-: SJC-13663,
Commonwealth versus Karen Read.
-: Attorney Weinberg.
-: Good morning.
Chief Justice Associate Justices Martin Weinberg
on behalf of the appellant, Karen Read.
Today's appeal goes to the core issues
regarding double jeopardy protections
that safeguard defendants in this case, Ms. Read,
from the risk of reprosecution for the very same offenses
for which a prior jury was discharged
without manifest necessity without her consent,
and we now know,
based on the representations of four jurors,
indirectly a fifth,
no contradiction from any of the seven or eight other jurors
that there is a trustworthy corroborated
and we contest uncontradicted showing
that the prior jury reached a unanimous decision
to acquit Ms. Read of two of the three charges
and a multiple count indictment
that she was tried on in Norfolk County.
I wanna first-
-: What is the factual basis for your assertion
that the jurors who contacted the DA's office
are different people from the ones who contacted yours?
Weinberg: I don't have a basis to-
-: Okay, so when you say seven or eight, that's speculative?
-: The numbers are that four
of the jurors directly contacted the defense.
A fifth, there was indirect proof.
Wolohojian: Sure.
-: That a fifth juror contacted the defense,
a juror who could have been one of the five
or could have been one of the seven contact-
-: Okay, so you're not representing that it's more than five?
Weinberg: That's correct.
-: Okay.
-: What I am contesting is that there was
no manifest necessity for the mistrial, which is issue one.
There was no consent, issue two.
And that this court's jurisprudence strongly suggests
that the defendant has met her burden of production
as therefore entitled to a post-trial jury voir dire
by the trial court at which we contend the probability,
if not the certainty that that voir dire would result
in proof that there was a final and binding.
Gaziano: Mr. Weinberg,
you jump all the way to acquittal, correct?
-: Yes.
-: Under Rule 27, the verdict has to be unanimous.
Weinberg: Yes.
-: It has to be a general verdict returned
by the jury to the judge in open court,
and then the second element,
the jury has to file a verdict slip
with the clerk upon the return on the verdict,
which is a written recital of that same verdict.
Here, none of those elements were met.
Weinberg: Correct.
-: In the face of the juvenile case in the face of Taylor,
how is this an acquittal?
-: It's less a matter of labels.
I could call it judge, you know, a unanimous decision.
Gaziano: Well, you cite Taylor,
which is the case in Quincy
where the judge basically there was a procedural defect
in a complaint and the judge, for lack of a better term,
pull the plug on the case
and we had to decide what was that?
Was that procedural error
or was it a judgment on the merits?
And we decided whatever the judge said,
it was a procedural error.
-: Yes.
-: That case is an opposite to what? The situation.
So how do we say it was an acquittal without a verdict
and open court and no verdict slip?
-: I think you say that there was a unanimous decision made
by the jury that is subject to the proof
that would come from a post jury voir dire.
I don't contest that this court should just impose
an acquittal and substitute a verdict
because of the declarations.
Gaziano: Well, that's a double jeopardy claim, right?
-: Yes, it's at the core of double jeopardy,
that if we can prove,
and I suggest we've more than met the burden
of production of proof more than in many cases
where this court is remanded for jury voir dires.
That if that jury voir dire established,
which is what we contend it would if ordered
that this was a final and unanimous decision made
by the jurors, but they didn't announce it.
-: The post verdict inquiries is usually
or exclusively limited to extraneous information
in front of the jury, charges of racism
in the jury room, et cetera.
Here, do you want us to carve out
a new exception to that rule?
-: I think it's an extension of prior precedents.
Fiddler talks about not establishing inflexible rules
that would expense justice
at the price of certitude.
In Fiddler, there was evidence from the jurors
that there was evidence received by a jury
that didn't come from trial evidence, so that was-
-: Doesn't fiddler caution to not inquire into the,
you know, to not intrude into the sanctity
of the deliberative process as well.
Weinberg: It does.
-: Absent this extraneous influence.
But the influence in this case is not extraneous.
It has to do with the very deliberations that occurred.
Correct?
-: I would argue that it has to do with the results
of those deliberations and that a carefully set
of questions proceeded by an instruction a voir dire jury,
we don't want you to disclose why you reached the result
or the content of your processes,
but we want to ask you about a result.
Did you vote on count one? How did you vote?
-: You seek to impeach the written communication
by the foreperson, correct?
Weinberg: I'm sorry, judge.
-: You seek to impeach the written communication
of the foreperson, correct?
-: I would say that the recent jury declarations demonstrated
that there was facial ambiguity in those communications.
Yes, they related to a lack of unanimity
to a deadlock about charges,
but count two by itself read vertically,
had multiple charges.
Horizontally, there were three separate counts.
There was ambiguity.
The trial court didn't realize it,
the trial court errored in not allowing
what Taylor and Steward mandate as imperatives
before there was a ruling of manifest necessity.
No opportunity for a defense lawyer
to make arguments about options
to the declaration of mistrial.
And I contest that there were
at least three viable options that Steward Taylor
and all the cases of this court mandate be,
quote, carefully considered, carefully considered.
-: You've got an exhausted jury writing
this very eloquent message saying, we haven't been a...
You know, we've done our best,
we haven't been able to reach a verdict on the charges.
There's no inkling in that,
that they've reached verdicts on charges
or that this only relates to the second charge, right?
-: Facially, there was the words charges and a word,
the words in general-
-: But again, there's no inkling that
of what's gonna happen with this motion
for new trial, right?
Everyone thinks the jury's done its best,
it's exhausted, it's tried every option and we're all...
Everyone's resigned to trying the case again.
I understand something happens later,
but at least at that point, is it really a mistrial?
I mean, is there an error to declare a mistrial?
-: I would respectfully disagree that everybody concurred
that there was only one reading of this note
when the defense had no opportunity despite
the clear jurisprudence mandating
that they be given an opportunity to be heard.
-: Did the defense have an opportunity
when there was a discussion about scheduling
after the jury was sent into the room?
-: Once the judge discharged the jury,
once the judge thanked them and said that the case is over,
the failure to make an objection, it was futile.
It was unnecessary.
-: What about the case of Commonwealth versus Enid Brown,
where the jury was sent, the jury goofed, essentially.
