-: SJC-13548.
Commonwealth versus Thomas Mercado.
(papers rustling) -: Diet Coke.
Hey, can you get Diet Coke?
-: I need an IV down here, I'm dying.
(Justice chuckles)
Justice: Okay, help me with your last name.
-: Amy Codagnone.
Justice: Attorney Codagnone, please.
-: I think it's afternoon at this point.
Good afternoon, your Honor.
It's Amy Codagnone, on behalf of Thomas Mercado.
Through the progress of science,
we now know that the identification evidence
that was critical to Mr. Mercado's conviction is,
and I quote, "highly unreliable
and that the identification of Mr. Mercado
as the shooter is at great risk of being
in error," end quote.
This new evidence calls into question the justice
of Mr. Mercado's conviction,
provides him a ground of defense
that was unavailable and unpursued at the time of his trial,
and is counterintuitive to jurors.
The science tells us that they would place,
and they did place, undue weight on this unreliable
and potentially false identification-evidence.
In terms of whether or not Mr. Mercado's conviction
should be reversed, there's two prongs that this court needs
to consider on newly discovered evidence,
and last week the court decided the Gaines case,
which I would suggest answers some of those questions.
The eyewitness identification science itself
is properly considered newly discovered evidence,
and the motion judge's finding here
is adequately supported in the record.
The court found that there was a 15-year acceleration
that had occurred after Mr. Mercado's trial
and development of the science.
The court found also that this court's decision in Gomes
sort of changed the law in terms of whether or not
the science was available to defendants
in determining that in 2009,
the science was not available to Mr. Mercado.
At the time that he was tried,
defense lawyers were not seeking funds,
getting funds, consulting these experts,
and now the recognition has changed
because we now know that jurors
do not understand the science,
and are unable to apply it without some guidance.
So, the question I think for this court is whether
the court correctly reviewed the trial record here.
He was not the trial judge, he was a motion judge.
And I would ask that after a de novo review
and looking at the trial record here,
that this court find that where
the eyewitness identification science
is the only evidence that places Mr. Mercado
at the scene of the crime,
at the time of the crime,
and where we now know that that evidence is unreliable,
that would have probably been a real factor
in the jury's deliberations.
-: Well, his, I'd like to talk about that
because it's a little bit weird.
His own testimony places him at the scene of the crime,
I'm not gonna say at the time,
but, like, around the time on the same evening.
And it's not a case of stranger identification,
except potentially for the victim's brother.
And the underlying premise of the expert opinion here
is at odds with the defense theory presented at trial.
And I don't think that helps the defendant
in establishing prejudice.
The defense at trial was not mistaken identity,
was deliberate misidentification.
In other words, these witnesses fabricated-
Atty. Codagnone: Yes, your honor.
-: "Not that they did not recognize me,
but they fabricated that I was the perpetrator."
Atty. Codagnone: Sure.
-: So, I don't really see
how the eyewitness identification testimony
bears on that defense.
It may bear on a strategy
before the defendant decided to take the stand,
but once he took the stand, and this is the defense,
I'm having a hard time seeing how this all works out.
-: So, there's two things
that I'd like to address there,
and that's the familiarity piece,
which Dr. Franklin says that the familiarity
that was gained from that prior visit
to the apartment building earlier is not,
is actually evidence that predicts the later identification
of Mr. Mercado as the shooter.
But just addressing that second part
so that I don't forget to,
with regard to the defense,
I think the point here is that this opens up
an available defense that wasn't available
to defense counsel at the time of trial.
And the defense that was pursued
was one of fabrication, right?
That Martinez and Cripps were lying
to protect the true killer
who was a drug dealer named Polon.
And I can see why that lacked credibility before the jury,
because, first of all, Martinez had only known Polon
for the one week that she was using crack in that apartment.
And so her incentive to cover up for some man
that she knew for one week really
doesn't make a ton of sense.
The defense also doesn't address why
the victim's brother would get up from the witness stand
and say, "That man killed my brother."
It literally does not account for that whatsoever.
There's no reason why he would be lying
to protect a drug dealer he also doesn't know.
And so this gives him a new grounded defense
that wasn't really understood by trial counsel
-: I'm confused on that,
'cause forget the Jenga tower legal standard.
Atty. Codagnone: Yes. -: As glib as it is.
