-: Good morning, Your Honors.
Welcome to Northampton.
On behalf of Mr. Montgomery,
I'm going to ask the court
to do two things today in this case.
First, I'm going to ask the court
to put an end to these so-called CSI questions.
The court has been troubled ever since its first decision
concerning these type of questions in 2010.
And in Judge Georges' decision in 2022,
we came right to the line,
but yielded to the judicial discretion.
The questions, these so-called CSI questions,
as the friend of the court brief
put it so eloquently,
was a solution where there was no problem.
So that's my first ask.
My second ask is based on the manner in which
the deliberating jury was chosen
created an unfair, impermissible jury
that was unfairly skewed to the Commonwealth,
and actually reduced the burden of proof
that the Commonwealth had to prove.
And the problem that caused, the solution to that problem,
is for Mr. Montgomery to get a new trial.
-: Counsel, before we go too far in,
you don't really grapple
with the footnote in the appeals court decision.
And I'd like, at least as a threshold matter,
to figure out whether or not you had to determine
or demonstrate bias in order to raise this issue.
Because the case that the appeals court cites,
the Hampton case, that talks about,
you can't just say in the process,
if you're gonna claim structural error,
you've gotta demonstrate bias.
And do you have to show bias in this case?
Counsel: I don't think so, Your Honor.
-: And why not?
Because just specifically about that case,
it says you can't point to irregularities in the process
of picking the jury to demonstrate bias.
And it seems like that's exactly what you're saying here.
-: Well, what I was thinking of is actually
the Commonwealth's brief
when they cite to the Van Long case.
And the Van Long case held specifically
that if a single member
of a deliberating jury was not fair or impartial,
that really ends the discussion.
And under Van Long,
and at page 32 of the Commonwealth's brief,
the defendant's entitled to a new trial.
Our view in looking at this process,
and mindful of the court's instructions
in the Williams case,
is that each and every time
a potential juror came to sidebar,
they were removed systematically
if they voiced two concerns.
One, the lack of forensic evidence.
And then subsequently,
after the judge instructed the Commonwealth
to at least tell the potential juror
that there would be eyewitness testimony,
testimony that this court has recognized
is somewhat problematic,
could they and would they convict?
And it's really the use of the word "convict"
in the Montgomery case
which distinguishes it from the court's prior holdings
in Gray and Perez, and in your case, the Brown case in 2022.
-: So if you go back for a moment,
you said something that I think is important.
So, in your view,
the defendant doesn't have to demonstrate
any prejudice here at all?
-: I don't believe he does.
I believe it's simply that the process crossed the line
and you had a deliberating jury
that was chosen in such a manner
that the impact raised due process concerns
because it lowered the burden of proof
that the Commonwealth would have to prove.
Justice Gaziano: Is it the same standard of review
whether or not the defense attorney objects?
-: Say that again, I'm sorry.
-: The standard of review,
it doesn't matter if the defense attorney objects?
Counsel: Well, we know there was no objection.
-: That's why I'm asking you the question.
Counsel: The point I'm making...
-: So what's the point of an objection then
if the defense attorney sat on his hands, or her hands?
-: Well, the problem is that on the second juror...
-: It doesn't know where the judge is the problem.
That's why we have objections.
-: I think the issue,
there's two ways to answer this question.
One, I think given the sidebar communication
set forth in the record
that any objection would've been futile,
since it was the judge who told the Commonwealth
that when they're asking questions of the potential jurors,
that they should at least be told...
-: It seems to me the issue in this case,
or the problem in this case,
and again, I'm a proponent of it,
but is attorney voir dire,
because when the judge is asking questions,
the judge can craft those questions
to get out that impermissible language.
Here, we see examples
of kind of free-flowing attorney voir dire,
where the prohibited phrase is slipped in sometimes,
but not other times.
-: I mean, I think it was one of your cases
when you were a trial court judge,
where you at least asked the question
that when there was some concerns raised
by a potential juror about whether or not
the fact that there was a lack of forensic evidence
was going to be a concern to them, you said,
well, I don't know if you used the word "despite,"
"But would that prevent you, however, from being,"
and then using the language of Williams.
Justice Gaziano: As long as you say "fair and impartial,"
you're basically immunized.
-: And once you used that, I mean, those are words
that this court has instructed in Williams.
I mean, when Judge Budd wrote that decision,
the court was acknowledging
that there had been some muddled communication
about what should or should not be said.
