
And you're going to get some varied responses here,
which is why the judge
gave those further instructions about relevancy,
which she still obviously didn't heed.
But I think that just goes to show that she,
in her mind at the time,
believed that this was not a responsive answer
to the question. -: I thought that-
I'm sorry, go ahead, Chief.
-: I was just gonna say,
it seems like your rule is pretty broad
and it allows jurors to determine what's relevant,
what's not relevant,
without needing to be honest on the questionnaire
and during the voir dire.
-: Well, I disagree with that, your Honor.
I think jurors absolutely need to be honest,
and the remedy, you know, again,
what I don't think we want to encourage jurors
to use their own relevancy filters,
but the remedy for that, it's going to happen,
but the remedy for that is to bring the person in
and to have a hearing.
That's how the defendants due process rights are satisfied,
by the judge getting to lay eyes on this person
and determining whether that person is biased or not.
And I think if you look at McDonough Power Equipment,
it's analogous to this case and instructive for this court.
That's a case, it's a civil case, of course,
but the question at issue there was
how many of you have yourselves
or any members of your immediate family
sustained a severe injury,
not necessarily as severe as Billy's,
that was the plaintiff in the case.
-: See, the problem with that analogy,
is that that case was,
required the juror to make a relative assessment.
And what Justice Rehnquist, I think, says in his decision
for the plurality of the court is that, you know,
different people think severe injury
is different things.
Here, whether or not her brother was incarcerated
is not a relative, you know,
something that you gauge relatively.
-: Well, I disagree, your Honor.
I think perhaps it's more clear when you,
the juror is determining what the definition
of severe injury is.
Although the injury was quite similar
to what happened in this case.
But the same is true of family.
This is an individual who had six half-brothers and sisters.
This is a person who never grew up in the same household
as Karl Baxter and who, as we'll find out at the hearing,
had almost no relationship with him at the time.
Later they developed a relationship.
-: So your position is that she,
whether is that relatively,
she didn't consider him family.
-: Yes. -: Okay.
-: And I think that's what the judge found.
And I think that's why we have to be careful
about this knowingly inaccurate.
-: Sorry, can we just back up?
I thought that the judge very specifically found
that she did consider him family.
The juror was asked that question,
"Did you consider him family?"
The juror said, "Yes," and the judge credited
that she considered him family and nevertheless,
knowingly inaccurately answered the question.
-: I think what I am trying to capture is
that she didn't think that it was responsive
to the question at the time.
-: I take your point, but even granting,
that you're, of course, right,
that the term family can mean many things
to different people and in that way
it is similar to the question about severe injury,
in this case, it seems like we have clear factual findings
that this juror did consider her half-brother to be family,
even though the word family could be open to interpretation.
We have a factual finding that she did consider him family
and that this was a knowingly inaccurate question.
-: It was -: Answer, sorry.
-: It was knowingly inaccurate
in that she had this information
somewhere in the universe of her brain.
She was aware that she had this person was her half-brother.
She had this biological relationship with him.
I think the issue is whether,
when she answered no to that question,
whether she thought that that was responsive to
was this person a member of your household or family?
And I think her answer, at the hearing,
what she first says is, "No,
because he didn't live in my household,"
is also very telling.
And again, I think we, we have to,
I don't think it's an appellate court's place
to second guess the trial judge's findings
where she was able to observe this person's answer.
And again she said "Yes," but did she say, "Yes"?
Did she say, "Yes"?
It's difficult for us to know
just by reading the words on the transcript.
-: But I think Justice Dewar's point is that the judge found
that she thought he was family.
-: [Attorney Hartley] And I think that's true.
-: And so it wasn't a relative thing,
you know, is he severely injured or not?
It was really definitively yes, he was my family
and I chose not to disclose it
because I did not think it was relevant.
-: I think that's true.
But I think if you get to,
so the judge found that because that it was not dishonest,
because it was not, she did not intend to deceive the court.
And I think that
has to be part of the definition of honest.
-: Where in Amirault does it say that the juror's motive
for dishonesty comes into play?
-: So that comes from McDonough
and it's, "The motives for concealing information may vary,
but only those reasons that affect a juror's impartiality
can truly be said to affect the fairness of the trial."
And I think that's what's at the crux
of this honesty determination.
-: But that still short circuits the defendant's right
to move to disqualify this person for cause,
because I mean, you keep glossing over that,
but that's really important thing.
So we don't just get to sit back and say,
"Please tell me the truth,
then, "Please, please tell me the truth."
Because that's the second time when Judge Fabricant say,
"Don't use your definition of relevance," right?
She specifically tells them that.
And even with that, she goes off and doesn't say this.
And I guess the question that I have for you is,
you keep saying that we then get to go
and the trial judge gets to go in
and say, now I'm gonna play Carnac the Magnificent
and try to figure out whether or not this person
was trying to lie to me.
But the second part of that
short circuits the defendant's ability to say,
"I want this person disqualified.
