Jonathan Diamandis - Voir Dire

MR. YANNETTI: Oh — G.C. That was a big compliment, your honor. Thank you. Good afternoon, sir. Would you please state your name and spell your last name?

MR. YANNETTI: You've also been here all day. Sorry for making you wait.

MR. YANNETTI: Do you know former state trooper Michael Proctor?

MR. YANNETTI: How do you know him?

MR. YANNETTI: Okay. And if you just keep your ...voice up. I'm sure other people can hear you, but this old guy —

MR. YANNETTI: Much better. Thank you. So, you say you've known him since middle school, elementary school?

MR. YANNETTI: Graduate high school with him?

MR. YANNETTI: And are you friends after high school as well?

MR. YANNETTI: Do you have his cell phone number in your phone?

MR. YANNETTI: Have you texted with him over the years?

MR. YANNETTI: In fact, were you on a group text chain with him that lasted a number of years?

MR. YANNETTI: I would like to show you a document, sir, and I'm going to ask you to read it to yourself, familiarize yourself with it, and then when you're done, look up at me. Okay. May I approach?

MR. YANNETTI: Thank you. I think he's all set. Thank you, Your Honor. Sir, have you reviewed that entire document?

MR. YANNETTI: Does that look familiar to you?

MR. YANNETTI: What do you recognize it to be?

MR. YANNETTI: Okay. And so would all of those friends have been people that you went to high school with?

MR. YANNETTI: And you were friends during that era?

MR. YANNETTI: And you've remained friends for how many years since then?

MR. YANNETTI: Do you know precisely when that text chain started?

MR. YANNETTI: And that's a portion. In other words, there's a start time and an end time to that, but the text chain started before the start time that's listed on that document.

MR. YANNETTI: Now I'd like to ask you about five different categories of information that allow you to identify the text chain. First of all, directing your attention to page one — that is an unredacted version of this. Do you see your phone number on page one?

MR. YANNETTI: And is that accurate in terms of your phone number?

MR. YANNETTI: Do you have a passcode on your phone?

MR. YANNETTI: All right. And have you had that for years?

MR. YANNETTI: So, as of January of 2022, you would have had a passcode to get into your phone.

MR. YANNETTI: With regard to the typing of text messages, you didn't appear to be too active on this thread. Is that correct?

MR. YANNETTI: Did you see one entry that you actually did text?

MR. YANNETTI: Okay. And I don't — I think these page numbers, they're all numbered. Could you direct us to the page where you actually chimed in? And if I suggested to you, it might be four from the end — and you don't have to read the actual text, sir. I just want to —

MR. YANNETTI: Okay. And the date and time of that text as it's reflected on this document?

MR. YANNETTI: Okay. And what you typed — I have a different — oh, I'm sorry. So for the record, it's on page — and for the record, reading what is typed there, does that sound consistent with something you might chime in in a text chain of this sort?

MR. YANNETTI: At the very last line of that text, do you mention somebody's nickname?

MR. YANNETTI: And what nickname is that?

MR. YANNETTI: And whom do you know as Chip?

MR. YANNETTI: Now going back to the first page, there are a number of other phone numbers there. Have you checked your phone prior to taking the stand today to match those phone numbers with other friends of yours?

MR. YANNETTI: And if you could — and hopefully you remember them all — can you list by first name only your friends who are included in this text?

MR. YANNETTI: Oh, I don't either, Judge. That's why I was saying first names, but if that's sufficient that he recognizes —

MR. YANNETTI: Sure. Is that acceptable, Mr. Brennan?

MR. YANNETTI: If I may just have a moment.

MR. YANNETTI: Okay. Starting with the phone number that ends in 51 — after you checked your contacts, is that a friend of yours who was on the text chain?

MR. YANNETTI: With regard to the phone number that ends in 68, same question. Is that a friend of yours who was on the text chain?

MR. YANNETTI: And with regard to 45, which is the next one — again, a friend of yours who was on the text chain?

MR. YANNETTI: Oh, I'm sorry. That is you, of course. With regard to 95, is that a friend of yours who was on the text chain?

MR. YANNETTI: And with regard to 93, same question. Friend of yours on the text chain?

MR. YANNETTI: And then — — there are three numbers there. One that ends in 11, one that ends in 46, and one that ends in 82. Do you see that those particular numbers have a nickname associated with them?

MR. YANNETTI: Those nicknames — do you recognize them as being also friends of yours who are on the text chain?

MR. YANNETTI: And then finally, there is somebody listed as "local user." We'll get back to that one. With regard to the other ones that you've just identified, sir, have you texted back and forth with them on those phone numbers over the years?

MR. YANNETTI: And also with regard to this particular text thread?

MR. YANNETTI: All right. Now I'd also ask you with regard to the content of these messages, and who said what, and particularly focusing on the one that's identified as "local user" — having read that text chain, were you able to determine who "local user" is?

