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SJC 13547 Commonwealth versus Richard Dilworth Junior.
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Okay, Attorney Fitzgerald, whenever you're ready.
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Thank you, Your Honor. Good morning.
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And may it please the Court,
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Caitlyn Fitzgerald for the Commonwealth.
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With me is ADA Elizabeth Martino.
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There's a lot of issues to talk about today,
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but at the heart of this appeal is that the trial Court
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misinterpreted and then misapplied the discovery rules
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as they apply to Equal Protection discovery in this case.
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Can I ask you about intrusion,
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what that means in van Radar.
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You posit that, unlike a Fourth Amendment,
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article 14 intrusion, this isn't actionable
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'cause there wasn't enough police conduct, essentially.
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Would it be an Equal Protection violation
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if a police officer is stationed at the side of the road
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and there's affirmative evidence
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that they write down and run license plates
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only for Black drivers?
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Yes. The question is not whether or not-
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No, the motorist is unaware of what happens.
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So if that's a violation of Equal Protection,
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why is Foley solely focusing on, as they allege,
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people of color in their social media?
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So the question is not whether or not
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Equal Protection applies.
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Equal Protection always protects people
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from unequal enforcement of the law.
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The question is what the remedy is, and this court-
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Well we've said the remedy is suppression.
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So there is no case that I've been able to find
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that suppresses evidence without a constitutional intrusion.
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So this court in-
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What's the remedy for the constitutional violation?
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So as it stands right now, it would be a 1983 claim.
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It would be a civil suit.
Okay.
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I thought we crossed that road in Long,
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and actually, in the case that proceeded Long.
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Justice Cordy said we're going to call this
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an exclusionary rule violation, right?
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Yes. So I believe that the first-
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You want us to backtrack from that?
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No, Your Honor.
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So the first case
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that allowed for suppression in the Commonwealth,
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my understanding is Laura,
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that was a constitutional seizure,
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Long addresses constitutional seizure.
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The Commonwealth is just asking the Court
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if the Court is going to extend suppression jurisprudence
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in this context.
I thought,
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so Laura says, in our jurisprudence,
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a violation of Equal Protection,
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the remedies exclusionary rule, Long says that,
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van Radar says that, and you want us to change it.
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So all three of those cases
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involve a constitutional seizure, Your Honor.
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Van Radar does discuss
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consensual encounters on the street and its reasoning,
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but that's not what van Radar was.
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So the Commonwealth is just asking this court
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that if suppression jurisprudence
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is going to be extended to procedure activity
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that this court consider in doing so,
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now that that issue has squarely been raised
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before the Court in this case,
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would ask the Court to consider
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creating a pragmatic discovery standard
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that would allow for the variety of allegations
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that could arise in the criminal Courts.
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So Your Honor-
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What would that standard look like?
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Part of the problem I have here is that
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the Commonwealth really did nothing
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to help the judge down below, that decided, ultimately,
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not to comply with the discovery order.
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Don't we first have to look at the dismissal
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and determine whether there was an abusive discretion there
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and then determine whether or not there might be some,
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as you call it, pragmatic discovery approach, because here,
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I don't really see how we get to that question.
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So I think I see Your Honor's question
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is really three parts.
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First, the Commonwealth would propose
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that the Betansas Bernardo B standard
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that's already in place for pre-seizure activity
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add a step that allows for the Court
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to consider rebuttal evidence
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from the Commonwealth at the discovery stage.
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And I can, in a moment, if the Court wants,
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I can kind of use this case
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as an example of how that would've worked.
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The Court also mentioned
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that the Commonwealth did nothing to-
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So that would be before you produce the discovery
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that the Court is ordered?
For pre-seizure cases, yes.
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So I can give an example in this case, Your Honor.
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In this case, the defendant submitted an affidavit saying,
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I conducted an informal survey
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of my fellow public defenders.
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I received 20 responses, that the inquiry was,
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if you have a client who is charged with a crime,
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following a Snapchat investigation,
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could you let me know the race of your client?
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17 of those clients were Black and three were Hispanic,
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from the 20 responses that Counsel got.
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If the Court were to find that, that met
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the Betansas Bernardo B standard,
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which the Commonwealth would submit, it does not,
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but if it were, the burden would shift then
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to the Commonwealth at the discovery phase
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to offer race neutral-
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Did you make that offer here?
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We did, and we did that at each stage.
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So at the first discovery motion,
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we did object and we offered,
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I believe we offered an in-camera hearing
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that was rejected by the judge.
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We then did a motion to reconsider, it was denied.
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We tried to take a 2113, that was denied.
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We appealed the denial of the 2113 and that was denied.
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We turned over the discovery.
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We then had a second discovery order.
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We objected again.
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That was-
But the discovery
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you turned over was not,
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was not of the sort you just proposed our allowing.
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It was the discovery that the judge ordered.
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It's not countervailing information.
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The countervailing information we offered
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at the first discovery motion
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was an in-camera hearing to offer a race neutral reason.
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Why would we change
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the ordinary relevance standard for discovery
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because there is an Equal Protection argument at issue?
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It seems to me, contrary to all constitutional law,
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to make a defendant who's asserting
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an Equal Protection argument jump through a loophole
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that ordinary relevance doesn't require.
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So again, the Commonwealth is only asking
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that this be done in pre-seizure cases, and typically-
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But why, why would we treat pre-seizure cases
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that implicate Equal Protection
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any different than ordinary discovery,
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which is usually just the relevancy?
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Because of all of the different scenarios
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that could be implicated, if I may give an example.
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The Court had mentioned previously a see just check.
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So if there's a Court order for see just records,
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that's understandable,
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that's something the Commonwealth can produce,
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but what if a defendant raises a claim and says,
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"I was arrested in area B-2 Roxbury
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and I'm aware through publicly available sources
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that the Boston Police Department has more officers
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stationed in Roxbury as opposed to West Roxbury,
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and Roxbury has a higher Black population than West Roxbury.
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Therefore, I've met my burden of relevance
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that I may have an Equal Protection claim
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and I want one year worth of reports
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from each of those two districts."
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Without allowing the Court to consider
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rebuttal evidence from the Commonwealth,
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which might take, you know, it might be evidence
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that the Boston Police Department
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expands its resources based on 911 calls
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or a reported crime or something like that.
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But van Radar says investigations
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start deployment of resources.
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Correct, Your Honor.
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But I believe that what we're doing here is really, I mean,
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I think that if there's more resources,
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there's more investigations going on.
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This is why the Commonwealth is asking for this court,
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now that the issue,
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the procedure issue was not squarely placed
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before this court in van Radar
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and the Commonwealth is asking this court to,
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now that it has been placed squarely before you,
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consider all of the different motions
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that could be file here-
I guess back to my question,
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why would we have this heightened burden on a defendant
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to seek relevant discovery
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in connection with a constitutional alleged violation?
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It seems to me backward to actually heighten the discovery.
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You were going through your scenario
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about West Roxbury versus B-2.
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I don't understand why we would withhold discovery.
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What is the consequence to the Commonwealth?
