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Good morning, Your Honors.
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Welcome to Northampton.
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On behalf of Mr. Montgomery,
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I'm going to ask the court
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to do two things today in this case.
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First, I'm going to ask the court
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to put an end to these so-called CSI questions.
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The court has been troubled ever since its first decision
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concerning these type of questions in 2010.
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And in Judge Georges' decision in 2022,
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we came right to the line,
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but yielded to the judicial discretion.
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The questions, these so-called CSI questions,
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as the friend of the court brief
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put it so eloquently,
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was a solution where there was no problem.
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So that's my first ask.
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My second ask is based on the manner in which
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the deliberating jury was chosen
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created an unfair, impermissible jury
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that was unfairly skewed to the Commonwealth,
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and actually reduced the burden of proof
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that the Commonwealth had to prove.
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And the problem that caused, the solution to that problem,
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is for Mr. Montgomery to get a new trial.
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Counsel, before we go too far in,
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you don't really grapple
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with the footnote in the appeals court decision.
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And I'd like, at least as a threshold matter,
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to figure out whether or not you had to determine
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or demonstrate bias in order to raise this issue.
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Because the case that the appeals court cites,
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the Hampton case, that talks about,
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you can't just say in the process,
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if you're gonna claim structural error,
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you've gotta demonstrate bias.
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And do you have to show bias in this case?
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I don't think so, Your Honor.
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And why not?
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Because just specifically about that case,
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it says you can't point to irregularities in the process
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of picking the jury to demonstrate bias.
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And it seems like that's exactly what you're saying here.
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Well, what I was thinking of is actually
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the Commonwealth's brief
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when they cite to the Van Long case.
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And the Van Long case held specifically
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that if a single member
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of a deliberating jury was not fair or impartial,
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that really ends the discussion.
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And under Van Long,
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and at page 32 of the Commonwealth's brief,
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the defendant's entitled to a new trial.
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Our view in looking at this process,
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and mindful of the court's instructions
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in the Williams case,
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is that each and every time
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a potential juror came to sidebar,
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they were removed systematically
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if they voiced two concerns.
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One, the lack of forensic evidence.
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And then subsequently,
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after the judge instructed the Commonwealth
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to at least tell the potential juror
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that there would be eyewitness testimony,
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testimony that this court has recognized
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is somewhat problematic,
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could they and would they convict?
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And it's really the use of the word "convict"
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in the Montgomery case
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which distinguishes it from the court's prior holdings
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in Gray and Perez, and in your case, the Brown case in 2022.
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So if you go back for a moment,
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you said something that I think is important.
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So, in your view,
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the defendant doesn't have to demonstrate
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any prejudice here at all?
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I don't believe he does.
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I believe it's simply that the process crossed the line
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and you had a deliberating jury
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that was chosen in such a manner
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that the impact raised due process concerns
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because it lowered the burden of proof
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that the Commonwealth would have to prove.
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Is it the same standard of review
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whether or not the defense attorney objects?
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Say that again, I'm sorry.
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The standard of review,
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it doesn't matter if the defense attorney objects?
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Well, we know there was no objection.
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That's why I'm asking you the question.
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The point I'm making...
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So what's the point of an objection then
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if the defense attorney sat on his hands, or her hands?
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Well, the problem is that on the second juror...
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It doesn't know where the judge is the problem.
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That's why we have objections.
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I think the issue,
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there's two ways to answer this question.
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One, I think given the sidebar communication
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set forth in the record
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that any objection would've been futile,
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since it was the judge who told the Commonwealth
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that when they're asking questions of the potential jurors,
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that they should at least be told...
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It seems to me the issue in this case,
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or the problem in this case,
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and again, I'm a proponent of it,
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but is attorney voir dire,
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because when the judge is asking questions,
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the judge can craft those questions
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to get out that impermissible language.
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Here, we see examples
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of kind of free-flowing attorney voir dire,
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where the prohibited phrase is slipped in sometimes,
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but not other times.
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I mean, I think it was one of your cases
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when you were a trial court judge,
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where you at least asked the question
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that when there was some concerns raised
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by a potential juror about whether or not
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the fact that there was a lack of forensic evidence
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was going to be a concern to them, you said,
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well, I don't know if you used the word "despite,"
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"But would that prevent you, however, from being,"
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and then using the language of Williams.
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As long as you say "fair and impartial,"
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you're basically immunized.
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And once you used that, I mean, those are words
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that this court has instructed in Williams.
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I mean, when Judge Budd wrote that decision,
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the court was acknowledging
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that there had been some muddled communication
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about what should or should not be said.
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So after Williams, we have a pretty clear indication
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that the mere fact that somebody brings,
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I think the language in Williams was their "worldview,"
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that they look at things through a certain world...
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That's not what happened in Montgomery.
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So as far as the standard of review goes,
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along the lines of what Justice Georges is asking,
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when we have, for instance, Batson-Soares issues,
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and we have one prohibited inquiry,
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we say, "Prejudicial, new trial."
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Right.
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Because we have one juror who's been infected.
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Here, what you are asking us to do is,
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where there's no objection,
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and only one juror who's seated
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is asked about the ability to convict.
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You want us to apply the same remedy
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that we do in Batson-Soares?
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I do, and I don't think it was one juror.
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No, it's the hypothetical, right?
