00:00 - Good.

00:01 - Good morning everyone.

00:04 - Welcome to the second day of our oral argument

00:06 - session for, the spring here in Philadelphia.

00:11 - The Pennsylvania Supreme Court is the oldest appellate court in North America.

00:15 - In case you didn't know that, because I say it all the time.

00:19 - Our roots date back to William Penn's provincial court of 1684,

00:25 - and our Supreme Court was formally established pursuant

00:28 - to the Judiciary Act of 1722.

00:32 - In 2022, we celebrated the court's historic 300th

00:37 - anniversary here in Philadelphia.

00:40 - As you likely noticed entering

00:42 - the courtroom, our court has a tradition

00:46 - in all three of our courtrooms and, surrounding our halls

00:51 - by the courtrooms of hanging portraits

00:54 - of our former chief justices,

00:57 - just by way of historical knowledge.

01:01 - I'd like to just tell you briefly about three of the portraits today.

01:05 - To my left is the portrait of Chief Justice Ronald Castiel.

01:10 - I was fortunate to serve with Chief Justice

01:13 - Castiel from 2008 until his retirement in 2014,

01:17 - after graduating from Auburn University, Chief Justice Castiel was commissioned

01:22 - as a second lieutenant in the United States Marine Corps.

01:26 - He served in Vietnam as a platoon

01:29 - commander when in 1967,

01:32 - they were ambushed by a Viet Cong battalion.

01:35 - Castiel was seriously wounded and ultimately.

01:41 - Ultimately lost his leg.

01:43 - In this portrait, he proudly poses with his Swiss crutches

01:48 - or as he call them, his medals.

01:52 - Castiel, came to Philadelphia

01:55 - and became Philadelphia's district attorney.

01:58 - He served from 1986 to 1991,

02:02 - and was elected to this court in 1993.

02:06 - Next, we have the portrait of Chief Justice

02:09 - Robert and C Nix Jr.

02:12 - Chief Justice Nixon's grandfather was born into slavery before

02:17 - becoming an academic dean of South Carolina State College at Orangeburg.

02:22 - Nixon's father was Pennsylvania's

02:25 - first African-American congressman, and he served for 20 years.

02:31 - Chief Justice Nix was the valedictorian of Villanova University

02:35 - and graduated from the University of Pennsylvania Law School.

02:39 - After developing a reputation for protecting civil rights as a lawyer

02:43 - in Philadelphia, he was elected to the Court of Common Pleas.

02:47 - He was later elected to this court, becoming the first African-American

02:52 - elected to a statewide office in Pennsylvania.

02:55 - He then became Chief Justice in 1984, again making history

03:00 - as the first African-American state chief justice.

03:05 - Last, I'm going to comment on

03:09 - the final, portrait on that wall.

03:13 - And that is a portrait of Chief Justice

03:16 - Horace Stern, a Penn Law graduate and the court's first Jewish justice,

03:22 - admitted to the Philadelphia bar in 1902.

03:25 - Stern entered private practice,

03:28 - only to be interrupted for service as a major in the Army.

03:32 - After serving as a Court of Common Pleas judge in Philadelphia.

03:36 - Stern ran success for a seat

03:39 - on the Supreme Court in 1935.

03:42 - In 1952, he became Chief Justice and was sworn in.

03:46 - In this courtroom with one speaker, former U.S.

03:50 - Supreme Court Justice John Roberts, remarking that stern

03:55 - shared the qualities of two other great judges of the common law,

04:00 - Oliver Wendell Holmes and Benjamin Cardozo.

04:04 - Stern served as Chief Justice

04:06 - until his retirement in 1956.

04:10 - I thank our court crier, Bryan Minner, for taking such an interest in the history

04:14 - of our court and for compiling these biographies of our chief justices.

04:21 - I'd like to announce that we

04:22 - have some students here with us today.

04:27 - And I'd like to introduce them.

04:28 - They are from my alma mater, Lincoln High School in Ellwood City.

04:33 - These students are enrolled in the AP, U.S.

04:36 - government and politics and the American government classes.

04:41 - And they are here with their teacher, Mr.

04:44 - David Davis.

04:45 - Would you stand students and Mr.

04:47 - Davis?

04:49 - We're glad to have you here.

04:51 - Welcome.

04:52 - I believe this is the 13th year that Mr.

04:55 - Davis has brought his students to Philadelphia for an educational trip,

05:00 - and they always spend one day serving our oral arguments.

05:04 - I hope that a few of them may decide to become lawyers,

05:09 - and I hope that none of the arguments

05:11 - today will dissuade them from their career choices.

05:14 - Thank you, Mr. Davis.

05:15 - Thank you. Students, welcome.

05:17 - We have some law school students to.

05:21 - Okay.

05:21 - Are there other students here with us today?

05:23 - Do we have some law students?

05:27 - Professor, did you bring your students?

05:29 - We do.

05:29 - Yes, please.

05:30 - Please stand up.

05:31 - I thought we had some law students here.

05:33 - And you are from I colleagues.

05:37 - Well, welcome. Or very glad to have you.

05:39 - Thank you.

05:41 - Before we hear the first case, I'd like to remind Council of a few things.

05:45 - Appellant's counsel, please approach the podium when your case is called.

05:49 - I will then give a short summary of the case.

05:52 - After that, you may begin by stating your name and the party you represent

05:56 - and introducing your co-counsel to the court.

05:59 - The justices are familiar with the cases, so I ask that you avoid

06:03 - any unnecessary recitation of facts or procedural history,

06:07 - and instead focus on the main issues on which we granted review.

06:11 - Counsel is welcome to rely on their briefs for particular issues.

06:16 - I also remind you that we do not permit rebuttal

06:19 - in cases where there are multiple parties represented by separate counsel, counsel

06:24 - should avoid repeating the same arguments as prior counsel.

06:28 - Please try not to interrupt the justices when we are asking you a question,

06:33 - a justice.

06:34 - This question is not meant to trip you up.

06:36 - Rather, it indicates there are particular issues that we want to explore further.

06:42 - While there is no set time limit for oral argument, I will advise counsel

06:47 - when the court is satisfied that all of its questions have been answered,

06:51 - and at that time I will ask that you conclude your argument.

06:55 - Welcome to the Pennsylvania Supreme Court.

06:58 - My name is Guiteau Hillebrand, and I will be giving you

07:01 - a preview of the cases that the justices will be hearing today.

07:07 - Our upcoming case

07:08 - is Commonwealth of Pennsylvania versus Brown.

07:12 - It involves an interesting criminal law question in the case.

07:16 - Defendant LaVar Brown was convicted of second degree murder

07:20 - during a robbery of a Rite Aid store in 2003.

07:24 - During the course of the robbery, the store manager was shot and killed.

07:29 - At the trial, two accomplices identified

07:31 - the defendant as a participant in the robbery.

07:35 - After his conviction, Defendant Brown filed

07:38 - for post-conviction relief and was denied.

07:41 - In October 2020, the District Attorney's

07:44 - Office adopted a policy of open file discovery

07:49 - and granted Defendant Brown access to review his files.

07:53 - Mr. Brown filed a post-conviction relief petition

07:57 - based on the district attorney's disclosures.

08:00 - Defendant Brown contended that he was entitled

08:03 - to post-conviction relief because the Commonwealth did not disclose

08:07 - that the witnesses had made prior inconsistent statements,

08:12 - that the Commonwealth presented false testimony,

08:15 - suppressed documents, and failed to disclose plea deals.

08:19 - The Commonwealth conceded that relief was due to Mr.

08:23 - Brown, based on violations, and misconduct was grave enough

08:26 - to cast doubt on the integrity of the proceedings.

08:30 - In 2022, counsel for victim's family members moved to intervene

08:35 - and argued that the district attorney's office

08:38 - had a disqualifying conflict based on the concessions.

08:42 - District Attorney's Office opposed the intervention,

08:45 - but did agree that victims families could file amicus briefs.

08:50 - The distinction is the following.

08:52 - If the families were allowed to intervene,

08:54 - they could then appeal decisions of the court's amicus brief.

08:58 - Our friends at the court,

09:00 - and they can file briefs to advocate for their positions, but they don't have

09:04 - the same rights as parties to file motions and appeals.

09:09 - The judge

09:10 - granted post-conviction relief to Defendant Brown.

09:13 - The victim's families filed a petition for exercise of King's Bench jurisdiction,

09:19 - asking the Supreme Court to review the office of the Attorney General, filed

09:24 - an application to also be amicus

09:27 - curiae and to support the victim's families.

09:30 - The Supreme Court granted review

09:32 - based on the question of whether and via what procedure.

09:36 - A Common Pleas court judge may grant post-conviction

09:40 - relief based upon concessions of the parties.

09:43 - The Commonwealth, represented by the District Attorney's

09:46 - Office, argues even though they made concessions,

09:50 - the judge made his own independent decision.

09:54 - The Commonwealth also argues that the Office of Attorney General

09:57 - and the petitioner families do not have the right

10:00 - to intervene in this or any criminal case.

10:04 - The families of the victims and the office of the Attorney General argue that

10:08 - when the Commonwealth concedes relief, the court should appoint an intervenor.

10:13 - Because our legal system requires an adverse trial process to get to the truth.

10:19 - Judges are deciders.

10:21 - They are not investigators in our system.

10:24 - The attorney general also argues that the cases which the district attorney

10:28 - has chosen for concession were not chosen for error.

10:33 - Rather, they were chosen to reduce sentences

10:36 - with three quarters of capital cases being conceded.

10:40 - Basically, the attorney general is arguing that the concessions are not

10:45 - part of legal merit decisions,

10:48 - but rather due to a change in policy.

10:51 - We will now hear the arguments on this important topic.

10:56 - Good morning,

10:56 - Chief Justice Todd, associate justices of the Supreme Court of Pennsylvania.

11:00 - My name is Christopher Lynott and its chief, the chief judge just laid out.

11:03 - I represent the surviving family members of two murder victims, Michael

11:08 - Michael Richardson, who died on January 19th, 2003,

11:12 - in a botched robbery involving defendant LaVar Brown

11:16 - and Robert Crawford, who was killed on December

11:18 - 10th, 2003, in a street corner in Philadelphia, because Mr.

11:22 - Brown believed he was cooperating in this case.

11:24 - And as this court is well aware, this case has been here before.

11:28 - And we're here again to answer the question of whether

11:31 - what this court said in Brown in 2018,

11:34 - the judicial merits review favorable favorable to the petitioner

11:39 - that is necessary in order to be to grant ray relief, to vacate

11:43 - a conviction can stand where you have the parties below conceding error

11:48 - and directing the trial court essentially to a conclusion.

11:51 - And Chief Justice Todd to go back to your history, that there's

11:55 - three major underpinnings here that the parties actions have undermined.

11:59 - The first is the necessary adversarial process,

12:03 - which this court is seeing play out right here today.

12:07 - We finally have an adversarial process, and you see the evidence

12:11 - that has been produced to this court in the first instance,

12:14 - evidence that completely undermines the concession.

12:18 - The lack of an adversarial proceeding below impacts

12:22 - the independent, the merits judicial review that is required.

12:25 - And I intend to talk about what judge just, Judge Bronson said below,

12:30 - and the issues he thought were critical

12:32 - and what the parties told him about those issues before granting relief.

12:36 - And third, because of those two errors, there's two compromises

12:40 - of what I would call the essential procedural safeguards

12:43 - of our criminal justice system to use justice.

12:47 - His word in the concurrence and parent impacts

12:49 - the constitutional transparency that is required in these proceedings.

12:55 - The adversarial testing you have seen happened here

12:59 - in front of the Supreme Court of Pennsylvania.

13:01 - And it happened because we submitted a memorandum from March of 2003.

13:05 - And I'll just take a step back of what happened below the counsel.

13:09 - Can I just just for the sake of clarity here,

13:13 - your client participated as, amicus.

13:17 - That's correct.

13:18 - Briefed all of the issues

13:20 - before the court did not ask for a hearing.

13:24 - My correct.

13:25 - That is, we did not.

13:26 - We do not believe a hearing was necessary on the record before the court.

13:29 - That is correct.

13:31 - Okay.

13:32 - And didn't didn't, appeal from the, denial of intervention.

13:36 - We did not appeal from the denial of intervention, your Honor.

13:39 - We intend because below our position has always been

13:43 - that this record is so bare that petitioner

13:46 - just cannot meet his burden to prove by a preponderance of the evidence.

13:50 - Considering all the evidence in this case, not the limited evidence

13:54 - that the District Attorney's office and the defendant

13:55 - proffered to the trial court are insufficient to grant relief.

14:00 - And you could.

14:00 - All you have to do is to look to what facts, verifiable facts

14:05 - about Ronald van suppose in Culper statement

14:09 - and incorporating Kenisha page could be verified.

14:14 - Who did you give that statement to?

14:16 - When did he give it?

14:17 - What was the context?

14:19 - What did he say about her?

14:20 - We have none of that here because the parties below never interviewed a witness.

14:24 - They reviewed the paper file and came to what I would say.

14:28 - The lawyer's belief as to what happened, and then walked into court

14:31 - and represented to Judge Bronson, specific factual things.

14:35 - I want to be clear what they bring to the stipulation. Yes.

14:38 - And your argument is that the stipulation cannot be a substitute

14:43 - for a judicial decision. It cannot be it.

14:45 - And that's what this court said in Karen.

14:46 - And I want to I think there's a lot of parallel difference.

14:49 - There's a difference, isn't there, because,

14:52 - here,

14:55 - it's not a concession as to a credibility determination.

14:59 - It's a, it's a, it's a determination,

15:03 - and not solely by the Dow, but by Judge Bronson.

15:06 - If I'm not mistaken, that impeachment evidence was never turned over.

15:11 - Particular impeachment evidence was never turned over.

15:15 - Excuse me?

15:17 - To the defense and

15:20 - I thought what was going to happen here?

15:23 - Prior to the grant of his petition, was

15:26 - the Dow was going to was going to try this case again.

15:30 - Am I missing something here?

15:31 - That is the first of all. That is correct.

15:33 - The District Attorney's office has represented that.

15:35 - They want to try this case again.

15:37 - But to your point about judge Judge Bronson,

15:40 - I want to read some things that he said in December 2022

15:43 - for the parties to make very clear what he was trying to figure out.

15:46 - I want to share my view that it seems to me to the record in front of me,

15:50 - including the stipulation does not resolve the factual question of whether Mr.

15:54 - Van actually identified Kenisha page as a participant in the Rite Aid conspiracy.

15:59 - I don't believe that's something you can stipulate to.

16:02 - That's at appendix nine, nine, seven and then five pages later in the transcript

16:05 - to in the appendix at 9.99, he says he's asking about the 483.

16:10 - That's the 483 were defendant Brown and Kiana Lyons are supposedly

16:15 - first mentioned.

16:16 - We know that's not true, that he never mentioned months earlier

16:18 - and he said the 483 if that predated the two

16:22 - to like Detective Baker's July memorandum, that's important.

16:26 - And then he goes on and says if the 483 predated those memorandum,

16:30 - then that argument would be totally I don't know.

16:33 - And I think totally is the word he's going to say is undermined

16:37 - because here he was presented with facts that suggested that detectives

16:41 - interviewed a witness, or at least investigated a witness,

16:45 - and then confronted Ronald Van, who was the key witness

16:47 - here, and said to him, you get to change your story

16:50 - and then, based on the record below, he gives a statement

16:54 - where two new suspects are named Levi Brown and Kiana Lyons,

16:59 - and what they represented repeatedly to the trial court below.

17:02 - And I want to just make sure I'm

17:04 - very clear what the parties told Judge Bronson.

17:07 - But and Mickey, we making the argument that this is not material,

17:11 - not prejudicial, ignore these statements also

17:14 - did not mention Kiana Lyons or petitioner himself.

17:18 - They were first mentioned in Van's

17:21 - July 21st and 22nd, 2023 statements, after investigators determined

17:27 - that van had lied about Page's involvement in the Rite Aid robbery homicide

17:32 - that is literally true, but factually inaccurate.

17:36 - Counsel, what is what I'm hearing you say is the trial court heard.

17:42 - I say the parties aired course the trial court?

17:45 - No, the trial court did an independent review of the record.

17:49 - Your argument is he aired in reaching the findings

17:53 - because they weren't supported by the record,

17:55 - because he was missing critical evidence that was necessary to those finding.

17:59 - It doesn't matter.

18:00 - It doesn't matter.

18:01 - Your argument is he aired.

18:03 - I believe he aired.

18:04 - That's exactly right.

18:05 - And he aired. I'm just explaining the reasons for Judge Bronson.

18:08 - Does it really matter? Does it?

18:09 - I said he aired and we agree with you.

18:12 - Then we would reverse him as we would in any PCR case.

18:17 - To me, the critical point is here is that the trial court

18:21 - engaged in an independent review of the record before him.

18:25 - He could have said it's insufficient, but he did absolutely. So.

18:29 - So your argument is here that he should be reversed.

18:32 - He should be reversed.

18:32 - And there's part of your statement that I just won't make it

18:34 - because of the record before him, which was controlled by the parties

18:38 - and there was no adversarial test at counsel.

18:41 - I want to, I want to

18:42 - I want to try to elevate this because this is not a PCA appeal.

18:45 - No, this is a case that we took this for, you know,

18:49 - to to wax poetically or alpine on a much broader topic,

18:54 - which was whether it would be a war procedure, a common pleas

18:57 - court judge may grant PCR relief based upon concessions of the parties.

19:01 - Now, how we answer that question

19:04 - may impact

19:06 - the case here and result in a reversal or affirm it's.

19:10 - But I think the reason why we're here is this idea of when

19:15 - I don't think I don't think we're saying that the

19:17 - the Commonwealth and a defendant can't stipulate to facts.

19:20 - They certainly can. Absolutely.

19:22 - The question is if they're going to stipulate the facts

19:25 - in the context of overruling a jury verdict.

19:30 - What what do we expect them to present,

19:33 - evidentiary wise, to support those stipulations

19:37 - so that a so that a judge can make that

19:40 - independent judicial determination to override a jury verdict?

19:43 - Absolutely. So that's that's why I'm here.

19:45 - I understand Jeff's and I was addressing and I forgot to introduce my co-counsel,

19:49 - Ronald Eisenberg from the AG's office, and Lou, two Mello from the Beasley firm.

19:53 - I'll be talking most them we already I figured you knew Mr.

19:57 - Eisenberg, but to your questions, justice Robson,

20:00 - I think that one of the

20:00 - things I pointed out is the is inviting the people who've been

20:03 - who've been actually accused of wrongdoing,

20:07 - the detectives and the former aides to participate in these proceedings.

20:10 - And that comes right from the right to reputation.

20:12 - This court has held that individuals within our Commonwealth

20:15 - have a right to have their reputation maintained.

20:17 - And when the district Attorney's office,

20:19 - with the help of the defense, comes into a court and convinces the court

20:23 - to say that there was detectives knowing, we withheld statements from the defense

20:29 - that is saying that those detectives committed here into a whole different

20:32 - I mean, now you're you're moving into an entire.

20:37 - But I mean, this becomes a globe spanning proceeding.

20:40 - Then,

20:41 - and if it's

20:44 - I certainly don't understand

20:46 - how you could envision us

20:50 - directing a protocol

20:53 - that would, provide a mechanism

20:56 - for the vindication of the reputation of every person

21:01 - about whom adverse things could be said in a court proceeding.

21:04 - You know, there's immunity, obviously, for what's said in the courtroom.

21:07 - Absolutely.

21:07 - And and, and,

21:11 - you know, and people, including us, get maligned all the time.

21:14 - It comes with the territory and it it comes with the territory

21:19 - for a lot of public servants, including, alas, law enforcement officers.

21:24 - But with respect to the protocol

21:27 - that you were discussing with Justice Bronson, I,

21:30 - I don't understand.

21:34 - Zooming out to the broader issue here,

21:38 - because we're not only dealing with this Brown case.

21:41 - Absolutely.

21:42 - What what kind of, authority

21:46 - do we have to create some protocol on the fly

21:51 - for reviewing these kind of stipulations or agreements?

21:56 - And is it substantive?

21:57 - Is it procedural?

21:58 - It's not in the PCR for rights.

22:00 - The legislature didn't give us this.

22:02 - No they did no.

22:03 - Where where are we getting this authority to ramp out some protocol

22:07 - because you're frustrated

22:09 - the way this DA's office administration is handling these cases.

22:12 - But the

22:13 - the petitioner has to take the position that this can apply statewide.

22:16 - But it just this work

22:17 - what we're talking about is is that a notice procedure at least

22:21 - at least that the parties could come in and say,

22:23 - have these individuals been contacted?

22:25 - Are they aware of these proceedings?

22:26 - And they are aware that they have an ability

22:28 - to come in and defend themselves if they'd like to?

22:30 - I think that's all you really need.

22:32 - That's that's us.

22:34 - That would be us.

22:35 - And again, it's not just this is statewide, as you would know.

22:38 - Exactly.

22:39 - So we'd be prescribing rules for the the way,

22:46 - DA's offices across 67

22:49 - counties are handling these cases and these are elected officials.

22:54 - Absolutely. So we be directing

22:57 - some aspect of the management

22:59 - of DA's offices across the Commonwealth.

23:02 - Well, I, I don't think that you're necessarily reaching in.

23:05 - What I'm saying is that you're telling the trial court

23:07 - there's competing constitutional interests here.

23:09 - And that's really what you have, is the constitutional interest

23:11 - of the criminal defendant to have this PCA petition,

23:14 - which also implicates the constitutional interest

23:16 - of these individuals who are accused of mount of misconduct.

23:19 - And I don't expect Justice Wecht it to be every police officer in this case.

23:23 - It was two detectives in two DA's. That's it.

23:26 - Those are the four people who are accused of wrongdoing.

23:28 - So so let me circle back on that particular point,

23:30 - because I think it's been raised many, many times in this particular case.

23:33 - And I have to disagree with my colleague.

23:35 - I don't necessarily think this impacts on the administration

23:38 - of a particular DA's office.

23:40 - It really has to do with fundamental fairness in the practice of law.

23:43 - So my question to you is early on in the process, Judge Bronson

23:46 - indicated quite clearly and unequivocally, I think the need for a hearing.

23:51 - So those DA's were it was a Fisher and Malone. Yes.

23:55 - Why weren't they called I why they came to me.

23:58 - This seems to be a discrepancy of what was turned over, if it was not turned

24:02 - over, and its effect on the trial and why it wasn't turned over.

24:06 - Because the DA's office originally made the position, I think, in that prior, Ray,

24:10 - that they didn't think it was material,

24:12 - they thought it was cumulative and they thought it wasn't material.

24:14 - This particular document,

24:15 - now that the Da comes back and says we think it was material,

24:18 - but nobody called the Da and nobody called a detective

24:20 - to find out what they did and why they did it. Absolutely.

24:23 - And to your point, you talk about this is not a this is this is a Brady

24:26 - claim only in front of this court that Kanisha page claim is a Brady claim.

24:30 - And so those detectives were not even contacted.

24:33 - Detective Baker was never interviewed in this case.

24:36 - Detective judge was never interviewed in this case.

24:39 - But they walked into court and accused them of wrongdoing.

24:41 - And to your point, I'm talking you're right.

24:43 - It's about how these proceedings could go to protect the constitutional interest

24:46 - of the defendant, to have his judicial merits review of his

24:50 - P0 petition, and allowing those people who are also

24:53 - who have been accused in an open court of egregious misconduct, egregious

24:57 - prosecutorial and police misconduct of at least having the minimum opportunity

25:01 - to appear and to hear the hearing and participate, if they would, on that.

25:06 - I'm sorry to

25:07 - jump in again, but that is not the purpose of the PCA.

25:11 - And it's not

25:13 - we if we go down the road.

25:15 - You're proposing on this aspect of your petition?

25:21 - As as a matter of principle, we need to

25:24 - we need to envision and presumably develop

25:28 - some protocol by which witnesses, police, witnesses, but other witnesses

25:34 - also, who are, in your view, maligned in a courtroom,

25:38 - get some forum to clear their reputations and that that,

25:42 - I don't even understand where

25:44 - that comes from.

25:48 - It's just to me, it's unheard of.

25:50 - And I guess I'm not sure where you're sourcing that.

25:53 - Well, I'm sourcing it from the Pennsylvania Constitution,

25:56 - which has undeniably a right to reputation in this case.

25:59 - This court in the FOP case talked about how the right to notice

26:04 - and ability to participate are critical to the extent that the PCC conflicts

26:08 - with our Constitution.

26:10 - Judge, it's not a hard call.

26:11 - The Constitution will prevail.

26:12 - Just one more thing, and then I'll stop on this one.

26:15 - You're absolutely right that we've had we have been robust

26:19 - in defending the constitutional right to reputation, as Mister Eisenberg is.

26:25 - Well familiar with the grand jury matters involving the diocesan officials.

26:30 - Right. So.

26:31 - But but now you're extrapolating from that, as I understand it,

26:36 - the need for a protocol that would allow

26:41 - persons. Right.

26:42 - I it can't just be one category of persons.

26:46 - Persons about whom,

26:50 - unfortunate things are said

26:51 - in a courtroom to have some opportunity to be heard.

26:55 - And I that would create a cottage industry of a that would create litigation

27:00 - around the Commonwealth of unfathomable duration and dimensions.

27:05 - I justice I but I don't know where these people would have their day to court them.

27:10 - They can bring a lawsuit.

27:11 - They could.

27:11 - Well, I don't know what kind of they could

27:13 - bring, bring, bring, bring in action against the district attorney's office.

27:17 - And we know where that will end up.

27:19 - The district attorney will have immunity.

27:23 - We'll have what?

27:23 - I'm sorry, Your Honor. We'll have immunity.

27:25 - Exactly. And Circuit City.

27:27 - But, see, our system covers all of these issues.

27:32 - And what you're suggesting is that we create some mechanism

27:36 - and a PCR for proceeding to overcome

27:41 - impediments in our justice system.

27:45 - And that's just not what the PCA is for.

27:48 - I mean, if you're if you were arguing that these individuals had critical evidence

27:54 - that had to be heard, a different issue, but that's not what you're saying at all.

27:59 - You're just saying they should have a forum to say they're lying.

28:03 - We are not corrupt.

28:04 - We did not, you know, withhold the evidence.

28:07 - That's that's not what PCR are for.

28:10 - I understand I'm making a distinction between and we I want to be clear.

28:14 - We do say that judge.

28:15 - Detective, judge, your statement,

28:17 - which we put before this court, categorically denies what happened

28:21 - and shows what he would have said if given the opportunity to do so.

28:23 - Why are you arguing?

28:24 - They have a right to vindicate their reputation.

28:27 - That's not what PCR proceedings are for.

28:30 - If what your argument is, is they had facts

28:32 - that should have been heard, that's a different level of argument.

28:35 - Well, Your Honor, I was addressing the the procedures that we thought

28:38 - were appropriate, the petitioners believe would appropriate

28:40 - we vindicate the constitutional rights of the people who are involved

28:43 - in these proceedings.

28:44 - You're answering the what procedure aspect. Exactly.

28:46 - And that's what I'm attempting to do. And it's difficult.

28:48 - I agree this I do think you're I do think you're and again maybe I'm

28:52 - either you're making it too complicated or I'm too simplistic.

28:56 - It's probably me. No, I, it's usually me.

29:02 - To me the question is when you when your parties,

29:04 - whether it's a PCR case or any matter before a judge or a jury or what have you,

29:10 - and you're going to represent as officers of the court a stipulation of facts. Yes.

29:15 - You're going to hand that to the judge and say, we stipulate these are the facts.

29:21 - I believe that lawyers have an obligation to make sure they're really facts,

29:24 - and that if they're representing to the fact finder, the judicial body,

29:29 - that they're stipulated the facts, then they're stipulated facts.

29:32 - That's not something up for debate.

29:34 - It's not question. It's supported by evidence.

29:37 - Everybody agrees that, you know, Penn State is the best football program

29:41 - in the country.

29:41 - You know, I mean, these are verifiable facts.

29:45 - I'll plead the fifth on that. Yeah.

29:46 - So I mean, so that's what that's to me, what the issue is in this case.

29:52 - And we can go off on a sort of these detours of what could have happened

29:56 - or whatever.

29:56 - But, but the principal of your case is that the district attorney

30:01 - and the defendant prevented it

30:04 - presented a stipulation to the court that were not facts.

30:08 - They were their preferred view of disputable evidence,

30:13 - and half of it at best, because they they chose what they were going to give.

30:17 - They mutually agreed what evidence they were going to give it to the trial court.

30:21 - The court they excluded some evidence, because they didn't

30:25 - want to inundate the judge with too much, too many documents.

30:28 - There was no hearing.

30:31 - So the a real question in this case is

30:33 - can the district attorney's office and the defendant,

30:37 - in a PCA context, stipulate to facts that arguably aren't facts?

30:44 - And I don't think they can, because I don't think they

30:47 - I don't think that's a that's that's a simple way to put it.

30:50 - I agree with you. Justice. I don't believe they can't.

30:52 - And to this point, this is what

30:53 - I want to go back to the parent issue of credibility determinations.

30:57 - This is a case about inferences.

30:59 - This is not there's no direct evidence here.

31:02 - There's no document from Ronald Van where he where it says here it's Kenisha page.

31:07 - She was identified on X date at X time. Here's her role.

