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[00:00:12] UNKNOWN:
you Thank you. Thank you. Okay. Thank you. Yes. th th Thank you. I thought she was here this evening. Good luck. Thank you. you . . Thank you.
[00:16:46] Speaker 02:
Good to see you again. You alright? From the matter of the Commonwealth versus Brian Walsh, no fork indictment, 2023-0091. Continuation of jury trial. Council is present in court. Council starting with the Commonwealth. Kindly identify yourselves for the court and the record.
[00:17:33] Speaker 06:
Good morning, Your Honor. Greg Connor for the Commonwealth.
[00:17:34] Speaker 01:
Good morning. Good morning, Your Honor. Anne Yass for the Commonwealth. Good morning, Your Honor. Tracy Cusick for the Commonwealth.
[00:17:40] Speaker 00:
Good morning, Your Honor. Good morning, everyone. Kelly Porges on behalf of Mr. Walsh.
[00:17:44] Speaker 05:
Good morning, Your Honor. Larry Tipley for the Commonwealth.
[00:17:45] Speaker 00:
Good morning. We need the defendant.
[00:18:07] Speaker 02:
Your Honor, for the record, the defendant is present in the courtroom.
[00:18:13] Speaker 00:
Thank you, Madam Clerk. All right. At the close of yesterday's day, the defense raised with me what I have listed as five separate issues that it wanted to alert the court to with regard to the expected testimony of Mr. Walsh today. As an initial matter, does the defense still intend to call Mr. Walsh today? We do not. You do not? All right. Does that move every issue that I researched last night? I apologize. No. I just want to make sure that the five issues that you raised and the issue with regard to the plea are no longer on the table. All right. I will conduct a colloquy with the defendant then now. And my intention is defense intend to call any other witnesses.
[00:19:20] Speaker 04:
We are not.
[00:19:22] Speaker 00:
All right, then we'll close tomorrow. We'll do the charge conference immediately after the rest of the day. Let me just put in the record so the record is complete. The Commonwealth previously, and I ruled on this at the side of the bench previously, the Commonwealth previously asked this Court to exclude the defendant's plea of guilty. And I guess the only way that would come in at this point is if he were testifying. But I just want to put in to the extent that I previously disallowed the defendant to go there with any other witness, and I frankly don't recall if I have previously. I want to put in the reason why I excluded that testimony now. The Commonwealth did file a motion to eliminate, to exclude evidence that the defendant pled guilty to misleading the police and to Anna Walsh's disappearance. and improper disposal of her body. After consideration, I allowed and still am allowing the commonwealth motion for two reasons. First, the defendant has failed to show how such evidence is relevant to the remaining charge of murder. And I specifically acknowledge that I read this morning the defense's motion to admit the evidence of his guilty plea, which has been docketed as 216, That was filed on December 11, 2025 this morning, I believe. I have read it, but it doesn't do anything more than to set forth the elements of the crimes of murder. Based on defense counsel's opening statement, it appeared that the defendant was going to testify in this trial, and at that time, He could have made reference to his plea if I so allowed him to. But whether or not he is charged or pled guilty to such actions relating to his prior plea of guilty before this court is irrelevant to whether he murdered his wife. Second, the inclusion of the evidence of the defendant's guilty plea on the two charges would risk the introduction of extraneous factors as part of the jury's consideration on the murder charge. As explained by the SJC in Commonwealth versus a juvenile 396 Mass 108 112, it's well established that a jury's verdict must be based solely on the evidence in the case without regard to the possible consequences of their decision. And there's a specific instruction in my draft jury instructions that addresses this. Continuing with this case, The role of the jury is to make fact-finding findings of fact and determine the guilt or innocent of the accused without regard to probable punishment. To inform jurors of a sentencing consequence of their verdicts is to invite a results-oriented verdict and possible deviation from the basic issues of the defendant's guilt or innocence. I also cite to Commonwealth v. Sanchez, 70 Mass Appellate Court, 699-701-2007. While the defendant here is not seeking to enter evidence of the possible consequences of a guilty verdict on the murder charge, the rationale behind the holding in a juvenile applies with equal force. If the defense was permitted to tell the jury that he pled guilty, to the two lesser charges, there is a risk, substantial risk, that the jurors will consider the defendant's impending punishment on those charges when determining his guilt on the remaining murder charge. Indeed, the defendant has not offered any other rationale for the entrance of such evidence. And as was stated in Commonwealth v. Ferrera, 373 Mass, 116, 124, 1977 case, the jury's function is not to weigh possible verdicts with an eye towards dispensing mercy in certain cases or imposing heavier penalties in others. Rather, the jury's function is solely one of fact-finding with respect to the legal standards regarding innocence or guilt. Accordingly, the defendant is not permitted and has not been permitted to put evidence before the jury of his prior guilty pleas in this matter. Clerk alerted me to also file this morning 321. Pause. The Commonwealth's supplemental motion to eliminate, to exclude evidence of the November 25 guilty plea, which I will concede I did not read, because I just got it when I stepped on the bench. But I'm not sure it makes a difference in light of my ruling. I think it's moot at this time, Your Honor. Thank you. All right. Is 216 something you filed earlier? Why does it have this number?
[00:24:20] Speaker 02:
No, that's my error, Judge. That's my error. I corrected it on the original. It should be 318. It's my poor vision.
[00:24:27] Speaker 00:
Okay. So just so the record's clear, when I said a moment ago, I reviewed, I did review what the defendant filed this morning. It's just not 216, it's 318. All right. On the docket. All right. I see that I have two other pleadings up here, which I will address and brief. One of them I was going to address anyway. It's in substance, maybe not exactly as it's presented. Those are items number 319 and 320. Let me talk about 319. I haven't read it either. It's a motion to prevent the Commonwealth from basically, I believe, an attorney tipped in, you can, or porges, you can illuminate me greater, but you don't want them saying,
[00:25:24] Speaker 05:
He promised you something in the opening statement that he didn't deliver.
[00:25:34] Speaker 00:
So I have already pulled out some case law on this and where the boundaries are, and I was going to give it to you in the charge conference anyway to make sure that you are aware where the boundaries are. The SJC has spoken on this issue of what's permissible and what isn't. The Commonwealth is allowed to get into it a little bit. I will alert you to those cases, and that's where I intend to draw the line as to what's permissible. Probably have them on my bench right now, but I couldn't tell you where they are. But when we get to the charge conference, I'll give those to you so you both have the benefit of my research on that issue. The other motion, 320, is I expect the defense will renew after I bring in the jury, ask if you're going to present any evidence, and you will rest. And I'll hear you at the side of the bench with regard to that. So now, I do want to conduct the colloquy with the defendant at this point. I hold on a second, because I'm not sure I have my colloquy with me on the bench, despite the fact that I have quite a few binders here. I think the one I need is in my office, so stay tuned.
