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SJC-13663,
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Commonwealth versus Karen Read.
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Attorney Weinberg.
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Good morning.
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Chief Justice Associate Justices Martin Weinberg
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on behalf of the appellant, Karen Read.
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Today's appeal goes to the core issues
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regarding double jeopardy protections
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that safeguard defendants in this case, Ms. Read,
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from the risk of reprosecution for the very same offenses
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for which a prior jury was discharged
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without manifest necessity without her consent,
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and we now know,
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based on the representations of four jurors,
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indirectly a fifth,
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no contradiction from any of the seven or eight other jurors
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that there is a trustworthy corroborated
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and we contest uncontradicted showing
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that the prior jury reached a unanimous decision
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to acquit Ms. Read of two of the three charges
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and a multiple count indictment
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that she was tried on in Norfolk County.
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I wanna first-
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What is the factual basis for your assertion
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that the jurors who contacted the DA's office
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are different people from the ones who contacted yours?
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I don't have a basis to-
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Okay, so when you say seven or eight, that's speculative?
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The numbers are that four
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of the jurors directly contacted the defense.
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A fifth, there was indirect proof.
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Sure.
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That a fifth juror contacted the defense,
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a juror who could have been one of the five
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or could have been one of the seven contact-
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Okay, so you're not representing that it's more than five?
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That's correct.
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Okay.
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What I am contesting is that there was
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no manifest necessity for the mistrial, which is issue one.
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There was no consent, issue two.
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And that this court's jurisprudence strongly suggests
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that the defendant has met her burden of production
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as therefore entitled to a post-trial jury voir dire
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by the trial court at which we contend the probability,
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if not the certainty that that voir dire would result
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in proof that there was a final and binding.
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Mr. Weinberg,
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you jump all the way to acquittal, correct?
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Yes.
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Under Rule 27, the verdict has to be unanimous.
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Yes.
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It has to be a general verdict returned
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by the jury to the judge in open court,
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and then the second element,
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the jury has to file a verdict slip
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with the clerk upon the return on the verdict,
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which is a written recital of that same verdict.
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Here, none of those elements were met.
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Correct.
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In the face of the juvenile case in the face of Taylor,
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how is this an acquittal?
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It's less a matter of labels.
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I could call it judge, you know, a unanimous decision.
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Well, you cite Taylor,
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which is the case in Quincy
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where the judge basically there was a procedural defect
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in a complaint and the judge, for lack of a better term,
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pull the plug on the case
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and we had to decide what was that?
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Was that procedural error
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or was it a judgment on the merits?
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And we decided whatever the judge said,
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it was a procedural error.
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Yes.
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That case is an opposite to what? The situation.
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So how do we say it was an acquittal without a verdict
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and open court and no verdict slip?
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I think you say that there was a unanimous decision made
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by the jury that is subject to the proof
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that would come from a post jury voir dire.
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I don't contest that this court should just impose
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an acquittal and substitute a verdict
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because of the declarations.
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Well, that's a double jeopardy claim, right?
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Yes, it's at the core of double jeopardy,
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that if we can prove,
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and I suggest we've more than met the burden
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of production of proof more than in many cases
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where this court is remanded for jury voir dires.
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That if that jury voir dire established,
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which is what we contend it would if ordered
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that this was a final and unanimous decision made
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by the jurors, but they didn't announce it.
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The post verdict inquiries is usually
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or exclusively limited to extraneous information
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in front of the jury, charges of racism
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in the jury room, et cetera.
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Here, do you want us to carve out
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a new exception to that rule?
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I think it's an extension of prior precedents.
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Fiddler talks about not establishing inflexible rules
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that would expense justice
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at the price of certitude.
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In Fiddler, there was evidence from the jurors
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that there was evidence received by a jury
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that didn't come from trial evidence, so that was-
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Doesn't fiddler caution to not inquire into the,
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you know, to not intrude into the sanctity
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of the deliberative process as well.
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It does.
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Absent this extraneous influence.
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But the influence in this case is not extraneous.
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It has to do with the very deliberations that occurred.
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Correct?
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I would argue that it has to do with the results
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of those deliberations and that a carefully set
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of questions proceeded by an instruction a voir dire jury,
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we don't want you to disclose why you reached the result
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or the content of your processes,
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but we want to ask you about a result.
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Did you vote on count one? How did you vote?
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You seek to impeach the written communication
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by the foreperson, correct?
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I'm sorry, judge.
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You seek to impeach the written communication
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of the foreperson, correct?
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I would say that the recent jury declarations demonstrated
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that there was facial ambiguity in those communications.
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Yes, they related to a lack of unanimity
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to a deadlock about charges,
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but count two by itself read vertically,
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had multiple charges.
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Horizontally, there were three separate counts.
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There was ambiguity.
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The trial court didn't realize it,
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the trial court errored in not allowing
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what Taylor and Steward mandate as imperatives
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before there was a ruling of manifest necessity.
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No opportunity for a defense lawyer
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to make arguments about options
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to the declaration of mistrial.
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And I contest that there were
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at least three viable options that Steward Taylor
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and all the cases of this court mandate be,
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quote, carefully considered, carefully considered.
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You've got an exhausted jury writing
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this very eloquent message saying, we haven't been a...
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You know, we've done our best,
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we haven't been able to reach a verdict on the charges.
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There's no inkling in that,
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that they've reached verdicts on charges
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or that this only relates to the second charge, right?
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Facially, there was the words charges and a word,
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the words in general-
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But again, there's no inkling that
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of what's gonna happen with this motion
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for new trial, right?
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Everyone thinks the jury's done its best,
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it's exhausted, it's tried every option and we're all...
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Everyone's resigned to trying the case again.
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I understand something happens later,
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but at least at that point, is it really a mistrial?
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I mean, is there an error to declare a mistrial?
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I would respectfully disagree that everybody concurred
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that there was only one reading of this note
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when the defense had no opportunity despite
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the clear jurisprudence mandating
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that they be given an opportunity to be heard.
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Did the defense have an opportunity
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when there was a discussion about scheduling
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after the jury was sent into the room?
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Once the judge discharged the jury,
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once the judge thanked them and said that the case is over,
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the failure to make an objection, it was futile.
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It was unnecessary.
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What about the case of Commonwealth versus Enid Brown,
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where the jury was sent, the jury goofed, essentially.
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There was a miscommunication between the court
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and you know the case.
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Yeah.
The jury was discharged,
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sentenced to the jury room,
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and then we said it wasn't ever to bring the jury back
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after discharge to clarify the verdict.
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And had the jurors that assigned dec...
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Or made these representations starting
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the very day after the announcement of the mistrial,
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if they had told the judge-
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I guess the point I'm asking Mr. Weinberg
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is there was time period and I get your point
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that it was hasty to not have consulted with the attorneys
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before bringing the jury in,
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but be that as it may after the discharge of the jury,
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I'll talk to you later as most judges do,
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the lawyers then talk about a conference,
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scheduling conference in time in August?
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Wasn't there an opportunity at that point
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for the attorney to object and say,
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"This is what should happen. These are my thoughts."
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There was an opportunity but not a responsibility,
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the law in this case, starting 39 years ago,
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a steward places the heavy burden on the commonwealth,
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which wants to reprosecute a citizen
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in the face of the decision
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of the first jury to recommend alternatives to the judge.
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And you know, the trial judge found consent, you know,
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in part based on the failure to make an objection.
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And I think we cut you off when you said
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there were three things that could have happened.
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Could you please tell us what those are?
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Yeah, one is the trial judge receiving this note
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and remember didn't read the note to the defense,
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didn't give them an opportunity to be heard,
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brought said, bring the jury in,
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the jury comes in seconds later, 30 seconds.
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If the court were to look at the video,
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which has been relied on by the my brother,
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as well as the trial court.
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The judge could have said, "I've received this note.
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Does it relate to all or just some of the charges?"
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That's not a coercive question.
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It has no capacity to coerce, you know,
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the jury into redeliberating,
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it would illuminate the implied ambiguity
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which is illuminated by the jury declarations
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that the two ways to interpret the note.
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Don't you think we're supposed to assess
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the judge's decision making or thinking
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in the context in which it occurred,
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which includes two previous notes reporting impasse?
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You argued very forcefully below
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that the jury had reached an impasse
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and for the Tuey-Rodriguez charge to be given.
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Yes.
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I'm assuming you made that argument in good faith.
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The argument was made in good faith and I-
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Yes, and there was no information intervening
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the second time you made that argument.
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No additional information about the jury's thought processes
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between that second note and the third note.
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I would respectfully suggest
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that when a defense lawyer asks-
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I'm not asking for an argument here,
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I was gonna ask you for a reference to the record
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to indicate anything that happened in between
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the third note, the second note and the third note.
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Yes.
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That would indicate any less of an impasse
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between the first, second and third notes.
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Yes, what happened is that-
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I'm just looking for a record site.
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The record is the jury went out and deliberated
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for several hours subject to a Tuey instruction,
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which is designed to encourage a jury
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to reach a verdict when they've declared an impasse.
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Right, so I understand your answer to be,
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there's nothing in the record to indicate
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that they were any at any less of an impasse
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than they were when they sent the second note.
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No, and I would contend
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that all three notes are ambiguous.
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The defense-
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That was not the argument you made below.
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The argument made by trial counsel
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was to argue not for a mistrial,
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they never asked for a mistrial.
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I understand, but there was no argument
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00:12:30.300 --> 00:12:33.093
that these notes were ambiguous down below, correct?
269
00:12:34.350 --> 00:12:36.480
Down below at the trial court, yes,
270
00:12:36.480 --> 00:12:39.554
the argument made on the motion to dismiss
271
00:12:39.554 --> 00:12:40.387
was that there was ambiguity.
272
00:12:40.387 --> 00:12:41.280
No, at the time,
273
00:12:41.280 --> 00:12:44.670
not at the motion to dismiss, at the time.
274
00:12:44.670 --> 00:12:46.470
They had no opportunity at the time-
275
00:12:46.470 --> 00:12:47.303
First note,
276
00:12:47.303 --> 00:12:49.800
was there an argument made concerning ambiguity
277
00:12:49.800 --> 00:12:52.230
in response to the first note reporting impasse?
278
00:12:52.230 --> 00:12:53.063
No, there was a request for two.
279
00:12:53.063 --> 00:12:54.870
Was there any ambiguity argument made
280
00:12:54.870 --> 00:12:56.640
in response to the second note?
281
00:12:56.640 --> 00:12:57.929
There was a request for Tuey.
282
00:12:57.929 --> 00:12:58.806
Right.
283
00:12:58.806 --> 00:13:00.540
But the only time that I suggest matters
284
00:13:00.540 --> 00:13:03.030
is the third note where they had no opportunity
285
00:13:03.030 --> 00:13:04.140
to make that argument.
286
00:13:04.140 --> 00:13:05.070
Why would that be?
287
00:13:05.070 --> 00:13:08.280
Why would we just focus not on the totality
288
00:13:08.280 --> 00:13:11.010
of the three notes, but just the last note?
289
00:13:11.010 --> 00:13:13.770
Why is that in your opinion,
290
00:13:13.770 --> 00:13:15.900
or actually citing any legal authority,
291
00:13:15.900 --> 00:13:17.820
why would that be the critical moment?
292
00:13:17.820 --> 00:13:19.608
Because before that,
293
00:13:19.608 --> 00:13:23.310
there's at least an impasse on one count,
294
00:13:23.310 --> 00:13:25.980
and there is no obligation on a trial court
295
00:13:25.980 --> 00:13:30.450
in terms of timing when to seek a partial verdict.
296
00:13:30.450 --> 00:13:32.190
When Judge (indistinct) asked me
297
00:13:32.190 --> 00:13:34.170
for what the three alternatives are,
298
00:13:34.170 --> 00:13:36.060
one of the alternatives was simply
299
00:13:36.060 --> 00:13:38.340
to ask the jury what it meant.
300
00:13:38.340 --> 00:13:42.180
The second was to apply rule 27B,
301
00:13:42.180 --> 00:13:45.360
which says before a mistrial,
302
00:13:45.360 --> 00:13:48.510
a court may request of a jury,
303
00:13:48.510 --> 00:13:50.610
whether or not they've reached any decision
304
00:13:50.610 --> 00:13:51.735
on any of the other counts.
305
00:13:51.735 --> 00:13:52.568
The reporter's notes-
306
00:13:52.568 --> 00:13:55.230
Well, at the moment of the declaration
307
00:13:55.230 --> 00:14:00.180
of the mistrial, what suggested in the notes,
308
00:14:00.180 --> 00:14:01.013
the three notes,
309
00:14:01.013 --> 00:14:06.013
that there was any agreement as to any of the three charges?
310
00:14:06.090 --> 00:14:07.320
Facially-
Nothing.
311
00:14:07.320 --> 00:14:09.000
They said they were at an impasse
312
00:14:09.000 --> 00:14:11.610
and the court has an obligation
313
00:14:11.610 --> 00:14:15.060
to carefully consider all alternatives under
314
00:14:15.060 --> 00:14:16.350
Taylor and Stewart.
315
00:14:16.350 --> 00:14:18.420
There's no evidence on this record
316
00:14:18.420 --> 00:14:21.240
that the trial court made that consideration.
317
00:14:21.240 --> 00:14:25.800
Well, after the first note she asked counsel
318
00:14:25.800 --> 00:14:30.030
and the prosecutor, what do you think?
319
00:14:30.030 --> 00:14:33.294
And I thought defense counsel argued
320
00:14:33.294 --> 00:14:36.000
they've exhausted their review
321
00:14:36.000 --> 00:14:39.300
of the evidence and so give the two Rodriguez
322
00:14:39.300 --> 00:14:41.735
and the prosecutor said, not yet.