31:10 - What we have our second and third party documents,

31:14 - some of them without an author, some of them we detective Baker.

31:18 - We don't even know what information he had.

31:20 - Can I just ask you on this on that issue?

31:22 - Would it would it,

31:25 - resolve this petition?

31:28 - If this court simply directed a hearing, that's what you wanted from the get go.

31:32 - You wanted the hearing?

31:34 - Now you've come in, I guess you're asking us to reverse

31:37 - and and just deny the petition with prejudice. But.

31:40 - But spooling backward here, you wanted to hearing.

31:44 - So why not?

31:46 - Why not ask us to just direct the hearing?

31:48 - And if the Dow insists on taking a knee, we can appoint.

31:51 - We can invite the AG to take it over.

31:55 - Why wouldn't that in this case, rather than trying to manufacture

31:59 - a protocol that's not in the state, not in the PCR.

32:03 - So to the extent that I don't know what a remand would look like

32:06 - under the circuit tier, to the extent that the court is thinking about,

32:09 - you know, appointing an interviewer, that would change the circumstances.

32:12 - But right now, what does a remand look like?

32:14 - If we go back

32:15 - and we just present the same arguments we did before on the same limited record

32:19 - that was presented to the court and justice, to your point, is that

32:23 - whatever you direct is going to be the trial courts are going to take

32:26 - that as a signal of what was appropriate in these circumstances.

32:29 - So I would suggest to you, if you're going to remand like that,

32:32 - issue a full opinion, because you're remanding

32:34 - with instructions of what a court should do under the circumstance.

32:37 - I think Justice Watts point is, is, is, you know,

32:41 - and he put it in this question.

32:43 - We remand

32:45 - and we do nothing else. You're not a party.

32:48 - The attorney general is not a party.

32:50 - We remand it.

32:50 - The parties are the district attorney and the defendant and the DA's take

32:54 - office takes a knee.

32:54 - Is justice wack says we're we're not in a different spot.

32:58 - Even if we remanded it for a hearing, we can't force the district attorney.

33:02 - And we could say, we really, really want you to fight this.

33:05 - But if they don't want to fight it, I'm not sure we can do much more than that.

33:08 - Absolutely. So you're not a party.

33:10 - A remand doesn't get you anything.

33:13 - It's.

33:13 - The question remains, what do we do?

33:16 - Let's assume we issued some broad statement that says

33:19 - the district attorney's office can stipulate.

33:22 - Not a problem, but if the district attorney's office stipulates, then the

33:27 - the facts have to be a parent of record presented to the trial court

33:31 - in support of the stipulation.

33:32 - Let's say we say that.

33:35 - Is that good enough?

33:36 - They have to be the stipulated facts, have to be a parent of record.

33:39 - And I added one.

33:40 - I in terms of that, I would just want to be clear about what

33:45 - the broader question in the limited question.

33:46 - But the broader question, I would say I'm focusing on the broader question,

33:49 - a parent of record and could actually be proven in court.

33:53 - How are they going to prove what happened now?

33:57 - Detective Baker is dead.

33:59 - Ronald Van is dead.

34:01 - They had this petition sitting since 2002 2020 and didn't investigate it.

34:06 - Talked to Detective Baker, who's the key in this case.

34:09 - So my position in this case is that they've waived their ability to prove it.

34:12 - They said these stipulations are good.

34:14 - These stipulations are what we can rely upon.

34:17 - And I don't think the stipulations get you there again.

34:19 - You're going you're going micro on me.

34:21 - And I'm trying to I'm trying to understand the principle and the problem.

34:25 - Not not whether they're let's

34:26 - let's ignore the question of how this is going to impact this particular case.

34:30 - And let's look at the case. The issue we took for King's Bench.

34:33 - What is wrong with saying any stipulations presented by a district attorney

34:37 - and a defendant in a PCA case that lead to ultimate relief and granted

34:41 - the PCR have to be I have to be a parent of record, meaning

34:45 - it's not a disputable fact or better yet, require hearing or require hearing.

34:50 - But I would say it's I would I just add the line,

34:53 - I think, and can be proven in court if necessary.

34:56 - I think that is absolutely critical to what this court hearing.

35:00 - Isn't that the definition of a stipulation?

35:02 - Isn't that inherent in the definition of a stipulation?

35:04 - I think it should be, but I don't think in this case it is.

35:07 - Well, I mean, how much further can we go?

35:10 - This is, you know, applies to DA's all over the Commonwealth.

35:14 - We don't run their offices and these are elected these are elected officials.

35:19 - I mean, how much do you want us to intrude into that branch?

35:22 - I, I I'm not I'm I'm trying to be very clear.

35:25 - I don't want this court to direct district attorney's office to do things.

35:28 - I want this court to empower the courts to know that they can.

35:32 - There's mechanisms

35:33 - that they can use if necessary, when they face this kind of situation

35:37 - where you have a judge sitting and saying, I don't know what these stipulations

35:41 - really don't make sense to me, but this this court could have done that.

35:45 - This already court could have said that he didn't.

35:49 - And that's why I understand we took this on Kings bench review.

35:54 - But the predicate of all of these arguments

35:57 - that we send it back for a hearing, and we make sure that that presumes

36:01 - that this PCR court committed in error.

36:05 - I mean, the first question we have to address is whether or not

36:09 - there are facts of record that support his conclusion.

36:13 - Only then can we, you know, go down this road that we're ordering

36:17 - special kinds of proceedings.

36:19 - But, you know, at the end of the day,

36:23 - we ordered, in our first brown,

36:28 - that would has to happen is an independent review of the record,

36:32 - this trial, this PCR report,

36:34 - according to what you've argued and read to us, had some reservations.

36:39 - He could have said,

36:42 - I'm having a hearing.

36:44 - And I went to following witnesses or rejecting the stipulation.

36:48 - He could have done all of that, but he didn't.

36:51 - So, so so what are we to do with that?

36:54 - What are we to do with that?

36:56 - Tell a trial court that his judgment,

36:59 - based upon an independent review of the record, is not good enough.

37:03 - We're going to second guess him and say,

37:06 - not a good enough record, not independent enough.

37:09 - You see what my problem is?

37:10 - This comes down to a basic

37:12 - question of did this did this piece, you are a court error.

37:16 - And you mentioned two things.

37:17 - Justice standing here is it's the record and his review of it or not.

37:21 - Challenge judge.

37:23 - Judge Bronson reviewed the record. We agree with that.

37:25 - He did that.

37:26 - It's the composition of the record as the parties.

37:29 - And I to to your standard of review, you talked about the PCA,

37:32 - whether it's a it's supported by the record.

37:34 - It's our position that this this is all de novo.

37:36 - We're here we're not here on a PCA appeal.

37:39 - We're here on a King's Bench constitutional position.

37:42 - But we can't pretend that we don't have a decision

37:46 - from a PCR court because we do.

37:49 - Absolutely.

37:50 - And a PCA record who appears to me to do.

37:52 - I've worked pretty hard on this and try to try to do the right thing here.

37:56 - I think he did try to do the right thing and could have rejected this stipulation.

38:00 - Could he have? Yes, yes he could, but he didn't.

38:02 - He opted not to.

38:03 - That's correct.

38:04 - He didn't know he was relying on the parties

38:06 - representations about the facts as they existed.

38:08 - But counsel you were you're going to answer something

38:10 - just astounding you, which I thought is interesting.

38:12 - You were what was the record?

38:16 - So the

38:17 - record was it was the stipulations and some attached documents.

38:21 - No witness affidavit. How was that a record?

38:23 - I mean, that's that's my problem is, is when I think about a record,

38:26 - I actually think about a certified record, something that was offered into evidence

38:30 - at a proceeding, you know,

38:33 - how is this this is a record that was this was a record

38:36 - that was compiled by the parties of to support the stipulation,

38:40 - not a stipulation that was created based on a record, am I wrong?

38:45 - That's correct. That's our reading of it.

38:46 - The stipulations were designed to reach the relief in question.

38:49 - And that's that's what I and and the record, the record that

38:52 - the trial court reviewed was the record that supported the stipulation,

38:56 - not a record that was created, stands the stipulation. No.

39:00 - And I think this

39:01 - I know that there was a submission issue to be a glossip

39:03 - and I think that Glossip helps us because it talks about the prejudice analysis.

39:07 - And that's what that's what Judge Bronson was doing, requires

39:10 - a cumulative evaluation of all of the evidence,

39:14 - all of the evidence, not just the evidence the parties decide

39:17 - to put before the court. So let me be really clear.

39:19 - Judge Bronson worked hard on this.

39:20 - I'm not disagree with that.

39:22 - He obviously did.

39:23 - But our position is hamstrung,

39:25 - hamstrung by the parties clear, factual misrepresentations.

39:28 - And that cannot stand.

39:30 - Because if you affirm on that basis where you're telling the parties

39:33 - is that they could omit critical evidence.

39:35 - And you heard Judge Bronson, he said it would be totally I don't know.

39:40 - And he's asking them to produce this evidence.

39:43 - And are you an affirmative towards that conduct?

39:45 - I just want to really quick issue. It's a denial.

39:48 - I said, do not ask for grand confession.

39:50 - I mean, I mean, there's been no appeal and a new trial date was set, right?

39:55 - That's correct.

39:57 - So I don't know what you mean by if we affirm, I think that in denying

40:00 - or refusing to grant relief or I'm just trying to

40:03 - imagine that if this court opts not to grant this petition and write

40:07 - an opinion that says what happened below is appropriate,

40:09 - or the procedures were appropriate,

40:11 - that anyone power of the parties to do this again.

40:13 - And I don't I don't think that this that's something this court wants or needs.

40:17 - You kind of danced around the question a little bit, but my,

40:20 - my question to you is in the record that the judge had at the time

40:24 - he was trying to do an independent judicial merits review.

40:28 - Were there documents that were contrary to the stipulation

40:31 - that weren't provided to him?

40:33 - There were actually in fact, the district Attorney's office has now

40:36 - admitted that they cited facts, facts from the March 2003

40:40 - memorandum and said appendix 310 311 note footnote eight.

40:44 - And how do you do an independent

40:46 - judicial merits review when you don't have the records to enable you?

40:50 - And I've never encountered an instance where a document is

40:52 - cited and relied upon for a specific fact, and that same document is then withheld

40:58 - from the trial court, and it does not go to Judge Bronson's review.

41:02 - It goes to what he had before him and what he had before him

41:05 - were things that were factual or things that were literally true.

41:09 - The three statements, but factually misleading.

41:12 - There was a fourth.

41:13 - The Commonwealth, indicating that if we were to agree

41:17 - as to my, esteemed colleagues position, that

41:20 - in fact we would be blasting the local district attorney and PCA Corp's

41:25 - commutation power, which they have no lawful right to do.

41:29 - That's correct. I just want to correct it justice already.

41:31 - I used to be an assistant district attorney.

41:33 - I'm no longer I have I have since left the office, but I.

41:37 - This reminds me of being counsel.

41:39 - Yes. And I think that's the point, is that if you if you deny the petitioner.

41:43 - Right, an opinion saying what happened below is correct.

41:45 - You were telling the parties this can happen again.

41:48 - And this cannot happen again because

41:52 - the full

41:53 - transparency is so critical to the public trust in court proceedings.

41:57 - When you say this cannot happen again,

42:01 - what,

42:03 - apart from appeals and motion practice, etc.,

42:06 - why isn't the attorney

42:09 - discipline process adequate safety valve for you?

42:13 - If the D.A.

42:14 - or his staff is violating,

42:18 - rules of professional conduct?

42:20 - Well, that's one way to hold the individual prosecutors accountable.

42:24 - But it does nothing to it does nothing about the conviction

42:28 - which the community has an interest in and undo in undoing the wrong there

42:33 - and bringing that conviction back, which has been vacated based on factual

42:37 - misrepresent why we have elections for DA's in in Pennsylvania.

42:41 - It's one of the reasons we have elections not to destroy the existence of the,

42:47 - law, as we know, in essence, what could possibly if we were to support

42:52 - or whatever the matter, then any district attorney's office

42:55 - who makes a policy decision to assume a concession of error

43:00 - could result in what I'm saying is withdrawing may be aggravating factors

43:05 - in the capital case, as long as we have capital in Pennsylvania

43:10 - that is what the concern is.

43:13 - Yes, that is and that's one of the concerns with this case,

43:15 - because this case was an aggravated for the Brown murder, which this district

43:19 - attorney's office in this very courtroom in 2018 tried to conceded from this panel.

43:23 - And it was squarely rejected. And it.

43:29 - So hearing that the bench is quieting down, I'll wrap up.

43:33 - It's been a long morning.

43:34 - So I just want to reinforce that what we've seen here happen before these

43:39 - before you is, is the adversarial process that is so critical.

43:43 - It should not have played out here.

43:44 - It should have played out in front of Judge Bronson

43:47 - who is empowered to make the correct decision.

43:48 - Just a stunning view.

43:49 - I think that if he has the correct documents

43:51 - in front of him, he does make the right decision.

43:53 - He denies the petition and he came close to saying that in the December hearing.

43:57 - But he didn't.

43:57 - He didn't.

43:58 - But, but but after that hearing, I want to.

44:01 - Yes, but I just want to just clarify one thing.

44:03 - It was only after that hearing did they tell him specifically that

44:07 - this was the first after after the Baker investigation

44:11 - was the first time this defendant and the other cooperator

44:14 - were first mentioned, and that's when he entered his order a month later.

44:19 - It is clear that factual misrepresentation or the factual omission,

44:22 - I'll say I'll say it's an omission

44:24 - contributed to the order below, which we believe is erroneous.

44:27 - And for the reasons put forth in our brief.

44:29 - We ask that you grant the petition and you write an opinion consistent

44:33 - and allowing trial courts to do their job when a district attorney's office

44:36 - has decided not to.

44:37 - Thank you.

44:38 - Thank you, Mr. Lee. Now let's hear from Mr. Eisenberg.

44:45 - May it please the court.

44:46 - Ronald Eisenberg, on behalf of the office of Attorney General,

44:49 - we have a unique experience.

44:52 - In this case, in this the question before this court,

44:56 - because it's our office that's been asked on numerous occasions

45:00 - to involve itself in cases where judges were very concerned

45:04 - that they weren't hearing everything that they needed to hear.

45:07 - And from that perspective,

45:08 - I will say to you that I will depart slightly from my colleague.

45:13 - The issue here is not really reputation.

45:15 - It's the integrity of the decisions the judges are making

45:20 - and the way that our system guarantees that integrity.

45:23 - The American system of justice is through the adversary process.

45:27 - And it didn't occur here.

45:28 - Justice Weck, we are not asking this court to tell district attorneys what to do.

45:33 - We're asking the court to tell judges what to do.

45:36 - We have elections,

45:37 - but elections are not what guarantee the integrity of the process.

45:42 - Judges do that, and judges cannot do that when they don't have opposing advocacy

45:48 - to expose all the information and because of that, it's not enough.

45:53 - I would respectfully suggest, Justice Bronson, for you to tell the parties

45:57 - that they should only stipulate when it's really true or when they're

46:00 - I mean, look, the opposing advocacy thing, I'm a big fan of the adversarial system.

46:04 - I, you know, think it's the best system in the world.

46:07 - My wife tells me it's great.

46:11 - But I

46:13 - think it's impractical to suggest that every time

46:15 - that the district attorney agrees with a defendant,

46:17 - we have to bring somebody in to give an opposing view.

46:20 - That's why I'm sort of focusing on this stipulation thing.

46:23 - And because I agree with you, the judges, if the judges are going to accept

46:27 - the stipulation that the judges should be able to reach

46:30 - some sort of an independent judicial assessment,

46:32 - that the facts laid out in the stipulation are really facts

46:35 - and not necessarily one party taking a knee or whatever.

46:38 - I, you know, justice Wecht said here.

46:41 - My concern is that,

46:46 - it's sort of a chicken and the egg thing

46:48 - which came first, the stipulation or the record,

46:52 - did this was the stipulation drafted first,

46:54 - and then the record came on back of it to support the parties view of what

46:58 - the facts are, or did a record exist?

47:01 - And the parties said, wow,

47:02 - based on the record, we have to agree that, you know, these are the facts.

47:06 - Record is, as Justice Mundy,

47:09 - addressed just a few documents that they are.

47:11 - Right.

47:12 - So that's my that my concern is doesn't that address it because we have to

47:17 - allow prosecutors to stipulate I mean, stipulations are a good thing.

47:23 - But this case, which concerns me

47:26 - and maybe only me, is should

47:29 - the courts be bound by a stipulation that is, that is based

47:34 - only on a fractional share of of the fulsome record

47:39 - and only tells a part story that the two parties agree to?

47:43 - And I would add to that and includes inferences, not simply facts.

47:47 - That's correct, Your Honor.

47:48 - And the problem here is, of course, the court shouldn't be bound by that.

47:51 - But the court has no way of knowing.

47:54 - And this is not the only case.

47:55 - As I said, we've been involved in several.

47:57 - I assume the court is familiar with the in case it's not just about whether the

48:01 - the facts are apparent.

48:02 - Apparent from the record somehow or when I say it.

48:05 - Just so I quick as a parent of record is something I said.

48:08 - When I think of a record, I think of an adversarially developed record.

48:12 - I don't think of something

48:13 - exhibit slapped to an affidavit or a slap to a stipulation.

48:18 - That, to me is not a record.

48:19 - That's exactly right, Your Honor.

48:21 - And that's exactly the problem.

48:23 - And why and what I mean when I say we're not telling

48:25 - district attorney's offices what to do if they want to agree with the defendant,

48:31 - and concede an issue, that's fine.

48:33 - But in particular circumstances, that's not good enough for the court to act.

48:38 - And it can't be that those particular circumstances are this particular D.A.

48:43 - in this particular county.

48:46 - Because what we're going to do here, if we do anything is of statewide importance.

48:51 - There's no special docket for this D.A.

48:53 - in this county.

48:54 - So let suppose you have a because we're not just, you know, it's

48:58 - not just this matter.

48:59 - So suppose there's a case with all kinds of troubling concessions

49:04 - where the DA's taking a knee, and there's a problematic history overall.

49:09 - But it just so happens that

49:12 - there is new DNA evidence proving actual innocence.

49:15 - So you want us to ramp out

49:18 - this protocol, which would say in that circumstance,

49:21 - we need to appoint your office to defend that conviction anyway.

49:27 - Is that is that what you're saying?

49:29 - I'm saying that where you have a pattern of problematic concessions, not just one,

49:35 - not just something random around the state,

49:37 - but wherever it might develop around the state, then judges

49:40 - have to guarantee an adversary process.

49:43 - And the only way to do that, regardless of what county

49:47 - it is, what guidance of what district attorney it is, regardless

49:50 - of what elections occur, regardless of any disciplinary proceedings,

49:54 - the only way to do that is to have a third party come in.

49:57 - We've invited to office on many occasions.

50:02 - We've invited your office in those scenarios

50:05 - to get involved, and yourself have argued some of those cases.

50:10 - And but now this is a a bridge, a father bridge, and arguably a bridge too far

50:16 - because it would seem that what you're arguing for, this whole species of cases,

50:21 - you want us to affirmatively displays

50:25 - the Da and have what? Have you?

50:28 - Absolutely not.

50:29 - Your honor, as I said before, we are not asking you either

50:32 - to tell district attorneys

50:33 - what to do or to tell them that they have to get out of the case.

50:36 - They can stay in the case.

50:38 - They can advocate strongly for the defenses they have in this case.

50:41 - And and by our count, by now.

50:43 - Oh, over 130 other cases, most of the first degree murders, life sentences.

50:50 - The only problem is the judge has to be able to hear another side.

50:54 - The judge can't develop that on its own, on its own.

50:57 - Remember the essence of the post-conviction process and the

51:01 - and the order granting this petition specifies

51:04 - concessions on the post during the post-conviction process.

51:08 - The essence of it is that extra record information is developed,

51:12 - and in fact, most of these concessions have been largely, Brady claims,

51:16 - many ineffectiveness claims.

51:18 - Those are claims clearly, that appear on the post-conviction stage

51:23 - because they demand reference to facts outside the existing record.

51:28 - It is the development of that new record that we are talking

51:31 - about, Justice Wecht, and that record cannot be properly

51:34 - developed at the PCR phase without advocacy.

51:38 - When it appears that the advocacy process has broken down.

51:42 - I don't know why. I don't know why that's true.

51:46 - It it

51:47 - seems to me that it's not a bridge too far to say that

51:51 - a district attorney's office, an officer of the court,

51:53 - even if they see the case a certain way in the PCA context,

51:58 - must ensure if they're going to stipulate, basically stipulate

52:02 - to the ultimate relief, or stipulate to the facts that a record is developed.

52:08 - A fulsome record is developed,

52:11 - not only to support those facts, but basically to, to,

52:15 - you know, make sure that the trial judge who record, who has to make an independent

52:19 - assessment of those factual stipulations, has all the information available.

52:23 - I'm not sure.

52:24 - I'm not sure we need anything more than that.

52:27 - Unless we are to infer that that kind of requirement,

52:32 - will not be followed by the Commonwealth, your honor,

52:36 - I think that the vision that you paint is

52:39 - fundamentally at odds with the whole idea behind the adversary process.

52:43 - That idea is that the system, the adversary process,

52:48 - doesn't prohibit the bias by the parties.

52:51 - It processes that bias by balancing

52:54 - competing factual and legal claims.

52:58 - That's how the adversary system you're suggesting.

53:00 - You're suggesting then when the when a when a when the that the district

53:03 - attorney's office shouldn't agree to a guilty plea

53:06 - that if they're going to agree to a guilty plea or a reduction in charges,

53:11 - that they have to bring in someone who's going to fight

53:13 - vigorously for the higher charge.

53:15 - I'm not, Your Honor.

53:17 - And this again, goes back to Commonwealth versus Brown, where this court, as

53:21 - we had, argued in our briefs in this court, held, recognized

53:25 - that the discretion of a district attorney changes

53:28 - and actually decreases over the life of a case.

53:31 - The district attorney has maximum discretion at the point where,

53:34 - the charging decision is made, still has discretion at the point where the,

53:39 - where the, guilty plea is considered.

53:42 - But once the jury enters a verdict this court

53:45 - held in Brown, the district attorney doesn't own that verdict.

53:48 - It's not up to the district attorney or the or any other party.

53:52 - And when we're on the post-conviction stage, as I've said, which

53:55 - which depends on the essence of which is the development of new facts,

53:59 - we can only reliably develop those facts in cases

54:03 - where the kind of questions that have arisen with these other concessions exist,

54:07 - we can only reliably develop that facts where biases or biases are balanced.

54:12 - Okay, if you're advocating for the defendant to vacate a post-conviction,

54:18 - a conviction post,

54:20 - at the post-conviction stage, at the collateral stage,

54:23 - you're an advocate and the DA's office has acted as an advocate.

54:27 - So in these cases.

54:28 - So your your test is your procedure in response to the question that we took

54:32 - King's Bench on is if the District Attorney's office is inclined

54:37 - to concede the right to PCR a relief, we must or the court must,

54:43 - invite the attorney general,

54:44 - if it's inclined, over this, run of cases like we've seen here.

54:48 - And if numerous courts have found the run of cases.

54:52 - Thing is, is difficult because I don't know how many are running

54:54 - cases is and but but but let's just start with the principle of

54:58 - of you're basically saying if the district attorney's office takes in the

55:01 - on a PCR, a we invite the attorney General's office.

55:04 - Maybe not the first time, maybe not the second time, maybe,

55:07 - you know, and here's the problem with your argument.

55:09 - It's the maybe aspect, but but, well, there's also the problem

55:12 - that it's not in the PCR and we don't, we don't pass the PCR.

55:16 - But but if I could, if I could finish my, if I could finish my my question is long,

55:20 - what if we do invite the attorney General's office

55:23 - and the attorney general's office takes a knee.

55:26 - What do we do that you're right.

55:27 - You're on it.

55:27 - There's no perfect solution to this problem.

55:30 - But a problem it is.

55:31 - And the reason we've been asked to begin with to be involved in

55:34 - these cases is because courts had doubts about what they were seeing

55:38 - in those doubts proved to be, legitimate doubts.

55:41 - Well, that's not necessarily true.

55:43 - I mean, why why you've often been asked to

55:46 - participate is because we wanted to hear the other side of the case.

55:49 - That's that doesn't mean that doesn't mean that there was,

55:54 - necessarily a decision on our part that the, Commonwealth

55:59 - is represented by the Philadelphia District Attorney's office was wrong.

56:03 - I just wanted to hear the other side of the case.

56:05 - That's at the appellate level, Your Honor.

56:07 - And this is a very different thing.

56:10 - The development of an evidentiary record at the post-conviction stage

56:14 - is fundamentally different than what happens, on appeal with legal issues.

56:19 - So let me ask you this question.

56:20 - Could this PCR rate court rejected the stipulation

56:24 - or in other words, just denied PCR for relief on the basis

56:28 - that the evidence was insufficient to meet the defendant's burden?

56:33 - He could have, Your Honor, but he could correct my my point

56:36 - is that because the adversary process didn't work here,

56:40 - he didn't have the information he needed in order that he had hesitancy.

56:44 - We've been read portions of the record about the PCR court's

56:48 - challenges in working through the information presented to him.

56:52 - He could have said, I deny release.

56:55 - He he could have said, I did not believe you deny relief.

56:59 - I'm sorry. Which is what was before him.

57:01 - He didn't have the crucial memo that contradicted the

57:04 - the memos from which the the parties inferred a particular result.

57:08 - He didn't have that.

57:10 - Are you thinking of the March 3rd?

57:11 - Yes, I am your memory.

57:13 - That's exactly what I'm speaking of.

57:15 - In essence, what was submitted.

57:17 - That's exactly, Your Honor.

57:18 - It was within the Commonwealth possession, but not turned over

57:22 - as part of the stipulation.

57:23 - As to fact, because there was an up an absence of a material fact.

57:28 - That being the March 2003 memorandum.

57:31 - That's correct, Your Honor.

57:32 - No, not just to the Commonwealth, but to the defense, because

57:35 - the Commonwealth had given it to them, but not to the anarchists or to the court.

57:39 - And I don't want to go micro here is as as the court has mentioned.

57:43 - But, I agree with you, Justice Donahue, that you've got this case and it's in it's

57:48 - relevant for determining for addressing thinking about the broader question,

57:53 - the claim was that Ronald Van only identified

57:58 - the right woman, Kiana, in July, in his July statement.

58:02 - And the reason he did that, they were very specific about saying

58:05 - numerous times that that was the first time he mentioned Kiana.

58:09 - And the reason they said that he did that is because a week before

58:13 - that statement, Detective Baker chased down this other woman, Kenisha,

58:18 - and found out that she couldn't have been taking part in the crime

58:21 - and the inference that they are asking the courts to draw

58:25 - is that although there's no actual record of this, is that van

58:30 - must have been confronted with that new brand new information in July.

58:34 - And that's when he first supposedly switched from Kanisha to Kiana.

58:39 - The March memo shows that what is that?

58:42 - Four months for months earlier, van had already given a statement

58:47 - naming not Kenisha, but Kiana.

58:50 - Why are we microscopically getting into that on a King's Bench matter?

58:55 - Why isn't this?

58:57 - Why isn't this for a judge?

58:58 - I mean, look, we shouldn't sell short our capable Common

59:02 - Pleas judges and the appellate process we have. We?

59:05 - Why is your case so very special

59:08 - that we need to take a microscopic, deep, deep dive on King's Bench?

59:12 - I am I am getting into it for two reasons, Your Honor.

59:14 - First, because your colleagues have asked me about the specifics, and second,

59:18 - because this case is an example of the problems that we have identified

59:23 - in other concessions where information like this was not given to the court,

59:27 - it puts the court in a Hobson's choice to a Hobson's choice,

59:31 - either the judge has to go out and be the advocate himself or herself

59:36 - and actually investigate for witnesses, interview people, call witnesses.

59:41 - Even if you have a hearing, what happens then?

59:44 - The judge calls the witnesses.

59:46 - The judge cross-examined the the parties witnesses.

59:49 - That could happen.

59:50 - There's no way that that process, that sort of process can develop

59:53 - a legitimate, decision that has integrity.

59:57 - 865 And it wasn't this judge's fault that he didn't have all the information.

01:00 - 07.203 So it's not about saying that the judge was just doing his best and trying that.

01:00 - 10.907 That's what I'm saying is we're spending a lot of time on your argument is simply

01:00 - 14.577 that in stipulating to facts,

01:00 - 18.014 the parties engaged

01:00 - 21.751 in a agreement to only provide the trial court

01:00 - 24.287 with the portion of the record that's supported their facts.

01:00 - 26.489 Of course that's the case. Of course, Your Honor.

01:00 - 30.226 And the point about that is, I mean, I think it's that simple, right?

01:00 - 32.362 I mean, why why can't we stop at that principle?

01:00 - 34.864 Because we're going to stipulate to facts to a trial court.

01:00 - 39.002 In a PCR case, you have to give the trial court everything.

01:00 - 43.973 Because the point, Your Honor, is that lawyers are advocates in

01:00 - 45.141 they're I know you,

01:00 - 46.743 I know you're going down the advocacy route

01:00 - 48.444 and I get that I stand up, but that's that.

01:00 - 53.716 Again, I'm why can't we say as a court that, look,

01:00 - 57.487 if you don't do this, you're going to be replaced.

