Transcription
Proceeding. Court is in session. All right.
So, I will hear you on the first question, the time of the OUI. Any suggestions, your honor?
Uh, do you want to hear from the defense first? I'll hear from whoever's standing up, so I'll hear from you first. Okay.
Uh, on question number one, what is the time frame for the OUI charge? Offense 002, section 5, OUI at 12:45, or OUI at 5:00 a.m.? Our suggestion would be something along the lines of, “Ladies and gentlemen of the jury, you have the evidence. You, it’s your decision. You are the factfinder.” Mr. Brennan, or whomever, from the comm—my suggestion would be 12:45, and why is that? The case has always been focused at that time. I don’t think there’s anything specific in the indictment regarding the time. Um, do we have the indictments? No, I do—it’s not in the indictment. I’m uncomfortable telling them a time.
Yeah. I’m sorry. If it’s not in the indictment, I’m uncomfortable telling them a time.
All right. I agree with the court on principle. I just don’t have the indictment memorized, so I don’t—I don’t remember if we can pull that up. There’s no time for the indictment. There’s no time. I don’t expect that there’s any time.
All right. So, I’ll say, “You have the evidence and remember, you are the factfinders,” or something to that effect. All right.
Um, are the video clips, Karen’s interviews, evidence? How can we consider them? So I’ll tell you what I was planning on saying, then you can add to it. Yes, the videos are evidence. Give them whatever weight you think is appropriate to give them, and then I would give the digital evidence instruction and the humane practice instruction. The only thing I would respectfully ask the court to include in that sentence is, “Give them whatever weight, if any, you deem appropriate.”
All right. If—Okay. Thank you. Otherwise, it’s fine. Going to do it anyway. But I don’t think it’s going to—You’re right. She just—Okay. What’s the Commonwealth’s position? We have a different perspective on that.
Okay. The first part of the question, are the video clips of Karen’s interviews evidence? The answer should be yes. Okay. How can we consider them? I think it’s fair to say you should weigh the defendant’s statements as you would evidence since they’ve been introduced substantively. They are like any other piece of evidence. There’s no difference, and there shouldn’t be any reflection of a difference in the answer. We didn’t introduce any evidence in this case and say you should give it any weight, if any at all. We didn’t provide a limiting instruction in any way. And these shouldn’t be so limited. This is just like a photograph. It’s no different than a physical piece of evidence. And so I think the answer should simply be yes, you should weigh the defendant’s statements as you would any other piece of evidence. I do not think the court should give humane practice or digital evidence and suggest that there’s some deterioration or further analysis that is different. Those instructions were already given during the charge. In addition, those instructions are in their hand, in the written jury instructions. And so to put it most simply, as I think that we—we should, is this is a piece of evidence and you weigh it like you would any other piece of evidence, whatever they decide, rather than give them guidance to cart tail it or to limit it in any fashion. I’m so sure you—My only suggestion, your honor, is that every single piece of evidence that’s provided to them—it’s in keeping with Massachusetts law. It’s in keeping with the responsibility that they have. Every single piece of evidence is given the weight, if any, they deem appropriate. That is not a misapplication of the law. I think the Commonwealth’s suggestion suggests in the answer that they should or they have to give those statements weight, and the law is they don’t have to give them any weight. So I think the appropriate comment by the court is exactly as the court suggested initially, which is, “You give it whatever weight, if any, you deem appropriate.”
[Music] Keep going. How fast is this?
All right. So, what I’m going to say is, “Yes, the videos are evidence. You should weigh the defendant’s statements as you would any other piece of evidence and give them whatever weight you deem appropriate.” But first, then I’ll go and I’ll read the electronic communications and the humane practice that covers it. If—if the—I don’t have a principled objection to it if the court adds the word “if any.” I—I understand because every single—I don’t want them to think, for instance, the way that it’s worded as the Commonwealth suggested it, they’re—they have to weigh it the same way they weigh other pieces of evidence. Every single piece of evidence is weighed in and of itself. It’s individual to the—to the piece of evidence that’s presented. For instance, uh, they could weigh the statements by misread. They could give it no weight. Each individual juror could decide, “I’m going to dispatch it altogether and give it no weight,” while giving another piece of evidence, like, uh, whatever that might be—uh, the testimony of one of the ARCA witnesses, complete weight. I—I think that we need to stress that the clips bear no additional weight, no additional gravity than anything else that they’ve considered. And the only way to do that is very simply, “You provide—you give this the weight, if any, that you decide is appropriate.” It doesn’t—I think comparing it and contrasting it to other pieces of evidence in the case—it’s unnecessary, and it—it tends to suggest they have to give it weight.
Okay. So your objections are noted. Now let’s get to the third one. Does convicting guilty on a subcharge, example offense two, number five, convict the overall charge? What do you want to say, Mr. Jackson?