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So the consequence, in the example I gave there,
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if the Court is not allowed to consider, essentially,
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anything that the defendant is raising in context,
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it's a burden to the Commonwealth,
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it's a burden to the Court.
What's the burden?
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The burden is turning over thousands of police reports
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that will surely need to be redacted.
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So it's a time burden and it's a burden on the Court
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to be hearing, essentially, motions,
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that at the end of the day, will have no merit.
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So what the Commonwealth is proposing is not-
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You're proposing to prejudge the merits of the motion
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before the defendant is allowed to have discovery
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on Equal Protection grounds.
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For pre-seizure cases, the Commonwealth is asking
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for the Court to be able to consider
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the context of the defendant's affidavit,
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which is not your what currently is happening.
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And you're incorporating in Article 14
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fourth Amendment concept into Equal Protection discovery.
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So I...
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I don't-
The answer is yes.
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I know, you can't say no.
(judges laugh)
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So yes, but seizure, again,
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is relevant here for a couple of reasons.
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One is that, again, we're talking about suppression.
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There is no case law currently,
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and I'm not saying that there won't be,
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but there is no case law currently
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allowing for suppression as the remedy pre-seizure.
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I think the other thing that is implicated pre-seizure is,
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and this court has always acknowledged
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in its Equal Protection cases,
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that there is a consideration for separation of powers here.
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In Laura, the Court acknowledged
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that the day-to-day enforcement
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of Equal Protection of the laws
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is primarily in the hands of the executive branch,
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and the Court and Robinson van Radar, again,
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discusses this and that decision says,
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the charging decisions of the police and the prosecutor
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are guarded more by separation of powers.
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The decisions of police in stopping,
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searching, things of that nature,
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those are always subject to judicial scrutiny.
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So there's less of a separation of powers issue there.
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But there is a proffer here at the first stage
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by the defense that, you know, has some weight to it.
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You know, all 20 are people of color, right?
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So in the first stage, there is an evaluation
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of whether there's some weight to this, right,
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which is what you want at the second stage.
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But we've dismissed some of these at the first stage, right?
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So I think this is a...
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That's a difficult question to answer
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because I don't think that there was any-
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But isn't that the case?
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The defense has made a proffer that's concerning,
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that all 20 of these...
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Now it may be distinguishable down the road,
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but doesn't that get them into the discovery phase?
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No, Your Honor, and here is why.
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Again, I believe that the standard is still Bernardo B,
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which is a relevant and material standard-
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Isn't the standard Cuffy?
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So I would say that one, Cuffy cites to Bernardo B,
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but two, Cuffy, as you know,
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came out with Robinson van Radar
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and the Commonwealth would say that Robinson van Radar
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and Long are exceptions to the general rule.
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But Cuffy is a relevance case.
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As justice Wegman points out, Cuffy is a relevance inquiry.
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So is Bernardo B, Your Honor.
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So it quotes exactly Bernardo B,
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00:12:40.320 --> 00:12:44.820
but in order to be relevant in the Equal Protection context,
266
00:12:44.820 --> 00:12:47.250
there still has to be some evidence
267
00:12:47.250 --> 00:12:51.600
that of each of the three Franklin tests-
268
00:12:51.600 --> 00:12:53.640
What what case holds that?
269
00:12:53.640 --> 00:12:56.790
So there's no case that explicitly says-
270
00:12:56.790 --> 00:12:59.420
Right, because that's the test for the merits
271
00:12:59.420 --> 00:13:00.990
of the Equal Protection argument,
272
00:13:00.990 --> 00:13:02.850
not whether or not you get discovery
273
00:13:02.850 --> 00:13:04.893
in order to make the argument.
274
00:13:06.990 --> 00:13:09.278
If that's the case, Your Honor-
275
00:13:09.278 --> 00:13:11.250
Well, it is, so tell me why we should reverse
276
00:13:11.250 --> 00:13:14.640
all of our jurisprudence to make relevance
277
00:13:14.640 --> 00:13:17.551
not the standard for getting discovery
278
00:13:17.551 --> 00:13:19.440
in order to marshal a need for protection argument.
279
00:13:19.440 --> 00:13:21.930
So I don't think that the Court needs to reverse
280
00:13:21.930 --> 00:13:23.910
the fact that relevance is the standard.
281
00:13:23.910 --> 00:13:25.440
It's the Commonwealth's position that
282
00:13:25.440 --> 00:13:27.420
if there's not a...
283
00:13:27.420 --> 00:13:29.580
What Equal Protection is, at its heart,
284
00:13:29.580 --> 00:13:31.710
is whether or not similarly situated people
285
00:13:31.710 --> 00:13:33.634
are being treated differently-
Right,
286
00:13:33.634 --> 00:13:35.430
and so we have a defendant who comes forward
287
00:13:35.430 --> 00:13:39.660
with 20 out of 20 people being targeted by Snapchat
288
00:13:39.660 --> 00:13:40.800
being people of color.
289
00:13:40.800 --> 00:13:43.143
Why isn't that enough to get the discovery?
290
00:13:44.040 --> 00:13:48.600
So the defendant is-
And what are the odds?
291
00:13:48.600 --> 00:13:53.193
So I think, again, this could have given some context.
292
00:13:56.550 --> 00:13:59.490
If Counsel had attempted to hit all three prongs,
293
00:13:59.490 --> 00:14:01.500
it would've been very easy for Counsel
294
00:14:01.500 --> 00:14:04.387
to reply all to his initial email and say,
295
00:14:04.387 --> 00:14:06.150
"If you have a defendant who is charged
296
00:14:06.150 --> 00:14:08.340
with a firearm by the Boston Police Department,
297
00:14:08.340 --> 00:14:09.870
please let me know their race,"
298
00:14:09.870 --> 00:14:13.590
not including Snapchat, just people who have been arrested
299
00:14:13.590 --> 00:14:15.540
with illegal firearms in the city of Boston.
300
00:14:15.540 --> 00:14:18.600
Comparing the racial makeup of those two groups,
301
00:14:18.600 --> 00:14:20.103
if they are disparate,
302
00:14:21.450 --> 00:14:23.970
it would raise an Equal Protection claim.
303
00:14:23.970 --> 00:14:25.320
But just saying, I mean,
304
00:14:25.320 --> 00:14:27.420
that would be the same as Counsel-
305
00:14:27.420 --> 00:14:29.280
So you lost that motion, right?
306
00:14:29.280 --> 00:14:31.620
And you agreed to produce discovery,
307
00:14:31.620 --> 00:14:33.300
and then you lost the second motion,
308
00:14:33.300 --> 00:14:34.890
and then you lost the third motion,
309
00:14:34.890 --> 00:14:36.540
and then you told the judge, "Well,
310
00:14:36.540 --> 00:14:39.810
we're not gonna produce the documents anyway."
311
00:14:39.810 --> 00:14:42.060
Why was it an abuse of discretion
312
00:14:42.060 --> 00:14:43.800
in light of the Commonwealth's failure
313
00:14:43.800 --> 00:14:46.560
to provide an alternative remedy at all
314
00:14:46.560 --> 00:14:48.780
to dismiss the indictments?