01:00 - 58.621 You're going to be in trouble.

01:00 - 01.591 You're going to be I mean, I don't know what we say, but but

01:01 - 04.594 I would like to think that our district attorneys, if we tell them

01:01 - 11.501 that trial judges need the full record, everything you can take,

01:01 - 13.136 you put that in first,

01:01 - 17.040 and then you can submit stipulations that you believe are based on the record.

01:01 - 19.175 And the trial court can evaluate the full record

01:01 - 21.044 and compare to your stipulation, something like that.

01:01 - 25.214 But that couldn't happen here because your claim is the district

01:01 - 29.352 attorney's office, and the defendant manufactured a record that supported

01:01 - 33.122 their preferred narrative, and they gave it to the trial court judge.

01:01 - 36.859 And the trial court judge had no way of knowing otherwise.

01:01 - 38.594 Well, they didn't manufacture a record.

01:01 - 41.597 You're not saying that, but they handpick the documents to.

01:01 - 42.131 That's right.

01:01 - 44.400 They manufactured a reduced record in effect.

01:01 - 47.737 And and and and yes, of course you could tell them, Your Honor,

01:01 - 49.472 but you have told them

01:01 - 53.576 that is, in essence, what you told them in your original Commonwealth versus so.

01:01 - 55.778 So, Mr. Marshall, Mr. Eisenberg, I don't mean to interrupt, but

01:01 - 57.547 we keep

01:01 - 00.550 going back and forth between the macro and the micro.

01:02 - 03.653 In this particular case, what I think you're suggesting,

01:02 - 04.987 and I think what we're hearing,

01:02 - 07.990 and I've only been up here for about 14 months now, is,

01:02 - 10.693 a bit of a breakdown in the Philadelphia system,

01:02 - 13.763 specifically a crisis of confidence, if you will.

01:02 - 16.365 We're not an error correcting court.

01:02 - 17.633 What is it you're suggesting?

01:02 - 19.168 That we direct the trial courts,

01:02 - 22.171 which is going to have applicability across 67 counties

01:02 - 25.475 as to how to handle a PCR hearing, because trial courts

01:02 - 29.045 are not equipped to investigate the veracity

01:02 - 31.514 or the credibility of every single claim made.

01:02 - 34.517 And we want to encourage stipulations as just as we mentioned,

01:02 - 38.454 how do we direct or what kind of standard or applicable standard

01:02 - 43.059 are you suggesting we impose upon trial courts in accepting stipulations?

01:02 - 44.827 Because that's really the question in my mind.

01:02 - 48.064 We're asking you to tell trial courts, and I don't think it's about

01:02 - 50.433 merely the review of stipulations.

01:02 - 52.235 I think it's a broader question than that.

01:02 - 56.405 We are asking you to tell trial courts, where there has been a pattern

01:02 - 59.709 that suggests a breakdown in the normal adversary process,

01:03 - 03.646 that they need to bring in a third party so that there will be

01:03 - 05.281 an adversary process.

01:03 - 06.349 That's what we're asking.

01:03 - 11.187 And I know assumes an epidemic of breakdowns around the Commonwealth.

01:03 - 15.024 And there's there's no basis for presuming such a breakdown.

01:03 - 18.461 What you're what what really underlies your position

01:03 - 20.596 is your utter lack of confidence,

01:03 - 25.234 which may be completely valid in this day in this county.

01:03 - 27.370 And that's not what this court's here for.

01:03 - 30.206 That's why we have an electorate out there, your honor.

01:03 - 33.643 This is not about

01:03 - 37.480 our feelings about, what they're doing.

01:03 - 43.519 They think that prior prosecutors had a culture of suppressing, from our view,

01:03 - 47.056 it looks like there's a concession culture that's actually happening. Now.

01:03 - 50.059 They can examine as many cases they want

01:03 - 53.496 for possibility of error they can have at it.

01:03 - 56.699 What they can't do is concede those cases

01:03 - 59.802 based on incomplete information.

01:03 - 01.537 For lack of investigation.

01:04 - 05.775 And there's no way for the judge to know when that's happening.

01:04 - 11.848 In the individual case, there was no way for the judge here to know that there was

01:04 - 16.586 another memo out there that contradicted everything that the parties were saying.

01:04 - 20.790 Their main claim and this is not the only example of that.

01:04 - 21.691 The Wharton case

01:04 - 25.361 that I mentioned, for example, is a case where the issue was the defendant's

01:04 - 31.367 alleged positive adjustment to prison after he was originally sentenced

01:04 - 35.705 and before he was resentenced and the certification made to the court.

01:04 - 40.409 The stipulation made to the court was, there is no other evidence that out there

01:04 - 44.447 that you don't know about already that contradicts his positive

01:04 - 47.750 prison adjustment, when in fact, during that exact

01:04 - 51.387 period of time this defendant was in a courtroom in this building

01:04 - 55.057 on the second floor of this building and broke out of the courtroom,

01:04 - 59.195 assaulted his guard, unlocked his handcuffs

01:04 - 02.999 with a handcuffed here that he had smuggled in and ran out

01:05 - 04.867 towards the street and was only stopped

01:05 - 08.738 when a, an officer was able to shoot him in the leg and stop him.

01:05 - 11.040 Mr. Eisenberg, we know the facts of Wharton.

01:05 - 13.743 I mean, Judge Goldberg called their bluff and appointed

01:05 - 16.445 the attorney General's office who investigated those particular claims.

01:05 - 19.215 And then he wrote a scathing opinion against the DA's office.

01:05 - 22.218 I keep coming back to the same point, because it's interesting,

01:05 - 23.185 is the Wharton case is

01:05 - 27.390 what do you want us to tell trial judges to call the attorney

01:05 - 30.559 to call the Philadelphia DA's office bluff every time they kind of bring a PC.

01:05 - 34.130 I want you to ask them to exercise

01:05 - 37.566 the same degree of skepticism that Judge Goldberg did.

01:05 - 43.072 We at the point where that skepticism is called for the Third Circuit

01:05 - 47.043 actually held, upheld sanctions against the district attorney's office

01:05 - 48.544 for that conduct.

01:05 - 52.181 Are you suggesting that both within the discretion of the PCR?

01:05 - 57.286 Well, discretion, except I would say more within this court's discretion,

01:05 - 01.390 this court has plenary supervisory authority over the trial courts.

01:06 - 03.125 You've asked Justice.

01:06 - 04.527 Well, what's our authority?

01:06 - 06.696 It doesn't have to be on the statute.

01:06 - 12.368 Most of your, most of the rules of law about when third parties participate

01:06 - 17.673 are done by case law or by rules of court promulgated by this court.

01:06 - 22.778 Of course, you have supervisory authority to tell trial judges to do this.

01:06 - 24.180 You don't have authority

01:06 - 27.583 to remove a district attorney's office that's controlled by statute.

01:06 - 31.854 We were in a case where this court, I believe, asked us to participate,

01:06 - 36.792 where that issue arose and the party representing the Commonwealth, there

01:06 - 41.163 was the same district attorney's office, and we came in and said, they're right.

01:06 - 45.067 Courts don't have the authority because of this statute.

01:06 - 48.270 This is not a statutory question.

01:06 - 51.540 Mr. Rosenberg, I believe we do understand your argument.

01:06 - 53.776 Are there any other questions?

01:06 - 54.744 Let's move on then.

01:06 - 55.711 Thank you very much.

01:06 - 57.780 Let's move on to counsel for respondent.

01:07 - 07.256 I didn't want to be.

01:07 - 09.725 Good morning, Madam Chief Justice

01:07 - 12.728 Tim Kaine, on behalf of LaVar Brown,

01:07 - 15.164 I have never seen

01:07 - 17.867 and I hope this court has never seen

01:07 - 21.537 a litany of extensive and well documented

01:07 - 25.574 Brady and Nabu violations, as there are in this case.

01:07 - 29.311 And I realize that Judge Bronson only addressed

01:07 - 32.581 one discrete Brady claim

01:07 - 35.785 regarding the Kenisha page accusation.

01:07 - 41.190 But if you look at the case as a whole, as Glossip, as the Supreme Court's

01:07 - 44.193 decision in Glossip last week requires,

01:07 - 47.797 then there is no question but that Mr.

01:07 - 50.800 Brown did not receive a fair trial.

01:07 - 53.536 The entire,

01:07 - 55.838 argument that I have heard today

01:07 - 58.841 and that was presented in petitioner's brief regarding,

01:07 - 04.213 we, manufacturing a record for Judge

01:08 - 08.084 Bronson is is simply not true.

01:08 - 13.456 We of course, we pled our claims and to go judge props and to go to your question

01:08 - 18.594 of the chicken or egg, just to be clear how this progressed below,

01:08 - 23.732 we were given access to the to the H file and to the D.A.

01:08 - 25.634 DA's file.

01:08 - 30.606 And then we found an immense amount not only of trial

01:08 - 35.778 era, suppressed documents, but also of the former

01:08 - 39.482 prosecutors own investigation into it which substantiated,

01:08 - 42.151 those claims. Here's your question.

01:08 - 43.285 Yes, please.

01:08 - 46.322 To be that the workers, you know, represent the Commonwealth, do you?

01:08 - 47.523 Yes, I represent Mr.

01:08 - 48.491 Brown. That's okay.

01:08 - 51.360 Old habits die hard. It's a Freudian slip.

01:08 - 55.064 I get mistaken for sovereigns all the time because you two have been impugned.

01:08 - 57.366 So. Yes, we got that D.A.

01:08 - 59.768 look, about you.

01:08 - 03.572 The stipulation that was entered to record it was involving

01:09 - 07.143 Tuesday, July 22nd, 2003 stipulation.

01:09 - 11.447 But at that time that the Commonwealth was in possession

01:09 - 16.719 of the March 3rd of 2003, which contradicted that July.

01:09 - 20.156 So why wasn't that presented?

01:09 - 24.460 To the to the trial

01:09 - 26.896 judge at the time of stipulation?

01:09 - 32.268 Justice Daugherty I simply do not agree that it contradicted, the stipulation,

01:09 - 36.906 or that it was in any way relevant to the claim that Judge

01:09 - 40.376 Robson applied to the trial judge for him to make that determination.

01:09 - 42.611 That's the credibility.

01:09 - 47.349 I don't look, it's I think it's not relevant on its face,

01:09 - 52.922 but why wasn't it turned over when a judge ordered all the information?

01:09 - 56.258 Your office is not permitted to make credibility for

01:09 - 00.496 your office is to provide the information as reported by the court.

01:10 - 01.697 The question I have is

01:10 - 05.367 you made a stipulation regarding one memorandum, but you failed

01:10 - 10.472 to provide a previous memorandum that was evidence for the judge

01:10 - 14.176 in his independent review to determine whether he believed that or not.

01:10 - 17.246 So it's a singular question why didn't you provide him

01:10 - 20.783 what would you accuse the former prosecutors of hiding evidence?

01:10 - 22.718 It appeared,

01:10 - 25.721 at least on paper, you're doing the same thing.

01:10 - 27.790 So do two wrongs make a right?

01:10 - 30.926 And if you're accusing the former prosecutors of hiding,

01:10 - 34.263 why don't you show the public

01:10 - 36.999 that you are not like the old office?

01:10 - 40.002 You're a new office, and you share this information?

01:10 - 45.474 Well, Your Honor, we did not plead or provide

01:10 - 49.078 the judge with lots of irrelevant materials.

01:10 - 53.782 I mean, let me step back here and explain what our claim was.

01:10 - 55.718 Our claim was that there was a right there.

01:10 - 59.555 I think I really need to follow up on that question, because you keep saying

01:10 - 02.024 your justification for not turning these documents over

01:11 - 05.361 in response to justice minding justice docket is they weren't relevant.

01:11 - 09.565 Is that the exact same thing that the former detectives and a former D.A.

01:11 - 12.601 said about the document that you claim was impeachment material?

01:11 - 14.837 Well, no, they didn't.

01:11 - 17.273 Well, they did actually argue that they did.

01:11 - 19.308 They said that because it was irrelevant.

01:11 - 21.110 It had nothing to do with our case.

01:11 - 25.414 No, I don't agree that they said that they actually Detective Baker's

01:11 - 29.485 actual word words were if we find out that Kenisha page

01:11 - 34.123 was incarcerated at the time of the crime, it will show that van.

01:11 - 36.592 Our star witness was that Detective Beige was.

01:11 - 40.162 Page wasn't responsible for Baker wasn't responsible to turn the documents over.

01:11 - 41.630 The DA's office was.

01:11 - 42.298 And that was.

01:11 - 44.833 It was Fisher and Malone, right? Yes.

01:11 - 47.670 But the Commonwealth as a whole is responsible, weren't they?

01:11 - 49.204 Didn't they say the document wasn't turned over

01:11 - 52.041 because they didn't think it was relevant? No, no, they never said that.

01:11 - 55.244 And what happened

01:11 - 58.881 here and what the documentation of the DA's

01:11 - 03.986 internal investigation in 2010 shows is that when they were cultivating

01:12 - 08.557 cooperating witnesses and they got a false or unverified

01:12 - 11.593 or off message, statement

01:12 - 14.763 from him or her, they didn't write it down.

01:12 - 19.335 And this and that goes to petitioner's counsel's accusations of,

01:12 - 23.272 oh, well, we can't say where or when this false accusations go.

01:12 - 26.809 This goes to my concern in this case.

01:12 - 30.145 This is a narrative

01:12 - 33.282 that you're that you, on behalf of your client

01:12 - 37.953 and the district attorney's office formulated based on a cold record review.

01:12 - 42.124 It's a narrative that someone reasonably

01:12 - 45.127 could have reached a contrary conclusion on.

01:12 - 47.763 This is the narrative you presented to the trial court

01:12 - 51.533 as stipulated as to the court as stipulated undisputed.

01:12 - 55.604 No way, no way anybody could reach a contrary conclusion fact.

01:12 - 58.807 And you did it by presenting

01:12 - 01.243 not an entire record, but a chosen record.

01:13 - 05.147 What you believed outside the context of the jury's rulings

01:13 - 07.750 or the trial court records, rulings on relevance,

01:13 - 10.753 anything you made, all the decisions, you decided, what was relevant,

01:13 - 12.488 you decided what was fact.

01:13 - 15.657 You decided what inference was where to be drawn, and you laid it,

01:13 - 18.660 and you put it in a bow, and you gave it to the trial court.

01:13 - 23.265 The that's what I have a problem with is, is once you do that,

01:13 - 27.002 somehow, someway there's got to be in the system.

01:13 - 30.806 There's got to be something to make sure there aren't shenanigans going on that

01:13 - 36.011 the sole, point that the stipulation was offered on.

01:13 - 40.482 So there was a record before the stipulation, Your Honor, and we pled.

01:13 - 41.984 Where was the record created?

01:13 - 46.488 Well, I'm saying the record was what we pled and all the supporting documents.

01:13 - 48.157 That's not a record. That's a pleading.

01:13 - 50.726 Well, it's the reproduced record before this, this court.

01:13 - 51.760 But yes, it was a record.

01:13 - 54.763 There's no there's no transcript of an evidentiary hearing.

01:13 - 56.231 There's no testing of the evidence,

01:13 - 58.767 no whether it would be admitted or admissible or not admissible,

01:13 - 01.637 whether it was hearsay, not hearsay, business record, nothing like that.

01:14 - 04.306 There was nothing. It was a pleading. Pleadings are not facts.

01:14 - 05.574 That's right, that's right.

01:14 - 09.478 And the former prosecutors working in concert with the petitioners

01:14 - 14.917 below in all caps, objected to a hearing and and told Judge

01:14 - 18.854 Bronson, despite him wanting to hear one, that they did not want to have one.

01:14 - 22.458 And that is in line with their internal, deliberation

01:14 - 26.662 on these claims in 2010, when that said an evidentiary hearing would be back.

01:14 - 28.397 That's a red herring, because we're not here on that.

01:14 - 31.600 We took this on Kings badge issue preservation appeals.

01:14 - 32.234 That doesn't matter.

01:14 - 33.535 We're here on Kings bench.

01:14 - 36.071 The question and you don't want to address it.

01:14 - 39.475 Is it a concern at all for you or should we be concerned at all.

01:14 - 41.543 And I'm not saying this is what happened here.

01:14 - 42.811 I think there's you know,

01:14 - 45.347 we can have reasonable disagreement on whether that happened here.

01:14 - 46.114 We'll look at the record.

01:14 - 49.785 Is our system of justice

01:14 - 52.788 prepared to deal with a situation

01:14 - 55.858 where a district attorney's office

01:14 - 58.861 and a defendant post-conviction,

01:14 - 03.532 after a jury trial, agree in a stipulation

01:15 - 09.137 to things that aren't really facts, that are just our served,

01:15 - 12.307 our belief, our what we believe really was

01:15 - 15.310 because we're now in charge

01:15 - 18.514 and we don't like this conviction or honor.

01:15 - 21.149 How does our justice system protect that from happening?

01:15 - 22.885 I'm not saying that's what happened here.

01:15 - 25.153 I'm saying that's why we took this case.

01:15 - 26.221 Right?

01:15 - 29.224 So I think what this case shows

01:15 - 33.362 is that Judge Bronson, and the parent, I'm going to stop you.

01:15 - 34.396 I apologize.

01:15 - 36.965 I don't want to talk about this case.

01:15 - 39.501 I want to talk about the issue that we took.

01:15 - 42.404 And I want to know how does our justice system

01:15 - 45.908 currently protect that from happening?

01:15 - 51.280 What I just laid out, I think Judge Bronson, protected it from happening here.

01:15 - 55.651 I think this court's 2018 decision in Brown is being followed

01:15 - 57.085 faithfully by lower courts.

01:15 - 00.722 I think things have changed and that courts are skeptical

01:16 - 03.392 of happened in this case.

01:16 - 06.962 If we know now, as a matter of fact, the trial,

01:16 - 10.832 the court did not have the complete record

01:16 - 15.537 to evaluate the stipulation, but he knew he didn't have the complete record either.

01:16 - 18.607 I mean, he knows he knows that a district attorney has file

01:16 - 22.511 and a and a homicide file is thousands and thousands of pages long.

01:16 - 24.379 I mean, his whole point in,

01:16 - 28.550 in asking for an evidentiary hearing was, was to expand the record.

01:16 - 33.422 So as a counsel before this court have an obligation, an ethical obligation

01:16 - 36.892 to advise the court of any facts of the case

01:16 - 39.861 or any law of the case that is contrary to your position.

01:16 - 41.029 Of course. Absolutely.

01:16 - 44.833 And so why would it be any different if you have a file of documents

01:16 - 47.235 that support or do not support a stipulation

01:16 - 51.173 that you're slated to, provide the trial judge

01:16 - 54.009 with those documents so he can review the stipulation

01:16 - 57.546 and truly make an independent judicial merits review?

01:16 - 02.684 Well, we certainly would have if we thought there was anything relevant

01:17 - 05.687 to the claim that he was focused on,

01:17 - 08.490 and in our view, there simply is not.

01:17 - 13.895 And if I could just if I could just say, I know the micro and the macro are at odds

01:17 - 18.033 here, but, murder conviction and life sentence is macro to Mr.

01:17 - 21.303 Brown, and and this court did take up the question

01:17 - 24.573 of whether, the grant of a relief was proper.

01:17 - 25.841 Well, counsel

01:17 - 28.310 it correct me, because I don't at least I didn't understand

01:17 - 32.414 if you provided Justice Robson with the with an answer at all to his question.

01:17 - 36.184 The fact here is the development, if any, of a new procedure

01:17 - 40.689 regarding a PCR, a court and the way I see it, our system doesn't

01:17 - 43.725 contemplate the concession to a jury verdict yet.

01:17 - 46.728 That's what you're asking us to do.

01:17 - 50.332 No, I just don't accept my understanding from an amicus.

01:17 - 55.437 It's happened in maybe 130 other cases, so it appears to be a pattern of argument

01:17 - 56.138 directly. Yes.

01:17 - 00.342 I will let I will let Miss Ernst, address the 100 other cases.

01:18 - 05.280 Let's just assume that as, again, it's an offer of proof from a patent attorney,

01:18 - 07.783 assuming it's true.

01:18 - 12.554 Are you sitting here saying that based upon a particular office

01:18 - 16.591 or what you're asking us is the procedure should be that we can permit

01:18 - 21.129 or should permit when a a DA's office and defense counsel,

01:18 - 24.966 confess error to a jury verdict,

01:18 - 28.470 that we must accept that and reverse the jury's decision.

01:18 - 31.406 Absolutely not. Okay, absolutely. That's what I needed to hear.

01:18 - 33.875 I guess it's that was my question.

01:18 - 35.844 Okay, well, I'm sorry.

01:18 - 36.511 I mean, I'm sorry.

01:18 - 40.816 I'm not trying to answer his questions and not yours, judge justice Brown.

01:18 - 41.850 Well, but that's so.

01:18 - 44.619 So how does our system how does our judicial.

01:18 - 46.021 Because maybe we don't have to do anything.

01:18 - 48.256 Maybe this maybe this isn't broken.

01:18 - 49.191 That's so.

01:18 - 51.660 So how do we make sure that doesn't happen?

01:18 - 53.128 How do we make sure.

01:18 - 55.897 Remember there are there are generally two parties.

01:18 - 58.567 There's the prosecution and there's the defense.

01:18 - 00.535 Right. If they agree

01:19 - 03.638 on a view of the world

01:19 - 06.641 that is contrary to the conviction.

01:19 - 09.745 What ensures

01:19 - 13.915 that the trial judge can make that independent merits determination?

01:19 - 15.617 If the two people that agree on the world

01:19 - 18.620 are the only ones making the determination of what is relevant

01:19 - 22.324 to put in front of the trial court to support the stipulation, I think amicus

01:19 - 25.494 amicus participation can do so.

01:19 - 27.362 I think most of these cases

01:19 - 30.232 that have been listed of course, have the same open record review

01:19 - 32.567 that the defendants had. They were offered that here.

01:19 - 36.571 The former prosecutors were invited to, view the Dow file.

01:19 - 41.777 And, that file in this case, and they declined, in fact, this March,

01:19 - 47.649 proffer that they say we were hiding was on record in the co-defendants case.

01:19 - 50.719 During the litigation before judge,

01:19 - 53.622 Judge Bronson, it was there for anyone.

01:19 - 54.990 No one was hiding it.

01:19 - 58.560 It wasn't presented in our case because no one thought it was relevant.

01:19 - 01.663 Hard. Stop. Like that's it.

01:20 - 03.565 There's. There's no conspiracy here.

01:20 - 05.100 There's no,

01:20 - 09.604 there's no, false fact that Judge Bronson relied on.

01:20 - 14.009 What is what is the document that affirmatively shows that

01:20 - 16.311 there was this misidentification

01:20 - 18.814 that that if I, if all he did was look at the document and nothing

01:20 - 21.983 else, there are two there are two sets of documents.

01:20 - 25.520 The first is the document showing that Vann was giving

01:20 - 30.725 confidential information to, the police on one robbery homicide

01:20 - 34.996 that being specified as this one, and then a variety of other robberies.

01:20 - 40.502 And then it lists the, people he is giving confidential information on identifying

01:20 - 45.140 Kenisha page and, the codefendant in this case, Jomar Richardson,

01:20 - 48.877 as being giving information on this robbery homicide.

01:20 - 51.246 And then it goes on about Roberson. That's the first one.

01:20 - 54.382 What is in that document other than a case number?

01:20 - 57.285 What is in that docket. Because maybe the case number was wrong.

01:20 - 00.755 Maybe, maybe maybe the maybe the information was related to the defendant.

01:21 - 03.792 And and what was Bronson job do we know that.

01:21 - 04.693 How do we know that

01:21 - 09.264 judge Bronson thought that the that that that that that document was ambiguous

01:21 - 13.401 how we know that it was about this case and that he made that

01:21 - 18.340 that accusation is in the reproduced record at pages 210 to 215,

01:21 - 21.943 where the police do an investigation of that accusation.

01:21 - 27.182 And in the course of that, Detective Baker says that van named Kenisha page

01:21 - 28.383 and that,

01:21 - 32.621 if they found out she was incarcerated at the time of this crime, they would,

01:21 - 35.156 they would show that he was lying.

01:21 - 37.158 How do we know that wasn't wrong?

01:21 - 39.027 That that wasn't wrong. Right.

01:21 - 41.196 Well, it's just that the police faces the document.

01:21 - 44.199 Well, within any document could be wrong, but I would.

01:21 - 48.136 But yes, yes, but, Your Honor, I have to call you

01:21 - 50.405 the court's attention to Glossip.

01:21 - 55.710 The Supreme Court's decision in Glossip last week, where this same exact situation

01:21 - 00.548 presented itself, where the state conceded relief, where there was no hearing

01:22 - 06.121 below, where the the documents that were being relied on for a nap,

01:22 - 09.958 who claim, were subject to different interpretations

01:22 - 13.128 and where the court said it's enough that

01:22 - 16.564 the natural reading of these documents and frankly, the literal

01:22 - 20.669 reading of the documents in this case are that van identify

01:22 - 25.106 Kenisha page in this case, and that he was lying about that

01:22 - 29.444 and Judge Bronson I mean, what that's what that's what the stipulation was about.

01:22 - 31.579 The stipulation was about Judge Bronson's,

01:22 - 34.382 uncertainty about

01:22 - 38.486 whether that accusation was actually made in this case

01:22 - 43.258 or as the petitioners were arguing below with respect to some other homicide.

01:22 - 47.762 And that's why we entered the stipulation well into the proceedings

01:22 - 50.865 to address that one particular fact,

01:22 - 55.236 that one particular factual question and on that ultimate question

01:22 - 59.407 that his decision turned on, he declined to accept the stipulation.

01:22 - 01.810 He said, I'm not, I don't.

01:23 - 05.981 And I think, petitioner's counsel actually quoted that I'm not going to accept,

01:23 - 09.851 you know, that ultimate question of whether he was identifying

01:23 - 12.854 that page in this case,

01:23 - 16.691 you know, that was his decision to make, and he made that in looking at the

01:23 - 20.061 at the two seconds of documents that I've just described,

01:23 - 26.334 in addition to the stipulation which noted incontrovertible facts,

01:23 - 29.904 that these documents were found in this murder file,

01:23 - 32.474 that they were stamped with this murder case number,

01:23 - 36.878 that they were directed to the detective for this case and so forth.

01:23 - 40.148 All of the evidence, direct and circumstantial,

01:23 - 43.251 was that van made this accusation and that,

01:23 - 46.121 and that he made it in this case.

01:23 - 48.857 And it was obviously a false accusation.

01:23 - 53.028 When you talk about material City, like there is nothing more material

01:23 - 57.966 than a false accusation than an accusatory witness has made in that same case,

01:23 - 01.403 the question of materiality is what competent

01:24 - 04.406 defense counsel does with impeachment evidence.

01:24 - 08.443 Competent defense counsel drives a bus through through this.

01:24 - 12.047 I mean, this is their star witness who is whose,

01:24 - 15.216 credibility they propped up in all manner of ways.

01:24 - 18.253 And if I may,

01:24 - 20.155 before I yield to Miss Ernst,

01:24 - 24.359 just give the court a sense of what this trial was like.

01:24 - 30.031 Van lied repeatedly on the stand about the number of statements he gave.

01:24 - 34.702 He lied about whether the prosecution had made him any promises,

01:24 - 37.906 and thus about his motivations for testifying.

01:24 - 42.077 He lied about his own lies, saying they were only in the beginning,

01:24 - 43.745 before he was ready to face the music.

01:24 - 45.213 They then

01:24 - 48.616 presented that one other witness who incorporated Mr.

01:24 - 50.285 Brown and she lied.

01:24 - 54.789 She lied about whether she had given previous statements and most crucially,

01:24 - 58.026 she lied about whether the police had informed

01:24 - 01.029 her or her attorney of what van was saying,

01:25 - 06.701 because the key point of the defense or of the prosecutor's closing was

01:25 - 10.538 you can trust these unindicted coconspirator because even though

01:25 - 14.909 they're corrupt and polluted sources, they are saying the same thing.

01:25 - 17.479 And they never had contact with each other.

01:25 - 19.514 They were never told what the other one was saying.

01:25 - 22.350 He closed on that and that was false.

01:25 - 26.788 And and Detective Baker was then presented, testifying at trial

01:25 - 31.192 to those false facts that he had never, influenced.

01:25 - 35.363 Lyons is testimony that there had never been this,

01:25 - 39.100 this proffer that, or that there was no proffer

01:25 - 43.171 in the time period that they did, that they had one in which she'd also,

01:25 - 46.174 like van gave an inconsistent version of events

01:25 - 49.644 under the Supreme Court's decision last week in Glossip,

01:25 - 53.448 in determining the due process by a due process violation

01:25 - 57.118 of any one of these claims, this court has to consider

01:25 - 00.955 all of the other due process violations that happened.

01:26 - 05.026 So even if it were a close call in the materiality of the kenisha page

01:26 - 09.330 accusation, and I don't think it is the overwhelming evidence,

01:26 - 12.000 of all the violations

01:26 - 15.236 put together, demonstrate that this was an unfair trial.

01:26 - 18.740 Counsel, before you sit down, if you could clarify,

01:26 - 22.177 when amicus was offered the opportunity

01:26 - 25.180 to review the entire file and,

01:26 - 28.316 it wasn't,

01:26 - 28.850 amicus.

