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

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SJC-13529, Commonwealth versus Pedro Ortiz,

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SJC-13530, Commonwealth versus Terrance Pabon.

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

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<v ->Good morning.</v>

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Cathryn Neaves representing defendant appellant,

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Markeese Mitchell.

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With me at counsel table are Richard Klibaner,

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counsel for Pedro Ortiz,

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and Richard Goldman, counsel for Terrance Pabon.

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I will be presenting argument

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on behalf of all three defendants appellants this morning.

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If you ask me a question,

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and I fully understand the question,

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and I have a clear memory on the subject matter

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of the question, and I know my answer is yes, but I say no-

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

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from lawyers before, though.

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

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

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from lawyers before.

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<v ->(laughs) Right.</v>

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Answer's not an honest answer, right?

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I know the answer is false.

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I know the answer is yes, but I say no,

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I know the answer is false,

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

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my answer is knowingly inaccurate.

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And in the context of this case, and in my hypothetical,

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honest and knowingly inaccurate are synonymous.

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

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because we're looking at abusive discretion, correct,

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and clearly erroneous on the judge's factual findings

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regarding the juror?

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

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with the judge's factual finding.

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

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That means the juror wasn't mistaken

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like the juror in Amirault.

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She did not have a failure of memory

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like the juror in Amirault.

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She knew, and to quote the judge,

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"The answer was inaccurate,

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and the juror knew it was inaccurate,

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and that the juror knew Karl had been convicted of crimes

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and was incarcerated."

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That's at defendant's brief at 59.

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<v Justice Gaziano>What about the conditional part</v>

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that the judge glossed onto it?

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

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That's a faulty application

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of this court's constitutional principle in Amirault,

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whether the juror was aware the answer was false,

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

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which is derived from McDonough as well.

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You know, the inaccuracy was not dishonest, however,

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in that it did not arise from any motive

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to mislead or conceal,

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but was based on the juror's independent evaluation

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of relevance.

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So, the factual finding is,

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the juror's answer was inaccurate,

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and she knew it was inaccurate.

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That's her factual finding.

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In this court's words, "She was aware her answer was false."

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That's the question of whether the answer was honest

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in Amirault, and I think that's the only way

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that you can get to an answer like this.

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Is the juror aware, when she gives the answer,

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that it's false?

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So, the independent evaluation of relevance

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goes to bias, right?

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If it's not bias,

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

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although there are troubling connections

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that were developed post-conviction,

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but bias is a potential juror who will favor her own sense

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of what she thinks she should do or disclose

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or not disclose, and what the court tells her

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she needs to do.

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This is a juror who answered no to the question

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whether she had a family member who was charged

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with a crime, convicted of a crime, despite the fact

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that she knew her half-brother was incarcerated at the time

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for gun charges out of Boston.

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She failed to correct her answer on voir dire

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after the trial judge very carefully said,

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"Look, a lot of times,

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people don't fill this out completely.

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We really need you, you know,

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and so maybe your questionnaire isn't complete,

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but we really need to know,

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even if you think it's irrelevant,

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please tell us at sidebar.

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We need to know."

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She came to sidebar, she said nothing.

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<v ->What do we do with the fact</v>

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that the judge relied on the fact

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that this juror had also denied her own involvement

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with criminal convictions?

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

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yes, she also exercised her own independent evaluation

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of relevance as to driving without insurance.

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She didn't disclose that as well.

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

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in her independence?

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<v ->Consistent in choosing</v>

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what she was going to tell the court

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

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<v ->Right, in that particular instance, the judge decided</v>

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that it, she wouldn't be excused for cause

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after explanation, isn't that right?

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

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<v ->[Justice Wendlandt] So the party is also agreeing.</v>

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<v ->Said with respect to that, "Okay."</v>

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You know, she said, "Oh, you know,

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it was just a driving without insurance.

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

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

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<v Justice Gaziano>But that's relatively common.</v>

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

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"My brother is the leader of the Lucerne Street Doggz,

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and he's incarcerated for gun charges,"

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

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And in fact, the trial judge in this case

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highlighted that question.

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<v ->[Justice Wendlandt] And the parties had a chance</v>

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to evaluate whether or not they wanted to let her go

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based on-

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

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<v ->[Justice Wendlandt] Right, that's what I'm saying.</v>

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<v ->Just based on that, yeah.</v>

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I mean, and I think, certainly,

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

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

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

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<v ->Can you help me?</v>

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How do we evaluate whether or not

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this would've been a challenge for cause?

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It seems very speculative.

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<v ->I don't think it is, and I think, you know what,</v>

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the trial judge, and I think this is also something

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that the trial judge erred

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in applying the constitutional principle

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on the second prong, which is once you determine

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that a juror has failed to answer honestly,

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a material question,

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you look at whether there would've been a challenge

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for cause, and, you know, you look at, you know, the judge,

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an objective judge looks at the dishonesty

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and the reason for the dishonesty

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

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being an impartial juror.

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In this situation, however-

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<v ->She disqualified,</v>

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the trial judge disqualified another juror, right,

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for the same mistake, right?

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<v Neaves>Absolutely.</v>

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

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

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and he did not disclose those on his juror questionnaire.

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

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<v ->It was discovered, when the Commonwealth ran his CORI</v>

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and found them, and they brought him in, and he said,

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"I thought they were sealed.

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I didn't read the form carefully.

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I didn't realize."

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

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"There were sealed,

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

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The same sort of-

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<v ->What's the scale we use when someone,</v>

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say we get past the first Amirault step where someone

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is dishonest.
<v ->Yes.</v>

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

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to whether or not this would be appropriate basis for cause.

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So with the juror that Justice Kafker mentioned,

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the person misrepresented his own criminal history,

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

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Here we have this case, but what would be an example

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of a case where a juror is dishonest,

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but there does not lie a challenge for cause?

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Can you think of one?

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

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

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I'm sure there is such a thing.

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I mean, it's not just the-

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

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that happened with the juror, where the juror says,

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"You know, I got a cough.

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I thought that case was dismissed."

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

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

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because you know you have that, right?

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So, and you should have disclosed it

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because honest means free from deceit or any untruthfulness,

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but in the context of can this juror be impartial, right?

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And getting back to Your Honor's question,

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I think that you have to look, necessarily,

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

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

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that's the only time this came to light

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was because her brother taunted Mr. Ortiz, saying, you know,

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"That's why my sister was on your jury."

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

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and you, the court learns a lot of things.

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

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"Well, if I, you know, if she disclosed

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that her brother was in jail,

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we wouldn't have learned much more."

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You can't pretend.

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You're trying, you know, the defendants here were entitled

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to an impartial jury.

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

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who sat on that jury who was not impartial,

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

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You have to look at what's developed.

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

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it would've been really difficult to make that connection

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between the Lucerne Street Doggz and this juror.

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That comes later.

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So at the moment, it would have been,

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"I have experience with the law,

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that being my brother is in jail."

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

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

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towards being against the Commonwealth, ironically.