315
00:14:48.780 --> 00:14:50.820
It was an abuse of discretion
316
00:14:50.820 --> 00:14:52.500
because it was an abuse of discretion
317
00:14:52.500 --> 00:14:54.300
to order the discovery in the first place.
318
00:14:54.300 --> 00:14:55.800
Okay, so you lost those three
319
00:14:55.800 --> 00:14:57.480
and so now you're complaining
320
00:14:57.480 --> 00:15:00.360
because the indictment was dismissed,
321
00:15:00.360 --> 00:15:03.300
having lost three times at bat.
322
00:15:03.300 --> 00:15:07.020
So the last time that the Equal Protection
323
00:15:07.020 --> 00:15:10.470
was really analyzed on its merits was in January of 2019
324
00:15:10.470 --> 00:15:12.870
when Judge Alman issued the order.
325
00:15:12.870 --> 00:15:14.340
And after that, the Commonwealth had-
326
00:15:14.340 --> 00:15:17.283
And what was the result of that merits analysis?
327
00:15:18.420 --> 00:15:19.830
Well, he found that the-
328
00:15:19.830 --> 00:15:22.440
No, what was your ultimate final decision
329
00:15:22.440 --> 00:15:24.273
on that merits analysis?
330
00:15:25.320 --> 00:15:27.093
Decision of the Court?
Yeah.
331
00:15:28.020 --> 00:15:30.780
The trial court ordered it.
Yep.
332
00:15:30.780 --> 00:15:32.520
You appealed to the single justice.
333
00:15:32.520 --> 00:15:33.353
Correct.
You lost,
334
00:15:33.353 --> 00:15:35.460
you appealed to this panel and you lost.
335
00:15:35.460 --> 00:15:36.293
Correct.
Okay.
336
00:15:36.293 --> 00:15:38.970
So on the merits, you lost the discovery
337
00:15:38.970 --> 00:15:43.350
and now you're not producing the discovery to the defendant,
338
00:15:43.350 --> 00:15:46.080
having battled it all the way to the panel
339
00:15:46.080 --> 00:15:50.370
of the Supreme Judicial Court, and I'm sorry?
340
00:15:50.370 --> 00:15:51.690
The Supreme Judicial Court,
341
00:15:51.690 --> 00:15:53.970
nor the single justice addressed the merits,
342
00:15:53.970 --> 00:15:58.800
and in footnote five of the Dilworth decision by this court,
343
00:15:58.800 --> 00:16:03.420
it specifically says that the merits were not reached.
344
00:16:03.420 --> 00:16:07.110
It was just that the Court was not abusing its discretion
345
00:16:07.110 --> 00:16:10.620
and not using extraordinary powers of appeal at that point.
346
00:16:10.620 --> 00:16:14.400
So Judge Alman issued a decision, ruling on the merits.
347
00:16:14.400 --> 00:16:16.260
In that, he said, "It is not a case in which
348
00:16:16.260 --> 00:16:18.240
the defendant has shown a person of different race,
349
00:16:18.240 --> 00:16:19.860
similarly situated to him,
350
00:16:19.860 --> 00:16:22.890
was treated more favorably than he was treated."
351
00:16:22.890 --> 00:16:24.601
It's the Commonwealth's position
352
00:16:24.601 --> 00:16:25.800
that is what an Equal Protection claim is,
353
00:16:25.800 --> 00:16:27.300
and that's the only ruling we have.
354
00:16:27.300 --> 00:16:30.570
Judge Krepp and the subsequent two orders
355
00:16:30.570 --> 00:16:35.010
specifically stated he was not going to readdress the merits
356
00:16:35.010 --> 00:16:37.590
because Judge Alman had already reached them.
357
00:16:37.590 --> 00:16:40.955
So the Commonwealth did everything that we could
358
00:16:40.955 --> 00:16:43.860
to try to get these merits raised again.
359
00:16:43.860 --> 00:16:46.890
The only way that we could do that ultimately
360
00:16:46.890 --> 00:16:50.190
was to do what we did
361
00:16:50.190 --> 00:16:52.500
and not comply with the discovery order.
362
00:16:52.500 --> 00:16:55.440
Counsel, excuse me, my reading of the record,
363
00:16:55.440 --> 00:16:56.640
and can you please point me
364
00:16:56.640 --> 00:16:58.080
to something in the record if I'm wrong,
365
00:16:58.080 --> 00:17:01.780
my reading of the record was that Judge Krepp
366
00:17:02.790 --> 00:17:05.790
repeatedly said he was not gonna revisit Judge Alman's
367
00:17:05.790 --> 00:17:08.790
rejection of the Commonwealth's argument
368
00:17:08.790 --> 00:17:11.370
that a seizure was required.
369
00:17:11.370 --> 00:17:14.733
And rather than anything else, is that incorrect?
370
00:17:16.920 --> 00:17:21.478
My reading of the decision was that he was not
371
00:17:21.478 --> 00:17:23.700
readdressing the merits of the issue,
372
00:17:23.700 --> 00:17:26.070
but I don't have that in front of me at the moment.
373
00:17:26.070 --> 00:17:28.721
So I apologize if that's incorrect.
374
00:17:28.721 --> 00:17:29.932
Thank you.
375
00:17:29.932 --> 00:17:32.280
I see that I'm over my time,
376
00:17:32.280 --> 00:17:34.560
so if there's no other questions, I will rest on my brief.
377
00:17:34.560 --> 00:17:36.363
Thank you.
Thank you very much.
378
00:17:38.295 --> 00:17:39.128
Okay, Attorney Cohen.
379
00:17:52.920 --> 00:17:54.750
Good morning, and may it please the Court,
380
00:17:54.750 --> 00:17:57.693
Josh Reisler Cohen on behalf of Richard Dilworth.
381
00:17:58.950 --> 00:18:02.460
Mr. Dilworth discovery motion easily meets the material
382
00:18:02.460 --> 00:18:05.700
and relevant threshold where there is a reasonable basis
383
00:18:05.700 --> 00:18:09.090
to infer that racial profiling may have been the reason-
384
00:18:09.090 --> 00:18:11.040
Why do you need the Bitmojis?
385
00:18:11.040 --> 00:18:14.730
Certainly, so the prior discovery orders
386
00:18:14.730 --> 00:18:19.140
that were produced after the appellate procedures
387
00:18:19.140 --> 00:18:21.390
that this court has just reviewed,
388
00:18:21.390 --> 00:18:25.500
those prior discovery orders essentially produced evidence
389
00:18:25.500 --> 00:18:27.960
that was gonna be relevant to a statistical analysis.
390
00:18:27.960 --> 00:18:30.990
So the number of people that were arrested and charged
391
00:18:30.990 --> 00:18:32.550
in this investigatory scheme
392
00:18:32.550 --> 00:18:34.140
during the relevant time period,
393
00:18:34.140 --> 00:18:37.710
there was also a disclosure of the total number of people
394
00:18:37.710 --> 00:18:39.450
that were targeted for surveillance
395
00:18:39.450 --> 00:18:41.100
with this investigatory scheme
396
00:18:41.100 --> 00:18:43.590
during the time period that was relevant.
