Speaker 1: Full trial audio, everything hurt in court, no silences to skiptter.
Speaker 2: We have before the Court of Kongwaw presus Lindsay Clansing.
Speaker 1: MS.
Speaker 2: Clancy is present by way of zoom. She is represented
by Attorney Kevin Running Cowaw, represented by Assistant District Attorney
Jennifer Spray and Assistant District Attorney Shannon Buckinghe.
Speaker 1: All right, Council doom is Clancy? Can you hear me?
All right?
Speaker 2: Yes, good afternoon, your all right?
Speaker 1: Great? All right. So we've got a number of matters
that are on. So I thought the best way to
deal with this number one, I want to kind of
find out how I know the evaluation was scheduled a
week or two ago. Can see how that went. And
I know there was some discovery motions that were filed
by the defendant. I know there were some Rule seventeen
motions that were filed by the Commonwealth. And then maybe
if we had a couple of minutes, we could talk
about a little bit about the procedures. I know there
was some suggested, uh dear questions. You know it's early,
but it's never too really to start talking about jury selections.
So I guess, first off, any issues arising out of
the comwealths evaluations of Miss Clancy a couple of weeks ago.
Speaker 3: Now you're on a Two of our doctors evaluated miss
Clancy over a three day period. The third doctor that
we have retained is going to do a zoom interview
with Miss Clancy. And we made sure that his doing
that separate interview wouldn't impact the timing of his report
and or delay the trial in any way, and he
assured us it wouldn't. So we're getting some dates from
him to coordinate with defense conful to get that done.
But I think we're on track in terms of the
evaluations and when we'll have reports.
Speaker 1: All right, is ranking any issues that you saw come
up during those evaluations?
Speaker 4: They went very smoothly, thank you, all right.
Speaker 1: So that then kind of begs the next question of
the in regards to those reports. Do you have a
time estimate that the two of you have talked the
three of you have talked about.
Speaker 3: I believe what we had talked about in court before
was end of my beginning of June.
Speaker 1: All right, then, so that first issue seems to be
resolved or on its way to being resolved, or guiding
any evaluations. Now about the discovery motions, the party's ready
to argue those, Yes, all right, and so I've got
I think there were two. I don't know if they
were there any more than all right, because I was
coming from out of county. So there the clerk's office
was good enough to forward those two, and I just
wanted to make sure I had though, So I have
the first one we can take up. Maybe it's called
the motion for discovery regarding communications. So mister Rachel'll hear you,
and then I'll hear Come.
Speaker 4: On, ern I'm cognizant of the case that came out
actually came out of this county. I believe it's Comewell
versus caldwellth it was a grave case where the gentleman
was in jail for almost a decade, and there had
been a number of post conviction hearings before the various
judges that denied as far as the defendant's request. But
then ultimately on a roll thirty, it became apparent that
there had been exculpatory statements made that were known to
the prosecution. I'm not suggesting for one minute that I
have any information that either one of these prosecutors who
I know very well, and I would never suspect would
not do anything other than provide me with what I
should have. But in the Caldwell case, the Supreme Judicial
Court noted that defense Council has an obligation, and this
is before they changed Rule fourteen an updated Rule fourteen.
But I still don't think that the updated rule fourteen
trump's if you will, the Calledwell dicta where the court
noted that the defense attorney did not make a specific
request for any and all communication between the prosecution team,
if you will, including the prosecutor, the DA police that
we all consider to be part out of the team,
but also victim witness advocates. And in that case, I
think it was a victim witness advocate that had a
memorandum where there was an exculpatory statement made by is
my memory the alleged victim. So the SJAC didn't allow
that motion and did grant the person a new trial
based on that. So, based on the Call WORL case,
I'm just asking that the court enter in order for
us to get access to all communications from any of
the prosecution team with witnesses, including the physicians that have
been doing the government's evaluation of MSS clancy, and they
would include emails, texts, obviously written materials, notes, memoranda coterminous
with discussions that might refresh someone's recollection. I am cognizant.
I filed this motion on a write a case up
in a newber report a number of years back, interestingly enough,
where issue of ballistics was in play, and it ultimately
resulted in the production of an email from the prosecutor
to the ballistian saying, please, please please, I have to
have you hook up this bullet or I have no case.