So after Williams, we have a pretty clear indication
that the mere fact that somebody brings,
I think the language in Williams was their "worldview,"
that they look at things through a certain world...
That's not what happened in Montgomery.
-: So as far as the standard of review goes,
along the lines of what Justice Georges is asking,
when we have, for instance, Batson-Soares issues,
and we have one prohibited inquiry,
we say, "Prejudicial, new trial."
Counsel: Right.
-: Because we have one juror who's been infected.
Here, what you are asking us to do is,
where there's no objection,
and only one juror who's seated
is asked about the ability to convict.
You want us to apply the same remedy
that we do in Batson-Soares?
Counsel: I do, and I don't think it was one juror.
-: No, it's the hypothetical, right?
Yeah, so if it was only one juror,
well, just like if there was one juror
where there was a violation of Batson-Soares,
that's all you need.
You want us to have the same rule
in this instance as we do in others?
-: I think it's warranted because for two reasons.
I think it's warranted, one, because there's no basis really
to have these so-called CSI questions.
We who practice in the trial court
have been troubled by these questions for a long time.
The court has been troubled.
There's no empirical evidence that the CSI effect is real.
And the normal Webster instructions
and the normal regular way
that a jury is impaneled would be sufficient.
-: What do we make of the fact
that so many members of the venire
actually answered the question affirmatively, though?
There were a lot of potential jurors who said,
"Yeah, I couldn't convict without forensic evidence."
-: I don't think it was ever quite that clear.
I think what they said was that
they had a reasonable expectation,
and this sort of comes into that,
the juror who is like Williams
who brings their life experiences.
So they bring their life experiences to the court.
They learn that this is a murder case,
and they think that they would expect
to have some type of forensic evidence presented to them
within the context of a murder case.
-: Well, we don't really know all of this.
We can only speculate because the judge didn't follow up,
which is part of your argument, I understand.
But we're left with this question of
what do we do about prejudice?
Justice Georges: Yeah, that's a big deal.
Could you indulge us please and say that
it's not structural and you do have to show prejudice,
because there's an issue here with that.
-: Well, the question,
I get it's a big deal and I agree with you.
I think what happened here,
as you look at the way the deliberating jury was chosen,
is that the burden of proof was lowered.
The evidence was previewed.
There were many times where the prosecutor said,
"Well, there won't be forensic evidence,"
but on the urging of the trial judge said,
"But there will be eyewitness testimony."
And then they got eyewitness testimony.
-: Well, let me ask you about that
because there's a specific reason why I'm interested in it.
Because we're talking and we're using the CSI effect
as if we're talking about all of these fancy,
you know, doodads and black lights
and all of these other things.
But that's not how the defense argued the case.
And I'm gonna point to you specifically
the language that I'm speaking of.
When the defense raised the issue
about the Bowden defense, it wasn't about CSI effect.
It was, and I'm reading from volume five at page 164,
"Mr. Brown: I did not make one.
I would request the Bowden instruction in this case
because I think the evidence suggests that the police,
I mean, we only heard from, I think, two police officers.
And as I understand it,
there was a great number of witnesses who were identified,
and the Commonwealth tried to present
some evidence of that today.
However, there's no evidence that the police sought out
a number of these other witnesses
who have been identified during the course of the trial,
who the witnesses identified to the police prior to trial
when they gave their statements back in May,
and when they testified back in June of 2018, Your Honor.
And I suggest to the court that
that's exactly what the Bowden instruction is for."
So they were arguing for Bowden
for failure to interview witnesses, not CSI.
And at the very end, during closing,
there's that one sentence where the defense says that,
"You can't convict here because of lack of forensics,"
that one sentence,
and spends the vast majority of what he's talking about,
how the witnesses were inconsistent and can't be believed,
not about all of this CSI stuff.
-: I think they were intermingled in the voir dire.
And the way the case unfolded at trial,
the focus became on the lack of further investigation
relative to other people who were in that,
what was described as a "chaotic scene" at the child's...
Justice Georges: How was that CSI?
It's not, particularly.
I mean, it's not.
Where they came together
is they came together in the voir dire,
at least in my opinion,
when the first question is being asked by the prosecutor,
I think even in prospective juror number one,
is whether or not you would need forensic evidence.
And that's when the judge interposed and said,
"Well, unless you tell them
there's going to be other evidence,
specifically eyewitness testimony,
it sounds like, from your question,
there is no other evidence."
