WEBVTT
1
00:00:00.030 --> 00:00:05.030
SJC-13528, Commonwealth versus Markeese Mitchell.
2
00:00:06.150 --> 00:00:11.127
SJC-13529, Commonwealth versus Pedro Ortiz.
3
00:00:11.127 --> 00:00:16.127
SJC-13530, Commonwealth versus Terrance Pabon.
4
00:00:16.500 --> 00:00:18.630
Okay, Attorney Neaves.
5
00:00:18.630 --> 00:00:19.463
Good morning.
6
00:00:20.584 --> 00:00:22.920
Cathryn A. Neaves, representing Defendant/Appellant
7
00:00:22.920 --> 00:00:24.360
Markeese Mitchell.
8
00:00:24.360 --> 00:00:27.570
With me at council table are Richard Klibaner,
9
00:00:27.570 --> 00:00:29.790
counsel for Pedro Ortiz,
10
00:00:29.790 --> 00:00:33.870
and Richard Goldman, counsel for Terrance Pabon.
11
00:00:33.870 --> 00:00:35.460
I will be presenting argument
12
00:00:35.460 --> 00:00:38.733
on behalf of all three defendants/appellants this morning.
13
00:00:40.170 --> 00:00:42.390
If you ask me a question,
14
00:00:42.390 --> 00:00:44.403
and I fully understand the question,
15
00:00:45.390 --> 00:00:46.500
and I have a clear memory
16
00:00:46.500 --> 00:00:49.440
on the subject matter of the question,
17
00:00:49.440 --> 00:00:52.680
and I know my answer is yes but I say no-
18
00:00:52.680 --> 00:00:54.120
We've gotten conditional answers
19
00:00:54.120 --> 00:00:55.860
from lawyers before, though.
20
00:00:55.860 --> 00:00:56.790
I'm sorry?
We've gotten
21
00:00:56.790 --> 00:00:59.104
conditional answers from lawyers before.
22
00:00:59.104 --> 00:01:00.303
(laughs) Right.
23
00:01:01.410 --> 00:01:04.503
Answer's not an honest answer, right?
24
00:01:05.850 --> 00:01:07.620
I know the answer is false.
25
00:01:07.620 --> 00:01:09.840
I know the answer is yes but I say no.
26
00:01:09.840 --> 00:01:11.700
I know the answer is false.
27
00:01:11.700 --> 00:01:14.190
Or in the parlance of the trial judge in this case,
28
00:01:14.190 --> 00:01:16.590
my answer is knowingly inaccurate.
29
00:01:16.590 --> 00:01:18.660
And in the context of this case,
30
00:01:18.660 --> 00:01:20.940
and in my hypothetical,
31
00:01:20.940 --> 00:01:24.450
honest and knowingly inaccurate are synonymous.
32
00:01:24.450 --> 00:01:26.910
Can I ask you about the standard of review,
33
00:01:26.910 --> 00:01:30.030
because we're looking at abusive discretion, correct?
34
00:01:30.030 --> 00:01:32.670
And clearly erroneous on the judge's factual findings
35
00:01:32.670 --> 00:01:33.990
regarding the juror.
36
00:01:33.990 --> 00:01:35.460
Yes, and I have no quarrel
37
00:01:35.460 --> 00:01:37.230
with the judge's factual finding.
38
00:01:37.230 --> 00:01:40.920
She found that the juror's answer was knowingly inaccurate.
39
00:01:40.920 --> 00:01:42.630
That means the juror wasn't mistaken
40
00:01:42.630 --> 00:01:44.100
like the juror in Amirault.
41
00:01:44.100 --> 00:01:45.870
She did not have a failure of memory,
42
00:01:45.870 --> 00:01:47.583
like the juror in Amirault.
43
00:01:48.510 --> 00:01:51.547
She knew, and to quote the judge,
44
00:01:51.547 --> 00:01:53.550
"The answer was inaccurate."
45
00:01:53.550 --> 00:01:56.007
And the juror knew it was inaccurate,
46
00:01:56.007 --> 00:01:59.640
and that the juror knew Karl had been convicted of crimes
47
00:01:59.640 --> 00:02:00.840
and was incarcerated.
48
00:02:00.840 --> 00:02:02.790
That's at defendant's brief at 59.
49
00:02:02.790 --> 00:02:04.260
What about the conditional part
50
00:02:04.260 --> 00:02:06.390
that the judge glossed onto it?
51
00:02:06.390 --> 00:02:08.720
At the end, I think that's not a factual finding.
52
00:02:08.720 --> 00:02:10.740
That's a faulty application
53
00:02:10.740 --> 00:02:13.890
of this court's constitutional principle in Amirault,
54
00:02:13.890 --> 00:02:16.410
whether the juror was aware the answer was false,
55
00:02:16.410 --> 00:02:19.110
which is the first prong of the two-prong standard,
56
00:02:19.110 --> 00:02:22.233
which is derived from McDonough as well.
57
00:02:23.280 --> 00:02:25.860
The inaccuracy was not dishonest, however,
58
00:02:25.860 --> 00:02:26.970
in that it did not arise
59
00:02:26.970 --> 00:02:29.220
from any motive to mislead or conceal,
60
00:02:29.220 --> 00:02:31.080
but was based on the juror's independent
61
00:02:31.080 --> 00:02:33.000
evaluation of relevance.
62
00:02:33.000 --> 00:02:38.000
So the factual finding is the juror's answer was inaccurate,
63
00:02:40.920 --> 00:02:43.260
and she knew it was inaccurate.
64
00:02:43.260 --> 00:02:48.260
That's her factual finding in this court's words.
65
00:02:49.950 --> 00:02:52.590
She was aware her answer was false.
66
00:02:52.590 --> 00:02:54.090
That's the question of whether
67
00:02:54.960 --> 00:02:57.570
the answer was honest in Amirault.
68
00:02:57.570 --> 00:02:59.340
And I think that's the only way
69
00:02:59.340 --> 00:03:03.933
that you can get to an answer like this,
70
00:03:05.370 --> 00:03:08.100
is the juror aware when she gives the answer
71
00:03:08.100 --> 00:03:09.630
that it's false?
72
00:03:09.630 --> 00:03:13.380
So the independent evaluation of relevance
73
00:03:13.380 --> 00:03:16.310
goes to bias, right?
74
00:03:16.310 --> 00:03:17.820
If it's not bias,
75
00:03:17.820 --> 00:03:21.480
bias doesn't necessarily have to be toward these defendants,
76
00:03:21.480 --> 00:03:23.040
although there are troubling connections
77
00:03:23.040 --> 00:03:25.470
that were developed post-conviction.
78
00:03:25.470 --> 00:03:30.470
But bias is a potential juror who will favor her own sense
79
00:03:32.580 --> 00:03:34.410
of what she thinks she should do
80
00:03:34.410 --> 00:03:36.400
or disclose or not disclose
81
00:03:37.830 --> 00:03:40.380
and what the court tells her she needs to do.
82
00:03:40.380 --> 00:03:44.250
This is a juror who answered no to the question
83
00:03:44.250 --> 00:03:46.440
whether she had a family member
84
00:03:46.440 --> 00:03:49.050
who was charged with a crime, convicted of a crime,
85
00:03:49.050 --> 00:03:50.520
despite the fact that she knew
86
00:03:50.520 --> 00:03:53.550
her half-brother was incarcerated at the time
87
00:03:53.550 --> 00:03:55.890
for gun charges out of Boston.
88
00:03:55.890 --> 00:03:59.910
She failed to correct her answer on voir dire
89
00:03:59.910 --> 00:04:03.277
after the trial judge very carefully said,
90
00:04:03.277 --> 00:04:08.040
"Look, a lot of times people don't fill this out completely.
91
00:04:08.040 --> 00:04:09.870
We really need you.
92
00:04:09.870 --> 00:04:13.590
And so maybe your your questionnaire isn't complete,
93
00:04:13.590 --> 00:04:14.910
but we really need to know,
94
00:04:14.910 --> 00:04:17.433
even if you think it's irrelevant,
95
00:04:18.390 --> 00:04:20.640
please tell us at sidebar.
96
00:04:20.640 --> 00:04:21.987
We need to know."
97
00:04:23.730 --> 00:04:25.630
She came to sidebar, she said nothing.