The legal standard is whether or not
the newly available evidence would be a real factor-
Atty. Codagnone: Right.
-: In the deliberations as it was done at trial, correct?
Not whether or not there would've been a change of test
of strategy had this thing been available.
-: I somewhat disagree with the court on that
because I think that in some of this court's cases
that the court talks about
how it opens up available defenses.
So, for instance, in Eps,
the defendant didn't have an expert
who talked about shaken-baby syndrome.
Justice Gaziano: Sure.
-: And it opened up a new sort of avenue for acquittal.
And here, really honest,
but mistaken identification is a much better defense
because one of the things about identification
that Dr. Franklin explains is that when
an eyewitness even holds a false memory,
but when the memory is encoded in their face (chuckles)
in their memory, such that they will sort of recite it
to a jury, they will genuinely believe it when they say it.
-: When we look at all the cases that we've said
it has been a real fact, all the misidentification cases,
they're all along the lines of Gaines.
But have we ever applied it when we've had two,
we've had non strangers essentially,
or in this situation?
You know, and I understand your theory about it's mistaken
because the suggestion that someone
that was there was there later on, but-
Atty. Codagnone: Right.
-: I get that.
But could you tell us, in all the cases we've had,
they seem to me to be similar to Gaines,
these quick hitters, (fingers snapping)
You know, misidentifications,
as opposed to strangers and non strangers.
-: Well, so I think that the difference between Gaines
and other cases is that in Gaines
there's an actual alternative avenue to conviction.
So, if the jury in Gaines believes his confession,
which is a corroborated confession, coupled with, you know,
the consciousness of guilt, he's arrested in Ohio
or something like that, you know,
they could convict him in another way.
So- Justice Gaziano: Iowa.
-: Iowa, there you go. (all laughing)
Justice: Don't worry, for those of us from Ohio,
we get confused with Iowa all the time.
-: So, and in other cases, right?
There's other paths to conviction.
So, you know, in that sense, this is the only evidence
that is sufficient to sustain a conviction here
that places him at the scene at the time of the crime.
But in other cases there, you know, there is other evidence
that's suggestive of guilt
on which the defendant can convict, because recall,
this is not- -: Well, here he admits
that he was present at the scene.
-: Right.
-: He admits that he was present at the scene
with these people in the women's apartment.
He admits that he knew one of the women from before
and they had a relation, they were friendly.
And we do have consciousness
of guilt evidence. Atty. Codagnone: Yes.
So it's not only,
the eyewitness identification
of him is not the only evidence.
-: And I understand that.
But looking at, so, for instance, Marrero,
this court reversed Marrero's conviction
based on DNA evidence earlier this year.
There were people that placed Marrero
near or at the scene of the crime,
he made a statement to somebody
as he's fleeing from the crime scene,
inculpating himself in the crime,
and he, contemporaneous, flees the country.
So, in that case,
it was a real factor in the jury's deliberations.
And there's more evidence.
In Cowls, there was also consciousness of guilt.
He throws away his bloody shoes.
He makes statements to the police
that are deemed inculpatory.
You know, in each of these cases
there is additional evidence.
And so the question I think for the this court
is whether it would be a real factor
in the jury's deliberations if the jury understands
that the identification of evidence is unreliable.
And to the court's point that there are multiple witnesses,
because I think that that was a real piece
for the motion judge.
The exoneration cases, this is a pattern that we see, right?
In 1/3 of exoneration cases, there are multiple witnesses,
and if you include non-DNA exoneration cases,
I think that the statistics are about 40% of those cases.
There are multiple people.
And the science tells us exactly why that is
and why that happens.
It's because people are primed to sort of accept
and incorporate in their memory details
and information that's suggested to them.
So, shortly after this crime,
Martinez did not identify Mr. Mercado as the shooter.
Cripps said he was "a man in the hallway",
which the familiarity primes her to do.
She's, as a crack addict, and an acute crack user,
she is primed to not only have divided attention
and the inability to perceive
the person's face and recall it,
but she's also, there are studies
that suggest that hooded strangers
are wrongly identified as familiar others,
based upon the expectation that
that would be the familiar other.
So, the science sort of accounts for that piece.
But beyond that, you know,
I've lost my train of thought, I apologize.
The interlocking identifications,
the, I apologize.
The identification of others can lead the police into
a, you know, giving details to people
which they will incorporate into their memory.