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

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but I think that in that context,

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when you are the trial judge post-conviction,

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and you've got all this information now,

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you can't pretend that it doesn't exist,

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

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and that the person didn't convict these people.

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

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is decide whether there would've been a basis

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for a for cause challenge.

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So could you talk through for us exactly

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how we should decide that here?

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And, particularly, you know, obviously,

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the Commonwealth is saying there was so little there

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that, you know, nothing further,

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and that's what the judge found.

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There wouldn't have been a for cause challenge.

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Do we imagine whether someone would've asked,

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"What is your brother's name?"

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

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Could you talk us through

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how we do the for cause analysis here?

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

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If she disclosed, "My brother was convicted,

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is incarcerated right now, he's convicted,"

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I mean, I've read enough transcripts,

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the next question is, "What county is it?"

255
00:11:10.957 --> 00:11:12.517
"It's Suffolk County."

256
00:11:12.517 --> 00:11:14.940
"Okay, what's your brother's name?"

257
00:11:14.940 --> 00:11:16.800
You know, "What were the charges?

258
00:11:16.800 --> 00:11:18.300
What was going on?"

259
00:11:18.300 --> 00:11:23.300
And in this case, just that alone would get you dismissed

260
00:11:24.270 --> 00:11:26.700
for, you know, can you be fair and impartial?

261
00:11:26.700 --> 00:11:27.900
Yeah, but usually-

262
00:11:27.900 --> 00:11:31.020
<v ->Well, this is a little bit weird because, usually,</v>

263
00:11:31.020 --> 00:11:32.880
that scenario, it would be the government

264
00:11:32.880 --> 00:11:35.490
asking for the person to be excused.

265
00:11:35.490 --> 00:11:39.021
<v ->Exactly, and it likely would've happened,</v>

266
00:11:39.021 --> 00:11:40.980
but we're in this posture,

267
00:11:40.980 --> 00:11:44.610
and so as far as the for cause challenge,

268
00:11:44.610 --> 00:11:47.580
I mean, even leaving aside what could have been learned

269
00:11:47.580 --> 00:11:50.580
and what was learned about this juror's connections

270
00:11:50.580 --> 00:11:54.930
to this case, however tangentially or peripherally,

271
00:11:54.930 --> 00:11:59.670
the fact that she chose to withhold this information,

272
00:11:59.670 --> 00:12:04.170
material information, is itself a powerful indicator

273
00:12:04.170 --> 00:12:06.990
of bias, which the First Circuits just recently said

274
00:12:06.990 --> 00:12:11.990
in the Tsarnaev case, and the cite for that is 96 F.4th 441,

275
00:12:13.230 --> 00:12:15.090
that alone can be enough.

276
00:12:15.090 --> 00:12:18.423
And as Justice Blackmun concurred in McDonough,

277
00:12:19.950 --> 00:12:23.160
that, in most cases, the honesty or dishonesty

278
00:12:23.160 --> 00:12:26.130
of a juror's response is the best initial indicator

279
00:12:26.130 --> 00:12:29.130
of whether the juror was in fact impartial.

280
00:12:29.130 --> 00:12:31.770
So you don't learn these things till after.

281
00:12:31.770 --> 00:12:36.150
<v ->But we here are a bit hemmed in by, in our speculation,</v>

282
00:12:36.150 --> 00:12:38.310
by the factual findings below,

283
00:12:38.310 --> 00:12:43.260
which were to credit the juror, that she did not know about,

284
00:12:43.260 --> 00:12:47.130
as she put it, the lifestyle choices of her half-brother.

285
00:12:47.130 --> 00:12:51.390
And, you know, she did not know, and we have no, you know,

286
00:12:51.390 --> 00:12:54.060
the judge found that she believed the juror

287
00:12:54.060 --> 00:12:54.900
that she did not know.

288
00:12:54.900 --> 00:12:57.750
So she, on the record before us,

289
00:12:57.750 --> 00:13:00.990
it's not that she was specifically hiding

290
00:13:00.990 --> 00:13:05.460
her brother's specific connection to these groups.

291
00:13:05.460 --> 00:13:10.460
It's just that she chose not to divulge knowingly, you know,

292
00:13:13.890 --> 00:13:16.470
as the judge found, gave an inaccurate answer.

293
00:13:16.470 --> 00:13:21.240
So, what is your best case for the proposition

294
00:13:21.240 --> 00:13:25.750
that simply knowingly not divulging

295
00:13:26.730 --> 00:13:30.420
or knowingly giving a wrong answer is enough

296
00:13:30.420 --> 00:13:33.210
because it shows a disinclination

297
00:13:33.210 --> 00:13:35.490
to follow the judge's instructions?

298
00:13:35.490 --> 00:13:40.230
<v ->I would say that any of the cases out of the First Circuit</v>

299
00:13:40.230 --> 00:13:43.530
that talk about that, because that, again,

300
00:13:43.530 --> 00:13:45.600
going to my point that a juror

301
00:13:45.600 --> 00:13:49.260
who consistently will use her own notion

302
00:13:49.260 --> 00:13:51.540
of what she's going to tell the court,

303
00:13:51.540 --> 00:13:53.820
and ignore the court's instruction

304
00:13:53.820 --> 00:13:56.040
and do what she wants to do.

305
00:13:56.040 --> 00:13:57.270
<v ->Well, in the Sampson case,</v>

306
00:13:57.270 --> 00:13:58.920
which is I assume what you're referring to,

307
00:13:58.920 --> 00:14:01.410
there was a lot more dishonesty.

308
00:14:01.410 --> 00:14:04.230
That juror had answered, had hidden,

309
00:14:04.230 --> 00:14:05.400
I forget how many questions.

310
00:14:05.400 --> 00:14:08.640
It was like 7 or 10 questions she had lied in response to.

311
00:14:08.640 --> 00:14:10.020
And then the First Circuit

312
00:14:10.020 --> 00:14:11.490
went through a bunch of different ways

313
00:14:11.490 --> 00:14:15.990
in which those dishonest answers really kind of aligned

314
00:14:15.990 --> 00:14:18.450
with the case in some ways.

315
00:14:18.450 --> 00:14:19.396
<v Neaves>Yes.</v>

316
00:14:19.396 --> 00:14:22.380
<v ->So what is your best sort of similar analysis here?</v>

317
00:14:22.380 --> 00:14:26.580
<v ->Well, I mean, along with the fact of the lie</v>

318
00:14:26.580 --> 00:14:30.810
about something highly significant, at the hearing,

319
00:14:30.810 --> 00:14:35.310
she testified that she didn't, you know,

320
00:14:35.310 --> 00:14:36.390
she knew about her brother,

321
00:14:36.390 --> 00:14:38.970
but he didn't bring that sort of nonsense to me,

322
00:14:38.970 --> 00:14:40.290
and her daughter's father,

323
00:14:40.290 --> 00:14:43.320
and he didn't bring that kind of nonsense to me.

324
00:14:43.320 --> 00:14:46.739
And you can't ignore, you know, she knew there was nonsense.