98
00:04:26.580 --> 00:04:28.980
What do we do with the fact that
99
00:04:28.980 --> 00:04:33.840
the judge relied on the fact that this juror had also denied
100
00:04:33.840 --> 00:04:38.100
her own involvement with criminal convictions?
101
00:04:38.100 --> 00:04:42.330
Well, I think what the trial judge said is that,
102
00:04:42.330 --> 00:04:45.570
yes, she also exercised her own independent
103
00:04:45.570 --> 00:04:49.530
evaluation of relevance as to driving without insurance.
104
00:04:49.530 --> 00:04:51.150
She didn't disclose that as well.
105
00:04:51.150 --> 00:04:54.240
So she was consistent in her independence.
106
00:04:54.240 --> 00:04:56.040
Consistent in choosing
107
00:04:56.040 --> 00:04:58.200
what she was going to tell the court
108
00:04:58.200 --> 00:05:00.270
based on what she decided she'd tell the court.
109
00:05:00.270 --> 00:05:04.560
Right, in that particular instance, the judge decided
110
00:05:04.560 --> 00:05:08.370
that she wouldn't be excused for cause
111
00:05:08.370 --> 00:05:10.620
after explanation, isn't that right?
112
00:05:10.620 --> 00:05:13.550
No, the parties said no problem because-
113
00:05:13.550 --> 00:05:15.240
So the parties also agree?
114
00:05:15.240 --> 00:05:16.740
Said with respect to that.
115
00:05:16.740 --> 00:05:18.847
Okay, she said,
116
00:05:18.847 --> 00:05:21.570
"Oh, it was just a driving without insurance.
117
00:05:21.570 --> 00:05:24.090
I didn't think it was a big deal."
118
00:05:24.090 --> 00:05:26.880
The parties in that context said, "We'll let it go."
119
00:05:26.880 --> 00:05:28.593
But that's relatively common.
120
00:05:28.593 --> 00:05:30.750
Yeah, I mean, that's not,
121
00:05:30.750 --> 00:05:33.480
I mean, it's not, "My brother is the leader
122
00:05:33.480 --> 00:05:35.340
of the Lucerne Street Doggz
123
00:05:35.340 --> 00:05:38.160
and he's incarcerated for gun charges"
124
00:05:38.160 --> 00:05:42.240
and that's significant.
125
00:05:42.240 --> 00:05:44.100
And in fact, the trial judge in this case
126
00:05:44.100 --> 00:05:45.600
highlighted that question.
127
00:05:45.600 --> 00:05:47.940
And the parties had a chance to evaluate
128
00:05:47.940 --> 00:05:50.700
whether or not they wanted to let her go based on-
129
00:05:50.700 --> 00:05:52.530
Well, just based on that.
Right.
130
00:05:52.530 --> 00:05:54.960
That's what I'm saying.
Just based on that, yeah.
131
00:05:54.960 --> 00:05:56.613
I mean, and I think certainly,
132
00:05:58.020 --> 00:06:01.860
I'm sure the thinking was it was a minor issue.
133
00:06:01.860 --> 00:06:04.830
She's from the community you don't know anymore.
134
00:06:04.830 --> 00:06:07.740
You say, "Oh, I'll take that juror."
135
00:06:07.740 --> 00:06:08.573
Can you help me?
136
00:06:08.573 --> 00:06:10.050
How do we evaluate whether or not
137
00:06:10.050 --> 00:06:11.550
this would've been a challenge for cause?
138
00:06:11.550 --> 00:06:13.170
It seems very speculative.
139
00:06:13.170 --> 00:06:14.040
I don't think it is.
140
00:06:14.040 --> 00:06:16.260
And I think what the trial judge,
141
00:06:16.260 --> 00:06:18.360
and I think this is also something
142
00:06:18.360 --> 00:06:23.010
that the trial judge earned in applying
143
00:06:23.010 --> 00:06:25.290
the constitutional principle on the second prong,
144
00:06:25.290 --> 00:06:29.760
which is once you determine that a juror has failed
145
00:06:29.760 --> 00:06:32.340
to answer honestly a material question, you look at
146
00:06:32.340 --> 00:06:34.380
whether there would've been a challenge for cause.
147
00:06:34.380 --> 00:06:39.380
And you look at the judge,
148
00:06:40.320 --> 00:06:44.610
an objective judge looks at the dishonesty
149
00:06:44.610 --> 00:06:46.290
and the reason for the dishonesty
150
00:06:46.290 --> 00:06:48.720
to decide whether the juror was capable
151
00:06:48.720 --> 00:06:51.540
of being an impartial juror.
152
00:06:51.540 --> 00:06:52.950
In this situation, however-
153
00:06:52.950 --> 00:06:53.970
She disqualified,
154
00:06:53.970 --> 00:06:56.310
the trial judge disqualified another juror, right?
155
00:06:56.310 --> 00:06:59.700
For the same mistake, right?
Absolutely.
156
00:06:59.700 --> 00:07:02.850
And describe the other juror for me, just remind me.
157
00:07:02.850 --> 00:07:07.020
He had juvenile adjudications that were sealed,
158
00:07:07.020 --> 00:07:10.587
and he did not disclose those on his juror questionnaire.
159
00:07:10.587 --> 00:07:13.680
And she disqualified him for cause?
160
00:07:13.680 --> 00:07:18.680
It was discovered when the commonwealth ran his quarry
161
00:07:18.960 --> 00:07:21.877
and found them, and they brought him in and he said,
162
00:07:21.877 --> 00:07:23.520
"I thought they were sealed.
163
00:07:23.520 --> 00:07:25.677
I didn't read the form carefully."
164
00:07:26.550 --> 00:07:28.747
I mean, he sort of did the same kind of thing.
165
00:07:28.747 --> 00:07:29.580
"They were sealed.
166
00:07:29.580 --> 00:07:31.440
I didn't think I needed to tell the court," right?
167
00:07:31.440 --> 00:07:33.690
The same sort of evaluation.
What's the scale
168
00:07:33.690 --> 00:07:37.140
we use when someone, say, we get past
169
00:07:37.140 --> 00:07:38.400
the first Amirault step
170
00:07:38.400 --> 00:07:40.860
where someone is dishonest.
Yes.
171
00:07:40.860 --> 00:07:42.660
And then we go on to whether or not this would be
172
00:07:42.660 --> 00:07:45.390
appropriate basis for cause.
173
00:07:45.390 --> 00:07:47.730
So with the juror that Justice Kafka mentioned,
174
00:07:47.730 --> 00:07:51.060
the person misrepresented his own criminal history
175
00:07:51.060 --> 00:07:54.630
and the judge said, "No, we can't have that on the jury."
176
00:07:54.630 --> 00:07:55.710
Here we have this case.
177
00:07:55.710 --> 00:07:57.960
But what would be an example of a case
178
00:07:57.960 --> 00:08:01.020
where a juror is dishonest,
179
00:08:01.020 --> 00:08:03.840
but there does not lie a challenge for cause.
180
00:08:03.840 --> 00:08:05.160
Can you think of one?
181
00:08:05.160 --> 00:08:07.083
I mean, you know,
182
00:08:09.290 --> 00:08:11.910
I can't think of one right now off the top of my head.
183
00:08:11.910 --> 00:08:14.340
I'm sure there is such a thing.
184
00:08:14.340 --> 00:08:16.477
I mean, it's not just the, it's not just the-
185
00:08:16.477 --> 00:08:18.990
Would it be similar to the first incident
186
00:08:18.990 --> 00:08:22.186
that happened with the juror where the juror says,
187
00:08:22.186 --> 00:08:23.430
"I got a quaff.
188
00:08:23.430 --> 00:08:24.780
I thought that case was dismissed."
189
00:08:24.780 --> 00:08:26.400
Right, right, I didn't realize.
190
00:08:26.400 --> 00:08:29.160
Yeah, I think it's not honest
191
00:08:29.160 --> 00:08:31.563
because you know you have that, right?
192
00:08:33.692 --> 00:08:35.640
And you should have disclosed it,
193
00:08:35.640 --> 00:08:39.630
because honest means free from deceit or any untruthfulness.
194
00:08:39.630 --> 00:08:43.170
But in the context of can this juror be impartial, right?
195
00:08:43.170 --> 00:08:46.410
And getting back to your honor's question,
196
00:08:46.410 --> 00:08:49.200
I think that you have to look necessarily
197
00:08:49.200 --> 00:08:51.900
when you're in this context post-conviction.
