WEBVTT
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Good morning, Your Honors.
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May it please the court, Ashley Allen
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on behalf of defendant and appellant, Mr. Pedro Vazquez.
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In this case, the parties actually do agree-
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Counsel, can you aim it a little bit.
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Sorry, a little shorter.
Thank you.
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The parties actually do agree
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about some of the issues in this case,
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one being that there was an issue of racial or ethnic bias
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that infected the jury deliberations.
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There was multiple credible reports about it
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and that the judge did not go far enough
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in his inquiry to determine one way or the other
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whether the two jurors were involved,
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whether they remained impartial,
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and whether the nine remaining
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deliberating jurors remained impartial.
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How do we deal with, as a practical matter,
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that you got exactly what you asked for,
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and now the judge gave an opportunity
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to hear from the attorneys.
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The Commonwealth is the one that was jumping up and down,
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saying, "Let's excuse these folks,"
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and the defense said no,
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and that could've been a tactical decision.
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How do we deal with that?
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So a few answers to that.
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One, I don't think it can be
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a tactical decision in this case.
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Both the court as well as the counsel
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were operating without the benefit
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of this court's decision of Ralph R. as well as Quiles.
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And based on the record,
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it seems like they were actually operating
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not even on Tavares but a different case
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that had nothing to do with racial bias.
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So I would say if it was a tactical decision,
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it was unreasonable, and it may have also been
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ineffective assistance of counsel to not have objected.
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But even if it wasn't, even though they didn't object,
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that just gets us to this being not structural error,
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that was waived, and that this is a substantial risk
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of a miscarriage of justice standard.
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And so one of the considerations on whether or not
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it's a substantial risk of miscarriage of justice
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is whether it was a tactical decision.
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I don't think it was a tactical decision based on-
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But couldn't it have been that this,
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the defense attorney wanted this juror?
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I'm sorry.
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It could've been that the defense attorney
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wanted this juror to remain.
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He may have wanted Juror 2 to remain.
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Right.
But I don't think
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it was any benefit to any party to keep Juror 4,
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who may or may not have been racist.
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He had said things to Juror 2 that,
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name-calling, labels that were given to Juror 2
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in front of the other juror members
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as well as outside the courtroom.
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So while the court did inquire
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about what occurred outside the courtroom,
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he never went into what statements were made
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in front of the other jurors.
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And he also did pointedly ask Juror 4
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whether or not that the disagreement
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between the two jurors had anything to do
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with the substance of the case.
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He said yes, and even after that didn't go further
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to determine what statements were made.
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And without knowing what statements were made,
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we can't know, was on its face the statement so-
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We're speculating.
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We don't know what the result would've been if Juror 2
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and/or Juror 4 would've been removed, right?
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Would've been removed?
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Yeah, we don't know if Juror 2
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would've been removed as well.
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Right, and that's the problem with waiting
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until after the fact to raise this issue.
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Right, that's the problem.
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Right.
I guess the issue I've got
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is when you say it wasn't a tactical decision,
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I'm not so sure that the defense attorney
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wasn't basically making a tactical decision
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'cause he liked this composition of the jury as it stood.
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And that's where, it would be my argument and position
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that it was an unreasonable tactical decision.
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I think looking back at this-
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But this is one of these heads you win,
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tails I lose situations.
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He gets to not do anything and then-
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And that's just one consideration
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of the substantial risk analysis.
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And so if we also look at the nature of the error
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the significance of it,
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I think that also gives you some context
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to look at whether this was a tactical decision.
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I think that the nature of the error and significance,
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it can't be understated.
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If there was one juror on that jury that was racist towards,
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whether it was to the defendant or to another juror
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or to a witness or to the court or to the DA,
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as the Commonwealth argues,
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then that was not a fair trial.
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He was denied a Sixth Amendment right
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to an impartial jury.
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And to then put the burden on the defendant at post verdict,
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to say that you need to now raise this in a motion
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for a new trial when it was raised pre verdict-
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How do we take into account
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on the substantial risk analysis
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the fact that there was a second degree conviction?
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There was a-
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That the person was convicted
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of a lesser included offense, does that weigh into it?