I want this person disqualified for cause
because I don't want to run the risk
that there's some snakes slithering around
in this person's head
that would inure to my client's detriment."
-: So I think the second part of the test
is not whether the defendant
would raise a challenge for cause.
I think it's, as Justice Gaziano said,
it's probably likely that the Commonwealth
would've raised a challenge for cause here,
but the question is whether there was a basis
for the judge to allow a challenge for cause,
to find that that juror is not impartial.
-: Sure. -: So it's not, right.
-: But that wouldn't have, that's not a huge thing, right?
Because whenever we get the question
of whether you would choose to credit the testimony
of a police officer more or less than any other witness,
that's routinely asked,
and if the hand goes up, it's routinely allowed.
So we're not talking about a huge burden here
for the three defendants
in an accused gang-related shooting,
retaliatory shooting to say,
"I don't want the person whose brother
happens to lead a rival gang on my jury."
-: [Attorney Hartley] They didn't know that at the time.
-: Perhaps. -: But, yeah.
-: But they'd know that he was the leader of the gang.
-: Yes, and so I think the judge, in her discretion,
if it had gone there,
if the juror had answered the question, "Yes,"
could have allowed a challenge for cause.
But that doesn't mean that the judge
was required to allow a com a challenge for cause.
If you look at Mattier from this court-
-: How do we ignore the follow up,
the obvious follow up question point,
which is once this person's identified,
a lot of bells and whistles are gonna go off, right?
That, okay, we got a gang issue here.
We've got, they're gonna identify this person's name.
Isn't all this gonna come out if she an answers honestly?
-: No, your Honor, because what the findings
at the hearing were, that the juror,
and this is what's very really important here,
certainly defendants could have done research
and found out more about Karl Baxter
if they knew his name, or about-
-: But if she answers the question honestly,
the first question,
"Do you have a brother who's been incarcerated?"
She's gonna say his, "Yes,"
and then they're gonna ask his name.
And isn't that gonna generate a defense challenge?
'Cause they're gonna know who he is?
-: Well, it maybe, it would have,
but the question is, again,
not whether the defendant is going to raise a challenge.
The question is whether the judge
is required to excuse that juror.
And if you look at the juror's testimony at the hearing,
there are several crucial findings.
So the juror was yes, aware that Karl was incarcerated
at the time of the trial because she had read about it.
But between the time the juror read that article
and the beginning of the trial,
the juror didn't learn any other information about the gang
or about Karl's affiliation with the gang.
She never had a conversation with Karl
about why he was incarcerated or gang affiliation.
-: But again, I'm not concerned so much with,
it's, they're gonna say,
she's gonna answer the question honestly, "Yes,"
and then isn't the "Herald" article gonna come out,
and then no judge is gonna allow this person on
if it's a rival gang person, right?
-: Well, I think that's all speculative.
And what matters under McDonough
and under this court's case law in Amirault is the juror,
and whether the juror was impartial?
And based on her universe of knowledge, at this time,
she didn't know anything more.
And the judge found to that effect,
that if she had answered the question accurately,
further questions would not have yield much,
any information, because she didn't know anything.
All she knew was that she had a brother
who was incarcerated at the time,
she didn't know about,
anything about the Lucerne Street Doggz.
She read it in the newspaper article.
She didn't know about any affiliations
or rivalries between the Lucerne Street Doggz.
She didn't know anything about MOB, and-
-: So is it irrelevant what the defendants
would have found out if she had been honest?
-: Yes, I think it is.
I think the question, we're looking just at this juror,
and what this juror knew at the time,
and whether or not this juror was impartial.
I think that's the crux of the inquiry
under the second prong, under the prejudice prong.
-: Chief, could I ask one?
Counsel, I just wanna go back to the,
at least the first question again.
So you have a situation where the trial judge
during voir dire asked this question,
the trial judge follows up after the fact and says,
"Please don't superimpose your definition of relevance.
Tell us everything, everything.
And then years later, during this evidentiary hearing,
you say, because there's an ability to observe this person
during the hearing that that precludes us
from finding that it was clearly erroneous
that she intended to deceive.
Is there ever a chance or is there ever a world
where that can't always be said
after an evidentiary hearing?
And we we've said that after evidentiary hearings, right?
-: Yes. I think if there was testimony that was, you know,
conflicted the trial judges finding,
then this court could certainly find it clearly erroneous
and over overrule that judge's factual finding.
But this isn't that case, your Honor.
-: But when she says, (chuckling)
"I thought it was irrelevant,"
even though I told you don't add your definition
of irrelevant or relevance,
that that's not clearly erroneous?
-: No, your Honor, because the trial judge determined,
and I think a lot of this comes down
to what the definition of honesty is,
the trial judge determined
that she was not intending to deceive the court.
And the Commonwealth's position
is that the definition of honest
is not just knowingly inaccurate,
but is that intent to deceive the court.
So whether or not she had this knowledge in her head,
was she purposely withholding it
to conceal it from the court?
I think that's, that's the crux of the issue.