[00:26:59] Speaker 03:
Nobody move. Enter your participant ID. Please enter the meeting code. The meeting has not started. Please wait or try again later.
[00:28:27] Speaker 07:
Thank you.
[00:29:01] Speaker 02:
Thank you, Judge. Mr. Walsh, if you could stand and raise your right hand, please. If you solemnly swear or affirm the testimony you also gave in the cause now in hearings to be the truth, and that you shall give all true answers to all questions as put you by the Court in the cause now in hearings, so help you God.
[00:29:15] Speaker 04:
I do.
[00:29:15] Speaker 02:
Thank you.
[00:29:18] Speaker 04:
Excuse me.
[00:29:19] Speaker 00:
You can be seated. I just was wondering if you were asking me if I wanted him over on the witness stand. I do not. Mr. Walsh, one important decision that all defendants in every criminal trial need to make is whether or not they're going to testify in a particular case. You have an absolute right to testify at this trial, and your right whether or not to testify is solely your decision. This means that you are not required to take your attorney's advice. I'm sure that your attorneys Attorney Tipton and Attorney Porges have told you that if you do testify, the Commonwealth has the right to cross-examine you. That is the right to ask you questions. If you do not testify and you and your attorney request me to do so, during my final instructions to the jury in the law on this case tomorrow, I will tell the jury that you, like all persons charged with a crime, have the right not to testify and that the jurors may not speculate about your decision not to testify. First I'm going to ask you some preliminary questions. Sir, in the last 24 hours have you had any alcohol or alcoholic beverages?
[00:31:06] Speaker 04:
No, I have not.
[00:31:07] Speaker 00:
In the last 24 hours have you taken any prescription medicines?
[00:31:12] Speaker 04:
I have not.
[00:31:13] Speaker 00:
In the last 24 hours have you consumed any legal or illegal substances? I have not. Is your mind clear here today? It is. Tell me in your own words, what are we discussing?
[00:31:30] Speaker 04:
Whether I'll testify or not in my trial.
[00:31:33] Speaker 00:
Right. Have you discussed with your attorneys the decision about whether or not to testify in this trial? I have. And have you had enough time to discuss your decision with your attorneys? Yes, I have. Have your attorneys discussed with you the pros and cons of testifying and not testifying? Yes, they have. And do you understand what your attorneys explain to you about your right to testify?
[00:32:08] Speaker 04:
Yes.
[00:32:14] Speaker 00:
Has anyone threatened you or promised you anything to get you to give up your right to testify on your own behalf?
[00:32:23] Speaker 04:
No.
[00:32:25] Speaker 00:
Have you made a decision about whether you wish to testify at this trial?
[00:32:30] Speaker 04:
Yes, I have.
[00:32:31] Speaker 00:
And what is your decision?
[00:32:34] Speaker 04:
I will not testify.
[00:32:35] Speaker 00:
Does any party wish me to ask any further questions before I make my findings?
[00:32:43] Speaker 06:
No, Your Honor. No, Your Honor.
[00:32:48] Speaker 00:
I find that the defendant, Brian Walsh, freely, voluntarily, knowingly, and intelligently has waived his right to testify at this criminal trial and that he's done so with the knowledge of its consequences. I accept his decision. We can bring the jury in.
[00:34:16] UNKNOWN:
That's all right.
[00:34:54] Speaker 05:
as you're entering. Hear ye, hear ye, hear ye. All persons have anything to do with the honorable Dianne Fernandes, Justice of the Northup spirit court. For our prior attention, you may be heard. We also have a call from Massachusetts in this humble court. Please be seated. Please turn off your cell phones.
[00:35:43] Speaker 00:
Morning, jurors.
[00:35:44] Speaker 07:
Morning, morning.
[00:35:46] Speaker 00:
Jurors, we'll start today with the forequest. Jurors, were you able to comply with my order that you not speak to anyone about this case? Yes. Yes. We're able to comply with my order that you not do any research about the case. We're able to comply with my order that you not go on any social media or access any news media. Yes. Those four questions all answered in the affirmative. We're ready to begin today's work. Does the defense wish to call any witnesses in this case?
[00:36:34] Speaker 05:
We do not care.
[00:36:35] Speaker 00:
Defense rests?
[00:36:36] Speaker 05:
Defense rests.
[00:36:38] Speaker 00:
All right. I'll see counsel at the side of the bench.
[00:36:56] UNKNOWN:
Thank you. . . Thank you. Thank you.
[00:40:01] Speaker 00:
I think I've referred to the trial as I sort of see it as different chapters of the book. And another chapter of the book has just closed. And that is that all the evidence in the case has now been presented to you. I remind you at this time, George, and I reminded you of this at the close of yesterday, the defense has no burden in this case and has no burden to produce any evidence at all. And that's because, as you probably are all very well aware at this point, the burden lies on the commonwealth to prove its case beyond a reasonable doubt. And it never shifts from the commonwealth. So what happens next? What happens next is the next chapter we're going to go to as we move towards your deliberations is that really two things that happens interspersed. I'll explain. Two things that need left to be done is I need to give you my jury charge, my legal instructions to you. And then you need to hear the closing arguments of counsel. So the way that happens is I will give you, when we next reconvene, which is going to be tomorrow morning, and I'll tell you why in a minute. I will give you instructions on the law that's specific to the charge that's primed here, the charge that, the prime that is charged here, excuse me, murder. Then the lawyers will do their closing arguments. And then I go back and give you additional instructions. I call them more generalized instructions. parts of the trial happen interspersed. A little instruction, argument, more instruction. That's going to happen tomorrow morning. And I try to be as transparent as I can in my cases. The reason for that is I don't just pull these instructions out of the ether, as you might imagine. There are instructions and guide instructions. And there, I get the input from the lawyers of what they're seeing. And that hasn't happened yet, because we've moved at a pretty efficient pace. So I need to do that work with the lawyers today, and I will. And that's what we'll be doing today. What you'll be doing today is getting some rest and some sleep so you can be all rested for tomorrow morning. And I remind you, jurors, I'm going to send you off for the day. I remind you what I just checked in with you. I'm counting on you to be obedient to those rules right to the end. Don't speak to anyone about this case. Don't do any research about this case. Stay off of any social media, news media, and continue to have open minds as we finish these last chapters of this trial. Have a great day.
[00:43:06] Speaker 06:
All rise for court, please.
[00:43:09] Speaker 05:
Please close your notebooks and follow me.
[00:43:43] Speaker 00:
Couple of housekeeping things. Yesterday, at the side of the bench, we had a discussion about, during Mr. Mu's testimony, in which I asked that a certain document be marked as, I think it was M or N for identification, Madam Clerk, which was it? N, I believe.