198
00:08:51.900 --> 00:08:54.390
When you're looking at a motion for a new trial,
199
00:08:54.390 --> 00:08:58.050
that's the only time this came to light was because
200
00:08:58.050 --> 00:09:01.537
her brother taunted Mr. Ortiz, saying,
201
00:09:01.537 --> 00:09:03.690
"That's why my sister was on your jury."
202
00:09:03.690 --> 00:09:07.740
So it goes in for a new trial, the juror gets brought in,
203
00:09:07.740 --> 00:09:10.353
and the court learns a lot of things.
204
00:09:11.850 --> 00:09:12.683
And the trial judge said,
205
00:09:12.683 --> 00:09:15.690
"Well, if she disclosed that her brother was in jail,
206
00:09:15.690 --> 00:09:17.100
we wouldn't have learned much more."
207
00:09:17.100 --> 00:09:18.273
You can't pretend.
208
00:09:20.430 --> 00:09:23.970
The defendants here were entitled to an impartial jury.
209
00:09:23.970 --> 00:09:26.820
If you've got a juror, if you find out you've got a juror
210
00:09:26.820 --> 00:09:30.000
who sat on that jury who was not impartial,
211
00:09:30.000 --> 00:09:32.940
and you don't find out till afterward, it's still an error.
212
00:09:32.940 --> 00:09:33.773
So you have to look
213
00:09:33.773 --> 00:09:34.634
at what's developed.
I guess the judge
214
00:09:34.634 --> 00:09:36.870
was saying is that at the time,
215
00:09:36.870 --> 00:09:39.000
it would've been really difficult to make that connection
216
00:09:39.000 --> 00:09:41.640
between the Lucerne Street Doggz
217
00:09:41.640 --> 00:09:44.190
and this juror that comes later.
218
00:09:44.190 --> 00:09:47.917
So at the moment, it would have been,
219
00:09:47.917 --> 00:09:50.610
"I have experience with the law,
220
00:09:50.610 --> 00:09:53.610
that being my brother is in jail."
221
00:09:53.610 --> 00:09:55.920
But I think that-
Which would usually
222
00:09:55.920 --> 00:09:58.470
tend towards being against the commonwealth, ironically.
223
00:09:58.470 --> 00:10:00.720
Right, absolutely, that's true.
224
00:10:00.720 --> 00:10:02.850
But I think that in that context,
225
00:10:02.850 --> 00:10:05.370
when you're the trial judge post-conviction,
226
00:10:05.370 --> 00:10:08.220
and you've got all this information now,
227
00:10:08.220 --> 00:10:10.980
you can't pretend that it doesn't exist
228
00:10:10.980 --> 00:10:12.900
and that the person didn't sit on the jury
229
00:10:12.900 --> 00:10:16.080
and that the person didn't convict these people.
230
00:10:16.080 --> 00:10:18.270
But I think what we're supposed to do
231
00:10:18.270 --> 00:10:21.210
is decide whether there would've been a basis
232
00:10:21.210 --> 00:10:22.350
for cause challenge.
233
00:10:22.350 --> 00:10:27.197
So could you talk through for us exactly
234
00:10:28.140 --> 00:10:30.513
how we should decide that here?
235
00:10:31.410 --> 00:10:35.520
And particularly, obviously, the Commonwealth is saying
236
00:10:35.520 --> 00:10:37.330
there was so little there that
237
00:10:38.340 --> 00:10:40.110
nothing further, and that's what the judge found.
238
00:10:40.110 --> 00:10:42.060
There wouldn't have been a for cause challenge.
239
00:10:42.060 --> 00:10:45.367
Do we imagine whether someone would've asked,
240
00:10:45.367 --> 00:10:47.250
"What is your brother's name?"
241
00:10:47.250 --> 00:10:50.370
Do we speculate that someone would've run his quarry?
242
00:10:50.370 --> 00:10:52.440
Could you talk us through how we do
243
00:10:52.440 --> 00:10:55.080
the for cause analysis here?
244
00:10:55.080 --> 00:10:57.660
Well, I think, thank you, your Honor.
245
00:10:57.660 --> 00:10:58.980
That's correct.
246
00:10:58.980 --> 00:11:03.750
If she disclosed, "My brother was convicted,
247
00:11:03.750 --> 00:11:07.080
is incarcerated right now, he's convicted."
248
00:11:07.080 --> 00:11:08.610
I mean, I've read enough transcripts.
249
00:11:08.610 --> 00:11:10.957
The next question is, "What county is it?"
250
00:11:10.957 --> 00:11:12.517
"It's Suffolk County."
251
00:11:12.517 --> 00:11:15.420
"Okay, what's your brother's name?
252
00:11:15.420 --> 00:11:16.800
What were the charges?
253
00:11:16.800 --> 00:11:18.300
What was going on?"
254
00:11:18.300 --> 00:11:22.800
And in this case, just that alone
255
00:11:22.800 --> 00:11:24.870
would get you dismissed.
256
00:11:24.870 --> 00:11:26.700
Can you be fair and impartial?
257
00:11:26.700 --> 00:11:27.900
Yeah, but usually-
258
00:11:27.900 --> 00:11:30.030
Oh, this is a little bit weird,
259
00:11:30.030 --> 00:11:32.880
because usually, that scenario, it would be the government
260
00:11:32.880 --> 00:11:35.490
asking for the person to be excused.
261
00:11:35.490 --> 00:11:39.360
Exactly, and it likely would've happened.
262
00:11:39.360 --> 00:11:40.980
But we're in this posture,
263
00:11:40.980 --> 00:11:44.610
and so as far as the for cause challenge,
264
00:11:44.610 --> 00:11:47.580
I mean, even leaving aside what could have been learned
265
00:11:47.580 --> 00:11:50.580
and what was learned about this juror's connections
266
00:11:50.580 --> 00:11:54.930
to this case, however tangentially or peripherally,
267
00:11:54.930 --> 00:11:59.670
the fact that she chose to withhold this information,
268
00:11:59.670 --> 00:12:04.670
material information is itself a powerful indicator of bias,
269
00:12:04.740 --> 00:12:06.990
which the first circuits just recently said
270
00:12:06.990 --> 00:12:08.640
in the cerne of case.
271
00:12:08.640 --> 00:12:13.230
And the site for that is 96 F.4th 441.
272
00:12:13.230 --> 00:12:15.090
That alone can be enough.
273
00:12:15.090 --> 00:12:18.340
And as Justice Blackman concurred in McDonough
274
00:12:19.980 --> 00:12:23.160
that in most cases, the honesty or dishonesty
275
00:12:23.160 --> 00:12:26.130
of a juror's response is the best initial indicator
276
00:12:26.130 --> 00:12:29.130
of whether the juror was in fact impartial.
277
00:12:29.130 --> 00:12:30.987
So you don't learn these things till after.
278
00:12:30.987 --> 00:12:35.987
But we here are a bit hemmed in by, in our speculation,
279
00:12:36.150 --> 00:12:38.310
by the factual findings below,
280
00:12:38.310 --> 00:12:43.260
which were to credit the juror that she did not know about,
281
00:12:43.260 --> 00:12:47.130
as she put it, the lifestyle choices of her half brother.
282
00:12:47.130 --> 00:12:49.293
And she did not know.
283
00:12:51.390 --> 00:12:54.060
The judge found that she believed the juror
284
00:12:54.060 --> 00:12:57.750
that she did not know, so she, on the record before us,
285
00:12:57.750 --> 00:13:00.990
it's not that she was specifically hiding
286
00:13:00.990 --> 00:13:05.460
her brother's specific connection to these groups.
287
00:13:05.460 --> 00:13:10.460
It's just that she chose not to divulge knowingly,
288
00:13:13.890 --> 00:13:16.470
as the judge found, gave an inaccurate answer.
289
00:13:16.470 --> 00:13:21.240
So what is your best case for the proposition
290
00:13:21.240 --> 00:13:25.750
that simply knowingly not divulging
291
00:13:26.730 --> 00:13:30.390
or knowingly giving a wrong answer is enough
292
00:13:30.390 --> 00:13:33.210
because it shows a disinclination
293
00:13:33.210 --> 00:13:35.490
to follow the judge's instructions?