325
00:14:46.739 --> 00:14:48.233
<v ->[Justice Wendlandt] Was that untrue?</v>

326
00:14:49.260 --> 00:14:50.130
<v ->Well, that's what she said.</v>

327
00:14:50.130 --> 00:14:50.963
She testified to that.

328
00:14:50.963 --> 00:14:55.140
<v ->Right, right, and weren't they estranged at the time?</v>

329
00:14:55.140 --> 00:14:57.420
<v Neaves>I'm sorry, I don't understand the question.</v>

330
00:14:57.420 --> 00:15:02.420
<v ->Well, so in Sampson, the juror continued to lie</v>

331
00:15:05.910 --> 00:15:09.870
even post-trial, when she was brought in for questioning.

332
00:15:09.870 --> 00:15:12.300
Are you suggesting that that's what's happening here?

333
00:15:12.300 --> 00:15:14.561
<v ->Certainly did continue to lie.</v>

334
00:15:14.561 --> 00:15:17.220
She testified at the hearing that she didn't learn

335
00:15:17.220 --> 00:15:19.710
that her brother was in a gang until after he got out

336
00:15:19.710 --> 00:15:21.810
after the trial, and she read the article,

337
00:15:21.810 --> 00:15:24.120
and it said he was in a gang, and she said-

338
00:15:24.120 --> 00:15:26.820
<v ->So the fact that she learned from an article</v>

339
00:15:26.820 --> 00:15:28.233
that he was in a gang is something

340
00:15:28.233 --> 00:15:30.390
that she should have disclosed?

341
00:15:30.390 --> 00:15:33.000
<v ->She talked about it with his mother</v>

342
00:15:33.000 --> 00:15:34.950
and her sister.
<v ->The gang affiliation?</v>

343
00:15:34.950 --> 00:15:36.660
<v ->About the article, what the charges were about,</v>

344
00:15:36.660 --> 00:15:37.493
and what it was about.

345
00:15:37.493 --> 00:15:40.200
<v ->If we credit the judge, and in findings,</v>

346
00:15:40.200 --> 00:15:42.360
are clearly erroneous, at bottom,

347
00:15:42.360 --> 00:15:46.050
we have a misrepresentation about the custody,

348
00:15:46.050 --> 00:15:48.240
about the brother being in custody.

349
00:15:48.240 --> 00:15:50.580
And as I think it's called, that nonsense,

350
00:15:50.580 --> 00:15:54.450
the gang stuff is out of the equation, correct,

351
00:15:54.450 --> 00:15:56.370
if we credit the judge?

352
00:15:56.370 --> 00:15:58.050
<v ->If you credit the judge</v>

353
00:15:58.050 --> 00:15:59.460
as far as, right.
<v ->If we find</v>

354
00:15:59.460 --> 00:16:02.580
no abuse of discretion and we follow the judge's findings-

355
00:16:02.580 --> 00:16:03.413
<v Neaves>Right.</v>

356
00:16:03.413 --> 00:16:05.580
<v ->At the best case scenario for you,</v>

357
00:16:05.580 --> 00:16:08.790
if we do that, is a misrepresentation

358
00:16:08.790 --> 00:16:12.751
that nobody in my family's been involved in the law

359
00:16:12.751 --> 00:16:16.803
up to including the brother's incarceration, correct?

360
00:16:17.910 --> 00:16:18.780
<v ->Yeah, and I would say</v>

361
00:16:18.780 --> 00:16:21.150
that that's a clearly erroneous decision

362
00:16:21.150 --> 00:16:23.100
based on what was developed.

363
00:16:23.100 --> 00:16:24.027
So, and I don't think that-

364
00:16:24.027 --> 00:16:27.450
<v ->But do you depend, does your analysis as far as prejudice</v>

365
00:16:27.450 --> 00:16:29.310
depend upon that finding,

366
00:16:29.310 --> 00:16:32.110
or is the fact of incarceration enough

367
00:16:33.390 --> 00:16:36.360
for you to get the for cause challenge?

368
00:16:36.360 --> 00:16:41.070
<v ->Yes, absolutely, but I also think the court can't ignore</v>

369
00:16:41.070 --> 00:16:43.270
what happened here, that these defendants

370
00:16:44.700 --> 00:16:49.170
and this juror had connection that was undisclosed

371
00:16:49.170 --> 00:16:50.490
and was never learned about.

372
00:16:50.490 --> 00:16:54.780
And what triggered this whole case was the fact

373
00:16:54.780 --> 00:16:58.477
that her brother taunted Mr. Ortiz with,

374
00:16:58.477 --> 00:17:00.660
"That's why my sister convicted you."

375
00:17:00.660 --> 00:17:01.710
That's how this started.

376
00:17:01.710 --> 00:17:02.970
Nobody-
<v ->Except for we're trying,</v>

377
00:17:02.970 --> 00:17:05.101
we're trying to figure out with the, you know,

378
00:17:05.101 --> 00:17:07.560
with the next case, where you don't have all of the,

379
00:17:07.560 --> 00:17:09.210
those things that came out in the end.

380
00:17:09.210 --> 00:17:12.930
<v ->I think this court has to just reaffirm Amirault</v>

381
00:17:12.930 --> 00:17:15.060
because it is the clearest explanation

382
00:17:15.060 --> 00:17:17.070
of what you do in that context,

383
00:17:17.070 --> 00:17:18.960
but I think the court also has to say

384
00:17:18.960 --> 00:17:22.200
that a juror who sat on that jury,

385
00:17:22.200 --> 00:17:25.890
if that's discovered post-conviction, you can't pretend

386
00:17:25.890 --> 00:17:28.140
that you don't know what you learned post-conviction

387
00:17:28.140 --> 00:17:29.520
on investigation.

388
00:17:29.520 --> 00:17:31.260
<v ->Okay.</v>
<v ->I think you just can't.</v>

389
00:17:31.260 --> 00:17:32.093
<v Justice Budd>All right.</v>

390
00:17:32.093 --> 00:17:33.190
<v ->Thank you.</v>
<v ->Thank you.</v>

391
00:17:36.450 --> 00:17:37.473
Attorney Hartley.

392
00:17:41.220 --> 00:17:42.570
<v ->Good morning, and may it please the court,</v>

393
00:17:42.570 --> 00:17:43.830
Brooke Hartley for the Commonwealth,

394
00:17:43.830 --> 00:17:45.120
and I'd just like to note for the court

395
00:17:45.120 --> 00:17:47.580
that members of the victim's family may either be present

396
00:17:47.580 --> 00:17:50.550
in the courtroom or watching on the livestream.

397
00:17:50.550 --> 00:17:52.110
This court should affirm the orders

398
00:17:52.110 --> 00:17:54.412
denying the defendant's motions for new trial

399
00:17:54.412 --> 00:17:56.760
and for disqualification of the trial judge.

