-: 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 counsel 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.
-: I'm sorry?
Justice Gaziano: 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.
Justice 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.
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?
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, 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.
-: 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-
-: [Justice Wendlandt] So the party is also agreeing.
-: Said with respect to that, "Okay."
You know, she said, "Oh, 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."
Justice Gaziano: 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 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.
-: [Justice Wendlandt] 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 know, 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, 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-
-: She disqualified,
the trial judge disqualified another juror, right,
for the same mistake, right?
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?
-: It was discovered, when the Commonwealth ran his CORI
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-
-: 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 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 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-
-: Would it be similar to the first incident
that happened with the juror, where the juror says,
"You know, I got a cough.
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 you, the court learns a lot of things.
You can't put, you know, and the trial judge said,
"Well, if I, 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
who sat on that jury who was not impartial,
and you don't find out till afterward, it's still an error.
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."
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 our, what we're supposed to do
is decide whether there would've been a basis
for a 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 CORI?
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, you know, can you be fair and impartial?
Yeah, but usually-
-: Well, 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 Tsarnaev case, and the cite for that is 96 F.4th 441,
that alone can be enough.
And as Justice Blackmun 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 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 7 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.
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?
Neaves: 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 in findings,
are 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?
-: If you credit the judge
as far as, right. -: If we find
no abuse of discretion and we follow the judge's findings-
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,
we're trying to figure out with the, you know,
with the next case, where you don't have all of the,
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,
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.
Justice Budd: 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 livestream.
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, 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-
-: Think 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,
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 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] But before she was empaneled.
-: That's right, but I just- -: Okay, 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-
Justice Kafker: And can I add another fact?
-: Sure.
-: And 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. -: So if-
Justice Kafker: 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, 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 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 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, whether, is that, relatively,
she didn't consider him family.
That's, okay. -: 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.
Hartley: It was a-
-: 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 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-
-: But I think Justice Dewar's point is that the judge found
that she thought he was family.
-: And I think that's true. -: And that 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,
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.
-: 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 a 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 Fabbri can't 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 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.
So it's not- -: Sure.
-: 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."
Hartley: 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 matier 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 answers honestly?
-: No, Your Honor, because what the findings
at the hearing were, that the juror,
and this is what's really important here,
certainly, defendants could have done research
and found out more about Karl Baxter if they knew his name,
more 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, 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 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.