323
00:14:41.735 --> 00:14:44.820
And she said, yes, not yet.
324
00:14:44.820 --> 00:14:46.770
And then there was the second note where again,
325
00:14:46.770 --> 00:14:49.920
they report that they're in an impasse quite eloquently.
326
00:14:49.920 --> 00:14:53.339
And again, at that point the prosecutor says,
327
00:14:53.339 --> 00:14:57.703
don't give the Tuey-Rodriguez and the defense counsel says,
328
00:14:57.703 --> 00:15:00.390
yes, go ahead and give Tuey-Rodriguez.
329
00:15:00.390 --> 00:15:02.280
And she considers that alternative
330
00:15:02.280 --> 00:15:04.320
and gives the Tuey-Rodriguez instruction.
331
00:15:04.320 --> 00:15:06.480
Yes.
Now we have the third note.
332
00:15:06.480 --> 00:15:10.320
We've tried, we've really tried on all the charges.
333
00:15:10.320 --> 00:15:13.740
Some of us agreed that beyond a reasonable doubt
334
00:15:13.740 --> 00:15:16.050
that the elements of each of the charges
335
00:15:16.050 --> 00:15:20.171
have been established, some of us do not.
336
00:15:20.171 --> 00:15:24.030
And at that point, she's considered the alternatives.
337
00:15:24.030 --> 00:15:28.140
Let them continue to deliberate, give the Tuey-Rodriguez,
338
00:15:28.140 --> 00:15:32.490
and the third time it sounds like
339
00:15:32.490 --> 00:15:33.750
that everybody's in an impasse.
340
00:15:33.750 --> 00:15:35.220
That's all the information she has.
341
00:15:35.220 --> 00:15:39.750
And that's part of the perils of not providing counsel
342
00:15:39.750 --> 00:15:43.290
with an opportunity to be heard, which is what was required.
343
00:15:43.290 --> 00:15:45.830
Because we don't know that the jury notes one
344
00:15:45.830 --> 00:15:50.520
in two didn't also relate to one rather than three counts.
345
00:15:50.520 --> 00:15:52.890
What the defense wanted was a verdict.
346
00:15:52.890 --> 00:15:54.777
If you want a mistrial, you ask for one.
347
00:15:54.777 --> 00:15:56.730
So, your rule would be
348
00:15:56.730 --> 00:16:01.170
that anytime there's more than one charge,
349
00:16:01.170 --> 00:16:03.870
the judge must ask,
350
00:16:03.870 --> 00:16:07.440
when the jury reports back that there they're in an impasse,
351
00:16:07.440 --> 00:16:09.660
the judge must then ask.
352
00:16:09.660 --> 00:16:13.020
Well, are you at an impasse as to count one?
353
00:16:13.020 --> 00:16:16.800
Are you at an impasse as to count two, as to count three?
354
00:16:16.800 --> 00:16:18.210
That the rule?
355
00:16:18.210 --> 00:16:20.160
When there's a multiple count indictment,
356
00:16:20.160 --> 00:16:24.180
that's the rule as described by the reporter to 27B,
357
00:16:24.180 --> 00:16:27.750
which is a trial court must make that inquiry
358
00:16:27.750 --> 00:16:29.520
before ordering a mistrial.
359
00:16:29.520 --> 00:16:31.317
I thought there it was a may, Mr. Weinberg.
360
00:16:31.317 --> 00:16:34.080
The may was in the rule, the reporter's note says,
361
00:16:34.080 --> 00:16:37.500
must I would argue the may relates to timing.
362
00:16:37.500 --> 00:16:39.060
In other words, there's no obligation
363
00:16:39.060 --> 00:16:42.129
of a judge at any particular time to ask the jury
364
00:16:42.129 --> 00:16:44.130
whether there's a partial verdict.
365
00:16:44.130 --> 00:16:46.650
But if you're gonna issue a mistrial order,
366
00:16:46.650 --> 00:16:48.530
that's where the must comes in.
367
00:16:48.530 --> 00:16:51.600
In the ordinary case, the the foreperson will say,
368
00:16:51.600 --> 00:16:54.960
we've got a verdict on counts one and seven
369
00:16:54.960 --> 00:16:58.020
and we seal them and then we continue on
370
00:16:58.020 --> 00:17:00.963
and we can mistry the remaining counts, correct?
371
00:17:02.070 --> 00:17:05.670
When you say it wouldn't be coercive to ask,
372
00:17:05.670 --> 00:17:09.090
am I right to assume that you're relying on rule 27B?
373
00:17:09.090 --> 00:17:12.180
27B and the distinction in the Roth case,
374
00:17:12.180 --> 00:17:14.640
which is there is a risk of coercion
375
00:17:14.640 --> 00:17:17.850
if you're dealing with a single count with multiples.
376
00:17:17.850 --> 00:17:21.065
But 27B preempts that in terms
377
00:17:21.065 --> 00:17:23.700
of the importance of a mistrial lawyer-
378
00:17:23.700 --> 00:17:25.767
In your argument to justice Wendlandt,
379
00:17:25.767 --> 00:17:29.100
and I guess to me as well in the court
380
00:17:29.100 --> 00:17:33.450
is that that is not discretionary.
381
00:17:33.450 --> 00:17:35.404
My argument is that given
382
00:17:35.404 --> 00:17:38.610
the core values of double jeopardy,
383
00:17:38.610 --> 00:17:43.500
that unless the defense consents to the mistrial order,
384
00:17:43.500 --> 00:17:47.730
the court has to comply with the guidance, the principles,
385
00:17:47.730 --> 00:17:50.190
the mandates of Stewart and Taylor,
386
00:17:50.190 --> 00:17:52.200
and here they complied with neither one of them.
387
00:17:52.200 --> 00:17:54.840
And that's absent any other evidence
388
00:17:54.840 --> 00:17:56.460
as far as the deliberations go
389
00:17:56.460 --> 00:17:59.460
and the notes that there's an agreement
390
00:17:59.460 --> 00:18:02.269
or at least partial agreement on a particular verdict.
391
00:18:02.269 --> 00:18:03.270
Correct?
392
00:18:03.270 --> 00:18:04.560
Yes.
393
00:18:04.560 --> 00:18:07.494
Those notes was subject to one of two interpretations
394
00:18:07.494 --> 00:18:10.290
and given the obligation of a trial court
395
00:18:10.290 --> 00:18:12.180
to consider all alternatives,
396
00:18:12.180 --> 00:18:14.670
including the alternative post Tuey
397
00:18:14.670 --> 00:18:17.070
of seeing whether the jury wanted to deliberate
398
00:18:17.070 --> 00:18:18.690
on any one of the three counts,
399
00:18:18.690 --> 00:18:20.490
which is part of the statute,
400
00:18:20.490 --> 00:18:25.260
I think it's 268 34C, that's a third alternative.
401
00:18:25.260 --> 00:18:27.900
Here, the problem is the record doesn't reflect
402
00:18:27.900 --> 00:18:29.880
the trial judge's consideration.
403
00:18:29.880 --> 00:18:30.713
As a matter of fact-
404
00:18:30.713 --> 00:18:31.546
These alternatives.
405
00:18:31.546 --> 00:18:34.380
Were there three separate verdict forms?
406
00:18:34.380 --> 00:18:37.980
There was actually more than three verdict forms
407
00:18:37.980 --> 00:18:41.490
because the verdicts on count two had multiple,
408
00:18:41.490 --> 00:18:42.542
had they had three different options.
409
00:18:42.542 --> 00:18:43.950
So count one and three,
410
00:18:43.950 --> 00:18:46.710
were there separate verdict forms for those?
411
00:18:46.710 --> 00:18:48.810
I believe there was, there were separate forms,
412
00:18:48.810 --> 00:18:51.000
but there was, you know, guilty not guilty.
413
00:18:51.000 --> 00:18:53.550
Count one, count three and count two.
414
00:18:53.550 --> 00:18:55.350
There was supplemental instructions
415
00:18:55.350 --> 00:18:57.030
and an amended verdict form
416
00:18:57.030 --> 00:18:59.310
to make sure the jury had options
417
00:18:59.310 --> 00:19:01.640
that were consistent with the law of the SJC
418
00:19:01.640 --> 00:19:04.293
as to how you deal with lesser included.
419
00:19:05.219 --> 00:19:06.473
Can I ask?
420
00:19:06.473 --> 00:19:08.138
Sorry, are you done?
421
00:19:08.138 --> 00:19:10.680
So I'd like to ask, how are you...?
422
00:19:10.680 --> 00:19:13.920
The judge says she can't ask the questions
423
00:19:13.920 --> 00:19:16.320
that you're saying she could
424
00:19:16.320 --> 00:19:19.830
without interjecting herself in deliberation.
425
00:19:19.830 --> 00:19:22.237
So let me read what she says.
426
00:19:22.237 --> 00:19:24.360
"While the defendant contends that the conflict
427
00:19:24.360 --> 00:19:26.460
is reflective of the fact that the instruction given
428
00:19:26.460 --> 00:19:28.890
to the jury by the court were confusing,
429
00:19:28.890 --> 00:19:30.270
determining whether this is true
430
00:19:30.270 --> 00:19:32.970
would necessarily require inquiring into the back
431
00:19:32.970 --> 00:19:36.057
and forth among the jurors during deliberations."
432
00:19:36.057 --> 00:19:37.288
Can you tell us how?
433
00:19:37.288 --> 00:19:38.121
Yes.
434
00:19:38.121 --> 00:19:39.960
Why? How would she do this?
435
00:19:39.960 --> 00:19:43.260
She doesn't envision a way that she could ask
436
00:19:43.260 --> 00:19:46.136
the questions you're talking about without requiring them
437
00:19:46.136 --> 00:19:49.110
to explain whether they took votes,
438
00:19:49.110 --> 00:19:51.840
how they took votes and what the votes were.
439
00:19:51.840 --> 00:19:54.600
Just tell me what your thought process is on that.
440
00:19:54.600 --> 00:19:55.950
Well, my thought process one
441
00:19:55.950 --> 00:19:59.863
is that this court has the option of essentially informing
442
00:19:59.863 --> 00:20:02.340
the court what questions could be asked.
443
00:20:02.340 --> 00:20:03.472
And two if we're gonna delegate-
444
00:20:03.472 --> 00:20:06.751
But they're gonna re require follow up questions.
445
00:20:06.751 --> 00:20:11.160
And unlike extraneous influences where you can say, okay,
446
00:20:11.160 --> 00:20:14.100
we only want to inquire about whether
447
00:20:14.100 --> 00:20:16.280
there was a racist statement made or something
448
00:20:16.280 --> 00:20:18.180
to that effect, this is different.
449
00:20:18.180 --> 00:20:19.630
We're gonna have to require
450
00:20:21.060 --> 00:20:23.781
what their votes were and how solid they were.
451
00:20:23.781 --> 00:20:27.240
Isn't that gonna get into deliberations inevitably?
452
00:20:27.240 --> 00:20:30.112
I think you can ask about the results of deliberations.
453
00:20:30.112 --> 00:20:32.494
I would design it by saying an instruction
454
00:20:32.494 --> 00:20:35.427
to the jury to not disclose the content
455
00:20:35.427 --> 00:20:38.490
or your processes of deliberation,
456
00:20:38.490 --> 00:20:41.430
but I want to ask you the following questions.
457
00:20:41.430 --> 00:20:44.550
One, did you take a vote on count one?
458
00:20:44.550 --> 00:20:46.440
What was your vote?
459
00:20:46.440 --> 00:20:49.080
Was the vote unanimous amongst other jurors?
460
00:20:49.080 --> 00:20:50.520
Was the vote final?
461
00:20:50.520 --> 00:20:51.900
Was it ever reconsidered or rediscussed?
462
00:20:51.900 --> 00:20:54.420
That question, was it final?
463
00:20:54.420 --> 00:20:55.783
Isn't that gonna...?
464
00:20:56.670 --> 00:20:59.100
The jury can change its mind, right?
465
00:20:59.100 --> 00:21:00.060
Could, but there's no way-
466
00:21:00.060 --> 00:21:03.202
But isn't that gonna result in asking that type
467
00:21:03.202 --> 00:21:04.410
of question?
468
00:21:04.410 --> 00:21:06.597
When you say final, you know,
469
00:21:07.880 --> 00:21:11.280
if you don't get your way on two, is it final?
470
00:21:11.280 --> 00:21:13.410
Was it ever reconsidered?
471
00:21:13.410 --> 00:21:17.400
You know, my contention based on these jury declarations,
472
00:21:17.400 --> 00:21:19.200
based on the voicemail,
473
00:21:19.200 --> 00:21:22.440
based on the fact that in this highly publicized case,
474
00:21:22.440 --> 00:21:27.120
no other juror who they serve for months says to anybody,
475
00:21:27.120 --> 00:21:29.970
to the court, to the clerk, to the court officers,
476
00:21:29.970 --> 00:21:32.659
to the prosecutor, I didn't agree.
477
00:21:32.659 --> 00:21:34.920
They also don't write in saying we agree with
478
00:21:34.920 --> 00:21:37.800
the other five or anything to that effect.
479
00:21:37.800 --> 00:21:41.370
They're silent as their deliberations are supposed
480
00:21:41.370 --> 00:21:42.407
to be silent, right?
481
00:21:42.407 --> 00:21:43.240
See.
482
00:21:43.240 --> 00:21:45.330
But it's an almost unprecedented meeting
483
00:21:45.330 --> 00:21:47.100
of a burden of production.