294
00:13:35.490 --> 00:13:39.240
I would say that any of the cases
295
00:13:39.240 --> 00:13:41.820
out of the First Circuit that talk about that,
296
00:13:41.820 --> 00:13:45.600
because again, going to my point that a juror
297
00:13:45.600 --> 00:13:49.260
who consistently will use her own notion
298
00:13:49.260 --> 00:13:51.540
of what she's going to tell the court
299
00:13:51.540 --> 00:13:53.820
and ignore the court's instruction
300
00:13:53.820 --> 00:13:56.040
and do what she wants to do.
301
00:13:56.040 --> 00:13:57.840
Well, in the Sampson case, which is I assume
302
00:13:57.840 --> 00:14:01.410
what you're referring to, there was a lot more dishonesty.
303
00:14:01.410 --> 00:14:04.230
That juror had answered, had hidden,
304
00:14:04.230 --> 00:14:05.400
I forget how many questions.
305
00:14:05.400 --> 00:14:07.020
It was like seven or 10 questions
306
00:14:07.020 --> 00:14:08.640
she had lied in response to.
307
00:14:08.640 --> 00:14:10.470
And then the First Circuit went through
308
00:14:10.470 --> 00:14:14.550
a bunch of different ways in which those dishonest answers
309
00:14:14.550 --> 00:14:18.570
really kind of aligned with the case in some ways.
310
00:14:18.570 --> 00:14:22.380
So what is your best sort of similar analysis here?
311
00:14:22.380 --> 00:14:26.580
Well, I mean, along with the fact of the lie
312
00:14:26.580 --> 00:14:30.810
about something highly significant, at the hearing,
313
00:14:30.810 --> 00:14:34.143
she testified that she didn't,
314
00:14:35.310 --> 00:14:36.390
she knew about her brother,
315
00:14:36.390 --> 00:14:38.970
but he didn't bring that sort of nonsense to me
316
00:14:38.970 --> 00:14:40.290
and her daughter's father.
317
00:14:40.290 --> 00:14:43.320
And he didn't bring that kind of nonsense to me.
318
00:14:43.320 --> 00:14:45.300
And you can't ignore, you know,
319
00:14:45.300 --> 00:14:47.733
she knew that was nonsense.
Was that untrue?
320
00:14:49.260 --> 00:14:50.130
Well, that's what she said.
321
00:14:50.130 --> 00:14:52.080
She testified to that.
Right, right.
322
00:14:52.080 --> 00:14:55.140
And weren't they estranged at the time?
323
00:14:55.140 --> 00:14:57.420
I'm sorry, I don't understand the question.
324
00:14:57.420 --> 00:15:00.333
Well, so in Sampson,
325
00:15:02.010 --> 00:15:07.010
the juror continued to lie even post-trial
326
00:15:07.440 --> 00:15:09.870
when she was brought in for questioning.
327
00:15:09.870 --> 00:15:12.300
Are you suggesting that that's what's happening here?
328
00:15:12.300 --> 00:15:13.900
Certainly did continue to lie.
329
00:15:14.905 --> 00:15:17.220
She testified at the hearing that she didn't learn
330
00:15:17.220 --> 00:15:19.710
that her brother was in a gang until after he got out
331
00:15:19.710 --> 00:15:21.810
after the trial and she read the article
332
00:15:21.810 --> 00:15:23.010
and it said he was in a gang.
333
00:15:23.010 --> 00:15:24.750
And she said-
So the fact
334
00:15:24.750 --> 00:15:28.229
that she learned from an article that he was in a gang
335
00:15:28.229 --> 00:15:30.390
is something that she should have disclosed?
336
00:15:30.390 --> 00:15:33.000
She talked about it with his mother
337
00:15:33.000 --> 00:15:34.950
and her sister.
The gang affiliation?
338
00:15:34.950 --> 00:15:35.783
About the article,
339
00:15:35.783 --> 00:15:37.470
what the charges were about and what it was about.
340
00:15:37.470 --> 00:15:39.690
If we credit the judge
341
00:15:39.690 --> 00:15:42.360
and finds not clearly erroneous, at bottom,
342
00:15:42.360 --> 00:15:46.050
we have a misrepresentation about the custody,
343
00:15:46.050 --> 00:15:48.240
about the brother being in custody.
344
00:15:48.240 --> 00:15:50.580
And as I think it's called, that nonsense,
345
00:15:50.580 --> 00:15:54.450
the gang stuff is out of the equation, correct?
346
00:15:54.450 --> 00:15:56.370
If we credit the judge.
347
00:15:56.370 --> 00:15:58.590
If you credit the judge as far-
348
00:15:58.590 --> 00:16:01.410
If we find no abuse of discretion and we follow
349
00:16:01.410 --> 00:16:03.003
the judge's findings.
Right.
350
00:16:03.840 --> 00:16:07.050
The best case scenario for you, if we do that,
351
00:16:07.050 --> 00:16:10.530
is a misrepresentation that nobody in my family
352
00:16:10.530 --> 00:16:13.110
has been involved in the law,
353
00:16:13.110 --> 00:16:16.803
up to including the brother's incarceration, correct?
354
00:16:17.910 --> 00:16:20.520
Yeah, and I would say that that's a clearly erroneous
355
00:16:20.520 --> 00:16:23.626
decision based on what was developed.
356
00:16:23.626 --> 00:16:25.140
And I don't think-
But do you depend,
357
00:16:25.140 --> 00:16:27.450
does your analysis as far as prejudice
358
00:16:27.450 --> 00:16:29.310
depend upon that finding,
359
00:16:29.310 --> 00:16:32.110
or is the fact of incarceration enough
360
00:16:33.390 --> 00:16:36.360
for you to get the for cause challenge?
361
00:16:36.360 --> 00:16:37.590
Yes, absolutely.
362
00:16:37.590 --> 00:16:41.970
But I also think the court can't ignore what happened here,
363
00:16:41.970 --> 00:16:46.970
that these defendants and this juror had connection
364
00:16:48.180 --> 00:16:50.490
that was undisclosed and was never learned about.
365
00:16:50.490 --> 00:16:54.150
And what triggered this whole case
366
00:16:54.150 --> 00:16:58.477
was the fact that her brother taunted Mr. Ortiz with,
367
00:16:58.477 --> 00:17:00.660
"That's why my sister convicted you."
368
00:17:00.660 --> 00:17:02.486
That's how this started.
369
00:17:02.486 --> 00:17:05.730
We're trying to figure out with the next case
370
00:17:05.730 --> 00:17:07.560
where you don't have all of that,
371
00:17:07.560 --> 00:17:09.210
those things that came out in the end.
372
00:17:09.210 --> 00:17:12.930
I think this court has to just reaffirm Amirault
373
00:17:12.930 --> 00:17:15.060
because it is the clearest explanation
374
00:17:15.060 --> 00:17:17.070
of what you do in that context.
375
00:17:17.070 --> 00:17:18.960
But I think the court also has to say
376
00:17:18.960 --> 00:17:21.867
that a juror who sat on that jury,
377
00:17:21.867 --> 00:17:24.900
and if that's discovered post-conviction,
378
00:17:24.900 --> 00:17:26.670
you can't pretend that you don't know
379
00:17:26.670 --> 00:17:29.520
what you learned post-conviction on investigation.
380
00:17:29.520 --> 00:17:31.260
Okay.
I think you just can't.
381
00:17:31.260 --> 00:17:32.370
All right.
Thank you.
382
00:17:32.370 --> 00:17:33.203
Thank you.
383
00:17:36.450 --> 00:17:37.473
Attorney Hartley.
384
00:17:41.220 --> 00:17:42.570
Good morning, and may it please the court,
385
00:17:42.570 --> 00:17:43.830
Brooke Hartley for the Commonwealth.
386
00:17:43.830 --> 00:17:45.120
And I'd just like to note for the court
387
00:17:45.120 --> 00:17:46.500
that members of the victim's family
388
00:17:46.500 --> 00:17:48.090
may either be present in the courtroom
389
00:17:48.090 --> 00:17:50.550
or watching on the live stream.
390
00:17:50.550 --> 00:17:52.110
This court should affirm the orders
391
00:17:52.110 --> 00:17:54.810
denying the defendant's motions for new trial
392
00:17:54.810 --> 00:17:56.760
and for disqualification of the trial judge,
393
00:17:56.760 --> 00:17:59.793
turning first to the juror issue.