400
00:17:56.760 --> 00:17:59.793
Turning first to the juror issue,

401
00:18:01.050 --> 00:18:03.330
the judge properly denied the defendant's motion

402
00:18:03.330 --> 00:18:04.380
for new trial,

403
00:18:04.380 --> 00:18:08.610
where juror 15 answered the question inaccurately

404
00:18:08.610 --> 00:18:10.500
but without intent to deceive.

405
00:18:10.500 --> 00:18:12.240
The defendant has not met his burden.

406
00:18:12.240 --> 00:18:15.930
Under the first prong of Amirault, the defendant must show

407
00:18:15.930 --> 00:18:18.150
that the juror failed to answer the question honestly.

408
00:18:18.150 --> 00:18:20.580
And I think it's extremely significant here

409
00:18:20.580 --> 00:18:22.170
that that is a question of fact

410
00:18:22.170 --> 00:18:23.430
that rests with the trial judge,

411
00:18:23.430 --> 00:18:26.460
only to be disturbed if clearly erroneous.

412
00:18:26.460 --> 00:18:28.200
And there's a reason for this.

413
00:18:28.200 --> 00:18:31.170
That's because a hearing permits the trial judge

414
00:18:31.170 --> 00:18:33.780
to observe the juror's demeanor

415
00:18:33.780 --> 00:18:36.150
and to evaluate the juror's answers.

416
00:18:36.150 --> 00:18:39.450
<v ->What do we do with this, the relevance filter,</v>

417
00:18:39.450 --> 00:18:42.390
that the juror put into the answer?

418
00:18:42.390 --> 00:18:45.150
<v ->So, I think the relevance filter</v>

419
00:18:45.150 --> 00:18:48.720
is directly related to the juror's observation, excuse me,

420
00:18:48.720 --> 00:18:51.060
the judge's observations of this individual

421
00:18:51.060 --> 00:18:53.160
and the motivation for lying.

422
00:18:53.160 --> 00:18:57.990
So the judge had the opportunity to lay eyes on this person

423
00:18:57.990 --> 00:19:01.920
and determine whether or not the person was intending

424
00:19:01.920 --> 00:19:02.790
to deceive the court.

425
00:19:02.790 --> 00:19:06.330
So there's no question that the juror had this information

426
00:19:06.330 --> 00:19:07.163
in her head.

427
00:19:07.163 --> 00:19:09.630
She knew that she's related to Karl Baxter,

428
00:19:09.630 --> 00:19:11.550
but she didn't know at the time

429
00:19:11.550 --> 00:19:15.360
that that was responsive to the question.

430
00:19:15.360 --> 00:19:18.573
And, I think, if you look at the testimony at the hearing-

431
00:19:18.573 --> 00:19:20.160
<v ->Think she know it was responsive,</v>

432
00:19:20.160 --> 00:19:22.260
but she thought it didn't matter.

433
00:19:22.260 --> 00:19:24.150
<v ->And I think that's kind of the same thing.</v>

434
00:19:24.150 --> 00:19:28.620
So she made this relevancy determination on her own,

435
00:19:28.620 --> 00:19:30.060
which was wrong.

436
00:19:30.060 --> 00:19:32.370
That's not what we want jurors to do,

437
00:19:32.370 --> 00:19:35.340
but the remedy for that isn't necessarily a new trial.

438
00:19:35.340 --> 00:19:38.460
The remedy is to bring that person in for a hearing,

439
00:19:38.460 --> 00:19:41.400
where the defendant makes a showing to bring that person in

440
00:19:41.400 --> 00:19:43.830
for a hearing and for the judge to lay eyes on that person

441
00:19:43.830 --> 00:19:47.490
and to determine what the motives for that inaccuracy were.

442
00:19:47.490 --> 00:19:49.500
And that's how you get to honest.

443
00:19:49.500 --> 00:19:51.990
And so I think if you look at the transcript-

444
00:19:51.990 --> 00:19:54.390
<v ->But is the judge adding another element to it?</v>

445
00:19:54.390 --> 00:19:59.390
I just, I mean, the juror knows it's inaccurate,

446
00:19:59.400 --> 00:20:02.340
but then the judge is adding this,

447
00:20:02.340 --> 00:20:05.160
okay, the juror's doing their own kind of determination

448
00:20:05.160 --> 00:20:07.410
of what the legal requirement is.

449
00:20:07.410 --> 00:20:11.490
Isn't that new, and isn't that a question of law,

450
00:20:11.490 --> 00:20:13.560
not a question of fact for us?

451
00:20:13.560 --> 00:20:14.670
<v ->I don't think so, Your Honor.</v>

452
00:20:14.670 --> 00:20:19.380
And I think if I go to the, really, the lines at issue

453
00:20:19.380 --> 00:20:21.810
from the transcript here, it illustrates why.

454
00:20:21.810 --> 00:20:24.360
So, the judge asked the juror, "Can you just tell us,

455
00:20:24.360 --> 00:20:27.450
with respect to Karl, why did you check no to that box?"

456
00:20:27.450 --> 00:20:29.467
And she answers, reasonably,

457
00:20:29.467 --> 00:20:31.320
"Because Karl didn't live in my household."

458
00:20:31.320 --> 00:20:32.940
Then the judge presses further

459
00:20:32.940 --> 00:20:34.530
with what's really at issue here is,

460
00:20:34.530 --> 00:20:36.720
is the "or family" part.

461
00:20:36.720 --> 00:20:38.670
And the judge says, "Did you think of him

462
00:20:38.670 --> 00:20:40.140
as a member of your family?"

463
00:20:40.140 --> 00:20:42.463
And she says, "Yes, but I didn't think that,

464
00:20:42.463 --> 00:20:44.550
I didn't think he had any relation to this trial,

465
00:20:44.550 --> 00:20:45.720
so why would I say yes?"

466
00:20:45.720 --> 00:20:49.440
Now, when I read this transcript, I think, you know,

467
00:20:49.440 --> 00:20:51.192
a lot is lost when you're-

468
00:20:51.192 --> 00:20:55.410
<v ->That's a big no-no, what she does there, right, you know-</v>

469
00:20:55.410 --> 00:20:58.200
<v ->Of course, and we don't encourage jurors to do that,</v>

470
00:20:58.200 --> 00:21:00.540
but again, I think the remedy is the hearing,

471
00:21:00.540 --> 00:21:04.200
but what I wanna point out here is that the words

472
00:21:04.200 --> 00:21:06.300
on the page of the transcript, there's a lot lost

473
00:21:06.300 --> 00:21:08.370
that we don't get that the judge did get.

474
00:21:08.370 --> 00:21:11.340
So when I read that, I unequivocally said, "Yes,"

475
00:21:11.340 --> 00:21:14.070
but we don't know what the juror's demeanor was

476
00:21:14.070 --> 00:21:15.270
when she answered that question.

477
00:21:15.270 --> 00:21:17.760
Did she say, "Yes," and then go on?

478
00:21:17.760 --> 00:21:19.650
The judge does know, so, you know,

479
00:21:19.650 --> 00:21:24.120
just because she's aware of this biological relationship,

480
00:21:24.120 --> 00:21:27.600
that leaves out a lot of important context, I think.

