-: SJC 13547 Commonwealth versus Richard Dilworth Junior.
Judge: Okay, Attorney Fitzgerald, whenever you're ready.
-: Thank you, Your Honor. Good morning.
And may it please the Court,
Caitlyn Fitzgerald for the Commonwealth.
With me is ADA Elizabeth Martino.
There's a lot of issues to talk about today,
but at the heart of this appeal is that the trial Court
misinterpreted and then misapplied the discovery rules
as they apply to Equal Protection discovery in this case.
-: Can I ask you about intrusion,
what that means in van Radar.
You posit that, unlike a Fourth Amendment,
article 14 intrusion, this isn't actionable
'cause there wasn't enough police conduct, essentially.
Would it be an Equal Protection violation
if a police officer is stationed at the side of the road
and there's affirmative evidence
that they write down and run license plates
only for Black drivers?
-: Yes. The question is not whether or not-
-: No, the motorist is unaware of what happens.
So if that's a violation of Equal Protection,
why is Foley solely focusing on, as they allege,
people of color in their social media?
-: So the question is not whether or not
Equal Protection applies.
Equal Protection always protects people
from unequal enforcement of the law.
The question is what the remedy is, and this court-
-: Well we've said the remedy is suppression.
-: So there is no case that I've been able to find
that suppresses evidence without a constitutional intrusion.
So this court in-
-: What's the remedy for the constitutional violation?
-: So as it stands right now, it would be a 1983 claim.
It would be a civil suit. -: Okay.
I thought we crossed that road in Long,
and actually, in the case that proceeded Long.
Justice Cordy said we're going to call this
an exclusionary rule violation, right?
-: Yes. So I believe that the first-
-: You want us to backtrack from that?
-: No, Your Honor.
So the first case
that allowed for suppression in the Commonwealth,
my understanding is Laura,
that was a constitutional seizure,
Long addresses constitutional seizure.
The Commonwealth is just asking the Court
if the Court is going to extend suppression jurisprudence
in this context. -: I thought,
so Laura says, in our jurisprudence,
a violation of Equal Protection,
the remedies exclusionary rule, Long says that,
van Radar says that, and you want us to change it.
-: So all three of those cases
involve a constitutional seizure, Your Honor.
Van Radar does discuss
consensual encounters on the street and its reasoning,
but that's not what van Radar was.
So the Commonwealth is just asking this court
that if suppression jurisprudence
is going to be extended to procedure activity
that this court consider in doing so,
now that that issue has squarely been raised
before the Court in this case,
would ask the Court to consider
creating a pragmatic discovery standard
that would allow for the variety of allegations
that could arise in the criminal Courts.
So Your Honor-
-: What would that standard look like?
Part of the problem I have here is that
the Commonwealth really did nothing
to help the judge down below, that decided, ultimately,
not to comply with the discovery order.
Don't we first have to look at the dismissal
and determine whether there was an abusive discretion there
and then determine whether or not there might be some,
as you call it, pragmatic discovery approach, because here,
I don't really see how we get to that question.
-: So I think I see Your Honor's question
is really three parts.
First, the Commonwealth would propose
that the Betansas Bernardo B standard
that's already in place for pre-seizure activity
add a step that allows for the Court
to consider rebuttal evidence
from the Commonwealth at the discovery stage.
And I can, in a moment, if the Court wants,
I can kind of use this case
as an example of how that would've worked.
The Court also mentioned
that the Commonwealth did nothing to-
-: So that would be before you produce the discovery
that the Court is ordered? -: For pre-seizure cases, yes.
So I can give an example in this case, Your Honor.
In this case, the defendant submitted an affidavit saying,
I conducted an informal survey
of my fellow public defenders.
I received 20 responses, that the inquiry was,
if you have a client who is charged with a crime,
following a Snapchat investigation,
could you let me know the race of your client?
17 of those clients were Black and three were Hispanic,
from the 20 responses that Counsel got.
If the Court were to find that, that met
the Betansas Bernardo B standard,
which the Commonwealth would submit, it does not,
but if it were, the burden would shift then
to the Commonwealth at the discovery phase
to offer race neutral-
-: Did you make that offer here?