394
00:18:01.050 --> 00:18:03.330
The judge properly denied the defendant's motion
395
00:18:03.330 --> 00:18:06.060
for new trial, where Juror 15 answered
396
00:18:06.060 --> 00:18:10.500
the question inaccurately, but without intent to deceive.
397
00:18:10.500 --> 00:18:12.240
The defendant has not met his burden.
398
00:18:12.240 --> 00:18:14.670
Under the first prong of Amirault,
399
00:18:14.670 --> 00:18:16.650
the defendant must show that the juror failed
400
00:18:16.650 --> 00:18:18.150
to answer the question honestly.
401
00:18:18.150 --> 00:18:20.580
And I think it's extremely significant here
402
00:18:20.580 --> 00:18:22.170
that that is a question of fact
403
00:18:22.170 --> 00:18:23.430
that rests with the trial judge
404
00:18:23.430 --> 00:18:26.460
only to be disturbed if clearly erroneous.
405
00:18:26.460 --> 00:18:28.200
And there's a reason for this.
406
00:18:28.200 --> 00:18:31.170
That's because a hearing permits the trial judge
407
00:18:31.170 --> 00:18:33.780
to observe the juror's demeanor
408
00:18:33.780 --> 00:18:36.150
and to evaluate the juror's answers.
409
00:18:36.150 --> 00:18:39.450
What do we do with the relevance filter
410
00:18:39.450 --> 00:18:42.390
that the juror put into the answer.
411
00:18:42.390 --> 00:18:46.500
So I think the relevance filter is directly related
412
00:18:46.500 --> 00:18:48.720
to the juror's observation, excuse me,
413
00:18:48.720 --> 00:18:51.060
the judge's observations of this individual
414
00:18:51.060 --> 00:18:53.160
and the motivation for lying.
415
00:18:53.160 --> 00:18:55.350
So the judge had the opportunity
416
00:18:55.350 --> 00:18:58.890
to lay eyes on this person and determine
417
00:18:58.890 --> 00:19:01.230
whether or not the person
418
00:19:01.230 --> 00:19:02.790
was intending to deceive the court.
419
00:19:02.790 --> 00:19:05.010
So there's no question that the juror
420
00:19:05.010 --> 00:19:06.870
had this information in her head.
421
00:19:06.870 --> 00:19:09.630
She knew that she's related to Karl Baxter,
422
00:19:09.630 --> 00:19:11.550
but she didn't know at the time
423
00:19:11.550 --> 00:19:15.360
that that was responsive to the question.
424
00:19:15.360 --> 00:19:18.482
And I think if you look at the testimony at the hearing-
425
00:19:18.482 --> 00:19:20.160
Didn't she know it was responsive,
426
00:19:20.160 --> 00:19:22.260
but she thought it didn't matter.
427
00:19:22.260 --> 00:19:24.150
And I think that's kind of the same thing.
428
00:19:24.150 --> 00:19:28.620
So she made this relevancy determination on her own,
429
00:19:28.620 --> 00:19:30.060
which was wrong.
430
00:19:30.060 --> 00:19:32.370
That's not what we want jurors to do.
431
00:19:32.370 --> 00:19:35.340
But the remedy for that isn't necessarily a new trial.
432
00:19:35.340 --> 00:19:38.460
The remedy is to bring that person in for a hearing,
433
00:19:38.460 --> 00:19:40.650
where the defendant makes a showing
434
00:19:40.650 --> 00:19:41.880
to bring that person in for a hearing
435
00:19:41.880 --> 00:19:43.830
and for the judge to lay eyes on that person
436
00:19:43.830 --> 00:19:47.490
and to determine what the motives for that inaccuracy were.
437
00:19:47.490 --> 00:19:49.500
And that's how you get to honest.
438
00:19:49.500 --> 00:19:51.990
And so I think if you look at the transcript-
439
00:19:51.990 --> 00:19:54.513
But is the judge adding another element to it?
440
00:19:55.470 --> 00:19:59.400
I mean, the juror knows it's inaccurate,
441
00:19:59.400 --> 00:20:02.340
but then the judge is adding this,
442
00:20:02.340 --> 00:20:05.160
okay, the juror's doing their own kind of determination
443
00:20:05.160 --> 00:20:07.410
of what the legal requirement is.
444
00:20:07.410 --> 00:20:09.570
Isn't that new?
445
00:20:09.570 --> 00:20:11.490
And isn't that a question of law,
446
00:20:11.490 --> 00:20:13.560
not a question of fact for us?
447
00:20:13.560 --> 00:20:14.670
I don't think so, your Honor.
448
00:20:14.670 --> 00:20:17.670
And I think if I go to the,
449
00:20:17.670 --> 00:20:20.370
really, the lines at issue from the transcript here,
450
00:20:20.370 --> 00:20:21.810
it illustrates why.
451
00:20:21.810 --> 00:20:23.437
So the judge asked the juror,
452
00:20:23.437 --> 00:20:25.500
"Can you just tell us with respect to Karl,
453
00:20:25.500 --> 00:20:27.450
why did you check no to that box?"
454
00:20:27.450 --> 00:20:29.467
And she answers reasonably,
455
00:20:29.467 --> 00:20:31.320
"Because Karl didn't live in my household."
456
00:20:31.320 --> 00:20:32.940
Then the judge presses further
457
00:20:32.940 --> 00:20:36.720
with what's really at issue here is the or family part.
458
00:20:36.720 --> 00:20:38.670
And the judge says, "Did you think of him
459
00:20:38.670 --> 00:20:40.140
as a member of your family?"
460
00:20:40.140 --> 00:20:42.480
And she says, "Yes, but I didn't think,
461
00:20:42.480 --> 00:20:44.550
I didn't think he had any relation to this trial,
462
00:20:44.550 --> 00:20:45.720
so why would I say yes?"
463
00:20:45.720 --> 00:20:48.090
Now, when I read this transcript,
464
00:20:48.090 --> 00:20:50.820
I think a lot is lost when-
465
00:20:50.820 --> 00:20:52.200
That's a big,
466
00:20:52.200 --> 00:20:55.410
that's a big no-no what she does there, right?
467
00:20:55.410 --> 00:20:58.200
Of course, and we don't encourage jurors to do that.
468
00:20:58.200 --> 00:21:00.540
But again, I think the remedy is the hearing.
469
00:21:00.540 --> 00:21:03.540
But what I wanna point out here is that
470
00:21:03.540 --> 00:21:05.400
the words on the page of the transcript,
471
00:21:05.400 --> 00:21:08.370
there's a lot loss that we don't get that the judge did get.
472
00:21:08.370 --> 00:21:11.340
So when I read that, I unequivocally said yes.
473
00:21:11.340 --> 00:21:14.070
But we don't know what the juror's demeanor was
474
00:21:14.070 --> 00:21:15.270
when she answered that question.
475
00:21:15.270 --> 00:21:17.760
Did she say yes and then go on?
476
00:21:17.760 --> 00:21:18.780
The judge does know.
477
00:21:18.780 --> 00:21:23.780
So just because she's aware of this biological relationship,
478
00:21:24.120 --> 00:21:27.600
that leaves out a lot of important context, I think.
479
00:21:27.600 --> 00:21:30.210
This is an individual, the juror only found out
480
00:21:30.210 --> 00:21:31.710
that this person was incarcerated
481
00:21:31.710 --> 00:21:33.930
through reading a newspaper article.
482
00:21:33.930 --> 00:21:36.150
This is her half brother.
I thought she had
483
00:21:36.150 --> 00:21:39.510
confirmed it with other family members?
484
00:21:39.510 --> 00:21:40.740
After she read the article.
485
00:21:40.740 --> 00:21:42.270
So she first-
But before
486
00:21:42.270 --> 00:21:43.470
she was empaneled?
487
00:21:43.470 --> 00:21:45.420
That's right.
So at the time
488
00:21:45.420 --> 00:21:49.410
of empanelment, she knew that her half brother
489
00:21:49.410 --> 00:21:53.220
was incarcerated and she identified him as family.
490
00:21:53.220 --> 00:21:54.930
So she identified him as family
491
00:21:54.930 --> 00:21:56.940
when pressed afterwards at this hearing.
492
00:21:56.940 --> 00:21:58.650
I think my point is that-
493
00:21:58.650 --> 00:22:00.170
Can I add another fact?
Sure.