So from that moment on,
the prosecutor's question at the sidebar
when interviewing potential deliberating jurors
mingled the eyewitness testimony evidence
that the judge had instructed with the forensic questions.
So it's a little unclear.
The CSI question allowed the prosecutor,
based on the holdings of this court up until through 2022,
to ask the question about the forensic evidence.
But when the judge started listening to the interplay
between the prosecutor and the potential juror,
the judge instructed to at least add
the eyewitness testimony.
-: But if we found prejudice in,
if we found that you had to show prejudice,
and then we went through the four factors
of how prejudice manifests,
and we talked about the nature of the error,
and the significance of the error,
whether it was central to the trial,
it wasn't tried that way.
Don't we have to look at how you tried the case
and the fact that this wasn't central to the defense?
And the Bowden instruction was requested
for the police not interviewing witnesses
that potentially were available to be interviewed.
So how do you go through the framework,
the metric that we're going to use
if we say you've gotta demonstrate prejudice?
-: I think the answer to that question is,
they were told, "they" being the deliberating juror,
they were all told before they were sat
that there's going to be eyewitness testimony.
And the judge essentially put his stamp of approval
on that type of testimony.
So as the friend of the court brief pointed out,
the Gomes instruction nine days later
was really almost an afterthought.
They were primed to believe that eyewitness testimony
would be sufficient to convict.
And there was eyewitness testimony.
So that was where it mingled from the CSI question,
which was, I don't know what was in the mind
of the Commonwealth prosecutor
when he began to ask that question, but it got mingled,
and we had a deliberating jury sat
that really confirmed two things.
They confirmed, one,
that they didn't need forensic evidence,
'cause if they thought that they did,
they were disqualified.
And two, they had no qualms about convicting
on eyewitness testimony,
because if they indicated that they did,
they also were disqualified.
And under the circumstances,
you had a deliberating jury of 12
that had pre-committed to convict on eyewitness testimony.
And for that reason,
I don't believe that the prejudice analysis
has to go any further than it went in the Van Long case.
-: Counsel, I have a question.
You were going to give two reasons why we should treat this
as if it were like a Batson-Soares issue with the jury.
You gave the first one,
which was there's no basis in science as to the CSI effect.
What was the second?
-: The second is that based on
what was actually asked of these jurors,
I would say there was two points I was gonna ask you to do.
One, to finally get to the point where you determine
that these so-called CSI questions are unnecessary.
And two, as applied in Mr. Montgomery's case,
to give him a new trial with a fair and impartial jury.
-: You've got multiple eyewitness identifications here
by people who know the defendant, right?
-: As was pointed out at the trial
and in the appellate briefs that were filed
both at the appeals court and in the FAR petition,
many of the witnesses who testified,
I believe were given cooperation agreements
and lesser sentences,
and that goes back to what Judge Georges was asking me about
in terms of the lack of follow up on other people
at this birthday party.
-: It just seems like science is not the issue here.
Forensics is not the issue.
Again, because we're not dealing with stranger ID,
we're dealing with whether the IDs are manufactured
from prejudice or vengeance, right?
We're not dealing with science problems.
-: That's the way the case came out.
I agree, it did.
It did not become an argument about the lack of forensics.
-: Right, so like the best case for prejudice
would be a Bowden instruction, a Bowden argument at least,
where the defense is you didn't fingerprint,
you didn't DNA, et cetera, correct?
That'd be clearer prejudice? -: I agree.
-: Okay, thank you. -: Thank you.
Justice Budd: Attorney Shephard-Brick.
-: May it please the court, David Shephard-Brick
on behalf of the Commonwealth.
Not only was this case only about eyewitnesses,
and not about science,
but the trial judge in his decision on the motion
for a new trial said that the evidence was overwhelming.
-: If the case was not about science,
why would you ask the jurors
whether they can convict in the absence of science?
-: Because, and I think it's beared out
in the jurors' responses to the question,
is some of them said, "For a conviction,
I can't do it without DNA or fingerprints."
And the concern was that,
and I think their answers show,
the ones who were excused show,
that it was a legitimate concern that
yeah, we're gonna put on eyewitnesses
who certainly had credibility problems on paper.
The trial judge who observed them
said they were very credible.
And I would agree that, I was there, they were.
Some of 'em were very credible.
-: So they're asked a hypothetical question
that probably looks improper.
And then they're excluded
because of the way they answered the hypothetical question.
Don't we wanna at least
narrow down the kinds of questions you can ask?
This one crossed the line, right?
You shouldn't be asking, "Can you convict?"