-: We did, and we did that at each stage.
So at the first discovery motion,
we did object and we offered,
I believe we offered an in-camera hearing
that was rejected by the judge.
We then did a motion to reconsider, it was denied.
We tried to take a 2113, that was denied.
We appealed the denial of the 2113 and that was denied.
We turned over the discovery.
We then had a second discovery order.
We objected again.
That was- -: But the discovery
you turned over was not,
was not of the sort you just proposed our allowing.
It was the discovery that the judge ordered.
It's not countervailing information.
-: The countervailing information we offered
at the first discovery motion
was an in-camera hearing to offer a race neutral reason.
-: Why would we change
the ordinary relevance standard for discovery
because there is an Equal Protection argument at issue?
It seems to me, contrary to all constitutional law,
to make a defendant who's asserting
an Equal Protection argument jump through a loophole
that ordinary relevance doesn't require.
-: So again, the Commonwealth is only asking
that this be done in pre-seizure cases, and typically-
-: But why, why would we treat pre-seizure cases
that implicate Equal Protection
any different than ordinary discovery,
which is usually just the relevancy?
-: Because of all of the different scenarios
that could be implicated, if I may give an example.
The Court had mentioned previously a see just check.
So if there's a Court order for see just records,
that's understandable,
that's something the Commonwealth can produce,
but what if a defendant raises a claim and says,
"I was arrested in area B-2 Roxbury
and I'm aware through publicly available sources
that the Boston Police Department has more officers
stationed in Roxbury as opposed to West Roxbury,
and Roxbury has a higher Black population than West Roxbury.
Therefore, I've met my burden of relevance
that I may have an Equal Protection claim
and I want one year worth of reports
from each of those two districts."
Without allowing the Court to consider
rebuttal evidence from the Commonwealth,
which might take, you know, it might be evidence
that the Boston Police Department
expands its resources based on 911 calls
or a reported crime or something like that.
Judge: But van Radar says investigations
start deployment of resources.
-: Correct, Your Honor.
But I believe that what we're doing here is really, I mean,
I think that if there's more resources,
there's more investigations going on.
This is why the Commonwealth is asking for this court,
now that the issue,
the procedure issue was not squarely placed
before this court in van Radar
and the Commonwealth is asking this court to,
now that it has been placed squarely before you,
consider all of the different motions
that could be file here- -: I guess back to my question,
why would we have this heightened burden on a defendant
to seek relevant discovery
in connection with a constitutional alleged violation?
It seems to me backward to actually heighten the discovery.
You were going through your scenario
about West Roxbury versus B-2.
I don't understand why we would withhold discovery.
What is the consequence to the Commonwealth?
-: So the consequence, in the example I gave there,
if the Court is not allowed to consider, essentially,
anything that the defendant is raising in context,
it's a burden to the Commonwealth,
it's a burden to the Court. -: What's the burden?
-: The burden is turning over thousands of police reports
that will surely need to be redacted.
So it's a time burden and it's a burden on the Court
to be hearing, essentially, motions,
that at the end of the day, will have no merit.
So what the Commonwealth is proposing is not-
-: You're proposing to prejudge the merits of the motion
before the defendant is allowed to have discovery
on Equal Protection grounds.
-: For pre-seizure cases, the Commonwealth is asking
for the Court to be able to consider
the context of the defendant's affidavit,
which is not your what currently is happening.
-: And you're incorporating in Article 14
fourth Amendment concept into Equal Protection discovery.
-: So I...
I don't- -: The answer is yes.
-: I know, you can't say no. (judges laugh)
-: So yes, but seizure, again,
is relevant here for a couple of reasons.
One is that, again, we're talking about suppression.
There is no case law currently,
and I'm not saying that there won't be,
but there is no case law currently
allowing for suppression as the remedy pre-seizure.
I think the other thing that is implicated pre-seizure is,
and this court has always acknowledged
in its Equal Protection cases,
that there is a consideration for separation of powers here.