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Well, I think it weighs into the Commonwealth's,
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whether or not they had overwhelming evidence.
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And here, I don't think they had overwhelming evidence.
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They didn't find that it was a first degree.
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They gave a lesser included, and it was circumstantial.
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There was no direct evidence, and based on-
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Is the difference between first and second enough
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to be able to make that argument?
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Make it safe, they can't retain back on manslaughter.
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But is that enough to say that the strength of the case
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wasn't that great because they came back
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on a two as opposed to a one?
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I think it comes down to the jury decided
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it wasn't a first degree,
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and it wasn't overwhelming evidence of guilt.
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So they considered it, but-
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[Justice Wendlandt] Wasn't there a video
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showing the shooting?
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The video that was submitted into evidence
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was a grainy video, it does not show-
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But you can hear the victim asking Pedro for the keys,
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and you have testimony, I thought,
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and you know the record better than I do,
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of people who were familiar with both the victim
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and the defendant who said, "Yeah, that's them."
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And so there was much contention
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about the voice recognition testimony there.
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It was only, it was people who were familiar,
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family members of the decedent who testified,
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and Pedro's a very common name.
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So I do want, yes, there's testimony that they said
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that they were familiar with that voice.
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I think that there was some credibility
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and impeachment evidence that came in.
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But again, one factor of the substantial risk is,
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and you have to consider those in totality.
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And I think that here and what the court said in Ralph R.
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is the nature of the error is so,
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it's, can't be understated.
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I mean, that is overwhelmingly
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should be weighed most in this case.
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And so the Ralph R. didn't get into the factors of-
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Will you, I'm just, I don't see what the judge
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could've done without then probing into deliberations here.
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The judge asks you questions.
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All we have for the basis of racism is Juror 2,
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who's a found figure, says the other guy's racist,
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right, just says it.
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What can the judge do here?
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'Cause it's, the judge is walking really fine line.
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So that's not the only report, though.
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The foreperson wrote in their note
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that there were multiple statements made.
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There was statements of preconceived bias and-
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Preconceived bias, right, not, go ahead, sorry.
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There was one, that was one report,
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and that based on what had occurred
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in the jury deliberation, the other nine jurors,
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you can infer that they were infected,
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or at least affected in some way
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where the poor person said how uncomfortable they were,
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that there was a lot of tensions in the room
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based on the statements that were made.
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And then when further inquired by the judge,
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Juror 2 also said that there were,
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he didn't just come to that conclusion
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based on one statement that was made.
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It was based on multiple statements that were made to him
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by Juror 4 and a label that he gave him
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in the jury deliberation in front of the other jurors.
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It's in the appeals court decision
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and discussed in briefs,
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when Juror Number 2 was originally impaneled,
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was there some discussion that he had a beef
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against the prosecutor's office
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or prejudice against the prosecutor's office?
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So that came up during the inquiry
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once this came to light.
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The prosecutor had gone to the judge
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and said, "Oh, we have information that he had sent an email
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to the DA's office at one point in time,
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and he was disgruntled about how he was treated."
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Okay.
And I think it was
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within a job or something like that.
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I tried to look at impanelment, and I couldn't find it.
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But like I guess-
No, it was.
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It was in Transcript 16, that information.
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But what I would say to that is the judge
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heard that information, he considered it,
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and he didn't find that the statement was not credible.
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He didn't find that this juror wasn't credible.
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The problem is is that he didn't have enough information
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to make an impartiality finding.
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Going back to Justice Kafker's question, though,
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what's your position on the questions
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the judge should've asked at that point,
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and specifically where a juror has said,
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"Yes, it had to do with deliberations,"
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and then a different juror says there were multiple comments
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during the deliberations.
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Is it your position that the court
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should at that point inquire
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about substantive discussions made in deliberations?
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And if so, what guardrails should a judge
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put on those questions?
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So I think this is discussed in Ralph R.
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as well as Tavares where it's a delicate process.
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You do need to find out, though, what was the quote?
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Was what said?
Well, Ralph R.
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does say it's a delicate process,
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but it doesn't say a heck of a lot
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about precisely what is permissible to ask
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and not permissible.