There was a miscommunication between the court
and you know the case.
Weinberg: Yeah. -: The jury was discharged,
sentenced to the jury room,
and then we said it wasn't ever to bring the jury back
after discharge to clarify the verdict.
-: And had the jurors that assigned dec...
Or made these representations starting
the very day after the announcement of the mistrial,
if they had told the judge-
-: I guess the point I'm asking Mr. Weinberg
is there was time period and I get your point
that it was hasty to not have consulted with the attorneys
before bringing the jury in,
but be that as it may after the discharge of the jury,
I'll talk to you later as most judges do,
the lawyers then talk about a conference,
scheduling conference in time in August?
Wasn't there an opportunity at that point
for the attorney to object and say,
"This is what should happen. These are my thoughts."
-: There was an opportunity but not a responsibility,
the law in this case, starting 39 years ago,
a steward places the heavy burden on the commonwealth,
which wants to reprosecute a citizen
in the face of the decision
of the first jury to recommend alternatives to the judge.
And you know, the trial judge found consent, you know,
in part based on the failure to make an objection.
-: And I think we cut you off when you said
there were three things that could have happened.
Could you please tell us what those are?
-: Yeah, one is the trial judge receiving this note
and remember didn't read the note to the defense,
didn't give them an opportunity to be heard,
brought said, bring the jury in,
the jury comes in seconds later, 30 seconds.
If the court were to look at the video,
which has been relied on by the my brother,
as well as the trial court.
The judge could have said, "I've received this note.
Does it relate to all or just some of the charges?"
That's not a coercive question.
It has no capacity to coerce, you know,
the jury into redeliberating,
it would illuminate the implied ambiguity
which is illuminated by the jury declarations
that the two ways to interpret the note.
-: Don't you think we're supposed to assess
the judge's decision making or thinking
in the context in which it occurred,
which includes two previous notes reporting impasse?
You argued very forcefully below
that the jury had reached an impasse
and for the Tuey-Rodriguez charge to be given.
Weinberg: Yes.
-: I'm assuming you made that argument in good faith.
Weinberg: The argument was made in good faith and I-
-: Yes, and there was no information intervening
the second time you made that argument.
No additional information about the jury's thought processes
between that second note and the third note.
-: I would respectfully suggest
that when a defense lawyer asks-
-: I'm not asking for an argument here,
I was gonna ask you for a reference to the record
to indicate anything that happened in between
the third note, the second note and the third note.
Weinberg: Yes.
-: That would indicate any less of an impasse
between the first, second and third notes.
Weinberg: Yes, what happened is that-
-: I'm just looking for a record site.
-: The record is the jury went out and deliberated
for several hours subject to a Tuey instruction,
which is designed to encourage a jury
to reach a verdict when they've declared an impasse.
-: Right, so I understand your answer to be,
there's nothing in the record to indicate
that they were any at any less of an impasse
than they were when they sent the second note.
-: No, and I would contend
that all three notes are ambiguous.
The defense-
Wolohojian: That was not the argument you made below.
-: The argument made by trial counsel
was to argue not for a mistrial,
they never asked for a mistrial.
Wolohojian: I understand, but there was no argument
that these notes were ambiguous down below, correct?
-: Down below at the trial court, yes,
the argument made on the motion to dismiss
was that there was ambiguity.
Wolohojian: No, at the time,
not at the motion to dismiss, at the time.
-: They had no opportunity at the time-
Wolohojian: First note,
was there an argument made concerning ambiguity
in response to the first note reporting impasse?
Weinberg: No, there was a request for two.
-: Was there any ambiguity argument made
in response to the second note?
Weinberg: There was a request for Tuey.
-: Right.
-: But the only time that I suggest matters
is the third note where they had no opportunity
to make that argument.
Wendlandt: Why would that be?
Why would we just focus not on the totality
of the three notes, but just the last note?
Why is that in your opinion,
or actually citing any legal authority,
why would that be the critical moment?
-: Because before that,
there's at least an impasse on one count,
and there is no obligation on a trial court
in terms of timing when to seek a partial verdict.
When Judge (indistinct) asked me
for what the three alternatives are,
one of the alternatives was simply
to ask the jury what it meant.
The second was to apply rule 27B,
which says before a mistrial,
a court may request of a jury,
whether or not they've reached any decision
on any of the other counts.
The reporter's notes-
-: Well, at the moment of the declaration
of the mistrial, what suggested in the notes,
the three notes,
that there was any agreement as to any of the three charges?
Weinberg: Facially- -: Nothing.
-: They said they were at an impasse
and the court has an obligation
to carefully consider all alternatives under
Taylor and Stewart.
There's no evidence on this record
that the trial court made that consideration.
-: Well, after the first note she asked counsel
and the prosecutor, what do you think?
And I thought defense counsel argued
they've exhausted their review
of the evidence and so give the two Rodriguez
and the prosecutor said, not yet.
And she said, yes, not yet.
And then there was the second note where again,
they report that they're in an impasse quite eloquently.
And again, at that point the prosecutor says,
don't give the Tuey-Rodriguez and the defense counsel says,
yes, go ahead and give Tuey-Rodriguez.
And she considers that alternative
and gives the Tuey-Rodriguez instruction.
Weinberg: Yes. -: Now we have the third note.
We've tried, we've really tried on all the charges.
Some of us agreed that beyond a reasonable doubt
that the elements of each of the charges
have been established, some of us do not.
And at that point, she's considered the alternatives.
Let them continue to deliberate, give the Tuey-Rodriguez,
and the third time it sounds like
that everybody's in an impasse.
That's all the information she has.
-: And that's part of the perils of not providing counsel
with an opportunity to be heard, which is what was required.
Because we don't know that the jury notes one
in two didn't also relate to one rather than three counts.
What the defense wanted was a verdict.
If you want a mistrial, you ask for one.
-: So, your rule would be
that anytime there's more than one charge,
the judge must ask,
when the jury reports back that there they're in an impasse,
the judge must then ask.
Well, are you at an impasse as to count one?
Are you at an impasse as to count two, as to count three?
That the rule?
-: When there's a multiple count indictment,
that's the rule as described by the reporter to 27B,
which is a trial court must make that inquiry
before ordering a mistrial.
Gaziano: I thought there it was a may, Mr. Weinberg.