It's needless to say that resulted in defend that able
to raise that issue with the court. So I'm asking
if the court would enter that order. And finally, I'm
asking that if it relates to text messages. And I
hate to even mention the case, but the Karen Read
case where that detective his personal cell phone was utilized,
not his business cell phone. So I would ask that
the court would enter in order that personal or business
related cell phones, computers, tablets would cover under that order.
Speaker 3: Kern or I would object to this motion. We are
well aware of our obligations to turn over any exculpatory
information and if there was any in this case, I
would certainly turn it over, but I haven't found any,
so I will honor that obligation going forward. Despite the
changes to Rule fourteen, work product is still a thing,
and all of what the sun COMESO has mentioned is
work product unless they're until there is some exculpatory information
or a statement by a witness that we would have
course turnover. As far as personal phones, I don't use
my personal phone for work purposes, so I would object
to anyone having access to my personal phone. But in general,
I would just object to this. There's no foundation, no basis,
no information that any explatory information has been withheld. Unlike
cases post conviction, where there is evidence that is brought
forth and then motions are allowed for this type of discovery,
but that is not the case here, and it will
not be the case here because we will honor our
obligations under Rule fourteen and our ethical obligations.
Speaker 1: It's great you're looking for evidence kind of beyond Rule
fourteen is kind of a Rule fourteen plus.
Speaker 4: Yes. Communications For example, if there would be text messaging
between and I use the example a particular victim, witness
advocate and a doctor or the doctor communicates with someone
from the DA staff regarding an issue that arose during
the course of the alleged independent evaluation. Anything like that,
I'm looking for, and that would be as I said,
based on mister Proctor detective form of detective proctor. I
think personal devices would have to be included. And I'm
not trying to be invasive to anybody's privacy by any means,
but that is an issue that was brought for significantly
during that trial. So I do include that request.
Speaker 3: And I think that became an issue when evidence of
such matter became known, and then that opened the door
to that type of discovery, which is not the situation here.
Speaker 1: Right, I'm going to take that under advices. I've got
to go back review Rule fourteen. You know who's part
of the I know the prosecution team, and Rule fourteen
any specifically MENTIONSNAP victim witness advocates. Now, but I also
then have to review the work product kind of statement.
I'm going to take a look at callwell, so I'll
get take that under advisement. Let me see, all right,
the next motion is for discovery regarding government's medical witnesses.
Speaker 4: Could I just apologize you run out the site for
Caldwell Cornwall versus Clifton Caldwell. It's for eighty seven mass
seventy soul.
Speaker 1: Thank you, all right, we'll take a look at that,
especially in light of Caldwell. And then regarding pleading number
seventy four, which is the motion for discovery regarding government's
medical witnesses, so miss regularly on that.
Speaker 4: You run around that motion. I'm asking that the court
would entertainer request that we'd be advised of the cases
that the government's chosen doctors have been involved in a
criminal case, certainly not during their entire practice when they
are engaged as an expert, either for the government or
the defense. Requesting information as to the percentage, if you will,
of their practice, that would how much percentage of their
practice would be for prosecution, how much for the defense,
And then obviously the name of the cases or a
docket number in references in the event there was testimony,
not so much a plea. I'm not looking for the
government to provide me with their reports on these cases.
Of looking for the name of the case, the court location,
the docket number, and whether or not they testified for
the government or the.
Speaker 1: Defense.
Speaker 4: I'm also looking for I think there was some other requests.
I don't have the motion in front of me.
Speaker 1: There was the fourth paragraph is directing the physician to
produce and make available to the defense notes, records, memory,
and yes, so I think that was an.
Speaker 4: Addition to repress my memory yourana so obviously, and I
don't know, maybe they're not on because of the fact
in this case, as you know, we followed the motion
to have the interviews recorded, which they were recorded, So
I don't know if that obviated the necessity of anybody
taking notes. And a lot of times the doctors will
say that interferes with the relationship between the patient or
the defendant and the doctor who's doing the evaluation. So
those are the requests that I have in that regard.