-: You know, I don't think that that's necessarily true.
The court said in Andrade
that just because a juror could convict,
it doesn't mean that they will.
I agree that if you said to the juror,
"Will you convict this defendant
if we present eyewitness testimony?"
And they said, "No," and then they were kicked,
then you'd have a problem,
'cause you are violating rule six,
you're asking them to commit to a verdict.
Here, it's asking, and I agree,
there probably could have been a better phrasing,
it's usually asked as, you know,
"Would it affect your ability to be fair and impartial?
Would you be able to hold the Commonwealth to its burden?"
But I don't think that it is necessarily improper
to ask a juror if they would have trouble
following the judge's instructions on reasonable doubt
if there is no scientific evidence.
-: [Justice Wendlandt] But that wasn't the question here.
-: No, that wasn't the question.
And it could have been phrased that way
and probably should have been phrased that way.
But I don't think that you have...
-: [Justice Wendlandt] So are you defending
the way that this question was asked?
-: I'm defending the way that these questions
should be allowed to be asked in a certain form.
-: [Justice Wendlandt] That's the current law,
but what about this case?
-: So in this case, I think that the questions,
I think the jurors' answers to the questions
show that in this case it didn't have an impact.
-: But that's a different issue, right?
The questions that were asked by the prosecutor
were improper.
-: I don't necessarily agree with that
because I don't think that it violates the rule,
'cause they weren't committing to a verdict.
They were asked if they would be able to,
if they found the other evidence compelling and credible.
Justice Gaziano: So you don't concede,
when the prohibited "convict" word is used
that that's an improper voir dire question?
-: I don't think that there's the magic word
that automatically makes it an improper question.
I think it's probably a word that's better not used.
But I don't think that it automatically makes it improper.
-: If the combination of the judge's addition
and the prosecutor's question frames it as, can you convict,
basically, are you comfortable convicting
in a case in which
you're only going to get eyewitness identification?
That really can't be a good formulation of this, right?
We gotta stop that question, don't we?
-: I mean, again, I agree
that the question could have been better phrased.
I don't think it was over the line,
but I do think that in the future
it probably shouldn't get asked that way.
-: Well, can we just talk about that for a second?
So the question, as phrased to most of the jurors, was,
can you convict on eyewitness testimony alone,
without forensics?
The only intelligent answer to that question is,
it depends, right?
Because it depends on the strength
of the evidence that's presented.
But the question was not asked in any way
that left that space.
And so what we had were jurors who, some of them,
struggled with the question,
'cause the answer is it depends,
and they were uncomfortable
and they responded appropriately and said,
"Well, I don't know,"
'cause it depends on what the evidence is.
And then other jurors just went straight ahead
and said, "No, I can convict."
So deal with those jurors, please.
-: So, I mean, I think that...which jurors?
-: The jurors who did not see the nuance in the question
and just went, "Yes, I can convict."
-: Well, and I don't know
that they didn't see the nuance in the question,
because what the trial judge said in his order
denying the motion for a new trial is,
"I watched all these jurors during impanelment.
None of them committed to a verdict."
So the fact that one of them might have said yes,
doesn't mean they didn't pause,
think about it, and go, "Yes."
And I think that's fine.
-: [Justice Wendlandt] Let's assume that we think
the way the question was phrased was improper.
Counsel: Okay.
-: [Justice Wendlandt] Why not treat this
as we treat Batson-Soares?
-: Because the having of this particular opinion
is not particular to some specialized
or protected group in the community.
Having the belief that the Commonwealth
must present CSI evidence doesn't...
I don't think the peremptory challenges here are at issue,
because if the prosecutor asked the question
and bumps them for a peremptory challenge: no harm, no foul.
The question is whether or not a for cause challenge
is treated as an additional Commonwealth peremptory.
And the great weight of authority,
I think the DC circuit
is the only case that I was able to find,
everybody else has said that
the right of selecting of a jury is one of exclusion.
You don't get to say, "I want that juror."
All you get to say is, "I don't want that juror."
-: I think you're absolutely right that, in general,
across the board, we assume that the jurors
who are seated to replace the wrongly struck jurors
are fair and impartial.
But the argument being made here
is that there was a systemic effect
on the selection of this jury
because they were all subjected to this question.
So what do you think is the strongest,
most analogous case for the proposition
that there's no systemic effect here?
-: Well, I mean, I think it goes to,
I mean, I point again to the Andrade case,
where the question was,
the court said, just because they say they can,
doesn't mean they will.