-: The may was in the rule, the reporter's note says,
must I would argue the may relates to timing.
In other words, there's no obligation
of a judge at any particular time to ask the jury
whether there's a partial verdict.
But if you're gonna issue a mistrial order,
that's where the must comes in.
-: In the ordinary case, the the foreperson will say,
we've got a verdict on counts one and seven
and we seal them and then we continue on
and we can mistry the remaining counts, correct?
When you say it wouldn't be coercive to ask,
am I right to assume that you're relying on rule 27B?
-: 27B and the distinction in the Roth case,
which is there is a risk of coercion
if you're dealing with a single count with multiples.
But 27B preempts that in terms
of the importance of a mistrial lawyer-
-: In your argument to justice Wendlandt,
and I guess to me as well in the court
is that that is not discretionary.
-: My argument is that given
the core values of double jeopardy,
that unless the defense consents to the mistrial order,
the court has to comply with the guidance, the principles,
the mandates of Stewart and Taylor,
and here they complied with neither one of them.
-: And that's absent any other evidence
as far as the deliberations go
and the notes that there's an agreement
or at least partial agreement on a particular verdict.
Correct?
Weinberg: Yes.
Those notes was subject to one of two interpretations
and given the obligation of a trial court
to consider all alternatives,
including the alternative post Tuey
of seeing whether the jury wanted to deliberate
on any one of the three counts,
which is part of the statute,
I think it's 268 34C, that's a third alternative.
Here, the problem is the record doesn't reflect
the trial judge's consideration.
Wendlandt: As a matter of fact-
-: These alternatives.
Wendlandt: Were there three separate verdict forms?
There was actually more than three verdict forms
because the verdicts on count two had multiple,
had they had three different options.
-: So count one and three,
were there separate verdict forms for those?
-: I believe there was, there were separate forms,
but there was, you know, guilty not guilty.
Count one, count three and count two.
There was supplemental instructions
and an amended verdict form
to make sure the jury had options
that were consistent with the law of the SJC
as to how you deal with lesser included.
Kafker: Can I ask?
Sorry, are you done?
So I'd like to ask, how are you...?
The judge says she can't ask the questions
that you're saying she could
without interjecting herself in deliberation.
So let me read what she says.
"While the defendant contends that the conflict
is reflective of the fact that the instruction given
to the jury by the court were confusing,
determining whether this is true
would necessarily require inquiring into the back
and forth among the jurors during deliberations."
Can you tell us how?
Weinberg: Yes.
-: Why? How would she do this?
She doesn't envision a way that she could ask
the questions you're talking about without requiring them
to explain whether they took votes,
how they took votes and what the votes were.
Just tell me what your thought process is on that.
-: Well, my thought process one
is that this court has the option of essentially informing
the court what questions could be asked.
And two if we're gonna delegate-
Kafker: But they're gonna re require follow up questions.
And unlike extraneous influences where you can say, okay,
we only want to inquire about whether
there was a racist statement made or something
to that effect, this is different.
We're gonna have to require
what their votes were and how solid they were.
Isn't that gonna get into deliberations inevitably?
-: I think you can ask about the results of deliberations.
I would design it by saying an instruction
to the jury to not disclose the content
or your processes of deliberation,
but I want to ask you the following questions.
One, did you take a vote on count one?
What was your vote?
Was the vote unanimous amongst other jurors?
Was the vote final?
Was it ever reconsidered or rediscussed?
Kafker: That question, was it final?
Isn't that gonna...?
The jury can change its mind, right?
Weinberg: Could, but there's no way-
-: But isn't that gonna result in asking that type
of question?
When you say final, you know,
if you don't get your way on two, is it final?
Weinberg: Was it ever reconsidered?
You know, my contention based on these jury declarations,
based on the voicemail,
based on the fact that in this highly publicized case,
no other juror who they serve for months says to anybody,
to the court, to the clerk, to the court officers,
to the prosecutor, I didn't agree.
-: They also don't write in saying we agree with
the other five or anything to that effect.
They're silent as their deliberations are supposed
to be silent, right?
See.
-: But it's an almost unprecedented meeting
of a burden of production.
If this was a sixth amendment issue,
the jurisprudence of the court
would compel a post jury inquiry.
The Fifth Amendment values are just as important.
Questions can be designed,
whether it's final or was it ever reconsidered
that would demonstrate what we contend.
These were final votes.
This was the end of counts one and three.
It's exactly what juror D says.
We went to the bus and says,
no one's ever gonna know that we voted but isn't to acquit.
Georges: Isn't that part of the problem?
And isn't that what Bluford councils against?
Because you keep saying that whatever was done on counts one
and three were fixed.
And despite the fact that there was potentially
still some uncertainty about where the folks were
on count two, that that could never change
in the continuing deliberation about count two.
And isn't that what Justice Roberts was talking about?
The deliberations weren't finished, they weren't finalized,
and you keep using that term,
but there's still opportunity for folks
to change their positions in the context
of the continuing deliberations on count two
when it's lesser included.
So what's the...?
I guess what's your best authority to say that it was fixed
for all time and for all deliberations
and there was no opportunity,
particularly when we don't know that no one
to Justice Kafker's point, has called and said, Hey, me too.
We believe the same thing for the court to say that
this is what it meant for all time.
-: And the answer to the question,
and I understand the question in the Bluford case, you know,
we had the return under Arkansas law,
which prohibited partial verdicts.
The jury said that they'd reached a decision,
they were sent out again and then they said they had changed
that decision and were at an impasse.
In this case, a post jury voir dire can ask about whether
or not you took a vote.
Was it unanimous that doesn't intrude on the values of 606B?
Was the vote ever reconsidered? Was it final?
Georges: But that's my point.
If you stop right there and say that's the end
of the inquiry, that's really not true,
because there's still deliberations
that are left on count two that might inform
a juror's change of position on count one and three.
-: And that could be the subject of a jury inquiry
as to whether or not the unanimous vote
that acquitted misread of murder and leaving the scene
was ever reconsidered it.
You can ask for a result without probing
into a mental process, into the content of deliberation.
The values at stake here are too important.
Yes, in the McCabe case, you know,
we allow a court to ask about mental processes.
Was there communications of bias?
