-: Good morning, Your Honors.
May it please the court, Ashley Allen
on behalf of defendant and appellant, Mr. Pedro Vazquez.
In this case, the parties actually do agree-
-: Counsel, can you aim it a little bit.
-: Sorry, a little shorter. -: Thank you.
-: The parties actually do agree
about some of the issues in this case,
one being that there was an issue of racial or ethnic bias
that infected the jury deliberations.
There was multiple credible reports about it
and that the judge did not go far enough
in his inquiry to determine one way or the other
whether the two jurors were involved,
whether they remained impartial,
and whether the nine remaining
deliberating jurors remained impartial.
-: How do we deal with, as a practical matter,
that you got exactly what you asked for,
and now the judge gave an opportunity
to hear from the attorneys.
The Commonwealth is the one that was jumping up and down,
saying, "Let's excuse these folks,"
and the defense said no,
and that could've been a tactical decision.
How do we deal with that?
-: So a few answers to that.
One, I don't think it can be
a tactical decision in this case.
Both the court as well as the counsel
were operating without the benefit
of this court's decision of Ralph R. as well as Quiles.
And based on the record,
it seems like they were actually operating
not even on Tavares but a different case
that had nothing to do with racial bias.
So I would say if it was a tactical decision,
it was unreasonable, and it may have also been
ineffective assistance of counsel to not have objected.
But even if it wasn't, even though they didn't object,
that just gets us to this being not structural error,
that was waived, and that this is a substantial risk
of a miscarriage of justice standard.
And so one of the considerations on whether or not
it's a substantial risk of miscarriage of justice
is whether it was a tactical decision.
I don't think it was a tactical decision based on-
Justice Gaziano: But couldn't it have been that this,
the defense attorney wanted this juror?
-: I'm sorry.
-: It could've been that the defense attorney
wanted this juror to remain.
-: He may have wanted Juror 2 to remain.
-: Right. -: But I don't think
it was any benefit to any party to keep Juror 4,
who may or may not have been racist.
He had said things to Juror 2 that,
name-calling, labels that were given to Juror 2
in front of the other juror members
as well as outside the courtroom.
So while the court did inquire
about what occurred outside the courtroom,
he never went into what statements were made
in front of the other jurors.
And he also did pointedly ask Juror 4
whether or not that the disagreement
between the two jurors had anything to do
with the substance of the case.
He said yes, and even after that didn't go further
to determine what statements were made.
And without knowing what statements were made,
we can't know, was on its face the statement so-
-: We're speculating.
We don't know what the result would've been if Juror 2
and/or Juror 4 would've been removed, right?
Ashley: Would've been removed?
-: Yeah, we don't know if Juror 2
would've been removed as well.
-: Right, and that's the problem with waiting
until after the fact to raise this issue.
Justice Gaziano: Right, that's the problem.
-: Right. -: I guess the issue I've got
is when you say it wasn't a tactical decision,
I'm not so sure that the defense attorney
wasn't basically making a tactical decision
'cause he liked this composition of the jury as it stood.
-: And that's where, it would be my argument and position
that it was an unreasonable tactical decision.
I think looking back at this-
-: But this is one of these heads you win,
tails I lose situations.
He gets to not do anything and then-
-: And that's just one consideration
of the substantial risk analysis.
And so if we also look at the nature of the error
the significance of it,
I think that also gives you some context
to look at whether this was a tactical decision.
I think that the nature of the error and significance,
it can't be understated.
If there was one juror on that jury that was racist towards,
whether it was to the defendant or to another juror
or to a witness or to the court or to the DA,
as the Commonwealth argues,
then that was not a fair trial.
He was denied a Sixth Amendment right
to an impartial jury.
And to then put the burden on the defendant at post verdict,
to say that you need to now raise this in a motion
for a new trial when it was raised pre verdict-
-: How do we take into account
on the substantial risk analysis
the fact that there was a second degree conviction?
Ashley: There was a-
-: That the person was convicted
of a lesser included offense, does that weigh into it?
-: Well, I think it weighs into the Commonwealth's,
whether or not they had overwhelming evidence.
And here, I don't think they had overwhelming evidence.
They didn't find that it was a first degree.
They gave a lesser included, and it was circumstantial.
There was no direct evidence, and based on-
-: Is the difference between first and second enough
to be able to make that argument?
Make it safe, they can't retain back on manslaughter.
But is that enough to say that the strength of the case
wasn't that great because they came back
on a two as opposed to a one?
-: I think it comes down to the jury decided
it wasn't a first degree,
and it wasn't overwhelming evidence of guilt.
So they considered it, but-
-: [Justice Wendlandt] Wasn't there a video
showing the shooting?