481
00:21:27.600 --> 00:21:30.210
This is an individual, the juror only found out

482
00:21:30.210 --> 00:21:31.710
that this person was incarcerated

483
00:21:31.710 --> 00:21:33.930
through reading a newspaper article.

484
00:21:33.930 --> 00:21:35.128
This is her half-brother.

485
00:21:35.128 --> 00:21:37.333
<v ->[Justice Wendlandt] I thought she had confirmed it</v>

486
00:21:37.333 --> 00:21:39.510
with other family members.

487
00:21:39.510 --> 00:21:41.762
<v ->After she read the article, so she first-</v>

488
00:21:41.762 --> 00:21:43.470
<v ->[Justice Wendlandt] But before she was empaneled.</v>

489
00:21:43.470 --> 00:21:45.420
<v ->That's right, but I just-</v>
<v ->Okay, so at the time</v>

490
00:21:45.420 --> 00:21:49.410
of empanelment, she knew that her half-brother

491
00:21:49.410 --> 00:21:53.220
was incarcerated, and she identified him as family.

492
00:21:53.220 --> 00:21:56.280
<v ->So she identified him as family when pressed afterwards</v>

493
00:21:56.280 --> 00:21:57.113
at this hearing.

494
00:21:57.113 --> 00:21:58.410
I think my point is that-

495
00:21:58.410 --> 00:21:59.850
<v Justice Kafker>And can I add another fact?</v>

496
00:21:59.850 --> 00:22:00.943
<v ->Sure.</v>

497
00:22:00.943 --> 00:22:02.970
<v ->And the newspaper report, whether it's accurate or not,</v>

498
00:22:02.970 --> 00:22:05.550
reported it as a gang-related.

499
00:22:05.550 --> 00:22:08.160
So whether she knows he's in a gang or not,

500
00:22:08.160 --> 00:22:10.170
she's aware that, you know,

501
00:22:10.170 --> 00:22:13.590
the Boston Herald has described him as such, right?

502
00:22:13.590 --> 00:22:16.500
<v ->Certainly, yeah, she learned from reading that article</v>

503
00:22:16.500 --> 00:22:18.600
that he was the leader of the Lucerne Street Doggz.

504
00:22:18.600 --> 00:22:19.740
She didn't know that before.

505
00:22:19.740 --> 00:22:22.560
She didn't gain any other further information after,

506
00:22:22.560 --> 00:22:24.510
but she was aware of that.

507
00:22:24.510 --> 00:22:29.100
And I think my point here is that her response

508
00:22:29.100 --> 00:22:32.310
to that question, no, doesn't necessarily,

509
00:22:32.310 --> 00:22:33.960
just because it's inaccurate,

510
00:22:33.960 --> 00:22:37.800
mean that she was intentionally trying to deceive the court.

511
00:22:37.800 --> 00:22:41.070
I think family means different things to different people,

512
00:22:41.070 --> 00:22:43.110
and you're going to get some varied responses here,

513
00:22:43.110 --> 00:22:46.050
which is why the judge gave those further instructions

514
00:22:46.050 --> 00:22:49.200
about relevancy, which she still obviously didn't heed,

515
00:22:49.200 --> 00:22:52.890
but I think that just goes to show that she,

516
00:22:52.890 --> 00:22:54.840
in her mind at the time,

517
00:22:54.840 --> 00:22:57.870
believed that this was not a responsive answer

518
00:22:57.870 --> 00:22:58.703
to the question.
<v ->So if-</v>

519
00:22:58.703 --> 00:22:59.536
<v Justice Kafker>I'm sorry, go ahead, Chief.</v>

520
00:22:59.536 --> 00:23:01.200
<v ->I was just gonna say, it seems like your rule</v>

521
00:23:01.200 --> 00:23:03.990
is pretty broad, and it allows jurors

522
00:23:03.990 --> 00:23:07.740
to determine what's relevant, what's not relevant

523
00:23:07.740 --> 00:23:12.740
without needing to be honest on the questionnaire

524
00:23:13.530 --> 00:23:15.060
and during the voir dire.

525
00:23:15.060 --> 00:23:16.890
<v ->Well, I disagree with that, Your Honor.</v>

526
00:23:16.890 --> 00:23:20.820
I think jurors absolutely need to be honest, and the remedy,

527
00:23:20.820 --> 00:23:25.110
you know, again, I don't think we want to encourage jurors

528
00:23:25.110 --> 00:23:28.380
to use their own relevancy filters, but the remedy for that,

529
00:23:28.380 --> 00:23:31.530
it's going to happen, but the remedy for that

530
00:23:31.530 --> 00:23:34.140
is to bring the person in and to have a hearing.

531
00:23:34.140 --> 00:23:37.230
That's how the defendant's due process rights are satisfied,

532
00:23:37.230 --> 00:23:39.960
by the judge getting to lay eyes on this person

533
00:23:39.960 --> 00:23:44.960
and determining whether that person is biased or not.

534
00:23:45.000 --> 00:23:49.710
And I think if you look at McDonough Power Equipment,

535
00:23:49.710 --> 00:23:53.700
it's analogous to this case and instructive for this court.

536
00:23:53.700 --> 00:23:56.460
That's a case, it's a civil case, of course,

537
00:23:56.460 --> 00:23:58.200
but the question at issue there

538
00:23:58.200 --> 00:24:00.030
was how many of you have yourselves

539
00:24:00.030 --> 00:24:02.040
or any members of your immediate family

540
00:24:02.040 --> 00:24:03.750
sustained a severe injury,

541
00:24:03.750 --> 00:24:05.940
not necessarily as severe as Billy's,

542
00:24:05.940 --> 00:24:07.405
that was the plaintiff in the case.

543
00:24:07.405 --> 00:24:11.610
<v ->See, the problem with that analogy is that that case was,</v>

544
00:24:11.610 --> 00:24:15.960
required the juror to make a relative assessment.

545
00:24:15.960 --> 00:24:19.650
And what Justice Rehnquist, I think, says in his decision

546
00:24:19.650 --> 00:24:22.140
for the plurality of the court is that, you know,

547
00:24:22.140 --> 00:24:25.860
different people think severe injury is different things.

548
00:24:25.860 --> 00:24:30.120
Here, whether or not her brother was incarcerated

549
00:24:30.120 --> 00:24:32.730
is not a relative, you know,

550
00:24:32.730 --> 00:24:34.740
something that you gauge relatively.

551
00:24:34.740 --> 00:24:36.120
<v ->Well, I disagree, Your Honor.</v>

552
00:24:36.120 --> 00:24:37.920
I think, perhaps it's more clear

553
00:24:37.920 --> 00:24:40.590
when the juror is determining what the definition

554
00:24:40.590 --> 00:24:43.350
of severe injury is, although the injury was quite similar

555
00:24:43.350 --> 00:24:45.330
to what happened in this case,

556
00:24:45.330 --> 00:24:47.730
but the same is true of family.