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So what is your position here with the facts,
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the very concrete facts we have here,
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what kind of question should,
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specifically, should the judge have asked?
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He should have asked, "What statements were made,
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and what was the label that was given to you?"
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Because I think without knowing that information,
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without knowing the content
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and the context of the statement,
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he can't determine one way or the other
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if the impartiality finding is based on the facts
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or whether Juror 4 is being genuine in saying,
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"I'm not racist, and I can remain impartial."
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Counsel, counsel, did you say at the beginning of this
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that both sides agreed that more should've been done?
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Okay, I can ask the ADA, but if that's the case,
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can you just go through the substantial risk analysis?
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Yeah, so our position is you get
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to the substantial risk analysis
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and consider the strength of the Commonwealth's case
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and the four factors.
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The Commonwealth's position is that we shouldn't get there,
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that this should be, should go back, should be remanded
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to the trial court to determine,
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to further develop the record
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about what statements were made
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and whether or not these all jurors remained impartial.
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So I take issue with that,
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'cause that would effectively overturn
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what this court has said in Ralph R. as well as Quiles
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where they declined to do that.
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There's a fine line, or a bright line, I should say,
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which there's not many of those in law,
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pre-verdict versus post-verdict.
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In pre-verdict cases, the judge is in the position
265
00:11:11.490 --> 00:11:13.440
and has the opportunity to make certain
266
00:11:13.440 --> 00:11:16.440
that there is a right to an impartial jury.
267
00:11:16.440 --> 00:11:18.210
Once you put, after the verdict is,
268
00:11:18.210 --> 00:11:20.580
now the burdens on the defendant
269
00:11:20.580 --> 00:11:23.370
to then question jurors, bring them in,
270
00:11:23.370 --> 00:11:27.180
get an evidentiary hearing, and recreate the record,
271
00:11:27.180 --> 00:11:29.040
when the judge, it fell on the judge's shoulders
272
00:11:29.040 --> 00:11:30.990
at that point in time, and the inquiry
273
00:11:30.990 --> 00:11:32.370
should've been triggered.
274
00:11:32.370 --> 00:11:35.610
So that's their position. I don't agree with it.
275
00:11:35.610 --> 00:11:37.470
I think this court can handle it sufficiently
276
00:11:37.470 --> 00:11:39.210
and remand to the court,
277
00:11:39.210 --> 00:11:41.760
vacate his conviction or remand to the court.
278
00:11:41.760 --> 00:11:45.750
For substantial risk, what I was previously saying is,
279
00:11:45.750 --> 00:11:48.330
I don't think that there's overwhelming evidence of guilt
280
00:11:48.330 --> 00:11:50.370
that overcomes the error in this case.
281
00:11:50.370 --> 00:11:52.863
If there's one juror that sat on that case,
282
00:11:53.700 --> 00:11:57.570
truly, the amicus brief really touches on this,
283
00:11:57.570 --> 00:12:01.377
is the credibility determined statements were made.
284
00:12:01.377 --> 00:12:02.730
The jury was infected.
285
00:12:02.730 --> 00:12:04.530
I don't think that we even need to get to that point.
286
00:12:04.530 --> 00:12:07.980
I think that we're on now to the degree
287
00:12:07.980 --> 00:12:10.230
in which the jury was infected.
288
00:12:10.230 --> 00:12:12.930
But when we look at the Azar factors, right,
289
00:12:12.930 --> 00:12:15.360
the substantial, when we look at Azar factors,
290
00:12:15.360 --> 00:12:18.837
the substantial risk, we go to the nature of the error.
291
00:12:18.837 --> 00:12:21.150
And one thing the appeals court decision says
292
00:12:21.150 --> 00:12:24.600
is unlike Ralph R., there doesn't appear to be in this case
293
00:12:24.600 --> 00:12:26.820
a racial issue as it was in Ralph R.
294
00:12:26.820 --> 00:12:30.360
Yes, so that, I think, might be why this court
295
00:12:30.360 --> 00:12:32.190
allowed further appellate review because that-
296
00:12:32.190 --> 00:12:33.745
You never know.
297
00:12:33.745 --> 00:12:35.820
I never know, but I think that that was
298
00:12:35.820 --> 00:12:38.010
an egregious mistake by the appeals court.