[Music] I appreciate the effort that the court went to to amend the verdict slip as it relates to count two. And I think there are some excellent suggestions by the court in the verdict slip. By and large, I think question number three is answered by the amendments in the verdict slip. So, we certainly could say something like, “Does the—does convicting guilty—the question was, ‘Does convicting guilty on a subcharge, example offense two, number five, convict the overall charge?’ The answer is no, obviously.” Um, and perhaps we could formulate an answer that says something along the lines of, “No, new verdict slips have been provided that will make it more clear,” or something of that nature. Um, as well as, “A decision of guilty on the OUI charge 002, number five, is an explicit acquittal on the higher charges in offense 002,” which is a proper statement of the law. And then there are suggestions that we have regarding the edits that the court has made to the verdict slip, and I’m happy to go over those with you and put those on.
Go ahead. With regard to going from the top to the bottom, just under number one, number one reads, “Not guilty of the offense charged or any lesser included offense.” We would propose that the court add the language—the consistent language that it’s added throughout the verdict slip. “If you find the defendant not guilty of the offense charged or any lesser included offense, stop and sign the verdict slip.” Period. That’s in keep—that’s the only place that that language doesn’t appear, and I think it—it should appear.
Okay. Um, the second is a relatively minor issue. However, under number two, sub two, the parenthetical, “Check one or both of the following.” I think it should say, “Just to clarify it further, if guilty, check one or both of the following.”
All right. I think I’m going to leave it because it appears only under the guilty. It appears only under the guilty. So go ahead. I’ll—I’ll hear you further.
Going further. Um, going under number three toward the bottom of the page, in the parenthetical that the court suggested, which we find is—is excellent, “If you find the defendant guilty of the lesser offense, okay, of involuntary manslaughter,” we would simply add that clause. So we’d have to add it in all of them. Correct. Which makes sense. I think we had it in the first one. Right. Okay. And then moving to page two, at the top of the page, under sub four again. Hold on one second. Of course. Okay. Um, we have the same suggestion. It—it appears that the court is not inclined to give it. “If guilty, check one of—or both of the following.” And there’s a typo. Says “the parent”—we fixed it. “Check one of.” Yes. So we fix—we changed “of” to “or.” So my only suggestion to that would be to again add the “if guilty, check one or both of the following.”
Okay. Um, on that page, going down to the bolded parenthetical, same thing. “If you find the defendant guilty of the lesser offense of motor vehicle homicide.” Okay. Moving down under sub five. You still need to say, “Stop and sign the verdict slip.” Right. After the word “stop,” “stop and sign the verdict slip.” Yep. And then under sub five again, the same thing. We just suggested that for consistency that it say, “If guilty, check one of the following or both.” Um, and the final edit would be in the final parenthetical, the last sentence. “If you find—I think ‘her’ should be changed to ‘the defendant.’ If you find the defendant not guilty on this offense and all other offenses, check the first box on page one.”
Okay. And those are the edits that we have suggested for the verdict. Mr. Brennan, I don’t have any disagreement with the edits. Okay. The idea of instructing them on the nuance of selecting one guilty or not guilty, I don’t think needs to be explained. I think with the edits, this—uh—proposed instruction explained it. Yes.
All right. Would I have any issue with if you state, “If you decide on a lesser included offense”—I’m not sure the exact—I don’t think that’s necessary, but that is—uh—something I wouldn’t have an objection to, but I think the form which you filled publicly is going to be sufficient for them to follow.
Um, what do you think about the defendant’s position that um, if you were to find her guilty of operating under the influence? Mr. Jackson said “explicit acquittal.” I don’t like that language. I think if—if you find it means you have found her not guilty of each of the others. That would be fine with us. I think it’s better, “If you find her guilty of any less included offense, it would not include the higher offense.”
All right. I—I think that’s just—So, what I planned on doing was bringing them out and giving them each a copy of the amended verdict slip, explaining that it really is consistent with the jury instructions I gave them, um, but walking them through it. So, we start from the top and then explain, “If you find um, the defendant guilty, you’re done. Stop. Sign the verdict slip and let the court officer know you have a verdict,” or something. That—I think I’ll walk them through it like we do in civil cases. I—I don’t have any objection to that. Um, the only other thing is the digital instruction. We don’t believe that it’s necessary. I don’t think that we should re-emphasize that, and we’re not asking for it.
All right. So, you’re waiving it? We’re waiving it. Okay. Yes. Thank you. All right. I will do the humane practice instruction. So I need 5 minutes and Tori, your computer, to um, amend this if we can, and we’ll make copies. So we’ll bring the jurors in, let them know that we’ll be bringing them in shortly, Tony.
All right. Thank you all.