[00:44:33] Speaker 02:
With the hammer?
[00:44:34] Speaker 00:
No. Oh, the other one was N, Your Honor. N for identification. Has that been done? This is a question to the defense. On page 53 of that transcript, I want that whole document to be marked for identification as up and down.
[00:44:51] Speaker 07:
Okay.
[00:44:51] Speaker 00:
I'll get that to the court this morning. And just so the record is clear, as I understand it, that is a multi-page document of which Mr. Mootlue was asked to review a single page of, but it comprises A record of his police interview, is that correct?
[00:45:14] Speaker 01:
That's correct, Your Honor.
[00:45:38] Speaker 00:
The party's ready to do the charge conference recognizing that I haven't given you a draft yet because of the way things played out. I did stay last night and draft the jury instructions with the benefit of two things so far that I considered, or at least three things. One was what I had marked for identification the other day, which is the first two pages of the model homicide instructions. I'd asked each of the parties to mark up, so to speak, those two pages of the SJC's model instructions. So you did at my request, and I had the benefit of that information. I also received yesterday, Madam Clerk, if you could get me while I'm talking, the defendant's request for jury instructions concerning consciousness of guilt, emotional evidence, and bad acts. I had that. I considered that as I was drafting the draft instructions yesterday, and I'll talk to you about that what I didn't do, and I sort of made a mental, because I ran out of steam, frankly, yesterday. I know that very early in the case, before the case started, that the Commonwealth had filed pleadings with regard to jury instructions, and I made a mental note to go back to those this morning, but I didn't frankly have a chance to do that since the day is unfolding a little differently than I expected at the end of yesterday. So I tell that to you so that you know that if there's something that you wrote in there that's still relevant now, it might still be, that I don't have that fresh in my mind anyway. All right? Yes, Your Honor. said more bluntly, if there's something in it that I don't go over now that you want to persist with, just.
[00:47:36] Speaker 01:
Your Honor, there is actually, with respect to the consciousness of guilt instruction potentially, I don't know if it would make sense to take a brief break so that I could collect my notes on that topic.
[00:47:48] Speaker 00:
All right. I will take a brief break before we, and what I'm going to intend is this. The draft instructions as I have them right now include, what I tried to do is when I was scratching my head, saying to myself, why do they want this instruction in? I put it in anyway, and then I put it in italics so that that should be your clue that I'm questioning either why this is in here, for instance, the object of the killing must be a human being that the defense has asked for, question mark, why are they asking for that. So the italics either means you ask for it, I'm questioning why you want it, be prepared to answer that question, or In the instance of the instruction, I have instructions drafted right now for, and this is in part two of the instructions, impeachment by prior conviction, impeachment by prior inconsistent statement, and impeachment by prior bad act. And in particular, in the prior bad act, I took a swing at Attempting to fairly describe the evidence that's been presented to the jury with regard to the defendant's bad acts. I tried to do it neutrally, but there may be other words that you like better. So those are italics. even though the whole instruction isn't in italics. Who's closing for the defense?
[00:50:13] Speaker 04:
I am.
[00:50:14] Speaker 00:
And who's closing for the Commonwealth? The address of the Refuse Center 300 Forest Street Peabody?
[00:51:32] Speaker 06:
Yes, Your Honor.
[00:51:59] Speaker 00:
Is the defense now seeking the instruction with regard to the defendant's right not to testify? Yes, Your Honor. I'll add it. Comel seeking a mode of instruction.
[00:52:26] Speaker 01:
Yes, Your Honor.
[00:52:47] Speaker 00:
Again, look for the highlighted language in the consciousness of guilt instruction and see if there's some other language you would prefer that adequately captures trial evidence. All right. Let me propose this. I'm going to make those edits and additions based on the information that you just provided. And then I'm going to have Madam Clerk shoot you a copy of the draft instructions. And I know you probably want to be spending your afternoons working on the closing arguments. So I think it would be reasonable given What I think is relative to other cases, the instructions are pretty straightforward. By that I mean there also was a lot of agreement with regard to your submissions as to what you wanted in these instructions. And so it supported the second half of the instructions, the special instructions. I will go back and look at what the Commonwealth submitted early on in the case. Should I presume that everything you wrote then you're still pursuing today? ADA Q second.
[00:54:14] Speaker 01:
Yes, Your Honor. The Commonwealth was seeking a direct and circumstantial evidence instruction, a consciousness of guilt from the MCLE instructions, and an expert witness instruction.
[00:54:24] Speaker 00:
All of those instructions are presently in the charge, in the draft charge. So thank you, because that prevents me from trying to find out where it is.
[00:54:36] Speaker 01:
Yes, Your Honor. It's under general instructions at the back of the pleading the preliminary request for jury instructions and we just provided the name of the instruction from MCLE.
[00:54:47] Speaker 00:
All right. I don't know if I probably grabbed it. I'm not a huge consumer of the MCLE instructions. I usually use other sources but you can see what I came up with and you can tell me whether you disagree with it. But we talked about the Consciousness of Guilt instruction and it does not I've never given, as far as I recall, a version that put my thumb on the weight of the evidence. So it presently either says you've heard evidence suggesting, what page is it on? Hold on, it's on page 27. Yeah, some evidence suggesting. I've never, I don't think to my knowledge or recollection, I've never used anything that was stronger than that. Yes, counsel.
[00:55:52] Speaker 05:
I just wanted to say, I hope you haven't spent any time on this. The object of the killing must be a human being. You mentioned that this morning.
[00:56:03] Speaker 00:
It was just not crossed out of your version, I don't believe.
[00:56:06] Speaker 05:
And it should have been.
[00:56:09] Speaker 00:
It's not an issue. So just take it, can I take it out? Thank you. I didn't spend any time on that. There are other things I spent, like about five issues that were of interest to me. But I learned quite a bit researching though, so didn't have a chance to look at those issues recently and it's always good to remind yourself of them. I'll take that object of the killing out. All right, so let me get these to you. And I'm going to suggest, what's it, 930? Does 11 o'clock sound reasonable?
[00:56:48] Speaker 06:
Yes, Your Honor.
[00:56:50] Speaker 00:
Gives you an hour and a half to stew on. I'm going to get them to you in about 10 minutes. I don't have much to change here from what I drafted.
[00:56:56] Speaker 06:
I'm going to say 1030.
[00:57:03] Speaker 00:
1030? Yes, Your Honor. Sounds good. 1030 it is. If you need 11, you let me know. But we'll say presentively 1030.
[00:57:07] Speaker 01:
Your Honor, could the Commonwealth also request the cases the court referenced about I'll get you those.