In Laura, the Court acknowledged
that the day-to-day enforcement
of Equal Protection of the laws
is primarily in the hands of the executive branch,
and the Court and Robinson van Radar, again,
discusses this and that decision says,
the charging decisions of the police and the prosecutor
are guarded more by separation of powers.
The decisions of police in stopping,
searching, things of that nature,
those are always subject to judicial scrutiny.
So there's less of a separation of powers issue there.
-: But there is a proffer here at the first stage
by the defense that, you know, has some weight to it.
You know, all 20 are people of color, right?
So in the first stage, there is an evaluation
of whether there's some weight to this, right,
which is what you want at the second stage.
But we've dismissed some of these at the first stage, right?
-: So I think this is a...
That's a difficult question to answer
because I don't think that there was any-
-: But isn't that the case?
The defense has made a proffer that's concerning,
that all 20 of these...
Now it may be distinguishable down the road,
but doesn't that get them into the discovery phase?
-: No, Your Honor, and here is why.
Again, I believe that the standard is still Bernardo B,
which is a relevant and material standard-
Judge: Isn't the standard Cuffy?
-: So I would say that one, Cuffy cites to Bernardo B,
but two, Cuffy, as you know,
came out with Robinson van Radar
and the Commonwealth would say that Robinson van Radar
and Long are exceptions to the general rule.
-: But Cuffy is a relevance case.
As justice Wegman points out, Cuffy is a relevance inquiry.
-: So is Bernardo B, Your Honor.
So it quotes exactly Bernardo B,
but in order to be relevant in the Equal Protection context,
there still has to be some evidence
that of each of the three Franklin tests-
Judge: What what case holds that?
-: So there's no case that explicitly says-
-: Right, because that's the test for the merits
of the Equal Protection argument,
not whether or not you get discovery
in order to make the argument.
-: If that's the case, Your Honor-
-: Well, it is, so tell me why we should reverse
all of our jurisprudence to make relevance
not the standard for getting discovery
in order to marshal a need for protection argument.
-: So I don't think that the Court needs to reverse
the fact that relevance is the standard.
It's the Commonwealth's position that
if there's not a...
What Equal Protection is, at its heart,
is whether or not similarly situated people
are being treated differently- -: Right,
and so we have a defendant who comes forward
with 20 out of 20 people being targeted by Snapchat
being people of color.
Why isn't that enough to get the discovery?
-: So the defendant is- -: And what are the odds?
-: So I think, again, this could have given some context.
If Counsel had attempted to hit all three prongs,
it would've been very easy for Counsel
to reply all to his initial email and say,
"If you have a defendant who is charged
with a firearm by the Boston Police Department,
please let me know their race,"
not including Snapchat, just people who have been arrested
with illegal firearms in the city of Boston.
Comparing the racial makeup of those two groups,
if they are disparate,
it would raise an Equal Protection claim.
But just saying, I mean,
that would be the same as Counsel-
-: So you lost that motion, right?
And you agreed to produce discovery,
and then you lost the second motion,
and then you lost the third motion,
and then you told the judge, "Well,
we're not gonna produce the documents anyway."
Why was it an abuse of discretion
in light of the Commonwealth's failure
to provide an alternative remedy at all
to dismiss the indictments?
-: It was an abuse of discretion
because it was an abuse of discretion
to order the discovery in the first place.
-: Okay, so you lost those three
and so now you're complaining
because the indictment was dismissed,
having lost three times at bat.
-: So the last time that the Equal Protection
was really analyzed on its merits was in January of 2019
when Judge Alman issued the order.
And after that, the Commonwealth had-
-: And what was the result of that merits analysis?
-: Well, he found that the-
-: No, what was your ultimate final decision
on that merits analysis?
-: Decision of the Court? -: Yeah.
-: The trial court ordered it. -: Yep.
You appealed to the single justice.
-: Correct. -: You lost,
you appealed to this panel and you lost.
-: Correct. -: Okay.
So on the merits, you lost the discovery
and now you're not producing the discovery to the defendant,
having battled it all the way to the panel
of the Supreme Judicial Court, and I'm sorry?
-: The Supreme Judicial Court,
nor the single justice addressed the merits,
and in footnote five of the Dilworth decision by this court,
it specifically says that the merits were not reached.