484
00:21:47.100 --> 00:21:50.070
If this was a sixth amendment issue,
485
00:21:50.070 --> 00:21:52.080
the jurisprudence of the court
486
00:21:52.080 --> 00:21:54.510
would compel a post jury inquiry.
487
00:21:54.510 --> 00:21:57.840
The Fifth Amendment values are just as important.
488
00:21:57.840 --> 00:22:00.090
Questions can be designed,
489
00:22:00.090 --> 00:22:03.360
whether it's final or was it ever reconsidered
490
00:22:03.360 --> 00:22:05.790
that would demonstrate what we contend.
491
00:22:05.790 --> 00:22:07.560
These were final votes.
492
00:22:07.560 --> 00:22:09.600
This was the end of counts one and three.
493
00:22:09.600 --> 00:22:12.480
It's exactly what juror D says.
494
00:22:12.480 --> 00:22:13.890
We went to the bus and says,
495
00:22:13.890 --> 00:22:16.560
no one's ever gonna know that we voted but isn't to acquit.
496
00:22:16.560 --> 00:22:18.150
Isn't that part of the problem?
497
00:22:18.150 --> 00:22:21.390
And isn't that what Bluford councils against?
498
00:22:21.390 --> 00:22:26.194
Because you keep saying that whatever was done on counts one
499
00:22:26.194 --> 00:22:28.170
and three were fixed.
500
00:22:28.170 --> 00:22:30.049
And despite the fact that there was potentially
501
00:22:30.049 --> 00:22:32.577
still some uncertainty about where the folks were
502
00:22:32.577 --> 00:22:36.000
on count two, that that could never change
503
00:22:36.000 --> 00:22:39.030
in the continuing deliberation about count two.
504
00:22:39.030 --> 00:22:42.240
And isn't that what Justice Roberts was talking about?
505
00:22:42.240 --> 00:22:45.180
The deliberations weren't finished, they weren't finalized,
506
00:22:45.180 --> 00:22:47.220
and you keep using that term,
507
00:22:47.220 --> 00:22:49.109
but there's still opportunity for folks
508
00:22:49.109 --> 00:22:51.614
to change their positions in the context
509
00:22:51.614 --> 00:22:54.960
of the continuing deliberations on count two
510
00:22:54.960 --> 00:22:56.910
when it's lesser included.
511
00:22:56.910 --> 00:22:58.380
So what's the...?
512
00:22:58.380 --> 00:23:03.380
I guess what's your best authority to say that it was fixed
513
00:23:03.768 --> 00:23:06.302
for all time and for all deliberations
514
00:23:06.302 --> 00:23:08.220
and there was no opportunity,
515
00:23:08.220 --> 00:23:10.620
particularly when we don't know that no one
516
00:23:10.620 --> 00:23:13.890
to Justice Kafker's point, has called and said, Hey, me too.
517
00:23:13.890 --> 00:23:17.940
We believe the same thing for the court to say that
518
00:23:17.940 --> 00:23:20.670
this is what it meant for all time.
519
00:23:20.670 --> 00:23:23.040
And the answer to the question,
520
00:23:23.040 --> 00:23:26.730
and I understand the question in the Bluford case, you know,
521
00:23:26.730 --> 00:23:29.820
we had the return under Arkansas law,
522
00:23:29.820 --> 00:23:32.310
which prohibited partial verdicts.
523
00:23:32.310 --> 00:23:34.650
The jury said that they'd reached a decision,
524
00:23:34.650 --> 00:23:37.434
they were sent out again and then they said they had changed
525
00:23:37.434 --> 00:23:40.140
that decision and were at an impasse.
526
00:23:40.140 --> 00:23:43.916
In this case, a post jury voir dire can ask about whether
527
00:23:43.916 --> 00:23:46.440
or not you took a vote.
528
00:23:46.440 --> 00:23:50.483
Was it unanimous that doesn't intrude on the values of 606B?
529
00:23:50.483 --> 00:23:54.630
Was the vote ever reconsidered? Was it final?
530
00:23:54.630 --> 00:23:56.490
But that's my point.
531
00:23:56.490 --> 00:23:59.550
If you stop right there and say that's the end
532
00:23:59.550 --> 00:24:02.341
of the inquiry, that's really not true,
533
00:24:02.341 --> 00:24:04.680
because there's still deliberations
534
00:24:04.680 --> 00:24:08.850
that are left on count two that might inform
535
00:24:08.850 --> 00:24:12.300
a juror's change of position on count one and three.
536
00:24:12.300 --> 00:24:15.450
And that could be the subject of a jury inquiry
537
00:24:15.450 --> 00:24:17.977
as to whether or not the unanimous vote
538
00:24:17.977 --> 00:24:21.930
that acquitted misread of murder and leaving the scene
539
00:24:21.930 --> 00:24:23.730
was ever reconsidered it.
540
00:24:23.730 --> 00:24:26.460
You can ask for a result without probing
541
00:24:26.460 --> 00:24:30.288
into a mental process, into the content of deliberation.
542
00:24:30.288 --> 00:24:33.660
The values at stake here are too important.
543
00:24:33.660 --> 00:24:37.020
Yes, in the McCabe case, you know,
544
00:24:37.020 --> 00:24:40.560
we allow a court to ask about mental processes.
545
00:24:40.560 --> 00:24:42.989
Was there communications of bias?
546
00:24:42.989 --> 00:24:46.630
In Fiddler, they talked about the communication of evidence
547
00:24:46.630 --> 00:24:49.560
that wasn't received through the gatekeeper function
548
00:24:49.560 --> 00:24:51.330
of the trial court.
549
00:24:51.330 --> 00:24:52.890
This is important.
550
00:24:52.890 --> 00:24:55.310
Ms. Read was acquitted by those jurors
551
00:24:55.310 --> 00:24:57.330
and we should have the opportunity
552
00:24:57.330 --> 00:25:01.671
or not acquitted there was we contend a unanimous vote.
553
00:25:01.671 --> 00:25:03.540
We should have the opportunity
554
00:25:03.540 --> 00:25:06.390
to have Judge Cannone conduct a voir dire.
555
00:25:06.390 --> 00:25:11.370
It's done when one juror says there was a statement of bias,
556
00:25:11.370 --> 00:25:13.746
when one juror says there was contact with an external-
557
00:25:13.746 --> 00:25:18.480
Right, but when it's an extraneous source,
558
00:25:18.480 --> 00:25:22.200
then you need not get into deliberations,
559
00:25:22.200 --> 00:25:25.830
but as I listen to you suggest questions
560
00:25:25.830 --> 00:25:28.320
that the trial judge could have asked,
561
00:25:28.320 --> 00:25:31.625
it seems to me those questions go directly
562
00:25:31.625 --> 00:25:34.110
to the jury deliberations.
563
00:25:34.110 --> 00:25:37.437
And I would con contend they go to the results
564
00:25:37.437 --> 00:25:41.647
of the deliberations, they do not require a judge to ask,
565
00:25:41.647 --> 00:25:43.593
"Why did you vote not guilty?
566
00:25:44.490 --> 00:25:46.268
What led you to vote not guilty? Did you vote not guilty."
567
00:25:46.268 --> 00:25:50.133
So the question asked to juror F would be,
568
00:25:50.133 --> 00:25:51.990
"Was that vote final?"
569
00:25:51.990 --> 00:25:54.787
Yes.
Juror F's answer would be,
570
00:25:54.787 --> 00:25:59.010
"Well, no, it kind of depended on
571
00:25:59.010 --> 00:26:02.343
how I would've voted on count two.
572
00:26:03.630 --> 00:26:05.520
We were not yet done."
573
00:26:05.520 --> 00:26:09.450
And that would reflect two things.
574
00:26:09.450 --> 00:26:11.580
The jury deliberations, right?
575
00:26:11.580 --> 00:26:14.070
That would reflect that the voir dire
576
00:26:14.070 --> 00:26:17.160
by the judge did not lead to a result
577
00:26:17.160 --> 00:26:20.880
of a final unanimous verdict of not guilty,
578
00:26:20.880 --> 00:26:23.130
but to foreclose those inquiries
579
00:26:23.130 --> 00:26:25.320
when there's a real possibility,
580
00:26:25.320 --> 00:26:30.000
12 jurors are going to say to Judge Cannone if conducted,
581
00:26:30.000 --> 00:26:32.790
that was my vote, it was not guilty.
582
00:26:32.790 --> 00:26:35.490
We never reconsidered it, we considered her innocent.
583
00:26:35.490 --> 00:26:38.490
We didn't think she intentionally killed anyone.
584
00:26:38.490 --> 00:26:41.370
We should not be foreclosed from having that option.
585
00:26:41.370 --> 00:26:43.040
It seems to me that what you
586
00:26:43.040 --> 00:26:48.040
in effect asking via a post-trial inquiry
587
00:26:49.260 --> 00:26:51.916
is to discover whether the jury disregarded
588
00:26:51.916 --> 00:26:54.030
the jury instructions.
589
00:26:54.030 --> 00:26:55.620
And the reason why I say that
590
00:26:55.620 --> 00:26:59.790
is that the jury were instructed to return
591
00:26:59.790 --> 00:27:02.490
a verdict after the final vote,
592
00:27:02.490 --> 00:27:06.810
and I'm using that as a direct quote of the jury.
593
00:27:06.810 --> 00:27:08.550
So when they had a final vote,
594
00:27:08.550 --> 00:27:11.340
they were then to check the appropriate boxes
595
00:27:11.340 --> 00:27:15.060
as to each charge, then sign and date the verdict slips.
596
00:27:15.060 --> 00:27:17.823
And it seems to me, or at least please correct me,
597
00:27:19.260 --> 00:27:22.080
why isn't this post verdict inquiry
598
00:27:22.080 --> 00:27:27.080
that you're suggesting actually an attempt to try
599
00:27:28.650 --> 00:27:32.430
to establish that the jury didn't follow the instructions.
600
00:27:32.430 --> 00:27:35.700
And we have a long line of jurisprudence
601
00:27:35.700 --> 00:27:38.860
that says we presume that the jury follows the instructions.
602
00:27:38.860 --> 00:27:42.360
Okay, and there is cases where
603
00:27:42.360 --> 00:27:45.210
when mistakes are made by jurors,
604
00:27:45.210 --> 00:27:47.820
where they don't fill out the verdict slip accurately.
605
00:27:47.820 --> 00:27:49.983
That's not this case though.
606
00:27:49.983 --> 00:27:54.983
No, this case I think is a stronger case for a voir dire
607
00:27:55.020 --> 00:27:57.540
because we're not impeaching a verdict.
608
00:27:57.540 --> 00:27:59.010
We're explaining a note.
609
00:27:59.010 --> 00:28:03.060
We're asking the jury to resolve an ambiguity
610
00:28:03.060 --> 00:28:05.820
within the note that the trial court didn't realize
611
00:28:05.820 --> 00:28:08.190
in part because they didn't provide an opportunity
612
00:28:08.190 --> 00:28:11.640
for argument, in part because they used the procedure
613
00:28:11.640 --> 00:28:15.390
that's totally at odds with this court's jurisprudence
614
00:28:15.390 --> 00:28:17.100
in Steward and Taylor,
615
00:28:17.100 --> 00:28:19.950
and before we get to the voir dir issue,
616
00:28:19.950 --> 00:28:21.957
we contest there was no manifest necessity in the-
617
00:28:21.957 --> 00:28:24.750
Okay, before you shift back to that,
618
00:28:24.750 --> 00:28:27.330
what's the best case?
619
00:28:27.330 --> 00:28:29.220
Because we're interpreting federal law here.
620
00:28:29.220 --> 00:28:31.860
What's the best closest case,
621
00:28:31.860 --> 00:28:34.140
and not an extraneous influence case,
622
00:28:34.140 --> 00:28:39.140
allowing this type of probing after what's...?
623
00:28:39.570 --> 00:28:42.360
If we wanna go back and read one case that's...
624
00:28:42.360 --> 00:28:43.620
Do what you want us to do,
625
00:28:43.620 --> 00:28:45.213
but what's the closest case?
626
00:28:45.213 --> 00:28:47.400
It's actually a Mississippi case.
627
00:28:47.400 --> 00:28:49.290
I think it's named Martin versus State
628
00:28:49.290 --> 00:28:50.654
that the Aimigi brief-
629
00:28:50.654 --> 00:28:51.790
that's a state court case.
630
00:28:51.790 --> 00:28:52.623
They read the newspaper.
631
00:28:52.623 --> 00:28:53.910
It's a court case, right?
632
00:28:53.910 --> 00:28:54.743
It is.
633
00:28:54.743 --> 00:28:55.920
Any federal cases.
634
00:28:55.920 --> 00:28:59.009
'Cause again, this is a federal constitutional issue.
635
00:28:59.009 --> 00:29:00.210
So you know there are cases
636
00:29:00.210 --> 00:29:03.480
where jurors correct verdicts.
637
00:29:03.480 --> 00:29:05.095
No, no federal case.
638
00:29:05.095 --> 00:29:05.963
This is-
639
00:29:05.963 --> 00:29:07.140
That has the...
640
00:29:07.140 --> 00:29:11.270
You're asking us to direct Judge Cannone to do this.
641
00:29:11.270 --> 00:29:14.460
It would be helpful if you have a federal example
642
00:29:14.460 --> 00:29:18.270
that we can turn to 'cause we we're interpreting federal law
643
00:29:18.270 --> 00:29:19.540
not our own law here.
644
00:29:19.540 --> 00:29:22.920
Well, this court has a long history of filing federal-
645
00:29:22.920 --> 00:29:25.324
We don't have any cases except extraneous influence case.
646
00:29:25.324 --> 00:29:28.000
I'm just looking, again your chance.