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Yeah, so if it was only one juror,
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well, just like if there was one juror
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where there was a violation of Batson-Soares,
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that's all you need.
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You want us to have the same rule
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in this instance as we do in others?
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I think it's warranted because for two reasons.
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I think it's warranted, one, because there's no basis really
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to have these so-called CSI questions.
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We who practice in the trial court
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have been troubled by these questions for a long time.
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The court has been troubled.
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There's no empirical evidence that the CSI effect is real.
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And the normal Webster instructions
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and the normal regular way
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that a jury is impaneled would be sufficient.
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What do we make of the fact
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that so many members of the venire
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actually answered the question affirmatively, though?
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There were a lot of potential jurors who said,
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"Yeah, I couldn't convict without forensic evidence."
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I don't think it was ever quite that clear.
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I think what they said was that
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they had a reasonable expectation,
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and this sort of comes into that,
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the juror who is like Williams
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who brings their life experiences.
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So they bring their life experiences to the court.
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They learn that this is a murder case,
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and they think that they would expect
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to have some type of forensic evidence presented to them
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within the context of a murder case.
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Well, we don't really know all of this.
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We can only speculate because the judge didn't follow up,
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which is part of your argument, I understand.
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But we're left with this question of
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what do we do about prejudice?
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Yeah, that's a big deal.
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Could you indulge us please and say that
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it's not structural and you do have to show prejudice,
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because there's an issue here with that.
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Well, the question,
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I get it's a big deal and I agree with you.
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I think what happened here,
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as you look at the way the deliberating jury was chosen,
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is that the burden of proof was lowered.
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The evidence was previewed.
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There were many times where the prosecutor said,
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"Well, there won't be forensic evidence,"
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but on the urging of the trial judge said,
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"But there will be eyewitness testimony."
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And then they got eyewitness testimony.
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Well, let me ask you about that
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because there's a specific reason why I'm interested in it.
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Because we're talking and we're using the CSI effect
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as if we're talking about all of these fancy,
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you know, doodads and black lights
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and all of these other things.
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But that's not how the defense argued the case.
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And I'm gonna point to you specifically
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the language that I'm speaking of.
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When the defense raised the issue
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about the Bowden defense, it wasn't about CSI effect.
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It was, and I'm reading from volume five at page 164,
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"Mr. Brown: I did not make one.
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I would request the Bowden instruction in this case
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because I think the evidence suggests that the police,
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I mean, we only heard from, I think, two police officers.
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And as I understand it,
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there was a great number of witnesses who were identified,
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and the Commonwealth tried to present
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some evidence of that today.
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However, there's no evidence that the police sought out
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a number of these other witnesses
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who have been identified during the course of the trial,
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who the witnesses identified to the police prior to trial
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when they gave their statements back in May,
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and when they testified back in June of 2018, Your Honor.
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And I suggest to the court that
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that's exactly what the Bowden instruction is for."
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So they were arguing for Bowden
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for failure to interview witnesses, not CSI.
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And at the very end, during closing,
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there's that one sentence where the defense says that,
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"You can't convict here because of lack of forensics,"
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that one sentence,
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and spends the vast majority of what he's talking about,
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how the witnesses were inconsistent and can't be believed,
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not about all of this CSI stuff.
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I think they were intermingled in the voir dire.
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And the way the case unfolded at trial,
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the focus became on the lack of further investigation
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relative to other people who were in that,
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what was described as a "chaotic scene" at the child's...
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How was that CSI?
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It's not, particularly.
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I mean, it's not.
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Where they came together
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is they came together in the voir dire,
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at least in my opinion,
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when the first question is being asked by the prosecutor,
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I think even in prospective juror number one,
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is whether or not you would need forensic evidence.
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And that's when the judge interposed and said,
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"Well, unless you tell them
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there's going to be other evidence,
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specifically eyewitness testimony,
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it sounds like, from your question,
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there is no other evidence."
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So from that moment on,
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the prosecutor's question at the sidebar
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when interviewing potential deliberating jurors
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mingled the eyewitness testimony evidence
268
00:13:09.480 --> 00:13:13.980
that the judge had instructed with the forensic questions.
269
00:13:13.980 --> 00:13:15.963
So it's a little unclear.
270
00:13:17.760 --> 00:13:20.733
The CSI question allowed the prosecutor,
271
00:13:21.840 --> 00:13:26.700
based on the holdings of this court up until through 2022,
272
00:13:26.700 --> 00:13:29.850
to ask the question about the forensic evidence.
273
00:13:29.850 --> 00:13:34.110
But when the judge started listening to the interplay
274
00:13:34.110 --> 00:13:37.320
between the prosecutor and the potential juror,
275
00:13:37.320 --> 00:13:40.350
the judge instructed to at least add
276
00:13:40.350 --> 00:13:42.060
the eyewitness testimony.
277
00:13:42.060 --> 00:13:45.390
But if we found prejudice in,
278
00:13:45.390 --> 00:13:48.090
if we found that you had to show prejudice,
279
00:13:48.090 --> 00:13:50.160
and then we went through the four factors
280
00:13:50.160 --> 00:13:52.770
of how prejudice manifests,
281
00:13:52.770 --> 00:13:55.500
and we talked about the nature of the error,
282
00:13:55.500 --> 00:13:57.990
and the significance of the error,
283
00:13:57.990 --> 00:13:59.460
whether it was central to the trial,
284
00:13:59.460 --> 00:14:00.900
it wasn't tried that way.