So I specifically did not ask for the amount of
money that they have made. And the reason is is
that I personally feel in the cases I've tried I
have I can literally tell you never have I ever
asked a doctor, expert, anyone, how much money did you
make in this case? And I always say, in the
event the government asked the question, I always say, look,
everybody's getting paid to be here. I'm getting paid the
judge is getting paid. Jurors not much, but they're getting paid,
so it doesn't really matter. But the funds that they receive,
I don't really care how much money they made. I
don't think that's going to color someone's testimony at all.
I guess what.
Speaker 1: I'm interested to the argument because it's above and beyond
the CV that's supposed to be my rule has been,
My magic has been turned over, is going to be
turned over. But didn't ask them to go win their
records and go back and dig through all that.
Speaker 4: Well, it's not so much a matter of digging through
all that as much as like when you get when
you get the CV, and the CV says the following
that cases that I testified, and they name the cases,
But you don't have a docket or you don't have
a specific I can't go hunting through the internet find
what case they're talking about. So I look for a
docket number or location of whatever court it may be
Tanellos County, California or something like that, in the docket number,
and then I could try to see if there would
be any records of documents indicating that what their testimony was.
They don't give you that generally on a CV.
Speaker 1: Come up.
Speaker 3: Rule fourteen only requires the curriculum VIEWTAI as well as
any publications that they've authored. We've turned over the cvs
for the two doctors who have already done the analysis,
and will be turning over the third doctors information tomorrow,
and those contain the publications they have authored. This is
all above and beyond what's required by the rule. There's
nothing in the rule or in the case law that
requires us to go on a search for this information.
If Defense wants to use it in their cross examination,
then they have to go and find it. We're not
required to help them with their cross examination. Nless there's
something exculpatory and we find that, we will of course
turn it over. I don't think Rule fourteen requires me
to do math either, so asking for the overall percentages
of chases, and if anything is allowed, I'd ask for
the same reciprocal discovery from Defense consol on his witnesses.
But in the Carmost position, this is all beyond, well
beyond the scope of Rule fourteen.
Speaker 4: So I can assure you that I know every article
that these guys have written, and I've already gone all
the way back to their high school. I really don't
need the government to help me on cross examination. But
I don't think it's an unreasonable request to say that
when they put on their resume or their CV, what
cases that they've been involved in, to know whether they're
testifying for the government or the defense and some docket number,
it's not requiring a lot of work to find a
doct number or a court.
Speaker 1: That it's in defense.
Speaker 3: CONSOL can do that same work.
Speaker 1: Well, I know, it's kind of hard for me to
make this determination. They'll seeing the cvs, do you know
what I mean? It maybe if I see them, it
may be not a big ask to fill in these gaps,
or it may be a huge thing to ask. I mean,
if this is if somebody's been an expert for twenty five
years and there's no there's nothing on the CV about
the specific cases that's gonna that's a that's a big
ask for somebody to go back through twenty five years
of your career and reconstruct what cases they were that now.
So that's that's just one comment I had when I
was reading through that. The other thing is, I guess
I'd be interested to hear from both parties. Everybody and
I always ask that question, right, what percentage of the
time that you've testified where you on behalf of the
government or the defense. And that's that's very confident. I mean,
I asked that question many times. And is it I imagine
is it a big ask to kind of ask that
question in advance from both sides everybody would know. I'm
just and if you feel it is a bridge too
far in a sense, let me know. But I'm just
thinking we've all heard that question, you know, and if
everybody knows what the answer is going to be, now
is there a problem? Because then if somebody says it's
ten percent, well then the OtherSide may want to do
their own chasing after it, or not they may be
satisfied with that. I don't know.
Speaker 3: I think it's beyond the scope of reporteen and I
think it is a significant ask because we then have
to go to the experts and ask them to review
every case they've ever worked on and determine which side
they were on, and then do the calculations to determine
the percentage. And really it's not the quantity that's important,
the quality of the work. And I think that can
be examined in the cross examination without knowing an exact percentage.
Speaker 1: But don't you think someone you're both going to I
shouldn't saist. It would not be a surprise to me
if that question was asked by both sides of anybody
to testify here.
Speaker 3: I think there's two separate issues here. I mean, there
are plenty of questions that might be asked of a witness,
but it doesn't mean the karmalt has an obligation under
Rule fourteen to seek out that information and provide it, right,
And that's.