In Fiddler, they talked about the communication of evidence
that wasn't received through the gatekeeper function
of the trial court.
This is important.
Ms. Read was acquitted by those jurors
and we should have the opportunity
or not acquitted there was we contend a unanimous vote.
We should have the opportunity
to have Judge Cannone conduct a voir dire.
It's done when one juror says there was a statement of bias,
when one juror says there was contact with an external-
-: Right, but when it's an extraneous source,
then you need not get into deliberations,
but as I listen to you suggest questions
that the trial judge could have asked,
it seems to me those questions go directly
to the jury deliberations.
-: And I would con contend they go to the results
of the deliberations, they do not require a judge to ask,
"Why did you vote not guilty?
What led you to vote not guilty? Did you vote not guilty."
-: So the question asked to juror F would be,
"Was that vote final?"
Weinberg: Yes. -: Juror F's answer would be,
"Well, no, it kind of depended on
how I would've voted on count two.
We were not yet done."
Weinberg: And that would reflect two things.
-: The jury deliberations, right?
-: That would reflect that the voir dire
by the judge did not lead to a result
of a final unanimous verdict of not guilty,
but to foreclose those inquiries
when there's a real possibility,
12 jurors are going to say to Judge Cannone if conducted,
that was my vote, it was not guilty.
We never reconsidered it, we considered her innocent.
We didn't think she intentionally killed anyone.
We should not be foreclosed from having that option.
-: It seems to me that what you
in effect asking via a post-trial inquiry
is to discover whether the jury disregarded
the jury instructions.
And the reason why I say that
is that the jury were instructed to return
a verdict after the final vote,
and I'm using that as a direct quote of the jury.
So when they had a final vote,
they were then to check the appropriate boxes
as to each charge, then sign and date the verdict slips.
And it seems to me, or at least please correct me,
why isn't this post verdict inquiry
that you're suggesting actually an attempt to try
to establish that the jury didn't follow the instructions.
And we have a long line of jurisprudence
that says we presume that the jury follows the instructions.
Weinberg: Okay, and there is cases where
when mistakes are made by jurors,
where they don't fill out the verdict slip accurately.
Wolohojian: That's not this case though.
-: No, this case I think is a stronger case for a voir dire
because we're not impeaching a verdict.
We're explaining a note.
We're asking the jury to resolve an ambiguity
within the note that the trial court didn't realize
in part because they didn't provide an opportunity
for argument, in part because they used the procedure
that's totally at odds with this court's jurisprudence
in Steward and Taylor,
and before we get to the voir dir issue,
we contest there was no manifest necessity in the-
-: Okay, before you shift back to that,
what's the best case?
Because we're interpreting federal law here.
What's the best closest case,
and not an extraneous influence case,
allowing this type of probing after what's...?
If we wanna go back and read one case that's...
Do what you want us to do,
but what's the closest case?
Weinberg: It's actually a Mississippi case.
I think it's named Martin versus State
that the Aimigi brief-
Kafker: that's a state court case.
-: They read the newspaper.
Kafker: It's a court case, right?
-: It is.
Kafker: Any federal cases.
'Cause again, this is a federal constitutional issue.
-: So you know there are cases
where jurors correct verdicts.
Kafker: No, no federal case.
-: This is-
Kafker: That has the...
You're asking us to direct Judge Cannone to do this.
It would be helpful if you have a federal example
that we can turn to 'cause we we're interpreting federal law
not our own law here.
-: Well, this court has a long history of filing federal-
-: We don't have any cases except extraneous influence case.
I'm just looking, again your chance.
Weinberg: You do have-
-: This case that we should look at for you.
-: You do have one example, which is the McAlack case,
which follows his Supreme Court case
and allows the jurors to disclose
their deliberations regarding ethnicity racial bias.
Kafker: Again, that's extraneous influence,
it's different.
Weinberg: It's internal.
I think it's closer to the core of 606B,
Kafker: No federal case we can turn to, for example.
-: Nor has the prosecutor come up with any case
to the contrary.
This showing by this jury,
it's not gonna open the flood gates for post voir dire.
Budd: Well actually that was my question.
What's the limiting principle here?
It sounds like if ever a juror comes back
to the defendant and says, "Hey, you know,
that's not really what happened," then we open it up.
-: This would not be a case where a juror has second thoughts
is reconsidering didn't think she was...
You know, he or she was listened to in the jury room.
These are representations
by four jurors that were unequivocal, unconditional.
They said we reached a final verdict of not guilty,
and I urge to-
Budd: So the jurors submitted affidavits?
-: The jurors would submit affidavits if we asked the judge,
if you're not gonna accept the lawyer's affidavits,
please authorize the lawyers to go back to the jurors.
But we didn't want to walk near the boundaries of 606B.
The judge accepted the truth of the lawyer's affidavits
as a substitute for the juror's affidavits, but again,
let us voir dire the jurors.
The judge has the power to make a decision.
Was there a unanimous verdict of not guilty?
-: But our review is an abusive discretion.
Why was it an abusive discretion
for her to deny you that ability?
-: Because the Stewart case says the def deferential,
you know, appellate review depends
on whether or not there's proof of compliance
with the principles set forth in Stewart.
Meaning did the judge carefully consider all the options?
Did the judge give the defense a full opportunity?
These were mandates, not discretions,
they're condition precedent
to the declaration of manifest necessity.
It simply wasn't followed in this case.
It wasn't followed the basic rules, it's Floyd P,
which is when a jury gives a note,
you share it with counsel, you listen to counsel,
you get their views.
We don't know whether counsel
would've advised the judge about 27B
or would've asked the judge to ask the jury whether counsel-
Georges: Can I go backwards on that?
-: Sure.
Georges: Because part of my...
I don't know what part of this goes into the calculus,
but you have two extremely experienced trial lawyers.
No one in that room would ever think potentially
a mistrial may be declared after Tuey-Rodriguez is given.
There isn't any a lawyer that's worth their salt
that wouldn't think they might get a mistrial on this.
So you know where the puck may be going
when it comes to giving the Tuey-Rodriguez
and you say that there was no manifest necessity
for this and no opportunity to be heard.
How do we factor in that
you've gotta know that that's going to be on the table?
Is that a mistrial?