So, when Gomes rejects Mr. Mercado as the shooter,
he continues to get information to suggest
that Mercado is the perpetrator.
And later on, three years later,
when he has no actual memory of the perpetrator's face,
according to Dr. Franklin,
he identifies him from the witness stand,
which is something that we know and understand
based upon the studies and the science is something
that would be incredibly powerfully persuasive to jurors.
And that's the other piece of this is that it would've been,
this new information would be a real factor
in the jury's deliberations
because they do not understand how to use
and how to account for this information.
So, much of this is counterintuitive,
and we know that jurors placed incredibly great weight
on identification information.
So, you know, in the face of exonerating DNA
or other information, jurors will still credit
eyewitness identification experts.
And when somebody like Michael Gomes,
who is steered through conscious
or subconscious information
that he has incorporated into his memory,
when he gets up on the witness stand
and he says, "That man killed my brother,"
the jurors will believe it,
despite that he will have at that time no ability
to recall the perpetrator's face
when he makes the identification.
-: But the real factor analysis
is within the context of the discretion of the trial judge.
And, so, the trial judge looked at all of this,
the trial judge in the decision talked about the things
that took away from the expert testimony that he credited.
And he factored- Atty. Codagnone: But, he
was not the trial judge, your Honor.
-: I'm saying that the motion judge,
the motion judge took all of this into account.
And, so, when the motion judge militates
in favor of this would not have been a real factor,
that's subject to the abuse of discretion standard.
So tell me why that's an abuse of discretion,
other than advocate gloss.
-: So, I disagree that it's an abuse
of discretion standard here
because we are dealing with a trial record
that this court has equal ability to assess
the impact on the trial record.
So, this court will defer to the findings of fact
where he credits Dr. Franklin's testimony.
But I would suggest that a review
of those findings of fact,
as it compares to the trial record,
this court is in equal position to assess.
And, so, I would suggest that this court need not defer
to his judgment of the trial record.
And I'm also suggesting that the court got it wrong
when comparing this case to the other cases
where this court has found that this was a real factor
in the jury's deliberations
because of the Jenga Tower analysis.
I think that the court is requiring that Mr. Mercado proved
that a jury on retrial would find him
actually innocent or not guilty.
And that's truly not the standard.
In Marrero, this court said-
-: Where in the court's decision
is that what the court said that they're doing?
-: Well, the court said that this information
"does not implode the Commonwealth's case
like a Jenga tower".
-: Yeah, I mean it's a bit hyperbole, perhaps,
you're saying it wasn't blockbuster information, but-
Atty. Codagnone: Sure, but the-
-: Can I ask you just a mechanical question?
You had the transcripts from the first trial, correct?
Atty. Codagnone: Yes. -: From the trial?
That's not part of this record or is it?
-: If it's not, that is my error.
-: Could you make them part of the record, please?
-: I absolutely can. Justice Gaziano: Thank you.
-: Yes, my apologies.
Justice Gaziano: Thank you.
-: It seems to me that the jury's verdict
reflects a necessary rejection
of the defendant's testimony that he left
before the shooting,
and accepts the timeline testified to
by the two women occupants of the apartment.
Can you tell me why that idea is wrong?
-: It's wrong because they didn't have
the benefit of this new evidence.
I would suggest that undercuts severely-
-: [Justice Wolohojian] How would that affect the timeline?
-: Well, so if you look at the timeline,
Janette Martinez's timeline,
it says that the defendant left at about 9:20,
which is consistent with his testimony,
that is also consistent with his innocence.
The homicide doesn't happen until after midnight.
So, her testimony in terms of the timeline
is, in fact, consistent.
But the jury, like I've indicated, didn't have any ability
to understand why these women were unreliable,
why Michael Gomes was unreliable.
And so in evaluating their testimony,
all that counsel is left with is this defense of
that these people are sort of, you know,
collaborating to protect some drug dealer and pin it on him,
when, in reality, there's explanations for why
they would genuinely believe that they
had identified Mr. Mercado correctly as the shooter,
but they did not have an adequate opportunity
to see him, view him, recall him,
both Cripps' and Martinez's memories and mind,
and recall the testimony sort of said to them, to the jury,
when I'm using crack cocaine, my memory is great,
my perception is great, I have no problems.
But the truth and the reality of that situation
is that they have severe deficits in their frontal lobe
and their ability to process and recall information.