647
00:29:28.000 --> 00:29:28.863
You do have-
648
00:29:28.863 --> 00:29:31.020
This case that we should look at for you.
649
00:29:31.020 --> 00:29:34.080
You do have one example, which is the McAlack case,
650
00:29:34.080 --> 00:29:36.060
which follows his Supreme Court case
651
00:29:36.060 --> 00:29:38.414
and allows the jurors to disclose
652
00:29:38.414 --> 00:29:42.690
their deliberations regarding ethnicity racial bias.
653
00:29:42.690 --> 00:29:44.790
Again, that's extraneous influence,
654
00:29:44.790 --> 00:29:45.623
it's different.
655
00:29:45.623 --> 00:29:47.070
It's internal.
656
00:29:47.070 --> 00:29:50.040
I think it's closer to the core of 606B,
657
00:29:50.040 --> 00:29:52.710
No federal case we can turn to, for example.
658
00:29:52.710 --> 00:29:55.185
Nor has the prosecutor come up with any case
659
00:29:55.185 --> 00:29:56.430
to the contrary.
660
00:29:56.430 --> 00:29:58.350
This showing by this jury,
661
00:29:58.350 --> 00:30:01.239
it's not gonna open the flood gates for post voir dire.
662
00:30:01.239 --> 00:30:03.690
Well actually that was my question.
663
00:30:03.690 --> 00:30:06.210
What's the limiting principle here?
664
00:30:06.210 --> 00:30:09.960
It sounds like if ever a juror comes back
665
00:30:09.960 --> 00:30:12.390
to the defendant and says, "Hey, you know,
666
00:30:12.390 --> 00:30:15.933
that's not really what happened," then we open it up.
667
00:30:16.980 --> 00:30:20.370
This would not be a case where a juror has second thoughts
668
00:30:20.370 --> 00:30:23.430
is reconsidering didn't think she was...
669
00:30:23.430 --> 00:30:26.760
You know, he or she was listened to in the jury room.
670
00:30:26.760 --> 00:30:28.663
These are representations
671
00:30:28.663 --> 00:30:33.210
by four jurors that were unequivocal, unconditional.
672
00:30:33.210 --> 00:30:36.570
They said we reached a final verdict of not guilty,
673
00:30:36.570 --> 00:30:37.748
and I urge to-
674
00:30:37.748 --> 00:30:39.120
So the jurors submitted affidavits?
675
00:30:39.120 --> 00:30:43.620
The jurors would submit affidavits if we asked the judge,
676
00:30:43.620 --> 00:30:46.530
if you're not gonna accept the lawyer's affidavits,
677
00:30:46.530 --> 00:30:49.338
please authorize the lawyers to go back to the jurors.
678
00:30:49.338 --> 00:30:54.338
But we didn't want to walk near the boundaries of 606B.
679
00:30:54.510 --> 00:30:58.927
The judge accepted the truth of the lawyer's affidavits
680
00:30:58.927 --> 00:31:02.790
as a substitute for the juror's affidavits, but again,
681
00:31:02.790 --> 00:31:04.500
let us voir dire the jurors.
682
00:31:04.500 --> 00:31:08.430
The judge has the power to make a decision.
683
00:31:08.430 --> 00:31:11.490
Was there a unanimous verdict of not guilty?
684
00:31:11.490 --> 00:31:14.700
But our review is an abusive discretion.
685
00:31:14.700 --> 00:31:16.260
Why was it an abusive discretion
686
00:31:16.260 --> 00:31:18.270
for her to deny you that ability?
687
00:31:18.270 --> 00:31:21.685
Because the Stewart case says the def deferential,
688
00:31:21.685 --> 00:31:24.720
you know, appellate review depends
689
00:31:24.720 --> 00:31:27.090
on whether or not there's proof of compliance
690
00:31:27.090 --> 00:31:29.670
with the principles set forth in Stewart.
691
00:31:29.670 --> 00:31:33.090
Meaning did the judge carefully consider all the options?
692
00:31:33.090 --> 00:31:37.500
Did the judge give the defense a full opportunity?
693
00:31:37.500 --> 00:31:39.660
These were mandates, not discretions,
694
00:31:39.660 --> 00:31:42.000
they're condition precedent
695
00:31:42.000 --> 00:31:44.880
to the declaration of manifest necessity.
696
00:31:44.880 --> 00:31:47.580
It simply wasn't followed in this case.
697
00:31:47.580 --> 00:31:51.150
It wasn't followed the basic rules, it's Floyd P,
698
00:31:51.150 --> 00:31:53.250
which is when a jury gives a note,
699
00:31:53.250 --> 00:31:55.980
you share it with counsel, you listen to counsel,
700
00:31:55.980 --> 00:31:57.150
you get their views.
701
00:31:57.150 --> 00:31:58.800
We don't know whether counsel
702
00:31:58.800 --> 00:32:02.370
would've advised the judge about 27B
703
00:32:02.370 --> 00:32:05.063
or would've asked the judge to ask the jury whether counsel-
704
00:32:05.063 --> 00:32:06.869
Can I go backwards on that?
705
00:32:06.869 --> 00:32:07.702
Sure.
706
00:32:07.702 --> 00:32:10.080
Because part of my...
707
00:32:10.080 --> 00:32:13.890
I don't know what part of this goes into the calculus,
708
00:32:13.890 --> 00:32:18.890
but you have two extremely experienced trial lawyers.
709
00:32:18.936 --> 00:32:23.936
No one in that room would ever think potentially
710
00:32:24.450 --> 00:32:29.160
a mistrial may be declared after Tuey-Rodriguez is given.
711
00:32:29.160 --> 00:32:31.980
There isn't any a lawyer that's worth their salt
712
00:32:31.980 --> 00:32:35.661
that wouldn't think they might get a mistrial on this.
713
00:32:35.661 --> 00:32:38.820
So you know where the puck may be going
714
00:32:38.820 --> 00:32:41.460
when it comes to giving the Tuey-Rodriguez
715
00:32:41.460 --> 00:32:44.130
and you say that there was no manifest necessity
716
00:32:44.130 --> 00:32:46.770
for this and no opportunity to be heard.
717
00:32:46.770 --> 00:32:49.140
How do we factor in that
718
00:32:49.140 --> 00:32:51.930
you've gotta know that that's going to be on the table?
719
00:32:51.930 --> 00:32:53.520
Is that a mistrial?
720
00:32:53.520 --> 00:32:56.677
And what obligation is there on counsel to say,
721
00:32:56.677 --> 00:32:59.070
"Hey, before you declare a mistrial,
722
00:32:59.070 --> 00:33:01.128
let's talk about alternatives to that."
723
00:33:01.128 --> 00:33:03.450
Let me address that.
724
00:33:03.450 --> 00:33:06.968
Judge comes in deviates from her prior practice,
725
00:33:06.968 --> 00:33:10.260
where she gave counselor full opportunity,
726
00:33:10.260 --> 00:33:14.790
announces to the defense lawyer there's an impasse.
727
00:33:14.790 --> 00:33:16.590
Bring the jury in.
728
00:33:16.590 --> 00:33:20.010
If your honors, you know, would accept the audio video
729
00:33:20.010 --> 00:33:23.070
that again the district attorney has relied on.
730
00:33:23.070 --> 00:33:25.410
It's about 30 seconds till the jury comes in,
731
00:33:25.410 --> 00:33:27.150
but you hear a door open.
732
00:33:27.150 --> 00:33:30.420
Defense counsel don't know what's in the note.
733
00:33:30.420 --> 00:33:32.100
It hasn't been read to them.
734
00:33:32.100 --> 00:33:34.920
They don't know what the judge's intentions are.
735
00:33:34.920 --> 00:33:36.660
They don't know whether they'll be invited
736
00:33:36.660 --> 00:33:38.640
to come to the bench to discuss it.
737
00:33:38.640 --> 00:33:40.320
They have to be surprised,
738
00:33:40.320 --> 00:33:42.720
they weren't given an opportunity.
739
00:33:42.720 --> 00:33:44.820
They hear a door open,
740
00:33:44.820 --> 00:33:47.940
the jury could come in in five seconds, much less 30,
741
00:33:47.940 --> 00:33:52.080
and I stand before you with 52 years of trial experience
742
00:33:52.080 --> 00:33:54.936
to say no competent defense lawyer would risk
743
00:33:54.936 --> 00:33:59.936
the wrath of a judge or jury by interrupting that process,
744
00:33:59.940 --> 00:34:01.726
by making objections.
745
00:34:01.726 --> 00:34:02.559
So I-
746
00:34:02.559 --> 00:34:04.230
Wait, the judge said they're
747
00:34:04.230 --> 00:34:05.280
at an impasse bringing the jury?
748
00:34:05.280 --> 00:34:08.314
Bring in the jury and you can actually hear a door open.
749
00:34:08.314 --> 00:34:11.940
Okay, and you have 30 seconds to object?
750
00:34:11.940 --> 00:34:13.830
But you don't know that it's not five seconds,
751
00:34:13.830 --> 00:34:15.870
you don't know the door's not open, you don't know the jury.
752
00:34:15.870 --> 00:34:16.890
You can say, "Your honor,
753
00:34:16.890 --> 00:34:18.687
may I see you at sidebar?"
754
00:34:19.530 --> 00:34:23.910
In this case, that's happened repeatedly. No?
755
00:34:23.910 --> 00:34:27.028
Here the defense lawyers did not know
756
00:34:27.028 --> 00:34:29.040
what the judge's intentions were.
757
00:34:29.040 --> 00:34:30.510
They didn't know what was in the note.
758
00:34:30.510 --> 00:34:33.810
But they did know that the jury had reported
759
00:34:33.810 --> 00:34:35.670
to her that they were at an impasse.
760
00:34:35.670 --> 00:34:38.250
They were at an impasse, bring the jury in.
761
00:34:38.250 --> 00:34:41.220
Yes, that was possible, but to-
762
00:34:41.220 --> 00:34:42.420
What was possible?
763
00:34:42.420 --> 00:34:43.994
To ask to go to the bench, but-
764
00:34:43.994 --> 00:34:44.827
Yes.
This court-
765
00:34:44.827 --> 00:34:46.253
And did that happen?
766
00:34:46.253 --> 00:34:49.620
No, but neither did it happen that the prosecutor,
767
00:34:49.620 --> 00:34:52.200
who this court says has a heavy burden
768
00:34:52.200 --> 00:34:53.970
because they're the sovereign.
769
00:34:53.970 --> 00:34:57.750
They want to reprosecute somebody after a mistrial
770
00:34:57.750 --> 00:35:02.430
to subject them to the perils of a second prosecution.
771
00:35:02.430 --> 00:35:06.000
The trial court did not impose a burden on the prosecutor.
772
00:35:06.000 --> 00:35:08.760
They have this more of an obligation
773
00:35:08.760 --> 00:35:13.230
in double jeopardy law to raise options to a mistrial.
774
00:35:13.230 --> 00:35:17.130
And I don't think it's fair to conjecture consent
775
00:35:17.130 --> 00:35:20.910
or to penalize a defense lawyer
776
00:35:20.910 --> 00:35:24.390
when they have been relying on a procedure that's lawful,
777
00:35:24.390 --> 00:35:27.840
where defense lawyers have a full opportunity to be heard.
778
00:35:27.840 --> 00:35:29.490
They don't know what's in the note.
779
00:35:29.490 --> 00:35:32.465
She doesn't need the consent of the defense
780
00:35:32.465 --> 00:35:34.320
to declare a mistrial.
781
00:35:34.320 --> 00:35:35.640
She needs to determine
782
00:35:35.640 --> 00:35:37.527
that there was manifest necessity for a mistrial, correct?
783
00:35:37.527 --> 00:35:41.640
Because of a careful consideration of all alternatives,
784
00:35:41.640 --> 00:35:42.800
and after given-
785
00:35:42.800 --> 00:35:47.800
So that may explain why perhaps she didn't...
786
00:35:48.000 --> 00:35:52.290
The judge did not inquire was because given...
787
00:35:52.290 --> 00:35:54.960
I don't mean to replough the same territory,
788
00:35:54.960 --> 00:35:57.150
but this was the third note.
789
00:35:57.150 --> 00:35:58.590
It was the third note,
790
00:35:58.590 --> 00:36:03.360
but it was a note that demonstrated
791
00:36:03.360 --> 00:36:05.760
'cause of the deliberations between the second
792
00:36:05.760 --> 00:36:08.430
and third that the defense didn't want a mistrial,
793
00:36:08.430 --> 00:36:09.263
they wanted a verdict.
794
00:36:09.263 --> 00:36:10.950
Mr. Weinberg, are you aware of any cases
795
00:36:10.950 --> 00:36:12.000
or can you let me know?
796
00:36:12.000 --> 00:36:16.500
But there are any cases where the judge gives Tuey,
797
00:36:16.500 --> 00:36:17.760
the judge gives Tuey.
798
00:36:17.760 --> 00:36:18.593
Yep.
799
00:36:18.593 --> 00:36:20.310
And then the jury comes back and says,
800
00:36:20.310 --> 00:36:25.193
we're deadlocked is articulate as this jury was or not.
801
00:36:25.193 --> 00:36:28.020
And then the judge does something different,
802
00:36:28.020 --> 00:36:30.480
other than declare mistrial.