397
00:18:43.590 --> 00:18:46.470
But the Bitmoji and the username
398
00:18:46.470 --> 00:18:48.450
is different than statistical evidence
399
00:18:48.450 --> 00:18:50.460
that would raise a reasonable inference.
400
00:18:50.460 --> 00:18:53.160
And our position is that the Bitmoji and username
401
00:18:53.160 --> 00:18:54.750
is actually gonna be direct evidence
402
00:18:54.750 --> 00:18:57.312
of the intent of the officers
403
00:18:57.312 --> 00:18:58.500
who establish this investigatory scheme,
404
00:18:58.500 --> 00:19:00.270
not influential evidence-
Can you explain that?
405
00:19:00.270 --> 00:19:01.110
Certainly.
406
00:19:01.110 --> 00:19:04.020
When creating the Bitmojis and when creating the usernames,
407
00:19:04.020 --> 00:19:06.270
the officers are making discretionary choices
408
00:19:06.270 --> 00:19:09.035
about things like skin color,
409
00:19:09.035 --> 00:19:10.950
skin tone, hair color, hairstyle,
410
00:19:10.950 --> 00:19:14.430
and actually within the online application
411
00:19:14.430 --> 00:19:17.940
where you are creating the cartoon character,
412
00:19:17.940 --> 00:19:20.100
there's other phenotypes that you select for,
413
00:19:20.100 --> 00:19:22.920
including things like the width of a nose
414
00:19:22.920 --> 00:19:24.360
or the fullness of a face.
415
00:19:24.360 --> 00:19:27.870
There's a variety of phenotypes that you select,
416
00:19:27.870 --> 00:19:30.883
and all of those things potentially could reflect
417
00:19:30.883 --> 00:19:34.830
a decision by the officers to create a Bitmoji or a username
418
00:19:34.830 --> 00:19:37.710
that reflects the population that they're choosing to target
419
00:19:37.710 --> 00:19:41.160
with this investigatory scheme as the, I believe-
420
00:19:41.160 --> 00:19:42.723
What about usernames?
421
00:19:44.188 --> 00:19:47.490
I mean Bitmojis seem to me, perhaps,
422
00:19:47.490 --> 00:19:49.320
more understandable on this front,
423
00:19:49.320 --> 00:19:53.920
but the usernames seem to me, can you gimme an example
424
00:19:55.020 --> 00:19:57.453
of a username that would reflect,
425
00:19:58.980 --> 00:20:03.980
in some kind of reliable way, a discriminatory intent?
426
00:20:04.200 --> 00:20:07.289
So the username at issue
427
00:20:07.289 --> 00:20:09.900
that the officers connected to Mr. Dilworth
428
00:20:09.900 --> 00:20:12.960
was Young Rick 44, or something like that.
429
00:20:12.960 --> 00:20:17.960
But I think, because, like the undercover accounts set up,
430
00:20:19.530 --> 00:20:21.390
or the false accounts set up
431
00:20:21.390 --> 00:20:22.440
by the Boston Police Department,
432
00:20:22.440 --> 00:20:24.780
because people generally aren't using their real names,
433
00:20:24.780 --> 00:20:28.020
people are using other kinds of social signifiers.
434
00:20:28.020 --> 00:20:30.600
The amicus brief authored by the ACLU
435
00:20:30.600 --> 00:20:32.490
and the Innocence Project talks about the way
436
00:20:32.490 --> 00:20:35.160
that online social networks
437
00:20:35.160 --> 00:20:39.240
have some overlap with in-person social networks
438
00:20:39.240 --> 00:20:41.610
where there is some sort of self-segregation,
439
00:20:41.610 --> 00:20:43.890
and there are, sort of, safe havens
440
00:20:43.890 --> 00:20:44.790
where people come together
441
00:20:44.790 --> 00:20:47.803
with shared experience and shared backgrounds.
442
00:20:47.803 --> 00:20:49.890
And our anticipation is that like the Bitmojis,
443
00:20:49.890 --> 00:20:51.870
the discretionary choices that the officers made
444
00:20:51.870 --> 00:20:54.870
about the names that they're selecting for these accounts
445
00:20:54.870 --> 00:20:58.020
is gonna reflect the communities
446
00:20:58.020 --> 00:21:00.443
that they're trying to infiltrate with this surveillance.
447
00:21:02.130 --> 00:21:04.470
The names of the accounts being monitored
448
00:21:04.470 --> 00:21:06.390
were not disclosed in the discovery,
449
00:21:06.390 --> 00:21:07.680
nor were the names of the accounts
450
00:21:07.680 --> 00:21:08.640
used by the Boston Police.
451
00:21:08.640 --> 00:21:11.033
This is undercover police work, right?
452
00:21:12.300 --> 00:21:14.180
I think that's the closest analogy.
453
00:21:14.180 --> 00:21:18.420
So on a urine analysis, this would only be okay
454
00:21:18.420 --> 00:21:21.960
if the person has a Bitmoji where he looks like Joe Friday
455
00:21:21.960 --> 00:21:25.500
and he has his police cap on, and he says, "Joe Friday?"
456
00:21:25.500 --> 00:21:28.148
So our position is that the-
457
00:21:28.148 --> 00:21:30.539
That's not real good undercover work, is it?
458
00:21:30.539 --> 00:21:32.550
No, I totally understand Your Honor's point-
459
00:21:32.550 --> 00:21:35.610
And that's what we discussed in Carisquillo as well.
460
00:21:35.610 --> 00:21:38.220
Well, in Carisquillo, I think the main issue
461
00:21:38.220 --> 00:21:39.450
the Court was addressing was whether
462
00:21:39.450 --> 00:21:41.100
there was an expectation of privacy
463
00:21:41.100 --> 00:21:42.570
for purposes of the fourth Amendment.
464
00:21:42.570 --> 00:21:45.450
We litigated Carisquillo expectation of privacy,
465
00:21:45.450 --> 00:21:47.730
which you know, bleeds into their argument a little bit,
466
00:21:47.730 --> 00:21:50.026
but we litigated Carisquillo
467
00:21:50.026 --> 00:21:50.859
and we were able to litigate it.
468
00:21:50.859 --> 00:21:53.820
Judge Locke below and Carisquillo
469
00:21:53.820 --> 00:21:56.230
did not disclose the username
470
00:21:57.421 --> 00:22:02.100
of the under cover police officer.
471
00:22:02.100 --> 00:22:03.810
And we said that was okay,
472
00:22:03.810 --> 00:22:06.000
as long as you didn't use the name
473
00:22:06.000 --> 00:22:10.263
of one of the known associates of the defendants, correct?
474
00:22:11.129 --> 00:22:13.983
To show that the randomized friending of the person.
475
00:22:16.290 --> 00:22:19.080
You could litigate your claim
476
00:22:19.080 --> 00:22:20.883
without knowing who the person was.
477
00:22:22.170 --> 00:22:23.880
Without knowing who the actual person was?
478
00:22:23.880 --> 00:22:26.910
Without knowing the cop's username.