285
00:14:00.900 --> 00:14:04.350
Don't we have to look at how you tried the case
286
00:14:04.350 --> 00:14:07.680
and the fact that this wasn't central to the defense?
287
00:14:07.680 --> 00:14:10.410
And the Bowden instruction was requested
288
00:14:10.410 --> 00:14:12.900
for the police not interviewing witnesses
289
00:14:12.900 --> 00:14:15.720
that potentially were available to be interviewed.
290
00:14:15.720 --> 00:14:20.010
So how do you go through the framework,
291
00:14:20.010 --> 00:14:21.900
the metric that we're going to use
292
00:14:21.900 --> 00:14:25.320
if we say you've gotta demonstrate prejudice?
293
00:14:25.320 --> 00:14:28.653
I think the answer to that question is,
294
00:14:30.325 --> 00:14:33.120
they were told, "they" being the deliberating juror,
295
00:14:33.120 --> 00:14:36.900
they were all told before they were sat
296
00:14:36.900 --> 00:14:41.520
that there's going to be eyewitness testimony.
297
00:14:41.520 --> 00:14:46.470
And the judge essentially put his stamp of approval
298
00:14:46.470 --> 00:14:48.153
on that type of testimony.
299
00:14:49.296 --> 00:14:52.020
So as the friend of the court brief pointed out,
300
00:14:52.020 --> 00:14:54.030
the Gomes instruction nine days later
301
00:14:54.030 --> 00:14:56.910
was really almost an afterthought.
302
00:14:56.910 --> 00:15:00.540
They were primed to believe that eyewitness testimony
303
00:15:00.540 --> 00:15:02.700
would be sufficient to convict.
304
00:15:02.700 --> 00:15:05.730
And there was eyewitness testimony.
305
00:15:05.730 --> 00:15:08.970
So that was where it mingled from the CSI question,
306
00:15:08.970 --> 00:15:11.040
which was, I don't know what was in the mind
307
00:15:11.040 --> 00:15:12.990
of the Commonwealth prosecutor
308
00:15:12.990 --> 00:15:16.830
when he began to ask that question, but it got mingled,
309
00:15:16.830 --> 00:15:19.510
and we had a deliberating jury sat
310
00:15:20.430 --> 00:15:22.590
that really confirmed two things.
311
00:15:22.590 --> 00:15:24.033
They confirmed, one,
312
00:15:24.930 --> 00:15:26.670
that they didn't need forensic evidence,
313
00:15:26.670 --> 00:15:29.100
'cause if they thought that they did,
314
00:15:29.100 --> 00:15:30.690
they were disqualified.
315
00:15:30.690 --> 00:15:34.410
And two, they had no qualms about convicting
316
00:15:34.410 --> 00:15:35.970
on eyewitness testimony,
317
00:15:35.970 --> 00:15:38.670
because if they indicated that they did,
318
00:15:38.670 --> 00:15:40.770
they also were disqualified.
319
00:15:40.770 --> 00:15:42.360
And under the circumstances,
320
00:15:42.360 --> 00:15:45.240
you had a deliberating jury of 12
321
00:15:45.240 --> 00:15:49.170
that had pre-committed to convict on eyewitness testimony.
322
00:15:49.170 --> 00:15:50.460
And for that reason,
323
00:15:50.460 --> 00:15:52.980
I don't believe that the prejudice analysis
324
00:15:52.980 --> 00:15:57.090
has to go any further than it went in the Van Long case.
325
00:15:57.090 --> 00:15:58.650
Counsel, I have a question.
326
00:15:58.650 --> 00:16:01.740
You were going to give two reasons why we should treat this
327
00:16:01.740 --> 00:16:06.690
as if it were like a Batson-Soares issue with the jury.
328
00:16:06.690 --> 00:16:07.920
You gave the first one,
329
00:16:07.920 --> 00:16:11.760
which was there's no basis in science as to the CSI effect.
330
00:16:11.760 --> 00:16:12.760
What was the second?
331
00:16:13.855 --> 00:16:14.880
The second is that based on
332
00:16:14.880 --> 00:16:17.953
what was actually asked of these jurors,
333
00:16:17.953 --> 00:16:19.920
I would say there was two points I was gonna ask you to do.
334
00:16:19.920 --> 00:16:24.300
One, to finally get to the point where you determine
335
00:16:24.300 --> 00:16:27.750
that these so-called CSI questions are unnecessary.
336
00:16:27.750 --> 00:16:32.010
And two, as applied in Mr. Montgomery's case,
337
00:16:32.010 --> 00:16:35.973
to give him a new trial with a fair and impartial jury.
338
00:16:37.410 --> 00:16:42.410
You've got multiple eyewitness identifications here
339
00:16:42.600 --> 00:16:45.183
by people who know the defendant, right?
340
00:16:46.950 --> 00:16:49.230
As was pointed out at the trial
341
00:16:49.230 --> 00:16:51.420
and in the appellate briefs that were filed
342
00:16:51.420 --> 00:16:56.100
both at the appeals court and in the FAR petition,
343
00:16:56.100 --> 00:16:59.520
many of the witnesses who testified,
344
00:16:59.520 --> 00:17:03.510
I believe were given cooperation agreements
345
00:17:03.510 --> 00:17:04.983
and lesser sentences,
346
00:17:06.270 --> 00:17:09.390
and that goes back to what Judge Georges was asking me about
347
00:17:09.390 --> 00:17:13.956
in terms of the lack of follow up on other people
348
00:17:13.956 --> 00:17:15.510
at this birthday party.