803
00:36:30.480 --> 00:36:35.480
Well, the statute itself says the judge has no right
804
00:36:35.940 --> 00:36:39.030
to obligate the jury to redeliberate,
805
00:36:39.030 --> 00:36:41.546
but every right to ask the jury whether
806
00:36:41.546 --> 00:36:45.000
they would consent to continue deliberations,
807
00:36:45.000 --> 00:36:45.833
and here I contest-
808
00:36:45.833 --> 00:36:47.040
But here the jury said
809
00:36:47.040 --> 00:36:50.070
to continue to deliberate would be futile
810
00:36:50.070 --> 00:36:51.660
and only serve to force us
811
00:36:51.660 --> 00:36:54.085
to compromise these deeply held beliefs.
812
00:36:54.085 --> 00:36:54.918
Yes.
813
00:36:54.918 --> 00:36:56.700
Right, and in the face of that,
814
00:36:56.700 --> 00:36:59.490
you think give it the old college try is okay?
815
00:36:59.490 --> 00:37:02.400
I think that the judge had alternatives
816
00:37:02.400 --> 00:37:04.230
that the record does not reflect
817
00:37:04.230 --> 00:37:07.140
what carefully considered including
818
00:37:07.140 --> 00:37:09.840
is your deadlock on all three counts.
819
00:37:09.840 --> 00:37:10.860
Is there any...?
820
00:37:10.860 --> 00:37:14.070
Would you consent to deliberate on any account
821
00:37:14.070 --> 00:37:17.070
that you've not reached in irrevocable deadlock?
822
00:37:17.070 --> 00:37:19.020
Questions like that are not coercive,
823
00:37:19.020 --> 00:37:22.140
questions like that would've actually given
824
00:37:22.140 --> 00:37:25.950
the illumination post July one,
825
00:37:25.950 --> 00:37:29.100
and I'm not arguing that that provides proof
826
00:37:29.100 --> 00:37:30.800
as to what the process was-
827
00:37:30.800 --> 00:37:35.130
The statutes again, is a may correct?
828
00:37:35.130 --> 00:37:39.990
The statute 27B says a court may make that request,
829
00:37:39.990 --> 00:37:42.510
but the Steward and Taylor rule, damn it,
830
00:37:42.510 --> 00:37:44.670
require careful consideration
831
00:37:44.670 --> 00:37:48.240
that at minimum was an option not considered.
832
00:37:48.240 --> 00:37:51.264
The careful consideration is basically all
833
00:37:51.264 --> 00:37:54.570
that has gone on as far as the length of deliberations,
834
00:37:54.570 --> 00:37:58.830
a number of notes, et cetera, and what the notes say.
835
00:37:58.830 --> 00:38:00.990
That's part of the calculus, correct?
836
00:38:00.990 --> 00:38:03.840
Yes, the judge made her own judgment,
837
00:38:03.840 --> 00:38:06.600
and I'm not saying the judgment was irrational,
838
00:38:06.600 --> 00:38:10.260
I'm saying that she would've been aided by counsel.
839
00:38:10.260 --> 00:38:12.240
The law required she give counsel
840
00:38:12.240 --> 00:38:13.920
an opportunity to be heard.
841
00:38:13.920 --> 00:38:15.390
There's no evidence in the record
842
00:38:15.390 --> 00:38:18.572
she considered any option except to declare a mistrial
843
00:38:18.572 --> 00:38:22.080
that contradicts the clear jurisprudence of this court.
844
00:38:22.080 --> 00:38:23.994
And I contend to contradicts
845
00:38:23.994 --> 00:38:27.626
the court protections that double jeopardy give
846
00:38:27.626 --> 00:38:29.670
to a defendant against being reprosecuted,
847
00:38:29.670 --> 00:38:32.910
which the Supreme Court has said carries with it
848
00:38:32.910 --> 00:38:35.970
the risk that an innocent person can be convicted.
849
00:38:35.970 --> 00:38:38.670
The ordeal of a second prosecution.
850
00:38:38.670 --> 00:38:41.130
This court has given procedural guidance
851
00:38:41.130 --> 00:38:42.720
conditions precedent.
852
00:38:42.720 --> 00:38:45.240
This is what the words are must.
853
00:38:45.240 --> 00:38:47.132
27B may be discretionary,
854
00:38:47.132 --> 00:38:49.470
although we argue the reporters note
855
00:38:49.470 --> 00:38:53.160
in combination with tailor required that inquiry
856
00:38:53.160 --> 00:38:54.900
about partial verdicts.
857
00:38:54.900 --> 00:38:58.920
This court has told the trial that judges ordering
858
00:38:58.920 --> 00:39:03.352
a mistrial is irrevocable and you need to go
859
00:39:03.352 --> 00:39:06.600
through certain procedural conditions precedent,
860
00:39:06.600 --> 00:39:07.890
and the judge did not.
861
00:39:07.890 --> 00:39:11.280
And I respectfully submit that extinguishes
862
00:39:11.280 --> 00:39:13.470
the principle basis
863
00:39:13.470 --> 00:39:16.500
to say there was manifest necessity in this case.
864
00:39:16.500 --> 00:39:19.260
There was never a knowing and intelligent consent.
865
00:39:19.260 --> 00:39:22.080
The defendant never asked for a mistrial.
866
00:39:22.080 --> 00:39:26.640
And at minimum, secondly, we strongly asked this court
867
00:39:26.640 --> 00:39:30.330
to extend the the sixth amendment jurisprudence
868
00:39:30.330 --> 00:39:34.350
where you allow jury voir dires into the Fifth Amendment.
869
00:39:34.350 --> 00:39:38.310
The fifth amendments is as important as the sixth Amendment.
870
00:39:38.310 --> 00:39:41.280
And a jury voir dire conducted by an experienced judge
871
00:39:41.280 --> 00:39:44.276
can determine whether or not there was a unanimous
872
00:39:44.276 --> 00:39:47.550
and final verdict of not guilty on two counts,
873
00:39:47.550 --> 00:39:50.880
one of which carries with it a life imprisonment.
874
00:39:50.880 --> 00:39:52.500
I thank you very much for the privilege
875
00:39:52.500 --> 00:39:54.090
of appearing before you today.
876
00:39:54.090 --> 00:39:55.297
Thank you.
877
00:39:55.297 --> 00:39:56.589
(paper crumpling)
878
00:39:56.589 --> 00:39:58.756
Okay Attorney Schillinger.
879
00:40:05.103 --> 00:40:06.210
Good morning, your honors.
880
00:40:06.210 --> 00:40:07.043
May it please the court,
881
00:40:07.043 --> 00:40:08.400
Caleb Schillinger for the Commonwealth.
882
00:40:08.400 --> 00:40:09.600
With me at council table
883
00:40:09.600 --> 00:40:11.820
is my colleague, ADA Laura McLaughlin.
884
00:40:11.820 --> 00:40:13.680
I'd like to start with the mistrial issue
885
00:40:13.680 --> 00:40:16.231
and emphasize a point that has been touched
886
00:40:16.231 --> 00:40:18.810
on through the questions of my brother,
887
00:40:18.810 --> 00:40:21.000
but that I think is important for the court to consider
888
00:40:21.000 --> 00:40:23.450
and that is the trial strategy here.
889
00:40:23.450 --> 00:40:27.071
As a general matter absent some sort of definite indication
890
00:40:27.071 --> 00:40:29.010
from the jury that they're prepared
891
00:40:29.010 --> 00:40:31.920
to find a defendant not guilty on a charge.
892
00:40:31.920 --> 00:40:33.900
Effective defense counsel is not going
893
00:40:33.900 --> 00:40:36.000
to ask the judge to start probing,
894
00:40:36.000 --> 00:40:38.100
or not going to want the judge to a Sponte
895
00:40:38.100 --> 00:40:40.800
to do that because doing so runs the risk
896
00:40:40.800 --> 00:40:42.330
of extracting a guilty verdict
897
00:40:42.330 --> 00:40:43.920
and convicting your client,
898
00:40:43.920 --> 00:40:46.350
instead of obtaining a mistrial across the board.
899
00:40:46.350 --> 00:40:47.640
But what do we do with the fact
900
00:40:47.640 --> 00:40:51.003
that after the third note, the jury is called in?
901
00:40:51.870 --> 00:40:53.310
There's not unlike the first
902
00:40:53.310 --> 00:40:55.620
and second note where she says, okay counsel,
903
00:40:55.620 --> 00:40:57.600
let me know what you think.
904
00:40:57.600 --> 00:41:01.410
Here, we don't have that opportunity.
905
00:41:01.410 --> 00:41:02.850
The judge did inform counsel
906
00:41:02.850 --> 00:41:04.620
that the jury was at an impasse,
907
00:41:04.620 --> 00:41:06.510
and I would argue at this point,
908
00:41:06.510 --> 00:41:10.680
it is clear that a mistrial is inevitable or unavoidable.
909
00:41:10.680 --> 00:41:13.920
If the jury has twice already returned deadlocked.
910
00:41:13.920 --> 00:41:15.750
The defendant has argued strenuously
911
00:41:15.750 --> 00:41:17.130
that they are deadlocked,
912
00:41:17.130 --> 00:41:19.110
they've been given Tuey-Rodriguez
913
00:41:19.110 --> 00:41:23.430
and now the judge informs counsel, they're at an impasse.
914
00:41:23.430 --> 00:41:25.470
At that point, counsel couldn't in credibly believe
915
00:41:25.470 --> 00:41:26.580
that the result here was going
916
00:41:26.580 --> 00:41:30.016
to be anything other than a mistrial.
917
00:41:30.016 --> 00:41:33.060
And again, in addition, just to circle back,
918
00:41:33.060 --> 00:41:34.050
all the more so your Honor,
919
00:41:34.050 --> 00:41:36.810
because of what was their defense in this case?
920
00:41:36.810 --> 00:41:38.040
The defendant's defense was
921
00:41:38.040 --> 00:41:40.230
that she didn't cause the victim's death,
922
00:41:40.230 --> 00:41:42.300
but allegedly had been framed.
923
00:41:42.300 --> 00:41:44.820
If the jury were to come back with a guilty verdict on any
924
00:41:44.820 --> 00:41:48.180
of the charges or either of the lesser included offenses,
925
00:41:48.180 --> 00:41:50.212
they would've necessarily had to find
926
00:41:50.212 --> 00:41:52.211
that the victim did cause or excuse me,
927
00:41:52.211 --> 00:41:54.660
the defendant did cause the victim's death,
928
00:41:54.660 --> 00:41:57.120
and it would've been a rejection of that defense
929
00:41:57.120 --> 00:41:58.800
and the defendant's public narrative.
930
00:41:58.800 --> 00:42:00.690
The defendant here did not want the judge
931
00:42:00.690 --> 00:42:01.523
to do more in court.
932
00:42:01.523 --> 00:42:04.244
But rather that speculate what the defense wanted,
933
00:42:04.244 --> 00:42:06.513
let me ask you about what happened.
934
00:42:08.430 --> 00:42:12.510
Did the judge have either the discretion
935
00:42:12.510 --> 00:42:17.510
or an obligation to ask the jury after the last note
936
00:42:17.610 --> 00:42:20.102
about continued deliberations or a verdict
937
00:42:20.102 --> 00:42:22.320
on any lesser included offense?
938
00:42:22.320 --> 00:42:25.170
No obligation, your Honor.
939
00:42:25.170 --> 00:42:27.000
Perhaps as a matter did the judge have
940
00:42:27.000 --> 00:42:28.650
the discretion to do so.
941
00:42:28.650 --> 00:42:31.080
Rule 27B is discretionary.
942
00:42:31.080 --> 00:42:32.912
The language of the rule itself consistently refers
943
00:42:32.912 --> 00:42:35.040
to what a judge or a jury may do.
944
00:42:35.040 --> 00:42:35.910
I know the defendant argues-
945
00:42:35.910 --> 00:42:38.110
So it's not inherently coercive?
946
00:42:39.925 --> 00:42:42.495
The judge has a discretion that can't be coercive, correct?
947
00:42:42.495 --> 00:42:44.670
Well, no, it's a matter of discretion,
948
00:42:44.670 --> 00:42:47.481
and then consider the factors that inform the exercise
949
00:42:47.481 --> 00:42:48.750
of that discretion,
950
00:42:48.750 --> 00:42:50.280
and that's what the judge did consider here.
951
00:42:50.280 --> 00:42:52.800
On the one hand, the judge had no doubt based
952
00:42:52.800 --> 00:42:54.607
on the jury's notes that they had not reached agreement
953
00:42:54.607 --> 00:42:56.520
on any of the charges.
954
00:42:56.520 --> 00:43:00.450
Further, the jury's third note had triggered 234A 68C.
955
00:43:00.450 --> 00:43:02.640
So they couldn't be compelled to continue deliberating.
956
00:43:02.640 --> 00:43:04.980
They made it abundantly clear they did not consent.
957
00:43:04.980 --> 00:43:05.970
Unless they want to.
958
00:43:05.970 --> 00:43:07.650
Unless they wanted to, exactly.
959
00:43:07.650 --> 00:43:09.930
But indicated that if they were forced
960
00:43:09.930 --> 00:43:11.010
to continue deliberating,
961
00:43:11.010 --> 00:43:13.170
any verdict they returned wouldn't be a just verdict.
962
00:43:13.170 --> 00:43:15.420
It'd be the product of compromising
963
00:43:15.420 --> 00:43:17.940
their deeply held beliefs and moral convictions.
964
00:43:17.940 --> 00:43:19.380
You have that on the one hand informing
965
00:43:19.380 --> 00:43:20.550
the exercise of discretion.
966
00:43:20.550 --> 00:43:23.520
On the other hand, you have strong countervailing reasons
967
00:43:23.520 --> 00:43:25.680
that argued against making further inquiry here,
968
00:43:25.680 --> 00:43:28.057
which is the potential for coercion.