It was just that the Court was not abusing its discretion
and not using extraordinary powers of appeal at that point.
So Judge Alman issued a decision, ruling on the merits.
In that, he said, "It is not a case in which
the defendant has shown a person of different race,
similarly situated to him,
was treated more favorably than he was treated."
It's the Commonwealth's position
that is what an Equal Protection claim is,
and that's the only ruling we have.
Judge Krepp and the subsequent two orders
specifically stated he was not going to readdress the merits
because Judge Alman had already reached them.
So the Commonwealth did everything that we could
to try to get these merits raised again.
The only way that we could do that ultimately
was to do what we did
and not comply with the discovery order.
-: Counsel, excuse me, my reading of the record,
and can you please point me
to something in the record if I'm wrong,
my reading of the record was that Judge Krepp
repeatedly said he was not gonna revisit Judge Alman's
rejection of the Commonwealth's argument
that a seizure was required.
And rather than anything else, is that incorrect?
-: My reading of the decision was that he was not
readdressing the merits of the issue,
but I don't have that in front of me at the moment.
So I apologize if that's incorrect.
Judge: Thank you.
-: I see that I'm over my time,
so if there's no other questions, I will rest on my brief.
Thank you. -: Thank you very much.
Okay, Attorney Cohen.
-: Good morning, and may it please the Court,
Josh Reisler Cohen on behalf of Richard Dilworth.
Mr. Dilworth discovery motion easily meets the material
and relevant threshold where there is a reasonable basis
to infer that racial profiling may have been the reason-
Judge: Why do you need the Bitmojis?
-: Certainly, so the prior discovery orders
that were produced after the appellate procedures
that this court has just reviewed,
those prior discovery orders essentially produced evidence
that was gonna be relevant to a statistical analysis.
So the number of people that were arrested and charged
in this investigatory scheme
during the relevant time period,
there was also a disclosure of the total number of people
that were targeted for surveillance
with this investigatory scheme
during the time period that was relevant.
But the Bitmoji and the username
is different than statistical evidence
that would raise a reasonable inference.
And our position is that the Bitmoji and username
is actually gonna be direct evidence
of the intent of the officers
who establish this investigatory scheme,
not influential evidence- -: Can you explain that?
-: Certainly.
When creating the Bitmojis and when creating the usernames,
the officers are making discretionary choices
about things like skin color,
skin tone, hair color, hairstyle,
and actually within the online application
where you are creating the cartoon character,
there's other phenotypes that you select for,
including things like the width of a nose
or the fullness of a face.
There's a variety of phenotypes that you select,
and all of those things potentially could reflect
a decision by the officers to create a Bitmoji or a username
that reflects the population that they're choosing to target
with this investigatory scheme as the, I believe-
-: What about usernames?
I mean Bitmojis seem to me, perhaps,
more understandable on this front,
but the usernames seem to me, can you gimme an example
of a username that would reflect,
in some kind of reliable way, a discriminatory intent?
-: So the username at issue
that the officers connected to Mr. Dilworth
was Young Rick 44, or something like that.
But I think, because, like the undercover accounts set up,
or the false accounts set up
by the Boston Police Department,
because people generally aren't using their real names,
people are using other kinds of social signifiers.
The amicus brief authored by the ACLU
and the Innocence Project talks about the way
that online social networks
have some overlap with in-person social networks
where there is some sort of self-segregation,
and there are, sort of, safe havens
where people come together
with shared experience and shared backgrounds.
And our anticipation is that like the Bitmojis,
the discretionary choices that the officers made
about the names that they're selecting for these accounts
is gonna reflect the communities
that they're trying to infiltrate with this surveillance.
The names of the accounts being monitored
were not disclosed in the discovery,
nor were the names of the accounts
used by the Boston Police.
Judge: This is undercover police work, right?
-: I think that's the closest analogy.
-: So on a urine analysis, this would only be okay
if the person has a Bitmoji where he looks like Joe Friday
and he has his police cap on, and he says, "Joe Friday?"
-: So our position is that the-
-: That's not real good undercover work, is it?