MR. YANNETTI: And who is that?

MR. YANNETTI: And was that by the content of the messages that Michael Proctor typed that you recognized it?

MR. YANNETTI: And with regard to whether this is a complete, accurate record of what it purports to be, what is your testimony in that regard?

MR. YANNETTI: Appears to be accurate and complete?

MR. YANNETTI: If I may have a moment, Your Honor.

MR. YANNETTI: Just one more question for you, sir. Does the text message chain that you read fairly and accurately represent the circumstances of the conversation that was going on?

MR. YANNETTI: Nothing further.

MR. YANNETTI: Your Honor, given that unfortunately this witness was not reached by the jury today, I'd like him recognized as well.

MR. YANNETTI: So, Your Honor, with regard — I assume we're just dealing with authenticity at this point.

MR. YANNETTI: Okay. All right. So, regarding authenticity, Your Honor, there are several ways that are either independent or connected with each other by which — or through which — a party can authenticate text messages. The majority of the case law out there are defendants having appealed judges' decisions to admit text messages offered by the Commonwealth, and the majority of the case law that exists affirms judges' allowance of text messages into evidence. The Commonwealth filed a memorandum in opposition to these text messages being admitted, and not one of the cases cited by the Commonwealth apply here or are appropriate. The case of Commonwealth versus Pertie — in that case, the Commonwealth introduced text messages from computers seized at a massage parlor.

MR. YANNETTI: The defendant objected that there was no evidence that he had authored any of the — these were actually emails, not text messages — any of the emails that were admitted into evidence. Nobody saw him do it. Nobody saw him type it, and nobody discussed any of the emails with him. But the SJC cited a long-standing rule including Mass. Rule of Evidence 901(b)(4) — evidence may be authenticated by direct or circumstantial evidence — and the circumstantial evidence is essentially what we covered here in court today: the appearance of the electronic communications, the content, the substance, internal patterns, or other distinctive characteristics. Commonwealth versus Welch was a murder case where a boyfriend killed his girlfriend — was charged with killing his girlfriend, was convicted.

MR. YANNETTI: The Commonwealth sought to introduce

MR. YANNETTI: text messages between them, and various text messages from the victim's cell phone were admitted into evidence because for one reason they referenced the defendant's distinctive nickname. And in this case we have a text chain with three nicknames, all of whom the witness recognized as being his friends. We have more to authenticate this text chain than in any case I have seen, and also more than in any case the Commonwealth has cited. In this case, we have an identification of every phone number pursuant to the last two digits. We have an identification of Michael Proctor's message relating to the contents.

MR. YANNETTI: And we have evidence of the witness's cell phone requiring a passcode, meaning that in order for his phone to be active in this chain, he would have had to have unlocked the phone with the passcode. And he testified that what was in the content of the message that he identified as being his is consistent with something that he would have said. And not only that, but he adds a fourth nickname — that being Chip, that being Michael Proctor. The Commonwealth, with regard to Commonwealth versus Welch, which is again cited in their memorandum — this opposition, your honor — they state what appear to be rock solid black and white legal principles, but when you scratch below the surface and you actually read the case, the case stands for nothing in terms of what they've represented it to be.

MR. YANNETTI: They stated that in Welch the court must find that each and every communication was authored by the individual member of the group. That's just plain false. The case doesn't say that at all. It's nowhere in that case, and in fact the messages were let in again because of the circumstances and the content of the messages. Carmel versus Reposa. Another case that they cite — the defense sought to call a neighbor to testify that he had seen the victim alive after the defendant had confessed to having shot him. Another murder case. The problem was that the neighbor denied making the statement. So the defense wanted to call the neighbor for the sole purpose of impeaching him with his prior statement that he supposedly made to the police and use that statement as substantive evidence.

MR. YANNETTI: So in that case, the defendant wanted to use an out-of-court statement for its truth. It was rank hearsay. That case had nothing to do with text messages or statements used to show state of mind or electronic communications, but somehow it makes its way into the Commonwealth's memorandum. Commonwealth versus [unintelligible], which is the second to last case that they cite, dealt with a search warrant done at a juvenile's home. The police officer in that case was allowed to testify to what he was seeking, which was the goal of the search warrant, a firearm allegedly in the juvenile's possession. And he was also allowed to testify to what the juvenile's mother did during the execution of the search warrant, which is she directed the police to the juvenile's bedroom.

MR. YANNETTI: The Commonwealth cited that case to say you can't use hearsay when trying to prove a Bowden defense or present a Bowden defense. That case had nothing to do with Bowden. The evidence was admitted to explain what the police were doing in the home. So it's a situation where the police stop somebody on the street or the police get a search warrant and then they show up at a home, and rather than just have them magically appear at the home with the warrant, the police are allowed to give some circumstances as to how they got there. Nothing to do with Bowden. It's just giving the jury a fuller picture. Yet it was represented to you by the Commonwealth that this is a Bowden issue and you can't use hearsay to present a Bowden defense. Commonwealth versus Sullivan, exact same situation.