[00:57:13] Speaker 00:
I will get you those. There are parameters. I looked at it about two or three days ago, maybe over the weekend, something like that. Again, something I hadn't looked at in a while and it's always good to look at the law. But I'll get it to you.
[00:57:27] Speaker 01:
Thank you, Your Honor.
[00:58:32] UNKNOWN:
Thanks. Thank you. you . . Thank you. . . . . . Thank you. Thank you.
[01:07:56] Speaker 07:
Thank you very much.
[01:08:19] UNKNOWN:
I mean, you see, we didn't do any of the things that we were planning to do. We didn't do any of the things that we were planning to do. Thank you very much. . . . . Thank you very much. you Okay. All right. Okay. Do you manage to manage the data sets? I will have a go. I will just show you that I will tell you some of the things that I would like to share with you today. I will just show you that I will tell you some of the things that I would like to share with you today. It may be clear that the only thing that we have in that area is the settlement over the week-end. So in a way, in a way, the case which occurred Saturday, the report is going into a very general setting. So in terms of this is going into a rather complicated case that's going into that, I think the only thing we're doing right now, I think it's now the night before the 3rd and 4th of January.
[01:17:04] Speaker 07:
Thank you.
[01:18:22] UNKNOWN:
Thank you. you Thank you. you She's a nice woman. . . Thank you. you Thank you. . . you Thank you. Thank you. . . you Thank you. . . . . Thank you. you Thank you. you Thank you. Thank you. Thank you. you you Thank you. Thank you. you Thank you. . . you . . . . Thank you. Thank you. Thank you. you Thank you. Thank you. All right. Thank you.
[02:30:16] Speaker 07:
Thank you.
[02:31:01] UNKNOWN:
Thank you.
[02:32:15] Speaker 02:
We're back on the record the matter of the Commonwealth versus Brian Walsh indictment two thousand twenty three zero zero nine one.
[02:32:59] Speaker 00:
So I know you haven't had a long time to look at them, but we'll take a stab at seeing how far we can get today, and then we'll reassess whether we need to charge conference a little bit more tomorrow. All right? So my approach to charge conferences is pretty informal. And so what I'll ask for each of you to each side is based on your initial review of the draft, where's the first page that you wish to either bring something to my attention because you either don't want it in there or you want it in a different way. So an edit or an extraction or an addition, what's the first page for the Commonwealth?
[02:33:49] Speaker 01:
Your Honor, I'd say page 15 going into 16, the impeachment by prior conviction.
[02:33:54] Speaker 00:
All right, stop right there. Does the defense have anything before page 15?
[02:34:00] Speaker 05:
Number one.
[02:34:01] Speaker 00:
Page one?
[02:34:02] Speaker 05:
She just took it.
[02:34:05] Speaker 00:
Are you joking?
[02:34:06] Speaker 05:
No, no, no. I'm sorry. Premeditation. I'm sorry. I was saying it's paragraph one.
[02:34:14] Speaker 00:
I said page one is the index. Actually, it's not really page one.
[02:34:19] Speaker 05:
No, we need it forever if we were starting with page one.
[02:34:22] Speaker 00:
All right. So what page?
[02:34:24] Speaker 05:
Page six. And I'm just lodging my objection, Judge, to otherwise the instruction complies, in my opinion, with the model theory. I'm renewing my request for my modification. that I filed on behalf of defendant's request for jury instructions concerning conscious and tailed emotional evidence and bad acts. Paragraph one, I am asking that the section be regarding the timing of premeditation be removed for the reasons I stated in the motion.
[02:34:59] Speaker 00:
All right. I read your motion. denying your request to make the change. As you know, if I thought, if I agreed with you, I guess the underlying premise that I thought there was something wrong with that instruction, I agree with you. These are just model instructions. Now they're model instructions that people have spent, I don't know, countless hours assessing the propriety of, but I don't think that that instruction is improper in any way. I think it's a proper instruction and it's one that ought to be given in this case. So I won't modify the model SJC instruction with regard to the request, but it's been fully preserved for the appeals court if they decide to change the instruction.
[02:35:56] Speaker 05:
fifteen onto sixteen anything from the defense before page fifteen other than what you just mentioned page nine yes counsel the uh... instruction uh... parentheses b yes of a dangerous weapon okay i think that's uh... in the context and circumstances of this case that instruction is very prejudicial and misleading there is no evidence no direct evidence or circumstantial evidence that there was a weapon used that caused the death of Anna Walsh. And so what the jury is being allowed to do... What about the breadcrumbs that the Commonwealth put down? What, the breadcrumbs?
[02:36:46] Speaker 00:
Well, why don't you argue, then I'll let them... I don't want to make their argument for them. That would be... But I want to get to the right answer. So go ahead and you argue, and then they'll argue, and then you'll have an opportunity to rebut.
[02:37:01] Speaker 05:
I understand the admission of the exhibits. And I understand the admission of the hacksaw. But to suggest to the jury that they can just pick and choose whatever quote weapon, even if you can define it that, and just speculate as to, well, this was used, this wasn't used, that is requiring the jury to speculate. that a weapon was in fact used when there's no evidence of that, and secondly, to speculate that some of the evidence that was introduced might have been a weapon that was used without any evidence that in fact it was. And given the state of this evidence, This instruction invites the jury to speculate without sufficient evidence to reach its conclusion, and I would ask that it be removed. Because all it does, well, I'm going to repeat myself. I'll leave it at that.
[02:37:58] Speaker 00:
All right, Commonwealth.
[02:38:00] Speaker 01:
Your Honor, to suggest from the evidence, it's a reasonable inference based on the safari history and the searches regarding getting DNA off of a knife, using a dishwasher to remove DNA. One can infer that an object was used, a dangerous weapon was used to murder Anna Walsh. There's also the evidence of the defendant's trip to the Vin and Liquors dumpster when the liquor store was closed. I believe the manager of the liquor store identified it as the defendant throwing that bag in the dumpster. That's prior to the trip to Lowe's or any of the stores where he purchased the materials. I would suggest it's a reasonable inference that a dangerous weapon was used here and would ask that the court keep that instruction in.
[02:38:44] Speaker 05:
I might have misheard, but I thought I heard Ms. Cusick say DNA on the knife.
[02:38:50] Speaker 00:
No, she didn't say that. Because there is no DNA on the knife, right?
[02:38:54] Speaker 05:
That's correct, Your Honor. But I did hear you say knife, didn't I?
[02:38:59] Speaker 00:
I didn't hear her say knife just now. There was a search... There is a knife above the...
[02:39:05] Speaker 01:
There is a knife, but there is also a search in the web history, in the defendant's report.
[02:39:11] Speaker 00:
I remember that. The search was specific, as I recall it, and remind me if my memory is wrong. Is the search with regard to the dishwasher specific to a knife?