299
00:12:38.010 --> 00:12:42.603
They actually said that the defendant in Ralph R. was Black.
300
00:12:43.800 --> 00:12:46.243
He wasn't. There's a footnote that says he was Hispanic.
301
00:12:46.243 --> 00:12:49.800
And that's how they distinguished this case from Ralph R.
302
00:12:49.800 --> 00:12:52.440
is they said, "Well, that had to do with a juvenile
303
00:12:52.440 --> 00:12:55.290
who was having issue or was Black
304
00:12:55.290 --> 00:12:57.480
and dealing with the Boston police."
305
00:12:57.480 --> 00:12:59.310
There's a footnote that says that he's Hispanic.
306
00:12:59.310 --> 00:13:00.750
I don't know where that came from.
307
00:13:00.750 --> 00:13:04.050
One can be Hispanic and Black, but be that as it may.
308
00:13:04.050 --> 00:13:05.640
Right, but the footnote says that,
309
00:13:05.640 --> 00:13:07.770
and for them to make that distinction
310
00:13:07.770 --> 00:13:10.050
and say that this case is different,
311
00:13:10.050 --> 00:13:13.223
materially different based on that I think is problematic.
312
00:13:13.223 --> 00:13:16.530
I think the appeals court was perhaps suggesting
313
00:13:16.530 --> 00:13:20.940
that race was part and parcel of the substance of the case.
314
00:13:20.940 --> 00:13:23.850
I would disagree with that characterization of Ralph R.
315
00:13:23.850 --> 00:13:25.680
I think that the issue was whether or not
316
00:13:25.680 --> 00:13:27.630
there was an impartial jury,
317
00:13:27.630 --> 00:13:29.760
and without inquiring further,
318
00:13:29.760 --> 00:13:32.820
we don't know how it affected the case.
319
00:13:32.820 --> 00:13:34.770
And so whether it had, and in this case,
320
00:13:34.770 --> 00:13:36.780
I think it goes further to say that,
321
00:13:36.780 --> 00:13:39.240
they said that the dispute between the jurors
322
00:13:39.240 --> 00:13:42.780
that had to do with one juror being racist
323
00:13:42.780 --> 00:13:44.850
had to do with the substance of this case.
324
00:13:44.850 --> 00:13:46.230
I think we have more information,
325
00:13:46.230 --> 00:13:48.210
and the problem is actually worse in this case
326
00:13:48.210 --> 00:13:50.540
than in Ralph R, and...
327
00:13:51.840 --> 00:13:53.525
But you do agree that we have to apply
328
00:13:53.525 --> 00:13:55.380
the Azar factors, correct?
329
00:13:55.380 --> 00:13:57.510
I do agree with that because, and again,
330
00:13:57.510 --> 00:14:00.870
same thing as Ralph R., they didn't object to it.
331
00:14:00.870 --> 00:14:03.000
This was, they waived structural error,
332
00:14:03.000 --> 00:14:04.680
and that's why we're on to substantial risk
333
00:14:04.680 --> 00:14:06.120
of miscarriage justice standard,
334
00:14:06.120 --> 00:14:07.713
and so I don't dispute that.
335
00:14:08.700 --> 00:14:11.310
And I think Ralph R. had a lot to do with whether or not
336
00:14:11.310 --> 00:14:13.470
there was structural error or whether you can waive that.
337
00:14:13.470 --> 00:14:15.577
And here, we're not arguing that.
338
00:14:17.777 --> 00:14:19.530
And if I have no further questions,
339
00:14:19.530 --> 00:14:22.945
I rest on my brief and the brief in the amicus curiae.
340
00:14:22.945 --> 00:14:24.011
Thank you.
341
00:14:24.011 --> 00:14:26.010
Okay, thank you.
342
00:14:26.010 --> 00:14:27.570
Attorney Sheppard-Brick,
343
00:14:27.570 --> 00:14:29.460
calling you to the podium once again, sorry.
344
00:14:29.460 --> 00:14:30.610
It's good to be back.
345
00:14:32.160 --> 00:14:34.140
I'd like to ask you a question about the Montgomery case.