349
00:17:15.510 --> 00:17:18.660
It just seems like science is not the issue here.
350
00:17:18.660 --> 00:17:20.670
Forensics is not the issue.
351
00:17:20.670 --> 00:17:25.050
Again, because we're not dealing with stranger ID,
352
00:17:25.050 --> 00:17:28.973
we're dealing with whether the IDs are manufactured
353
00:17:30.706 --> 00:17:33.420
from prejudice or vengeance, right?
354
00:17:33.420 --> 00:17:36.063
We're not dealing with science problems.
355
00:17:38.190 --> 00:17:39.940
That's the way the case came out.
356
00:17:41.790 --> 00:17:43.113
I agree, it did.
357
00:17:44.293 --> 00:17:48.120
It did not become an argument about the lack of forensics.
358
00:17:48.120 --> 00:17:50.730
Right, so like the best case for prejudice
359
00:17:50.730 --> 00:17:55.080
would be a Bowden instruction, a Bowden argument at least,
360
00:17:55.080 --> 00:17:57.210
where the defense is you didn't fingerprint,
361
00:17:57.210 --> 00:18:00.540
you didn't DNA, et cetera, correct?
362
00:18:00.540 --> 00:18:02.913
That'd be clearer prejudice?
I agree.
363
00:18:03.910 --> 00:18:05.840
Okay, thank you.
Thank you.
364
00:18:08.853 --> 00:18:12.270
Attorney Shephard-Brick.
365
00:18:13.140 --> 00:18:14.610
May it please the court, David Shephard-Brick
366
00:18:14.610 --> 00:18:16.110
on behalf of the Commonwealth.
367
00:18:17.010 --> 00:18:20.580
Not only was this case only about eyewitnesses,
368
00:18:20.580 --> 00:18:22.023
and not about science,
369
00:18:23.167 --> 00:18:26.130
but the trial judge in his decision on the motion
370
00:18:26.130 --> 00:18:28.930
for a new trial said that the evidence was overwhelming.
371
00:18:30.803 --> 00:18:33.960
If the case was not about science,
372
00:18:33.960 --> 00:18:36.870
why would you ask the jurors
373
00:18:36.870 --> 00:18:39.963
whether they can convict in the absence of science?
374
00:18:41.400 --> 00:18:43.590
Because, and I think it's beared out
375
00:18:43.590 --> 00:18:45.390
in the jurors' responses to the question,
376
00:18:45.390 --> 00:18:47.460
is some of them said, "For a conviction,
377
00:18:47.460 --> 00:18:50.970
I can't do it without DNA or fingerprints."
378
00:18:50.970 --> 00:18:53.943
And the concern was that,
379
00:18:54.993 --> 00:18:56.400
and I think their answers show,
380
00:18:56.400 --> 00:18:58.143
the ones who were excused show,
381
00:18:59.065 --> 00:19:00.360
that it was a legitimate concern that
382
00:19:00.360 --> 00:19:02.210
yeah, we're gonna put on eyewitnesses
383
00:19:03.184 --> 00:19:07.383
who certainly had credibility problems on paper.
384
00:19:08.400 --> 00:19:10.410
The trial judge who observed them
385
00:19:10.410 --> 00:19:11.400
said they were very credible.
386
00:19:11.400 --> 00:19:15.014
And I would agree that, I was there, they were.
387
00:19:15.014 --> 00:19:16.950
Some of 'em were very credible.
388
00:19:16.950 --> 00:19:19.980
So they're asked a hypothetical question
389
00:19:19.980 --> 00:19:22.950
that probably looks improper.
390
00:19:22.950 --> 00:19:25.140
And then they're excluded
391
00:19:25.140 --> 00:19:28.090
because of the way they answered the hypothetical question.
392
00:19:31.393 --> 00:19:33.000
Don't we wanna at least
393
00:19:33.000 --> 00:19:36.295
narrow down the kinds of questions you can ask?
394
00:19:36.295 --> 00:19:38.275
This one crossed the line, right?
395
00:19:38.275 --> 00:19:41.250
You shouldn't be asking, "Can you convict?"
396
00:19:41.250 --> 00:19:43.290
You know, I don't think that that's necessarily true.
397
00:19:43.290 --> 00:19:44.640
The court said in Andrade
398
00:19:44.640 --> 00:19:47.550
that just because a juror could convict,
399
00:19:47.550 --> 00:19:49.260
it doesn't mean that they will.
400
00:19:49.260 --> 00:19:50.767
I agree that if you said to the juror,
401
00:19:50.767 --> 00:19:52.440
"Will you convict this defendant
402
00:19:52.440 --> 00:19:54.090
if we present eyewitness testimony?"
403
00:19:54.090 --> 00:19:56.460
And they said, "No," and then they were kicked,
404
00:19:56.460 --> 00:19:57.480
then you'd have a problem,
405
00:19:57.480 --> 00:19:59.610
'cause you are violating rule six,
406
00:19:59.610 --> 00:20:01.500
you're asking them to commit to a verdict.