01:26 - 32.987 So the former, as soon as, the, I think Mr.

01:26 - 35.790 Ernst will know the details better, but, Mr.

01:26 - 38.927 Malone, justice McCaffery, you referred to Mr.

01:26 - 40.862 Malone, or he was invited,

01:26 - 44.032 repeatedly to come view the file as soon as they were conceding this

01:26 - 48.603 relief, as was the prosecutor who had done the internal investigation,

01:26 - 49.771 she was invited.

01:26 - 53.341 This is long before, well before Judge Bronson ruled.

01:26 - 55.877 That's not what I asked.

01:26 - 57.645 I asked when I asked.

01:26 - 59.781 No, I, I think justice you did too.

01:26 - 01.282 Asked about the amicus.

01:27 - 05.720 When were the amicus given an opportunity to have open record review prior?

01:27 - 07.188 I see them as the petitioners,

01:27 - 11.392 and I thought the attorney general was the amicus, but, but well, they were

01:27 - 15.730 the amicus office of attorney General, not the two prosecutors in the case.

01:27 - 18.833 I want to know was the office of Attorney general and the petitioner

01:27 - 22.503 given for record review to victims to

01:27 - 26.341 to check no victims have to

01:27 - 30.345 because you told me that that but the stopgap is the amicus.

01:27 - 31.412 That's what you're answering.

01:27 - 34.115 My question was the stopgap to make sure that the

01:27 - 36.851 the world doesn't come to an end is the amicus.

01:27 - 40.121 My question to you is simply, did they get the amicus?

01:27 - 43.291 And I'll add petitioners, because I think they were given

01:27 - 46.894 Amika status, they were given amicus below and petitioners there.

01:27 - 49.931 When I said amicus, I mean, the amicus

01:27 - 52.600 where they give an open record review, your answer was yes,

01:27 - 55.403 but you meant no.

01:27 - 57.472 Well, it's not that clear.

01:27 - 00.308 There are two separate litigation litigants here.

01:28 - 04.212 But below they were working in concert and that's an of record fact

01:28 - 06.281 that the former prosecutors were working with.

01:28 - 07.782 I'm not asking about the statute.

01:28 - 10.551 I'm asking about the amicus because you said the amicus

01:28 - 14.522 or the backstop were the amicus given open record review?

01:28 - 17.225 But no, not the petitioners family.

01:28 - 21.596 But was anyone given full record review they were invited to?

01:28 - 22.330 They declined.

01:28 - 26.434 The former prosecutors who were who were coauthoring their briefs below

01:28 - 30.271 were invited to review the documents and declined.

01:28 - 33.007 Thank you. Okay. Thank you very much.

01:28 - 36.444 Let's hear from the much maligned Philadelphia DA's office.

01:28 - 40.348 Miss Ernst.

01:28 - 49.624 Madam Chief Justice Amir, please.

01:28 - 50.391 The court.

01:28 - 52.660 My name is Deputy District Attorney Catherine Ernst.

01:28 - 54.796 I am now the supreme is deputy.

01:28 - 56.431 That's that's my title.

01:28 - 58.066 I'm now the supervisor of the Law Division.

01:28 - 00.501 That's the only reason why I wanted to. To see what my title is.

01:29 - 03.204 So that you understand that I'm speaking with authority.

01:29 - 07.742 So. But maybe I shouldn't.

01:29 - 09.911 Maybe I should hide. You're, interloper.

01:29 - 14.282 So I think I'd like to jump in first

01:29 - 18.286 with some of Justice Robson's questions regarding the stipulations.

01:29 - 22.023 And one thing that I would, urge the court to do is to

01:29 - 25.960 read the stipulations, because I agree, and Judge Bronson

01:29 - 29.330 below agreed that it would be inappropriate for us to stipulate

01:29 - 30.298 to credibility

01:29 - 33.368 and he said that he did not read these stipulations as agreeing

01:29 - 37.205 to the ultimate question of whether Vann falsely implicated Kenisha page,

01:29 - 39.807 and he believed that that was a determination

01:29 - 42.810 that he had to make on review of the record evidence here.

01:29 - 45.113 And I think that that's appropriate.

01:29 - 49.050 We heeded this court's call in parent to not,

01:29 - 53.855 or certainly not to, you know, ask a court to be required

01:29 - 56.991 to, accept credibility stipulations.

01:29 - 59.127 And we did not do so here.

01:30 - 03.631 And as to,

01:30 - 05.633 the hearing, Justice

01:30 - 08.836 Wecht earlier said that what, Mr.

01:30 - 12.740 Lynette had wanted all along was for there to be an evidentiary hearing, but

01:30 - 16.511 in fact, Judge Bronson indicated that he would like to hear

01:30 - 21.749 from the prosecutors who were accused of participating in this case.

01:30 - 27.455 And my office did not oppose that hearing, and in fact, suggested that the judge

01:30 - 30.992 may also want to hear from the detectives involved, Detective Baker and Detective

01:30 - 34.228 judge, who was the assigned detective.

01:30 - 38.866 And it was actually the amicus here that opposed the evidentiary hearing.

01:30 - 41.869 And Judge Bronson during the hearing said that, well,

01:30 - 46.040 if they didn't want an evidentiary hearing and we didn't think what was necessary

01:30 - 49.911 since relief was so apparent from the record, then he wouldn't hold one.

01:30 - 50.812 That's so odd.

01:30 - 53.581 That's so odd that

01:30 - 56.284 that that you would they weren't invited.

01:30 - 58.786 Were they a Mickey or were they parties?

01:30 - 02.557 I mean, I the fact that the trial judge said,

01:31 - 06.994 I want to have a hearing and then looks to non parties to object

01:31 - 08.596 or indicate whether a nonparty

01:31 - 11.599 wants to have a hearing or not, but it's such a strange,

01:31 - 13.868 odd thing.

01:31 - 14.702 It is, Your Honor.

01:31 - 18.372 And actually what Judge Bronson asked the parties and the amicus

01:31 - 22.109 brief was when there would be an evidentiary hearing at that point,

01:31 - 25.313 Judge Bronson didn't know that a Mickey would oppose the hearing.

01:31 - 30.017 If there are Mickey, I mean, whether they oppose or not is

01:31 - 33.621 is not a it's an interesting thing, but I mean, it's

01:31 - 37.725 I mean, really the question is the parties are the ones

01:31 - 40.728 that get to object to whether there's a hearing or not, not a Mickey.

01:31 - 42.830 Correct.

01:31 - 46.767 I mean, I don't disagree with you, but what I was, you object to a hearing?

01:31 - 48.536 We did not object to a hearing.

01:31 - 51.739 Then why didn't you call the witnesses that the trial judge wanted to hear from?

01:31 - 56.477 What we said to the judge was that we believe the documentary evidence here,

01:31 - 00.781 very clearly established that there was withheld material

01:32 - 04.886 and that that was material to the outcome of this case, as Mr.

01:32 - 06.053 Kane described.

01:32 - 07.922 There wasn't just one claim here.

01:32 - 11.259 There were multiple claims that were heavily documented in our file.

01:32 - 15.229 And so we didn't believe that a hearing was necessary, but we didn't oppose one.

01:32 - 17.365 And we recommended that if there would be a hearing

01:32 - 20.368 that the detectives be called, in addition to the prosecutors.

01:32 - 25.306 But what Judge Bronson asked the parties and amicus to do is brief.

01:32 - 28.309 If they're, you know, for when there would be an evidentiary hearing,

01:32 - 30.811 what the level of participation amicus would get.

01:32 - 32.480 And Judge Bronson actually indicated

01:32 - 36.651 that he was willing to allow the amicus to question the witnesses.

01:32 - 41.389 And so, from Judge Bronson's perspective, this amicus participation

01:32 - 42.490 would have been quite fulsome.

01:32 - 45.593 And nonetheless, they opposed having an evidentiary hearing.

01:32 - 51.299 Another thing that I would,

01:32 - 53.000 urge this court to read.

01:32 - 54.802 And I'm sure that you, if you haven't already,

01:32 - 59.173 that you intend to is the United States Supreme Court's case in Glossip,

01:32 - 02.743 because the facts of that case in this case are really on all fours

01:33 - 07.448 in that a prosecutor's office looked at the record in the,

01:33 - 11.586 looked at the notes in their file by prior prosecutors

01:33 - 15.790 and came to the inescapable conclusion that there were Brady and Napa violations.

01:33 - 19.060 And because of that, the state of Oklahoma,

01:33 - 22.029 agreed to relief, and there was no hearing

01:33 - 25.633 because the parties fundamentally agreed to what the facts of record were.

01:33 - 29.370 And, and what the United States Supreme Court said

01:33 - 33.441 is that it's appropriate for the prosecutor and then for the judge

01:33 - 37.178 to look at the straightforward inferences from the documents.

01:33 - 40.414 And here there's a document that a detective wrote

01:33 - 45.219 that said that van was lying, when he suggested that Kenisha page was,

01:33 - 49.357 at the crime scene on the on the night of the murder.

01:33 - 51.258 And so,

01:33 - 55.262 that among many other napkin violations and false testimony

01:33 - 58.532 that was given to the court, led our office to believe

01:33 - 02.637 that we just couldn't stand behind the integrity of this conviction.

01:34 - 05.172 But we do intend to retry Mr.

01:34 - 08.209 Brown, violations alleged in this case.

01:34 - 10.044 Yes. There were.

01:34 - 13.914 So the Nabu violation, which isn't the the claim that Judge Bronson

01:34 - 15.182 automatically granted relief on.

01:34 - 18.753 But the the violation that was alleged is that there were

01:34 - 22.223 two key incentivized witnesses that testified against Mr.

01:34 - 24.191 Brown before Judge Bronson.

01:34 - 27.862 There was not a narrative violation that's coming up to us right now.

01:34 - 30.965 So the the claim was before Judge Bronson.

01:34 - 34.702 And when my office agreed to release, we agreed to release based upon

01:34 - 38.072 the cumulative error of multiple Brady and Napa violations.

01:34 - 41.442 Judge Bronson ultimately granted relief on the single claim.

01:34 - 45.079 And we believe that that claim of standing work does provide for relief.

01:34 - 49.383 But nonetheless, the word Napa, in the opinion of Judge Bronson.

01:34 - 51.886 No, as as I

01:34 - 55.656 as I said, Judge Bronson didn't reach these other claims that were raised

01:34 - 58.659 and formed the basis of our agreement to relief,

01:35 - 05.866 So one moment you share with us why

01:35 - 10.204 the March 2003 memo was not surrendered.

01:35 - 14.008 Yes. So, Your Honor,

01:35 - 18.946 our file in this case, my office is file is 20 banker's boxes of documents.

01:35 - 23.284 There are many documents in those boxes that are relevant to the claims

01:35 - 25.052 at issue before the court.

01:35 - 28.022 And there are many documents in those boxes that were not relevant.

01:35 - 33.828 The the Kanisha page claim, which is the claim that Judge Bronson

01:35 - 38.165 ultimately granted relief on, was a claim that Kanisha page falsely.

01:35 - 42.136 I'm sorry that Ronald Van falsely identified Felicia Page as being

01:35 - 43.471 a participant in the murder.

01:35 - 47.007 My opponents are arguing.

01:35 - 50.478 They claim that we purported that there was some sort of switch

01:35 - 55.182 between Kenisha Paige and Kiana Lyons, and they claim that this new document,

01:35 - 59.553 this March memo that does not relate to Kanisha Paige, but only relates to Kiana

01:35 - 03.958 Lyons, was relevant because they claim that we argue to switch theory counsel,

01:36 - 06.961 share with me why this information

01:36 - 10.164 is not relevant to the independent review of the trial.

01:36 - 12.466 Judge the first paragraph 80.

01:36 - 15.402 This is to the file from Bill Fisher.

01:36 - 19.039 Interview of Ronald Van Ada spoke with defense counsel alone

01:36 - 21.308 and gave them a copy of the defendant's statement.

01:36 - 24.311 Also informed him that the defendant had given informed

01:36 - 27.381 oral statement to Detective Brooks and sent them.

01:36 - 28.849 Our Ada

01:36 - 33.020 didn't inform the defendant attorney about specific content of oral statements.

01:36 - 37.191 However, counsel was informed that the oral statements

01:36 - 41.195 were more expansive or conflicted with the written statement.

01:36 - 46.400 Counsel was given an opportunity to speak in private then prior to the interview,

01:36 - 51.672 then was not immediately forthcoming, but eventually he probably told

01:36 - 55.776 most of the truth and a patchwork, halting, painful, reluctant matter.

01:36 - 59.313 Now share with me why is that not information

01:36 - 03.150 subject to review and a credibility court by the judge,

01:37 - 07.488 as opposed to being irrelevant as indicated by the the federal defender?

01:37 - 11.292 So there were three statements made by Ronald Van

01:37 - 14.295 that were just I'm asking you about that statement.

01:37 - 19.166 That's a file to the memo in the district attorney's office saying

01:37 - 23.938 that there's a conflicting statement and that van was not honest.

01:37 - 26.507 How was that not relevant

01:37 - 29.510 to a credibility call for this court or that court to

01:37 - 34.114 a court to make, but yet you provided a July subsequent

01:37 - 37.117 July statement which even contradicted that.

01:37 - 38.953 That's the question you tell me,

01:37 - 42.656 because you keep accusing the former DA's office of hiding evidence.

01:37 - 47.528 And sadly, I'm asking you to share with us why we shouldn't think the same of you.

01:37 - 49.730 So just disagree.

01:37 - 53.934 What I would say is that this, this March memo

01:37 - 57.805 about an undisclosed proffer that happened in March, there were many

01:37 - 00.808 statements that were given, some disclosed and not some not disclosed.

01:38 - 04.111 This is yet another example of a private conversation

01:38 - 07.114 that they had with Ronald Van, where he gave information

01:38 - 10.417 that conflicted with information that he gave in the disclosure statements.

01:38 - 14.321 And in fact, at the beginning of that, I think you read it, talked about how

01:38 - 18.092 he had given other informal statements to the detectives that those statements

01:38 - 19.293 also were not recorded.

01:38 - 22.830 So I don't know the full number of statements that Ronald Van gave

01:38 - 25.933 and the changing nature of each one of those statements.

01:38 - 29.136 You don't think that's relevant to a credibility decision,

01:38 - 31.372 which you stipulated is only made by the judge.

01:38 - 35.676 So I don't believe that we,

01:38 - 39.346 we were I don't know that we stipulated

01:38 - 42.383 I mean, I know that we didn't stipulate anything to Ronald Van's credibility.

01:38 - 48.722 Can't you can't know what we what we agreed

01:38 - 53.294 is that there were two memos written by Detective Baker

01:38 - 57.698 and appended to them was a fax to the Gardendale school

01:38 - 00.701 that showed that Kanisha page could not have been present at this.

01:39 - 05.172 No, but I'm asking you about Ada Bill Fisher's memorandum to the file

01:39 - 08.876 for which I just gave you the introductory introductory paragraph.

01:39 - 11.879 I'm asking you very simply,

01:39 - 15.115 defender indicated that it was not relevant.

01:39 - 16.450 I'm asking you,

01:39 - 20.654 do you believe a statement in which the district attorney has a file

01:39 - 24.425 that says the defendant is not truthful, has not telling the truth?

01:39 - 27.962 Protracted statements gave other stating, you don't think that's relevant

01:39 - 31.031 to the the CRA issue?

01:39 - 33.334 It's a yes or no answer.

01:39 - 36.303 I think to the extent it's relevant, it shows that yet again

01:39 - 39.573 they found van to not be truthful, which is exactly what that piece

01:39 - 42.343 of what you're now you're saying it's cumulative, right?

01:39 - 45.212 Or no. Why was that not relevant?

01:39 - 48.182 I don't believe that this document is relevant to the Kanisha page

01:39 - 51.185 claim, because Kanisha page is nowhere in this document.

01:39 - 54.655 And so therefore, and I didn't work on the case below,

01:39 - 57.825 but I can say that looking at this, it didn't strike me as anything

01:39 - 59.426 that was important to the Kenisha page

01:39 - 02.162 claim, based upon the fact that Kenisha page is not mentioned,

01:40 - 06.033 but now standing before you do, I wish that we would have given, the judge

01:40 - 08.235 all 20 banker's boxes. Absolutely.

01:40 - 11.805 However, former prosecutors who co-wrote their,

01:40 - 15.409 amicus briefs below, we offer them full file review.

01:40 - 19.346 We gave 17 dates for one of the prosecutors to come in

01:40 - 20.981 to review the entire file.

01:40 - 24.451 And they never took us up on the, I believe, exculpatory material

01:40 - 27.421 is mandated for the Commonwealth to provide.

01:40 - 29.356 It's not at the request of the defense.

01:40 - 32.826 It's your obligation as a as a prosecutor.

01:40 - 34.628 Correct. Well, we keep up.

01:40 - 36.764 So the defense did come in and do file a review.

01:40 - 38.899 I'm talking about that.

01:40 - 42.336 They are now suggesting that this document is so important,

01:40 - 46.306 even though it doesn't mention the the the woman that Dan falsely accused.

01:40 - 49.510 And what I'm saying is, is and there's a suggestion

01:40 - 52.379 that we were hiding documents that we were trying

01:40 - 54.314 to keep something away from Judge Bronson.

01:40 - 55.516 And what I'm trying to say is,

01:40 - 59.353 is that we offered them or people writing their briefs, file a review.

01:40 - 01.188 They could have seen our entire file.

01:41 - 03.023 We didn't oppose an evidentiary hearing.

01:41 - 06.026 We recommended that the detectives be called in an evidentiary hearing.

01:41 - 08.429 And I don't know what more we could have done. What you recommend.

01:41 - 08.929 I'm sorry.

01:41 - 11.698 You said you recommended that the prosecutors be called.

01:41 - 12.199 Sorry.

01:41 - 15.402 I think I said detectives, but if I misspoke, what did you call them?

01:41 - 17.471 That he was out here?

01:41 - 19.706 I mean, you were in the driver's seat, if you recommend it.

01:41 - 21.241 I mean, you were in the driver's seat.

01:41 - 23.477 You recommended that they be called.

01:41 - 25.112 Then why didn't you call them?

01:41 - 26.613 There were so many.

01:41 - 28.982 There was so much undisclosed Brady in this case.

01:41 - 31.118 And as I said, there were many different claims.

01:41 - 34.822 Kiana Lyons was one of the key witnesses in this case.

01:41 - 39.193 She testified at trial very, very clearly.

01:41 - 40.727 That's not answering the question.

01:41 - 43.797 But you you said you recommended to the trial court.

01:41 - 44.965 The court. Right.

01:41 - 49.436 You made a recommendation to the court that they hear from the detectives, right?

01:41 - 53.040 Yes. Then why didn't you call them?

01:41 - 53.340 What?

01:41 - 54.975 We judge Bronson said that

01:41 - 58.579 he wanted to have a hearing at which he heard from the prosecutors.

01:41 - 02.516 And we said that if he was going to hold that hearing, then we should

01:42 - 03.817 also hear from the detectives.

01:42 - 07.621 But we but what we said was, is that we didn't we didn't independently

01:42 - 10.591 think a hearing was necessary because the documentation of the case.

01:42 - 14.328 I think that's that's kind of brings me back to, to to to to my point,

01:42 - 18.065 if I look at those documents that you're relying on,

01:42 - 21.902 I don't think it's clear beyond,

01:42 - 26.273 you know, reasonable argument that they, that he, that he,

01:42 - 30.811 that van was directly implicating, page in the crime.

01:42 - 35.682 I think you're you you you're office and you have every right to do that.

01:42 - 40.821 I'm not saying you don't, but your office decided to agree with, defense counsel

01:42 - 45.692 that that's how you that you both read those documents the same way.

01:42 - 49.329 But are you telling me it's not possible for someone to read them a different way?

01:42 - 53.467 Well, I'll say to you, essentially what was said

01:42 - 57.104 to Judge Bronson when he also expressed similar skepticism as you.

01:42 - 01.008 And we asked him to just look at the documents very clearly

01:43 - 04.611 and make his own independent determination as to what he thought happened here.

01:43 - 07.247 And after his full review of those documents,

01:43 - 10.884 even though he expressed similar skepticism of yourself, he determined that

01:43 - 12.386 you said that on the record, too.

01:43 - 14.521 I'm like, you know, don't look at our stipulation.

01:43 - 17.491 Here's the documents, although you excluded one document,

01:43 - 22.863 but here's the documents and you make and we're not we're not stipulating to it.

01:43 - 23.864 You make your own conclusion.

01:43 - 26.867 You said that on the record.

01:43 - 30.904 I forget the specific individual who said it.

01:43 - 33.840 If it was, if it was us or if it was defense counsel.

01:43 - 35.943 But I think it was someone from my office.

01:43 - 38.312 He said, you know, just look at the documents here.

01:43 - 41.315 And I think once you do, it'll be very clear what happened.

01:43 - 44.818 Yeah, but the documents themselves show what was said and when it was said.

01:43 - 45.852 It doesn't show why.

01:43 - 48.855 The only one who can explain why was the person who prepared a document

01:43 - 51.892 which keeps coming back, to which I judge just as props and just said,

01:43 - 54.962 this is why you need a hearing, because it essence.

01:43 - 57.931 It's a backdoor attempt to stipulate the credibility.

01:43 - 01.401 I mean, you're arguing it says one thing and this is when it was, you know,

01:44 - 04.705 when it was said and what it says on a piece of paper,

01:44 - 07.541 they're arguing a different interpretation.

01:44 - 11.211 But the only person that can tell you why he, he or she wrote that

01:44 - 14.014 and what it meant was the person that wrote it, the author,

01:44 - 17.451 which in this case would have been the detective or the Da.

01:44 - 21.822 I mean, I think there's something here just to read you a quote from Ada Fischer,

01:44 - 23.390 which was Ada Fischer's memorandum

01:44 - 27.194 to the file about a proffer interview with Jerry Stein, who was representing Mr.

01:44 - 28.829 Van at the time. Right?

01:44 - 32.466 Yes. So so again, I keep coming back to the same point.

01:44 - 36.136 It seems like you're you're asking the court to stipulate to

01:44 - 39.206 what was said when it was said without an explanation of why

01:44 - 42.209 it was said, and it was subject to two different interpretations.

01:44 - 46.246 So again, I would to me, there are not not two different interpretations.

01:44 - 47.981 There's a document that a detective determine.

01:44 - 51.018 The van was lying about Kenisha page and

01:44 - 54.021 what Glossop was that no van was lying.

01:44 - 56.056 He lied throughout this process.

01:44 - 57.658 He gave up a little bits and pieces.

01:44 - 59.192 He lied multiple times.

01:44 - 01.495 But that all came out during the course of the trial,

01:45 - 04.564 which comes right back to the argument about, well, even if you assume that

01:45 - 07.567 your interpretation of this particular document is correct, this cumulative.

01:45 - 09.870 We know van's a liar. He admitted it.

01:45 - 14.141 So at the trial, what was presented regarding that is that the only to the

01:45 - 18.812 extent that van lied across the three disclosed statements that the jury heard

01:45 - 22.649 was to protect himself, to minimize himself in earlier statements.

01:45 - 24.451 That's what was presented to the jury.

01:45 - 25.452 And it was asserted

01:45 - 27.387 that the jury could trust the final statement,

01:45 - 30.190 because the only way in which he lied was to protect himself.

01:45 - 33.193 And so therefore, learning that he actually falsely identified

01:45 - 37.631 a completely different person, that that is a different category

01:45 - 40.634 of impeachment, that could have changed the jury's assessment.

01:45 - 41.802 I'm not getting in here.

01:45 - 43.337 And I'll tell you why.

01:45 - 45.739 When you look at this particular issue, you have a young black girl

01:45 - 47.374 who's identified at first, there's a connection.

01:45 - 50.711 Page mentioned when he was giving up information on multiple other robberies,

01:45 - 52.512 and the name Kiana pops up.

01:45 - 54.815 Eventually we settle on Kiana Lloyd Wright.

01:45 - 58.251 We settled on I'm sorry, Lloyd.

01:45 - 00.320 Kiana Lyons. Kiana Lyons.

01:46 - 01.254 Correct. Okay.

01:46 - 04.591 And Kiana Lyons is then brought in and she testifies that she's part of it

01:46 - 07.461 with Lamar Brown and testifies to it at trial. Right.

01:46 - 10.297 Well, so how does any of this relate to I mean,

01:46 - 13.100 why is it cumulative and why don't why don't we know for a fact?

01:46 - 14.935 I mean, we're talking about fundamental fairness.

01:46 - 19.272 Gianna Lyon was ultimately the one who was identified as the black female Kiana,

01:46 - 22.109 that it turned into Kenisha page, and it was back to Kiana.

01:46 - 23.477 And then she said, yeah, I was there.

01:46 - 25.779 I was part of it. And that's what LaVar Brown.

01:46 - 28.582 So it is my opponents who claim that Kiana

01:46 - 31.585 Lyons and Kanisha Page were replaced by then.

01:46 - 33.520 We have never asserted that.

01:46 - 35.889 And actually, I think she called the trial.

01:46 - 37.591 Excuse me, wasn't she a codefendant?

01:46 - 39.059 Kiana Lyons

01:46 - 42.295 John Lyons was a cooperating witness, but that she testified that she was

01:46 - 43.397 part of it with LaVar Brown?

01:46 - 47.667 No, I'm not saying that Kiana Lyons didn't testify that she was part of it.

01:46 - 49.870 What I'm saying is, is that the role of the commission,

01:46 - 51.738 we've never said that, Vann said.

01:46 - 55.509 Tanisha Page played the role that Kiana Lyons did, and in fact,

01:46 - 57.544 I would direct your attention.

01:46 - 00.547 They say that we must be saying that even though we've never said that,

01:47 - 05.118 because they claim that Vann only ever talks about one girl.

01:47 - 09.623 But I would direct your attention to the supplemental appendix at 1168,

01:47 - 13.827 where they have a declaration from Special Agent Bryant Peters,

01:47 - 16.830 who said, quote, I distinctly remember that van discuss

01:47 - 20.634 two girls that lived in the area and hung around these suspects regularly.

01:47 - 24.371 And so what I'm saying is, is that Kanisha Page

01:47 - 26.907 and Kiana Lyons just have nothing to do with one another,

01:47 - 28.875 which is why we didn't think that a document

01:47 - 31.445 that mentioned Kiana Lyons had anything to do with Tanisha Page.

01:47 - 31.812 Okay.

01:47 - 36.149 I think and we're beating, if not a dead horse, a nearly dead horse,

01:47 - 40.720 surely I want to bring this up and bring this back

01:47 - 44.324 to the at the question of the King's Bench.

01:47 - 47.694 We're trying if we should establish a procedure

01:47 - 50.397 regarding confession of cases.

01:47 - 54.868 Now, I find this more analogous to the Luzerne County juvenile,

01:47 - 58.472 quote unquote, kids for cash case, in which the Supreme Court

01:47 - 03.343 acted appointed a master to reverse adjudications of delinquency

01:48 - 07.814 only with regard to two particular judges and one county.

01:48 - 09.583 With regard

01:48 - 12.586 to this case, I know my colleagues keep saying that this

01:48 - 16.256 this opinion will affect all 67.

01:48 - 19.526 I may beg to differ.

01:48 - 21.795 Here's my concern.

01:48 - 23.663 We know

01:48 - 24.764 the Third Circuit.

01:48 - 27.767 We know your office was reprimanded

01:48 - 31.037 in the federal system.

01:48 - 32.939 We are all aware

01:48 - 35.876 that a Common Pleas Court judge

01:48 - 38.879 listen to testimony from your former chief of homicide,

01:48 - 42.315 which in essence, could be construed

01:48 - 45.385 as perjury.

01:48 - 48.455 And the record indicates breach,

01:48 - 52.292 that at least 130 cases,

01:48 - 54.294 capital cases

01:48 - 58.064 have been conceded by your office based upon

01:48 - 01.434 very similar allegations.

01:49 - 05.906 That should bring to this court.

01:49 - 10.076 Our concern should be on the same basis

01:49 - 13.547 as what was happening in Luzerne County

01:49 - 16.850 to defendant juveniles, except now

01:49 - 20.153 we're talking about homicide victims and their families.

01:49 - 24.524 Share with me with that information under the assumption

01:49 - 28.562 that we believe there's a problem in the First Judicial District,

01:49 - 33.099 what is your recommendation as to how we should create

01:49 - 38.505 a process for concessions in the gray matter?

01:49 - 42.342 Well, first, I'm going to have to dispute that

01:49 - 44.210 there is a problem in the district attorney's office.

01:49 - 48.014 You dispute that you were sanctioned and your office was sanctioned

01:49 - 50.984 by Judge Goldberg. Is that a dispute? No.

01:49 - 54.788 What I dispute that was a scathing opinion regarding your office.

01:49 - 56.289 No. Okay.

01:49 - 59.793 Did you dispute that a former homicide prosecutor

01:50 - 03.363 indicated that he never reviewed a document for which he verified his true

01:50 - 06.433 impact, alleging the improper conduct of a district attorney?

01:50 - 09.903 Yes or no?

01:50 - 12.772 I provided a letter to the court that I'm asking you

01:50 - 16.142 a question right now, Commonwealth, that the witnesses are under sequester.

01:50 - 18.545 So if you're ordering me to answer the question, I will answer your question.