346
00:14:34.140 --> 00:14:35.159
I'm kidding.
347
00:14:35.159 --> 00:14:37.742
(group laughs)
348
00:14:38.940 --> 00:14:39.773
Sure.
349
00:14:40.980 --> 00:14:42.240
Can I ask you, I do have a question.
350
00:14:42.240 --> 00:14:43.650
Yes, sure.
351
00:14:43.650 --> 00:14:47.790
Is it right that you changed your view
352
00:14:47.790 --> 00:14:51.960
of the case when you argued it
353
00:14:51.960 --> 00:14:54.783
in the appeals court and now?
354
00:14:56.160 --> 00:14:59.583
Yes, because I reread the transcripts and realized that,
355
00:15:00.750 --> 00:15:03.543
'cause when I briefed it at the appeals court,
356
00:15:05.340 --> 00:15:07.560
the case seemed a lot like Ralph R. to me.
357
00:15:07.560 --> 00:15:10.740
And then when I went back briefing for this court,
358
00:15:10.740 --> 00:15:14.520
I started to see the real differences
359
00:15:14.520 --> 00:15:16.770
in the fact that we know who the juror
360
00:15:16.770 --> 00:15:19.800
with preconceived biases was in this case.
361
00:15:19.800 --> 00:15:21.090
It was Juror Number 2,
362
00:15:21.090 --> 00:15:23.850
because I think that's clear circumstantially
363
00:15:23.850 --> 00:15:26.407
that Juror Number 4 said,
364
00:15:26.407 --> 00:15:30.513
"This person has had disagreements with other jurors,
365
00:15:31.440 --> 00:15:33.660
and it got heated between us
366
00:15:33.660 --> 00:15:35.940
and some other people in the room."
367
00:15:35.940 --> 00:15:37.477
And you have the foreperson saying,
368
00:15:37.477 --> 00:15:39.540
"The person with preconceived biases
369
00:15:39.540 --> 00:15:42.210
has had trouble with a lot of other people in the room."
370
00:15:42.210 --> 00:15:44.610
So I think here you can see that the juror
371
00:15:44.610 --> 00:15:46.920
with preconceived biases is Juror Number 2.
372
00:15:46.920 --> 00:15:48.180
And we know what his bias is.
373
00:15:48.180 --> 00:15:50.290
He doesn't like the DA's office.
374
00:15:50.290 --> 00:15:52.950
Okay.
Where does that come from?
375
00:15:52.950 --> 00:15:54.873
That comes from the,
376
00:15:56.610 --> 00:15:58.350
when the prosecutor came up at sidebar
377
00:15:58.350 --> 00:16:00.460
and showed the judge the email
378
00:16:01.530 --> 00:16:06.360
and discussed that the individual had a negative,
379
00:16:06.360 --> 00:16:09.900
a very negative history with, well, from his mind,
380
00:16:09.900 --> 00:16:10.733
a very negative history with-
381
00:16:10.733 --> 00:16:12.423
Was the email introduced as,
382
00:16:13.322 --> 00:16:15.420
or marked for identification?
It was marked S for ID.
383
00:16:15.420 --> 00:16:16.290
It was marked for ID.
384
00:16:16.290 --> 00:16:17.123
Yes.
Okay.
385
00:16:17.970 --> 00:16:21.830
So he wasn't racist? That was not the issue at all?
386
00:16:21.830 --> 00:16:24.030
Well, Juror Number 2 was accusing
387
00:16:24.030 --> 00:16:25.320
Juror Number 4 of being racist.
388
00:16:25.320 --> 00:16:26.580
Okay.
Juror Number 2
389
00:16:26.580 --> 00:16:31.140
was the one who had a history with the DA's office, so-
390
00:16:31.140 --> 00:16:35.670
But isn't the problem that the foreperson was never asked
391
00:16:35.670 --> 00:16:38.070
about the preconceived biases
392
00:16:38.070 --> 00:16:40.500
that he or she mentioned in the note?