407
00:20:01.500 --> 00:20:04.680
Here, it's asking, and I agree,
408
00:20:04.680 --> 00:20:07.440
there probably could have been a better phrasing,
409
00:20:07.440 --> 00:20:09.637
it's usually asked as, you know,
410
00:20:09.637 --> 00:20:11.970
"Would it affect your ability to be fair and impartial?
411
00:20:11.970 --> 00:20:15.090
Would you be able to hold the Commonwealth to its burden?"
412
00:20:15.090 --> 00:20:20.090
But I don't think that it is necessarily improper
413
00:20:20.190 --> 00:20:23.580
to ask a juror if they would have trouble
414
00:20:23.580 --> 00:20:26.580
following the judge's instructions on reasonable doubt
415
00:20:26.580 --> 00:20:29.565
if there is no scientific evidence.
416
00:20:29.565 --> 00:20:30.720
[Justice Wendlandt] But that wasn't the question here.
417
00:20:30.720 --> 00:20:32.348
No, that wasn't the question.
418
00:20:32.348 --> 00:20:33.181
And it could have been phrased that way
419
00:20:33.181 --> 00:20:34.600
and probably should have been phrased that way.
420
00:20:34.600 --> 00:20:36.727
But I don't think that you have...
421
00:20:36.727 --> 00:20:38.790
[Justice Wendlandt] So are you defending
422
00:20:38.790 --> 00:20:40.883
the way that this question was asked?
423
00:20:42.540 --> 00:20:45.360
I'm defending the way that these questions
424
00:20:45.360 --> 00:20:48.603
should be allowed to be asked in a certain form.
425
00:20:49.471 --> 00:20:50.304
[Justice Wendlandt] That's the current law,
426
00:20:50.304 --> 00:20:52.290
but what about this case?
427
00:20:52.290 --> 00:20:56.043
So in this case, I think that the questions,
428
00:20:58.230 --> 00:21:00.660
I think the jurors' answers to the questions
429
00:21:00.660 --> 00:21:04.650
show that in this case it didn't have an impact.
430
00:21:04.650 --> 00:21:06.420
But that's a different issue, right?
431
00:21:06.420 --> 00:21:09.360
The questions that were asked by the prosecutor
432
00:21:09.360 --> 00:21:10.193
were improper.
433
00:21:11.340 --> 00:21:12.840
I don't necessarily agree with that
434
00:21:12.840 --> 00:21:16.980
because I don't think that it violates the rule,
435
00:21:16.980 --> 00:21:19.740
'cause they weren't committing to a verdict.
436
00:21:19.740 --> 00:21:22.620
They were asked if they would be able to,
437
00:21:22.620 --> 00:21:25.920
if they found the other evidence compelling and credible.
438
00:21:25.920 --> 00:21:27.864
So you don't concede,
439
00:21:27.864 --> 00:21:30.360
when the prohibited "convict" word is used
440
00:21:30.360 --> 00:21:32.490
that that's an improper voir dire question?
441
00:21:32.490 --> 00:21:35.640
I don't think that there's the magic word
442
00:21:35.640 --> 00:21:38.250
that automatically makes it an improper question.
443
00:21:38.250 --> 00:21:41.880
I think it's probably a word that's better not used.
444
00:21:41.880 --> 00:21:45.183
But I don't think that it automatically makes it improper.
445
00:21:46.484 --> 00:21:49.580
If the combination of the judge's addition
446
00:21:50.877 --> 00:21:54.980
and the prosecutor's question frames it as, can you convict,
447
00:21:56.560 --> 00:21:57.650
basically, are you comfortable convicting
448
00:21:57.650 --> 00:21:59.280
in a case in which
449
00:21:59.280 --> 00:22:01.983
you're only going to get eyewitness identification?
450
00:22:02.921 --> 00:22:06.750
That really can't be a good formulation of this, right?
451
00:22:06.750 --> 00:22:09.480
We gotta stop that question, don't we?
452
00:22:09.480 --> 00:22:11.100
I mean, again, I agree
453
00:22:11.100 --> 00:22:13.140
that the question could have been better phrased.
454
00:22:13.140 --> 00:22:16.020
I don't think it was over the line,
455
00:22:16.020 --> 00:22:18.780
but I do think that in the future
456
00:22:18.780 --> 00:22:20.310
it probably shouldn't get asked that way.
457
00:22:20.310 --> 00:22:21.810
Well, can we just talk about that for a second?
458
00:22:21.810 --> 00:22:25.740
So the question, as phrased to most of the jurors, was,
459
00:22:25.740 --> 00:22:30.740
can you convict on eyewitness testimony alone,
460
00:22:31.560 --> 00:22:32.400
without forensics?
461
00:22:32.400 --> 00:22:35.070
The only intelligent answer to that question is,
462
00:22:35.070 --> 00:22:36.180
it depends, right?
463
00:22:36.180 --> 00:22:37.740
Because it depends on the strength
464
00:22:37.740 --> 00:22:39.060
of the evidence that's presented.
465
00:22:39.060 --> 00:22:41.340
But the question was not asked in any way
466
00:22:41.340 --> 00:22:43.080
that left that space.