-: The video that was submitted into evidence
was a grainy video, it does not show-
-: But you can hear the victim asking Pedro for the keys,
and you have testimony, I thought,
and you know the record better than I do,
of people who were familiar with both the victim
and the defendant who said, "Yeah, that's them."
-: And so there was much contention
about the voice recognition testimony there.
It was only, it was people who were familiar,
family members of the decedent who testified,
and Pedro's a very common name.
So I do want, yes, there's testimony that they said
that they were familiar with that voice.
I think that there was some credibility
and impeachment evidence that came in.
But again, one factor of the substantial risk is,
and you have to consider those in totality.
And I think that here and what the court said in Ralph R.
is the nature of the error is so,
it's, can't be understated.
I mean, that is overwhelmingly
should be weighed most in this case.
And so the Ralph R. didn't get into the factors of-
-: Will you, I'm just, I don't see what the judge
could've done without then probing into deliberations here.
The judge asks you questions.
All we have for the basis of racism is Juror 2,
who's a found figure, says the other guy's racist,
right, just says it.
What can the judge do here?
'Cause it's, the judge is walking really fine line.
-: So that's not the only report, though.
The foreperson wrote in their note
that there were multiple statements made.
There was statements of preconceived bias and-
-: Preconceived bias, right, not, go ahead, sorry.
-: There was one, that was one report,
and that based on what had occurred
in the jury deliberation, the other nine jurors,
you can infer that they were infected,
or at least affected in some way
where the poor person said how uncomfortable they were,
that there was a lot of tensions in the room
based on the statements that were made.
And then when further inquired by the judge,
Juror 2 also said that there were,
he didn't just come to that conclusion
based on one statement that was made.
It was based on multiple statements that were made to him
by Juror 4 and a label that he gave him
in the jury deliberation in front of the other jurors.
-: It's in the appeals court decision
and discussed in briefs,
when Juror Number 2 was originally impaneled,
was there some discussion that he had a beef
against the prosecutor's office
or prejudice against the prosecutor's office?
-: So that came up during the inquiry
once this came to light.
The prosecutor had gone to the judge
and said, "Oh, we have information that he had sent an email
to the DA's office at one point in time,
and he was disgruntled about how he was treated."
-: Okay. -: And I think it was
within a job or something like that.
-: I tried to look at impanelment, and I couldn't find it.
But like I guess- -: No, it was.
It was in Transcript 16, that information.
But what I would say to that is the judge
heard that information, he considered it,
and he didn't find that the statement was not credible.
He didn't find that this juror wasn't credible.
The problem is is that he didn't have enough information
to make an impartiality finding.
-: Going back to Justice Kafker's question, though,
what's your position on the questions
the judge should've asked at that point,
and specifically where a juror has said,
"Yes, it had to do with deliberations,"
and then a different juror says there were multiple comments
during the deliberations.
Is it your position that the court
should at that point inquire
about substantive discussions made in deliberations?
And if so, what guardrails should a judge
put on those questions?
-: So I think this is discussed in Ralph R.
as well as Tavares where it's a delicate process.
You do need to find out, though, what was the quote?
Was what said? -: Well, Ralph R.
does say it's a delicate process,
but it doesn't say a heck of a lot
about precisely what is permissible to ask
and not permissible.
So what is your position here with the facts,
the very concrete facts we have here,
what kind of question should,
specifically, should the judge have asked?
-: He should have asked, "What statements were made,
and what was the label that was given to you?"
Because I think without knowing that information,
without knowing the content
and the context of the statement,
he can't determine one way or the other
if the impartiality finding is based on the facts
or whether Juror 4 is being genuine in saying,
"I'm not racist, and I can remain impartial."
-: Counsel, counsel, did you say at the beginning of this
that both sides agreed that more should've been done?
Okay, I can ask the ADA, but if that's the case,
can you just go through the substantial risk analysis?
-: Yeah, so our position is you get
to the substantial risk analysis
and consider the strength of the Commonwealth's case
and the four factors.
The Commonwealth's position is that we shouldn't get there,
that this should be, should go back, should be remanded
to the trial court to determine,
to further develop the record
about what statements were made
and whether or not these all jurors remained impartial.
So I take issue with that,
'cause that would effectively overturn
what this court has said in Ralph R. as well as Quiles
where they declined to do that.
There's a fine line, or a bright line, I should say,
which there's not many of those in law,
pre-verdict versus post-verdict.
In pre-verdict cases, the judge is in the position
and has the opportunity to make certain
that there is a right to an impartial jury.
Once you put, after the verdict is,
now the burdens on the defendant
to then question jurors, bring them in,
get an evidentiary hearing, and recreate the record,
when the judge, it fell on the judge's shoulders
at that point in time, and the inquiry
should've been triggered.
