Commonwealth v. Read — Trial ArchiveProcedural - ARCCA Motion
32 linesJUDGE CANNONE: Could we close the doors, please? May be seated. All right. So, I know it's shifting gears, but I want to address — I said I'd hear you today on argument on the ARCCA motion. Mr. Brennan, do you need a minute or can you argue that? I'm sorry,
MR. BRENNAN: Honor. I was looking at my notebook.
JUDGE CANNONE: What issue would you like to — your motion yesterday. We had the motion. I told you that I would hear you on argument, and it's very brief.
MR. BRENNAN: 10 minutes, please.
MR. JACKSON: Your honor, before we begin, my client needed to use the restroom.
JUDGE CANNONE: Oh, I didn't notice she wasn't here.
MR. JACKSON: She'll be right back.
JUDGE CANNONE: Sure. All right. 5 minutes. All right. Please. Be seated. All right, Mr. Brennan, I'll hear you.
MR. BRENNAN: You know, honor, in light of yesterday's hearing with the ARCCA witnesses, the Commonwealth is going to ask the court to preclude the ARCCA witnesses from testifying both about any new testing and any new opinions and secondly from testifying about their original opinions turned over in a report prior to last year's trial. To be brief, what we learned — or confirmed — is that we do not have all of the discovery of communications. There was a court order for the ARCCA witnesses to provide your honor with all of their information, phone records, text messages, communications about this case. Instead of providing their information to the court, they instead chose to send it to the defense and then it was summarized and provided by the defense to the court and to the Commonwealth.
MR. BRENNAN: It appears to me that is not in compliance with the court's order. What we learned during the hearing yesterday is that Dr. Wolfe admittedly destroyed over 100 text messages. Now, he mentioned that he changed phone carriers, but then later admitted that he actually intentionally, for no apparent reason, destroyed the text messages in this case. And so what is left for your honor to look at is a summary of phone records from the defense and ARCCA's information that is passed through the defense to the court. You do not have the text messages. You do not have the content of the text messages. There is no summary of the conversations. Dozens and dozens of calls between the defense and the experts.
MR. BRENNAN: It is difficult to believe that all of those text messages and all of those phone conversations dealt with simply logistics. In fact, we later learn during the questioning of Dr. Rentschler, there is much more involved than simply logistics. But to get back to Dr. Wolfe, he did not disclose to the court that he was communicating and having conversations on Signal. How odd. An expert using Signal — never used it before. Dr. Rentschler said he would not use Signal. Never use Signal. But Signal, as we know, is an application that does not create a record of communications. Dr. Wolfe maintained on his direct that everything he did was logistics.
MR. BRENNAN: Even when we showed him the direct examinations with comments that asked for input from the defense to questions in a way that would be advantageous to the defense and to thwart the Commonwealth, Dr. Wolfe actually still continued to testify that that was simply procedure and logistics, never admitting the fact that there was in fact conversations or information exchanged about bettering the presentation for the defense. Inevitably, I asked him about the sequestration order and how evasive he was. You simply have to compare him to Dr. Rentschler, who was quite candid. An hour or 45 minutes with Dr. Wolfe — difficult getting a straight answer. Dr. Rentschler told us more in 5 minutes than Dr. Wolfe told us in his entire examination.
MR. BRENNAN: And what we unfortunately learned is that during the trial, when this court had a sequestration order, information was being passed to the experts about witness testimony in this case, unknown to the Commonwealth, unknown to the court. Information — particular information, not general information — witness testimony, issues in the case. We have no idea who is deciding or identifying the issues and who the advantage is given to in describing those issues, but that is witnesses being prepped through an intermediary. So, we know the Department of Justice at least is violating the order, helping the witnesses along, and then they testify — unbeknownst to the Commonwealth — that they have this information, but obviously it is reflected in the testimony.
MR. BRENNAN: In addition, I've provided some clips to your honor for review.
JUDGE CANNONE: Yes. Do you want me to mark these as an exhibit?
MR. BRENNAN: I do.
JUDGE CANNONE: Okay. So, this was an exhibit from yesterday. I did have the opportunity to look at them.
MR. BRENNAN: I suggest that the relationship was not resigned to mere logistics. And so from that subterfuge, what we stand with today is that we know that the witnesses were well-prepared. We know that there was not true independence. And what we know is that they are refusing to provide the necessary information to support their original opinions that they gave at the first trial. They cited that it was a protective order. Perhaps it is. That has nothing to do with the issue. By calling the ARCCA witnesses as their witnesses, they then have the obligation to comply with Rule 14. Unlike the first trial, where the Commonwealth had no ability to do any testing, review, vet the reliability of the information, properly prepare for cross-examination, this trial that should not occur.