393
00:16:40.500 --> 00:16:42.360
It would've been a problem if we couldn't figure out
394
00:16:42.360 --> 00:16:43.620
who she was talking about,
395
00:16:43.620 --> 00:16:44.880
'cause if it was a possibility
396
00:16:44.880 --> 00:16:46.890
she was talking about Juror Number 4,
397
00:16:46.890 --> 00:16:48.960
I think it's more of a problem,
398
00:16:48.960 --> 00:16:51.420
but I think it's pretty clear that you have,
399
00:16:51.420 --> 00:16:53.520
the one with preconceived biases
400
00:16:53.520 --> 00:16:55.110
has had trouble with other jurors.
401
00:16:55.110 --> 00:16:57.900
That's what Juror 4 says about Juror 2,
402
00:16:57.900 --> 00:16:59.640
where Juror 2 says he only has a problem
403
00:16:59.640 --> 00:17:02.070
with Juror Number 4 because he called him
404
00:17:02.070 --> 00:17:03.020
what he called him.
405
00:17:05.310 --> 00:17:09.063
But what he called him wasn't inherently racial.
406
00:17:09.930 --> 00:17:12.270
But what do we do with the fact that Juror 2
407
00:17:12.270 --> 00:17:15.390
specifically says that the disputes
408
00:17:15.390 --> 00:17:17.910
between Juror 2 and Juror 4 that took place in the jury room
409
00:17:17.910 --> 00:17:20.880
did have to do with the substance of the case?
410
00:17:20.880 --> 00:17:22.830
I don't know that the problem is that they,
411
00:17:22.830 --> 00:17:24.990
I don't think that that's a problem that they had a dispute
412
00:17:24.990 --> 00:17:26.880
about the substance of the case.
413
00:17:26.880 --> 00:17:30.960
And I don't think that even if one juror calls another,
414
00:17:30.960 --> 00:17:35.790
you know, a POS that you have a problem with deliberations.
415
00:17:35.790 --> 00:17:38.463
Well, the Juror 2 specifically said,
416
00:17:41.040 --> 00:17:44.640
he said, in other words, "I don't want anyone to think
417
00:17:44.640 --> 00:17:46.440
that I'm just calling this guy a racist
418
00:17:46.440 --> 00:17:49.170
because of one thing he said outside,
419
00:17:49.170 --> 00:17:50.460
when we had the fight outside."
420
00:17:50.460 --> 00:17:53.700
Rather, "I thought, I formed the view that he was racist
421
00:17:53.700 --> 00:17:56.460
because of comments that he made in the deliberation room
422
00:17:56.460 --> 00:17:57.990
having to do with our deliberations."
423
00:17:57.990 --> 00:17:59.947
And then he further elaborates and says, like,
424
00:17:59.947 --> 00:18:02.250
"Lots of people think I'm a POS,
425
00:18:02.250 --> 00:18:04.320
including people of my own race,
426
00:18:04.320 --> 00:18:07.290
but this was not just me being a POS.
427
00:18:07.290 --> 00:18:08.123
This was like racist."
428
00:18:08.123 --> 00:18:10.950
I mean, he spells it all out really clearly,
429
00:18:10.950 --> 00:18:12.667
to say like there was a dispute,
430
00:18:12.667 --> 00:18:16.050
"I perceived that this person was racist
431
00:18:16.050 --> 00:18:17.490
based on multiple comments
432
00:18:17.490 --> 00:18:19.500
in the deliberation room related to the case."
433
00:18:19.500 --> 00:18:21.600
Right, well, the judge wasn't required to credit him,
434
00:18:21.600 --> 00:18:23.130
and I think he was not credible.
435
00:18:23.130 --> 00:18:25.950
And I think it shows you have repeated instances
436
00:18:25.950 --> 00:18:28.440
where he's telling a different story than everybody else.
437
00:18:28.440 --> 00:18:31.740
You have the incident with the Hispanic juror early on
438
00:18:31.740 --> 00:18:33.873
during the case where he says, "Oh, this guy said
439
00:18:33.873 --> 00:18:35.670
that he dated the defendant's sister"
440
00:18:35.670 --> 00:18:38.130
and brought the juror up and goes, "I didn't say that."
441
00:18:38.130 --> 00:18:39.900
Well, first he says, "I don't like somebody."
