-: SJC-13528, Commonwealth versus Markeese Mitchell.
SJC-13529, Commonwealth versus Pedro Ortiz.
SJC-13530, Commonwealth versus Terrance Pabon.
-: Okay, Attorney Neaves.
-: Good morning.
Cathryn A. 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-
Judge Gaziano: We've gotten conditional answers
from lawyers before, though.
-: I'm sorry? -: We've gotten
conditional answers from lawyers before.
-: (laughs) 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 abusive 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,
and that the juror knew Karl had been convicted of crimes
and was incarcerated.
That's at defendant's brief at 59.
Judge Gaziano: 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.
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?
If 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.
And so maybe your 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.
-: 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.
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 she wouldn't be excused for cause
after explanation, isn't that right?
-: No, the parties said no problem because-
Wendlandt: So the parties also agree?
-: Said with respect to that.
Okay, she said,
"Oh, 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."
Judge Gaziano: But that's relatively common.
-: Yeah, I mean, that's not,
I mean, it's not, "My brother is the leader
of the Lucerne Street Doggz
and he's incarcerated for gun charges"
and that's significant.
And in fact, the trial judge in this case
highlighted that question.
Judge Wendlandt: And the parties had a chance to evaluate
whether or not they wanted to let her go based on-
-: Well, just based on that. -: Right.
-: 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 don't know anymore.
You say, "Oh, I'll take that juror."
-: 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 what the trial judge,
and I think this is also something
that the trial judge earned 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 look at the judge,
an objective judge looks at the dishonesty
and the reason for the dishonesty
to decide whether the juror was capable
of being an impartial juror.
In this situation, however-
-: She disqualified,
the trial judge disqualified another juror, right?
For the same mistake, right? -: 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.
Judge Kafka: And she disqualified him for cause?
-: 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 mean, he sort of did the same kind of thing.
"They 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. -: Yes.
-: And then we go on to whether or not this would be
appropriate basis for cause.
So with the juror that Justice Kafka 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 does not lie a challenge for cause.
Can you think of one?
-: I mean, you know,
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,
"I got a quaff.
I thought that case was dismissed."
-: Right, right, I didn't realize.
Yeah, I think it's not honest
because you know you have that, right?
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,
"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.
And the trial judge said,
"Well, if she disclosed that her brother was in jail,
we wouldn't have learned much more."
You can't pretend.
The defendants here were entitled to an impartial jury.
If you've got a juror, if you find out you've got 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."
-: 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're 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 what we're supposed to do
is decide whether there would've been a basis
for cause challenge.
So could you talk through for us exactly
how we should decide that here?
And particularly, obviously, the Commonwealth is saying
there was so little there that
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?
What were the charges?
What was going on?"
And in this case, just that alone
would get you dismissed.
Can you be fair and impartial?
Yeah, but usually-
-: Oh, 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 circuits just recently said
in the cerne of case.
And the site for that is 96 F.4th 441.
That alone can be enough.
And as Justice Blackman 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 she did not 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,
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 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 Sampson 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 First Circuit went through
a bunch of different ways in which those dishonest answers
really kind of aligned with the case in some ways.
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,
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 that was nonsense. -: Was that untrue?
-: Well, that's what she said.
She testified to that. -: Right, right.
And weren't they estranged at the time?
Cathryn: I'm sorry, I don't understand the question.
-: Well, so in Sampson,
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
is something that she should have disclosed?
-: She talked about it with his mother
and her sister. -: The gang affiliation?
-: About the article,
what the charges were about and what it was about.
-: If we credit the judge
and finds 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.
Cathryn: If you credit the judge as far-
-: If we find no abuse of discretion and we follow
the judge's findings. -: Right.
-: The best case scenario for you, if we do that,
is a misrepresentation that nobody in my family
has 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.
And I don't think- -: 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.
-: We're trying to figure out 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.
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 the relevance filter
that the juror put into the answer.
-: So I think the relevance filter is directly related
to the juror's observation, 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 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,
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 a lot is lost when-
-: That's a big,
that's a big no-no what she does there, right?
-: 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 loss 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 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. -: I thought she had
confirmed it with other family members?
-: After she read the article.
So she first- -: But before
she was empaneled?
-: That's right. -: So at the time
of empanelment, 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-
-: Can I add another fact? -: Sure.
-: In the newspaper report, whether it's accurate or not,
reported as a gang related.
So whether she knows he's in a gang or not,
she's aware that 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 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 in her mind at the time, believed that this was not
a responsive answer to the question.
-: I'm sorry, go ahead. -: 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 voire dire.
-: Well, I disagree with that, your Honor.
I think jurors absolutely need to be honest,
and the remedy, again, 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 defendant's 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 required the juror
to make a relative assessment.
And what Justice Rehnquist, I think, says in his decision
for the polarity of the court is that
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 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.
-: Your position is that,
is that relatively, she didn't consider him family.
-: Yes, 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.
Answer, sorry.
-: It was knowingly inaccurate
in that she had this information somewhere
in the universe of her brain.
She was aware that 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 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. -: I think Judge Dewar's
point is that the judge found
that she thought he was family.
-: And I think that's true. -: So it wasn't
a relative thing.
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 it was not dishonest,
because 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 wanna run the risk
that there's some snakes slithering around
in this person's head that would enure
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, 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 is not impartial.
So it's not- -: Sure.
-: Right. -: But 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."
Brooke: They didn't know that at the time, but-
-: Perhaps, 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 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.
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.
-: But if she answers the question honestly,
the first question,
do you have a brother who's been incarcerated?
She's gonna say 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 may be, 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,
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 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 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 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've said that after evidentiary hearings, right?
-: Yes, I think if there was testimony
that conflicted the trial judge's finding,
then this court could certainly find it clearly erroneous
and overrule that judge's factual finding.
But this isn't that case, your Honor.
-: But when she says, "I thought it was irrelevant,"
even though I told you,
"Don't add your definition of irrelevant or relevant,"
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 the crux of the issue.