494
00:22:00.170 --> 00:22:02.970
In the newspaper report, whether it's accurate or not,
495
00:22:02.970 --> 00:22:05.550
reported as a gang related.
496
00:22:05.550 --> 00:22:08.160
So whether she knows he's in a gang or not,
497
00:22:08.160 --> 00:22:11.070
she's aware that the Boston Herald
498
00:22:11.070 --> 00:22:13.590
has described him as such, right?
499
00:22:13.590 --> 00:22:14.640
Certainly, yeah.
500
00:22:14.640 --> 00:22:16.500
She learned from reading that article
501
00:22:16.500 --> 00:22:18.600
that he was the leader of the Lucerne Street Doggz.
502
00:22:18.600 --> 00:22:19.740
She didn't know that before.
503
00:22:19.740 --> 00:22:22.560
She didn't gain any other further information after,
504
00:22:22.560 --> 00:22:24.510
but she was aware of that.
505
00:22:24.510 --> 00:22:27.780
And I think my my point here is that
506
00:22:27.780 --> 00:22:30.960
her response to that question, "no,"
507
00:22:30.960 --> 00:22:33.960
doesn't necessarily, just because it's inaccurate,
508
00:22:33.960 --> 00:22:37.800
mean that she was intentionally trying to deceive the court.
509
00:22:37.800 --> 00:22:41.070
I think family means different things to different people.
510
00:22:41.070 --> 00:22:43.110
And you're going to get some varied responses here,
511
00:22:43.110 --> 00:22:46.050
which is why the judge gave those further instructions
512
00:22:46.050 --> 00:22:49.200
about relevancy, which she still obviously didn't heed.
513
00:22:49.200 --> 00:22:51.570
But I think that just goes to show
514
00:22:51.570 --> 00:22:56.570
that in her mind at the time, believed that this was not
515
00:22:56.640 --> 00:22:58.317
a responsive answer to the question.
516
00:22:58.317 --> 00:23:00.030
I'm sorry, go ahead.
I was just gonna say,
517
00:23:00.030 --> 00:23:02.280
it seems like your rule is pretty broad,
518
00:23:02.280 --> 00:23:06.240
and it allows jurors to determine what's relevant,
519
00:23:06.240 --> 00:23:11.240
what's not relevant without needing to be honest
520
00:23:12.180 --> 00:23:15.060
on the questionnaire and during the voire dire.
521
00:23:15.060 --> 00:23:16.890
Well, I disagree with that, your Honor.
522
00:23:16.890 --> 00:23:19.467
I think jurors absolutely need to be honest,
523
00:23:19.467 --> 00:23:24.467
and the remedy, again, I don't think we want to encourage
524
00:23:24.780 --> 00:23:26.970
jurors to use their own relevancy filters,
525
00:23:26.970 --> 00:23:30.180
but the remedy for that, it's going to happen.
526
00:23:30.180 --> 00:23:32.940
But the remedy for that is to bring the person in
527
00:23:32.940 --> 00:23:34.140
and to have a hearing.
528
00:23:34.140 --> 00:23:37.230
That's how the defendant's due process rights are satisfied,
529
00:23:37.230 --> 00:23:39.960
by the judge getting to lay eyes on this person
530
00:23:39.960 --> 00:23:44.960
and determining whether that person is biased or not.
531
00:23:45.000 --> 00:23:49.710
And I think if you look at McDonough power equipment,
532
00:23:49.710 --> 00:23:53.700
it's analogous to this case and instructive for this court.
533
00:23:53.700 --> 00:23:56.460
That's a case, it's a civil case of course,
534
00:23:56.460 --> 00:23:58.200
but the question at issue there
535
00:23:58.200 --> 00:24:00.030
was how many of you have yourselves
536
00:24:00.030 --> 00:24:02.520
or any members of your immediate family sustained
537
00:24:02.520 --> 00:24:05.940
a severe injury, not necessarily as severe as Billy's?"
538
00:24:05.940 --> 00:24:07.393
That was the plaintiff in the case.
539
00:24:07.393 --> 00:24:09.180
See, the problem with that analogy
540
00:24:09.180 --> 00:24:12.840
is that that case required the juror
541
00:24:12.840 --> 00:24:15.960
to make a relative assessment.
542
00:24:15.960 --> 00:24:19.650
And what Justice Rehnquist, I think, says in his decision
543
00:24:19.650 --> 00:24:22.140
for the polarity of the court is that
544
00:24:22.140 --> 00:24:24.120
different people think severe injury
545
00:24:24.120 --> 00:24:25.860
is different things.
546
00:24:25.860 --> 00:24:30.120
Here, whether or not her brother was incarcerated
547
00:24:30.120 --> 00:24:32.730
is not a relative, you know,
548
00:24:32.730 --> 00:24:34.740
something that you gauge relatively.
549
00:24:34.740 --> 00:24:36.120
Well, I disagree, your Honor.
550
00:24:36.120 --> 00:24:37.920
I think perhaps it's more clear
551
00:24:37.920 --> 00:24:40.590
when the juror is determining what the definition
552
00:24:40.590 --> 00:24:43.350
of severe injury is, although the injury was quite similar
553
00:24:43.350 --> 00:24:45.330
to what happened in this case.
554
00:24:45.330 --> 00:24:47.730
But the same is true of family.
555
00:24:47.730 --> 00:24:50.460
This is an individual who had six half brothers and sisters.
556
00:24:50.460 --> 00:24:53.100
This is a person who never grew up in the same household
557
00:24:53.100 --> 00:24:56.460
as Karl Baxter and who, as we'll find out at the hearing,
558
00:24:56.460 --> 00:25:00.390
had almost no relationship with him at the time.
559
00:25:00.390 --> 00:25:01.830
Later, they developed a relationship.
560
00:25:01.830 --> 00:25:03.363
Your position is that,
561
00:25:05.370 --> 00:25:09.510
is that relatively, she didn't consider him family.
562
00:25:09.510 --> 00:25:11.610
Yes, and I think that's what the judge found.
563
00:25:11.610 --> 00:25:15.180
And I think that's why we have to be careful about
564
00:25:15.180 --> 00:25:16.560
this knowingly inaccurate-
565
00:25:16.560 --> 00:25:17.393
Sorry, can we just back up?
566
00:25:17.393 --> 00:25:20.070
I thought that the judge very specifically found
567
00:25:20.070 --> 00:25:22.563
that she did consider him family.
568
00:25:24.030 --> 00:25:25.267
The juror was asked that question,
569
00:25:25.267 --> 00:25:26.640
"Did you consider him family?"
570
00:25:26.640 --> 00:25:28.890
The juror said yes, and the judge credited
571
00:25:28.890 --> 00:25:32.700
that she considered him family, and nevertheless,
572
00:25:32.700 --> 00:25:35.700
knowingly inaccurately answered the question.
573
00:25:35.700 --> 00:25:39.390
I think what I am trying to capture
574
00:25:39.390 --> 00:25:42.180
is that she didn't think that it was responsive
575
00:25:42.180 --> 00:25:43.530
to the question at the time.
I take your point,
576
00:25:43.530 --> 00:25:46.800
but even granting that you're of course right
577
00:25:46.800 --> 00:25:48.030
that the term "family"
578
00:25:48.030 --> 00:25:50.190
can mean many things to different people,
579
00:25:50.190 --> 00:25:52.326
and in that way, it is similar
580
00:25:52.326 --> 00:25:55.170
to the question about severe injury.
581
00:25:55.170 --> 00:25:58.440
In this case, it seems like we have clear factual findings
582
00:25:58.440 --> 00:26:03.213
that this juror did consider her half brother to be family.
583
00:26:04.080 --> 00:26:05.220
Even though the word "family"
584
00:26:05.220 --> 00:26:06.780
could be open to interpretation,
585
00:26:06.780 --> 00:26:09.300
we have a factual finding that she did consider him family
586
00:26:09.300 --> 00:26:12.120
and that this was a knowingly inaccurate question.
587
00:26:12.120 --> 00:26:13.410
Answer, sorry.
588
00:26:13.410 --> 00:26:14.910
It was knowingly inaccurate
589
00:26:14.910 --> 00:26:18.180
in that she had this information somewhere
590
00:26:18.180 --> 00:26:19.920
in the universe of her brain.
591
00:26:19.920 --> 00:26:23.370
She was aware that this person was her half-brother.
592
00:26:23.370 --> 00:26:25.980
She had this biological relationship with him.