Speaker 1: So I was just asking. I kind of wanted to
know what the call moust physician was in regards to that.
All right, what I'm going to do is I'm going
to take no action on this at this point, because
what I'd want to do is maybe see the cvs
so I would then know what information both sides because
if I'm going to do one, it certainly would be
reciprocal in regards to these requests. But I'm not saying
I would just kind of need a little bit more
information as to what the cvs have presented.
Speaker 4: So I'll get the cvs from my side and present
them to a dot and chun.
Speaker 1: And call the same all right, and I'll take a
look at them then i'll make a decision on this
regarding that, all right, all right, so I'll take that
matter under advisements as well. Now, the next series of
issues I think is in regards to the rule seventeens.
Speaker 3: Yes, and I believe Defense Council is not objecting to those.
Speaker 4: All right.
Speaker 1: So it's a request for Mass General records. And then
there was one I just kind of wanted to make
sure I add it.
Speaker 2: Right.
Speaker 3: There's one for employment records for Maths General. There's one
for educational records from Mass General Hospital Institute of Health Professionals,
and then there's one for educational records from Quinnipiac University
and a company that should be a sort of a
certificate for out of state securing of those records.
Speaker 1: So the MGH Institute is an educational just kind of
continuing education in the sense if you're working in Mass
Channel or something like that. All right, So I'm going
to allow those Yeah.
Speaker 4: No objection to that. I know they are. They already
obtained a number of documents and records from her employment
where they were rating peer review ratings and things, and
she always races everything. So I have no, obviously objection
on that.
Speaker 1: Do we need a return date given guides to those.
Speaker 3: Records, and specifically for the out of state records, because
there are bases on those documents. For a return date,
we could do a sixty day date.
Speaker 1: We've got a June date anyway, don't we right already?
Speaker 3: Yes, we have June eight teenth, eighteenth Thursday.
Speaker 1: You want to put that at the same date if
there's if there's issues, we might as well deal with them.
They're not and we know we can just kind of
check that box, all right, So we'll allow those with
a return date of June eighteenth.
Speaker 3: A thank you.
Speaker 1: The next issue, there was a request for release of
the journalists early. I allowed that, so I think it's
coming here. So so the parties have those, Okay, thank you.
Then just maybe a little discussion regarding the impediment procedure.
I know that there was a file that suggested the
question the air along with a number of questions. We're
not going to go to them. I mean, I think
it's it's early, but like I said before, it's never
two everything. So I think that that's what I'm saying.
I think that's helpful in the calm off the same
thing as we go through it, but generally try cases
with everybody here, so you know, generally, what we'd do
is i'd ask the general questions and a lot of
the questions here I'll ask generally, and then we'll just
do an individual sidebar kind of as we go through it. Uh,
and then as we've done before, i'd ask you exercise
your challenges at that point rather than the gold days
fill the box and then you know, and so uh,
these some questions in regards to the procedures. But so
that's generally the way we do it. If we do
a question here, might hope we'll be to keep it
to one page because I just think that it's easier
for the jurors as well. But we'd still have individual
no matter what.
Speaker 4: So kind of just a question we do the individual
of what idea? What's your practice? I forget many cases
with you, but do you have the juror in the
witness box and console stays at the table or do
you go up to the sidebar? Literally I generally go
over to the sidebar. So my request, if you would
consider it, is that we use the witness box with
the juror for a couple of reasons. I know there
are many judges that do that, and not to mention
the fact that it's a lot easier on the legs
and standing there for hours on end at the sidebar.
But my client, as you know, is in a wheelchair,
so it would be kind of difficult where I always
ask that the client be with me at the side
by when we have that question of the jurors. So
I just asked in this case that you would consider
doing it through the witness box, just because it's going
to be difficult.
Speaker 1: With there, right, And I was thinking of that. One
of the possibilities is to use the uh, what's it
called the whisper, like the headset.
Speaker 4: If that's your order, that's your order.
Speaker 1: But I haven't gotten it. I haven't really, I'm trying
to bounce off the different ideas. That's one thought and
one of the reasons why I'm not necessarily a big
fan of the witness box in a case like this.