442
00:18:39.900 --> 00:18:41.310
So I think at the beginning,
443
00:18:41.310 --> 00:18:44.430
you see that Juror Number 2 has,
444
00:18:44.430 --> 00:18:46.680
is trying to cause a problem.
445
00:18:46.680 --> 00:18:48.903
And I think you see that throughout this case,
446
00:18:48.903 --> 00:18:51.750
that Juror Number 2 is trying to cause a problem,
447
00:18:51.750 --> 00:18:54.097
and the defense attorney saw that and said,
448
00:18:54.097 --> 00:18:56.280
"I don't want anybody to talk to them.
449
00:18:56.280 --> 00:18:58.110
I just wanna send them back in the room,"
450
00:18:58.110 --> 00:19:01.860
because he knew that he had a juror who was causing trouble
451
00:19:01.860 --> 00:19:04.470
and had a grudge against the DA's office.
452
00:19:04.470 --> 00:19:07.320
So he tactically said, "I don't wanna get into it"
453
00:19:07.320 --> 00:19:11.610
because he suspected, and I think it would be borne out
454
00:19:11.610 --> 00:19:13.560
were there to be an evidentiary hearing,
455
00:19:13.560 --> 00:19:16.080
that the person who was causing the trouble
456
00:19:16.080 --> 00:19:18.410
was Juror Number 2, and it had nothing to do with race.
457
00:19:18.410 --> 00:19:21.030
So the problem is speculation, right,
458
00:19:21.030 --> 00:19:24.577
because the trial ADA appropriately said,
459
00:19:24.577 --> 00:19:26.760
"Let's have an inquiry because we wanna know
460
00:19:26.760 --> 00:19:30.147
how this is impacting all the other jurors,"
461
00:19:31.200 --> 00:19:33.210
but then the defense attorney doesn't want it,
462
00:19:33.210 --> 00:19:34.730
and the judge ultimately doesn't have it.
463
00:19:34.730 --> 00:19:36.990
Is that why you're looking for a remand?
464
00:19:36.990 --> 00:19:38.310
So that was why I asked for it
465
00:19:38.310 --> 00:19:42.690
in the alternative for remand, because I don't,
466
00:19:42.690 --> 00:19:44.160
the Sixth Amendment isn't at play here
467
00:19:44.160 --> 00:19:45.870
because this is a claim of invited error.
468
00:19:45.870 --> 00:19:48.300
So we're under the Massachusetts constitution here.
469
00:19:48.300 --> 00:19:52.680
But I think that if you think there's a possibility
470
00:19:52.680 --> 00:19:55.620
of a substantial risk, we should do the inquiry
471
00:19:55.620 --> 00:19:56.550
that the defendant objected to
472
00:19:56.550 --> 00:19:59.220
and that the Commonwealth has been asking,
473
00:19:59.220 --> 00:20:01.020
was asking for to begin with.
474
00:20:01.020 --> 00:20:03.540
The defendant requested and received
475
00:20:03.540 --> 00:20:04.950
juror contact information.
476
00:20:04.950 --> 00:20:08.700
According to the status reports filed in the appeals court,
477
00:20:08.700 --> 00:20:10.410
he investigated a motion for a new trial
478
00:20:10.410 --> 00:20:15.120
and sent an investigator to speak with the jurors,
479
00:20:15.120 --> 00:20:17.850
and then no motion for a new trial was filed.
480
00:20:17.850 --> 00:20:19.620
And I think that that's probably
481
00:20:19.620 --> 00:20:22.560
because what we strongly suspect,
482
00:20:22.560 --> 00:20:24.600
and what I think the record shows,
483
00:20:24.600 --> 00:20:26.160
is that there was no racism in the room,
484
00:20:26.160 --> 00:20:27.870
and it was Juror Number 2 was a problem.
485
00:20:27.870 --> 00:20:32.870
But if we wanna go back, if the court says,
486
00:20:33.337 --> 00:20:36.360
"Look, there's a problem here that needs to be addressed,"
487
00:20:36.360 --> 00:20:39.600
Commonwealth has preserved the right to have that inquiry,
488
00:20:39.600 --> 00:20:40.917
and in Laguerre-
It's kinda late,
489
00:20:40.917 --> 00:20:42.720
isn't it kind of late to have an inquiry,
490
00:20:42.720 --> 00:20:45.690
was it four years later, of jurors?