593
00:26:25.980 --> 00:26:30.210
I think the issue is whether when she answered no
594
00:26:30.210 --> 00:26:32.280
to that question, whether she thought
595
00:26:32.280 --> 00:26:34.380
that that was responsive to,
596
00:26:34.380 --> 00:26:38.220
was this person a member of your household or family?
597
00:26:38.220 --> 00:26:40.920
And I think her answer at the hearing,
598
00:26:40.920 --> 00:26:42.217
what she first says is,
599
00:26:42.217 --> 00:26:44.280
"No, because he didn't live in my household"
600
00:26:44.280 --> 00:26:45.720
is also very telling.
601
00:26:45.720 --> 00:26:50.720
And again, I don't think it's an appellate court's place
602
00:26:51.090 --> 00:26:52.830
to second guess the trial judge's findings
603
00:26:52.830 --> 00:26:55.740
where she was able to observe this person's answer.
604
00:26:55.740 --> 00:26:59.190
And again, she said yes, but did she say yes?
605
00:26:59.190 --> 00:27:00.360
Did she say yes?
606
00:27:00.360 --> 00:27:03.450
It's difficult for us to know just by reading the words
607
00:27:03.450 --> 00:27:05.220
on the transcript.
I think Judge Dewar's
608
00:27:05.220 --> 00:27:06.960
point is that the judge found
609
00:27:06.960 --> 00:27:09.480
that she thought he was family.
610
00:27:09.480 --> 00:27:10.650
And I think that's true.
So it wasn't
611
00:27:10.650 --> 00:27:12.063
a relative thing.
612
00:27:13.140 --> 00:27:15.000
Is he severely injured or not?
613
00:27:15.000 --> 00:27:18.150
It was really definitively, "Yes, he was my family
614
00:27:18.150 --> 00:27:20.550
and I chose not to disclose it
615
00:27:20.550 --> 00:27:23.250
because I did not think it was relevant."
616
00:27:23.250 --> 00:27:24.900
I think that's true.
617
00:27:24.900 --> 00:27:27.030
But I think if you get to,
618
00:27:27.030 --> 00:27:31.680
so the judge found that because it was not dishonest,
619
00:27:31.680 --> 00:27:35.310
because she did not intend to deceive the court.
620
00:27:35.310 --> 00:27:38.310
And I think that has to be part of the definition of honest.
621
00:27:39.180 --> 00:27:41.010
Where in Amirault does it say
622
00:27:41.010 --> 00:27:46.010
that the juror's motive for dishonesty comes into play?
623
00:27:46.290 --> 00:27:48.300
So that comes from McDonough,
624
00:27:48.300 --> 00:27:51.390
and it's the motives for concealing information may vary,
625
00:27:51.390 --> 00:27:54.450
but only those reasons that affect a juror's impartiality
626
00:27:54.450 --> 00:27:56.910
can truly be said to affect the fairness of the trial.
627
00:27:56.910 --> 00:27:58.830
And I think that's what's at the crux
628
00:27:58.830 --> 00:28:01.080
of this honesty determination.
629
00:28:01.080 --> 00:28:05.460
But that still short circuits the defendant's right
630
00:28:06.690 --> 00:28:10.410
to move to disqualify this person for cause,
631
00:28:10.410 --> 00:28:13.020
because I mean, you keep glossing over that,
632
00:28:13.020 --> 00:28:15.390
but that's really important thing.
633
00:28:15.390 --> 00:28:17.883
So we don't just get to sit back and say,
634
00:28:19.177 --> 00:28:21.060
"Please tell me the truth,
635
00:28:21.060 --> 00:28:23.940
then please, please tell me the truth,"
636
00:28:23.940 --> 00:28:27.337
because that's the second time when Judge Fabricant say,
637
00:28:27.337 --> 00:28:30.660
"Don't use your definition of relevance," right?
638
00:28:30.660 --> 00:28:33.240
She specifically tells them that.
639
00:28:33.240 --> 00:28:37.410
And even with that, she goes off and doesn't say this.
640
00:28:37.410 --> 00:28:40.170
And I guess the question that I have for you is,
641
00:28:40.170 --> 00:28:41.757
you keep saying that we then get to go
642
00:28:41.757 --> 00:28:43.807
and the trial judge gets to go in and say,
643
00:28:43.807 --> 00:28:46.530
"Now I'm gonna play Carnac the Magnificent
644
00:28:46.530 --> 00:28:48.450
and try to figure out whether or not
645
00:28:48.450 --> 00:28:50.430
this person was trying to lie to me."
646
00:28:50.430 --> 00:28:51.990
But the second part of that
647
00:28:51.990 --> 00:28:54.997
short circuits the defendant's ability to say,
648
00:28:54.997 --> 00:28:58.050
"I want this person disqualified.
649
00:28:58.050 --> 00:29:00.810
I want this person disqualified for cause
650
00:29:00.810 --> 00:29:03.030
because I don't wanna run the risk
651
00:29:03.030 --> 00:29:04.800
that there's some snakes slithering around
652
00:29:04.800 --> 00:29:06.800
in this person's head that would enure
653
00:29:06.800 --> 00:29:09.000
to my client's detriment."
654
00:29:09.000 --> 00:29:10.920
So I think the second part of the test
655
00:29:10.920 --> 00:29:13.680
is not whether the defendant would raise
656
00:29:13.680 --> 00:29:14.760
a challenge for cause.
657
00:29:14.760 --> 00:29:17.700
I think, as Justice Gaziano said,
658
00:29:17.700 --> 00:29:19.140
it's probably likely that the commonwealth
659
00:29:19.140 --> 00:29:20.580
would've raised a challenge for cause here.
660
00:29:20.580 --> 00:29:23.820
But the question is whether there was a basis for the judge
661
00:29:23.820 --> 00:29:26.100
to allow a challenge for cause,
662
00:29:26.100 --> 00:29:30.270
to find that that juror is is not impartial.
663
00:29:30.270 --> 00:29:31.470
So it's not-
Sure.
664
00:29:31.470 --> 00:29:33.750
Right.
But that's not
665
00:29:33.750 --> 00:29:34.740
a huge thing, right?
666
00:29:34.740 --> 00:29:36.810
Because whenever we get the question
667
00:29:36.810 --> 00:29:38.910
of whether you would choose to credit
668
00:29:38.910 --> 00:29:41.100
the testimony of a police officer
669
00:29:41.100 --> 00:29:44.070
more or less than any other witness, that's routinely asked.
670
00:29:44.070 --> 00:29:46.590
And if the hand goes up, it's routinely allowed.
671
00:29:46.590 --> 00:29:48.750
So we're not talking about a huge burden here
672
00:29:48.750 --> 00:29:51.690
for the three defendants in an accused
673
00:29:51.690 --> 00:29:56.070
gang-related shooting, retaliatory shooting
674
00:29:56.070 --> 00:29:57.540
to say, "I don't want the person
675
00:29:57.540 --> 00:30:01.770
whose brother happens to lead a rival gang on my jury."
676
00:30:01.770 --> 00:30:03.120
They didn't know that at the time, but-
677
00:30:03.120 --> 00:30:04.230
Perhaps, but they'd know
678
00:30:04.230 --> 00:30:07.063
that he was the leader of the gang.
679
00:30:07.063 --> 00:30:10.730
Yes, and so I think the judge, in her discretion,
680
00:30:10.730 --> 00:30:12.150
if it had gone there,
681
00:30:12.150 --> 00:30:13.770
if the juror had answered the question,
682
00:30:13.770 --> 00:30:16.560
yes, could have allowed a challenge for cause.
683
00:30:16.560 --> 00:30:18.780
But that doesn't mean that the judge was required
684
00:30:18.780 --> 00:30:20.730
to allow a challenge for cause.
685
00:30:20.730 --> 00:30:23.406
If you look at Mattier from this court-
686
00:30:23.406 --> 00:30:26.490
How do we ignore the follow up,
687
00:30:26.490 --> 00:30:28.890
the obvious follow up question point,
688
00:30:28.890 --> 00:30:33.210
which is once this person's identified,
689
00:30:33.210 --> 00:30:36.120
a lot of bells and whistles are gonna go off, right?
690
00:30:36.120 --> 00:30:40.503
That, okay, we got a gang issue here.
691
00:30:42.240 --> 00:30:43.710
They're gonna identify this person's name.