467
00:22:43.080 --> 00:22:45.660
And so what we had were jurors who, some of them,
468
00:22:45.660 --> 00:22:46.697
struggled with the question,
469
00:22:46.697 --> 00:22:48.420
'cause the answer is it depends,
470
00:22:48.420 --> 00:22:49.253
and they were uncomfortable
471
00:22:49.253 --> 00:22:51.517
and they responded appropriately and said,
472
00:22:51.517 --> 00:22:53.400
"Well, I don't know,"
473
00:22:53.400 --> 00:22:54.780
'cause it depends on what the evidence is.
474
00:22:54.780 --> 00:22:56.490
And then other jurors just went straight ahead
475
00:22:56.490 --> 00:22:58.167
and said, "No, I can convict."
476
00:22:59.250 --> 00:23:02.310
So deal with those jurors, please.
477
00:23:02.310 --> 00:23:06.330
So, I mean, I think that...which jurors?
478
00:23:06.330 --> 00:23:09.720
The jurors who did not see the nuance in the question
479
00:23:09.720 --> 00:23:12.780
and just went, "Yes, I can convict."
480
00:23:12.780 --> 00:23:14.010
Well, and I don't know
481
00:23:14.010 --> 00:23:17.227
that they didn't see the nuance in the question,
482
00:23:17.227 --> 00:23:19.800
because what the trial judge said in his order
483
00:23:19.800 --> 00:23:21.457
denying the motion for a new trial is,
484
00:23:21.457 --> 00:23:24.330
"I watched all these jurors during impanelment.
485
00:23:24.330 --> 00:23:26.610
None of them committed to a verdict."
486
00:23:26.610 --> 00:23:30.360
So the fact that one of them might have said yes,
487
00:23:30.360 --> 00:23:32.460
doesn't mean they didn't pause,
488
00:23:32.460 --> 00:23:35.310
think about it, and go, "Yes."
489
00:23:35.310 --> 00:23:37.295
And I think that's fine.
490
00:23:37.295 --> 00:23:38.910
[Justice Wendlandt] Let's assume that we think
491
00:23:39.803 --> 00:23:43.683
the way the question was phrased was improper.
492
00:23:44.546 --> 00:23:46.124
Okay.
493
00:23:46.124 --> 00:23:48.390
[Justice Wendlandt] Why not treat this
494
00:23:48.390 --> 00:23:51.540
as we treat Batson-Soares?
495
00:23:51.540 --> 00:23:55.500
Because the having of this particular opinion
496
00:23:55.500 --> 00:24:00.500
is not particular to some specialized
497
00:24:00.960 --> 00:24:03.093
or protected group in the community.
498
00:24:04.275 --> 00:24:05.340
Having the belief that the Commonwealth
499
00:24:05.340 --> 00:24:09.770
must present CSI evidence doesn't...
500
00:24:12.450 --> 00:24:15.090
I don't think the peremptory challenges here are at issue,
501
00:24:15.090 --> 00:24:16.770
because if the prosecutor asked the question
502
00:24:16.770 --> 00:24:19.773
and bumps them for a peremptory challenge: no harm, no foul.
503
00:24:21.240 --> 00:24:25.320
The question is whether or not a for cause challenge
504
00:24:25.320 --> 00:24:28.650
is treated as an additional Commonwealth peremptory.
505
00:24:28.650 --> 00:24:31.650
And the great weight of authority,
506
00:24:31.650 --> 00:24:32.880
I think the DC circuit
507
00:24:32.880 --> 00:24:35.610
is the only case that I was able to find,
508
00:24:35.610 --> 00:24:37.740
everybody else has said that
509
00:24:37.740 --> 00:24:40.860
the right of selecting of a jury is one of exclusion.
510
00:24:40.860 --> 00:24:42.900
You don't get to say, "I want that juror."
511
00:24:42.900 --> 00:24:45.990
All you get to say is, "I don't want that juror."
512
00:24:45.990 --> 00:24:47.910
I think you're absolutely right that, in general,
513
00:24:47.910 --> 00:24:50.130
across the board, we assume that the jurors
514
00:24:50.130 --> 00:24:53.190
who are seated to replace the wrongly struck jurors
515
00:24:53.190 --> 00:24:54.420
are fair and impartial.
516
00:24:54.420 --> 00:24:56.130
But the argument being made here
517
00:24:56.130 --> 00:24:58.230
is that there was a systemic effect
518
00:24:58.230 --> 00:24:59.910
on the selection of this jury
519
00:24:59.910 --> 00:25:02.430
because they were all subjected to this question.
520
00:25:02.430 --> 00:25:06.360
So what do you think is the strongest,
521
00:25:06.360 --> 00:25:08.350
most analogous case for the proposition
522
00:25:09.440 --> 00:25:12.480
that there's no systemic effect here?
523
00:25:12.480 --> 00:25:14.973
Well, I mean, I think it goes to,
524
00:25:16.260 --> 00:25:19.114
I mean, I point again to the Andrade case,
525
00:25:19.114 --> 00:25:20.264
where the question was,
526
00:25:21.780 --> 00:25:24.330
the court said, just because they say they can,
527
00:25:24.330 --> 00:25:25.470
doesn't mean they will.
528
00:25:25.470 --> 00:25:26.880
Well, that question was totally different
529
00:25:26.880 --> 00:25:28.590
because it built in the qualifiers
530
00:25:28.590 --> 00:25:30.360
about the burden of proof and so forth.