[02:39:25] Speaker 06:
Your Honor, may I? I believe that I can answer this question. There is a Slate.com article that the defendant went to that was regarding can DNA be removed from a knife. Yes. Then the dishwasher is... Following that, right? Follows that and it's can the dishwasher, and I'm just trying to find the exact words.
[02:39:56] Speaker 00:
Give me the page number on the I think it's exhibit 79, is that right?
[02:39:59] Speaker 06:
It's exhibit 79. All right. And then page number four, the DNA off of a knife.
[02:40:05] Speaker 00:
Yes.
[02:40:05] Speaker 06:
It's page 578. Let me get there. Okay.
[02:40:18] Speaker 00:
I'm there.
[02:40:19] Speaker 06:
Okay. Then if you go to page 670.
[02:40:24] Speaker 00:
Hold on, I just want to look at these.
[02:40:25] Speaker 06:
Sure, I apologize.
[02:40:27] Speaker 00:
Is it possible for Dina to take clean DNA off of a knife? And that's done on 1123 at 934 a.m. Yes, Your Honor. Okay, and just putting all this evidence together. When was the, Vinnon's Liquor is also on the 1st, it's at night, because I remember it being a little dark. What time is that?
[02:40:49] Speaker 01:
Yes, Your Honor, it's dark at the Sir, at Vinnon Liquors.
[02:40:51] Speaker 00:
By 30, 430, something like that?
[02:40:53] Speaker 01:
About 5 p.m., Your Honor.
[02:40:54] Speaker 00:
All right. Okay.
[02:40:56] Speaker 06:
And so if you were to go to page 670?
[02:41:00] Speaker 00:
Yeah, let me get there. Yes?
[02:41:05] Speaker 06:
And if you would go to record 2430.
[02:41:07] Speaker 00:
Does the dishwasher clean blood?
[02:41:10] Speaker 06:
Yes.
[02:41:11] Speaker 00:
That's at 11 at 152. Also before the?
[02:41:17] Speaker 06:
Been in liquors. Right. And then on page 671, there is a record 2433. Is it possible that a knife
[02:41:32] Speaker 00:
Which had blood on it remains contaminated with HIV after it's been washed with hot water and dishwashers.
[02:41:40] Speaker 06:
Yes, Your Honor.
[02:41:43] Speaker 00:
And above it does a dishwasher clean blood?
[02:41:45] Speaker 06:
Yes, Your Honor. So, I think earlier you referred to breadcrumbs.
[02:41:57] Speaker 00:
That's what I said.
[02:41:59] Speaker 06:
So, our position would be it's a reasonable inference based on the searches, the behavior of going to vinion liquors and then This is all before the Lowe's trip where the other articles are bought for the purposes of the dismemberment. And if you look into the searches on the second, it's instructions on how to dismember. So there I see what our argument is is that those searches show the reasonable inference that a weapon was used.
[02:42:41] Speaker 00:
All right, there are the breadcrumbs.
[02:42:43] Speaker 05:
Attorney Tipton, back to you. However, I would ask then, I think I see the writing on the wall, that the instruction will remain, but I would ask then to be fair and balanced, that a sentence be added, that you are not to speculate about whether a knife was used, or work to that effect to help guide the jury to avoid speculating about any and all of the tools and weapons, so-called weapons. I just think the jury is going to think, oh, I can cherry-pick whatever I want to and call it a weapon and use it to find the defendant guilty of first-degree murder. And I'm trying to make sure that the jury does not get such a broad instruction that allows them to speculate. So, I'll leave it at that.
[02:43:55] Speaker 00:
Well, I'll give some more thought about whether I add some language in there with regard to speculation. And if you wish, you can provide me with some recommended language. But as you know, the whole issue with speculation is handled quite completely in other parts of the instruction. But I'll think about it.
[02:44:24] Speaker 05:
I will send the court, if it's OK, I'll send an email to the court today with suggested language.
[02:44:33] Speaker 00:
All right. As of this time, the instruction is going in and subject to any additional edits. But I think there's enough there that the Commonwealth has presented, as I said, the breadcrumbs. This case is what it is. It's been a circumstantial case from the beginning. And so those breadcrumbs are important for the Commonwealth's case. And I think they've properly established it. to a sufficient degree to get this instruction about use of a dangerous weapon. But I'm also mindful of what you say. I'll go back and look at the section about the prohibition against any speculation or guesswork and see if I feel like it accurately and completely addresses those concerns. And I'll be open to seeing whether there's something else that needs to be added to make it more easy for the jury to digest. this aspect. That's all I can say right now. All right. We're still at the defense. Anything else before page 15? No. All right. So now we'll move to the other side. I'm moving to page 15. Did you say 15 into 16?
[02:46:03] Speaker 01:
The impeachment by prior conviction.
[02:46:06] Speaker 00:
Yes. I guess I lifted part of this language from the defense's request.
[02:46:12] Speaker 01:
Your Honor, this appears to have language suggesting a testifying person being impeached.
[02:46:19] Speaker 00:
That's probably because when the defense, I lifted it from your instructions and at a time when I think that was the expectation. But let me go back. Well, that first sentence, they have heard evidence through stipulation, right? Is it later than that that you only read the first sentence so far? You've heard evidence. They have through stipulation, right?
[02:46:53] Speaker 01:
Yes, Your Honor.
[02:46:54] Speaker 00:
That sentence is OK.
[02:46:56] Speaker 01:
It's on the next page only for the limited purpose. And I suggested limited purpose.
[02:47:03] Speaker 00:
I see. I see. I see. So does the whole thing come out?
[02:47:29] Speaker 01:
Your Honor, I note in Commonwealth's motion limiting number 12, paper 198, the Commonwealth laid out the purpose for which it was seeking to bring in the evidence of the federal charge. Perhaps that language from that could be substituted, as you may only consider this evidence to understand the relationship between the defendant and the victim, or something of that nature, to understand the complete circumstances of the situation in the home at the time of the events at issue here? Well, I don't like that. I think, Your Honor, the model instructions all do seem to include you may only use this for the limited purpose of, and I suggest they should be given a purpose.
[02:48:18] Speaker 00:
But it's not impeachment. I mean, I did put that in there last night based on the information I had at that time. But that prior felony conviction is no longer impeaching Mr. Walsh. So it just seems to me like it should be out.
[02:48:36] Speaker 05:
We think it should be out.
[02:48:39] Speaker 00:
But maybe it should be out. I mean, it's no longer impeaching him. And the relevance of the prior federal conviction goes to motive intent, it seems to me, right?
[02:48:56] Speaker 01:
Your Honor, I think there were reasons it was introduced to understand the relationship in the home as way of a shorthand. So I agree it is not impeachment evidence.