And what obligation is there on counsel to say,
"Hey, before you declare a mistrial,
let's talk about alternatives to that."
Weinberg: Let me address that.
Judge comes in deviates from her prior practice,
where she gave counselor full opportunity,
announces to the defense lawyer there's an impasse.
Bring the jury in.
If your honors, you know, would accept the audio video
that again the district attorney has relied on.
It's about 30 seconds till the jury comes in,
but you hear a door open.
Defense counsel don't know what's in the note.
It hasn't been read to them.
They don't know what the judge's intentions are.
They don't know whether they'll be invited
to come to the bench to discuss it.
They have to be surprised,
they weren't given an opportunity.
They hear a door open,
the jury could come in in five seconds, much less 30,
and I stand before you with 52 years of trial experience
to say no competent defense lawyer would risk
the wrath of a judge or jury by interrupting that process,
by making objections.
So I-
Budd: Wait, the judge said they're
at an impasse bringing the jury?
-: Bring in the jury and you can actually hear a door open.
Budd: Okay, and you have 30 seconds to object?
-: But you don't know that it's not five seconds,
you don't know the door's not open, you don't know the jury.
Budd: You can say, "Your honor,
may I see you at sidebar?"
-: In this case, that's happened repeatedly. No?
-: Here the defense lawyers did not know
what the judge's intentions were.
They didn't know what was in the note.
-: But they did know that the jury had reported
to her that they were at an impasse.
Weinberg: They were at an impasse, bring the jury in.
Yes, that was possible, but to-
Wendlandt: What was possible?
-: To ask to go to the bench, but-
Wendlandt: Yes. -: This court-
Wendlandt: And did that happen?
-: No, but neither did it happen that the prosecutor,
who this court says has a heavy burden
because they're the sovereign.
They want to reprosecute somebody after a mistrial
to subject them to the perils of a second prosecution.
The trial court did not impose a burden on the prosecutor.
They have this more of an obligation
in double jeopardy law to raise options to a mistrial.
And I don't think it's fair to conjecture consent
or to penalize a defense lawyer
when they have been relying on a procedure that's lawful,
where defense lawyers have a full opportunity to be heard.
They don't know what's in the note.
Wolohojian: She doesn't need the consent of the defense
to declare a mistrial.
She needs to determine
that there was manifest necessity for a mistrial, correct?
-: Because of a careful consideration of all alternatives,
and after given-
-: So that may explain why perhaps she didn't...
The judge did not inquire was because given...
I don't mean to replough the same territory,
but this was the third note.
-: It was the third note,
but it was a note that demonstrated
'cause of the deliberations between the second
and third that the defense didn't want a mistrial,
they wanted a verdict.
Gaziano: Mr. Weinberg, are you aware of any cases
or can you let me know?
But there are any cases where the judge gives Tuey,
the judge gives Tuey.
Weinberg: Yep.
-: And then the jury comes back and says,
we're deadlocked is articulate as this jury was or not.
And then the judge does something different,
other than declare mistrial.
-: Well, the statute itself says the judge has no right
to obligate the jury to redeliberate,
but every right to ask the jury whether
they would consent to continue deliberations,
and here I contest-
-: But here the jury said
to continue to deliberate would be futile
and only serve to force us
to compromise these deeply held beliefs.
Weinberg: Yes.
-: Right, and in the face of that,
you think give it the old college try is okay?
-: I think that the judge had alternatives
that the record does not reflect
what carefully considered including
is your deadlock on all three counts.
Is there any...?
Would you consent to deliberate on any account
that you've not reached in irrevocable deadlock?
Questions like that are not coercive,
questions like that would've actually given
the illumination post July one,
and I'm not arguing that that provides proof
as to what the process was-
-: The statutes again, is a may correct?
-: The statute 27B says a court may make that request,
but the Steward and Taylor rule, damn it,
require careful consideration
that at minimum was an option not considered.
-: The careful consideration is basically all
that has gone on as far as the length of deliberations,
a number of notes, et cetera, and what the notes say.
That's part of the calculus, correct?
-: Yes, the judge made her own judgment,
and I'm not saying the judgment was irrational,
I'm saying that she would've been aided by counsel.
The law required she give counsel
an opportunity to be heard.
There's no evidence in the record
she considered any option except to declare a mistrial
that contradicts the clear jurisprudence of this court.
And I contend to contradicts
the court protections that double jeopardy give
to a defendant against being reprosecuted,
which the Supreme Court has said carries with it
the risk that an innocent person can be convicted.
The ordeal of a second prosecution.
This court has given procedural guidance
conditions precedent.
This is what the words are must.
27B may be discretionary,
although we argue the reporters note
in combination with tailor required that inquiry
about partial verdicts.
This court has told the trial that judges ordering
a mistrial is irrevocable and you need to go
through certain procedural conditions precedent,
and the judge did not.
And I respectfully submit that extinguishes
the principle basis
to say there was manifest necessity in this case.
There was never a knowing and intelligent consent.
The defendant never asked for a mistrial.
And at minimum, secondly, we strongly asked this court
to extend the the sixth amendment jurisprudence
where you allow jury voir dires into the Fifth Amendment.
The fifth amendments is as important as the sixth Amendment.
And a jury voir dire conducted by an experienced judge
can determine whether or not there was a unanimous
and final verdict of not guilty on two counts,
one of which carries with it a life imprisonment.
I thank you very much for the privilege
of appearing before you today.
Wolohojian: Thank you.
(paper crumpling)
Okay Attorney Schillinger.
-: Good morning, your honors.
May it please the court,
Caleb Schillinger for the Commonwealth.
With me at council table
is my colleague, ADA Laura McLaughlin.
I'd like to start with the mistrial issue
and emphasize a point that has been touched
on through the questions of my brother,
but that I think is important for the court to consider
and that is the trial strategy here.
As a general matter absent some sort of definite indication
from the jury that they're prepared
to find a defendant not guilty on a charge.
Effective defense counsel is not going
to ask the judge to start probing,
or not going to want the judge to a Sponte
to do that because doing so runs the risk
of extracting a guilty verdict
and convicting your client,
instead of obtaining a mistrial across the board.
Wendlandt: But what do we do with the fact
that after the third note, the jury is called in?