01:50 - 23.717 But I I'm under a sequestration order from the judge, and that I respect that.

01:50 - 26.920 Are you disagreeing

01:50 - 29.923 that there's been over 130 concessions

01:50 - 34.995 from your office regarding similar matters, with similar

01:50 - 38.565 allegations of improper conduct on the former district attorney's office?

01:50 - 41.868 Yes or no? Yes. But can I be fair enough?

01:50 - 44.504 No, I I'm just trying to drive it down.

01:50 - 46.172 Share with me.

01:50 - 48.775 Do you believe

01:50 - 51.711 that there should be a process

01:50 - 55.782 for now, concessions regarding how a judge should,

01:50 - 58.918 in the First Judicial District should address

01:50 - 03.623 a concession by the defense attorney and the Commonwealth?

01:51 - 06.126 What would you recommend?

01:51 - 09.462 What I would recommend is exactly what Judge Bronson did in this case,

01:51 - 12.565 which is that he heard from the parties.

01:51 - 15.568 He permitted anarchist participation because

01:51 - 17.671 because in his view, it was warranted.

01:51 - 22.676 And they wish to participate that, you know, he he read hundreds

01:51 - 26.346 and hundreds and hundreds of pages of briefing from all parties.

01:51 - 29.616 And then he himself reviewed the record and determined

01:51 - 33.019 in his own independent review whether relief was warranted.

01:51 - 34.854 I think the way that Judge Bronson handled

01:51 - 36.890 this case is the model for how it should be

01:51 - 41.461 handled, handled, and in my experience, is the way that judges handle their cases.

01:51 - 43.963 But I did just want to say two things.

01:51 - 47.667 One, we made a mistake in Wharton, and I am not here to say anything

01:51 - 51.037 otherwise, and it's a mistake that I'm committed to not make again.

01:51 - 55.275 We have made sure that we are improving communication with victims,

01:51 - 59.112 and we are now writing responses in all of our cases

01:51 - 02.615 to ensure that the judge can see what our review was

01:52 - 05.752 and therefore that can assist them in their own independent review.

01:52 - 10.323 And as to the fact that we've agreed to release an approximately 120 cases.

01:52 - 14.060 This is in the context of two homicide detectives

01:52 - 17.497 having been convicted of crimes related to their work.

01:52 - 21.968 And so that has led to quite a few of cases being reversed.

01:52 - 25.505 But and as well as our open file discovery policy

01:52 - 28.408 that has brought some new bread, it came to light.

01:52 - 31.377 But just as a comparator, there is a detective,

01:52 - 35.615 Lewis Sakala in Brooklyn who also he was never convicted

01:52 - 36.683 of having committed crimes,

01:52 - 39.753 but he had found to have committed misconduct in his work.

01:52 - 43.857 RCU reviewed all of the cases that Detective Nadeau,

01:52 - 47.427 who was one of the detectives that has been convicted of crimes in Philadelphia

01:52 - 50.797 out of 106 cases that Nora worked

01:52 - 55.201 on, they agreed to either exonerate or plead a lesser

01:52 - 59.405 charges in 20 cases, which is a vacate rate of 21%.

01:52 - 02.909 Comparing that to Brooklyn with Detective Lewis

01:53 - 06.312 Gardella, there their rate was 20.6.

01:53 - 10.583 And so all I'm saying is, is that you can hear a number of 120 cases

01:53 - 12.152 and think that that sounds a lot,

01:53 - 16.322 but in the context of the large number of cases that we handle and in the context

01:53 - 20.126 of the serious misconduct that has been committed by detectives

01:53 - 23.663 who have been convicted of crimes, it's not as bad as it seems on paper.

01:53 - 25.532 Thank you for sharing that. Okay.

01:53 - 27.000 I think we understand.

01:53 - 31.304 And this was well argued and exhaustively briefed,

01:53 - 33.673 and we appreciate all of your input.

01:53 - 35.141 And we'll take it under advisement.

01:53 - 37.977 Our upcoming case

01:53 - 41.247 is Santiago versus Philly Trampoline Park.

01:53 - 45.785 The next case is really two cases in which the court will determine

01:53 - 50.824 whether one parent of a minor child can sign an arbitration provision

01:53 - 54.027 when they bring the child to recreational activity.

01:53 - 57.564 In this case, the activity was a trampoline park.

01:53 - 03.403 Arbitration has been seen in this court system as a solution to decreasing costs

01:54 - 08.608 of our litigation system, making it more predictable, less costly and quicker.

01:54 - 12.212 In the cases, though, that the court will hear,

01:54 - 16.416 the court will consider whether a parent can bind the other parent

01:54 - 19.619 and the minor child to an arbitration agreement.

01:54 - 23.556 In both cases, the young child was jumping on a trampoline

01:54 - 26.593 when another larger person was allowed to do

01:54 - 29.596 so as well, and the child was injured.

01:54 - 32.765 The trial court denied the trampoline parks petition

01:54 - 36.469 to compel arbitration, and the Superior Court affirmed.

01:54 - 41.007 The trampoline parks argue that Pennsylvania

01:54 - 44.577 law allows recreational businesses to limit their liability

01:54 - 49.382 by requiring patrons to sign waivers that include pre-injury

01:54 - 53.853 exculpatory provisions, meaning a limitation on the liability.

01:54 - 59.158 However, the exculpatory provisions are unenforceable when applied to minors.

01:54 - 05.131 They argue that the arbitration provision was not exculpatory, but rather

01:55 - 10.603 it's a venue provision, meaning where the case can be brought instead of court.

01:55 - 16.075 They are asking that the litigation be brought in an arbitration forum,

01:55 - 20.213 and therefore these agreements should be enforced.

01:55 - 24.284 They provide a limited degree of certainty about future costs

01:55 - 28.922 and fees of litigation, and without it, the trampoline parks argue

01:55 - 32.425 many businesses will not be able to operate in Pennsylvania

01:55 - 35.795 as the cost of business will be economically unfeasible.

01:55 - 40.300 They also explain parents are not forced to sign this agreement.

01:55 - 43.503 The children don't have to participate in these

01:55 - 47.040 non-essential recreational activities.

01:55 - 50.243 They also argue that one patient parent

01:55 - 54.347 is an agent of the other, and the signature binds both parents.

01:55 - 59.118 In addition, they bring up an unusual 14th Amendment U.S.

01:55 - 02.555 Supreme Court argument that the Constitution protects

01:56 - 06.125 the fundamental rights of parents to make decisions concerning

01:56 - 10.430 the care, custody, and control of their minor children, meaning that

01:56 - 14.767 a parent can bind a child to arbitration

01:56 - 17.770 when they go to that trampoline park.

01:56 - 20.540 The parents of the minors argue

01:56 - 23.476 this is not just an arbitration agreement.

01:56 - 27.547 There's also a release of substantive claims, in particular,

01:56 - 31.751 they point to the fact that there's a one year statute of limitations

01:56 - 34.954 rather than two years after reaching majority.

01:56 - 37.223 They also argue that one spouse

01:56 - 40.226 does not have the authority to bind the other spouse.

01:56 - 44.130 They also explain that in Pennsylvania, settlements

01:56 - 48.134 which involve the rights of minor children require court approval,

01:56 - 53.973 and if arbitration is taking the cases from the court system,

01:56 - 57.110 then the court system would not have oversight.

01:56 - 58.011 They also argue

01:56 - 02.281 this is a contract of adhesion, meaning that there's no negotiation.

01:57 - 06.619 The contracts are taken as is, and they are unenforceable

01:57 - 09.756 because the parents are required to sign them.

01:57 - 12.625 Appellants raise of 14th Amendment concerns

01:57 - 15.762 for the first time on appeal and should be disregarded.

01:57 - 19.832 This is an important case, as it will decide the extent of parents

01:57 - 24.037 ability to agree to such arbitration agreements for their minor children.

01:57 - 28.141 Madam Chief Justice,

01:57 - 29.642 may it please the court?

01:57 - 33.112 My name is Andy Kessler and I represent the sky zone appellants,

01:57 - 39.118 you are presented with a question that this court has never addressed,

01:57 - 45.191 which is whether a parent may, on behalf of a child, agree

01:57 - 48.661 to pursue litigation through arbitration

01:57 - 51.898 as opposed through the court system.

01:57 - 55.835 While it is unique in this Commonwealth that we don't have an answer,

01:57 - 58.071 there are a number of other courts

01:57 - 01.374 around this country who have looked at this issue, and most,

01:58 - 06.579 if not all of them, have found that a parent does have that authority.

01:58 - 09.615 It is vested with that privilege,

01:58 - 15.054 the notion of whether a parent can bind a minor

01:58 - 20.193 child to go to arbitration for prospective injuries

01:58 - 23.162 that may occur in the use of an amusement,

01:58 - 27.600 is founded on two principles, both of which this court

01:58 - 33.606 recognized in other areas, but which in this situation come together

01:58 - 36.642 to in our position, is compelled

01:58 - 39.645 a fact that a parent has this authority.

01:58 - 44.317 One is that there is a presumption in the law

01:58 - 48.221 that parents act in the best interests of their child,

01:58 - 51.491 and that they're the natural guardian of the child.

01:58 - 53.292 The problem is,

01:58 - 57.797 when we move on to the child's property interest, the child's a state.

01:58 - 00.800 I don't know that that same analysis applies.

01:59 - 04.170 Well, the parents make decisions

01:59 - 07.840 for their children in all kinds of affairs.

01:59 - 13.212 So but that's but that's not the same thing as forfeiting a right of action,

01:59 - 16.682 which doesn't ripen until they reach the age of maturity,

01:59 - 19.452 but they are not forfeiting a right of action.

01:59 - 23.990 They are merely choosing the forum for where that action is to be heard.

01:59 - 27.426 And I want to stop you there, because what they signed is a release.

01:59 - 29.829 It contains an arbitration provision,

01:59 - 32.832 and that's what ends up being the subject of this case.

01:59 - 35.768 But they do sign a release which,

01:59 - 38.771 you know, does what justice Work suggested.

01:59 - 42.341 But the question of whether the release is effective or whether it's contrary to

01:59 - 45.811 Pennsylvania law is an issue for the arbitrator to decide.

01:59 - 49.148 It's not a guarantee that that's going to occur.

01:59 - 52.351 That's an arbitrator's decision point to make.

01:59 - 57.023 Only if we say that the agreement is enforceable, which is why we're here

01:59 - 59.225 for only reason we're here.

01:59 - 59.859 Correct.

01:59 - 04.297 Because you want this to be the arbitrator ability to be decided by the arbitrator.

02:00 - 08.568 So the arbitrator can then enforce the immunity provision or not.

02:00 - 11.504 I mean, there's no guarantee that an arbitrator

02:00 - 14.840 is not going to see that and say that that constitutes a waiver of rights,

02:00 - 19.412 that it's a property interest that belongs to this child, and the child

02:00 - 22.682 is entitled to make that decision upon reaching the age of maturity.

02:00 - 27.520 The there's a distinction between natural guardian

02:00 - 32.091 and guardian of the estate that we tend to respect in our law.

02:00 - 35.027 And you would override that distinction, wouldn't you?

02:00 - 37.763 I don't think it's overriding the decision, frankly.

02:00 - 38.197 Justice.

02:00 - 41.767 Well, it's it's really a question of if you look at what rights

02:00 - 47.340 parents are vested in, what they have the authority to do under the law,

02:00 - 50.876 this is not something that is so out of that realm.

02:00 - 54.380 Parents are vested with the right to bring an action,

02:00 - 58.651 but they can't discontinue it without approval by the court.

02:00 - 59.385 That's correct.

02:00 - 01.988 And in any event, whichever way,

02:01 - 04.757 if this case were to go to arbitration and an arbitrator

02:01 - 07.893 makes a ruling that's going to get reviewed by the court as well.

02:01 - 11.130 Under the Pennsylvania rules, any verdict

02:01 - 14.166 settlement award has to be approved by an orphan's court judge.

02:01 - 19.238 Again, that's that's not the frame of analysis upon which we focus here.

02:01 - 20.973 The frame of analysis.

02:01 - 24.610 We have to focus on is whether you can force the child

02:01 - 27.647 into arbitration before the age of maturity.

02:01 - 31.417 And our position is if the parents are vested

02:01 - 35.254 with the authority to bring an action on behalf of a child, which they are.

02:01 - 37.290 If they are,

02:01 - 39.959 they don't have to get court permission first to file an action

02:01 - 41.627 on behalf of a child.

02:01 - 45.364 The parents are vested with the authority to go out and find legal representation.

02:01 - 47.133 The parents are vested with the authority

02:01 - 49.468 to enter into a fee agreement with an attorney.

02:01 - 52.772 The parents are involved with strategy during the course of any litigation,

02:01 - 56.676 perhaps determining what venue it's brought in, whether it's

02:01 - 59.845 Montgomery County, Chester County, Philadelphia County, depending upon where

02:02 - 02.648 everyone's interest lies,

02:02 - 06.585 the parents are involved intimately with ultimately settling the case.

02:02 - 08.721 The advice of counsel, court approval.

02:02 - 10.456 They cannot compromise the claim.

02:02 - 12.725 They cannot settle the claim or discontinue it.

02:02 - 17.163 And that's the only time when the court's approval comes into play.

02:02 - 19.231 All the other

02:02 - 23.235 decisions are left to a parent, with the presumption

02:02 - 27.139 that the parent is always going to act in the best interests of the child.

02:02 - 30.343 You're assuming, counsel, aren't you, that.

02:02 - 33.279 Chosen action

02:02 - 37.583 is the same, regardless whether we're talking about an arbitration

02:02 - 41.520 forum or a civil or a court of Common Pleas.

02:02 - 47.026 In other words, you're assuming, I think, aren't you, that this,

02:02 - 51.263 this stick in this bundle of property rights is the same stick?

02:02 - 54.600 If it's an arbitration or a civil proceeding.

02:02 - 58.337 It seems to me a quite an assumption you're made if I follow your,

02:02 - 02.241 Your Honor as question what I think what I'm assuming is that

02:03 - 06.779 the child's right to a cause of action, if a child is injured in the facility

02:03 - 10.449 and wants to file a suit, that right is preserved.

02:03 - 14.086 Whether the child goes to a courtroom or goes to an arbitrator,

02:03 - 15.921 it's the same, right?

02:03 - 19.191 They're having the same issues that are going to be the same right.

02:03 - 23.763 In Pennsylvania, the right to trial by jury is a constitutional right.

02:03 - 26.999 It is nowhere near the same right.

02:03 - 29.835 What the parents are giving up here is the child's

02:03 - 33.005 constitutional right to a trial by jury.

02:03 - 38.711 The only the only contracts that are enforceable, entered into by parents

02:03 - 41.714 on behalf of children are those for necessities,

02:03 - 45.217 food, shelter, clothing.

02:03 - 50.823 This is this is not a contract that we would consider to be enforceable

02:03 - 54.093 when entered into by a parent on behalf of a child

02:03 - 58.130 for that contract reason, and for the fact that we're talking

02:03 - 01.567 about giving up a constitutional right trial by jury.

02:04 - 05.004 And what you then have, Your Honor, is a

02:04 - 06.505 is there's a balance

02:04 - 10.042 that should be struck between the constitutional rights of the parents

02:04 - 14.013 to raise the child in their best interests as they see fit,

02:04 - 17.917 decided that, I mean, there are two different issues, really.

02:04 - 21.153 I mean, if you look at it in terms of what our law in Pennsylvania

02:04 - 26.792 is as to the enforceability of contracts entered into, into,

02:04 - 31.130 by parents on behalf of children, what you look to to see is

02:04 - 34.133 whether the contract involves a necessity

02:04 - 37.203 and those contracts are enforceable.

02:04 - 40.573 This just based on basic contract law.

02:04 - 42.241 These are the parents.

02:04 - 45.244 Children in third parties would not be enforceable

02:04 - 48.280 without ever getting into the issue of,

02:04 - 52.585 the sanctity of, the right to trial by jury

02:04 - 56.222 that's being given up here or attempted to be given up here by a parent.

02:04 - 59.792 And and those issues as well

02:04 - 02.995 are then this Commonwealth has a policy,

02:05 - 05.998 a public policy that favors arbitration.

02:05 - 10.669 There's a a federal preemption issue that exists with regards to the preemption

02:05 - 14.340 for arbitration agreements to be upheld

02:05 - 17.276 and the constitutional rights that the parents have.

02:05 - 21.514 You've got only if we jerry rig our state law

02:05 - 24.750 to result in non arbitrary bility.

02:05 - 28.254 This is not jerry rigging our law to avoid arbitration.

02:05 - 32.024 This is just pure and simple enforcement of our law

02:05 - 35.160 regarding contracts by parents on behalf of children

02:05 - 39.398 and the ability to give up a right to trial by jury,

02:05 - 43.269 by someone other than the person who holds it until he

02:05 - 46.906 or she reaches the age of 18, plus two years.

02:05 - 51.043 I mean, all of those things are part and parcel of

02:05 - 55.848 what the attempt here is regarding this arbitration agreement.

02:05 - 01.020 Well, I think what the attempt is here and I'm, it's I'm sitting here

02:06 - 05.024 arguing on behalf of the facility, but I'm literally arguing the parent's rights,

02:06 - 09.161 which is my seems opposing counsel's client.

02:06 - 14.533 But the fact is, is that if parents have the right to make all these decisions,

02:06 - 19.438 why isn't why is this one to be carved out as a property interest?

02:06 - 22.474 It's very different from the Troxel versus Grandville,

02:06 - 26.312 right, to the care of custody and control of one's children.

02:06 - 30.482 The reason our law provides that this is postpone

02:06 - 34.286 until the age of maturity is that the law recognizes a property

02:06 - 37.423 right, a a cause of action

02:06 - 40.826 that's going to vest after the child reaches the age of maturity,

02:06 - 43.829 and then the child will make a decision whether he or

02:06 - 47.600 she wants to consign himself to arbitration forum or not.

02:06 - 52.838 And while I will, I appreciate that

02:06 - 55.841 the the issue that is,

02:06 - 59.912 that is troubling to me is that the property.

02:06 - 00.212 Right.

02:07 - 03.382 Which is what Your Honor is talking about in terms of the cause of action,

02:07 - 05.484 still exists.

02:07 - 10.022 If the parents decide we would like to pursue this, we're not going to wait.

02:07 - 12.691 We're going to pursue this now,

02:07 - 16.795 the agreement the parent signs in order to gain access to the facility

02:07 - 22.401 for the child merely says you're going to pursue that in arbitration.

02:07 - 25.404 Give up your right to a trial by jury, right?

02:07 - 27.473 Correct.

02:07 - 29.274 Because it's a question, isn't it, the question

02:07 - 32.277 begging proposition that you're advancing here.

02:07 - 35.681 The question being begged is whether this is

02:07 - 39.151 the first question is, is this a valid agreement?

02:07 - 42.955 We're not talking about the policy of arbitration in Santiago,

02:07 - 45.524 I mean, in Concepcion, etc..

02:07 - 48.694 We're we're talking about whether there's a valid agreement here.

02:07 - 50.095 Are we?

02:07 - 53.932 Yes. And it's our position that there is a valid agreement there.

02:07 - 55.968 The child is essentially

02:07 - 00.105 a third party beneficiary of the agreement between the facility and the parent.

02:08 - 04.777 Well, a third party debtor fishery, if we accept your construction.

02:08 - 08.881 Well, if you're assuming that arbitration is somehow inferior to the courtroom,

02:08 - 10.482 I mean,

02:08 - 13.786 we have a policy in the state that says arbitration is favored

02:08 - 17.456 because it's it's quicker, there's fewer costs.

02:08 - 21.660 It's less formal, especially if a child is involved.

02:08 - 27.599 You're not we're not saying that, arbitrators are unfair or unqualified

02:08 - 28.834 to do this.

02:08 - 32.404 I mean, if we're if we're saying that in every situation,

02:08 - 35.574 arbitrators are not the equal of a courtroom.

02:08 - 36.408 We're not saying that.

02:08 - 39.778 We're saying this is a child and that the law doesn't

02:08 - 46.151 doesn't entitle forfeiture of his or her decisions until he or she reaches

02:08 - 48.554 the age of maturity, makes that decision for themselves.

02:08 - 50.255 It's a cause of action. It's not.

02:08 - 50.823 It's a right.

02:08 - 51.724 It's a right.

02:08 - 54.693 The cause of action is a property right.

02:08 - 57.096 And our position is it's not being taken

02:08 - 00.099 away, it's merely a choice of forum and know.

02:09 - 01.834 So can I ask, can I ask you a question? Sure.

02:09 - 04.970 So I think everybody I hope everybody agrees

02:09 - 08.440 that that put aside the arbitration clause for a minute.

02:09 - 11.977 A parent can bring an action

02:09 - 15.447 on behalf of a minor child for a tort committed on the minor child.

02:09 - 16.281 Correct.

02:09 - 19.284 Doesn't have to wait right until

02:09 - 21.820 major majority. Correct.

02:09 - 24.823 So let's say the parents here sued

02:09 - 27.893 in Common Pleas court, which I guess they did right.

02:09 - 31.630 Do the parents have the authority to ask for a bench trial?

02:09 - 35.200 I believe they do.

02:09 - 36.034 I believe they could.

02:09 - 38.036 Filing this is a non-jury case.

02:09 - 41.340 If this becomes if this becomes a right to jury

02:09 - 45.344 trial case, then arguably that proposition goes out the window.

02:09 - 47.980 The parents can never. Wavertree trial,

02:09 - 51.283 but that a parent, a parent with assistance of counsel,

02:09 - 53.619 obviously they make the determination.

02:09 - 57.523 Do we file as a jury or non jurors trying to help you?

02:09 - 58.357 I understand that

02:09 - 00.559 I'm thankful for that.

02:10 - 02.194 To be quite candid.

02:10 - 04.997 But that's the point. We we vest parents

02:10 - 08.000 with all these decisions throughout the litigation process.

02:10 - 10.702 There's and I can't recall the case.

02:10 - 13.939 But there is one situation in which the parent comes in

02:10 - 19.077 and they disavow the contract on behalf of the minor.

02:10 - 22.281 They disavow the contract, and the court says, well,

02:10 - 26.385 if you if a parent can disavow the contract on behalf of the minor,

02:10 - 29.388 how is it that the parent doesn't have the rights on the other side of it?

02:10 - 33.091 You know, it's like picking and choosing what the parental rights

02:10 - 35.994 are going to be when. And there's a fundamental premise.

02:10 - 38.931 Parents have overarching rights as a parent,

02:10 - 41.767 as long as it's not to the detriment of the child.

02:10 - 42.868 You're over.

02:10 - 48.574 Overarching issue here is a practical one, not a matter of our legal construction.

02:10 - 54.246 Because we have theme parks, we have sporting activities,

02:10 - 58.951 we have every variety, not just trampoline parks that,

02:10 - 03.021 this would impact because our opinions obviously impact the whole state.

02:11 - 06.558 And, it's it's really,

02:11 - 12.931 a difficult proposition for an owner of that kind

02:11 - 17.135 of an establishment to face, if children,

02:11 - 20.606 if the right of a child in this kind of a

02:11 - 24.710 an agreement cannot be handled by the parent, what do you do?

02:11 - 26.845 It's really a conundrum.

02:11 - 29.848 Well, that's what the amicus brief that was filed on our

02:11 - 33.585 behalf is essentially their point is that, you know, you have ski

02:11 - 38.323 resorts in the state, you have ice skating rinks, you have go kart a ton.

02:11 - 41.493 You go to a Phillies game, 15 blocks down.

02:11 - 42.995 There's something on the back of your ticket

02:11 - 44.663 with regards to what your rights are.

02:11 - 47.132 If you get hit by a baseball, it's somewhat different.

02:11 - 48.267 Issues there, aren't there?

02:11 - 50.135 The different precedents as well.

02:11 - 52.704 There are. This may have been a different case.

02:11 - 57.843 Like in my view, if your arbitration agreement wasn't so very,

02:12 - 02.014 difficult.

02:12 - 05.384 I mean, it cuts the minor statute of limitations to one year,

02:12 - 09.955 and it basically acts as a complete release of all claims.

02:12 - 14.459 If the arbitrator falls your arbitration clause to its letter.

02:12 - 18.897 It's not merely saying I'm choosing for my trial

02:12 - 23.402 arbitration, it's basically saying I'm choosing arbitration and I choose to lose.

02:12 - 26.171 Well,

02:12 - 28.707 I don't I don't think I would go that far.

02:12 - 32.077 Your Honor, I think what it says is I choose arbitration.

02:12 - 36.415 I have to make that choice in a timely manner, which is in within one year.

02:12 - 40.352 And yes, there is a waiver provision within the document. And,

02:12 - 45.590 the arbitrator is going to have to decide based upon the pleadings whether that's

02:12 - 49.161 going to be upheld or not or whether that's inconsistent with Pennsylvania law.

02:12 - 50.796 Is it Severable?

02:12 - 55.067 Ami I mean, I didn't, you know, I confess error.

02:12 - 57.035 I didn't

02:12 - 59.838 I wasn't focusing on all the other things that are set forth

02:12 - 01.873 in the arbitration agreement I was focusing.

02:13 - 04.076 I thought this case was simply a form selection case.

02:13 - 06.345 Is your is

02:13 - 11.583 your client's intention to seek enforcement of all those other add

02:13 - 15.721 on provisions to the arbitration clause other than the simple form selection?

02:13 - 20.859 So what I can say is this, because I, I was I'm not an employee of Sky zone

02:13 - 23.862 and I don't know what their corporate policies intend to go forward with,

02:13 - 26.865 but that the the document,

02:13 - 31.636 the participation agreement is an evolving document for Sky zone.

02:13 - 35.474 There are versions that have been modified over the years based

02:13 - 39.878 upon issues that have arisen with it and what what my feeling would be.

02:13 - 43.615 And frankly, my legal advice to them is if we were fortunate enough

02:13 - 47.586 to get a ruling from this court that says the arbitration provision,

02:13 - 51.123 is enforceable, that they

02:13 - 55.160 they remove those concepts of waiver and the statute.

02:13 - 00.632 I can't reason why are you saying that we're that we are incompetent to say,

02:14 - 05.937 what portions of the arbitration agreement

02:14 - 08.707 a parent can consent to,

02:14 - 11.643 but what portions of the arbitration agreement they can't.

02:14 - 13.412 It's not an arbitration agreement. Right.

02:14 - 17.382 It's a it's a participation right, a robust agreement with an arbitration.

02:14 - 18.984 Well, I'm focusing on the arbitration clause.

02:14 - 21.987 So because Superior Court called it an arbitration agreement.

02:14 - 24.990 But I don't think it is. Well I okay.

02:14 - 30.062 I'm not I'm not saying that the this court is incompetent to do that.

02:14 - 33.098 I was saying that in your in your question,

02:14 - 36.101 you limited it to just the arbitration provision.

02:14 - 40.072 My feeling is this court is in power to do whatever wishes to do,

02:14 - 42.707 and that's what's so that's what's in front of us. Correct.

02:14 - 46.044 The arbitration provision of the participation agreement.

02:14 - 48.413 And, you know, I've signed these, by the way.

02:14 - 52.017 I mean, I think every every parent in this room is probably saying these things.

02:14 - 54.519 My question is, could we say,

02:14 - 00.358 the forum selection of arbitration is,

02:15 - 04.262 something that a parent can consent to for a child,

02:15 - 08.600 but other limitation things in there that relate

02:15 - 12.104 to the substance of that proceeding and how that proceeding will go

02:15 - 15.107 and what what defenses there are, what waivers are

02:15 - 17.843 that stuff is a no go.

02:15 - 21.379 I believe that that type of clarity is exactly the reason

02:15 - 26.318 this issue needs to be decided in in arguing this in the trial court

02:15 - 30.489 level, in in the Superior Court, the fact that this was a case

02:15 - 34.593 of first impression was kind of odd to me, given the prevalence

02:15 - 38.096 of these types of agreements throughout industries in the state.

02:15 - 41.433 I think that if this court is going to make a pronouncement

02:15 - 45.303 about the arbitration provision and whether or not that can be enforced,

02:15 - 48.874 I think it is equally available to this court to say

02:15 - 52.277 we are content, we are going to allow this type of provision.

02:15 - 55.280 However, it may not include the following.

02:15 - 59.584 Those would be those impact negatively impact the property rights of,

02:15 - 03.221 you know, a participant in this type of activity, whether it's

02:16 - 06.992 ice skating or skiing or going to a trampoline place.

02:16 - 09.995 And we can, in your view and your client's view,

02:16 - 13.965 blue line, the arbitration clause that way.

02:16 - 20.739 I think that the issue here is that the arbitration provision should be enforced.

02:16 - 25.911 If the only way to enforce that is to limit the other scope

02:16 - 30.982 or mechanisms within that provision, then I say that that has to be done. Yes.

02:16 - 35.086 And in that approach, the sky would not be falling.

02:16 - 38.089 In your view, I don't think the sky is falling one way

02:16 - 41.092 or the other could make the sky, I'm sure, I'm sure,

02:16 - 45.897 but but my point is, I think that the key issue here is simply

02:16 - 52.170 can a parent agree to this type of forum for these types of disputes

02:16 - 58.476 and, you know, courts in California, New York, Florida, Ohio.