557
00:24:47.730 --> 00:24:50.460
This is an individual who had six half-brothers and sisters.

558
00:24:50.460 --> 00:24:53.100
This is a person who never grew up in the same household

559
00:24:53.100 --> 00:24:56.460
as Karl Baxter and who, as we'll find out at the hearing,

560
00:24:56.460 --> 00:25:00.390
had almost no relationship with him at the time.

561
00:25:00.390 --> 00:25:01.223
Later,

562
00:25:01.223 --> 00:25:02.480
they developed a relationship.
<v ->So your position</v>

563
00:25:02.480 --> 00:25:07.410
is that, whether, is that, relatively,

564
00:25:07.410 --> 00:25:09.240
she didn't consider him family.

565
00:25:09.240 --> 00:25:10.110
That's, okay.
<v ->Yes, and I think</v>

566
00:25:10.110 --> 00:25:11.610
that's what the judge found.

567
00:25:11.610 --> 00:25:13.890
And I think that's why we have to be careful

568
00:25:13.890 --> 00:25:15.947
about this knowingly inaccurate-

569
00:25:15.947 --> 00:25:17.340
<v ->Sorry, can we just back up?</v>

570
00:25:17.340 --> 00:25:20.070
I thought that the judge very specifically found

571
00:25:20.070 --> 00:25:22.563
that she did consider him family.

572
00:25:24.030 --> 00:25:25.267
The juror was asked that question,

573
00:25:25.267 --> 00:25:26.640
"Did you consider him family?"

574
00:25:26.640 --> 00:25:28.890
The juror said, "Yes," and the judge credited

575
00:25:28.890 --> 00:25:32.700
that she considered him family, and nevertheless,

576
00:25:32.700 --> 00:25:35.700
knowingly inaccurately answered the question.

577
00:25:35.700 --> 00:25:39.390
<v ->I think, what I am trying to capture</v>

578
00:25:39.390 --> 00:25:42.180
is that she didn't think that it was responsive

579
00:25:42.180 --> 00:25:43.181
to the question

580
00:25:43.181 --> 00:25:44.014
at the time.
<v ->I take your point,</v>

581
00:25:44.014 --> 00:25:46.800
but, even granting that you're, of course, right

582
00:25:46.800 --> 00:25:49.350
that the term family can mean many things

583
00:25:49.350 --> 00:25:51.910
to different people, and in that way, it is similar

584
00:25:53.190 --> 00:25:55.170
to the question about severe injury,

585
00:25:55.170 --> 00:25:58.440
in this case, it seems like we have clear factual findings

586
00:25:58.440 --> 00:26:03.213
that this juror did consider her half-brother to be family.

587
00:26:04.080 --> 00:26:06.780
Even though the word family could be open to interpretation,

588
00:26:06.780 --> 00:26:09.300
we have a factual finding that she did consider him family,

589
00:26:09.300 --> 00:26:11.730
and that this was a knowingly inaccurate question.

590
00:26:11.730 --> 00:26:12.563
<v Hartley>It was a-</v>

591
00:26:12.563 --> 00:26:13.410
<v ->Answer, sorry.</v>

592
00:26:13.410 --> 00:26:14.910
<v ->It was knowingly inaccurate</v>

593
00:26:14.910 --> 00:26:18.180
in that she had this information somewhere

594
00:26:18.180 --> 00:26:19.920
in the universe of her brain.

595
00:26:19.920 --> 00:26:21.960
She was aware that she had,

596
00:26:21.960 --> 00:26:23.370
this person was her half-brother,

597
00:26:23.370 --> 00:26:25.980
she had this biological relationship with him.

598
00:26:25.980 --> 00:26:30.210
I think the issue is whether, when she answered no

599
00:26:30.210 --> 00:26:32.280
to that question, whether she thought

600
00:26:32.280 --> 00:26:35.460
that that was responsive to was this person a member

601
00:26:35.460 --> 00:26:38.220
of your household or family?

602
00:26:38.220 --> 00:26:41.880
And I think her answer at the hearing, what she first says,

603
00:26:41.880 --> 00:26:44.280
is, "No, because he didn't live in my household,"

604
00:26:44.280 --> 00:26:45.720
is also very telling.

605
00:26:45.720 --> 00:26:47.760
And again, I think we have to,

606
00:26:47.760 --> 00:26:51.090
I don't think it's an appellate court's place

607
00:26:51.090 --> 00:26:52.830
to second-guess the trial judge's findings,

608
00:26:52.830 --> 00:26:55.740
where she was able to observe this person's answer,

609
00:26:55.740 --> 00:26:59.190
and again, she said, "Yes," but did she say, "Yes,"

610
00:26:59.190 --> 00:27:00.360
did she say, "Yes."

611
00:27:00.360 --> 00:27:03.777
It's difficult for us to know just by reading the words on-

612
00:27:03.777 --> 00:27:06.960
<v ->But I think Justice Dewar's point is that the judge found</v>

613
00:27:06.960 --> 00:27:09.480
that she thought he was family.

614
00:27:09.480 --> 00:27:10.650
<v ->And I think that's true.</v>
<v ->And that wasn't</v>

615
00:27:10.650 --> 00:27:15.000
a relative thing, you know, is he severely injured or not?

616
00:27:15.000 --> 00:27:18.150
It was really definitively, "Yes, he was my family,

617
00:27:18.150 --> 00:27:20.550
and I chose not to disclose it

618
00:27:20.550 --> 00:27:23.250
because I did not think it was relevant."

619
00:27:23.250 --> 00:27:27.030
<v ->I think that's true, but I think, if you get,</v>

620
00:27:27.030 --> 00:27:31.680
so the judge found that because that it was not dishonest,

621
00:27:31.680 --> 00:27:35.310
because it was not, she did not intend to deceive the court,

622
00:27:35.310 --> 00:27:37.833
and I think that has to be part of the definition.

623
00:27:38.790 --> 00:27:43.790
<v ->Where in Amirault does it say that the juror's motive</v>

624
00:27:44.190 --> 00:27:46.290
for dishonesty comes into play?

625
00:27:46.290 --> 00:27:48.300
<v ->So that comes from McDonough,</v>

626
00:27:48.300 --> 00:27:51.390
and it's "The motives for concealing information may vary,

627
00:27:51.390 --> 00:27:54.450
but only those reasons that affect a juror's impartiality

628
00:27:54.450 --> 00:27:56.910
can truly be said to affect the fairness of the trial."

629
00:27:56.910 --> 00:27:58.830
And I think that's what's at the crux

630
00:27:58.830 --> 00:28:01.080
of this honesty determination.

631
00:28:01.080 --> 00:28:05.460
<v ->But that still short-circuits the defendant's right</v>

632
00:28:06.690 --> 00:28:10.410
to move to disqualify this person for cause

633
00:28:10.410 --> 00:28:13.020
because, I mean, you keep glossing over that,

634
00:28:13.020 --> 00:28:15.390
but that's a really important thing.