-: No, I totally understand Your Honor's point-
-: And that's what we discussed in Carisquillo as well.
-: Well, in Carisquillo, I think the main issue
the Court was addressing was whether
there was an expectation of privacy
for purposes of the fourth Amendment.
-: We litigated Carisquillo expectation of privacy,
which you know, bleeds into their argument a little bit,
but we litigated Carisquillo
and we were able to litigate it.
Judge Locke below and Carisquillo
did not disclose the username
of the under cover police officer.
And we said that was okay,
as long as you didn't use the name
of one of the known associates of the defendants, correct?
To show that the randomized friending of the person.
You could litigate your claim
without knowing who the person was.
-: Without knowing who the actual person was?
-: Without knowing the cop's username.
-: So our position is that these,
and I think based on the very substantial showing
that we've made so far,
not only with the number of people
who were arrested in this scheme,
but also with the number of people who were targeted,
of the 2,700 people that we are aware of,
targeted in this investigatory scheme,
I believe it was about 87% of them were people of color,
of the people whose race was known-
-: But so you have that information.
What I don't understand, and to Justice Gazianos point,
is how the usernames or the Bitmojis helps your analysis.
I don't really understand.
We need to draw the line between the dots.
I don't get it. -: Certainly.
I think both the Bitmojis and the usernames
reflect intentional discretionary choices
at the very initial stages of this investigate stage-
-: Right, to fit into the community,
so that you will be allowed to follow the Snapchat account.
So how is that an Equal Protection?
How does that help your Equal Protection argument?
-: So if the choices that the officers made
were to create Bitmojis that were Black, mostly Black,
and almost exclusively people of color-
-: Then what? -: And used usernames
of a similar kind, I think- -: Usernames that reflect
that they're Black? -: Potentially.
-: Okay, and so draw the line there. What does that mean?
-: I think those discretionary choices
supplement the statistical evidence that we have,
right, under the framework of Long and van Radar,
a defendant can make a showing with statistical evidence
or with totality of the circumstances.
-: And either way, you've proven that they've targeted
a primarily African American housing development
and they're looking for people
who are involved in gang violence.
Given that, then the burden becomes on the Commonwealth
to say why they did that,
to give a race-neutral reason under all the case law.
So whether or not the Bitmoji looks Norwegian
or African American, what difference does it make?
-: Well, if the Bitmoji reflects
what we think it's gonna reflect, then that becomes-
-: That's called undercover work.
-: Well, it becomes a piece of evidence
that the Commonwealth has to grapple with
in the totality of the circumstances at the rebuttal stage.
-: So why isn't the remedy just an adverse inference
or a accepted fact that the Bitmoji and the username
were designed to blend into the targeted community?
-: I thought about that a lot. I think it's a good question.
Our position is that because there are so many choices
that were made specifically in the creation of the Bitmojis,
there's at least a thousand possible combinations
of variables that could be created,
I think that number is right,
but there's many, many facial features and characteristics
that can be selected for,
and the username options are unlimited.
-: But Counsel, how is that going to be litigated?
Because infused in that comment is a racism
that needs to be addressed as well.
Because you're saying that
if we look at all of these choices that are made,
so if it's a broad nosed, black-skinned,
there were narrow nosed, black-skinned people.
You're saying, who's gonna say,
when we say now the username, who's gonna determine
whether that's a Black username or not?
And in this case, it wasn't a Black username.
So back to Attorney Fitzgerald's point,
the Court's now are going to sit back
in the totality of the circumstances,
we're gonna have judges making a determination
as to whether or not this looks like a Black person's emoji
or a Black person's username?
Is that what we're gonna be doing?
-: So I think that, Your Honor, your point is very well taken
and I think our position is that
the issue in an Equal Protection claim,
unlike a search and seizure,
is the discretionary choices the officers made
about who they're gonna target.
And we anticipate that this is gonna be visual evidence
of who the officers are intending to target.
If, at the merit stage, the Commonwealth and the officers
present a race-neutral reason,
then that's exactly what's appropriate
to do at the merit stage of a hearing.
Judge: Is it evidence of who they intend to target
or is it evidence of who they intend to appear like?