531
00:25:30.360 --> 00:25:32.760
I'm asking a prejudiced question,
532
00:25:32.760 --> 00:25:35.310
about the question that Justice Wendlandt was asking,
533
00:25:35.310 --> 00:25:37.830
which is what is your best case for the proposition
534
00:25:37.830 --> 00:25:41.400
where all of the jurors were filtered through this question
535
00:25:41.400 --> 00:25:43.410
that all of them heard
536
00:25:43.410 --> 00:25:45.840
and only the ones who sort of passed the test
537
00:25:45.840 --> 00:25:46.920
were put on the jury.
538
00:25:46.920 --> 00:25:48.610
What's your strongest case
539
00:25:52.867 --> 00:25:54.630
for the prejudice analysis here?
540
00:25:55.698 --> 00:25:56.531
Well, I mean,
541
00:25:58.050 --> 00:26:01.473
I think it's Perez, I think it's Young.
542
00:26:02.730 --> 00:26:06.633
I think in both of those cases you have similar questions.
543
00:26:08.525 --> 00:26:10.473
And so you're filtering everybody.
544
00:26:11.430 --> 00:26:12.263
In all of those cases,
545
00:26:12.263 --> 00:26:14.700
you're asking everybody the questions.
546
00:26:14.700 --> 00:26:19.170
And in those cases, you're not dealing with a situation
547
00:26:19.170 --> 00:26:21.300
where, I mean, 'cause I think in Andrade
548
00:26:21.300 --> 00:26:23.127
it was just a couple of the jurors
549
00:26:23.127 --> 00:26:25.890
who were filtered through that question.
550
00:26:25.890 --> 00:26:28.170
But it's a different question.
551
00:26:28.170 --> 00:26:30.096
It is a different question.
552
00:26:30.096 --> 00:26:31.650
But the issue is, I mean,
553
00:26:31.650 --> 00:26:35.160
answering that specific question, in the other cases,
554
00:26:35.160 --> 00:26:37.380
everybody was filtered through that question.
555
00:26:37.380 --> 00:26:39.940
So I don't think that
556
00:26:40.920 --> 00:26:43.950
that necessarily creates a systemic issue.
557
00:26:43.950 --> 00:26:46.080
Also, you have a defense attorney who's in the room,
558
00:26:46.080 --> 00:26:47.430
who's hearing me say this,
559
00:26:47.430 --> 00:26:50.343
and isn't worried that they're committing to a verdict.
560
00:26:51.816 --> 00:26:54.390
But is your best argument that Batson-Soares
561
00:26:54.390 --> 00:26:56.463
is focused on discrimination,
562
00:26:58.590 --> 00:26:59.670
so we have a different,
563
00:26:59.670 --> 00:27:02.070
'cause normally, if you waive,
564
00:27:02.070 --> 00:27:04.080
we move to substantial risk.
565
00:27:04.080 --> 00:27:07.440
Your argument is, my understanding of your argument is,
566
00:27:07.440 --> 00:27:08.273
it's waived.
567
00:27:08.273 --> 00:27:10.440
So you're doing a substantial risk analysis.
568
00:27:10.440 --> 00:27:12.600
Correct.
And you don't need
569
00:27:12.600 --> 00:27:16.496
to wrestle with whether this is comparable to Batson-Soares
570
00:27:16.496 --> 00:27:18.093
'cause it's different.
571
00:27:18.093 --> 00:27:19.380
Right, it's different from Batson-Soares,
572
00:27:19.380 --> 00:27:23.100
because I think in the case where,
573
00:27:23.100 --> 00:27:26.850
because I would argue that a peremptory challenge
574
00:27:26.850 --> 00:27:29.350
in this case, based on the answer to the question,
575
00:27:30.240 --> 00:27:32.610
doesn't get the defendant anywhere,
576
00:27:32.610 --> 00:27:34.230
because you can use a peremptory challenge
577
00:27:34.230 --> 00:27:37.170
for any reason other than a prohibited reason.
578
00:27:37.170 --> 00:27:38.460
Can I ask, and again,
579
00:27:38.460 --> 00:27:40.080
I should have done this right off,
580
00:27:40.080 --> 00:27:43.470
have we extended the Batson-Soares approach
581
00:27:43.470 --> 00:27:47.670
outside of, you know, protected classifications?
582
00:27:47.670 --> 00:27:49.350
Have we ever done that before?
583
00:27:49.350 --> 00:27:51.455
Not that I'm aware of.
584
00:27:51.455 --> 00:27:53.455
This would be the first case where we would have.
585
00:27:53.455 --> 00:27:54.288
Right.
586
00:27:54.288 --> 00:27:56.400
We would have moved Batson-Soares
587
00:27:56.400 --> 00:27:59.383
outside of race, for example.
588
00:27:59.383 --> 00:28:00.216
Right.
589
00:28:02.340 --> 00:28:05.970
In the Batson-Soares analysis, you are protecting the right
590
00:28:05.970 --> 00:28:08.700
to a fair cross section of the community,
591
00:28:08.700 --> 00:28:11.010
and the juror's right not to be excluded
592
00:28:11.010 --> 00:28:13.623
based on an immutable characteristic.
593
00:28:15.120 --> 00:28:17.490
So your argument's, essentially, okay,
594
00:28:17.490 --> 00:28:20.490
we do normal waiver analysis,
595
00:28:20.490 --> 00:28:22.290
and there's overwhelming evidence
596
00:28:22.290 --> 00:28:25.457
of eyewitness testimony that this person,
597
00:28:26.716 --> 00:28:29.812
by people who know the defendant, shot the guy to death.