02:16 - 00.946 There was a recent decision by a federal court in Illinois

02:17 - 05.116 that all found the same thing, which is it's inherent

02:17 - 08.987 in the parent's constitutional rights to raise their children,

02:17 - 12.958 to be able to pick the forum in which the case is heard.

02:17 - 16.861 The only problem, and this all makes so much sense when you say it.

02:17 - 22.200 The only problem is you're moving over to the other lane.

02:17 - 23.602 So effortlessly.

02:17 - 28.306 From guardian of the the natural child, natural guardian,

02:17 - 31.610 the child to guardian of the child's property.

02:17 - 34.713 It's, you know, there is a difference. Okay?

02:17 - 35.880 If you want to open up

02:17 - 40.018 a bank account for a child, there has to be an adult present, right?

02:17 - 44.589 You can't just take the child into the bank and say, I had have had it right.

02:17 - 47.592 Similarly, if a child is given money

02:17 - 52.530 by a relative or a friend who who takes control of that property,

02:17 - 57.002 the parents do because the presumption is the parents are going to act

02:17 - 58.470 in the child's best interests.

02:17 - 00.071 Are there situations in this,

02:18 - 02.274 in this world, unfortunately, where the parents don't?

02:18 - 03.241 Absolutely.

02:18 - 06.845 But you can't take the exceptions and somehow vis a vis rate

02:18 - 10.048 the general concept, which is that parents,

02:18 - 13.051 we watch out for our kids and try to make the right decisions.

02:18 - 16.321 And if a parent reads this agreement and says, you know what,

02:18 - 19.891 I'm not going to let my son or daughter jump on a trampoline

02:18 - 21.926 because I don't think this makes sense to me.

02:18 - 22.961 They're free to do so,

02:18 - 26.998 and that's all there is to it.

02:18 - 30.468 But to come in and say, well, I didn't have the right to do it.

02:18 - 35.407 I think that's the distinction that that Sky zone is trying to draw here.

02:18 - 39.644 Parents have the right to raise their children as they see fit.

02:18 - 43.114 There are guardrails in place, just like the courts

02:18 - 46.518 have a procedure in place so that if there's a settlement

02:18 - 50.722 comes before a judge and they say, you know what, that's fair.

02:18 - 53.425 Or they say to an attorney, hey, your fees are too high,

02:18 - 55.627 or how come these costs are out the window?

02:18 - 58.630 There are mechanisms to ensure the fairness of it,

02:18 - 02.801 and they only come into play in the legal situation at the end of the case.

02:19 - 07.906 They don't make any issue in the beginning about how you retain your attorney or

02:19 - 12.143 what court if please, you file a lawsuit or who may include this defendant.

02:19 - 15.146 They don't get involved in settlement discussions.

02:19 - 18.850 It's only at the end where they say, okay, we're going to make sure

02:19 - 21.086 this was fundamentally fair on behalf of the child

02:19 - 23.488 to make sure that there isn't any overreaching

02:19 - 26.458 on behalf of the parent or, God forbid, an attorney.

02:19 - 29.094 So that's our position

02:19 - 32.097 that there are guardrails in place here.

02:19 - 34.499 And if

02:19 - 37.635 if there's only, as I understand it, there's only one other state

02:19 - 41.673 which says as clear as a bell that you can't do it.

02:19 - 45.710 And there are at least a dozen others.

02:19 - 48.713 I don't believe that the

02:19 - 53.451 explanations and the justifications that have been provided by those courts

02:19 - 55.487 for why they found this way

02:19 - 58.490 are any different than they would be in this Commonwealth.

02:19 - 59.924 You make a strong argument.

02:19 - 02.594 Are there other questions for Mr. Kessler?

02:20 - 02.994 Thank you.

02:20 - 04.129 Let's hear from Blake.

02:20 - 06.064 Argue that Justice Monday does. Sorry.

02:20 - 07.198 I'm sorry.

02:20 - 10.769 Doesn't your position run afoul of the

02:20 - 15.440 the tenet of law, the proposition, which is that a minor's claim

02:20 - 19.744 includes claims for a minor's pain and suffering and for losses

02:20 - 23.114 after minority, which Pennsylvania law prohibits

02:20 - 26.151 the minor from personally bringing before reaching majority.

02:20 - 31.523 I'm. I'm not sure that I can

02:20 - 34.692 I'm not sure I understand the distinction being made there.

02:20 - 37.562 The fact is, is that when you file a lawsuit,

02:20 - 40.532 whether it's on your behalf or behalf of a minor,

02:20 - 45.870 your recovery theoretically is for all your issues that have gone on

02:20 - 50.008 in the past and a consideration of what you're going to incur in the future.

02:20 - 54.446 So, you know, my future pain and suffering is part of any verdict.

02:20 - 59.818 And if if a settlement does not take that into account, an orphans court judge

02:20 - 03.721 would then say, I can't sign off on this, it doesn't make sense to me.

02:21 - 07.158 So I think that the rules of civil procedure afford

02:21 - 10.161 a guideline for assisting the court with that.

02:21 - 13.832 Counsel, are you submitting your first issue on the papers?

02:21 - 17.268 You didn't advance your first issue at all?

02:21 - 18.203 My first issue.

02:21 - 23.141 Oh, I will I are

02:21 - 25.343 you abandoning it submitting it on the paper?

02:21 - 29.514 No, I if if the court would would like I just want to I'll address that

02:21 - 32.584 summarily.

02:21 - 33.384 I think that

02:21 - 36.855 this issue about having both parents have to sign

02:21 - 40.825 the consent form is a false narrative.

02:21 - 44.162 I think it is a convenient way

02:21 - 48.032 to argue that the agreement doesn't bind

02:21 - 51.703 everybody because, well, one parent isn't there.

02:21 - 55.340 But as I understand it, in this commonwealth,

02:21 - 01.079 both parents have equal responsibilities for the upbringing of the child.

02:22 - 06.150 That's that's the appropriate reverting to the issue of the child's upbringing

02:22 - 10.455 and provision of family law has nothing to do with this agency question.

02:22 - 14.058 I mean, there seems to be a presumption that the one spouse

02:22 - 17.795 is the chattel of the other, and that's a concept

02:22 - 20.031 completely foreign to agency law.

02:22 - 21.799 Except I think that that question

02:22 - 25.470 is sort of dependent upon the other issue that we've talked about.

02:22 - 27.205 So if a parent

02:22 - 29.874 can enter into an agreement

02:22 - 32.877 on behalf of the child to pursue arbitration,

02:22 - 38.216 one parent can enroll a child for school, public school.

02:22 - 41.219 In this commonwealth, you don't need both parents to sign.

02:22 - 46.591 One parent can sign a consent form so the surgery can be provided to a

02:22 - 47.392 to a child.

02:22 - 50.395 I think you're I think you're mixing the two issues together.

02:22 - 53.831 This issue that that you're addressing now is I understand

02:22 - 58.803 and Justice Wecht is asking you about relates to the ability of one parent

02:22 - 02.340 to bind another parent for the parent's claims

02:23 - 05.310 as a result of the injury, not for the child.

02:23 - 10.114 And the parent's claims in this instance are always to revert of the child's.

02:23 - 13.318 So if the child is bound by the arbitration agreement

02:23 - 17.288 that one parent can agree to, then those claims

02:23 - 20.825 should be, for lack of a better phrase, following that decision.

02:23 - 23.061 But in this case, Mr.

02:23 - 27.432 Santiago was not there and Mrs.

02:23 - 29.400 Schultz was not there.

02:23 - 34.439 Under what theory of agency law would you maintain that

02:23 - 39.811 those absent adults are somehow bound by something they may have had no idea about?

02:23 - 43.081 In the facts of the of

02:23 - 47.251 these two cases, both parents are not present.

02:23 - 50.254 One parent has testified that,

02:23 - 53.558 I believe it's a she was aware that the father

02:23 - 56.561 had taken the child to the,

02:23 - 59.597 sky zone six months earlier,

02:23 - 02.467 and this was the second time in six months the child came back.

02:24 - 05.470 So you only sign the participation agreement once?

02:24 - 08.206 The issue for the agency.

02:24 - 12.143 Part of it, Your Honor, is that how can any business

02:24 - 16.080 in this Commonwealth

02:24 - 19.751 go into the type of inquiry necessary

02:24 - 23.888 to make that determination in the course of its business?

02:24 - 26.591 Well, I you know, I'm not here to manage business.

02:24 - 30.228 I'm here to decide a legal issue along with six colleagues and,

02:24 - 35.633 how a business insures or runs its business is not my business.

02:24 - 36.234 Right.

02:24 - 40.672 So, whether they want to tell the one parent,

02:24 - 46.010 bring the other parent, right, or, or whatever, it's it's up to them.

02:24 - 48.813 But, you know, we don't have the law of coverture,

02:24 - 53.151 you know, like the one spouse and not owned by the other spouse.

02:24 - 55.787 So I just don't see your agency theory here.

02:24 - 57.789 And and I think that the agency theory

02:24 - 01.292 does not fit easily into any of the categories that exist.

02:25 - 05.963 I, I agree with you that it's a difficult issue to deal with

02:25 - 10.001 because you're what you're basically saying is any time one parent

02:25 - 13.204 is going to make a decision for a child that's not binding,

02:25 - 16.574 you'd have to have both parents make all those decisions.

02:25 - 18.843 Because I don't I don't see the issue that way.

02:25 - 22.480 I think the issue is, you know, I think you could win on one and lose

02:25 - 24.315 on the other. I think you could win on the.

02:25 - 28.052 Can a single parent bind a child to a form selection clause?

02:25 - 30.021 I think I think you could win on that.

02:25 - 32.223 This is a different question.

02:25 - 35.326 Can one parent bind another parent or a form selection clause?

02:25 - 40.031 That's to me a separate question that could be reach different conclusion

02:25 - 43.401 and if you don't bind the second parent who's not present,

02:25 - 46.504 inevitably it's that parent

02:25 - 49.507 who turns into the,

02:25 - 52.043 the Guardian for the purposes of the lawsuit.

02:25 - 54.912 No, that doesn't mean that that parent can then turn around and bring an action

02:25 - 57.014 on behalf of the child at a common pleas court.

02:25 - 00.718 That just means that whatever derivative claim they have for that,

02:26 - 04.422 that is personal to that can be brought in the Common Pleas Court.

02:26 - 05.923 Correct. And that's my point.

02:26 - 09.761 In other words, the the spouse that's not present invariably turns

02:26 - 11.462 into the named plaintiff

02:26 - 15.166 because they have a claim for the medical expenses that they want to pursue.

02:26 - 19.704 And then you are caught in a situation where the where the primary claim,

02:26 - 23.241 which is the child's claim, which of which is now bound to arbitration,

02:26 - 26.644 has a, a train, a train car behind it.

02:26 - 29.714 That's a derivative claim for medical expenses.

02:26 - 31.015 And you're going to

02:26 - 33.885 you're then going to say, well, the arbitrator can't decide that now.

02:26 - 37.789 You're going to have then two separate actions in two separate jurisdictions.

02:26 - 39.991 And that is that's problem counsel.

02:26 - 42.994 Is that possible under Pennsylvania law?

02:26 - 46.831 I don't think we can split causes of action that way in Pennsylvania.

02:26 - 49.600 So if you lose on the first issue,

02:26 - 54.472 the parents don't have a claim to arbitrate their claim

02:26 - 58.843 for their derivative claim will, by the event of the child's claim,

02:26 - 00.678 correct?

02:27 - 01.279 Correct.

02:27 - 05.650 So that I think that's sort of the end of I mean, if we decide the first,

02:27 - 10.054 first question against you, then the second question becomes moot.

02:27 - 10.621 Right?

02:27 - 13.591 And I think the corollary is, if you decide the first question

02:27 - 17.028 in my client's favor, the derivative claim has to come along.

02:27 - 19.430 Probably true. Yeah.

02:27 - 20.631 Probably true.

02:27 - 23.267 Any other questions for Mr. Kessler?

02:27 - 24.602 All right. Thank you very much.

02:27 - 26.103 Thank you for for Mr.

02:27 - 29.106 Smith.

02:27 - 32.577 Madam Chief

02:27 - 35.813 Justice and, other justices, may it please the court?

02:27 - 36.647 I'm Jeffrey Schmidt.

02:27 - 38.850 I'm here on behalf of appellate.

02:27 - 41.552 Sandra Schultz, I would be remiss if I did not introduce Mr.

02:27 - 43.054 Foley, who wrote the amicus brief.

02:27 - 46.057 Will not be, presenting here.

02:27 - 49.994 So most of my brief and most of my arguments were gone

02:27 - 51.362 through already by this court.

02:27 - 55.399 But I'm going to start off with addressing many of the points which Mr.

02:27 - 57.602 Kessler has made, which have been addressed here.

02:27 - 01.072 The first one is the action itself, where we talk about where the parent may

02:28 - 03.674 bring the claim or disavow the contract,

02:28 - 06.677 but that doesn't really tell the entire part of that story.

02:28 - 09.547 What a parent may do is bring the claim within

02:28 - 13.150 to within, within the child aid

02:28 - 17.221 before they reach the age of majority or they may choose not to do so at all.

02:28 - 20.958 Then the claim accrues to the minor, and they have two years as an adult

02:28 - 24.195 to do it during that period before they've reached the age of majority,

02:28 - 27.331 it's under the court supervision at all times.

02:28 - 29.634 It is not the parent doing it by themselves.

02:28 - 33.604 The moment they decide to invoke court jurisdiction, they're not

02:28 - 36.641 no longer controlling the property, which is the point that we've

02:28 - 39.977 that's been discussed, that it's a property right here.

02:28 - 40.945 Council counsel,

02:28 - 44.682 if you just expand on that a little, when a parent brings a court action,

02:28 - 49.720 when their child is still a minor, they proceed as guardian ad litem.

02:28 - 51.322 Is that correct? That is correct.

02:28 - 51.656 Okay.

02:28 - 56.060 And that is, just contrary to any concept

02:28 - 59.063 that's attendant to bringing claim in arbitration.

02:28 - 01.299 Yeah, that is correct.

02:29 - 02.033 That is correct.

02:29 - 03.901 And can you expand upon that?

02:29 - 05.870 How is that correct that.

02:29 - 08.339 I'm sorry, I don't understand exactly.

02:29 - 10.942 That's why I don't I don't I don't understand it either because how's that.

02:29 - 15.212 How's how how is that correct that somehow arbitration is,

02:29 - 18.249 that a

02:29 - 21.719 that a parent is acting in the best interest of a child in common

02:29 - 24.822 Pleas court, but not acting in the best interest of a child in arbitration?

02:29 - 27.124 Well, there are safeguards for that because then there are judges

02:29 - 29.860 who review it at different points, just like cases that I've had.

02:29 - 31.562 Yes, it can move forward to settlement.

02:29 - 33.230 And then the judge decides what you're saying.

02:29 - 35.599 That's impossible to layer on top of arbitration

02:29 - 38.803 that that if you go into arbitration and you settle it, that,

02:29 - 42.640 that going to the orphan's court for approval of that

02:29 - 46.010 settlement can't happen just because you chose an arbitration forum.

02:29 - 49.180 I think it takes it out of the court's ability

02:29 - 52.350 to monitor the proceedings as they go, the super bit more than the court.

02:29 - 56.187 Is it the point that the child gets to make the decision

02:29 - 59.790 and that upon reaching the age of maturity, it's

02:29 - 03.227 not that arbitration is inherently evil or anything to that effect?

02:30 - 07.665 Isn't the point that that that it's divesting this future

02:30 - 13.037 adult of the power to make that decision about this, right, that he or she has?

02:30 - 14.372 Isn't that the point?

02:30 - 16.707 That is the exact point. And it's divesting them of

02:30 - 19.377 what's a constitutional right. But doesn't the parent

02:30 - 23.681 are you telling me that when a parent chooses to initiate a trial,

02:30 - 26.717 a Common Pleas court action in,

02:30 - 30.287 Dauphin County

02:30 - 33.224 instead of in Philadelphia County,

02:30 - 36.527 that they need court approval to choose the forum.

02:30 - 41.298 They don't need court approval to choose which which judge to bring it under,

02:30 - 44.502 but under the supervision and control that a trial court does

02:30 - 46.003 have over the proceedings.

02:30 - 49.540 A trial court has the ability to make an independent determination as to

02:30 - 52.743 whether the case should be transferred or or whether

02:30 - 56.747 or whether or not the parent is the appropriate guardian ad litem.

02:30 - 00.317 That is exactly what the a parent calling themselves

02:31 - 03.421 the, guardian ad litem isn't the end of the day.

02:31 - 08.325 Someone can challenge that parent's suitability that's in court in

02:31 - 11.495 I believe I know it's happened whether they have the right to bring it.

02:31 - 14.498 And I've also seen a court make a decision whether the

02:31 - 16.967 it was the appropriate time for a claim to be brought

02:31 - 20.037 based on the permanency of injuries and the level of healing I found.

02:31 - 24.041 So you indicated that the child has a constitutional right, one to do what?

02:31 - 25.743 In what constitutional right?

02:31 - 27.812 They have the constitutional right to a jury.

02:31 - 28.913 They have the constitutional.

02:31 - 30.481 And that's that's a property claim

02:31 - 34.752 that they have the constitutional right for their case to be heard by a jury.

02:31 - 37.021 So the parent can't the

02:31 - 40.024 parent can't waive a jury trial.

02:31 - 42.593 It's not a matter of waive a jury trial.

02:31 - 44.762 It's a matter of they can file as a bench trial,

02:31 - 47.965 which is what I believe that you, discussed earlier.

02:31 - 52.103 But then that will come before a judge who will make a determination

02:31 - 55.773 whether that jury trial should be waived or may be waived or not.

02:31 - 57.241 How does that come before the judge?

02:31 - 58.509 I'm speaking practically.

02:31 - 02.313 You're telling me that that you file an action on behalf of the child,

02:32 - 06.150 the parents and the parents waived, waive a jury trial.

02:32 - 07.051 They don't want a jury trial.

02:32 - 09.386 They want a bench trial.

02:32 - 12.056 You're telling me when they when they put on their pleading

02:32 - 15.092 that they want a bench trial that's somewhere down the road?

02:32 - 19.296 A judge to respond is going to say, okay, now we need to have a hearing on

02:32 - 21.031 whether on whether the child's best

02:32 - 23.200 interests are secured by waiving of a jury trial.

02:32 - 25.169 You're saying that actually happens there?

02:32 - 26.203 It can happen. There are.

02:32 - 27.538 No, I'm not asking you if it can.

02:32 - 31.408 We're talking about safeguards that appear in the Common Pleas Court

02:32 - 33.210 that don't appear in arbitration.

02:32 - 35.446 So either the safeguards exist or they don't exist.

02:32 - 38.582 Opining whether they might exist doesn't mean they exist.

02:32 - 41.118 I apologize if I said they might exist. They do exist.

02:32 - 44.955 We have pretrial conferences before judges who have, in my experience,

02:32 - 48.692 looked at all parts of the case, whether the correct medical experts are in play.

02:32 - 52.696 I've never filed a minors action looking for a bench trial only.

02:32 - 56.400 I've only wanted a jury, so I've never faced that particular question.

02:32 - 59.336 But along with all of the other elements of a case

02:32 - 02.740 that would be looked at by a judge, and if it's not appropriate, that can be

02:33 - 05.809 changed in Philadelphia, count as a pretty strained argument.

02:33 - 09.013 Wouldn't it be, a better response to Justice

02:33 - 13.517 Robson's insightful question to say the dividing line

02:33 - 18.689 is not between a bench trial and a jury trial, but between the decision

02:33 - 21.592 pre maturity

02:33 - 24.595 to consign oneself to the arbitration?

02:33 - 25.496 Thank you.

02:33 - 27.398 Justice work in a civil proceeding.

02:33 - 30.034 I'm just responding to the fact that you talked about the right to a bench trial.

02:33 - 32.937 And you're saying the bench trial right or the right to a jury trial,

02:33 - 33.637 and you're saying

02:33 - 36.640 you're saying that the jury trial, right, is the property interest here.

02:33 - 40.311 And if it is a property interest following the rationale that you have invoked,

02:33 - 43.380 it can't be waived by a parent.

02:33 - 46.517 I don't believe it can be waived by a parent without judicial oversight.

02:33 - 50.454 But as Justice Wecht said, that it's still the court oversight.

02:33 - 52.056 Those are the rules of civil procedure.

02:33 - 55.092 Our legislature has promulgated, where all of that has to be

02:33 - 56.460 looked at by the court.

02:33 - 58.696 There's oversight, there's control. We lose all of that.

02:33 - 59.930 If we go to arbitration

02:33 - 03.701 and have it outside of the court system, not to be heard by judges, I do.

02:34 - 07.404 I would be remiss if I didn't point out that your client signed a waiver

02:34 - 10.674 that you're now claiming is unconstitutional,

02:34 - 14.211 so their child could participate in an activity that was inherently dangerous.

02:34 - 16.680 Well, with all due respect, my client did not sign a waiver.

02:34 - 18.616 Alessandra Schultz signed a waiver.

02:34 - 22.052 Her, estranged husband, who she was separated from,

02:34 - 25.656 came in from his military leave after he was forbidden

02:34 - 30.060 from taking the children there, decided this would be a fun thing to play.

02:34 - 30.327 Cool.

02:34 - 33.297 Dad took his kids to to a trampoline park.

02:34 - 34.531 He signed the waiver.

02:34 - 38.535 They've been separated since then, so she absolutely did not sign a waiver.

02:34 - 40.804 She would not have and she would not have taken that.

02:34 - 42.606 Did he have joint legal custody or.

02:34 - 44.675 No, because I didn't see that in the record.

02:34 - 46.944 There was not a custody order in place at that point.

02:34 - 49.813 What he had done is he had enlisted and he left the area.

02:34 - 50.681 He was in Virginia.

02:34 - 53.083 He came up. He does so without a legal custody.

02:34 - 53.851 What are you saying?

02:34 - 57.988 Just because parents separate that they, without a divorce or without,

02:34 - 59.923 family court

02:34 - 02.926 involvement, that one parent has more rights than the other?

02:35 - 04.762 I'm not saying that what you just said.

02:35 - 07.731 I'm trying to have to clean it up for me because I'm not buying it.

02:35 - 08.365 Well, justice.

02:35 - 09.967 I was specifically responding

02:35 - 12.803 to the question whether my client has signed that,

02:35 - 17.041 and my point was simply that, no, she had not sign that I didn't read this.

02:35 - 23.213 I mean, it would be an awfully thin reed to stand on, to pass or decide

02:35 - 28.352 this case based on degrees of estrangement between parents.

02:35 - 28.652 Right?

02:35 - 34.158 I mean, the issue isn't are these folks estranged, separated,

02:35 - 37.461 you know, living together episodically or whatever

02:35 - 40.230 it the issue,

02:35 - 43.801 the legal issue isn't determined by whether they're an intact

02:35 - 46.070 marriage or not, is it? No, it is not.

02:35 - 50.574 I was and also the issue isn't the constitutional right to a jury trial.

02:35 - 54.378 The issue is, is this arbitration agreement binding?

02:35 - 55.412 Isn't that the issue?

02:35 - 56.547 That is the issue.

02:35 - 59.550 So that comes before the question.

02:35 - 03.854 The validity of the arbitration agreement comes before everything else, doesn't it?

02:36 - 05.089 It does.

02:36 - 08.459 And there's a question of whether whether an arbitration agreement like this

02:36 - 10.394 can even be entered into by a parent.

02:36 - 15.065 One of the the common things that

02:36 - 18.802 that we deal with in practice is that the guardianship of the

02:36 - 22.873 as a parent and the guardianship of their property are different.

02:36 - 25.976 If we write wills, those are different rights.

02:36 - 29.346 If we bring lawsuits, those are different rights.

02:36 - 32.583 That's the parent's patriarchy by the court, as opposed to the ability

02:36 - 36.086 of a parent to just bring the the appeal.

02:36 - 37.621 And it's a Mickey are afraid.

02:36 - 40.924 I think that these bounce houses and sky zones

02:36 - 44.027 are all going to move to new Jersey, in Ohio and West Virginia.

02:36 - 45.996 How do you respond to that in Maryland?

02:36 - 48.999 New York, in other words, the sky will fall.

02:36 - 50.501 Well, that's not happening.

02:36 - 51.769 They're not leaving here.

02:36 - 55.072 But they they draw the line where they say,

02:36 - 58.275 we're not looking for exaltation, we're only looking for the forum.

02:36 - 01.111 So if they're not looking for exclamation,

02:37 - 04.114 are they really are they looking to shorten the statute of limitations?

02:37 - 07.618 Are they looking to get out of cases or they just want to have it moved elsewhere?

02:37 - 10.020 Because if they're looking to move the forum,

02:37 - 12.189 then they're still on the hook for negligence.

02:37 - 15.959 You can't exculpate that and they don't have to operate their premises

02:37 - 18.962 any differently if they're going to be on the hook for negligence.

02:37 - 20.097 So what would you consider

02:37 - 23.200 the alternative for businesses who want to limit their liability?

02:37 - 26.437 If children are not covered by the arbitration agreement,

02:37 - 28.839 they don't have that ability. That's the cost of doing business.

02:37 - 31.275 If you want to have minors here, they can.

02:37 - 35.212 They're property rights cannot be waived in respect to this.

02:37 - 37.781 Schools can't do it when they go on school trips.

02:37 - 40.451 Jump houses can't do it.

02:37 - 41.552 They have that right.

02:37 - 42.553 That's the risk of

02:37 - 46.457 having entertainment for minors, which it's interesting that a juvenile

02:37 - 50.327 doesn't have a right to a jury trial and say a delinquency proceeding where he,

02:37 - 53.797 he or she could be convicted of a felony and removed,

02:37 - 58.669 but a child who has a property interest for a bouncy house

02:37 - 01.972 that survives until the child is 18 seems somewhat

02:38 - 07.144 conflicting, doesn't it, with regard to putting money above a child's liberty.

02:38 - 10.714 I can't say that because that that particular instance

02:38 - 13.951 has been specifically contemplated by the legislature.

02:38 - 17.888 And I believe this court well, in terms of contracts and property rights,

02:38 - 18.489 it has not.

02:38 - 21.458 Then we could derive it from what is it? McKeever?

02:38 - 26.129 The 1971 case which the Supreme Court said that, delinquent

02:38 - 30.000 delinquency proceedings are not criminal, they're rehabilitative,

02:38 - 33.537 but therefore precludes a child from having a jury trial.

02:38 - 38.642 But, yeah, somebody who might, you know, injure an arm or leg in a bouncy house

02:38 - 42.045 that, that that right is preserved.

02:38 - 44.948 He or she's 18. I just find it interesting.

02:38 - 46.984 Good subject for a law review article.

02:38 - 50.587 The right is actually preserved.

02:38 - 51.321 What's up?

02:38 - 54.391 I, I apologize, the right is actually preserved until they're 20.

02:38 - 57.261 Okay. Not working.

02:38 - 00.264 Do you have the address of the Journal of Trampoline Law?

02:39 - 03.700 All right.

02:39 - 06.603 Do you have anything else for us, Mr. Schmidt?

02:39 - 09.606 Or is that I?

02:39 - 12.843 We got it, I do not.

02:39 - 15.846 That's great. Thank you. Great.

02:39 - 17.247 Thank you all.

02:39 - 20.951 We're going to hear from, Attorney Shikata,

02:39 - 24.988 whose name I may have mispronounced.

02:39 - 26.823 Madam Chief

02:39 - 29.927 justice, Your Honor, my name is Rino Sakata.

02:39 - 32.930 I represent the Santiago family in this matter.

02:39 - 36.099 I promise I will not,

02:39 - 39.102 cover territory that's been covered,

02:39 - 42.472 extensively so far by, other counsel.

02:39 - 46.710 One thing that concerns me,

02:39 - 50.213 about arguments that have been made by Mr.

02:39 - 52.015 Kessler.

02:39 - 55.085 First, before the trial court, then before the Superior court,

02:39 - 58.689 then in his brief for this honorable court.

02:39 - 03.994 And then again today is the extent to which he agrees

02:40 - 09.833 that this participation agreement is more than just an arbitration agreement.

02:40 - 14.271 Well, it is more than just an arbitrary.

02:40 - 17.708 It is it's an agreement which contains an arbitration provision.

02:40 - 22.813 It is, it also contains a very explicit liability waiver.

02:40 - 27.484 It specifically says the releasing parties hereby forever, irrevocably

02:40 - 32.022 and unconditionally release, waive, relinquish and discharge from liability.

02:40 - 33.924 Sky zone.

02:40 - 36.226 Now before the trial court.

02:40 - 36.927 Mr.. Mr..

02:40 - 39.930 Kessler did not suggest that,

02:40 - 43.934 Sky zone would be interested in focusing

02:40 - 46.937 only on the right to a forum,

02:40 - 49.706 to arbitration.

02:40 - 52.476 He did not suggest that they would be

02:40 - 55.245 setting aside the liability waiver.

02:40 - 58.015 And then before the Superior Court, Mr.

02:40 - 02.352 Kessler did argue, and it is in the record before the Superior Court, that Sky zone

02:41 - 08.191 would indeed set aside the other right restricting provisions of this agreement.

02:41 - 13.263 The statute of limitations provision and the absolute liability waiver.

02:41 - 19.002 Now, today, and in his brief before this court, he argued that Sky zone

02:41 - 23.073 does not now seek to have a Kelly's claims dismissed.