-: I think that's a question
that has to get resolved at the merit stage.
-: So look at it this way, so if you have a CI, right,
and the evidence that you get, and you do the groundwork,
and you say, listen, they're trying to intercept
this ring of drug dealers
who happen to be of a certain ethnicity
and they bring in CIs and our investigation
reveals that these CIs go
and they just look at people of color
and you bring an Equal Protection claim because of that.
Does it matter what the CIs look like?
-: I think what the CIs look like-
-: The CIs are trying to blend into the community
to buy drugs from the target drug dealers, right?
Do the Cis have to have crew cuts?
-: In that context, the CI may reflect,
as Your Honor is saying, the investigatory,
discretionary choices that the officers are making,
and whether or not that implicates Equal Protection,
I think can only be litigated
when a defendant has access to discovery
and is able to proceed to the merit stage.
-: All right, so that's an Equal Protection claim
that they're using CIs that blend into the neighborhood.
-: The choice to use that CI may or may not be
the Equal Protection claim itself,
but it may be evidence of the intent,
and the evidence of the intent is relevant-
-: The intent is to get the people to sell them drugs.
The intent on the Snapchat is to get access
to get the pictures of them flashing guns.
Right? That's the intent.
To have trust, essentially.
-: I think this is exactly the challenge
that Mr. Dilworth has,
which of not getting all of the discovery that he's seeking
in order to raise the claim at the merits.
I think all of these questions are important,
viable questions that we have to address
at the merit stage of the proceeding,
but in order to have an opportunity to do that,
in order to have an opportunity to present the evidence.
-: I thought short of the Bitmoji and usernames,
the Commonwealth did provide you
with all the other discovery, is that true?
-: Yes, most of the other discovery, but it-
-: But really, it's this extra piece of the Bitmoji
and the usernames that this case is ostensibly about.
-: I believe so, yes. -: Okay.
-: Can you address the dismissal with prejudice?
That's the last resort, right?
So can you tell us why that's correct?
-: Yeah.
So I believe that in Judge Alman's dismissal order,
he did note that there was a note
in one of the last sentences
that if the Commonwealth's position,
or this court changed their position,
that the issue could be revisited.
However, where Mr. Dilworth was denied access
to court-ordered discovery
and where the Commonwealth chose to willfully
and intentionally refuse to comply with a court order,
our position is that that fits squarely within the framework
of Washington W where dismissal would be appropriate.
Obviously, of course, suppression is a remedy
for police misconduct, and part of the reason for that
is because the suppression is designed
to advise the police about what sorts of behavior
they can't be doing anymore.
And I think, in this context,
where it was the Commonwealth decision
to refuse to provide discovery,
even though this would be litigated at a motion to suppress,
at this point of the proceedings,
dismissal has the deterrent effect on the Commonwealth
from refusing to comply with court orders.
-: I just wanna give you a chance to explain again
'cause I'm having trouble understanding
why it's so important to have this particular information.
As Justice Gaziano said,
we already know they're trying to infiltrate, right?
So let's assume that they're trying to look like
the people they're trying to connect with.
You already know that. You already know that.
So how does this information help?
-: Well, so this information is relevant to the...
I think it's gonna be relevant at a merit stage
to the testimony of the police officers
and to the ability to cross examine the police officers
about the choices that they made
at the outset of this investigatory stage,
and that's gonna go- -: Let's assume that
instead of having the case dismissed,
the answer is we're gonna assume that they did
what you are saying he they did.
Okay.
-: So I think, even with that inference,
that precludes Mr. Dilworth from being able
to cross examine the officers about the specific choices
that they made in how they set up this investigatory scheme.
A generalized inference doesn't take into account
the actual choices that they made in creating those Bitmojis
which is analogous- -: But you have the Bitmojis,
in your case, and you can easily get them
in the other 20 cases
the defense counsel's already produced for you.
So you've got, right?
You can ask those defense counsel,
"Was the emoji a person of color
or was it a person of Cambodian descent,"
whatever, or a White person, you can ask them that, right?
So you've got a lot on this issue already.
-: So in terms of the Bitmojis that were used
by the Youth Violence Strike Force to monitor people,
we don't have any of those.