They have deficits in memory
that are sort of lifetime issues.
And, really, these witnesses, according to Dr. Franklin,
are highly unreliable.
And this is an opinion that she called "overdetermined".
So there's multiple ways that she gets to this determination
that these people are highly unreliable,
unlikely to have made an adequate memory
of this person's face.
And that's because the, you know,
initial opportunity to view.
But, also, if you look at, for instance,
Jeanette Martinez's testimony, she waffles back and forth
and all over the place on every statement that she gives.
For instance, the statement of intent to kill,
she says "To kill, to rob, to kill.
He said nothing."
Every time she tells a story it's different.
But there's an explanation in terms
of why she would've gotten there
and why she might, by the time she gets to the jury,
genuinely believe that to be true,
which is persuasive to them,
but they don't understand why these people
would be making the mistake.
And, so, the explanation in terms of how somebody can,
you know, mistake a hooded perpetrator for their friend,
you know, that would've been a real factor
for them in terms of deciding whether
or not this eyewitness identification evidence
was sufficient to rest the conviction on.
I understand that I'm over time, I would just ask that
that where we now have new scientific evidence to suggest
that the conviction is based upon unreliable evidence
that this court not look the other way
and affirm the conviction.
Thank you. -: Okay, thank you.
Attorney Hansen.
-: Good afternoon, your Honors.
Arne Hansen for the Commonwealth.
This was never a case
that was predicated on a misidentification.
The defendant identified at trial by three individuals,
the victim's brother, David Gomes,
and two people that he was familiar with,
Corinne Cripps, who had been a friend of his
for three or four years, as well as Janette Martinez,
who had spent the day with him.
Now, certainly it would be difficult for me to argue
that the identification by David Gomes wasn't perfect.
He identified someone else prior to the trial
as the perpetrator of this case,
and only identified the defendant
as the perpetrator three years after the fact in court.
Certainly, that identification would not
survive a Creighton motion today,
but Creighton didn't exist at the time
of the defendant's trial.
There's no point in arguing that that is a weak
and suggestive identification.
What we are left with is an identification
by two individuals who were familiar with
the defendant in this case.
As I stated, Cripps was his friend
and they'd been hanging out in that apartment
the entire night.
And Janette Martinez was certainly familiar with him,
she had spent the last few hours with him.
And what we have here is more than just
an identification out of the blue.
Both witnesses provided context as to what transpired
prior to the homicide.
Janette Martinez testified
that she saw the defendant, Joey Destefano
and another individual who was only known as Polon,
who was never truly identified or arrested,
in her kitchen talking about their plan to rob
and murder the victim in this case.
She provided the jury context with respect to motive,
opportunity and planning.
Corinn Cripps did the exact same thing.
She testified that the defendant asked her to go
to the neighboring apartment,
the victim's apartment, and see what they had.
She went there and confirmed that they were selling cocaine,
they were packaging it for distribution,
at which point the defendant made his decision
to call Destefano down and to try to plan that robbery,
which turned into a homicide.
So, we have more than just
an identification out of the blue.
We have planning, motive, opportunity,
and on top of that we have consciousness of guilt.
Immediately after the defendant committed this homicide,
he fled to Puerto Rico
and wasn't identified until more than a year later
through fingerprint analysis when
he was arrested for a different crime.
When investigators from Massachusetts went down there
to interview him, he denied being Thomas Mercado,
gave an alias, denied any knowledge
or involvement in the crime.
But Commonwealth had his fingerprints,
they knew who he was, in fact, Thomas Mercado.
He was brought to Massachusetts to stand trial.
The defendant's theory of defense in this case
was not mistaken identity.
In part, it was mistaken identity by David Gomes,
who had a limited opportunity to view
and identify the defendant, which again, I'm not gonna touch
because it's not the strongest identification.
But he argued that because Polon,
the defendant's cousin,
was operating a drug business out of Martinez's apartment,
that provided motive for those two individuals,
Martinez and Cripps,
to lie about the identity of the perpetrator.
They wanted to protect Polon
because he was their source of narcotics.
And that was the theory of defense.
And that was what was supported by the evidence at trial.
To argue now that the two women who were familiar
with the defendant could not identify him
because from feet away makes absolutely no sense.
The defendant's, or Dr. Franklin's testimony,
is inadmissible for several reasons in this case,
which Judge Gordon recognized.