So that's their position. I don't agree with it.
I think this court can handle it sufficiently
and remand to the court,
vacate his conviction or remand to the court.
For substantial risk, what I was previously saying is,
I don't think that there's overwhelming evidence of guilt
that overcomes the error in this case.
If there's one juror that sat on that case,
truly, the amicus brief really touches on this,
is the credibility determined statements were made.
The jury was infected.
I don't think that we even need to get to that point.
I think that we're on now to the degree
in which the jury was infected.
-: But when we look at the Azar factors, right,
the substantial, when we look at Azar factors,
the substantial risk, we go to the nature of the error.
And one thing the appeals court decision says
is unlike Ralph R., there doesn't appear to be in this case
a racial issue as it was in Ralph R.
-: Yes, so that, I think, might be why this court
allowed further appellate review because that-
Justice Gaziano: You never know.
-: I never know, but I think that that was
an egregious mistake by the appeals court.
They actually said that the defendant in Ralph R. was Black.
He wasn't. There's a footnote that says he was Hispanic.
And that's how they distinguished this case from Ralph R.
is they said, "Well, that had to do with a juvenile
who was having issue or was Black
and dealing with the Boston police."
There's a footnote that says that he's Hispanic.
I don't know where that came from.
-: One can be Hispanic and Black, but be that as it may.
-: Right, but the footnote says that,
and for them to make that distinction
and say that this case is different,
materially different based on that I think is problematic.
-: I think the appeals court was perhaps suggesting
that race was part and parcel of the substance of the case.
-: I would disagree with that characterization of Ralph R.
I think that the issue was whether or not
there was an impartial jury,
and without inquiring further,
we don't know how it affected the case.
And so whether it had, and in this case,
I think it goes further to say that,
they said that the dispute between the jurors
that had to do with one juror being racist
had to do with the substance of this case.
I think we have more information,
and the problem is actually worse in this case
than in Ralph R, and...
-: But you do agree that we have to apply
the Azar factors, correct?
-: I do agree with that because, and again,
same thing as Ralph R., they didn't object to it.
This was, they waived structural error,
and that's why we're on to substantial risk
of miscarriage justice standard,
and so I don't dispute that.
And I think Ralph R. had a lot to do with whether or not
there was structural error or whether you can waive that.
And here, we're not arguing that.
And if I have no further questions,
I rest on my brief and the brief in the amicus curiae.
Thank you.
-: Okay, thank you.
Attorney Sheppard-Brick,
calling you to the podium once again, sorry.
-: It's good to be back.
-: I'd like to ask you a question about the Montgomery case.
I'm kidding.
(group laughs)
-: Sure.
-: Can I ask you, I do have a question.
-: Yes, sure.
-: Is it right that you changed your view
of the case when you argued it
in the appeals court and now?
-: Yes, because I reread the transcripts and realized that,
'cause when I briefed it at the appeals court,
the case seemed a lot like Ralph R. to me.
And then when I went back briefing for this court,
I started to see the real differences
in the fact that we know who the juror
with preconceived biases was in this case.
It was Juror Number 2,
because I think that's clear circumstantially
that Juror Number 4 said,
"This person has had disagreements with other jurors,
and it got heated between us
and some other people in the room."
And you have the foreperson saying,
"The person with preconceived biases
has had trouble with a lot of other people in the room."
So I think here you can see that the juror
with preconceived biases is Juror Number 2.
And we know what his bias is.
He doesn't like the DA's office.
-: Okay. -: Where does that come from?
-: That comes from the,
when the prosecutor came up at sidebar
and showed the judge the email
and discussed that the individual had a negative,
a very negative history with, well, from his mind,
a very negative history with-
-: Was the email introduced as,
or marked for identification? -: It was marked S for ID.
-: It was marked for ID.
-: Yes. -: Okay.
-: So he wasn't racist? That was not the issue at all?
-: Well, Juror Number 2 was accusing
Juror Number 4 of being racist.
-: Okay. -: Juror Number 2
was the one who had a history with the DA's office, so-
-: But isn't the problem that the foreperson was never asked
about the preconceived biases
that he or she mentioned in the note?
-: It would've been a problem if we couldn't figure out
who she was talking about,
'cause if it was a possibility
she was talking about Juror Number 4,
I think it's more of a problem,
but I think it's pretty clear that you have,
the one with preconceived biases
has had trouble with other jurors.
That's what Juror 4 says about Juror 2,
where Juror 2 says he only has a problem
with Juror Number 4 because he called him
what he called him.
But what he called him wasn't inherently racial.