635
00:28:15.390 --> 00:28:17.883
So we don't just get to sit back and say,

636
00:28:19.177 --> 00:28:21.060
"Please tell me the truth,

637
00:28:21.060 --> 00:28:23.940
then please, please tell me the truth,"

638
00:28:23.940 --> 00:28:25.680
because that's the second time,

639
00:28:25.680 --> 00:28:27.337
when Judge Fabbri can't say,

640
00:28:27.337 --> 00:28:30.660
"Don't use your definition of relevance," right?

641
00:28:30.660 --> 00:28:33.240
She specifically tells them that.

642
00:28:33.240 --> 00:28:37.410
And even with that, she goes off and doesn't say this.

643
00:28:37.410 --> 00:28:40.170
And I guess the question that I have for you is,

644
00:28:40.170 --> 00:28:41.757
you keep saying that we then get to go

645
00:28:41.757 --> 00:28:43.807
and the trial judge gets to go in and say,

646
00:28:43.807 --> 00:28:46.530
"Now I'm gonna play Carnac the Magnificent

647
00:28:46.530 --> 00:28:47.760
and try to figure out

648
00:28:47.760 --> 00:28:50.430
whether or not this person was trying to lie to me."

649
00:28:50.430 --> 00:28:51.990
But the second part of that

650
00:28:51.990 --> 00:28:54.997
short-circuits the defendant's ability to say,

651
00:28:54.997 --> 00:28:58.050
"I want this person disqualified.

652
00:28:58.050 --> 00:29:00.810
I want this person disqualified for cause

653
00:29:00.810 --> 00:29:03.030
because I don't wanna run the risk

654
00:29:03.030 --> 00:29:04.800
that there's some snakes slithering around

655
00:29:04.800 --> 00:29:06.930
in this person's head that would inure

656
00:29:06.930 --> 00:29:09.000
to my client's detriment."

657
00:29:09.000 --> 00:29:11.280
<v ->So I think the second part of the test</v>

658
00:29:11.280 --> 00:29:13.110
is not whether the defendant

659
00:29:13.110 --> 00:29:14.760
would raise a challenge for cause.

660
00:29:14.760 --> 00:29:17.700
I think it's, as Justice Gaziano said,

661
00:29:17.700 --> 00:29:19.140
it's probably likely that the Commonwealth

662
00:29:19.140 --> 00:29:20.580
would've raised a challenge for cause here,

663
00:29:20.580 --> 00:29:23.820
but the question is whether there was a basis for the judge

664
00:29:23.820 --> 00:29:26.100
to allow a challenge for cause

665
00:29:26.100 --> 00:29:30.270
to find that that juror is not impartial.

666
00:29:30.270 --> 00:29:31.470
So it's not-
<v ->Sure.</v>

667
00:29:31.470 --> 00:29:32.550
<v ->Right.</v>
<v ->But,</v>

668
00:29:32.550 --> 00:29:34.740
that wouldn't have, that's not a huge thing, right?

669
00:29:34.740 --> 00:29:36.810
Because whenever we get the question

670
00:29:36.810 --> 00:29:40.110
of whether you would choose to credit the testimony

671
00:29:40.110 --> 00:29:42.840
of a police officer more or less than any other witness,

672
00:29:42.840 --> 00:29:45.150
that's routinely asked, and if the hand goes up,

673
00:29:45.150 --> 00:29:46.590
it's routinely allowed.

674
00:29:46.590 --> 00:29:48.750
So we're not talking about a huge burden here

675
00:29:48.750 --> 00:29:50.190
for the three defendants

676
00:29:50.190 --> 00:29:55.190
in an accused gang-related shooting, retaliatory shooting,

677
00:29:56.070 --> 00:29:58.080
to say, "I don't want the person whose brother

678
00:29:58.080 --> 00:30:01.770
happens to lead a rival gang on my jury."

679
00:30:01.770 --> 00:30:03.030
<v Hartley>They didn't know that at the time,</v>

680
00:30:03.030 --> 00:30:03.863
but-
<v ->Perhaps,</v>

681
00:30:03.863 --> 00:30:07.063
but they'd know that he was the leader of the gang.

682
00:30:07.063 --> 00:30:09.540
<v ->Yes, and so I think the judge,</v>

683
00:30:09.540 --> 00:30:12.150
in her discretion, if it had gone there,

684
00:30:12.150 --> 00:30:14.580
if the juror had answered the question, "Yes,"

685
00:30:14.580 --> 00:30:16.560
could have allowed a challenge for cause,

686
00:30:16.560 --> 00:30:18.810
but that doesn't mean that the judge was required

687
00:30:18.810 --> 00:30:20.730
to allow a challenge for cause.

688
00:30:20.730 --> 00:30:24.060
If you look at matier from this court-

689
00:30:24.060 --> 00:30:26.490
<v ->How do we ignore the follow-up,</v>

690
00:30:26.490 --> 00:30:28.890
the obvious follow-up question point,

691
00:30:28.890 --> 00:30:33.210
which is, once this person's identified,

692
00:30:33.210 --> 00:30:36.120
a lot of bells and whistles are gonna go off, right?

693
00:30:36.120 --> 00:30:41.120
That, okay, we got a gang issue here, we've got,

694
00:30:42.240 --> 00:30:43.710
they're gonna identify this person's name.

695
00:30:43.710 --> 00:30:47.580
Isn't all this gonna come out if she answers honestly?

696
00:30:47.580 --> 00:30:49.800
<v ->No, Your Honor, because what the findings</v>

697
00:30:49.800 --> 00:30:51.720
at the hearing were, that the juror,

698
00:30:51.720 --> 00:30:54.270
and this is what's really important here,

699
00:30:54.270 --> 00:30:57.300
certainly, defendants could have done research

700
00:30:57.300 --> 00:31:00.360
and found out more about Karl Baxter if they knew his name,

701
00:31:00.360 --> 00:31:01.320
more about-
<v ->But if she answers</v>

702
00:31:01.320 --> 00:31:02.857
the question honestly, the first question,

703
00:31:02.857 --> 00:31:05.580
"Do you have a brother who's been incarcerated?"

704
00:31:05.580 --> 00:31:07.710
She's gonna say his, "Yes,"

705
00:31:07.710 --> 00:31:09.483
and then they're gonna ask his name,

706
00:31:09.483 --> 00:31:14.280
and isn't that gonna generate a defense challenge

707
00:31:14.280 --> 00:31:16.020
'cause they're gonna know who he is?

708
00:31:16.020 --> 00:31:18.990
<v ->Well, maybe it would have, but the question is, again,</v>

709
00:31:18.990 --> 00:31:21.990
not whether the defendant is going to raise a challenge,

710
00:31:21.990 --> 00:31:23.730
the question is whether the judge is required

711
00:31:23.730 --> 00:31:25.800
to excuse that juror, and if you look

712
00:31:25.800 --> 00:31:28.800
at the juror's testimony at the hearing,

713
00:31:28.800 --> 00:31:30.630
there are several crucial findings.