MR. YANNETTI: Testimony was admitted about DNA on evidence matching the defendant's DNA from a national database. The Commonwealth cites three principles. It's almost like they're setting a standard down that the court is supposed to follow with three factors. But again, none of the three principles that the Commonwealth cites is found in Sullivan at all. They're not even mentioned in the case. They're simply made up and put in a memo to ask this court to do something that the case does not support. And again, it has nothing to do with Bowden. So now we come to the arguments about the fact that the Commonwealth is claiming that these statements are hearsay. They're not. These statements contain insults of my client. I'll be kind and just mention the word.

MR. YANNETTI: Okay. Well, I mean, your honor, if you're going to allow this into evidence, I'll stop talking.

MR. YANNETTI: Okay. So I won't even mention them. Then the Commonwealth is essentially arguing that we're offering these text messages to show that the insults were true. That's a silly argument. Obviously we're not. Hearsay has three components. These are all statements out of court. None of them are offered for the truth of the matter asserted. None of them. Even the statement when Michael Proctor says that the homeowner is not going to catch any grief because he's a Boston cop — we don't know if that's true or not true. It's offered to show that Michael Proctor believes it to be true. He's the lead investigator in the case. He has input into the case. He can decide who's investigated or not investigated. At least that's our argument. It's all consistent with our defense.

MR. YANNETTI: It's offered to show his state of mind. Everything that he says is offered to show his state of mind and to show his bias — he as the lead investigator, his bias in what he does or doesn't do. And in fact, Mr. Brennan set a sidebar earlier when we started this conversation that Bowden deals with what was done or what was not done. We're entitled to explore what was not done, and we're entitled to explore why. We have evidence of why. We have Michael Proctor's words about why he did or didn't interview people separately. Why he waited, for instance, a year and a half to interview a plow driver who was out there on January 29th. Why he treated some people with kid gloves and other people with brass knuckles. He's stating it in these text messages. "She's going to go down for this.

MR. YANNETTI: We're going to pin it on the girl. We're going to make sure that there are some serious charges. She's effed." Those are the statements he makes about Karen Read in the infancy of this investigation. And to the contrary, is anything going to happen to Brian Albert? Nope. He's a Boston cop, too. These are all statements about Michael Proctor's state of mind. The prosecutor and I have been over the statements. I realize he's objecting to the admission of these statements. I don't think he has a legal argument that passes muster to do that, but should the court allow them in, we're agreed on everything except for three entries, which I think we could deal with pretty quickly. And unless the court has questions, I'd rest on that.

MR. YANNETTI: Okay. So this is the only marked copy. I'm happy to hand it to the court.

MR. YANNETTI: We'll do that. Thank you.

MR. YANNETTI: Your Honor, I won't belabor the points. I would state the following as succinctly as I can, which is: yes, it goes to bias, but it also goes to the adequacy of the evaluation. The two concepts are intertwined. If you're biased or exhibit bias, the defense should be able to argue that the investigation was not adequate. I would note Mr. Brennan is not sitting at defense counsel table in this case. We appreciate the offer to help us with strategy about which witness we should call, but that's solely the province of the defense to determine which witness we want to use to authenticate and admit text messages. That's our choice, and we should not be deprived of that choice because Mr. Brennan thinks there's a better witness that should have introduced the text messages. There is no rule.

MR. YANNETTI: There's no best witness rule in this case. I believe my co-counsel has already made that argument in another circumstance. His arguments — Mr. Brennan's arguments — go to the weight, not the admissibility. He is fully entitled to cross-examine this witness about all of the points that he raises. And in conclusion, your honor, he complains that we have not called Michael Proctor. I think that's the whole impetus for this objection — so that we will call a witness that they do not have confidence in to call themselves. It's unheard of in a murder case that you don't call the lead investigator. But that's what's happened in this case. We should not be forced to call Michael Proctor so that Mr. Brennan can then cross-examine him and lead him through basically his entire closing argument.

MR. YANNETTI: He is entitled to call Mr. Proctor in rebuttal. He has every right to call Mr. Proctor again. I would rest on that. Thank you.

MR. YANNETTI: Yes. It's not in compliance with Rule 14.

MR. YANNETTI: We don't have any written communications with this. And they've asked for all oral communications to be reduced to writing to be turned over. That's not in—

MR. YANNETTI: Right. Written communications do not exist. I'm not saying two things. Written communications do not exist. They also ask, secondarily, for all oral communications to be reduced to writing. We have an obligation to do that. We have—