969
00:43:28.057 --> 00:43:29.940
You have a jury that has sat through
970
00:43:29.940 --> 00:43:33.510
a grueling 10-week trial, nearly a hundred witnesses,
971
00:43:33.510 --> 00:43:35.370
hundreds of exhibits,
972
00:43:35.370 --> 00:43:37.620
now four or five days of deliberations.
973
00:43:37.620 --> 00:43:39.600
They've returned three times indicating
974
00:43:39.600 --> 00:43:43.260
that they are deadlocked, they are at an impasse,
975
00:43:43.260 --> 00:43:45.413
and they do not want to continue to deliberate.
976
00:43:45.413 --> 00:43:48.009
But but counsel, I'm sorry to interrupt you on that,
977
00:43:48.009 --> 00:43:50.370
because I don't wanna miss this point,
978
00:43:50.370 --> 00:43:54.497
but wouldn't that go to the calculus of manifest necessity?
979
00:43:54.497 --> 00:43:57.052
Because all of those things seem to be the reasons
980
00:43:57.052 --> 00:44:01.710
why you would tell counsel about the last note and say,
981
00:44:01.710 --> 00:44:03.150
what do you think?
982
00:44:03.150 --> 00:44:05.640
Because you have gone through this 10-week trial,
983
00:44:05.640 --> 00:44:08.250
you have gone through the impairment process.
984
00:44:08.250 --> 00:44:10.650
You've spent a lot of time, energy and money,
985
00:44:10.650 --> 00:44:13.470
anxiety and angst in this trial.
986
00:44:13.470 --> 00:44:16.080
Why wouldn't we talk about what potentially
987
00:44:16.080 --> 00:44:20.790
we could do short of saying mistrial, let's start again?
988
00:44:20.790 --> 00:44:23.700
Certainly your honor, and I think, you know, in hindsight,
989
00:44:23.700 --> 00:44:26.220
seeing, you know, the quote unquote remarkable turnaround
990
00:44:26.220 --> 00:44:28.650
of the defendant's position, would it have been better?
991
00:44:28.650 --> 00:44:30.210
Would it have been preferable for the judge
992
00:44:30.210 --> 00:44:31.620
to take that extra step?
993
00:44:31.620 --> 00:44:33.900
Perhaps, and another judge might have done that.
994
00:44:33.900 --> 00:44:37.710
But here, given the progression up to the third note,
995
00:44:37.710 --> 00:44:39.974
and in particular, given the defendant's response
996
00:44:39.974 --> 00:44:41.903
to each of those two prior notes,
997
00:44:41.903 --> 00:44:45.000
I think the judge could reasonably conclude
998
00:44:45.000 --> 00:44:46.350
the jury is at an impasse,
999
00:44:46.350 --> 00:44:48.450
there is a manifest necessity for a mistrial.
1000
00:44:48.450 --> 00:44:50.280
There is nothing more to be done here,
1001
00:44:50.280 --> 00:44:52.950
and in fact, in her order denying the defendant's motion
1002
00:44:52.950 --> 00:44:56.670
to dismiss, the judge did say a mistrial was inevitable.
1003
00:44:56.670 --> 00:44:59.190
But you can't find consent, right?
1004
00:44:59.190 --> 00:45:02.520
If you don't ask, the consent is out the window, isn't it?
1005
00:45:02.520 --> 00:45:03.353
I don't agree, your Honor.
1006
00:45:03.353 --> 00:45:05.909
We can find con, I mean consent through the lack
1007
00:45:05.909 --> 00:45:07.803
of an objection here.
1008
00:45:08.880 --> 00:45:12.330
The burden of proof is on the Commonwealth.
1009
00:45:12.330 --> 00:45:17.330
There's no opportunity whatsoever for the defense counsel
1010
00:45:17.880 --> 00:45:19.683
to raise anything.
1011
00:45:20.580 --> 00:45:23.460
I get you may have manifest necessity,
1012
00:45:23.460 --> 00:45:25.080
but I don't see how you can get consent
1013
00:45:25.080 --> 00:45:28.380
when they haven't been consulted in any way.
1014
00:45:28.380 --> 00:45:31.084
They were consulted in response to the first two notes,
1015
00:45:31.084 --> 00:45:33.780
and what was the defendant's response to those notes?
1016
00:45:33.780 --> 00:45:36.360
It was to argue in favor of due and thorough deliberation
1017
00:45:36.360 --> 00:45:39.152
and accelerate the process at every step toward a mistrial.
1018
00:45:39.152 --> 00:45:43.200
But pushing towards a verdict is different from...
1019
00:45:43.200 --> 00:45:44.670
That's different.
1020
00:45:44.670 --> 00:45:47.340
I mean, they want a verdict.
1021
00:45:47.340 --> 00:45:49.681
Because they want Tuey-Rodriguez
1022
00:45:49.681 --> 00:45:53.430
doesn't mean they've consented to a mistrial.
1023
00:45:53.430 --> 00:45:54.300
Even so, your Honor,
1024
00:45:54.300 --> 00:45:56.070
they had opportunities to object.
1025
00:45:56.070 --> 00:45:57.270
They could have objected while waiting
1026
00:45:57.270 --> 00:45:59.370
for the jury to enter the room.
1027
00:45:59.370 --> 00:46:01.405
30 seconds is ample time to at least ask,
1028
00:46:01.405 --> 00:46:03.083
may we be heard at sidebar, your Honor,
1029
00:46:03.083 --> 00:46:06.120
after being informed that the jury's at an impasse,
1030
00:46:06.120 --> 00:46:08.110
they could have brought the issue up again during
1031
00:46:08.110 --> 00:46:10.800
the scheduling conference after the jury was excused
1032
00:46:10.800 --> 00:46:13.050
to the jury room, and even after that,
1033
00:46:13.050 --> 00:46:14.280
they still could have brought it up,
1034
00:46:14.280 --> 00:46:16.620
and then we cited in our brief ententes as an example
1035
00:46:16.620 --> 00:46:19.920
of where a defendant lodged an objection after the fact,
1036
00:46:19.920 --> 00:46:21.565
after the jury had been excused to the jury room.
1037
00:46:21.565 --> 00:46:22.980
And at that point the judge
1038
00:46:22.980 --> 00:46:25.339
did still consider counsel's arguments.
1039
00:46:25.339 --> 00:46:28.632
And I think given the defendant's response
1040
00:46:28.632 --> 00:46:30.611
to the prior notes,
1041
00:46:30.611 --> 00:46:34.148
it being clear what the defendant was advocating for here
1042
00:46:34.148 --> 00:46:36.690
and at the point of the third note,
1043
00:46:36.690 --> 00:46:39.600
it being unavoidable based on manifest necessity
1044
00:46:39.600 --> 00:46:40.920
to declare a mistrial,
1045
00:46:40.920 --> 00:46:44.400
the absence of an objection here or even asking to be heard,
1046
00:46:44.400 --> 00:46:47.103
your Honor, indicates consent.
1047
00:46:49.650 --> 00:46:50.850
And you might have,
1048
00:46:50.850 --> 00:46:52.440
I know it probably is in your brief,
1049
00:46:52.440 --> 00:46:54.190
but what's your best case for that?
1050
00:46:55.470 --> 00:46:57.990
This case is closer to Pellegrin, your Honor,
1051
00:46:57.990 --> 00:47:00.060
and very different than Horrigan.
1052
00:47:00.060 --> 00:47:01.830
So as between the two,
1053
00:47:01.830 --> 00:47:04.740
certainly where there is something abrupt
1054
00:47:04.740 --> 00:47:06.630
that happens that is inconsistent
1055
00:47:06.630 --> 00:47:10.620
with the way defendant has conducted him or herself,
1056
00:47:10.620 --> 00:47:14.490
the approach that they have taken during the trial.
1057
00:47:14.490 --> 00:47:16.650
It would be difficult to find consent.
1058
00:47:16.650 --> 00:47:18.330
Oregon is an example of that.
1059
00:47:18.330 --> 00:47:20.235
Judge comes in abruptly announces trial judge
1060
00:47:20.235 --> 00:47:23.010
is unable to preside, I'm declaring a mistrial.
1061
00:47:23.010 --> 00:47:24.900
There was no indication there that, you know,
1062
00:47:24.900 --> 00:47:26.970
the defendant was in agreement with that.
1063
00:47:26.970 --> 00:47:30.784
But here again, where you have the defendant advocating
1064
00:47:30.784 --> 00:47:35.073
for the result of a mistrial, the ultimate conclusion of it,
1065
00:47:35.970 --> 00:47:38.040
when it is then ultimately declared to-
1066
00:47:38.040 --> 00:47:39.170
How do you know the defendant
1067
00:47:39.170 --> 00:47:41.550
is advocating for a mistrial as opposed
1068
00:47:41.550 --> 00:47:43.742
to pushing a verdict?
1069
00:47:43.742 --> 00:47:46.500
Because Your Honor, not just what they argue,
1070
00:47:46.500 --> 00:47:47.333
but what they argue-
1071
00:47:47.333 --> 00:47:49.830
'Cause because Tuey, you know, could...
1072
00:47:49.830 --> 00:47:51.060
There's two results of Tuey,
1073
00:47:51.060 --> 00:47:53.520
it's either a verdict or it's a mistrial,
1074
00:47:53.520 --> 00:47:56.010
and it pushes the jury to its extreme.
1075
00:47:56.010 --> 00:47:59.250
So when you say that they're advocating for a mistrial,
1076
00:47:59.250 --> 00:48:01.590
they could have been just as well advocating
1077
00:48:01.590 --> 00:48:03.420
the jury for that final push.
1078
00:48:03.420 --> 00:48:06.060
As the Tuey-Rodriguez instruction says
1079
00:48:06.060 --> 00:48:07.606
you need to check yourself.
1080
00:48:07.606 --> 00:48:10.412
One side has the burden of proof.
1081
00:48:10.412 --> 00:48:14.220
It's very favorable in some instances to a defendant.
1082
00:48:14.220 --> 00:48:17.880
So how can you stand up here and say that they were pushing
1083
00:48:17.880 --> 00:48:19.950
for a mistrial?
1084
00:48:19.950 --> 00:48:21.840
Perhaps as to just Tuey-Rodriguez,
1085
00:48:21.840 --> 00:48:23.730
although as a practical matter,
1086
00:48:23.730 --> 00:48:25.140
as Justice Georges pointed out,
1087
00:48:25.140 --> 00:48:26.584
experienced defense counsel understand
1088
00:48:26.584 --> 00:48:29.280
that there's not going to be a mistrial
1089
00:48:29.280 --> 00:48:31.341
before that instruction has been given or very likely,
1090
00:48:31.341 --> 00:48:32.350
but set that aside, your Honor.
1091
00:48:32.350 --> 00:48:34.770
Well, I think experienced counsel know
1092
00:48:34.770 --> 00:48:38.738
that you're most likely not gonna get further deliberations,
1093
00:48:38.738 --> 00:48:42.360
but counsel also know that it could very well,
1094
00:48:42.360 --> 00:48:43.290
it's a flip of a coin.
1095
00:48:43.290 --> 00:48:45.302
It could be a verdict or it could be a mistrial.
1096
00:48:45.302 --> 00:48:46.135
Right.
1097
00:48:46.135 --> 00:48:48.120
On top of that, your Honor, I would point to,
1098
00:48:48.120 --> 00:48:50.130
in response to the first note,
1099
00:48:50.130 --> 00:48:51.570
the Commonwealth argued against
1100
00:48:51.570 --> 00:48:53.790
a finding of due and thorough deliberation.
1101
00:48:53.790 --> 00:48:56.190
Hasn't been enough time let the jury continue to deliberate.
1102
00:48:56.190 --> 00:48:57.120
Already at that point,
1103
00:48:57.120 --> 00:48:58.890
the defendant was prepared to argue.
1104
00:48:58.890 --> 00:49:00.450
There's been due and thorough deliberation,
1105
00:49:00.450 --> 00:49:01.410
I think the exact quote is
1106
00:49:01.410 --> 00:49:04.039
we believe there's been sufficient time disagreed
1107
00:49:04.039 --> 00:49:06.540
with the commonwealth reading of the note from the juror
1108
00:49:06.540 --> 00:49:08.537
that there might still be the possibility of reaching
1109
00:49:08.537 --> 00:49:10.200
a unanimous verdict,
1110
00:49:10.200 --> 00:49:11.850
arguing that they'd already exhausted all manner
1111
00:49:11.850 --> 00:49:14.310
of compromise, all manner of persuasion,
1112
00:49:14.310 --> 00:49:16.710
so, and then again, in response to the second note,
1113
00:49:16.710 --> 00:49:19.290
again argued there's been due and thorough deliberation.
1114
00:49:19.290 --> 00:49:23.744
Those arguments are pushing to the point where 234A 68C
1115
00:49:23.744 --> 00:49:26.850
is triggered and the jury cannot continue
1116
00:49:26.850 --> 00:49:29.280
to deliberate and a mistrial will have to be declared,
1117
00:49:29.280 --> 00:49:32.280
unless they consent to further deliberation.
1118
00:49:32.280 --> 00:49:34.470
I think it's safe to say that they were pushing
1119
00:49:34.470 --> 00:49:36.720
for Tuey instruction, correct?
1120
00:49:36.720 --> 00:49:38.714
Yes, they asked for that as well in response
1121
00:49:38.714 --> 00:49:40.383
to both notes, your Honor.
1122
00:49:41.760 --> 00:49:45.933
Do you need consent in order to win?
1123
00:49:47.460 --> 00:49:49.770
No, your Honor, there was manifest necessity
1124
00:49:49.770 --> 00:49:52.140
for the declaration of a mistrial here.