[02:49:06] Speaker 00:
My present ruling is that the whole section is coming out now. The reason the impeachment by prior and consistent statement is now in italics is I'm sure that happened with some witness, but I'm not 100% sure.
[02:49:24] Speaker 05:
Anybody?
[02:49:28] Speaker 01:
Your Honor, I think some witnesses may have testified a little bit differently than they had previously and were shown documents. I don't know that it rose to the level of impeachment, but there was some questioning of some witnesses about something they had said previously.
[02:49:45] Speaker 00:
Yeah, I just don't think that we ever got to a statement. I don't remember anybody grabbing a grand jury transcript and cross-examining. I think the closest we got to it, I think, was Jim yesterday, Mr. Mutlu yesterday, and that wasn't with a prior statement. It was his prior statement, but he just said, I don't remember. So is that enough to warrant the instruction?
[02:50:13] Speaker 01:
Certainly, if the defense wants it out, we agree we should take that out.
[02:50:18] Speaker 00:
I don't need to give them more instructions that they're wondering, what the heck is she talking about? So I'm inclined to take it out.
[02:50:25] Speaker 05:
And we have no objections.
[02:50:27] Speaker 00:
All right. That's why it was in italics before.
[02:50:31] Speaker 01:
Your Honor, then the impeachment by defendants prior bad act?
[02:50:35] Speaker 00:
Yes.
[02:50:36] Speaker 01:
With this, I would suggest that the lying and the conveying of the body are part and parcel of the murder at this point. It's the disposal of the evidence of the crime and the lying about what he had done. I would suggest it's not a prior bad act. It's part of the evidence of the case.
[02:51:07] Speaker 00:
It's an interesting question.
[02:51:09] Speaker 01:
There's many interesting questions in this case, Your Honor, no doubt.
[02:51:12] Speaker 00:
It's an interesting question whether Where are you drawing the line of a prior bad act occurring? Can you have a prior bad act that's part and parcel? Is it prior to this time? Is it prior to the crime that was charged?
[02:51:33] Speaker 01:
It's arguably subsequent, Your Honor.
[02:51:35] Speaker 00:
Right. What about the lying to his federal probation officer?
[02:51:44] Speaker 01:
would appear to be a bad act, arguably a subsequent bad act.
[02:51:53] Speaker 05:
Yes? I tried to address what I believe are prior and subsequent bad acts in our pleading at page six. And I took it from the Massachusetts jury trial bench book. And I modified it only to accommodate what I believe is relevant and pertinent. And the gist of that model instruction is to make sure that the jury, if they hear what they consider to be bad, and I frame our instruction as prior and subsequent bad acts, that he's not charged with those and that they have to, just like the model instruction says, If they deem those to be bad or subsequent bad acts, they can only use them for a limited purpose. And I think that this jury will probably be asking themselves, I don't know who in the world wouldn't ask themselves, that's a bad thing to do. If they believe that the body was dismembered, and if they believe that the body was disposed of in bags, anybody's going to think that's a bad act. And they need to be instructed that he was not charged with anything. And therefore, they can only limit. They can only use that evidence in a limited basis. And I don't much care for the specific language of motive or anything, but it is the model instruction. And I think I would try to parse.
[02:53:27] Speaker 00:
So I'm looking at your instruction right now. And that really deals with the art fraud, right? Am I, are we on the same page, Attorney Tipton? But are you suggesting, I just want to make sure I understand what the respective positions are. Are you suggesting then that you want that, you want to expand that, so you want an instruction to the jury that includes the language that I have in there, which is lying to the police and disposing of the body of Anna Walsh? and the lying to the probate. So that's not what's in here, but are you saying, do what you did, Judge, in the instruction, but add what I want in instruction six. Is that what you're telling me?
[02:54:15] Speaker 05:
Yes.
[02:54:15] Speaker 00:
OK. Do you want that to be included So in the proposed instruction, and so the record's sort of clear, I'm talking about the defendant's request for jury instructions concerning consciousness of guilt, emotional evidence, and bad acts. I don't know what the docket number is, but I got that. It was filed yesterday, December 10th. and I'm looking in particular at your request number four, prior and subsequent bad acts. That's what you were referring to, Chair. Okay, and so in that, as you initially drafted it yesterday, it was about the art fraud, but you're now suggesting that that would be an appropriate instruction also for the other bad acts that I've identified in my draft on page 17 under impeachment.
[02:55:09] Speaker 05:
Yes, Your Honor, I had included I was anticipating there to be a proposed other instruction like you had. But yes, I would ask them that.
[02:55:19] Speaker 00:
So I think I understand what the ask is now. Right. And so now go to the Commonwealth.
[02:55:25] Speaker 01:
Your Honor, I think I understand it better as well. It also says in the instruction about the middle of it, if you credit the statement. I don't know that we're specifically talking about a statement here. And maybe that could be expanded if the court is inclined to keep that instruction in.
[02:55:40] Speaker 00:
Well, I think the language comes in that defendant hasn't been charged with committing any other crimes other than murder. I'm just pausing there because if I move the federal art conviction and somebody could board Smith that and says, oh, yes, he was, he pled guilty to a federal crime. Maybe the better way to say it is the only charge you need to consider is the present charge of murder. Are you looking at the first sentence?
[02:56:37] Speaker 06:
Yes.
[02:56:43] Speaker 00:
Let me take a minute. All right, so if I say something along the lines of, the only charge the defendant is now facing is the charge of murder. You've heard mention of other acts allegedly done by the defendant, namely, and I wrote a few things in there, and it would seem to me what the defense is asking is that I ask add, excuse me, the language that you have in your request was including acts involving a federal case concerning art fraud that he was charged with in 2018 and sentenced in 2024. Comma. I'll just put them in date orders, right? Lying to the police and or disposing of the body up on a Walsh and or lying to his federal probation officer. So all four things would go into that parenthetical. Okay. Then I would pick up with what the defense has. You may not take the defendant's prior acts as substitute proof for that they committed the crime charged, nor may you consider them as proof the defendant has a criminal personality or bad character. And then the rest of that, you see that all there. All right. What do you think about that, Comma?
[02:59:13] Speaker 01:
Will the court be removing the, but if you credit the statement sentence?
[02:59:17] Speaker 00:
Yeah, no, what I would do is, so the, and make the change that the only charge the defendant is now facing is the charge of murder. You've heard mention of other acts allegedly done by the defendant, namely, and then I would go to the defense's suggestion, namely, acts involving a federal case concerning art fraud and that he was charged with in 2018 and sentenced in 2024, semicolon, lying to the police, semicolon, and or disposing of the body of Ana Walsh, semicolon, and or lying to his federal probation officer, end parentheses. Then pick up with the defense's request and follow that through the end. You may not take blah, blah, blah, right through to, it would be extremely unfair to consider this evidence for those purposes. That's where I think I'll end it.