MR. BRENNAN: Just because it happened last trial and the Commonwealth was disadvantaged does not mean it should happen this trial. And that is precisely why I began moving for discovery in this case early on. Inevitably, if these witnesses cannot provide information because it's under a protective order, it may not be the defendant's fault in its inception, but it is their problem and difficulty because they chose to hire the ARCCA witnesses. They could have chosen any witnesses they want. Rule 14 is not obviated because they made a strategic decision to call the ARCCA witnesses. So now going into this trial, even Dr. Wolfe admitted that an expert should have time — in their opinion a month or more — to review the raw materials.
MR. BRENNAN: It's not enough simply to have a report, as Attorney Lally preached during his argument. We should have the opportunity to go through the raw data, the history, the videos, determine whether there's any failed testing. We don't have that benefit. And so my position has changed that those early opinions should not come in because we have no ability to fairly cross-examine. As for the new opinions, the report may not be done till May 7th. We are in the middle of trial — concedingly by the defense, or at least their witnesses — it takes a month to go through the discovery. When I filed my motion on the eve of trial that we would be unable to prepare, or we would want a continuance in this case, I appreciate why this case wasn't continued.
MR. BRENNAN: But I knew, given our scheduling, our experts will not be able to look at this material. Our expert is away until after the first week of May. He is going to be testifying shortly after. He will have no ability to digest this enormous amount of materials, vet whether it's accurate or not, conduct tests to combat it if he thinks it is inaccurate or unfair. And so the discovery violations, regardless of the state of mind, are upon the defendant. There is no exception that you used ARCCA witnesses. There is no exception that you hired somebody that used to be under a federal protective order. They chose them.
MR. BRENNAN: And I would suggest it seems strategically — when we noticed we'd have new experts in October — the defense, from past experience and probably other experience, but we know from this case knows the process, they would have to file a Touhy letter and wait for a response. And yet they waited until February to seek permission, which then extended their permission past February into March. And then they didn't even start the review until late March. And so it's fundamentally unfair. We should not be placed in the position of cross-examining experts without the fair ability as any participant defendant Commonwealth any participant would have in a case to consider and then to rebut.
MR. BRENNAN: And so for that reason I ask you to exclude both the new opinions and new testing and also to exclude the earlier opinions that we will never at this point receive the proper discovery with to prepare.
JUDGE CANNONE: All right. Thank you, Mr. Lally. I only have one question for you. So would you stand please? You're arguing this, right? This was your motion. So my question is, how do I reconcile the fact that 100 text messages were deleted by counsel and we heard yesterday counsel's preferred method of dealing with Dr. Wolfe was via Signal. How do we reconcile that with the Massachusetts Rules of Professional Conduct 1.15? I don't see how you reconcile that. Where all correspondence related to the matter, whether in physical or electronic form, must be saved for 10 years minimum. How do you reconcile that?
MR. LALLY: How do I reconcile that? I'm going to — should I go to the podium right there?
JUDGE CANNONE: And I expect a short answer.
MR. LALLY: The short answer, your honor, is the rule that you're citing has absolutely no applicability to this proceeding for the — Can I finish my answer, your honor?
JUDGE CANNONE: Right ahead.
MR. LALLY: Has no applicability. That rule is intended to be between an attorney and the client. The court has no jurisdiction to enforce that rule.
JUDGE CANNONE: I agree. I agree. That's a different body. But I'm asking you how I reconcile that when I'm trying to figure this out. Mr. Lally, you know what? You're going to win this. So, why don't you just let me make my ruling? Okay. So, I understand there have been repeated violations of the reciprocal discovery orders and my orders, repeated and deliberate. But, and Mr. Brennan, I understand completely the Commonwealth's argument, completely the ambush that has been set upon here. However, a defendant's right to a fair trial is paramount to everything. So, I'm going to allow the ARCCA witnesses to testify. I am going to allow what I expect to be a very robust cross-examination. And I'm going to allow them to testify to everything that they said up until yesterday.
JUDGE CANNONE: So — you'll get the report May 7th. And I know that's late. And if you need anything as a result of that being late, I'll hear you on whatever motion you have. But that's where we stand. And I expect counsel to comply with all rulings and rules of the court and all rules of professional conduct. And no more nonsense. Let's just try this case. All right, that's it. I'll see you tomorrow.
COURT OFFICER: All right. Court, please.