479
00:22:26.910 --> 00:22:29.880
So our position is that these,
480
00:22:29.880 --> 00:22:32.850
and I think based on the very substantial showing
481
00:22:32.850 --> 00:22:33.690
that we've made so far,
482
00:22:33.690 --> 00:22:35.190
not only with the number of people
483
00:22:35.190 --> 00:22:36.330
who were arrested in this scheme,
484
00:22:36.330 --> 00:22:38.490
but also with the number of people who were targeted,
485
00:22:38.490 --> 00:22:41.190
of the 2,700 people that we are aware of,
486
00:22:41.190 --> 00:22:43.710
targeted in this investigatory scheme,
487
00:22:43.710 --> 00:22:46.590
I believe it was about 87% of them were people of color,
488
00:22:46.590 --> 00:22:49.333
of the people whose race was known-
489
00:22:49.333 --> 00:22:50.550
But so you have that information.
490
00:22:50.550 --> 00:22:54.180
What I don't understand, and to Justice Gazianos point,
491
00:22:54.180 --> 00:22:59.180
is how the usernames or the Bitmojis helps your analysis.
492
00:22:59.430 --> 00:23:01.950
I don't really understand.
493
00:23:01.950 --> 00:23:05.430
We need to draw the line between the dots.
494
00:23:05.430 --> 00:23:07.113
I don't get it.
Certainly.
495
00:23:07.980 --> 00:23:12.300
I think both the Bitmojis and the usernames
496
00:23:12.300 --> 00:23:15.000
reflect intentional discretionary choices
497
00:23:15.000 --> 00:23:18.330
at the very initial stages of this investigate stage-
498
00:23:18.330 --> 00:23:20.223
Right, to fit into the community,
499
00:23:21.180 --> 00:23:25.500
so that you will be allowed to follow the Snapchat account.
500
00:23:25.500 --> 00:23:28.140
So how is that an Equal Protection?
501
00:23:28.140 --> 00:23:30.718
How does that help your Equal Protection argument?
502
00:23:30.718 --> 00:23:31.740
So if the choices that the officers made
503
00:23:31.740 --> 00:23:36.740
were to create Bitmojis that were Black, mostly Black,
504
00:23:37.320 --> 00:23:39.589
and almost exclusively people of color-
505
00:23:39.589 --> 00:23:41.340
Then what?
And used usernames
506
00:23:41.340 --> 00:23:44.730
of a similar kind, I think-
Usernames that reflect
507
00:23:44.730 --> 00:23:47.370
that they're Black?
Potentially.
508
00:23:47.370 --> 00:23:50.220
Okay, and so draw the line there. What does that mean?
509
00:23:50.220 --> 00:23:52.450
I think those discretionary choices
510
00:23:53.790 --> 00:23:56.850
supplement the statistical evidence that we have,
511
00:23:56.850 --> 00:23:59.400
right, under the framework of Long and van Radar,
512
00:23:59.400 --> 00:24:03.030
a defendant can make a showing with statistical evidence
513
00:24:03.030 --> 00:24:05.133
or with totality of the circumstances.
514
00:24:06.000 --> 00:24:09.750
And either way, you've proven that they've targeted
515
00:24:09.750 --> 00:24:14.750
a primarily African American housing development
516
00:24:15.450 --> 00:24:16.590
and they're looking for people
517
00:24:16.590 --> 00:24:18.723
who are involved in gang violence.
518
00:24:19.920 --> 00:24:23.700
Given that, then the burden becomes on the Commonwealth
519
00:24:23.700 --> 00:24:24.930
to say why they did that,
520
00:24:24.930 --> 00:24:29.250
to give a race-neutral reason under all the case law.
521
00:24:29.250 --> 00:24:33.270
So whether or not the Bitmoji looks Norwegian
522
00:24:33.270 --> 00:24:36.840
or African American, what difference does it make?
523
00:24:36.840 --> 00:24:38.550
Well, if the Bitmoji reflects
524
00:24:38.550 --> 00:24:41.918
what we think it's gonna reflect, then that becomes-
525
00:24:41.918 --> 00:24:42.900
That's called undercover work.
526
00:24:42.900 --> 00:24:44.610
Well, it becomes a piece of evidence
527
00:24:44.610 --> 00:24:46.140
that the Commonwealth has to grapple with
528
00:24:46.140 --> 00:24:48.540
in the totality of the circumstances at the rebuttal stage.
529
00:24:48.540 --> 00:24:53.540
So why isn't the remedy just an adverse inference
530
00:24:53.850 --> 00:24:58.850
or a accepted fact that the Bitmoji and the username
531
00:24:59.190 --> 00:25:04.190
were designed to blend into the targeted community?
532
00:25:05.105 --> 00:25:07.710
I thought about that a lot. I think it's a good question.
533
00:25:07.710 --> 00:25:12.060
Our position is that because there are so many choices
534
00:25:12.060 --> 00:25:15.180
that were made specifically in the creation of the Bitmojis,
535
00:25:15.180 --> 00:25:18.120
there's at least a thousand possible combinations
536
00:25:18.120 --> 00:25:19.650
of variables that could be created,
537
00:25:19.650 --> 00:25:20.610
I think that number is right,
538
00:25:20.610 --> 00:25:23.670
but there's many, many facial features and characteristics
539
00:25:23.670 --> 00:25:24.570
that can be selected for,
540
00:25:24.570 --> 00:25:27.570
and the username options are unlimited.
541
00:25:27.570 --> 00:25:32.100
But Counsel, how is that going to be litigated?
542
00:25:32.100 --> 00:25:37.100
Because infused in that comment is a racism
543
00:25:37.530 --> 00:25:39.990
that needs to be addressed as well.
544
00:25:39.990 --> 00:25:41.220
Because you're saying that
545
00:25:41.220 --> 00:25:43.920
if we look at all of these choices that are made,
546
00:25:43.920 --> 00:25:46.858
so if it's a broad nosed, black-skinned,
547
00:25:46.858 --> 00:25:49.860
there were narrow nosed, black-skinned people.
548
00:25:49.860 --> 00:25:51.210
You're saying, who's gonna say,
549
00:25:51.210 --> 00:25:54.750
when we say now the username, who's gonna determine
550
00:25:54.750 --> 00:25:57.750
whether that's a Black username or not?
551
00:25:57.750 --> 00:26:00.570
And in this case, it wasn't a Black username.
552
00:26:00.570 --> 00:26:04.560
So back to Attorney Fitzgerald's point,
553
00:26:04.560 --> 00:26:07.290
the Court's now are going to sit back
554
00:26:07.290 --> 00:26:09.510
in the totality of the circumstances,
555
00:26:09.510 --> 00:26:11.520
we're gonna have judges making a determination
556
00:26:11.520 --> 00:26:14.610
as to whether or not this looks like a Black person's emoji
557
00:26:14.610 --> 00:26:16.203
or a Black person's username?
558
00:26:17.548 --> 00:26:18.832
Is that what we're gonna be doing?