598
00:28:29.812 --> 00:28:30.645
Correct.
599
00:28:30.645 --> 00:28:32.796
Counsel, is that argument in your brief?
600
00:28:32.796 --> 00:28:34.050
I didn't see an argument in your brief
601
00:28:34.050 --> 00:28:36.870
that there was no substantial risk of miscarriage of justice
602
00:28:36.870 --> 00:28:38.670
because the evidence here was overwhelming.
603
00:28:38.670 --> 00:28:42.120
Was I just missing something that you seem to argue?
604
00:28:42.120 --> 00:28:43.320
I did discuss it very,
605
00:28:43.320 --> 00:28:45.510
I think it was maybe one sentence,
606
00:28:45.510 --> 00:28:47.970
because the judge found that the evidence was overwhelming
607
00:28:47.970 --> 00:28:50.010
and so it wasn't improper,
608
00:28:50.010 --> 00:28:52.173
or there was no substantial risk.
609
00:28:53.760 --> 00:28:55.740
On page 32 of your brief, you discussed
610
00:28:55.740 --> 00:28:58.540
the substantial risk of miscarriage of justice standard.
611
00:28:59.401 --> 00:29:00.877
And the way you discuss it is you say that,
612
00:29:00.877 --> 00:29:03.300
"The defendant must show he was actually harmed,
613
00:29:03.300 --> 00:29:05.430
and must show that at least one juror seated
614
00:29:05.430 --> 00:29:07.560
was not fair and impartial.
615
00:29:07.560 --> 00:29:09.060
And unless he can show that,
616
00:29:09.060 --> 00:29:10.980
there's no substantial risk of miscarriage of justice."
617
00:29:10.980 --> 00:29:13.230
So you seem to have sort of narrowed
618
00:29:13.230 --> 00:29:15.480
the substantial risk of miscarriage of justice inquiry
619
00:29:15.480 --> 00:29:17.430
to just the question of
620
00:29:17.430 --> 00:29:20.070
is there a substantial risk of miscarriage of justice
621
00:29:20.070 --> 00:29:23.790
because this jury was not fair and impartial?
622
00:29:23.790 --> 00:29:25.230
Do you think that is the inquiry,
623
00:29:25.230 --> 00:29:27.483
or is it the broader inquiry?
624
00:29:28.680 --> 00:29:31.370
It's definitely the broader inquiry.
625
00:29:31.370 --> 00:29:34.980
I would say that it has to be,
626
00:29:34.980 --> 00:29:37.890
because that's the substantial risk standard is
627
00:29:37.890 --> 00:29:40.710
we look at the case as a whole,
628
00:29:40.710 --> 00:29:42.690
and we look at the way it was tried.
629
00:29:42.690 --> 00:29:47.617
And in this it wasn't tried as a
630
00:29:47.617 --> 00:29:49.260
"you should have done these tests,"
631
00:29:49.260 --> 00:29:51.150
it was, "I don't believe these people,
632
00:29:51.150 --> 00:29:52.770
one of them's a cooperating witness,
633
00:29:52.770 --> 00:29:54.807
one of them's been given immunity."
634
00:29:56.160 --> 00:29:58.200
That was the way the case was tried.
635
00:29:58.200 --> 00:30:01.320
So ultimately I think when you take the holistic view,
636
00:30:01.320 --> 00:30:04.650
which is required under the substantial risk standard,
637
00:30:04.650 --> 00:30:07.550
you come to the result that there was no substantial risk.
638
00:30:08.880 --> 00:30:10.140
I read what you were trying to do
639
00:30:10.140 --> 00:30:13.050
was to show there's no prejudice whatsoever,
640
00:30:13.050 --> 00:30:16.227
so you don't have to get to the language itself.
641
00:30:16.227 --> 00:30:18.465
Yes, right.
642
00:30:18.465 --> 00:30:21.036
Which is a tougher road to hoe
643
00:30:21.036 --> 00:30:23.640
than the simpler one, which is you got three persons
644
00:30:23.640 --> 00:30:25.657
who saw him shoot him in the head
645
00:30:27.256 --> 00:30:30.250
and you, you don't have a Bowden case.
646
00:30:30.250 --> 00:30:32.190
Right, I mean, yes.
647
00:30:32.190 --> 00:30:37.190
I think the point I was trying to make was simply that
648
00:30:38.610 --> 00:30:43.000
this question in some form is proper and so that
649
00:30:45.060 --> 00:30:48.180
the court shouldn't simply just get rid of it because...
650
00:30:48.180 --> 00:30:49.766
Counsel, can I just make sure
651
00:30:49.766 --> 00:30:51.840
I have at least your starting point.
652
00:30:51.840 --> 00:30:54.210
So are you saying as a starting point,
653
00:30:54.210 --> 00:30:58.050
asking this question wasn't structural error,
654
00:30:58.050 --> 00:30:59.310
but you've gotta show prejudice?
655
00:30:59.310 --> 00:31:00.990
You're saying it's not structural error at all?
656
00:31:00.990 --> 00:31:03.490
Yes, it's not structural error at all.
657
00:31:06.800 --> 00:31:08.640
If the court has no more questions,
658
00:31:08.640 --> 00:31:10.140
I'm happy to rest on my brief.