There's not unlike the first
and second note where she says, okay counsel,
let me know what you think.
Here, we don't have that opportunity.
-: The judge did inform counsel
that the jury was at an impasse,
and I would argue at this point,
it is clear that a mistrial is inevitable or unavoidable.
If the jury has twice already returned deadlocked.
The defendant has argued strenuously
that they are deadlocked,
they've been given Tuey-Rodriguez
and now the judge informs counsel, they're at an impasse.
At that point, counsel couldn't in credibly believe
that the result here was going
to be anything other than a mistrial.
And again, in addition, just to circle back,
all the more so your Honor,
because of what was their defense in this case?
The defendant's defense was
that she didn't cause the victim's death,
but allegedly had been framed.
If the jury were to come back with a guilty verdict on any
of the charges or either of the lesser included offenses,
they would've necessarily had to find
that the victim did cause or excuse me,
the defendant did cause the victim's death,
and it would've been a rejection of that defense
and the defendant's public narrative.
The defendant here did not want the judge
to do more in court.
-: But rather that speculate what the defense wanted,
let me ask you about what happened.
Did the judge have either the discretion
or an obligation to ask the jury after the last note
about continued deliberations or a verdict
on any lesser included offense?
Schillinger: No obligation, your Honor.
Perhaps as a matter did the judge have
the discretion to do so.
Rule 27B is discretionary.
The language of the rule itself consistently refers
to what a judge or a jury may do.
I know the defendant argues-
Gaziano: So it's not inherently coercive?
The judge has a discretion that can't be coercive, correct?
-: Well, no, it's a matter of discretion,
and then consider the factors that inform the exercise
of that discretion,
and that's what the judge did consider here.
On the one hand, the judge had no doubt based
on the jury's notes that they had not reached agreement
on any of the charges.
Further, the jury's third note had triggered 234A 68C.
So they couldn't be compelled to continue deliberating.
They made it abundantly clear they did not consent.
Gaziano: Unless they want to.
-: Unless they wanted to, exactly.
But indicated that if they were forced
to continue deliberating,
any verdict they returned wouldn't be a just verdict.
It'd be the product of compromising
their deeply held beliefs and moral convictions.
You have that on the one hand informing
the exercise of discretion.
On the other hand, you have strong countervailing reasons
that argued against making further inquiry here,
which is the potential for coercion.
You have a jury that has sat through
a grueling 10-week trial, nearly a hundred witnesses,
hundreds of exhibits,
now four or five days of deliberations.
They've returned three times indicating
that they are deadlocked, they are at an impasse,
and they do not want to continue to deliberate.
-: But but counsel, I'm sorry to interrupt you on that,
because I don't wanna miss this point,
but wouldn't that go to the calculus of manifest necessity?
Because all of those things seem to be the reasons
why you would tell counsel about the last note and say,
what do you think?
Because you have gone through this 10-week trial,
you have gone through the impairment process.
You've spent a lot of time, energy and money,
anxiety and angst in this trial.
Why wouldn't we talk about what potentially
we could do short of saying mistrial, let's start again?
-: Certainly your honor, and I think, you know, in hindsight,
seeing, you know, the quote unquote remarkable turnaround
of the defendant's position, would it have been better?
Would it have been preferable for the judge
to take that extra step?
Perhaps, and another judge might have done that.
But here, given the progression up to the third note,
and in particular, given the defendant's response
to each of those two prior notes,
I think the judge could reasonably conclude
the jury is at an impasse,
there is a manifest necessity for a mistrial.
There is nothing more to be done here,
and in fact, in her order denying the defendant's motion
to dismiss, the judge did say a mistrial was inevitable.
Kafker: But you can't find consent, right?
If you don't ask, the consent is out the window, isn't it?
Schillinger: I don't agree, your Honor.
We can find con, I mean consent through the lack
of an objection here.
-: The burden of proof is on the Commonwealth.
There's no opportunity whatsoever for the defense counsel
to raise anything.
I get you may have manifest necessity,
but I don't see how you can get consent
when they haven't been consulted in any way.
-: They were consulted in response to the first two notes,
and what was the defendant's response to those notes?
It was to argue in favor of due and thorough deliberation
and accelerate the process at every step toward a mistrial.
-: But pushing towards a verdict is different from...
That's different.
I mean, they want a verdict.
Because they want Tuey-Rodriguez
doesn't mean they've consented to a mistrial.
Schillinger: Even so, your Honor,
they had opportunities to object.
They could have objected while waiting
for the jury to enter the room.
30 seconds is ample time to at least ask,
may we be heard at sidebar, your Honor,
after being informed that the jury's at an impasse,
they could have brought the issue up again during
the scheduling conference after the jury was excused
to the jury room, and even after that,
they still could have brought it up,
and then we cited in our brief ententes as an example
of where a defendant lodged an objection after the fact,
after the jury had been excused to the jury room.
And at that point the judge
did still consider counsel's arguments.
And I think given the defendant's response
to the prior notes,
it being clear what the defendant was advocating for here
and at the point of the third note,
it being unavoidable based on manifest necessity
to declare a mistrial,
the absence of an objection here or even asking to be heard,
your Honor, indicates consent.
Georges: And you might have,
I know it probably is in your brief,
but what's your best case for that?
-: This case is closer to Pellegrin, your Honor,
and very different than Horrigan.
So as between the two,
certainly where there is something abrupt
that happens that is inconsistent
with the way defendant has conducted him or herself,
the approach that they have taken during the trial.
It would be difficult to find consent.
Oregon is an example of that.
Judge comes in abruptly announces trial judge
is unable to preside, I'm declaring a mistrial.
There was no indication there that, you know,
the defendant was in agreement with that.
But here again, where you have the defendant advocating
for the result of a mistrial, the ultimate conclusion of it,
when it is then ultimately declared to-
-: How do you know the defendant
is advocating for a mistrial as opposed
to pushing a verdict?
-: Because Your Honor, not just what they argue,
but what they argue-
Gaziano: 'Cause because Tuey, you know, could...
There's two results of Tuey,
it's either a verdict or it's a mistrial,
and it pushes the jury to its extreme.
So when you say that they're advocating for a mistrial,
they could have been just as well advocating
the jury for that final push.