02:41 - 27.411 However, today, before Your Honors, Mr.

02:41 - 31.048 Kessler said, well, we're going to leave it up to the arbitrator. Now.

02:41 - 35.585 I don't know how this has anything to do with us because the issues we took

02:41 - 38.822 that we granted on are focused on the arbitration

02:41 - 41.825 provision of the participation agreement, nothing else.

02:41 - 42.659 Well, Your Honor,

02:41 - 47.531 the participation agreement is not simply an arbitration.

02:41 - 52.135 I agree with you, but our questions only focus on the arbitration provision,

02:41 - 53.103 nothing else.

02:41 - 55.839 We're here only to decide whether the arbitration

02:41 - 58.909 provision set forth in the participation agreement.

02:41 - 00.410 That's what our question, sir.

02:42 - 03.413 But, Your Honor, if the participation agreement,

02:42 - 07.617 goes directly to the miners property rights and his.

02:42 - 11.388 The child's cause of action is a property, right?

02:42 - 15.358 Then an agreement that turns over to an arbitrator,

02:42 - 19.429 the decision whether or not to honor the liability waiver provisions

02:42 - 23.467 in the agreement goes directly to the child's property.

02:42 - 26.403 I'm not I'm not saying it does. I'm not saying it does.

02:42 - 27.838 I'm simply I'm.

02:42 - 30.073 And maybe my colleagues will see it differently.

02:42 - 35.545 But I, I didn't review briefing in this case as involving

02:42 - 39.216 whether a waiver of certain clauses of action are enforceable,

02:42 - 43.787 whether this is the questions we took were simply related to

02:42 - 48.425 whether a one parent can bind a child to an arbitration forum,

02:42 - 51.962 and whether one parent can bind another parent to an arbitration forum.

02:42 - 53.196 That's it.

02:42 - 53.663 Correct.

02:42 - 57.901 And and with respect to that, Your Honor, then the questions that Mr.

02:42 - 00.871 Kessler was answering and addressed before this court today

02:43 - 04.641 as to why, if he were making the decisions for Sky zone,

02:43 - 06.743 he would get rid of the other provisions.

02:43 - 10.380 That came before, Your Honor today.

02:43 - 13.617 He said if he were making the decisions, he'd focus only on arbitration.

02:43 - 16.319 Unfortunately, this court has to consider the fact

02:43 - 18.822 that this participation agreement is more than that.

02:43 - 21.825 And they are now saying the arbitrator will decide

02:43 - 23.393 whether the child's claims are.

02:43 - 24.594 And that may be error.

02:43 - 25.729 I mean, that may be error.

02:43 - 28.732 And the if the arbitrator if the arbitrator,

02:43 - 32.702 if if the arbitrator enforces those provisions

02:43 - 35.806 there, there is relief available.

02:43 - 39.075 I mean, if that is a clear violation of Pennsylvania law,

02:43 - 42.312 if it's contrary to the power of the arbitrator to make those calls,

02:43 - 45.415 there is a safety valve associated with that.

02:43 - 49.853 Your honor, I, I do not think we get to the point of considering that,

02:43 - 53.490 because I do not believe we have a valid arbitration agreement in and of itself.

02:43 - 55.859 Which brings us back to what Your Honor was,

02:43 - 58.762 discussing.

02:43 - 00.530 There is no evidence.

02:44 - 00.997 Excuse me.

02:44 - 04.801 In the very limited Santiago record that there was any form of

02:44 - 08.071 agency authority given to Miss Santiago

02:44 - 11.775 to speak either on her husband's behalf or on the child's behalf.

02:44 - 13.944 There wasn't there wasn't express.

02:44 - 14.911 There wasn't implied.

02:44 - 17.047 There wasn't a parent authority.

02:44 - 19.382 Sky zone had no interaction with Mr.

02:44 - 20.383 Santiago.

02:44 - 21.651 Is there provision in the.

02:44 - 24.254 Oh, you're going to get me on this one, right.

02:44 - 27.991 Is that the provider of the, participation agreement?

02:44 - 33.096 Does it have I hereby represent that I have authority

02:44 - 36.533 to bind the child, that kind of thing?

02:44 - 38.401 Yes. The mother.

02:44 - 41.705 The mother signed a document that says that she had the authority

02:44 - 43.206 by signing it to bind the child.

02:44 - 46.509 Okay, so that's not a representation of a parent authority.

02:44 - 50.881 No, no, but the issue for a parent authority is that the principal, Mr.

02:44 - 53.884 Santiago, would have to have either,

02:44 - 58.622 vocalized or demonstrated by some action to disguise it,

02:44 - 03.727 that Miss Santiago had the authority to act as his agent.

02:45 - 07.831 I apologize, I was I was focusing on the one question related to binding the child,

02:45 - 09.766 not the question of relating to binding the other parent.

02:45 - 12.369 Okay, as far as as far as the,

02:45 - 16.072 the issue of binding the child,

02:45 - 19.075 the cause of action is a property, right?

02:45 - 23.280 Outside of the context of, of,

02:45 - 27.851 of litigation over injuries in the context of estates and inheritance,

02:45 - 31.454 where a parent is acting not simply as the natural guardian,

02:45 - 36.459 but also acting as the guardian of the child's estate, the court,

02:45 - 40.030 there has all kinds of supervision over what a parent can do.

02:45 - 43.767 There are there are reporting requirements, inventories,

02:45 - 49.005 periodic accountings that parents who are acting on behalf of a child

02:45 - 53.376 and the child's estate have to provide to a court supervising

02:45 - 56.579 those actions of the parent on behalf of the child.

02:45 - 59.783 Here, we're talking about a fundamental constitutional right,

02:46 - 02.819 the right to have this case adjudicated,

02:46 - 06.423 in a in a court of law, and the parents

02:46 - 10.794 in both the schools and in Santiago

02:46 - 14.030 cases did not have the authority to waive those rights on behalf of their children.

02:46 - 17.701 Thank you, thank you, thank you.

02:46 - 19.035 Other questions.

02:46 - 21.805 All right. Thank you all.

02:46 - 23.673 Our next case is Commonwealth of

02:46 - 26.676 Pennsylvania versus Derek Walker.

02:46 - 30.313 This is a set of three consolidated rape cases

02:46 - 33.516 against the same defendant Derek Walker.

02:46 - 36.586 The issue here is an important rule of evidence

02:46 - 39.622 which prevents the admission of prior bad acts

02:46 - 43.860 to prove a defendant's propensity to commit a certain crime.

02:46 - 46.863 The reason for this rule is a concern

02:46 - 49.866 that a jury might be more likely to convict someone.

02:46 - 53.103 If they believe the defendant is a bad actor,

02:46 - 56.373 rather than determining the specific case in front of them.

02:46 - 01.177 Defendant Walker emphasizes the risk that the jury convicted Walker

02:47 - 04.414 based on conformity with bad character

02:47 - 08.551 or propensity, rather than the evidence in each of the cases.

02:47 - 11.721 He did it once. He must have done it again.

02:47 - 14.791 The defendant also raises a consent defense.

02:47 - 18.661 The Commonwealth argues that the consolidation was proper

02:47 - 22.399 because the evidence from each case was admissible to demonstrate

02:47 - 27.437 a common plan, scheme or design to predatory select

02:47 - 30.140 vulnerable females

02:47 - 34.310 who were strangers to him to satisfy his sexual deviancy.

02:47 - 36.112 It was also important,

02:47 - 39.849 the Commonwealth argues, to rebut Walker's defense of consent,

02:47 - 43.186 to show that he did this three times,

02:47 - 45.989 and therefore it was not consensual.

02:47 - 49.959 The Commonwealth emphasizes the logical connection between the cases,

02:47 - 53.163 pointing to similarities in the circumstances.

02:47 - 58.468 Stranger victims approached on a public street, lured to a secluded area,

02:47 - 02.572 similar use of force and initial pretense of consent.

02:48 - 05.742 They state that there was a logical connection between

02:48 - 09.712 the three rapes committed under broadly similar circumstances.

02:48 - 14.284 Defendant argues that Pennsylvania has become too loose with the requirements

02:48 - 18.588 for showing a plan, and that these three individual cases

02:48 - 22.058 are merely unrelated stranger rape cases

02:48 - 25.261 and should not have been consolidated.

02:48 - 28.832 The second major issue in the case involves rape kits.

02:48 - 32.402 Defendant Walker argues that admitting these rape kits

02:48 - 35.738 report completed by forensic nurses

02:48 - 39.609 but without the nurse's testimony, violates the Confrontation

02:48 - 42.745 Clause and constitutes inadmissible hearsay.

02:48 - 46.649 The Commonwealth asserts that the rape kit reports are admissible

02:48 - 52.055 under the medical records exception, and the business records exception to hearsay.

02:48 - 57.227 Walker appeals the trial court's decision to consolidate the three rape

02:48 - 02.165 cases into a single trial, as well as the forensic laboratory reports.

02:49 - 07.971 Madam Chief Justice, may it please the court.

02:49 - 12.575 Jules Epstein, along with Leonard, saw snuff for appellant.

02:49 - 16.446 If I may deal with two brief administrative matters.

02:49 - 20.016 The first is this court was kind enough to grant an order

02:49 - 22.619 allowing us to divide argument.

02:49 - 27.056 I will be addressing the consolidation 404 issue.

02:49 - 31.794 Mr. Sarnoff will be addressing the Confrontation Clause issue.

02:49 - 35.999 The second administrative matter is, with your permission,

02:49 - 39.536 there are two cases that were in none of the briefs.

02:49 - 43.339 I apprized opposing counsel of them

02:49 - 46.943 by email three weeks ago and again yesterday.

02:49 - 52.081 They are out of state cases that talk about how those courts

02:49 - 54.250 define the word plan.

02:49 - 56.486 With your permission, at the end of my argument,

02:49 - 00.390 I'm simply asking that I be allowed to hand Mr.

02:50 - 03.092 Minter copies of the citations.

02:50 - 05.128 Yes, yes you may. Thank you.

02:50 - 09.332 May it please the court.

02:50 - 13.770 Of all of the 404 be exceptions.

02:50 - 18.841 Put simply, the word plan is the most problematic.

02:50 - 21.644 It is the most amorphous.

02:50 - 25.782 It is the most difficult to, define.

02:50 - 30.553 And the line between what is truly a plan

02:50 - 34.290 and what is propensity is so elusive

02:50 - 37.527 that without being

02:50 - 39.362 impertinent, it's

02:50 - 42.365 truly in the eyes of the beholder.

02:50 - 46.002 Our request here today is simple.

02:50 - 50.006 Approximately 150 years ago, when the Schaffner case,

02:50 - 53.843 the then Pennsylvania Supreme Court,

02:50 - 57.247 gave a very narrow definition to the word plan

02:50 - 00.984 that it had to be a plan UB initiated.

02:51 - 04.387 In other words, from day one, whatever was going

02:51 - 08.625 on, all had to link back to that original mental state.

02:51 - 12.328 We will be asking this court

02:51 - 15.598 to define plan, an issue that has eluded it.

02:51 - 19.602 We had it in the Cosby case, but that was decided on other grounds.

02:51 - 22.238 It was sort of in hex.

02:51 - 25.341 I'm going to suggest it actually wasn't, but Hicks

02:51 - 28.344 did not come into majority.

02:51 - 30.947 And we will we request that

02:51 - 33.916 shaffner be the definition or if need be,

02:51 - 37.253 Shaffner plus one modest modification.

02:51 - 42.825 Our request is that we be permitted to show four things.

02:51 - 46.896 One is the history that we suggest supports

02:51 - 49.899 that, as does the learning that commentary.

02:51 - 52.869 Number two is what we suggest

02:51 - 55.872 are errors in the prosecution argument.

02:51 - 00.443 And in fact, what I'm going to call their concession below that.

02:52 - 03.746 This was nowhere near a plan under any definition.

02:52 - 08.318 The third is amicus attorney General

02:52 - 12.455 suggested a modified definition.

02:52 - 18.161 Our hope is that we're allowed to explain why that actually doesn't work.

02:52 - 22.065 But if this court wants something more than the very strict

02:52 - 26.402 definition of Schaffner, that there is a way to do that

02:52 - 29.572 and still strictly confine plan,

02:52 - 33.409 and then finally that under any test,

02:52 - 38.014 the most lax to the most stringent.

02:52 - 41.250 The three cases in here don't get close

02:52 - 44.220 to plan.

02:52 - 45.521 Schaffner made it

02:52 - 48.891 clear, and Schaffner is rooted in history.

02:52 - 53.629 That goes back to the treason act of something in the 1600s.

02:52 - 54.430 It's in our brief.

02:52 - 57.433 Forgive me for not remembering the precise date.

02:52 - 01.471 People are supposed to be tried on the charge against them,

02:53 - 04.440 and not on anything else.

02:53 - 07.143 And the aversion to propensity

02:53 - 10.113 evidence was profound.

02:53 - 13.082 And that was reflected in the Schaffner case,

02:53 - 17.019 which said there are only two ways other evidence may come in.

02:53 - 20.690 One which is not at issue here is identity.

02:53 - 22.992 The the other, forgive me.

02:53 - 27.663 And these are the words that a connection between or among the acts

02:53 - 31.234 must have existed in the mind of the actor

02:53 - 34.971 and in other words, op initial and other words on day one.

02:53 - 38.040 And I say this with one of my siblings here in the court.

02:53 - 42.145 If I had planned to knock off all my siblings one by one

02:53 - 45.415 to be the sole person to inherit, that's a plan.

02:53 - 47.316 Because it's from day one.

02:53 - 48.050 Yes, please.

02:53 - 50.753 We're talking about a common scheme or plan.

02:53 - 52.188 You're skipping the word scheme.

02:53 - 54.056 Is that not important? So

02:53 - 58.294 what we tried to show Chief Justice Todd in the history

02:53 - 02.732 is those words sort of fell in somewhere along the line.

02:54 - 08.104 But the words common scheme are not in our 404 B.

02:54 - 11.441 And I admit that's not conclusive because we know

02:54 - 15.211 that's an illustrative list, not an exclusive list,

02:54 - 21.217 but whether it's plan or common scheme and plan,

02:54 - 24.687 the problem is it needs a definition

02:54 - 30.259 because otherwise a common scheme could be I stole a car

02:54 - 34.363 and then three months later I see another car running

02:54 - 39.168 and that becomes a common scheme and we eliminate comprehensive plan

02:54 - 43.206 seems to indicate that there is a beginning point where this was

02:54 - 47.910 all laid out, where a scheme could just start, move along on its own.

02:54 - 50.346 Are you ruling out scheme?

02:54 - 53.983 We suggest

02:54 - 57.820 in our reply brief that plan,

02:54 - 00.990 if it's not limited to linked from day

02:55 - 04.427 one that there's a second option.

02:55 - 07.563 And this is Professor in Winkle Read who's been cited in

02:55 - 12.235 many of the decisions in this court called template.

02:55 - 15.238 And so template is a little different

02:55 - 19.442 than simply seizing an opportunity when it comes along.

02:55 - 22.411 Because just as Todd,

02:55 - 25.882 the more we generalize to common scheme,

02:55 - 29.852 we have no way to define where

02:55 - 32.822 propensity ends and where plan

02:55 - 35.858 is your argument?

02:55 - 38.327 It appears to me your argument is more consistent

02:55 - 40.062 with my esteemed colleague, Justice Stanley.

02:55 - 42.698 Use opinion in Hicks.

02:55 - 44.433 Is that what you're approaching?

02:55 - 46.569 With all due respect, yes.

02:55 - 49.405 Well, I have to share with you, I believe.

02:55 - 51.207 Why are you qualifying this?

02:55 - 55.845 No, no, no, I respectfully, I was doing that to you, not you.

02:55 - 59.549 I I'll be candid, my logical connection and virtual signature.

02:55 - 03.653 I have no problem walking back on that now because I saw it in that application.

02:56 - 06.722 What I thought then didn't materialize now.

02:56 - 08.624 So I agree with you, but I'm.

02:56 - 12.895 I'm assuming that your argument is consistent with those sustaining use.

02:56 - 15.731 I have to say this 98%.

02:56 - 19.869 The simplest the simplest approach

02:56 - 24.407 would be for this court to say plan is plan.

02:56 - 29.045 All law shaffner because I apologize, articulate

02:56 - 32.615 as you would your class what you believe it to be.

02:56 - 36.986 You tell us what your 404 B interpretation is.

02:56 - 42.458 My 404 B interpretation is plan plus.

02:56 - 45.828 Okay, you're asking me as the academic and as an advocate.

02:56 - 48.130 It comes out the same.

02:56 - 51.233 The simplest clearest is to say stop

02:56 - 55.972 at what the scholars call linked plan, which is what Justice

02:56 - 59.442 Donohue wrote about in the Shaffner the Shaffner dissent.

02:57 - 02.378 Because then there is no Shafter. That was 18.

02:57 - 03.713 I'm sorry.

02:57 - 06.048 Sorry, Hicks.

02:57 - 06.616 I'll get it.

02:57 - 08.551 If I the hands in the wall here.

02:57 - 10.620 Yeah, I got that.

02:57 - 12.755 With all due respect to Justice Doheny.

02:57 - 14.490 Yeah, yeah.

02:57 - 17.360 Okay. Who's counting the 2%?

02:57 - 20.663 Once I take my foot out of my mouth, I continue.

02:57 - 22.131 Please. Okay.

02:57 - 24.934 If we start stopped right there.

02:57 - 27.370 We still have preparation.

02:57 - 28.871 We still have motive.

02:57 - 31.207 We still have absence of mistake.

02:57 - 32.308 So we are not.

02:57 - 35.011 And I say this with respect to my colleague, Mr.

02:57 - 40.850 Baldwin, who in the brief for our police said, oh, if you define plan that

02:57 - 45.855 narrowly, we've essentially gutted 404 B except for signature crimes.

02:57 - 48.024 The answer is no, we have not.

02:57 - 49.992 But if this court were to say

02:57 - 54.230 that it has to be a little bit more.

02:57 - 56.265 Okay.

02:57 - 59.268 Again, I'm saying to Professor and Winkle Reid,

02:57 - 03.305 he talks about a something called a template

02:58 - 06.342 and a template is not

02:58 - 09.345 that everything was planned from day one,

02:58 - 11.981 but I settled on a plan

02:58 - 14.984 on how to approach a particular.

02:58 - 18.120 I hate to use the word opportunity or circumstance.

02:58 - 21.257 So justice Daugherty, in our reply brief

02:58 - 26.729 we gave an illustration and I say, I hate to say if this actually happens

02:58 - 32.101 of someone who is a misuse and has a client and after a while,

02:58 - 36.439 right, the soothing music and stuff sexually abuses that person

02:58 - 41.177 and six months later gets another client who may be

02:58 - 45.648 of a particular submissive temperament and the music and such.

02:58 - 47.817 That's not notice operandi.

02:58 - 51.120 Sadly, lots of misuses have been found to do that,

02:58 - 57.093 but it's showing a plan and set in the sense of some force thought

02:58 - 01.831 as opposed to just, you know, like steal a car.

02:59 - 04.800 And then three months later there's a car and I steal it

02:59 - 08.471 because if we don't keep it that narrow, we are stuck.

02:59 - 11.640 So the cart, I steal a car

02:59 - 14.643 and then I steal a second car that that doesn't fall within you?

02:59 - 15.978 I don't think so.

02:59 - 18.981 How come? Because it's not that type.

02:59 - 20.282 Two reasons.

02:59 - 24.587 It's not that type of deliberative, thought out approach of

02:59 - 29.492 I'm going to do this in this very particular circumstance,

02:59 - 33.662 that if that if there's additional facts that you steal the car and you sell it

02:59 - 35.731 for the catalytic converter, and you steal a car

02:59 - 39.702 and sell for the catalytic converter, the that may, that may,

02:59 - 43.472 because that might show that particular kind of forethought.

02:59 - 48.077 Just stealing eight, nine, ten cars doesn't satisfy your task.

02:59 - 50.312 I don't want to make it just mine.

02:59 - 51.213 Justice Monday.

02:59 - 54.216 It actually doesn't satisfy Professor or Winkle reader or

02:59 - 57.920 any of the really smart evidence people who have written on this subject.

02:59 - 01.223 Again, because we run into the problem.

03:00 - 02.958 What's the right number?

03:00 - 04.393 Where's the line?

03:00 - 07.396 Where is propensity? Where isn't it?

03:00 - 10.232 So that the narrower we draw a plan,

03:00 - 12.101 we'll still have

03:00 - 15.104 the meaningful test of plan from Schaffner.

03:00 - 16.205 Add something to it.

03:00 - 19.909 I mean, I'm kind of following you along like you're here

03:00 - 23.445 when you say nine cars in a row and a plan.

03:00 - 29.985 If it's nine, as you put it, just this money.

03:00 - 33.422 If it's nine cars in a row on nine successive days,

03:00 - 35.191 I think I would be with you.

03:00 - 37.960 If it's nine cars over a year.

03:00 - 42.565 I don't ever want to say I'm not with you, but I'm not with you on that one, okay?

03:00 - 47.403 Because, that I don't know where plan ends there

03:00 - 50.539 and propensity begins other month or a year,

03:00 - 55.344 but again.

03:00 - 01.016 I don't know that I could intelligently draw that line.

03:01 - 05.020 And I say that was the greatest of respect because I don't know how we can.

03:01 - 09.325 And one of the benefits of a tighter

03:01 - 12.328 rule is it is or it isn't,

03:01 - 16.665 because otherwise invariably it will be for cars.

03:01 - 20.469 What if he stole a car from the same parking lot on the 15th day of each month

03:01 - 23.172 for 12 months in a row? I'm with you. That's a plan. There you go.

03:01 - 25.741 Sure that's the something more you're looking for?

03:01 - 28.043 You're looking for kind of a signature on crime.

03:01 - 31.080 Although it's short of signature in the sense of it

03:01 - 34.083 shouldn't be significant if you take it, you're like certain commonality.

03:01 - 35.084 Exactly.

03:01 - 39.221 And that's the kind of suggestion that the professor

03:01 - 41.457 and Winkler did, I teases out a little bit.

03:01 - 45.227 But the language from Schaffner is quote unquote, to make one criminal act

03:01 - 48.964 evidence of another, a connection between them must have existed

03:01 - 52.368 in the mind of the actor, linking them together for some purpose

03:01 - 55.371 he intended to accomplish, or must be

03:01 - 57.039 been attending practice.

03:01 - 01.143 So that's isn't that consistent with an individual

03:02 - 04.113 who had stolen nine cars

03:02 - 07.816 and what the additional fact they're all Nissans

03:02 - 09.685 or whatever the new car is, that you could steal

03:02 - 12.521 quickly.

03:02 - 15.457 I suspect that if we could learn more

03:02 - 19.929 about the particular circumstances,

03:02 - 23.165 what would go back to like striking similarity language?

03:02 - 27.436 Justice Daugherty my answer is maybe here and here's like

03:02 - 30.839 and I respect you as a professor here.

03:02 - 33.409 You're telling us we should adopt Schaffner,

03:02 - 37.579 but now you're adding language to Schaffner that doesn't exist.

03:02 - 41.450 So. Okay.

03:02 - 41.850 Got it.

03:02 - 44.520 Make me understand why we need that language.

03:02 - 47.923 I'm with you on possibly adopting Schaffner,

03:02 - 51.126 but I just read to you the line, which would be consistent

03:02 - 55.631 with the example provided, as I understand Schaffner

03:02 - 59.668 and the contemporary case, since contemporaneous cases.

03:02 - 00.869 Forgive me.

03:03 - 04.406 They were talking about a plan from day one.

03:03 - 10.212 Like I'm going to defraud five people of money to be able to buy a house.

03:03 - 12.414 Professor, let's go to this.

03:03 - 15.417 This particular fact scenario

03:03 - 18.253 isn't targeting three women

03:03 - 21.957 whom he allegedly believed to be prostitutes.

03:03 - 24.059 Evidence of a plan.

03:03 - 27.296 Even in your strict construction of plan.

03:03 - 31.000 That's not a trick question.

03:03 - 32.267 Now, I know it's not.

03:03 - 35.270 It's not,

03:03 - 39.808 That's going towards the doctrine of chances issue.

03:03 - 44.213 Chief Justice Todd but before we get that, is that a plan?

03:03 - 45.814 I hate to say it.

03:03 - 49.585 It's the plan of every budget this year

03:03 - 52.621 to target vulnerable people.

03:03 - 55.591 A woman is a prostitute and then want to rape her.

03:03 - 57.226 That's that's pretty.

03:03 - 00.496 The specify wide criteria. So.

03:04 - 06.301 The facts of the case, I think are a little bit more complicated

03:04 - 09.738 because she raises it more as a defense and,

03:04 - 13.375 and the circumstances were a weird one.

03:04 - 15.978 What one of the three women approached him.

03:04 - 19.982 Can I get apparently people sell individual cigarets.

03:04 - 21.784 Can I get two cigarets?

03:04 - 23.619 Two others he approached.

03:04 - 25.754 One was an approach.

03:04 - 27.256 According to the testimony that.

03:04 - 29.358 Do you want to buy something?

03:04 - 29.825 Okay.

03:04 - 33.762 The other this this is the victim complainants testimony.

03:04 - 39.034 The other was an approach with some money and maybe something about being

03:04 - 41.370 a prostitute. They're different. Right? But

03:04 - 43.672 doesn't it?

03:04 - 48.210 Doesn't it lends some credibility to the plan assessment.

03:04 - 52.181 If he is claiming that he thought he was entitled to do this

03:04 - 55.184 because they were all prostitutes.

03:04 - 56.552 But Mr.

03:04 - 58.320 Upson, let me follow up on the chief's question,

03:04 - 00.289 because I think this is really important

03:05 - 03.292 because it's I'm going to whisker exactly where I'm going to go next

03:05 - 06.962 if the I think I will on the question,

03:05 - 09.932 because I think he's going to be forced to

03:05 - 13.469 this goes in the context of consolidation, a plan, scheme and design.

03:05 - 16.138 So you've got three individual rapes that are connected.

03:05 - 18.407 You can say what you want, which is that every stranger rape

03:05 - 21.410 has the same exact circumstances, but they're connected through DNA

03:05 - 23.178 from the rape kit, right? Yes.

03:05 - 26.081 That's the basis for the consolidation of these three cases.

03:05 - 27.683 If the defendant is going to say,

03:05 - 31.453 these should be tried separately and individually because

03:05 - 34.456 there's no complaint scheme and design, because this is,

03:05 - 37.693 something that is the same in every rape case.

03:05 - 40.929 What if the defendant proffers in each one of those

03:05 - 43.932 individual cases, or 3 or 4 cases?

03:05 - 45.634 It was consent.

03:05 - 48.137 Isn't the Commonwealth entitled to then call the other

03:05 - 51.640 witnesses on rebuttal to suggest that it's not?

03:05 - 54.643 Because what are the chances of this guy

03:05 - 57.813 doing the same exact thing consensually to four different women?

03:05 - 59.882 So now you have two questions.

03:05 - 02.017 Okay,

03:06 - 04.319 if I may, I'm going to work backwards, and I hope

03:06 - 06.722 I remember yours by the end, or I'll ask you that.

03:06 - 08.490 Kindly help me again.

03:06 - 10.592 There are two problems.

03:06 - 13.562 One is.

03:06 - 17.065 Consent as a defense

03:06 - 22.171 does not equal to the question of whether the other acts are merely propensity.

03:06 - 23.438 So if I may

03:06 - 28.110 say, suppose one of them was a friend

03:06 - 32.114 and one was a relative, and one was a stranger.

03:06 - 37.886 Whatever it is, those are three distinct crimes and normally say

03:06 - 41.657 one is not evidence of the other because it's only propensity.

03:06 - 43.759 But I'm not suggesting they be brought in for propensity.

03:06 - 46.795 I'm suggesting they brought it be brought in by the Commonwealth on rebuttal

03:06 - 50.199 for credit, to challenge the credibility of the defendant,

03:06 - 52.167 who's going to raise the consent defense.

03:06 - 54.770 He's the only one that can raise it. Right. And there are two. Yes.

03:06 - 56.338 And there are two problems with that.

03:06 - 59.041 One is I say this respectfully.

03:06 - 02.044 I suggest that puts the cart before the horse,

03:07 - 05.347 because if it's propensity, it's propensity.

03:07 - 10.052 And the only time another rape for attempted

03:07 - 14.690 rape has been allowed in and and the one case cited by my opponent

03:07 - 19.461 was when they raised the defense of mistaken belief of consent.

03:07 - 22.965 Because then it makes sense because it goes to knowledge.

03:07 - 26.635 But otherwise we're bootstrapping propensity, saying, well,

03:07 - 30.272 you have this propensity to do it, therefore it can't be consent.

03:07 - 33.675 The other thing in this goes to the doctrine of chances.

03:07 - 34.009 Yeah.

03:07 - 37.846 So before I do that, let's how can the defendant's

03:07 - 41.617 conduct explain the victim state of mind?

03:07 - 44.953 This is not a situation

03:07 - 48.190 where there is a claim of accident or mistake.

03:07 - 51.693 If the defense is consent under

03:07 - 54.429 in what world could

03:07 - 56.698 anything the defendant

03:07 - 00.035 do go to the victim state of mind?