559
00:26:18.832 --> 00:26:21.420
So I think that, Your Honor, your point is very well taken
560
00:26:21.420 --> 00:26:23.250
and I think our position is that
561
00:26:23.250 --> 00:26:25.593
the issue in an Equal Protection claim,
562
00:26:26.730 --> 00:26:27.900
unlike a search and seizure,
563
00:26:27.900 --> 00:26:29.970
is the discretionary choices the officers made
564
00:26:29.970 --> 00:26:31.927
about who they're gonna target.
565
00:26:31.927 --> 00:26:34.710
And we anticipate that this is gonna be visual evidence
566
00:26:34.710 --> 00:26:36.780
of who the officers are intending to target.
567
00:26:36.780 --> 00:26:40.080
If, at the merit stage, the Commonwealth and the officers
568
00:26:40.080 --> 00:26:41.730
present a race-neutral reason,
569
00:26:41.730 --> 00:26:45.150
then that's exactly what's appropriate
570
00:26:45.150 --> 00:26:47.550
to do at the merit stage of a hearing.
571
00:26:47.550 --> 00:26:50.160
Is it evidence of who they intend to target
572
00:26:50.160 --> 00:26:54.390
or is it evidence of who they intend to appear like?
573
00:26:54.390 --> 00:26:55.680
I think that's a question
574
00:26:55.680 --> 00:26:58.020
that has to get resolved at the merit stage.
575
00:26:58.020 --> 00:27:02.610
So look at it this way, so if you have a CI, right,
576
00:27:02.610 --> 00:27:05.760
and the evidence that you get, and you do the groundwork,
577
00:27:05.760 --> 00:27:08.190
and you say, listen, they're trying to intercept
578
00:27:08.190 --> 00:27:09.300
this ring of drug dealers
579
00:27:09.300 --> 00:27:11.850
who happen to be of a certain ethnicity
580
00:27:11.850 --> 00:27:15.667
and they bring in CIs and our investigation
581
00:27:17.370 --> 00:27:19.470
reveals that these CIs go
582
00:27:19.470 --> 00:27:23.520
and they just look at people of color
583
00:27:23.520 --> 00:27:26.320
and you bring an Equal Protection claim because of that.
584
00:27:27.450 --> 00:27:29.350
Does it matter what the CIs look like?
585
00:27:31.380 --> 00:27:33.810
I think what the CIs look like-
586
00:27:33.810 --> 00:27:35.310
The CIs are trying to blend into the community
587
00:27:35.310 --> 00:27:38.790
to buy drugs from the target drug dealers, right?
588
00:27:38.790 --> 00:27:41.400
Do the Cis have to have crew cuts?
589
00:27:41.400 --> 00:27:44.490
In that context, the CI may reflect,
590
00:27:44.490 --> 00:27:47.040
as Your Honor is saying, the investigatory,
591
00:27:47.040 --> 00:27:48.960
discretionary choices that the officers are making,
592
00:27:48.960 --> 00:27:51.560
and whether or not that implicates Equal Protection,
593
00:27:52.500 --> 00:27:54.330
I think can only be litigated
594
00:27:54.330 --> 00:27:56.400
when a defendant has access to discovery
595
00:27:56.400 --> 00:27:59.244
and is able to proceed to the merit stage.
596
00:27:59.244 --> 00:28:00.210
All right, so that's an Equal Protection claim
597
00:28:00.210 --> 00:28:04.050
that they're using CIs that blend into the neighborhood.
598
00:28:04.050 --> 00:28:06.810
The choice to use that CI may or may not be
599
00:28:06.810 --> 00:28:09.090
the Equal Protection claim itself,
600
00:28:09.090 --> 00:28:10.940
but it may be evidence of the intent,
601
00:28:12.637 --> 00:28:13.923
and the evidence of the intent is relevant-
602
00:28:15.533 --> 00:28:18.270
The intent is to get the people to sell them drugs.
603
00:28:18.270 --> 00:28:21.210
The intent on the Snapchat is to get access
604
00:28:21.210 --> 00:28:24.030
to get the pictures of them flashing guns.
605
00:28:24.030 --> 00:28:25.503
Right? That's the intent.
606
00:28:26.778 --> 00:28:30.037
To have trust, essentially.
607
00:28:30.037 --> 00:28:30.930
I think this is exactly the challenge
608
00:28:30.930 --> 00:28:32.100
that Mr. Dilworth has,
609
00:28:32.100 --> 00:28:34.800
which of not getting all of the discovery that he's seeking
610
00:28:34.800 --> 00:28:37.070
in order to raise the claim at the merits.
611
00:28:37.070 --> 00:28:38.310
I think all of these questions are important,
612
00:28:38.310 --> 00:28:39.810
viable questions that we have to address
613
00:28:39.810 --> 00:28:41.610
at the merit stage of the proceeding,
614
00:28:41.610 --> 00:28:45.570
but in order to have an opportunity to do that,
615
00:28:45.570 --> 00:28:48.180
in order to have an opportunity to present the evidence.
616
00:28:48.180 --> 00:28:50.310
I thought short of the Bitmoji and usernames,
617
00:28:50.310 --> 00:28:51.870
the Commonwealth did provide you
618
00:28:51.870 --> 00:28:54.633
with all the other discovery, is that true?
619
00:28:55.587 --> 00:28:58.603
Yes, most of the other discovery, but it-
620
00:28:58.603 --> 00:29:01.261
But really, it's this extra piece of the Bitmoji
621
00:29:01.261 --> 00:29:04.533
and the usernames that this case is ostensibly about.
622
00:29:05.490 --> 00:29:07.710
I believe so, yes.
Okay.
623
00:29:07.710 --> 00:29:10.083
Can you address the dismissal with prejudice?
624
00:29:11.280 --> 00:29:13.710
That's the last resort, right?
625
00:29:13.710 --> 00:29:16.290
So can you tell us why that's correct?
626
00:29:16.290 --> 00:29:17.670
Yeah.
627
00:29:17.670 --> 00:29:22.670
So I believe that in Judge Alman's dismissal order,
628
00:29:23.640 --> 00:29:26.430
he did note that there was a note
629
00:29:26.430 --> 00:29:27.750
in one of the last sentences
630
00:29:27.750 --> 00:29:29.700
that if the Commonwealth's position,
631
00:29:29.700 --> 00:29:31.590
or this court changed their position,
632
00:29:31.590 --> 00:29:33.543
that the issue could be revisited.
633
00:29:36.030 --> 00:29:39.570
However, where Mr. Dilworth was denied access
634
00:29:39.570 --> 00:29:41.538
to court-ordered discovery
635
00:29:41.538 --> 00:29:43.470
and where the Commonwealth chose to willfully
636
00:29:43.470 --> 00:29:46.050
and intentionally refuse to comply with a court order,
637
00:29:46.050 --> 00:29:49.530
our position is that that fits squarely within the framework
638
00:29:49.530 --> 00:29:52.180
of Washington W where dismissal would be appropriate.
639
00:29:53.580 --> 00:29:56.670
Obviously, of course, suppression is a remedy
640
00:29:56.670 --> 00:30:00.750
for police misconduct, and part of the reason for that
641
00:30:00.750 --> 00:30:05.310
is because the suppression is designed
642
00:30:05.310 --> 00:30:08.670
to advise the police about what sorts of behavior
643
00:30:08.670 --> 00:30:10.744
they can't be doing anymore.