As the Tuey-Rodriguez instruction says
you need to check yourself.
One side has the burden of proof.
It's very favorable in some instances to a defendant.
So how can you stand up here and say that they were pushing
for a mistrial?
-: Perhaps as to just Tuey-Rodriguez,
although as a practical matter,
as Justice Georges pointed out,
experienced defense counsel understand
that there's not going to be a mistrial
before that instruction has been given or very likely,
but set that aside, your Honor.
-: Well, I think experienced counsel know
that you're most likely not gonna get further deliberations,
but counsel also know that it could very well,
it's a flip of a coin.
It could be a verdict or it could be a mistrial.
Schillinger: Right.
On top of that, your Honor, I would point to,
in response to the first note,
the Commonwealth argued against
a finding of due and thorough deliberation.
Hasn't been enough time let the jury continue to deliberate.
Already at that point,
the defendant was prepared to argue.
There's been due and thorough deliberation,
I think the exact quote is
we believe there's been sufficient time disagreed
with the commonwealth reading of the note from the juror
that there might still be the possibility of reaching
a unanimous verdict,
arguing that they'd already exhausted all manner
of compromise, all manner of persuasion,
so, and then again, in response to the second note,
again argued there's been due and thorough deliberation.
Those arguments are pushing to the point where 234A 68C
is triggered and the jury cannot continue
to deliberate and a mistrial will have to be declared,
unless they consent to further deliberation.
-: I think it's safe to say that they were pushing
for Tuey instruction, correct?
Schillinger: Yes, they asked for that as well in response
to both notes, your Honor.
-: Do you need consent in order to win?
-: No, your Honor, there was manifest necessity
for the declaration of a mistrial here.
-: And so absent the consent we can just,
you think the manifest necessity existed?
-: Yes, I don't think that the judge abused her discretion
in declaring a mistrial for manifest necessity based
on the jury deadlock in this case for the reasons
that we have discussed and were discussed with my brother.
-: Well, but counsel, we also have,
and not necessarily in this context,
but we have in cases where there are evidentiary issues
where we have found that the trial judge abused
their discretion when they didn't utilize something
that they could have.
And so in a record here where there, again,
it's not necessarily prescriptive,
but there's 27B that says may,
there's other things that could have been done short
of declaring a mistrial.
Is there no calculus here that says that perhaps
there could be an abuse of discretion
because there's nothing to suggest
that she went through the progression
of what she could have done short of declaring a mistrial,
which directly goes to not giving defense counsel
an opportunity to say,
"Hey, we've got all our heads in the courtroom.
Let's all collectively think about this
and perhaps we can all come to some other...
Some other vertical other than declaring mistrial?"
-: Yeah, and I think it's clear from the judge's order
that she was cognizant at the time
of these countervailing considerations
Looking to the jury's notes,
the lack of any indication of agreement
on the charges balanced against the risk of coercion,
the defendant's trial strategy and the fact
that the defendant had not been advocating
for the judge to do something more.
I think it's clear that the judge
was aware of these considerations
and balanced them in a way
that was not an abusive discretion.
Might a different judge have reached
a different outcome here?
Perhaps, but the judge's determination here,
which is owed some deference if not an abusive discretion,
was not outside the range of reasonable outcomes,
given the jury's notes
and these other considerations, your Honor.
-: You don't think it would've been coercive to say,
"Come on jury, I know you say that you're exhausted
that any further deliberations would force us
to compromise these deeply held beliefs,"
but did you reach a verdict on count one?
-: I do think that would be extremely coercive,
your Honor, yes.
And I would point the court to footnote five
in Ray versus Commonwealth where this court said
or noted there may be a prevailing practice
among federal courts about inquiring individually
of jurors as to whether they're truly deadlocked
or perhaps further inquiry,
but that is not the prevailing practice here
in Massachusetts and is not an encouraged practice.
It's particularly because of the risk of coercion.
Kafker: I take it Rule 27 doesn't...
There's no discussion of Rule 27 at any point during
the deliberations or sort of preparing
for the deliberations, right?
When we read through this whole record,
we're not gonna find any indication
it was on anyone's mind, right?
Schillinger: Correct.
-: So I see your point on the note
is so compelling that they've worked this to the end,
but then the problem comes when we get this new information
that's somewhat inconsistent with, that they've...
I mean the key sentence,
some members of the jury firmly believe
the evidence surpasses the burden of proof establishing
the elements of the charges beyond their reasonable doubt.
Conversely, others find the evidence fails to meet,
then we get this motion for a new trial
with four or five jurors saying that's not the case.
Right? That's the troubling part.
What should happen at that point?
-: And I do wanna make sure I get to this, your Honor,
the alleged agreement reflected
in those statements is not an acquittal.
It lacks finality of a verdict really for two reasons.
One is the reason that's already-
-: I get that point, I'm just trying to figure out
what should the judge do at that point?
'Cause they're arguing,
okay, you have some follow up obligation here.
Is there no obligation whatsoever, I guess is what...?
-: No, and we argued below actually, your Honor,
that it's not reliable or competent evidence
because it goes to the substance
of the jury's deliberations and is being used to try
and impeach the declaration
of the mistrial based on jury's notes.
-: Except the judge makes a finding
that she finds them credible
for the purposes of this motion, right?
So she doesn't say they're unreliable,
but rather accepts their reliability
and then concludes that nonetheless,
that she can't inquire here without invading deliberations.
It's different from reliability.
She's given up the reliability point, right?
She's made a finding that I accept
for these purposes that those four jurors or five jurors-
Schillinger: Correct.
-: Are credible, right?
So it's not a reliability issue
that you can rely on, right?
-: Correct, but the judge also correctly
or properly ruled that it would not be appropriate
to conduct some sort of post-trial inquiry
at this point for a number of reasons.
One, this jury, a mistrial was declared this jury
was discharged.
They've now been discharged for four months.
They have no power or authority at this point
to come back and render a defacto verdict.
-: Well, the request is to inquire of them,
which we said you can do in Fiddler
and McGowan at all, right?
-: But not to get into their deliberations.
Gaziano: But that's a separate matter.
You said that it, you know, you can't bring this jury back.
You can bring them back for post verdict inquiry.
Schillinger: Well, it is one...