1125
00:49:52.140 --> 00:49:54.450
And so absent the consent we can just,
1126
00:49:54.450 --> 00:49:57.840
you think the manifest necessity existed?
1127
00:49:57.840 --> 00:50:00.660
Yes, I don't think that the judge abused her discretion
1128
00:50:00.660 --> 00:50:03.750
in declaring a mistrial for manifest necessity based
1129
00:50:03.750 --> 00:50:05.682
on the jury deadlock in this case for the reasons
1130
00:50:05.682 --> 00:50:08.050
that we have discussed and were discussed with my brother.
1131
00:50:08.050 --> 00:50:10.677
Well, but counsel, we also have,
1132
00:50:10.677 --> 00:50:13.838
and not necessarily in this context,
1133
00:50:13.838 --> 00:50:18.510
but we have in cases where there are evidentiary issues
1134
00:50:18.510 --> 00:50:21.510
where we have found that the trial judge abused
1135
00:50:21.510 --> 00:50:25.680
their discretion when they didn't utilize something
1136
00:50:25.680 --> 00:50:27.420
that they could have.
1137
00:50:27.420 --> 00:50:30.000
And so in a record here where there, again,
1138
00:50:30.000 --> 00:50:32.070
it's not necessarily prescriptive,
1139
00:50:32.070 --> 00:50:35.490
but there's 27B that says may,
1140
00:50:35.490 --> 00:50:38.140
there's other things that could have been done short
1141
00:50:39.880 --> 00:50:42.030
of declaring a mistrial.
1142
00:50:42.030 --> 00:50:45.630
Is there no calculus here that says that perhaps
1143
00:50:45.630 --> 00:50:47.370
there could be an abuse of discretion
1144
00:50:47.370 --> 00:50:49.230
because there's nothing to suggest
1145
00:50:49.230 --> 00:50:50.730
that she went through the progression
1146
00:50:50.730 --> 00:50:54.060
of what she could have done short of declaring a mistrial,
1147
00:50:54.060 --> 00:50:57.750
which directly goes to not giving defense counsel
1148
00:50:57.750 --> 00:50:59.167
an opportunity to say,
1149
00:50:59.167 --> 00:51:01.830
"Hey, we've got all our heads in the courtroom.
1150
00:51:01.830 --> 00:51:04.200
Let's all collectively think about this
1151
00:51:04.200 --> 00:51:07.590
and perhaps we can all come to some other...
1152
00:51:07.590 --> 00:51:09.940
Some other vertical other than declaring mistrial?"
1153
00:51:09.940 --> 00:51:13.860
Yeah, and I think it's clear from the judge's order
1154
00:51:13.860 --> 00:51:16.343
that she was cognizant at the time
1155
00:51:16.343 --> 00:51:18.330
of these countervailing considerations
1156
00:51:18.330 --> 00:51:20.970
Looking to the jury's notes,
1157
00:51:20.970 --> 00:51:22.860
the lack of any indication of agreement
1158
00:51:22.860 --> 00:51:26.100
on the charges balanced against the risk of coercion,
1159
00:51:26.100 --> 00:51:27.960
the defendant's trial strategy and the fact
1160
00:51:27.960 --> 00:51:30.060
that the defendant had not been advocating
1161
00:51:30.060 --> 00:51:32.670
for the judge to do something more.
1162
00:51:32.670 --> 00:51:35.010
I think it's clear that the judge
1163
00:51:35.010 --> 00:51:36.990
was aware of these considerations
1164
00:51:36.990 --> 00:51:39.090
and balanced them in a way
1165
00:51:39.090 --> 00:51:40.680
that was not an abusive discretion.
1166
00:51:40.680 --> 00:51:42.930
Might a different judge have reached
1167
00:51:42.930 --> 00:51:44.160
a different outcome here?
1168
00:51:44.160 --> 00:51:47.490
Perhaps, but the judge's determination here,
1169
00:51:47.490 --> 00:51:50.580
which is owed some deference if not an abusive discretion,
1170
00:51:50.580 --> 00:51:52.740
was not outside the range of reasonable outcomes,
1171
00:51:52.740 --> 00:51:54.060
given the jury's notes
1172
00:51:54.060 --> 00:51:55.560
and these other considerations, your Honor.
1173
00:51:55.560 --> 00:51:58.207
You don't think it would've been coercive to say,
1174
00:51:58.207 --> 00:52:01.680
"Come on jury, I know you say that you're exhausted
1175
00:52:01.680 --> 00:52:05.430
that any further deliberations would force us
1176
00:52:05.430 --> 00:52:07.790
to compromise these deeply held beliefs,"
1177
00:52:07.790 --> 00:52:10.830
but did you reach a verdict on count one?
1178
00:52:10.830 --> 00:52:13.047
I do think that would be extremely coercive,
1179
00:52:13.047 --> 00:52:14.520
your Honor, yes.
1180
00:52:14.520 --> 00:52:16.830
And I would point the court to footnote five
1181
00:52:16.830 --> 00:52:19.110
in Ray versus Commonwealth where this court said
1182
00:52:19.110 --> 00:52:21.690
or noted there may be a prevailing practice
1183
00:52:21.690 --> 00:52:24.390
among federal courts about inquiring individually
1184
00:52:24.390 --> 00:52:26.430
of jurors as to whether they're truly deadlocked
1185
00:52:26.430 --> 00:52:27.990
or perhaps further inquiry,
1186
00:52:27.990 --> 00:52:29.730
but that is not the prevailing practice here
1187
00:52:29.730 --> 00:52:32.790
in Massachusetts and is not an encouraged practice.
1188
00:52:32.790 --> 00:52:35.520
It's particularly because of the risk of coercion.
1189
00:52:35.520 --> 00:52:37.350
I take it Rule 27 doesn't...
1190
00:52:37.350 --> 00:52:40.770
There's no discussion of Rule 27 at any point during
1191
00:52:40.770 --> 00:52:43.110
the deliberations or sort of preparing
1192
00:52:43.110 --> 00:52:44.250
for the deliberations, right?
1193
00:52:44.250 --> 00:52:45.510
When we read through this whole record,
1194
00:52:45.510 --> 00:52:47.400
we're not gonna find any indication
1195
00:52:47.400 --> 00:52:48.757
it was on anyone's mind, right?
1196
00:52:48.757 --> 00:52:49.957
Correct.
1197
00:52:51.540 --> 00:52:55.051
So I see your point on the note
1198
00:52:55.051 --> 00:53:00.051
is so compelling that they've worked this to the end,
1199
00:53:00.810 --> 00:53:04.530
but then the problem comes when we get this new information
1200
00:53:04.530 --> 00:53:08.250
that's somewhat inconsistent with, that they've...
1201
00:53:08.250 --> 00:53:09.420
I mean the key sentence,
1202
00:53:09.420 --> 00:53:11.820
some members of the jury firmly believe
1203
00:53:11.820 --> 00:53:14.580
the evidence surpasses the burden of proof establishing
1204
00:53:14.580 --> 00:53:17.910
the elements of the charges beyond their reasonable doubt.
1205
00:53:17.910 --> 00:53:20.430
Conversely, others find the evidence fails to meet,
1206
00:53:20.430 --> 00:53:22.740
then we get this motion for a new trial
1207
00:53:22.740 --> 00:53:27.060
with four or five jurors saying that's not the case.
1208
00:53:27.060 --> 00:53:30.240
Right? That's the troubling part.
1209
00:53:30.240 --> 00:53:31.953
What should happen at that point?
1210
00:53:32.856 --> 00:53:35.850
And I do wanna make sure I get to this, your Honor,
1211
00:53:35.850 --> 00:53:38.040
the alleged agreement reflected
1212
00:53:38.040 --> 00:53:40.230
in those statements is not an acquittal.
1213
00:53:40.230 --> 00:53:43.589
It lacks finality of a verdict really for two reasons.
1214
00:53:43.589 --> 00:53:45.330
One is the reason that's already-
1215
00:53:45.330 --> 00:53:47.040
I get that point, I'm just trying to figure out
1216
00:53:47.040 --> 00:53:50.703
what should the judge do at that point?
1217
00:53:51.600 --> 00:53:53.430
'Cause they're arguing,
1218
00:53:53.430 --> 00:53:56.973
okay, you have some follow up obligation here.
1219
00:53:58.500 --> 00:54:02.460
Is there no obligation whatsoever, I guess is what...?
1220
00:54:02.460 --> 00:54:04.560
No, and we argued below actually, your Honor,
1221
00:54:04.560 --> 00:54:07.080
that it's not reliable or competent evidence
1222
00:54:07.080 --> 00:54:08.760
because it goes to the substance
1223
00:54:08.760 --> 00:54:11.199
of the jury's deliberations and is being used to try
1224
00:54:11.199 --> 00:54:13.110
and impeach the declaration
1225
00:54:13.110 --> 00:54:14.700
of the mistrial based on jury's notes.
1226
00:54:14.700 --> 00:54:17.370
Except the judge makes a finding
1227
00:54:17.370 --> 00:54:18.930
that she finds them credible
1228
00:54:18.930 --> 00:54:21.180
for the purposes of this motion, right?
1229
00:54:21.180 --> 00:54:23.610
So she doesn't say they're unreliable,
1230
00:54:23.610 --> 00:54:27.060
but rather accepts their reliability
1231
00:54:27.060 --> 00:54:29.130
and then concludes that nonetheless,
1232
00:54:29.130 --> 00:54:34.053
that she can't inquire here without invading deliberations.
1233
00:54:34.980 --> 00:54:36.090
It's different from reliability.
1234
00:54:36.090 --> 00:54:38.883
She's given up the reliability point, right?
1235
00:54:40.050 --> 00:54:41.820
She's made a finding that I accept
1236
00:54:41.820 --> 00:54:46.820
for these purposes that those four jurors or five jurors-
1237
00:54:46.836 --> 00:54:47.669
Correct.
1238
00:54:47.669 --> 00:54:49.290
Are credible, right?
1239
00:54:49.290 --> 00:54:51.780
So it's not a reliability issue
1240
00:54:51.780 --> 00:54:53.730
that you can rely on, right?
1241
00:54:53.730 --> 00:54:55.710
Correct, but the judge also correctly
1242
00:54:55.710 --> 00:54:59.130
or properly ruled that it would not be appropriate
1243
00:54:59.130 --> 00:55:01.380
to conduct some sort of post-trial inquiry
1244
00:55:01.380 --> 00:55:03.120
at this point for a number of reasons.
1245
00:55:03.120 --> 00:55:06.390
One, this jury, a mistrial was declared this jury
1246
00:55:06.390 --> 00:55:07.260
was discharged.
1247
00:55:07.260 --> 00:55:08.760
They've now been discharged for four months.
1248
00:55:08.760 --> 00:55:10.710
They have no power or authority at this point
1249
00:55:10.710 --> 00:55:13.530
to come back and render a defacto verdict.
1250
00:55:13.530 --> 00:55:16.890
Well, the request is to inquire of them,
1251
00:55:16.890 --> 00:55:18.690
which we said you can do in Fiddler
1252
00:55:18.690 --> 00:55:21.150
and McGowan at all, right?
1253
00:55:21.150 --> 00:55:22.797
But not to get into their deliberations.
1254
00:55:22.797 --> 00:55:23.970
But that's a separate matter.
1255
00:55:23.970 --> 00:55:26.640
You said that it, you know, you can't bring this jury back.
1256
00:55:26.640 --> 00:55:28.890
You can bring them back for post verdict inquiry.
1257
00:55:28.890 --> 00:55:30.124
Well, it is one...
1258
00:55:30.124 --> 00:55:33.600
And under the guidance of Fiddler, et cetera, right?
1259
00:55:33.600 --> 00:55:34.620
It's one thing, your Honor,
1260
00:55:34.620 --> 00:55:37.620
to bring a jury back and inquire as to extraneous influences
1261
00:55:37.620 --> 00:55:39.669
to determine whether a verdict that was returned
1262
00:55:39.669 --> 00:55:42.000
and affirmed may have been the product
1263
00:55:42.000 --> 00:55:43.980
of other than a fair and impartial jury.
1264
00:55:43.980 --> 00:55:45.690
It's quite another to bring a jury back
1265
00:55:45.690 --> 00:55:47.307
to essentially construct a verdict that was never-
1266
00:55:47.307 --> 00:55:49.590
And what Mr. Weinberg argues
1267
00:55:49.590 --> 00:55:52.440
is what we protected other six amendment rights
1268
00:55:52.440 --> 00:55:56.370
to a fair trial, but he says we should expand our law,
1269
00:55:56.370 --> 00:55:58.440
as I understand him,
1270
00:55:58.440 --> 00:55:59.910
to include the Fifth Amendment right
1271
00:55:59.910 --> 00:56:03.210
in double jeopardy protections as well.
1272
00:56:03.210 --> 00:56:05.643
What's your response to that? Why not?
1273
00:56:08.181 --> 00:56:09.240
I agree with the reasoning
1274
00:56:09.240 --> 00:56:10.980
of the appeals court in de Benedetto that
1275
00:56:10.980 --> 00:56:13.350
it can't simply be the fact that it implicates
1276
00:56:13.350 --> 00:56:15.984
a core constitutional right to allow
1277
00:56:15.984 --> 00:56:17.580
for this sort of inquiry.
1278
00:56:17.580 --> 00:56:18.748
And here, unlike-
1279
00:56:18.748 --> 00:56:20.700
Why not?
1280
00:56:20.700 --> 00:56:22.800
Why is the Fifth Amendment any lesser
1281
00:56:22.800 --> 00:56:24.240
of right than the sixth?