644
00:30:10.744 --> 00:30:11.577
And I think, in this context,
645
00:30:11.577 --> 00:30:13.590
where it was the Commonwealth decision
646
00:30:13.590 --> 00:30:15.213
to refuse to provide discovery,
647
00:30:16.560 --> 00:30:18.780
even though this would be litigated at a motion to suppress,
648
00:30:18.780 --> 00:30:20.730
at this point of the proceedings,
649
00:30:20.730 --> 00:30:23.250
dismissal has the deterrent effect on the Commonwealth
650
00:30:23.250 --> 00:30:25.200
from refusing to comply with court orders.
651
00:30:25.200 --> 00:30:27.450
I just wanna give you a chance to explain again
652
00:30:27.450 --> 00:30:30.247
'cause I'm having trouble understanding
653
00:30:30.247 --> 00:30:33.060
why it's so important to have this particular information.
654
00:30:33.060 --> 00:30:35.370
As Justice Gaziano said,
655
00:30:35.370 --> 00:30:38.550
we already know they're trying to infiltrate, right?
656
00:30:38.550 --> 00:30:42.630
So let's assume that they're trying to look like
657
00:30:42.630 --> 00:30:44.730
the people they're trying to connect with.
658
00:30:46.350 --> 00:30:48.720
You already know that. You already know that.
659
00:30:48.720 --> 00:30:52.020
So how does this information help?
660
00:30:52.020 --> 00:30:56.640
Well, so this information is relevant to the...
661
00:30:56.640 --> 00:30:58.620
I think it's gonna be relevant at a merit stage
662
00:30:58.620 --> 00:31:00.840
to the testimony of the police officers
663
00:31:00.840 --> 00:31:03.180
and to the ability to cross examine the police officers
664
00:31:03.180 --> 00:31:04.893
about the choices that they made
665
00:31:04.893 --> 00:31:09.570
at the outset of this investigatory stage,
666
00:31:09.570 --> 00:31:11.130
and that's gonna go-
Let's assume that
667
00:31:12.420 --> 00:31:15.240
instead of having the case dismissed,
668
00:31:15.240 --> 00:31:19.140
the answer is we're gonna assume that they did
669
00:31:19.140 --> 00:31:21.870
what you are saying he they did.
670
00:31:21.870 --> 00:31:22.703
Okay.
671
00:31:23.730 --> 00:31:26.670
So I think, even with that inference,
672
00:31:26.670 --> 00:31:28.620
that precludes Mr. Dilworth from being able
673
00:31:28.620 --> 00:31:32.610
to cross examine the officers about the specific choices
674
00:31:32.610 --> 00:31:35.010
that they made in how they set up this investigatory scheme.
675
00:31:35.010 --> 00:31:37.710
A generalized inference doesn't take into account
676
00:31:37.710 --> 00:31:41.250
the actual choices that they made in creating those Bitmojis
677
00:31:41.250 --> 00:31:44.310
which is analogous-
But you have the Bitmojis,
678
00:31:44.310 --> 00:31:46.410
in your case, and you can easily get them
679
00:31:46.410 --> 00:31:48.990
in the other 20 cases
680
00:31:48.990 --> 00:31:52.212
the defense counsel's already produced for you.
681
00:31:52.212 --> 00:31:54.360
So you've got, right?
682
00:31:54.360 --> 00:31:55.747
You can ask those defense counsel,
683
00:31:55.747 --> 00:31:58.650
"Was the emoji a person of color
684
00:31:58.650 --> 00:32:01.230
or was it a person of Cambodian descent,"
685
00:32:01.230 --> 00:32:04.230
whatever, or a White person, you can ask them that, right?
686
00:32:04.230 --> 00:32:06.690
So you've got a lot on this issue already.
687
00:32:06.690 --> 00:32:08.940
So in terms of the Bitmojis that were used
688
00:32:08.940 --> 00:32:11.640
by the Youth Violence Strike Force to monitor people,
689
00:32:11.640 --> 00:32:12.930
we don't have any of those.
690
00:32:12.930 --> 00:32:14.970
I'm not aware of the account that was used
691
00:32:14.970 --> 00:32:17.310
to follow Mr. Dilworth, and I'm not aware of the account
692
00:32:17.310 --> 00:32:18.900
and I don't think any of the other defense lawyers
693
00:32:18.900 --> 00:32:20.421
are aware-
Mr. Dilworth
694
00:32:20.421 --> 00:32:23.040
is not aware of the emoji that was used?
695
00:32:23.040 --> 00:32:25.590
These are false accounts
696
00:32:25.590 --> 00:32:27.660
that are operated under subterfuge-
697
00:32:27.660 --> 00:32:28.920
He has so many followers
698
00:32:28.920 --> 00:32:31.020
that you can't figure out what it is.
699
00:32:31.020 --> 00:32:33.390
As far as we know, we don't have any idea
700
00:32:33.390 --> 00:32:35.940
what the account is that was used to follow Mr. Dilworth,
701
00:32:35.940 --> 00:32:38.220
and as far as I'm aware, no other defense lawyer
702
00:32:38.220 --> 00:32:39.870
or defendant is aware of that either.
703
00:32:39.870 --> 00:32:43.350
So we don't actually have that initial descriptor.
704
00:32:43.350 --> 00:32:45.250
So the prejudice to your client
705
00:32:46.860 --> 00:32:49.950
that merits dismissal of the indictments is?
706
00:32:49.950 --> 00:32:52.320
So our position is that the discretionary choices
707
00:32:52.320 --> 00:32:53.310
that the officers make
708
00:32:53.310 --> 00:32:55.500
in setting up this investigatory scheme,
709
00:32:55.500 --> 00:32:57.180
like the selections about race
710
00:32:57.180 --> 00:32:58.920
and the selections about hair color and hairstyle,
711
00:32:58.920 --> 00:33:01.710
those go to the core claim that Mr. Dilworth has,
712
00:33:01.710 --> 00:33:03.390
that he was targeted because of his race.
713
00:33:03.390 --> 00:33:05.910
He can make an inferential showing the statistics-
714
00:33:05.910 --> 00:33:08.193
Okay, hold on a minute, Counsel.
715
00:33:10.230 --> 00:33:13.260
He was targeted because he can't stop
716
00:33:13.260 --> 00:33:17.873
flashing and posting videos of guns, okay?
717
00:33:18.801 --> 00:33:23.801
The affidavit that was submitted in response,
718
00:33:25.380 --> 00:33:27.150
the Youth Violence Strike Force,
719
00:33:27.150 --> 00:33:28.950
commonly known as the Gang Unit,
720
00:33:28.950 --> 00:33:30.840
they're targeting gang people, okay?
721
00:33:30.840 --> 00:33:34.410
So the idea that this is
722
00:33:34.410 --> 00:33:39.410
just kind of randomized infiltration of Black communities,
723
00:33:39.420 --> 00:33:41.280
there's a specific targeted community
724
00:33:41.280 --> 00:33:42.600
that they're looking to,
725
00:33:42.600 --> 00:33:45.360
and those are folks that are gang related
726
00:33:45.360 --> 00:33:50.360
that possess unlawful, illegal weapons repeatedly, right?