-: But what do we do with the fact that Juror 2
specifically says that the disputes
between Juror 2 and Juror 4 that took place in the jury room
did have to do with the substance of the case?
-: I don't know that the problem is that they,
I don't think that that's a problem that they had a dispute
about the substance of the case.
And I don't think that even if one juror calls another,
you know, a POS that you have a problem with deliberations.
-: Well, the Juror 2 specifically said,
he said, in other words, "I don't want anyone to think
that I'm just calling this guy a racist
because of one thing he said outside,
when we had the fight outside."
Rather, "I thought, I formed the view that he was racist
because of comments that he made in the deliberation room
having to do with our deliberations."
And then he further elaborates and says, like,
"Lots of people think I'm a POS,
including people of my own race,
but this was not just me being a POS.
This was like racist."
I mean, he spells it all out really clearly,
to say like there was a dispute,
"I perceived that this person was racist
based on multiple comments
in the deliberation room related to the case."
-: Right, well, the judge wasn't required to credit him,
and I think he was not credible.
And I think it shows you have repeated instances
where he's telling a different story than everybody else.
You have the incident with the Hispanic juror early on
during the case where he says, "Oh, this guy said
that he dated the defendant's sister"
and brought the juror up and goes, "I didn't say that."
Well, first he says, "I don't like somebody."
So I think at the beginning,
you see that Juror Number 2 has,
is trying to cause a problem.
And I think you see that throughout this case,
that Juror Number 2 is trying to cause a problem,
and the defense attorney saw that and said,
"I don't want anybody to talk to them.
I just wanna send them back in the room,"
because he knew that he had a juror who was causing trouble
and had a grudge against the DA's office.
So he tactically said, "I don't wanna get into it"
because he suspected, and I think it would be borne out
were there to be an evidentiary hearing,
that the person who was causing the trouble
was Juror Number 2, and it had nothing to do with race.
-: So the problem is speculation, right,
because the trial ADA appropriately said,
"Let's have an inquiry because we wanna know
how this is impacting all the other jurors,"
but then the defense attorney doesn't want it,
and the judge ultimately doesn't have it.
Is that why you're looking for a remand?
-: So that was why I asked for it
in the alternative for remand, because I don't,
the Sixth Amendment isn't at play here
because this is a claim of invited error.
So we're under the Massachusetts constitution here.
But I think that if you think there's a possibility
of a substantial risk, we should do the inquiry
that the defendant objected to
and that the Commonwealth has been asking,
was asking for to begin with.
The defendant requested and received
juror contact information.
According to the status reports filed in the appeals court,
he investigated a motion for a new trial
and sent an investigator to speak with the jurors,
and then no motion for a new trial was filed.
And I think that that's probably
because what we strongly suspect,
and what I think the record shows,
is that there was no racism in the room,
and it was Juror Number 2 was a problem.
But if we wanna go back, if the court says,
"Look, there's a problem here that needs to be addressed,"
Commonwealth has preserved the right to have that inquiry,
and in Laguerre- -: It's kinda late,
isn't it kind of late to have an inquiry,
was it four years later, of jurors?
-: I don't think that it is because this is,
this was a, I mean, this was a dispute
that nearly came to blows where one said to the other,
Juror Number 4 said, "He was trying to get me to punch him."
And Juror Number 2 said that he said,
"Let's go to the parking lot,
and I'll be your, you know, for you."
That was, he said, Juror Number 2 said
that he told Juror Number 4 that-
-: This is an inquiry into extraneous factors,
like in McGowan.
-: Correct, so this is, we're asking for,
if the court is concerned of a substantial risk,
Laguerre says you could remand for these.
Now, that was a post-trial allegation of racism.
But there's no reason it can't be,
and I'm gonna bet that these jurors remember this.
-: It seems a bit odd because of the procedural posture
on the standard of review,
right? -: Right.
-: There's either a substantial risk
of miscarriage justice or there's not.
-: Right. -: Are you aware
of an analogous case where when we're in that
standard of review, we would be remanding
for a hearing on whether...
-: Well, so, you know, I don't think
that there isn't case law on it
because if the record is unclear,
then there's no substantial risk.
-: That is my question.
-: Right, so if the record is unclear,
then the defendant hasn't met his burden,
and you can simply affirm.
Now, he can still go and file a motion for a new trial,
and that was the position that we've taken,
that we certainly took by the time
we were in arguments at the appeals court.
Absolutely he can still file a motion for a new trial
and raise that issue, but if the record is insufficient,
it's the defendant's burden to make the record.
And he specifically, and I would argue tactically,
didn't make a record
because it wouldn't have been good for him.
If there are no further questions,
I'm happy to rest on my brief.