03:08 - 04.206 Isn't that the problem with stretching that notion,

03:08 - 08.977 from a mistake which goes to the defendant's

03:08 - 12.080 state of mind, to what you're talking about here,

03:08 - 15.684 which is the victim state of mind?

03:08 - 16.985 That is correct.

03:08 - 22.190 Plus, it goes to an issue that you discussed that then Chief Justice

03:08 - 26.228 Saylor discussed in Hicks, which was doctrine of chances.

03:08 - 27.729 But there are all different things.

03:08 - 32.834 I mean, I am and I frankly, just before we lose the point,

03:08 - 38.240 I just disagree with your notion of tying

03:08 - 41.877 what you're referring to as a template

03:08 - 46.248 to common plan is nothing to do with shaffner.

03:08 - 51.453 I mean, what you're talking about is an entirely different animal of an exception.

03:08 - 54.089 Shaffner and dissipated.

03:08 - 58.093 You purchase a insurance policy on your wife,

03:08 - 03.265 you go out and you buy arsenic, wife dies of arsenic poisoning.

03:09 - 08.670 You get in those prior acts because it goes to the plan to kill

03:09 - 13.175 the wife has nothing to do with any commonality

03:09 - 16.912 in the, actions or anything of that nature.

03:09 - 20.816 There may be a different exception that you'd like us to recognize, but

03:09 - 26.521 I find it very confusing and dangerous to the Schaffner concept of a plan

03:09 - 30.359 to say template just adds a little bit on to it.

03:09 - 32.327 It's a totally different thing.

03:09 - 35.997 Well, and it depends whether you're also including scheme with this plan.

03:09 - 38.800 The reason I raised

03:09 - 43.572 the template issue was in response to amicus, the attorney general,

03:09 - 45.774 the attorney general.

03:09 - 49.544 And permit me just so I get the language right, said, well,

03:09 - 52.981 we think there's something that if it's a script or playbook

03:09 - 56.651 or an opportunity, opportunistic resort

03:09 - 00.355 to criminal techniques that succeeded previously, that could be

03:10 - 02.424 pretty pointed out.

03:10 - 06.561 That doesn't have anything to do with Shaffer's conception of a plan.

03:10 - 08.063 And then I apologize.

03:10 - 12.167 The only reason I did that is because in the scholarship

03:10 - 15.837 that is elaborated on the meaning of plan over the years,

03:10 - 19.107 you are correct that that don't want to call them the purist,

03:10 - 22.844 but the belief is that playing is exactly what Schaffner is.

03:10 - 27.816 But as cases have evolved and legal theories have evolved,

03:10 - 32.421 some people have said, and here's the problem,

03:10 - 35.757 Justice Donoghue, because I don't know where to put this otherwise.

03:10 - 38.493 If someone does

03:10 - 41.830 crime number one and then realizes,

03:10 - 44.833 this is a good way to do this,

03:10 - 49.604 and it's quite particular rise and then does two, three and four,

03:10 - 53.475 that is technically not planned, but it may be a scheme.

03:10 - 57.946 No, I'll take scheme if it's that narrow.

03:10 - 01.683 But then we come back to how narrow it has to be.

03:11 - 06.254 Could we rewind and go back to my question of about ten minutes ago,

03:11 - 09.624 and my question was, does the fact that

03:11 - 15.096 the defendant claimed he thought each of these

03:11 - 19.134 three women were prostitutes, and that's why he felt entitled

03:11 - 23.538 to have sexual relations with them or sexually assault them?

03:11 - 28.176 Isn't that evidence of a scheme or plan?

03:11 - 32.080 No, because I suggest that that was not the defense here.

03:11 - 37.018 The defense was these were prostitutes who literally consented,

03:11 - 40.522 but then for some reason cried rape thereafter.

03:11 - 45.360 So he was not saying, oh, I misread a situation.

03:11 - 46.695 Please understand.

03:11 - 48.864 Of course he did not testify.

03:11 - 54.703 This was the argument made in closing by his counsel to say,

03:11 - 00.242 here's a here's what really happened, but it's not.

03:12 - 03.512 What was he thinking it was?

03:12 - 07.048 The contention is that's actually what happened.

03:12 - 12.053 So justice, Chief Justice Todd, I get your question.

03:12 - 15.090 I don't think that was this case.

03:12 - 17.092 How do you slice it that thin, though?

03:12 - 21.363 I mean, how do we know what he was thinking when

03:12 - 26.167 when he formed this opinion that the women he was attacking were prostitutes?

03:12 - 29.838 I, I think we have to go on the pleadings.

03:12 - 34.009 And in this case, that's the opening statement and the closing argument,

03:12 - 38.146 and it's the opening used closely to the line of

03:12 - 42.050 it's really a reasonable doubt argument.

03:12 - 45.153 Members of the jury, this could have been prostitution,

03:12 - 49.391 I hear, is why

03:12 - 52.193 that that should open the door. Yes.

03:12 - 56.565 To saying what he was thinking or what he was planning or anything.

03:12 - 59.601 It's just saying.

03:13 - 02.070 It didn't happen that way.

03:13 - 04.873 Okay. And we're back to the propensity.

03:13 - 07.876 Okay. Don't we always have to,

03:13 - 11.379 figure out at the outset what the evidence is

03:13 - 14.416 being offered to establish? Yes.

03:13 - 14.816 Okay.

03:13 - 18.286 That's sort of the opening point here, right?

03:13 - 22.223 In this in this case,

03:13 - 25.160 this evidence was offered to establish

03:13 - 28.964 that this person committed three urban rapes.

03:13 - 32.100 No respect. Well, yes, it was.

03:13 - 35.537 It was offered is propensity evidence in that sense? Yes.

03:13 - 39.975 But if you mean was there a bona fide offer.

03:13 - 41.109 Well, that's what I'm saying.

03:13 - 43.478 Wait, it didn't go to identity, correct?

03:13 - 45.480 It didn't go to accident or a mistake.

03:13 - 46.514 Correct.

03:13 - 50.285 It wasn't a plan that would have established I don't know what,

03:13 - 54.122 but but but but my my,

03:13 - 57.692 always starting point of analysis in these admissibility

03:13 - 00.762 of for for b evidence cases is what you're being offered for.

03:14 - 03.965 And at the motion in limine

03:14 - 09.104 a hearing it was argued, if at all, to support the credibility

03:14 - 12.674 and both in the opening

03:14 - 16.244 statement, trial and the closing argument,

03:14 - 20.348 the Commonwealth said to the jury, basically

03:14 - 23.752 the only commonality here is DNA and rape.

03:14 - 27.055 And the closing was

03:14 - 30.058 here stands before you, a serial rapist.

03:14 - 32.994 It was pure propensity

03:14 - 35.864 and nothing other than that was argued.

03:14 - 40.568 If you were to go and read the trial judge's jury charge

03:14 - 44.372 at the end the trial judge doesn't narrow it either.

03:14 - 47.342 The trial judge reads the entirety

03:14 - 52.681 of 404 B and sort of leaves it up to the jury, because the judge

03:14 - 58.486 recited every single exception that we have in the 404 B instruction.

03:14 - 01.456 So the court didn't see a narrow purpose.

03:15 - 04.459 The Commonwealth didn't offer it for a narrow purpose.

03:15 - 08.930 Isn't that essential

03:15 - 11.266 in a proffer for A for B evidence?

03:15 - 12.867 Why you're offering it?

03:15 - 16.638 Yes, I, I was not the lawyer who fought that fight.

03:15 - 18.273 The judge

03:15 - 22.277 ruled that it was proper.

03:15 - 26.748 I'm not saying that was a correct ruling,

03:15 - 29.851 but the strategy of claiming that the

03:15 - 33.888 two having with the victims was a consensual.

03:15 - 36.458 I'm sorry.

03:15 - 40.729 Can you say again that the trial judge just said that he thought the,

03:15 - 47.535 the these acts were not used to prove identity, but to rebut his strategy

03:15 - 51.406 of claiming that the sex he admitted to having with the victims was consensual.

03:15 - 53.441 It was the consensual sex.

03:15 - 56.411 And that's what my challenge is,

03:15 - 59.380 how under any set of circumstances,

03:15 - 03.418 the conduct of the defendant can establish the state of mind of the victim.

03:16 - 05.453 And and it can't.

03:16 - 09.357 And in this case, his state of mind was not at issue

03:16 - 13.161 because the burden is on the Commonwealth to disprove consent.

03:16 - 18.700 This was not a case of mistaken, but reasonable belief of consent.

03:16 - 21.336 When his mens rea would be at issue.

03:16 - 22.337 Justice Donahue,

03:16 - 24.973 I'd like to I'd

03:16 - 27.976 like you to address this issue of whether,

03:16 - 32.580 the alleged similarity among the three crimes could apply

03:16 - 38.052 to any stranger rape, because to me, there are all kinds of stranger rapes.

03:16 - 41.089 They don't necessarily meet this definition.

03:16 - 44.492 So there's certainly some commonalities.

03:16 - 49.297 And I will say bluntly, anyone can find commonality anywhere.

03:16 - 53.501 So if we were to look at some of the commonalities

03:16 - 56.171 and forgive me, I'm going to actually turn to my chart.

03:16 - 59.140 So if I get this right, it was three women

03:17 - 03.211 with no one commonality, different times of day,

03:17 - 06.214 different years, different parts of the city.

03:17 - 09.184 Commonality.

03:17 - 12.854 There was sexual assault, non commonality.

03:17 - 15.990 Two were one was oral and vaginal.

03:17 - 19.494 One was attempt to oral and virginal, one was vaginal

03:17 - 22.997 non commonality

03:17 - 26.000 one involved and offered to sell headphones.

03:17 - 28.937 One was standing outside a store

03:17 - 32.073 flashing money at the woman apparently for sex.

03:17 - 35.577 One was the woman approaching him and saying, do you want a

03:17 - 37.111 can you sell me cigarets?

03:17 - 38.112 Commonality.

03:17 - 41.983 Only the there were three women,

03:17 - 46.621 each alone on the street, not, an individual

03:17 - 50.325 who breaks into a house or cuts through a screen or crawls through a window.

03:17 - 52.560 One was outside a store.

03:17 - 53.995 I don't know what I mean.

03:17 - 57.031 I just don't remember if alone qualifies.

03:17 - 02.103 There's another non commonality which makes this very different

03:18 - 05.506 from Hicks, where the commonalities at least, were more,

03:18 - 09.344 and that was one was a knife,

03:18 - 13.781 one was no knife but a punch, one was a tire iron.

03:18 - 17.018 So we say, oh, they're all common because they have force.

03:18 - 20.154 But no, they're not common in Hicks.

03:18 - 23.491 The court talked about the plurality.

03:18 - 25.226 Talked about it was to the neck.

03:18 - 27.395 It was always the threat to kill.

03:18 - 30.031 It was always with drugs.

03:18 - 34.469 So again, and I say this, I wish I could figure out

03:18 - 38.740 the litmus paper test for when it's true

03:18 - 42.110 commonality as opposed to propensity.

03:18 - 46.447 Well, here it was commonality by an element of force,

03:18 - 51.786 not by poison or a date rape drug or something like that, certainly.

03:18 - 54.956 But I can't counsel.

03:18 - 56.424 Let's assume they were.

03:18 - 59.961 All of the rapes were performed in precisely the same way,

03:18 - 02.830 and there was some oddity in each of the rapes.

03:19 - 04.165 There was

03:19 - 07.702 no question of identity in any one of these three cases.

03:19 - 09.070 Correct?

03:19 - 13.141 I don't I still, even if they were done exactly the same way.

03:19 - 16.411 And I know this is a difficult thing for

03:19 - 20.448 almost everybody to accept,

03:19 - 24.585 but unless there is a reason

03:19 - 27.822 for offering the prior act evidence

03:19 - 33.061 that's necessary for the case, you can't get it in because it is

03:19 - 36.197 otherwise being used just to show that

03:19 - 39.233 this defendant committed other crimes.

03:19 - 40.134 Exactly.

03:19 - 43.972 I mean, and that's why I keep getting back to the point in this case,

03:19 - 47.842 why it eludes me, how we actually get

03:19 - 51.746 to the issue of defining, what a plan is, or what

03:19 - 55.116 a scheme is or what anything else is, where

03:19 - 59.821 there's no reason to offer the evidence in this case, other than to show

03:19 - 04.692 that he has committed other rapes and therefore thereby to bolster

03:20 - 07.028 each individual complainants credibility,

03:20 - 10.031 to show his propensity to do to do the same thing.

03:20 - 11.966 I mean, maybe maybe that's okay.

03:20 - 16.137 I mean, apparently our trial courts have a very hard time accepting the notion.

03:20 - 20.041 How do you balance that position against saying that

03:20 - 25.179 the the commonalities of the methodology, aka I'm looking for a woman, I know her

03:20 - 29.417 or I think she's a hooker or a prostitute, I'm going to go up to her and engage

03:20 - 31.352 in some type of conversation,

03:20 - 34.022 and then I'm going to rape her and then I'm going to say,

03:20 - 37.592 and I'm going to leave my semen, and I'm going to say it was consent

03:20 - 41.429 that that to me is commonality of methodology.

03:20 - 45.333 Whether one woman is in North Philly, one woman's in South Philly,

03:20 - 46.701 or one woman's in Jersey,

03:20 - 48.202 that we're

03:20 - 51.272 not talking about specific, commonalities

03:20 - 54.809 in the sense that I'm raping everybody in this apartment building.

03:20 - 57.678 So I'm how do you balance that?

03:20 - 59.847 Because I think that's the problem with the trial judges.

03:20 - 01.849 I know I did it myself as a trial judge.

03:21 - 04.952 So I think it's a the word balance there has two meanings.

03:21 - 09.690 One is can we balance between where's the line between propensity

03:21 - 12.960 and something of a non propensity nature.

03:21 - 18.399 And I'm going to suggest sadly that especially in an urban environment

03:21 - 21.702 with a lot of poverty, this is rather common,

03:21 - 24.872 not a commonality to one person.

03:21 - 28.776 The second is the fewer

03:21 - 34.382 features that are really distinctive.

03:21 - 37.652 My word, I don't want to go to signature Justice Daugherty, but

03:21 - 40.755 distinctive are, well, distinctive.

03:21 - 45.393 So I say respectfully, I don't find those particularly distinctive.

03:21 - 50.798 And one of the issues is, unfortunately, we don't have a database of how many rapes

03:21 - 55.670 are committed on vulnerable women who are or look like prostitutes.

03:21 - 02.176 And we certainly know prostitutes are particularly vulnerable population,

03:22 - 07.448 but the few were the defining characteristics,

03:22 - 09.984 if you will.

03:22 - 12.520 The itiveness goes down.

03:22 - 16.390 The risk of unfair prejudice goes up because the greater

03:22 - 20.194 likelihood of propensity reasoning comes into play.

03:22 - 22.730 So that's the second balance.

03:22 - 27.001 And Pennsylvania, if I may note, this is different

03:22 - 29.937 from the federal rules of evidence.

03:22 - 36.244 In our rules of evidence we have a balancing of productiveness and prejudice.

03:22 - 36.811 Right?

03:22 - 42.750 In 404 federal rules use 403, which is the unfair

03:22 - 47.088 prejudice has to substantially outweigh the probative ness.

03:22 - 49.724 Hers is the opposite.

03:22 - 53.261 The pro itiveness has to outweigh

03:22 - 56.497 the unfair prejudice.

03:22 - 59.934 And in the Yale case, this court talked eloquently

03:22 - 03.871 and clearly about the kinds of prejudice there are.

03:23 - 07.542 We are stripping people of the presumption of innocence.

03:23 - 11.946 We are inviting a jury to accumulate evidence

03:23 - 16.317 that in each case, on its own, would say, I have a reasonable doubt.

03:23 - 18.786 Gee, I'm overwhelmed by the numbers.

03:23 - 21.289 I guess he must be guilty.

03:23 - 22.223 So is that it?

03:23 - 24.058 Let me ask you this question

03:23 - 27.862 in response to my question earlier, you said the Commonwealth

03:23 - 33.501 said they were offering this to bolster the credibility of each of the witnesses.

03:23 - 34.068 Right.

03:23 - 37.872 Is that a legitimate use of prior acts?

03:23 - 38.372 Evidence?

03:23 - 41.042 I don't know of

03:23 - 44.011 any case that says that expressly.

03:23 - 48.249 I suggest respectfully, it should not be because it is an exception

03:23 - 53.087 that swallows the rule, because the second someone has two cases

03:23 - 56.157 or two allegations,

03:23 - 00.461 it means as soon as you say person one consented

03:24 - 03.731 somehow the fact that someone

03:24 - 06.734 two years in the past five years in the past,

03:24 - 11.339 in radically different circumstances, accused me of a non-consensual

03:24 - 15.910 act comes in to say, oh, didn't consent here?

03:24 - 18.346 We're allowed to bolster the credibility here.

03:24 - 19.847 But isn't that isn't that sort

03:24 - 23.884 of the predicate question that we have to grapple with?

03:24 - 27.455 Why can you offer 404 be evidence?

03:24 - 31.592 My understanding is that you can offer it, to establish

03:24 - 34.895 an element of a crime or the defense if you don't

03:24 - 38.332 have if you don't have a,

03:24 - 41.869 404 be evidence that

03:24 - 45.006 fits into fulfilling one of those needs,

03:24 - 48.976 you aren't even talking about allowing it into evidence.

03:24 - 49.677 That's.

03:24 - 53.681 This is the last thing I ever want to do is disagree with a position

03:24 - 55.750 that is incredibly safe for me.

03:24 - 57.051 But tell me if that's what you think.

03:24 - 58.452 That's a tiny bit wrong.

03:24 - 00.655 Okay, one exception of motive.

03:25 - 05.426 Motive is not an element of a crime, but for or for B as allowed for motive.

03:25 - 08.763 So in terms of being honest to the court, I have to say on that one.

03:25 - 11.666 But other than that, that's a that's a good point.

03:25 - 14.669 It is proving the actus Reyes.

03:25 - 16.304 Right. Did you do this.

03:25 - 17.071 You've done that.

03:25 - 20.808 So it's proving mens rea, the famous

03:25 - 25.713 or infamous cases about doctrine of chances.

03:25 - 29.450 Or the parent who had 20 kids suffer.

03:25 - 32.453 I think it's called a cyanotic episode.

03:25 - 33.988 And they say well that's too much.

03:25 - 38.559 Or the too less famous the multiple wives dying in the bathtub.

03:25 - 41.629 But that's the doctrine, the chances.

03:25 - 45.633 So that that that goes to identity.

03:25 - 48.669 Yes it can. Yes.

03:25 - 51.038 What else can you go to? Accident. Right.

03:25 - 51.539 I'm sorry.

03:25 - 53.808 It's an accident to refute accident?

03:25 - 54.308 That's easy.

03:25 - 57.778 Go against the defense of an accident. Yes.

03:25 - 00.648 And what's the likelihood of an accident happening?

03:26 - 03.451 Ten times and under doctrine of chances.

03:26 - 06.954 And the reason I suggest that has no applicability here

03:26 - 09.490 is, number one, you need numerous study.

03:26 - 12.093 You wrote about that justice. You.

03:26 - 15.529 Number two, you need significant similarity.

03:26 - 21.702 And, we also need to establish identity or lack of an accident.

03:26 - 21.936 Right?

03:26 - 23.871 I mean, I understand everything you're saying

03:26 - 28.409 about the characteristics of the, prior acts evidence here.

03:26 - 30.077 That's sort of beside the point.

03:26 - 34.014 If you don't have a question of identity and you don't have a claim of accident

03:26 - 38.052 or what is the evidence being offered for it, I don't know.

03:26 - 41.922 Well, I, I, the numeracy,

03:26 - 44.325 element of any

03:26 - 47.828 thing, civil or criminal that comes in front of a court is a very difficult,

03:26 - 50.498 a difficult issue to deal with is two.

03:26 - 51.932 Enough is five, enough is seven enough.

03:26 - 54.935 So I'm going to avoid that.

03:26 - 56.837 Just the Chief Justice

03:26 - 59.840 Saylor's opinion in hex.

03:27 - 03.411 How could that not be applied here

03:27 - 07.948 to, address, the consolidation question,

03:27 - 11.185 you have a defendant who wasn't contesting,

03:27 - 15.656 that he had conceptual consensual sex.

03:27 - 20.761 His defense was they were all prostitutes.

03:27 - 22.997 I paid them all.

03:27 - 26.867 And they are now all having some form of remorse

03:27 - 30.037 and are out to get me.

03:27 - 32.173 I guess I guess the question is

03:27 - 37.111 if why, under Chief Justice Saylor's view, would

03:27 - 40.981 the prosecution not have every right to show

03:27 - 44.552 other instances where,

03:27 - 47.922 in these two other cases, I guess the two to the one right is 1 to 2.

03:27 - 52.993 2 to 1 is when you're counting the numbers that the likelihood, the accident

03:27 - 57.298 that you would have consensual sex with three women,

03:27 - 00.501 all of them you paid and that would turn around

03:28 - 03.871 and say you raped them or didn't pay, but whatever.

03:28 - 04.505 Right.

03:28 - 08.042 Because one of the arguments was one of the women didn't get the pills.

03:28 - 11.612 She was hoping for justice, promising, I will do my best.

03:28 - 17.251 The difficulty is number one, and it goes back to justice.

03:28 - 18.886 Timing his question.

03:28 - 23.524 Traditionally, it's to prove and act or identity.

03:28 - 26.727 Absence of mistake.

03:28 - 29.730 So we're now expanding that

03:28 - 32.833 when even justice then chief justice.

03:28 - 34.802 Forgive me, sailor acknowledged.

03:28 - 37.771 And all the comments haters do as well.

03:28 - 41.075 That doctrine of chances is a pretty slippery slope.

03:28 - 42.276 And so.

03:28 - 45.346 And I keep harkening to Adam Winkle Reed.

03:28 - 48.616 What he wrote is the test

03:28 - 51.619 is extraordinary coincidence.

03:28 - 54.288 And to do extraordinary

03:28 - 57.458 coincidence, at least from his academic perspective.

03:28 - 00.127 And he was a prosecutor back in the day.

03:29 - 01.295 He was in the military.

03:29 - 05.132 So he knows the trial courts, not just the books on the shelf

03:29 - 10.237 was if you're going to argue extraordinary coincidence,

03:29 - 15.543 you want a baseline, just like with the cyanotic

03:29 - 19.847 episodes, how often does that happen in the general population?

03:29 - 20.981 Sadly,

03:29 - 23.851 the incidence

03:29 - 26.854 of men who have been accused of rape

03:29 - 29.957 more than once is not a low number,

03:29 - 33.193 and so we'd need some more data.

03:29 - 36.196 I'd suggest, if we're going there at all.

03:29 - 39.333 But I think it's a very slippery slope.

03:29 - 42.570 Is there a stopping place on that slippery slope?

03:29 - 45.573 How do you how do you,

03:29 - 50.110 how how is the doctrine properly used to defeat

03:29 - 53.747 a claim of accident, versus a slippery slope

03:29 - 56.750 to propensity?

03:29 - 01.322 It would be the numerous study

03:30 - 04.825 along with the distinctive nature of the act.

03:30 - 08.228 So if I said, oh, my first wife died

03:30 - 11.865 in the bathtub one week after

03:30 - 14.868 I took out the insurance policy,

03:30 - 17.104 I say this was my second wife here in the room.

03:30 - 18.339 So I do it most carefully.

03:30 - 20.874 But you understand the rest of this, right?

03:30 - 23.844 Well, we had the tub case in Allegheny County, right?

03:30 - 25.913 Years ago. The county. Okay.

03:30 - 27.715 And so something like that.

03:30 - 32.086 But it gets it's appropriate for doctrine of chances

03:30 - 35.522 precisely because in human experience,

03:30 - 39.827 with the distinctive nature and with the recurrence.

03:30 - 42.396 So the other just one thing on that, if I may,

03:30 - 45.532 since you and Justice Robson

03:30 - 49.303 both were going in numerous city there for a moment.

03:30 - 54.642 What what guidance would you have us give trial courts,

03:30 - 58.746 if any, on on how much numerous city is enough.

03:30 - 01.749 Numerous city for doctrine of chance.

03:31 - 04.852 So the easy cop out answer.

03:31 - 06.253 But it is a cop out answer.

03:31 - 08.522 But I think it's actually the right answer.

03:31 - 12.493 Is someone has to come in and establish some sort of a baseline.

03:31 - 15.663 And that's somewhat easy in the medical area.

03:31 - 20.968 As you know, justice worked with cyanotic episodes or something like that.

03:31 - 24.171 And remember, that's where this doctrine emerged.

03:31 - 28.942 This doctrine did not emerge on mens rea, in particular,

03:31 - 34.682 it was the peculiarity of a almost signature

03:31 - 40.320 like abnormal circumstance that very few of us have.

03:31 - 41.522 And I think one, if I'm

03:31 - 43.524 one of the

03:31 - 46.727 articles talked about, you know, if it happens once, maybe

03:31 - 50.431 if it happens twice, maybe if it happens three times

03:31 - 53.434 and it's so peculiar, we have a problem.

03:31 - 55.169 And that doesn't even prove

03:31 - 58.839 in the literature that the first one was necessarily criminal.

03:31 - 00.908 I guess your answer then kiss got again.

03:32 - 02.142 I don't want to touch the numerous.

03:32 - 05.145 I think it's it's dangerous.

03:32 - 08.816 Your answer to my question that if I understand

03:32 - 12.486 it is it's not unique enough

03:32 - 17.524 for a defendant in a rape case to assert

03:32 - 21.795 that the victim was a prostitute. Who?

03:32 - 26.533 Who is only accusing me because they regret the,

03:32 - 29.737 the encounter,

03:32 - 32.740 that that is too common

03:32 - 37.478 to allow the Commonwealth to produce other instances

03:32 - 41.014 where,

03:32 - 43.784 That would sort of rebut

03:32 - 46.787 that chance, the chance of having

03:32 - 49.923 multiple consensual encounters

03:32 - 53.060 that then turned around to be accusations of rape.

03:32 - 57.264 If until we

03:32 - 01.401 have some baseline, the answer is I don't know.

03:33 - 04.371 And it's no longer common in terms of how.

03:33 - 08.208 So it could be, I imagine, if we knew more.

03:33 - 12.212 And that's exactly what a prosecutor's office could do.

03:33 - 14.615 But we so I think that's interesting.

03:33 - 15.916 I think it's a good point.

03:33 - 19.052 And because if that is the law,

03:33 - 23.524 then the Commonwealth should be given an opportunity

03:33 - 26.527 to bring in expert testimony.

03:33 - 28.395 I mean, this is in other words, this is something

03:33 - 30.330 a jury couldn't sort out for themselves.

03:33 - 33.667 You're saying, you know, even if they brought in 15,

03:33 - 37.371 a jury couldn't, using their own,

03:33 - 41.508 knowledge and experience to docked. Wow.

03:33 - 45.445 15 prostitute's alleged prostitutes

03:33 - 48.849 that he's now saying have buyer's remorse.

03:33 - 51.985 And you know, that sounds beyond

03:33 - 54.021 crazy.

03:33 - 55.789 It can't his defense can't be true.

03:33 - 58.892 You're saying that even a jury couldn't make that determination.

03:33 - 02.830 It would always be a threshold determination for a judge,

03:34 - 05.833 unless for some reason the defendant didn't object.

03:34 - 09.236 So the real issue is going to be at the hearing before the judge.

03:34 - 13.841 Could a judge say properly, I'm sorry, Mr.

03:34 - 15.809 Epstein. Eight bathtubs.

03:34 - 16.510 That's.

03:34 - 19.513 I don't need any data.

03:34 - 21.114 I'm letting that go.

03:34 - 23.550 I think a judge probably could.

03:34 - 26.553 And I, it wise in and of itself, is suspicious.

03:34 - 30.557 That's a separate issue.

03:34 - 34.661 But with

03:34 - 36.063 with what I hit, I,

03:34 - 40.234 I'm sad to say, is a recurrent crime rape.

03:34 - 44.304 We need some, as the scholars

03:34 - 47.307 say, some baseline, some data, some something.

03:34 - 49.710 And I want to sum up on that. Yes.

03:34 - 53.247 And then move on to if you want to say anything about your admissibility

03:34 - 56.950 of the nurse's report, that's going to be my colleague Mr. Saw.

03:34 - 58.819 So say nothing about that, do you?

03:34 - 00.387 I will say nothing about,

03:35 - 07.361 Just that we ask this court,

03:35 - 10.264 Oh, I do have one very tiny.

03:35 - 13.200 And Justice Robson,

03:35 - 17.237 this court has never really adopted

03:35 - 23.043 doctrine of chance as a majority rule, to my knowledge,

03:35 - 27.915 in terms of mens rea or consent or anything like this.

03:35 - 31.785 The one case it cited is a case called Donoghue.

03:35 - 35.856 But that's physical acts of two children

03:35 - 39.960 under the care of one person in one place,

03:35 - 42.963 and they both suffer extreme.

03:35 - 47.401 Distinct and parallel injuries.

03:35 - 50.837 And that was for the limited issue of accident.

03:35 - 54.708 So I don't know whether it's proper

03:35 - 58.111 to say doctrine of chances applies to everything in the world.

03:35 - 00.681 I think it should be narrowly construed,

03:36 - 03.684 because all of this goes back to the slippery slope.