-: And under the guidance of Fiddler, et cetera, right?
-: It's one thing, your Honor,
to bring a jury back and inquire as to extraneous influences
to determine whether a verdict that was returned
and affirmed may have been the product
of other than a fair and impartial jury.
It's quite another to bring a jury back
to essentially construct a verdict that was never-
-: And what Mr. Weinberg argues
is what we protected other six amendment rights
to a fair trial, but he says we should expand our law,
as I understand him,
to include the Fifth Amendment right
in double jeopardy protections as well.
What's your response to that? Why not?
-: I agree with the reasoning
of the appeals court in de Benedetto that
it can't simply be the fact that it implicates
a core constitutional right to allow
for this sort of inquiry.
And here, unlike-
Wendlandt: Why not?
Why is the Fifth Amendment any lesser
of right than the sixth?
-: It's not that it's any lesser of a right, your Honor,
although it is different than the sixth
in that here there's, you know,
a balance of two competing public policy considerations.
It's not simply the defendant's right.
There's the public's interest and right as well.
So it is different than, for example,
the Sixth Amendment, right?
-: Well, doesn't the public have an interest in finding out
the truth of what the jury decided?
-: They have an interest in a just judgment
that is in fact a final outcome or final verdict here,
but setting aside whether expanding it might be appropriate,
it cannot be done in this case without getting
into the substance of the deliberations,
and I think my brother revealed that under questioning.
There are several issues with it.
One is, again, this jury has been discharged now
for more than four months
and has been subject to extraneous influences,
potentially including harassment.
-: We've sent back jurors on race,
I can't remember how many years,
it was like a decade later or something.
Timing's not gonna be a winner for you, is it?
It has to be-
-: No, that by itself Your Honor,
is not a reason not to do it.
I'm raising it as an additional consideration
or concern here, but there are others as well,
which is, it's not simply a matter of bringing a jury back
and trying to ask them a yes or no question.
That's not how juries reach verdicts.
We ask them to engage in group decision making,
collective discussion, review of the evidence, so it's-
-: Our post verdict inquiry is guided
and we always say to the jurors,
and we tell the trial judges, just,
you have to instruct the jurors.
Do not tell me about the contents of your deliberations.
Answer this specific limited question,
and the limited question posed by the defense,
and I think in the ACIU brief is did you reach
a verdict essentially on council one
and three or was an acquittal?
Right?
-: I don't know that that was the specific question
they proposed, but I understand whatever Your Honor-
-: I mean however they phrase,
it's a limited yes, no question.
-: Yes, and my point is that's an artificial inquiry
or take for example...
Kafker: But we asked, have you reached a verdict?
That in and of itself is a standard question, right?
That can't be crossing the line, right?
Or is it?
-: No, but again, I want to reemphasize the point
that was raised earlier,
which is imagine a juror had tentatively agreed
to find not guilty on a particular charge,
but that was subject to further deliberation
or consideration, maybe the juror wanted to see
what happened with the other charges.
You know, bring the jurors back and you simply asked them,
I don't want to hear anything else, I just want a yes or no.
It doesn't give that juror any opportunity to explain
that their agreement was tentative at that point.
And so it's an artificial exercise to say-
-: Is that Justice George asked your brother counsel
about Bluford?
Is Bluford the answer for you that
that's what Chief Justice Roberts was saying
in Bluford that it's always tentative
or is it it's only lesser included?
That that works because I asked Mr. Weinberg,
is there a federal case right on point that we can look to?
You at least have Bluford.
Is Bluford controlling? And it's the Supreme Court.
-: Would argue that it is,
and I'd actually take it one step farther,
which is not only is there the concern
that was raised in Bluford,
that the perceived agreement or unanimity here may have been
the product of a very early discussion,
subject to further deliberation.
But jurors are free to change their mind
and change their vote right up until the verdict
is affirmed and recorded.
They could vote guilty, walk into the courtroom,
and at that point change their mind and say,
you know, you know what?
I think the defendant is not guilty.
So even if like counsel wants to argue
this was a final vote, this was a final decision,
you still can't rule out the possibility
that any juror was free to change their mind,
had they been required to go through the full exercise
of rendering and affirming a verdict.
-: Can I ask, is their argument what Justice Sotomayor wrote
in dissent in Bluford?
Or is the different?
-: To characterize council's argument
I think that they are relying on that for the notion
of there being an acquittal and substance not form,
although if you look at the cases Justice Sotomayor cited
for that proposition,
they're all cases involving judicial rulings.
They're not jury determinations.
I'm not aware of any federal authority
that supports the proposition
that there can be an acquittal and substance but not form,
or I guess more to the point says
that a state cannot impose the requirement
that a verdict be affirmed and recorded.
I think if anything Bluford acknowledges
that that could be a perfectly legitimate requirement
where it said, you know,
take the ar defendant's argument here on its own terms.
It wasn't a final result quite apart
from the requirement to render a verdict or a judgment.
So I think Bluford does support our case, Your Honor.
I just do want to emphasize that it,
it's not only just the possibility
that there could be a change of mind during
the deliberations itself, but even after that.
-: Is Bluford limited to lesser included, or is Bluford...?
Is Buford broader than a lesser included opinion?
-: I don't read it that way, your Honor, no,
I read it as the general proposition
that there are multiple charges,
whether they're lesser included or not.
Jurors remain free to go back and revisit a prior vote.
In fact, I think the court said that although Arkansas
was an acquittal first jurisdiction,
nonetheless the jury remained free to go back
and revisit a prior vote because that's what jurors do,
and it wasn't inconsistent with the instructions.
I want to emphasize one other point,
which is at most what we're talking about here
with these juror statements is a snapshot
of the juror's deliberations,
but you cannot short circuit the verdict requirement
and rely merely on such a snapshot.
And it's important because it protects defendants too.
You could imagine a different scenario
where juror comes forward and says,
notwithstanding the declaration of a mistrial,
we all took a vote and we found
the defendant guilty of murder.
If the Commonwealth were to come forward
and say effect should be given to that vote,
there can't be any serious doubt that the defendant,
whether in this case or in a future case,
would argue that is not a valid verdict
and shouldn't be given any consideration,
unless the your Honors have any other questions,
Commonwealth would ask the defendant's petition be denied.