692
00:30:43.710 --> 00:30:47.580
Isn't all this gonna come out if she an answers honestly?
693
00:30:47.580 --> 00:30:49.800
No, your Honor, because what the findings
694
00:30:49.800 --> 00:30:51.720
at the hearing were that the juror,
695
00:30:51.720 --> 00:30:54.270
and this is what's very really important here.
696
00:30:54.270 --> 00:30:57.300
Certainly, defendants could have done research
697
00:30:57.300 --> 00:31:00.180
and found out more about Karl Baxter if they knew his name.
698
00:31:00.180 --> 00:31:02.280
But if she answers the question honestly,
699
00:31:02.280 --> 00:31:03.113
the first question,
700
00:31:03.113 --> 00:31:05.580
do you have a brother who's been incarcerated?
701
00:31:05.580 --> 00:31:07.710
She's gonna say yes.
702
00:31:07.710 --> 00:31:09.930
And then they're gonna ask his name.
703
00:31:09.930 --> 00:31:14.250
And isn't that gonna generate a defense challenge?
704
00:31:14.250 --> 00:31:16.020
'Cause they're gonna know who he is?
705
00:31:16.020 --> 00:31:17.910
Well, it may be, it would have,
706
00:31:17.910 --> 00:31:19.800
but the question is, again, not whether
707
00:31:19.800 --> 00:31:21.960
the defendant is going to raise a challenge.
708
00:31:21.960 --> 00:31:23.070
The question is whether the judge
709
00:31:23.070 --> 00:31:24.810
is required to excuse that juror.
710
00:31:24.810 --> 00:31:28.770
And if you look at the juror's testimony at the hearing,
711
00:31:28.770 --> 00:31:30.630
there are several crucial findings.
712
00:31:30.630 --> 00:31:33.570
So the juror was, yes, aware that Karl was incarcerated
713
00:31:33.570 --> 00:31:36.600
at the time of the trial because she had read about it.
714
00:31:36.600 --> 00:31:39.180
But between the time the juror read that article
715
00:31:39.180 --> 00:31:40.380
and the beginning of the trial,
716
00:31:40.380 --> 00:31:42.720
the juror didn't learn any other information
717
00:31:42.720 --> 00:31:46.080
about the gang or about Karl's affiliation with the gang.
718
00:31:46.080 --> 00:31:48.180
She never had a conversation with Karl
719
00:31:48.180 --> 00:31:50.850
about why he was incarcerated or gang affiliation.
720
00:31:50.850 --> 00:31:53.763
But again, I'm not concerned so much with,
721
00:31:55.320 --> 00:31:56.280
they're gonna say,
722
00:31:56.280 --> 00:31:58.230
she's gonna answer the question honestly, yes,
723
00:31:58.230 --> 00:32:01.500
and then isn't the Herald article gonna come out
724
00:32:01.500 --> 00:32:05.100
and then no judge is gonna allow this person on
725
00:32:05.100 --> 00:32:07.320
if it's a rival gang person, right?
726
00:32:07.320 --> 00:32:08.910
Well, I think that's all speculative.
727
00:32:08.910 --> 00:32:11.610
And what matters under McDonough
728
00:32:11.610 --> 00:32:15.990
and under this court's case law in Amirault is the juror.
729
00:32:15.990 --> 00:32:17.940
And whether the juror was impartial
730
00:32:17.940 --> 00:32:21.510
and based on her universe of knowledge, at this time,
731
00:32:21.510 --> 00:32:22.830
she didn't know anything more.
732
00:32:22.830 --> 00:32:24.960
And the judge found to that effect
733
00:32:24.960 --> 00:32:28.230
that if she had answered the question accurately,
734
00:32:28.230 --> 00:32:31.500
further questions would not have yield any information
735
00:32:31.500 --> 00:32:32.910
because she didn't know anything.
736
00:32:32.910 --> 00:32:35.700
All she knew was that she had a brother
737
00:32:35.700 --> 00:32:37.800
who was incarcerated at the time.
738
00:32:37.800 --> 00:32:41.370
She didn't know anything about the Lucerne Street Doggz.
739
00:32:41.370 --> 00:32:42.600
She read it in the newspaper article.
740
00:32:42.600 --> 00:32:44.610
She didn't know about any affiliations
741
00:32:44.610 --> 00:32:46.620
or rivalries between the Lucerne Street Doggz.
742
00:32:46.620 --> 00:32:49.053
She didn't know anything about MOB.
743
00:32:50.210 --> 00:32:53.700
And so-
Is it irrelevant
744
00:32:53.700 --> 00:32:57.540
what the defendants would have found out
745
00:32:57.540 --> 00:32:59.130
if she had been honest?
746
00:32:59.130 --> 00:33:00.240
Yes, I think it is.
747
00:33:00.240 --> 00:33:02.880
I think the question we're looking just at this juror
748
00:33:02.880 --> 00:33:05.010
and what this juror knew at the time
749
00:33:05.010 --> 00:33:06.870
and whether or not this juror was impartial.
750
00:33:06.870 --> 00:33:09.750
I think that's the crux of the inquiry
751
00:33:09.750 --> 00:33:12.960
under the second prong, under the prejudice prong.
752
00:33:12.960 --> 00:33:15.000
Chief, could I ask one?
753
00:33:15.000 --> 00:33:16.140
Counsel, I just wanna go back
754
00:33:16.140 --> 00:33:17.845
to at least the first question again.
755
00:33:17.845 --> 00:33:20.640
So you have a situation where the trial judge
756
00:33:20.640 --> 00:33:22.830
during voir dire asked this question.
757
00:33:22.830 --> 00:33:27.830
The trial judge follows up after the fact and says,
758
00:33:28.117 --> 00:33:31.890
"Please don't superimpose your definition of relevance.
759
00:33:31.890 --> 00:33:34.650
Tell us everything, everything."
760
00:33:34.650 --> 00:33:38.250
And then years later, during this evidentiary hearing,
761
00:33:38.250 --> 00:33:42.630
you say because there's an ability to observe this person
762
00:33:42.630 --> 00:33:47.630
during the hearing, that that precludes us from finding
763
00:33:48.420 --> 00:33:53.420
that it was clearly erroneous that she intended to deceive.
764
00:33:53.702 --> 00:33:57.840
Is there ever a chance or is there ever a world
765
00:33:57.840 --> 00:34:00.330
where that can't always be said
766
00:34:00.330 --> 00:34:01.560
after an evidentiary hearing?
767
00:34:01.560 --> 00:34:04.440
And we've said that after evidentiary hearings, right?
768
00:34:04.440 --> 00:34:06.600
Yes, I think if there was testimony
769
00:34:06.600 --> 00:34:10.980
that conflicted the trial judge's finding,
770
00:34:10.980 --> 00:34:14.580
then this court could certainly find it clearly erroneous
771
00:34:14.580 --> 00:34:17.430
and overrule that judge's factual finding.
772
00:34:17.430 --> 00:34:18.660
But this isn't that case, your Honor.
773
00:34:18.660 --> 00:34:23.310
But when she says, "I thought it was irrelevant,"
774
00:34:23.310 --> 00:34:24.697
even though I told you,
775
00:34:24.697 --> 00:34:29.130
"Don't add your definition of irrelevant or relevant,"
776
00:34:29.130 --> 00:34:31.050
that that's not clearly erroneous?
777
00:34:31.050 --> 00:34:33.270
No, your Honor, because the trial judge determined,
778
00:34:33.270 --> 00:34:35.850
and I think a lot of this comes down
779
00:34:35.850 --> 00:34:38.160
to what the definition of honesty is.
780
00:34:38.160 --> 00:34:39.540
The trial judge determined
781
00:34:39.540 --> 00:34:41.430
that she was not intending to deceive the court.
782
00:34:41.430 --> 00:34:42.990
And the commonwealth's position is that
783
00:34:42.990 --> 00:34:46.230
the definition of honest is not just knowingly inaccurate,
784
00:34:46.230 --> 00:34:48.960
but is that intent to deceive the court.
785
00:34:48.960 --> 00:34:51.210
So whether or not she had this knowledge in her head,
786
00:34:51.210 --> 00:34:53.730
was she purposely withholding it
787
00:34:53.730 --> 00:34:54.900
to conceal it from the court?
788
00:34:54.900 --> 00:34:57.213
I think that's the crux of the issue.