491
00:20:45.690 --> 00:20:47.630
I don't think that it is because this is,
492
00:20:47.630 --> 00:20:50.670
this was a, I mean, this was a dispute
493
00:20:50.670 --> 00:20:55.140
that nearly came to blows where one said to the other,
494
00:20:55.140 --> 00:20:58.380
Juror Number 4 said, "He was trying to get me to punch him."
495
00:20:58.380 --> 00:21:03.337
And Juror Number 2 said that he said,
496
00:21:03.337 --> 00:21:04.590
"Let's go to the parking lot,
497
00:21:04.590 --> 00:21:07.350
and I'll be your, you know, for you."
498
00:21:07.350 --> 00:21:09.630
That was, he said, Juror Number 2 said
499
00:21:09.630 --> 00:21:10.950
that he told Juror Number 4 that-
500
00:21:10.950 --> 00:21:13.290
This is an inquiry into extraneous factors,
501
00:21:13.290 --> 00:21:14.370
like in McGowan.
502
00:21:14.370 --> 00:21:16.833
Correct, so this is, we're asking for,
503
00:21:18.452 --> 00:21:21.450
if the court is concerned of a substantial risk,
504
00:21:21.450 --> 00:21:23.550
Laguerre says you could remand for these.
505
00:21:23.550 --> 00:21:28.410
Now, that was a post-trial allegation of racism.
506
00:21:28.410 --> 00:21:31.050
But there's no reason it can't be,
507
00:21:31.050 --> 00:21:33.903
and I'm gonna bet that these jurors remember this.
508
00:21:34.890 --> 00:21:37.650
It seems a bit odd because of the procedural posture
509
00:21:37.650 --> 00:21:38.483
on the standard of review,
510
00:21:38.483 --> 00:21:39.720
right?
Right.
511
00:21:39.720 --> 00:21:40.860
There's either a substantial risk
512
00:21:40.860 --> 00:21:43.020
of miscarriage justice or there's not.
513
00:21:43.020 --> 00:21:44.280
Right.
Are you aware
514
00:21:44.280 --> 00:21:48.060
of an analogous case where when we're in that
515
00:21:48.060 --> 00:21:51.114
standard of review, we would be remanding
516
00:21:51.114 --> 00:21:53.400
for a hearing on whether...
517
00:21:53.400 --> 00:21:55.770
Well, so, you know, I don't think
518
00:21:55.770 --> 00:21:58.740
that there isn't case law on it
519
00:21:58.740 --> 00:22:00.330
because if the record is unclear,
520
00:22:00.330 --> 00:22:02.190
then there's no substantial risk.
521
00:22:02.190 --> 00:22:03.450
That is my question.
522
00:22:03.450 --> 00:22:05.700
Right, so if the record is unclear,
523
00:22:05.700 --> 00:22:07.560
then the defendant hasn't met his burden,
524
00:22:07.560 --> 00:22:08.640
and you can simply affirm.
525
00:22:08.640 --> 00:22:12.690
Now, he can still go and file a motion for a new trial,
526
00:22:12.690 --> 00:22:17.160
and that was the position that we've taken,
527
00:22:17.160 --> 00:22:19.050
that we certainly took by the time
528
00:22:19.050 --> 00:22:21.240
we were in arguments at the appeals court.
529
00:22:21.240 --> 00:22:23.580
Absolutely he can still file a motion for a new trial
530
00:22:23.580 --> 00:22:27.840
and raise that issue, but if the record is insufficient,
531
00:22:27.840 --> 00:22:30.390
it's the defendant's burden to make the record.
532
00:22:30.390 --> 00:22:33.420
And he specifically, and I would argue tactically,
533
00:22:33.420 --> 00:22:34.500
didn't make a record
534
00:22:34.500 --> 00:22:36.383
because it wouldn't have been good for him.
535
00:22:41.370 --> 00:22:42.360
If there are no further questions,
536
00:22:42.360 --> 00:22:43.860
I'm happy to rest on my brief.