I'm not aware of the account that was used
to follow Mr. Dilworth, and I'm not aware of the account
and I don't think any of the other defense lawyers
are aware- -: Mr. Dilworth
is not aware of the emoji that was used?
-: These are false accounts
that are operated under subterfuge-
-: He has so many followers
that you can't figure out what it is.
-: As far as we know, we don't have any idea
what the account is that was used to follow Mr. Dilworth,
and as far as I'm aware, no other defense lawyer
or defendant is aware of that either.
So we don't actually have that initial descriptor.
-: So the prejudice to your client
that merits dismissal of the indictments is?
-: So our position is that the discretionary choices
that the officers make
in setting up this investigatory scheme,
like the selections about race
and the selections about hair color and hairstyle,
those go to the core claim that Mr. Dilworth has,
that he was targeted because of his race.
He can make an inferential showing the statistics-
-: Okay, hold on a minute, Counsel.
He was targeted because he can't stop
flashing and posting videos of guns, okay?
The affidavit that was submitted in response,
the Youth Violence Strike Force,
commonly known as the Gang Unit,
they're targeting gang people, okay?
So the idea that this is
just kind of randomized infiltration of Black communities,
there's a specific targeted community
that they're looking to,
and those are folks that are gang related
that possess unlawful, illegal weapons repeatedly, right?
Because we have this case where Mr. Dilworth
was arrested after whatever was witnessed online,
and no sooner does he hit the street, he does it again.
So it's not this generalized
kind of targeting that I see here.
It's a specific targeting.
-: I absolutely understand Your Honor's question
and I think what part of my response is that
we don't know why the police decided to target Mr. Dilworth.
He was targeted months before the observations was made.
The reason that he specifically was targeted
has never been disclosed in this discovery litigation.
But certainly he was targeted long before
the police made the observations
that they made in this case.
We also know that of the 2,700 people
that are being monitored in this investigatory scheme,
at that time, back in 2017, 2018,
officer didn't know the names of about 65% of them.
And I think that really raises a question
about whether this is specific, targeted investigation
connected to criminal activity,
or if this was more of a social dragnet
that actually implicates the Equal Protection clause.
And that's the discovery that we're seeking is,
we're seeking discovery in order to litigate that question,
in order to put that question before a judge,
to put the officers through the crucible
of cross-examination, to understand the credibility
of the race-neutral reasons that they would present,
and to actually have an opportunity to present a claim.
This court has established robust and clear
Equal Protection jurisprudence in the Commonwealth,
and one of the cornerstones of that jurisprudence
is the ability of defendants
to investigate the investigatory scheme that targets them.
Without that discovery, Mr. Dilworth-
-: The inference you seek to draw
is that the police are racist
because they pick Black Bitmojis.
-: Your Honor, that's not what we're saying.
I think where this court has, in Long,
described that evidence may be based
both on implicit and explicit bias,
and the officers are making discretionary choices,
and all of the discovery that we've gotten so far
documents a very significant disparate impact.
I think it's appropriate for Mr. Dilworth to seek evidence
that he believes will be direct evidence
that he can present at a hearing.
-: But either way, just like if there's evidence
that the police are,
based upon their mobile data terminal information,
are just typing in, you know, a 24 hour period,
one copy is on the side of the road,
the first analogy is just typing in
names of Black people, motorists, right?
You have the data, which is irrefutable,
and you can now use that
to put the burden on the Commonwealth, right?
Here, if you have information
about targeting of social media,
the burden is then gonna shift to the Commonwealth.
Correct?
-: That's correct, but I do think it's important
for a defendant like Mr. Dilworth
to be able to raise both a statistical claim
and a claim in the totality of the circumstances,
and to raise evidence that would provide an inference
and to raise evidence
that potentially would be direct evidence,
and that's what he's seeking.
-: But you're gonna get direct evidence
if they have to say, you know, we set up these accounts
and all the people that we set up accounts on
happen to be people of color.
And the big question is to why,
which is the issue in Equal Protection.
-: Right, and I think the choices that the officers made
is one part of the answer about why.