[03:00:20] Speaker 05:
So you're not.
[03:00:23] Speaker 00:
Then I go back. I don't think that's appropriate to add that for one thing.
[03:00:27] Speaker 05:
The last two sentences?
[03:00:29] Speaker 00:
That's right.
[03:00:30] Speaker 05:
I will just say, Judge, that those sentences are contained in the model instruction at page 343.
[03:00:37] Speaker 00:
I'll take a look at it. But it seems to me then if I put that thing in there, then I've got to. I don't know what I do about the other things. Because you can see the issue that that raises.
[03:00:52] Speaker 01:
Your Honor, there's also the possibility that maybe this instruction should be given around the same time as the consciousness of guilt, because it almost seems, I don't have them both right in front of me, but it almost seems like we might be telling the jury different things about how they can handle the evidence of lying to police and the conveying of the body of Anna Walsh.
[03:01:13] Speaker 00:
Well, that consciousness of guilt is before here, isn't it, maybe?
[03:01:17] Speaker 01:
I believe it's on page 27.
[03:01:27] Speaker 00:
Well, I had this all in this section because I thought they'll put the three impeachment things, but now two of them are gone. So it doesn't make any sense, I suppose, standing alone. Maybe we just go straight from witness credibility to experts, which makes more sense, and move this impeachment paragraph later in the instruction. What do we think about putting it around the vicinity of the Consciousness of Guilt instruction?
[03:02:29] Speaker 05:
I know you are.
[03:02:35] Speaker 00:
I know you are. It seems to make more sense in that area. I'm going to move it probably before or after the Consciousness of Guilt instruction somewhere in that vicinity. And if you have any strong preferences, you let me know when we get down to page 27, recognizing you don't want it at all. But I'll edit the impeachment to include a substantial portion of what the defense has requested and add in specifically the federal case. That's all I can tell you for now. It will be continued on tomorrow if we need to discuss it more.
[03:03:26] Speaker 05:
And I understand the court's not going to include the last two sentences, so I'll just lodge my objection.
[03:03:30] Speaker 00:
OK. So lodged. What's the next edit that the Commonwealth has?
[03:03:40] Speaker 01:
Commonwealth has page 27.
[03:03:42] Speaker 00:
What's the next edit the defense has?
[03:03:44] Speaker 05:
27.
[03:03:45] Speaker 00:
Nobody likes 22 or 27. What did I do on that page? Let us see. OK. That's COG. Who wants to go first with what I got wrong?
[03:04:05] Speaker 01:
Your Honor, I would suggest here in the italicized language.
[03:04:09] Speaker 00:
Yes.
[03:04:13] Speaker 01:
In the course of the trial, there was some evidence suggesting that the defendant may have intentionally made certain false statements before his arrest, and that he may have taken steps to conceal the disposal of Anna Walsh's body. I would just suggest that that should be tried to conceal the disposal of Anna Walsh's body.
[03:04:34] Speaker 00:
And in the... Well, the fact that it was unsuccessful is something you can argue. I mean, there is some evidence that he may have taken steps, right? That's not inaccurate.
[03:04:47] Speaker 01:
Correct, Your Honor, that's accurate.
[03:04:50] Speaker 00:
What do you want me to add?
[03:04:52] Speaker 01:
I was thinking you could subtract some words and perhaps make it more concise, but that is certainly accurate.
[03:04:57] Speaker 00:
All right, so what do you want me to subtract?
[03:05:00] Speaker 01:
Rather than saying taken steps to conceal the disposal of Anna Walsh's body, it's tried to conceal Anna Walsh's body. It's not so much that he was concealing the disposal of it, he was concealing the body itself.
[03:05:22] Speaker 00:
So you want me to take taken steps to conceal Anna Walsh's body after death?
[03:05:29] Speaker 01:
Yes, Your Honor, because it's the body itself. It's not so much the concealment of the body, but it's the steps to... To conceal the body, not the disposal of the body. Yes, Your Honor.
[03:05:41] Speaker 00:
All right, that's probably more accurate. So under the commonwealth's request, I would delete the three words, the disposal of.
[03:05:51] Speaker 05:
Will you add the word try?
[03:05:53] Speaker 00:
What do you want me to add?
[03:05:54] Speaker 05:
Try. I thought I heard the commonwealth asking for try.
[03:06:00] Speaker 01:
Who else can chat with how the court articulated that?
[03:06:06] Speaker 00:
Well, attempted to take steps might be consistent with the evidence, but then that puts my thumb on it a little bit because it presumes that that was evidence of her body.
[03:06:26] Speaker 05:
All I was responding to was the column suggested the word tried. I think that is more consistent with what the evidence shows. I'm just talking about tried, not waving any argument to the consciousness.
[03:06:42] Speaker 00:
All right. I'm going to leave it like it is with the removal of the disposal of. I don't like the tried part.
[03:06:50] Speaker 01:
In the next paragraph, Your Honor, in the italicized defendant did attempt to provide false information. I believe it would be did provide false information.
[03:07:09] Speaker 00:
And there I got the language right in the second attempt in terms of what you just pointed out in the earlier paragraph. Even a blind squirrel finds a nut every once in a while. All right, any other edits to that consciousness of guilt instruction? Recognizing the defendant doesn't want it, and that objection is noted and lodged.
[03:07:42] Speaker 05:
Are you done?
[03:07:45] Speaker 00:
I think she's done.
[03:07:48] Speaker 05:
So once again, I refer to our prior pleading. on page 4, I'm asking that that be included. And I modeled that, trying to find the citation, I modeled that after what I believe to be the gist of a supplemental instruction 9 colon 22, and it's the district court. And the heading for that supplemental instruction that's included refers to where such evidence is of another crime. It goes on to say, I caution you in considering such evidence that the defendant is not on trial for, then it has a blank.
[03:08:51] Speaker 00:
Right.
[03:08:51] Speaker 05:
And that's what I do.
[03:08:52] Speaker 00:
But now that I'm moving down the other section that we just discussed, which far more in a more detailed fashion addresses that,
[03:09:04] Speaker 05:
You mean in the prior?
[03:09:06] Speaker 00:
Yes, because now that's going to sit right on top of this one.
[03:09:09] Speaker 05:
Well, I think that the reason I'm pressing this, notwithstanding this other instruction, is because I think just the title alone draws attention to the jury, where they're hearing a different instruction entitled Consciousness of Guilt. And I don't know that that jury will take some language from the prior instruction and import it into this one. And it's important for them, in my opinion, in our opinion, to have context for how they use so-called consciousness of guilt evidence. And the other thing is when you talk about consciousness of guilt evidence, the case law is clear and the instruction says they can't rely on consciousness of guilt evidence alone. And I think then, since we don't want the instruction in the first instance, at least it gives them better context for how to apply what they may deem to be consciously-guilted evidence, especially where you hear all of these other acts. Yes, they will get the prior bad acts if you juxtapose it before this instruction.