There's a lot of really personal questions that are going
to be asked in not just this case, in a
lot of cases, and that's why I generally would do that,
but there.
Speaker 4: Would be there would be nobody else, you know, I
mean insirens, we can't close the court room, so right,
I mean, you look at is you know Colin versus Cohen,
which cod one is I'm familiar with.
Speaker 1: So but that's that's one thought we can talk about it.
This is probably a better specific topic when we come
back in June, but I just kind of wanted to
get that out there, to have people thinking about it.
You know, how are we going to do this? I'm
not wed to that. I mean, this is a unique
you know, each case has its unique characteristic so this
may have that scenario where we have to do it
in the jury box. I just haven't really kind of Finally.
Speaker 4: I just know that I've had many, many cases in
various counties where I just will do the individual idea
from the jury box. It works out well. I've never
had any issues that I can recall in those cases.
I know the court's got to balance the concerns. But
I've done that whisper thing in federal court and statecore.
I don't like the whisper thing. I never use it.
I'm almost because I don't like it.
Speaker 1: Five But sometimes it's as bad as it may be,
it's better than the alternative.
Speaker 4: As they say, Well, not from my client's point of
view and my point of view. I understand you're balancing
other people's interests.
Speaker 1: Came on these thoughts.
Speaker 3: I prefer to do it out sidebar. I agree with
the court about the personal questions. I think we're more
likely to have juris who are comfortable and honest entering
at sidebar. We also send them out of the room
to do our challenges. So defense could use that opportunity
to speak to the defendant, but I would defer to
the court on it.
Speaker 1: All right, I'm going to think about that and maybe
we come back here in June we have a better
kind of concrete answer. I'll have to kind of decide
how we do it, but I kind of wanted to
just gauge everybody's thoughts and interest in positions, so well.
Speaker 4: The other alternatives that we could ask quote opposite to
construct a platform that we could put next for the bench.
I suppose that's that's another possibility.
Speaker 1: Uh so we'll we'll keep all possibilities. But I mean
generally we either do it sidebar there maybe with the whisper,
but full weigh those out, all right, and then fine,
so we've got we've got the June eighteenth date, and
then do we need one more date in May? Do
you think to just kind of make sure everything's on
track that makes sense, I don't know. I mean it
sounds like things are going I don't see any big
bumps in the road here, but that's sometimes when sera again,
it's going to be difficult.
Speaker 4: I have two back to back federal trials in May,
and it's probably going to wipe out most of the
month of May. So I just let you know that upfront.
But we could go through some dates if you want.
Why don't you give us a date we can maybe work.
Speaker 1: It's more of it. I hate to use the word status,
but that's kind of what it would be, to see
if there's any issues that anybody sees that we need
to address earlier rather than later. When we commit about
May twenty first, it's a Thursday in the morning works,
and if that becomes a problem from me either side,
just let us know we can kind of move that police.
And that's really just to check in in regards to
discovery and witnesses and any other issues that we may have.
But when I say, can I see council tidemark, just briefly,
all right, and then come mout anything further. We need
to address it this time.
Speaker 3: I don't believe so, Honor, I'm mis.
Speaker 1: Strength and anything further. Oh, thank you, all right, So
this case will be over till what was it?
Speaker 2: May first, top of the record, this matter of continue
to make twenty first, twenty twenty six at two pm
for status and we will have Miss Clancy and by zoom.
Speaker 3: Yes and cantilate.
Speaker 2: Good morning.
Speaker 4: Yeah I did.
Speaker 1: I didn't here.
Speaker 4: I have to be in a federal court in the afternoon.
Speaker 1: We're doing in the morning, gay one in morning, keep
doing the wet's see whatever's good for you want to
say nine o'clock, because I don't know what Judge Hogan's
trial schedule, may have to sneak out at first and
then head out to where I'm going. And like I said,
if we don't need that date, parties can just let
us know. And the thought then on that June date
to so everybody transportation and everybody else, the thought would
be to have Ms Clancy here in person on the
June eighteenth date.
Speaker 2: Okay, all right, step of the rock at this matter
has continue to May twenty first, twenty twenty sixth at
ninety a m. And Miss Clancy will appear around.
Speaker 1: So thank you, thank you, all right, thank you everyone,