727
00:33:52.471 --> 00:33:54.570
Because we have this case where Mr. Dilworth
728
00:33:54.570 --> 00:33:57.600
was arrested after whatever was witnessed online,
729
00:33:57.600 --> 00:34:01.050
and no sooner does he hit the street, he does it again.
730
00:34:01.050 --> 00:34:03.840
So it's not this generalized
731
00:34:03.840 --> 00:34:06.900
kind of targeting that I see here.
732
00:34:06.900 --> 00:34:08.640
It's a specific targeting.
733
00:34:08.640 --> 00:34:10.560
I absolutely understand Your Honor's question
734
00:34:10.560 --> 00:34:14.040
and I think what part of my response is that
735
00:34:14.040 --> 00:34:16.860
we don't know why the police decided to target Mr. Dilworth.
736
00:34:16.860 --> 00:34:19.800
He was targeted months before the observations was made.
737
00:34:19.800 --> 00:34:21.750
The reason that he specifically was targeted
738
00:34:21.750 --> 00:34:24.090
has never been disclosed in this discovery litigation.
739
00:34:24.090 --> 00:34:26.490
But certainly he was targeted long before
740
00:34:26.490 --> 00:34:27.870
the police made the observations
741
00:34:27.870 --> 00:34:29.280
that they made in this case.
742
00:34:29.280 --> 00:34:31.980
We also know that of the 2,700 people
743
00:34:31.980 --> 00:34:34.560
that are being monitored in this investigatory scheme,
744
00:34:34.560 --> 00:34:37.440
at that time, back in 2017, 2018,
745
00:34:37.440 --> 00:34:40.500
officer didn't know the names of about 65% of them.
746
00:34:40.500 --> 00:34:42.600
And I think that really raises a question
747
00:34:42.600 --> 00:34:45.900
about whether this is specific, targeted investigation
748
00:34:45.900 --> 00:34:47.430
connected to criminal activity,
749
00:34:47.430 --> 00:34:49.500
or if this was more of a social dragnet
750
00:34:49.500 --> 00:34:51.600
that actually implicates the Equal Protection clause.
751
00:34:51.600 --> 00:34:54.660
And that's the discovery that we're seeking is,
752
00:34:54.660 --> 00:34:57.600
we're seeking discovery in order to litigate that question,
753
00:34:57.600 --> 00:34:59.700
in order to put that question before a judge,
754
00:34:59.700 --> 00:35:01.500
to put the officers through the crucible
755
00:35:01.500 --> 00:35:04.140
of cross-examination, to understand the credibility
756
00:35:04.140 --> 00:35:06.240
of the race-neutral reasons that they would present,
757
00:35:06.240 --> 00:35:09.090
and to actually have an opportunity to present a claim.
758
00:35:09.090 --> 00:35:13.800
This court has established robust and clear
759
00:35:13.800 --> 00:35:17.130
Equal Protection jurisprudence in the Commonwealth,
760
00:35:17.130 --> 00:35:19.170
and one of the cornerstones of that jurisprudence
761
00:35:19.170 --> 00:35:20.340
is the ability of defendants
762
00:35:20.340 --> 00:35:24.570
to investigate the investigatory scheme that targets them.
763
00:35:24.570 --> 00:35:26.580
Without that discovery, Mr. Dilworth-
764
00:35:26.580 --> 00:35:27.930
The inference you seek to draw
765
00:35:27.930 --> 00:35:29.580
is that the police are racist
766
00:35:29.580 --> 00:35:34.580
because they pick Black Bitmojis.
767
00:35:35.640 --> 00:35:38.250
Your Honor, that's not what we're saying.
768
00:35:38.250 --> 00:35:39.870
I think where this court has, in Long,
769
00:35:39.870 --> 00:35:41.430
described that evidence may be based
770
00:35:41.430 --> 00:35:43.743
both on implicit and explicit bias,
771
00:35:44.610 --> 00:35:46.860
and the officers are making discretionary choices,
772
00:35:46.860 --> 00:35:50.370
and all of the discovery that we've gotten so far
773
00:35:50.370 --> 00:35:53.940
documents a very significant disparate impact.
774
00:35:53.940 --> 00:35:56.340
I think it's appropriate for Mr. Dilworth to seek evidence
775
00:35:56.340 --> 00:35:58.080
that he believes will be direct evidence
776
00:35:58.080 --> 00:35:59.460
that he can present at a hearing.
777
00:35:59.460 --> 00:36:02.820
But either way, just like if there's evidence
778
00:36:02.820 --> 00:36:04.350
that the police are,
779
00:36:04.350 --> 00:36:07.650
based upon their mobile data terminal information,
780
00:36:07.650 --> 00:36:11.460
are just typing in, you know, a 24 hour period,
781
00:36:11.460 --> 00:36:12.960
one copy is on the side of the road,
782
00:36:12.960 --> 00:36:15.270
the first analogy is just typing in
783
00:36:15.270 --> 00:36:18.030
names of Black people, motorists, right?
784
00:36:18.030 --> 00:36:21.180
You have the data, which is irrefutable,
785
00:36:21.180 --> 00:36:23.338
and you can now use that
786
00:36:23.338 --> 00:36:27.540
to put the burden on the Commonwealth, right?
787
00:36:27.540 --> 00:36:29.430
Here, if you have information
788
00:36:29.430 --> 00:36:31.530
about targeting of social media,
789
00:36:31.530 --> 00:36:33.390
the burden is then gonna shift to the Commonwealth.
790
00:36:33.390 --> 00:36:34.223
Correct?
791
00:36:35.124 --> 00:36:37.770
That's correct, but I do think it's important
792
00:36:37.770 --> 00:36:39.390
for a defendant like Mr. Dilworth
793
00:36:39.390 --> 00:36:42.000
to be able to raise both a statistical claim
794
00:36:42.000 --> 00:36:44.010
and a claim in the totality of the circumstances,
795
00:36:44.010 --> 00:36:46.440
and to raise evidence that would provide an inference
796
00:36:46.440 --> 00:36:47.580
and to raise evidence
797
00:36:47.580 --> 00:36:49.290
that potentially would be direct evidence,
798
00:36:49.290 --> 00:36:50.460
and that's what he's seeking.
799
00:36:50.460 --> 00:36:51.840
But you're gonna get direct evidence
800
00:36:51.840 --> 00:36:55.140
if they have to say, you know, we set up these accounts
801
00:36:55.140 --> 00:36:57.550
and all the people that we set up accounts on
802
00:36:58.680 --> 00:37:00.903
happen to be people of color.
803
00:37:00.903 --> 00:37:01.920
And the big question is to why,
804
00:37:01.920 --> 00:37:04.170
which is the issue in Equal Protection.
805
00:37:04.170 --> 00:37:07.680
Right, and I think the choices that the officers made
806
00:37:07.680 --> 00:37:09.753
is one part of the answer about why.