714
00:31:30.630 --> 00:31:33.570
So the juror was, yes, aware that Karl was incarcerated

715
00:31:33.570 --> 00:31:36.600
at the time of the trial because she had read about it,

716
00:31:36.600 --> 00:31:39.180
but between the time the juror read that article

717
00:31:39.180 --> 00:31:40.380
and the beginning of the trial,

718
00:31:40.380 --> 00:31:43.440
the juror didn't learn any other information about the gang

719
00:31:43.440 --> 00:31:46.080
or about Karl's affiliation with the gang.

720
00:31:46.080 --> 00:31:48.180
She never had a conversation with Karl

721
00:31:48.180 --> 00:31:50.850
about why he was incarcerated or gang affiliation.

722
00:31:50.850 --> 00:31:54.480
<v ->But again, I'm not concerned so much with,</v>

723
00:31:54.480 --> 00:31:56.280
it's, they're gonna say,

724
00:31:56.280 --> 00:31:58.230
she's gonna answer the question honestly, "Yes,"

725
00:31:58.230 --> 00:32:01.500
and then isn't the Herald article gonna come out,

726
00:32:01.500 --> 00:32:05.100
and then, no judge is gonna allow this person on

727
00:32:05.100 --> 00:32:07.320
if it's a rival gang person, right?

728
00:32:07.320 --> 00:32:08.910
<v ->Well, I think that's all speculative,</v>

729
00:32:08.910 --> 00:32:11.610
and what matters, under McDonough

730
00:32:11.610 --> 00:32:15.990
and under this court's case law in Amirault, is the juror

731
00:32:15.990 --> 00:32:17.940
and whether the juror was impartial,

732
00:32:17.940 --> 00:32:21.510
and based on her universe of knowledge at this time,

733
00:32:21.510 --> 00:32:22.830
she didn't know anything more,

734
00:32:22.830 --> 00:32:24.960
and the judge found, to that effect,

735
00:32:24.960 --> 00:32:28.230
that if she had answered the question accurately,

736
00:32:28.230 --> 00:32:30.420
further questions would not have yield much,

737
00:32:30.420 --> 00:32:32.910
any information because she didn't know anything.

738
00:32:32.910 --> 00:32:35.700
All she knew was that she had a brother

739
00:32:35.700 --> 00:32:37.800
who was incarcerated at the time.

740
00:32:37.800 --> 00:32:39.570
She didn't know about,

741
00:32:39.570 --> 00:32:41.370
anything about the Lucerne Street Doggz.

742
00:32:41.370 --> 00:32:42.600
She read it in the newspaper article.

743
00:32:42.600 --> 00:32:45.360
She didn't know about any affiliations or rivalries

744
00:32:45.360 --> 00:32:46.620
between the Lucerne Street Doggz.

745
00:32:46.620 --> 00:32:51.620
She didn't know anything about MOB, and...

746
00:32:51.810 --> 00:32:53.700
<v ->So, is it irrelevant,</v>

747
00:32:53.700 --> 00:32:57.540
what the defendants would have found out

748
00:32:57.540 --> 00:32:59.130
if she had been honest?

749
00:32:59.130 --> 00:33:00.240
<v ->Yes, I think it is.</v>

750
00:33:00.240 --> 00:33:02.880
I think the question, we're looking just at this juror

751
00:33:02.880 --> 00:33:05.010
and what this juror knew at the time,

752
00:33:05.010 --> 00:33:06.870
and whether or not this juror was impartial.

753
00:33:06.870 --> 00:33:09.750
I think that's the crux of the inquiry

754
00:33:09.750 --> 00:33:12.960
under the second prong, under the prejudice prong.

755
00:33:12.960 --> 00:33:15.000
<v ->Chief, could I ask one?</v>

756
00:33:15.000 --> 00:33:16.140
Counsel, I just wanna go back

757
00:33:16.140 --> 00:33:17.795
to the at least the first question again.

758
00:33:17.795 --> 00:33:20.640
So, you have a situation where the trial judge,

759
00:33:20.640 --> 00:33:22.830
during voir dire, asked this question.

760
00:33:22.830 --> 00:33:27.830
The trial judge follows up after the fact and says,

761
00:33:28.117 --> 00:33:31.890
"Please don't superimpose your definition of relevance.

762
00:33:31.890 --> 00:33:36.120
Tell us everything, everything," and then, years later,

763
00:33:36.120 --> 00:33:38.250
during this evidentiary hearing,

764
00:33:38.250 --> 00:33:42.630
you say because there's an ability to observe this person

765
00:33:42.630 --> 00:33:47.630
during the hearing, that that precludes us from finding

766
00:33:48.420 --> 00:33:53.253
that it was clearly erroneous that she intended to deceive.

767
00:33:54.450 --> 00:33:57.840
Is there ever a chance or is there ever a world

768
00:33:57.840 --> 00:34:00.330
where that can't always be said

769
00:34:00.330 --> 00:34:01.560
after an evidentiary hearing,

770
00:34:01.560 --> 00:34:04.440
and we we've said that after evidentiary hearings, right?

771
00:34:04.440 --> 00:34:07.980
<v ->Yes, I think if there was testimony that was, you know,</v>

772
00:34:07.980 --> 00:34:10.980
conflicted the trial judge's finding,

773
00:34:10.980 --> 00:34:14.580
then this court could certainly find it clearly erroneous

774
00:34:14.580 --> 00:34:17.430
and overrule that judge's factual finding,

775
00:34:17.430 --> 00:34:18.570
but this isn't that case,

776
00:34:18.570 --> 00:34:20.493
Your Honor.
<v ->But when she says,</v>

777
00:34:21.817 --> 00:34:23.310
"I thought it was irrelevant,"

778
00:34:23.310 --> 00:34:27.240
even though I told you, "Don't add your definition

779
00:34:27.240 --> 00:34:29.130
of irrelevant or relevant,"

780
00:34:29.130 --> 00:34:31.050
that that's not clearly erroneous?

781
00:34:31.050 --> 00:34:33.270
<v ->No, Your Honor, because the trial judge determined,</v>

782
00:34:33.270 --> 00:34:37.170
and I think a lot of this comes down to what the definition

783
00:34:37.170 --> 00:34:39.540
of honesty is, the trial judge determined

784
00:34:39.540 --> 00:34:41.430
that she was not intending to deceive the court,

785
00:34:41.430 --> 00:34:42.660
and the Commonwealth's position

786
00:34:42.660 --> 00:34:44.340
is that the definition of honest

787
00:34:44.340 --> 00:34:47.220
is not just knowingly inaccurate, but is that intent

788
00:34:47.220 --> 00:34:48.960
to deceive the court.

789
00:34:48.960 --> 00:34:51.210
So whether or not she had this knowledge in her head

790
00:34:51.210 --> 00:34:53.730
was she purposely withholding it

791
00:34:53.730 --> 00:34:54.900
to conceal it from the court.

792
00:34:54.900 --> 00:34:57.213
I think that's the crux of the issue.