The first of which is that the studies
that Dr. Franklin relies on deal
with stranger identification.
And that certainly applies to the Gomes identification,
but it does not survive the Cripps and Martinez analysis.
They were both familiar with him.
And the court, the Superior Court, cited the Denson case,
which is a 2022 case out of this court,
which is very similar in that respect to the case at bar.
In that case, Denson was involved in a club altercation,
which resulted in a homicide.
He was identified on video by people that knew him
and he was principally identified
through the clothing that he was wearing.
Individuals were familiar with him,
knew what he was wearing, and said,
"Yes, that's the same person
that I saw earlier that evening."
And the expert that was gonna testify in that trial
was prevented from testifying
because the underlying research that they were gonna testify
to dealt with facial recognition.
So we have a very similar parallel in this case
where here we have analysis based
on stranger identifications
that says strangers aren't really good
at identifying strangers.
It does not touch on what we have before the court,
that people who are familiar with each other
can identify people who are familiar with each other.
To suggest otherwise makes absolutely no sense.
So for that reason alone,
this testimony would've been inadmissible at trial
where it doesn't really,
the research doesn't speak to the facts of the case.
Now, Dr. Franklin's opinion is also inadmissible
because it really touches on the ultimate issue
that the jury needs to decide upon.
The jury is the only, or the trier factor,
the only people that can touch on
the credibility and reliability.
-: We've allowed extra witnesses to testify
and encouraged extra witnesses to testify
multiple times in identification cases, correct?
-: Yes. Which brings me to another point.
-: They said that identification was unreliable.
That's not the ultimate issue.
The ultimate issue is whether or not the person did it?
But, this argument, I'm following you so far,
but this argument, I think you're going,
it's a little far field.
-: Alright, so I'll I'll move on.
The other issue is that Dr.-
-: One thing before you move on, not on that issue,
but the second witness,
is that really, I understand her name, Cripps,
I can't remember.
She's clearly someone who knows him from prior.
The other witness just knows him from that day, right?
Does that make her a stranger ID
or she's sort of a mixture, right?
She's not really what we would call a stranger ID
but she's also not like Cripps a friend, right?
-: Yes, that's fair.
So, my understanding from the record is
that they had met that afternoon
and they spent several hours together inside the apartment.
Her testimony at trial was somewhat all over the place,
but I think what can be gleaned from it is
that she saw the defendant and Polon in her kitchen,
discussing murdering the victim.
And then immediately after that,
she sees him leave her apartment.
She says that she then saw him waiting in the hallway
through the peep hole with his hands in his pockets.
And she said at one point that she didn't see the shooting,
that she did see the shooting,
she changed her story with regards to that.
All of that was before the jury.
So they were just in as good a position
to evaluate her credibility as we are today.
But what was consistent was they're talking at the table,
they decide to execute their plan,
he walks into the hallway,
he's seen with his hands in his pocket in the hallway,
moments later, gunshots erupt, and the victim is dead.
With respect to what the,
respect to the common sense principles here,
this court has already addressed a lot of the issues
that the defendant raises here.
And it goes back to the Francis case
where the court's already accepted
that we don't need special instruction,
or that the jury instructions are sufficient
to address specific issues
and expert testimony isn't necessary.
It's common sense that memory fades over time,
that stress impacts memory,
that people unconsciously resolve inconsistencies with facts
that are required after the fact,
that there could be coercive elements in a photo array.
These are all issues that this court has ruled,
don't require expert testimony to be explained.
And these are some of the issues
that defendant is bringing up today.
Now, I think the biggest point here is
that we don't really have new evidence here.
We have an analysis by an expert who was hired
to evaluate the situation.
It's important to note that Dr. Franklin never spoke
with anyone that was involved.
She never spoke to Cripps or Martinez.
She doesn't know what the crime scene looks like.
-: Well, in, in Gaines we said that this type
of evidence constitutes newly discovered evidence, right?
-: That's fair.
So, I'll rephrase.
What we are left with here is merely impeachment evidence.
It doesn't change the landscape of the evidence at trial.
And that is an important distinction between other cases
that have been overturned in recent years,
specifically Cowls, Dreighton and Cameron.
So in Cowls, that case
was precipitated on the identification by one witness.
That witness had substantial credibility issues.