1282
00:56:24.240 --> 00:56:27.300
It's not that it's any lesser of a right, your Honor,
1283
00:56:27.300 --> 00:56:29.370
although it is different than the sixth
1284
00:56:29.370 --> 00:56:30.930
in that here there's, you know,
1285
00:56:30.930 --> 00:56:34.350
a balance of two competing public policy considerations.
1286
00:56:34.350 --> 00:56:35.670
It's not simply the defendant's right.
1287
00:56:35.670 --> 00:56:37.440
There's the public's interest and right as well.
1288
00:56:37.440 --> 00:56:39.420
So it is different than, for example,
1289
00:56:39.420 --> 00:56:40.770
the Sixth Amendment, right?
1290
00:56:40.770 --> 00:56:44.631
Well, doesn't the public have an interest in finding out
1291
00:56:44.631 --> 00:56:48.060
the truth of what the jury decided?
1292
00:56:48.060 --> 00:56:50.370
They have an interest in a just judgment
1293
00:56:50.370 --> 00:56:54.180
that is in fact a final outcome or final verdict here,
1294
00:56:54.180 --> 00:56:59.180
but setting aside whether expanding it might be appropriate,
1295
00:56:59.490 --> 00:57:01.440
it cannot be done in this case without getting
1296
00:57:01.440 --> 00:57:04.230
into the substance of the deliberations,
1297
00:57:04.230 --> 00:57:07.290
and I think my brother revealed that under questioning.
1298
00:57:07.290 --> 00:57:08.520
There are several issues with it.
1299
00:57:08.520 --> 00:57:10.692
One is, again, this jury has been discharged now
1300
00:57:10.692 --> 00:57:12.330
for more than four months
1301
00:57:12.330 --> 00:57:14.670
and has been subject to extraneous influences,
1302
00:57:14.670 --> 00:57:17.160
potentially including harassment.
1303
00:57:17.160 --> 00:57:20.460
We've sent back jurors on race,
1304
00:57:20.460 --> 00:57:21.720
I can't remember how many years,
1305
00:57:21.720 --> 00:57:23.720
it was like a decade later or something.
1306
00:57:25.260 --> 00:57:27.720
Timing's not gonna be a winner for you, is it?
1307
00:57:27.720 --> 00:57:29.250
It has to be-
1308
00:57:29.250 --> 00:57:30.810
No, that by itself Your Honor,
1309
00:57:30.810 --> 00:57:32.640
is not a reason not to do it.
1310
00:57:32.640 --> 00:57:35.010
I'm raising it as an additional consideration
1311
00:57:35.010 --> 00:57:37.410
or concern here, but there are others as well,
1312
00:57:37.410 --> 00:57:40.324
which is, it's not simply a matter of bringing a jury back
1313
00:57:40.324 --> 00:57:42.840
and trying to ask them a yes or no question.
1314
00:57:42.840 --> 00:57:45.180
That's not how juries reach verdicts.
1315
00:57:45.180 --> 00:57:47.520
We ask them to engage in group decision making,
1316
00:57:47.520 --> 00:57:50.040
collective discussion, review of the evidence, so it's-
1317
00:57:50.040 --> 00:57:54.360
Our post verdict inquiry is guided
1318
00:57:54.360 --> 00:57:56.330
and we always say to the jurors,
1319
00:57:56.330 --> 00:57:59.730
and we tell the trial judges, just,
1320
00:57:59.730 --> 00:58:01.350
you have to instruct the jurors.
1321
00:58:01.350 --> 00:58:03.960
Do not tell me about the contents of your deliberations.
1322
00:58:03.960 --> 00:58:06.780
Answer this specific limited question,
1323
00:58:06.780 --> 00:58:09.000
and the limited question posed by the defense,
1324
00:58:09.000 --> 00:58:12.570
and I think in the ACIU brief is did you reach
1325
00:58:12.570 --> 00:58:14.640
a verdict essentially on council one
1326
00:58:14.640 --> 00:58:16.293
and three or was an acquittal?
1327
00:58:17.520 --> 00:58:18.353
Right?
1328
00:58:19.500 --> 00:58:22.020
I don't know that that was the specific question
1329
00:58:22.020 --> 00:58:23.413
they proposed, but I understand whatever Your Honor-
1330
00:58:23.413 --> 00:58:26.250
I mean however they phrase,
1331
00:58:26.250 --> 00:58:28.890
it's a limited yes, no question.
1332
00:58:28.890 --> 00:58:33.180
Yes, and my point is that's an artificial inquiry
1333
00:58:33.180 --> 00:58:35.700
or take for example...
1334
00:58:35.700 --> 00:58:38.580
But we asked, have you reached a verdict?
1335
00:58:38.580 --> 00:58:41.730
That in and of itself is a standard question, right?
1336
00:58:41.730 --> 00:58:44.793
That can't be crossing the line, right?
1337
00:58:46.470 --> 00:58:47.303
Or is it?
1338
00:58:48.900 --> 00:58:53.010
No, but again, I want to reemphasize the point
1339
00:58:53.010 --> 00:58:53.970
that was raised earlier,
1340
00:58:53.970 --> 00:58:58.015
which is imagine a juror had tentatively agreed
1341
00:58:58.015 --> 00:59:01.170
to find not guilty on a particular charge,
1342
00:59:01.170 --> 00:59:03.450
but that was subject to further deliberation
1343
00:59:03.450 --> 00:59:05.400
or consideration, maybe the juror wanted to see
1344
00:59:05.400 --> 00:59:07.080
what happened with the other charges.
1345
00:59:07.080 --> 00:59:09.390
You know, bring the jurors back and you simply asked them,
1346
00:59:09.390 --> 00:59:12.120
I don't want to hear anything else, I just want a yes or no.
1347
00:59:12.120 --> 00:59:15.360
It doesn't give that juror any opportunity to explain
1348
00:59:15.360 --> 00:59:17.490
that their agreement was tentative at that point.
1349
00:59:17.490 --> 00:59:20.193
And so it's an artificial exercise to say-
1350
00:59:21.090 --> 00:59:24.540
Is that Justice George asked your brother counsel
1351
00:59:24.540 --> 00:59:26.130
about Bluford?
1352
00:59:26.130 --> 00:59:29.880
Is Bluford the answer for you that
1353
00:59:29.880 --> 00:59:32.310
that's what Chief Justice Roberts was saying
1354
00:59:32.310 --> 00:59:34.620
in Bluford that it's always tentative
1355
00:59:34.620 --> 00:59:38.340
or is it it's only lesser included?
1356
00:59:38.340 --> 00:59:41.274
That that works because I asked Mr. Weinberg,
1357
00:59:41.274 --> 00:59:44.370
is there a federal case right on point that we can look to?
1358
00:59:44.370 --> 00:59:45.810
You at least have Bluford.
1359
00:59:45.810 --> 00:59:49.260
Is Bluford controlling? And it's the Supreme Court.
1360
00:59:49.260 --> 00:59:50.280
Would argue that it is,
1361
00:59:50.280 --> 00:59:53.370
and I'd actually take it one step farther,
1362
00:59:53.370 --> 00:59:56.460
which is not only is there the concern
1363
00:59:56.460 --> 00:59:57.960
that was raised in Bluford,
1364
00:59:57.960 --> 01:00:01.080
that the perceived agreement or unanimity here may have been
1365
01:00:01.080 --> 01:00:03.330
the product of a very early discussion,
1366
01:00:03.330 --> 01:00:06.030
subject to further deliberation.
1367
01:00:06.030 --> 01:00:08.970
But jurors are free to change their mind
1368
01:00:08.970 --> 01:00:11.400
and change their vote right up until the verdict
1369
01:00:11.400 --> 01:00:13.680
is affirmed and recorded.
1370
01:00:13.680 --> 01:00:16.980
They could vote guilty, walk into the courtroom,
1371
01:00:16.980 --> 01:00:18.631
and at that point change their mind and say,
1372
01:00:18.631 --> 01:00:19.464
you know, you know what?
1373
01:00:19.464 --> 01:00:21.270
I think the defendant is not guilty.
1374
01:00:21.270 --> 01:00:24.990
So even if like counsel wants to argue
1375
01:00:24.990 --> 01:00:28.290
this was a final vote, this was a final decision,
1376
01:00:28.290 --> 01:00:30.690
you still can't rule out the possibility
1377
01:00:30.690 --> 01:00:33.000
that any juror was free to change their mind,
1378
01:00:33.000 --> 01:00:35.824
had they been required to go through the full exercise
1379
01:00:35.824 --> 01:00:38.220
of rendering and affirming a verdict.
1380
01:00:38.220 --> 01:00:42.100
Can I ask, is their argument what Justice Sotomayor wrote
1381
01:00:42.100 --> 01:00:44.160
in dissent in Bluford?
1382
01:00:44.160 --> 01:00:46.863
Or is the different?
1383
01:00:48.540 --> 01:00:50.520
To characterize council's argument
1384
01:00:50.520 --> 01:00:52.942
I think that they are relying on that for the notion
1385
01:00:52.942 --> 01:00:55.770
of there being an acquittal and substance not form,
1386
01:00:55.770 --> 01:00:58.530
although if you look at the cases Justice Sotomayor cited
1387
01:00:58.530 --> 01:00:59.640
for that proposition,
1388
01:00:59.640 --> 01:01:02.160
they're all cases involving judicial rulings.
1389
01:01:02.160 --> 01:01:03.870
They're not jury determinations.
1390
01:01:03.870 --> 01:01:06.300
I'm not aware of any federal authority
1391
01:01:06.300 --> 01:01:07.950
that supports the proposition
1392
01:01:07.950 --> 01:01:11.100
that there can be an acquittal and substance but not form,
1393
01:01:11.100 --> 01:01:13.350
or I guess more to the point says
1394
01:01:13.350 --> 01:01:15.570
that a state cannot impose the requirement
1395
01:01:15.570 --> 01:01:18.360
that a verdict be affirmed and recorded.
1396
01:01:18.360 --> 01:01:21.300
I think if anything Bluford acknowledges
1397
01:01:21.300 --> 01:01:24.930
that that could be a perfectly legitimate requirement
1398
01:01:24.930 --> 01:01:25.920
where it said, you know,
1399
01:01:25.920 --> 01:01:28.860
take the ar defendant's argument here on its own terms.
1400
01:01:28.860 --> 01:01:31.410
It wasn't a final result quite apart
1401
01:01:31.410 --> 01:01:35.220
from the requirement to render a verdict or a judgment.
1402
01:01:35.220 --> 01:01:37.800
So I think Bluford does support our case, Your Honor.
1403
01:01:37.800 --> 01:01:39.150
I just do want to emphasize that it,
1404
01:01:39.150 --> 01:01:40.860
it's not only just the possibility
1405
01:01:40.860 --> 01:01:42.190
that there could be a change of mind during
1406
01:01:42.190 --> 01:01:44.780
the deliberations itself, but even after that.
1407
01:01:44.780 --> 01:01:48.373
Is Bluford limited to lesser included, or is Bluford...?
1408
01:01:49.440 --> 01:01:52.998
Is Buford broader than a lesser included opinion?
1409
01:01:52.998 --> 01:01:54.810
I don't read it that way, your Honor, no,
1410
01:01:54.810 --> 01:01:57.150
I read it as the general proposition
1411
01:01:57.150 --> 01:01:59.160
that there are multiple charges,
1412
01:01:59.160 --> 01:02:01.470
whether they're lesser included or not.
1413
01:02:01.470 --> 01:02:04.110
Jurors remain free to go back and revisit a prior vote.
1414
01:02:04.110 --> 01:02:07.149
In fact, I think the court said that although Arkansas
1415
01:02:07.149 --> 01:02:10.380
was an acquittal first jurisdiction,
1416
01:02:10.380 --> 01:02:12.630
nonetheless the jury remained free to go back
1417
01:02:12.630 --> 01:02:15.214
and revisit a prior vote because that's what jurors do,
1418
01:02:15.214 --> 01:02:17.793
and it wasn't inconsistent with the instructions.
1419
01:02:20.880 --> 01:02:23.100
I want to emphasize one other point,
1420
01:02:23.100 --> 01:02:27.120
which is at most what we're talking about here
1421
01:02:27.120 --> 01:02:30.660
with these juror statements is a snapshot
1422
01:02:30.660 --> 01:02:32.160
of the juror's deliberations,
1423
01:02:32.160 --> 01:02:35.370
but you cannot short circuit the verdict requirement
1424
01:02:35.370 --> 01:02:38.490
and rely merely on such a snapshot.
1425
01:02:38.490 --> 01:02:41.820
And it's important because it protects defendants too.
1426
01:02:41.820 --> 01:02:43.200
You could imagine a different scenario
1427
01:02:43.200 --> 01:02:46.410
where juror comes forward and says,
1428
01:02:46.410 --> 01:02:48.750
notwithstanding the declaration of a mistrial,
1429
01:02:48.750 --> 01:02:50.760
we all took a vote and we found
1430
01:02:50.760 --> 01:02:52.323
the defendant guilty of murder.
1431
01:02:53.670 --> 01:02:55.380
If the Commonwealth were to come forward
1432
01:02:55.380 --> 01:02:59.310
and say effect should be given to that vote,
1433
01:02:59.310 --> 01:03:01.230
there can't be any serious doubt that the defendant,
1434
01:03:01.230 --> 01:03:02.730
whether in this case or in a future case,
1435
01:03:02.730 --> 01:03:05.100
would argue that is not a valid verdict
1436
01:03:05.100 --> 01:03:07.150
and shouldn't be given any consideration,
1437
01:03:08.100 --> 01:03:10.260
unless the your Honors have any other questions,
1438
01:03:10.260 --> 01:03:13.103
Commonwealth would ask the defendant's petition be denied.