-: Well, that question was totally different
because it built in the qualifiers
about the burden of proof and so forth.
I'm asking a prejudiced question,
about the question that Justice Wendlandt was asking,
which is what is your best case for the proposition
where all of the jurors were filtered through this question
that all of them heard
and only the ones who sort of passed the test
were put on the jury.
What's your strongest case
for the prejudice analysis here?
-: Well, I mean,
I think it's Perez, I think it's Young.
I think in both of those cases you have similar questions.
And so you're filtering everybody.
In all of those cases,
you're asking everybody the questions.
And in those cases, you're not dealing with a situation
where, I mean, 'cause I think in Andrade
it was just a couple of the jurors
who were filtered through that question.
Justice Kafker: But it's a different question.
-: It is a different question.
But the issue is, I mean,
answering that specific question, in the other cases,
everybody was filtered through that question.
So I don't think that
that necessarily creates a systemic issue.
Also, you have a defense attorney who's in the room,
who's hearing me say this,
and isn't worried that they're committing to a verdict.
-: But is your best argument that Batson-Soares
is focused on discrimination,
so we have a different,
'cause normally, if you waive,
we move to substantial risk.
Your argument is, my understanding of your argument is,
it's waived.
So you're doing a substantial risk analysis.
-: Correct. -: And you don't need
to wrestle with whether this is comparable to Batson-Soares
'cause it's different.
-: Right, it's different from Batson-Soares,
because I think in the case where,
because I would argue that a peremptory challenge
in this case, based on the answer to the question,
doesn't get the defendant anywhere,
because you can use a peremptory challenge
for any reason other than a prohibited reason.
-: Can I ask, and again,
I should have done this right off,
have we extended the Batson-Soares approach
outside of, you know, protected classifications?
Have we ever done that before?
Counsel: Not that I'm aware of.
-: This would be the first case where we would have.
Counsel: Right.
-: We would have moved Batson-Soares
outside of race, for example.
-: Right.
In the Batson-Soares analysis, you are protecting the right
to a fair cross section of the community,
and the juror's right not to be excluded
based on an immutable characteristic.
-: So your argument's, essentially, okay,
we do normal waiver analysis,
and there's overwhelming evidence
of eyewitness testimony that this person,
by people who know the defendant, shot the guy to death.
Counsel: Correct.
-: Counsel, is that argument in your brief?
I didn't see an argument in your brief
that there was no substantial risk of miscarriage of justice
because the evidence here was overwhelming.
Was I just missing something that you seem to argue?
-: I did discuss it very,
I think it was maybe one sentence,
because the judge found that the evidence was overwhelming
and so it wasn't improper,
or there was no substantial risk.
-: On page 32 of your brief, you discussed
the substantial risk of miscarriage of justice standard.
And the way you discuss it is you say that,
"The defendant must show he was actually harmed,
and must show that at least one juror seated
was not fair and impartial.
And unless he can show that,
there's no substantial risk of miscarriage of justice."
So you seem to have sort of narrowed
the substantial risk of miscarriage of justice inquiry
to just the question of
is there a substantial risk of miscarriage of justice
because this jury was not fair and impartial?
Do you think that is the inquiry,
or is it the broader inquiry?
-: It's definitely the broader inquiry.
I would say that it has to be,
because that's the substantial risk standard is
we look at the case as a whole,
and we look at the way it was tried.
And in this it wasn't tried as a
"you should have done these tests,"
it was, "I don't believe these people,
one of them's a cooperating witness,
one of them's been given immunity."
That was the way the case was tried.
So ultimately I think when you take the holistic view,
which is required under the substantial risk standard,
you come to the result that there was no substantial risk.
Justice Kafker: I read what you were trying to do
was to show there's no prejudice whatsoever,
so you don't have to get to the language itself.
Counsel: Yes, right.
Justice Kafker: Which is a tougher road to hoe
than the simpler one, which is you got three persons
who saw him shoot him in the head
and you, you don't have a Bowden case.
-: Right, I mean, yes.
I think the point I was trying to make was simply that
this question in some form is proper and so that
the court shouldn't simply just get rid of it because...
-: Counsel, can I just make sure
I have at least your starting point.
So are you saying as a starting point,
asking this question wasn't structural error,
but you've gotta show prejudice?
You're saying it's not structural error at all?
Counsel: Yes, it's not structural error at all.
If the court has no more questions,
I'm happy to rest on my brief.