But there was corroborating evidence,
there was a bloody towel that that witness said
the defendant used to wipe up after the fact.
They did DNA analysis,
and it turns out the victim's blood
or the defendant's blood wasn't on that towel.
Therefore, that was the one piece that
buttressed the testimony of that witness, that went away,
therefore, the conviction was overturned.
In Dreighton, we have something very similar.
We have one individual, Jackson,
who testified as to what happened in the homicide
and identified the defendant as the perpetrator.
It turns out after the fact that another witness was
with Jackson in the bathroom,
stated, "I was with him in the bathroom,
with him the entire time.
I did not see what happened.
He couldn't have seen what happened
because we were in the bathroom."
That removed that linchpin and resulted in new trial.
In Cameron, as a sexual assault case
where there was DNA evidence,
there was two sets of DNA found in the victim's underwear.
The first significant contribution,
the defendant, in that case, was eliminated as a source of,
but there was a second piece of DNA
that he couldn't be eliminated from.
It turns out more advanced DNA analysis,
years down the road,
determined that was female DNA.
So it couldn't be the defendant's DNA.
The conviction was predicated on the victim's testimony,
which was corroborated by the fact
that the defendant couldn't be removed
as a source from the DNA found in her underwear.
By removing that DNA,
it left it on the victim's identification
and the conviction was overturned.
We don't have that here.
We have three individuals who, at best, were impeached here.
It's important to note that Dr. Franklin relied extensively
on information provided by defense counsel here.
And that being affidavits from
an affidavit that was attributed to Janette Martinez,
written in 2016,
statements attributed to Corinn Cripps
recanting her version of events,
which were put in the affidavit of an investigator,
as well as an affidavit from Joey Destefano
who testified to the grand jury,
but then recanted years later, he never ended up testifying
before the court and was held in contempt,
did a year in jail as a result.
Now, it's important to note
that Janette Martinez's affidavit from 2016
during the evidentiary hearing,
she did not adopt that affidavit.
She explicitly rejected it
because she noticed that her date of birth was wrong
on the affidavit and she didn't read or write English,
so that she had no way of knowing
what was contained in that affidavit.
She did adopt a letter that she wrote shortly
after the fact that still that discussed
the defendant and Polon in the kitchen discussing the plan,
and then the defendant standing in the hallway
with his hands in his pockets immediately
before the shooting erupts.
Corinn Cripps did not recant any
of her trial testimony at the evidentiary hearing.
In fact, defense counsel didn't even ask
her any questions about it.
So her testimony is largely unchanged.
The statements attributed to her saying
that she believed the wrong person was convicted
for this crime was not borne out
by the evidentiary record at the evidentiary hearing.
And then Joseph Destefano, at the Grand Jury,
he testified that he was called down to that apartment
to help plan this proposed robbery
that turned into a homicide.
He said he didn't want any part of it.
He said that he saw the defendant
with a gun in his waistband,
that they were gonna go forward to plan, but he left.
Destefano then recanted all of his sworn testimony
at the evidentiary hearing.
But the most interesting thing about it is that he said
that police forced him to say that the defendant
had a revolver in his waistband prior to the homicide.
And that is an important distinction
because this crime was committed
with a semi-automatic firearm,
which left semi-automatic nine millimeter casings
all over the crime scene, which wouldn't have happened
with a revolver where the cartridges would've remained
in the firearm after discharged.
It's important to note that the lead detective,
detective Alameda, is a firearms instructor.
He is very familiar with guns,
testified at the evidentiary as to how firearms work,
knew what the difference between
a semi-automatic firearm wasn't a revolver.
It would've made absolutely no sense for him to tell
Destefano that he saw a revolver
in the defendant's waistband when he knew
that couldn't have been the murder weapon.
So, the evidentiary basis that Dr. Franklin
based her opinion on did not exist
after the evidentiary hearing.
And despite that, she said that "even without all
of these recantations,
and despite the change in circumstances",
she said she "would come to the same conclusion".
-: I guess, we're drawing late,
but the only question I have for you on that part is
given all the deficiencies which are pointed out
to the motion judge, the motion judge still found
that the expert was credible as a bottom line, right?
Atty. Hansen: Yes, that's fair.
-: We have to defer to the motion judge,
at least in that score.
-: Yes.
Does the court have any other questions?
Justice: I don't think so. -: Thank you.