[03:10:28] Speaker 00:
I actually think it's better right after it, as I'm thinking about it, because it leaves them with the It puts them in that moment, and then you may not use it for this purpose. As you were arguing, I'm like, that's not going before, it should go after. I'll go back and look at it, and I'm going to see how it feels once I've moved things around and how it reads. All right? And of course, you know this is coming, so you will, I am sure, as you all know you will. You're going to take those parts of my instructions that you want to highlight to the jury and put them in part of your closing arguments. And so you'll know where it is, and you can point directly to it so that you highlight I'm going to take all my instructions as a whole. You're going to drill them into the ones that you think best suits your client's argument, including this one. But anyway.
[03:11:45] Speaker 05:
Or not. Having said that, I guess I just want to ask a question. Yes. Does the court intend to supply written instructions to workers?
[03:11:53] Speaker 00:
So what I do is I don't give them a written instruction during the actual charge. And this is very simple. I'm a very practical person. I've been sitting on the bench now since 2017. Not once, and I'm not proud of this. There are other judges that do a better job at this. There's not once, no matter how many times I read this, no matter how many times you read it, there's always a wayward S that sticks in there, charges instead of charge, or some other less than perfect product as I read it. And I edit those on the fly. And I tell them, typically, it's my oral instructions, not what you put in the writing. I've never had something that's been a huge guffaw. But it could happen. I don't think it's going to happen in this case. But I don't finalize those instructions until after I've read it to them, made those edits. It's sort of a running game I have with myself. When are you going to get it right? Exactly right. It hasn't happened yet. I don't know that it's going to happen on this case. There's always some little niggling little mistake. So I don't give it to them. in writing when I'm reading it. I give them copies of the charge when the exhibits go back. And my practice has sort of varied over the years. I used to just send in one, because I want them around the table talking about the instructions, doing it all together. That became cumbersome. So I've now changed it. I usually send in five or six copies of the charge. If they want more, they can have more. I usually tell them that. But they won't be sitting in the box reading the charge with me. That's not how I do it. And that's the practical reason why I don't do it. I don't want to be backpedaling. I want to give them the best product, both orally and in writing, that I can give them. So if that answers your question, that's how we'll do it. Now you'll obviously have the draft, so you can read along. And I encourage you to point out my errors, despite my best efforts. You'll see me up there marking it up, as I always do. Maybe tomorrow will be the case that I get it all right. Still trying. All right, what's the next page?
[03:14:24] Speaker 01:
Your Honor, for the Commonwealth, not so much a page, but circumstantial evidence. I know the Court has direct and indirect evidence in there at 23. Would the Court consider also including circumstantial evidence in that? Page 23.
[03:15:07] Speaker 00:
Well, this is the plain language version of the circumstantial evidence.
[03:15:11] Speaker 01:
Yes, Your Honor.
[03:15:25] Speaker 00:
I don't have strong feelings about it. There's some language you want to propose. I have used other language that refers to things as sort of the moral fashion language. This is direct evidence. mailbox postman thing. I've delivered that a number of times. I think this is the more modern version of that. If you want to propose some language, I'm not adverse to explaining it.
[03:15:54] Speaker 05:
I'm just objecting to any additional language and I'll wait and see what they propose. I think this is sufficient.
[03:16:01] Speaker 00:
It just talks about it in terms of direct evidence and indirect as opposed to circumstantial. I mean, it could be as simple as adding in sometimes called circumstantial.
[03:16:11] Speaker 01:
Yes, Your Honor. With permission of the court, could the Commonwealth submit something later today?
[03:16:15] Speaker 00:
Sure, that'd be helpful.
[03:16:18] Speaker 05:
And if they do, which it sounds like, excuse me, I'm going to then add, just to let the court know, an additional language as for inference that hopefully will counter what they're trying to do. But I'm just giving the court a heads up. I don't want to send you something and you would
[03:16:37] Speaker 00:
How about if I just say that is indirect evidence, sometimes called circumstantial evidence, and then you don't have to do anything this weekend. I mean, not this weekend. It feels like this weekend. Then you don't have to do anything tonight. I'm going to suggest that, but you can do what you want. All right. Anything else on the instructions?
[03:17:17] Speaker 01:
Not from the Commonwealth.
[03:17:21] Speaker 00:
All right. I really didn't mean to set off a, well, there's a word that comes to mind, but it wouldn't be judicial, so I won't use it. When I made my comments this morning, about closing arguments. So let me just say I'm always trying to stay a step ahead of you. It's not easy. And so I did start looking at this issue a couple of days ago, and I'm going to tell you what cases I came across and sort of where my preliminary thinking is with regard to this. And maybe there isn't an issue. Maybe there is. But let me just tell you, we all know what I'm talking about, right?
[03:18:20] Speaker 01:
Yes.
[03:18:23] Speaker 00:
All right. So I'm going to give you some sites to some cases and I'm going to tell you preliminarily where I think the line drawing is. And it's really preliminary, because I looked at these like four days ago. Oh, Tuesday, December 9. So I guess it was last, just yesterday. Well, no, that's not exactly when I looked at them. I think I looked at them this week, and I sent them to my law clerk on Tuesday, December 9, or vice versa. So anyway, here are the cases that I want you to take a look at. 2019, Commonwealth versus Ahern, 96 Mass App Court, 197. And that cites to Commonwealth versus Nelson, 468 Mass, 1, a 2014 case from the SJC. And I also want you looking at Commonwealth versus Tavares, 27 Mass Appellate Court, 637. And in those cases, the SJC and or the appeal score is really talking about this issue of improper burden shifting and avoiding that and closing arguments. And really, it seems to me the one that's the closest to this is a combination of a Hearn and Nelson. Look at those cases. I'm not going to get into a detailed description of what I think the similarities are to those cases. You're going to see it when you read those cases. But it seems to me, preliminarily, that while the Commonwealth should not comment that the defendant didn't testify, that would be improper. It seems to me that they could point out that there's no evidence that Anna died of any natural causes. I read the pleadings that just came through. And if that is where the line is drawn, you don't have to respond to this right now. I'm not, and frankly, the pleadings that just came through, I mean literally the ones that came through before the defense filed right before I went on the bench. I'm not sure. or the allegations of reneging on a promise are impacted. But I'll qualify that by saying I read the pleading quickly and thought to myself, well, I didn't mean to start that. Back to how I opened this discussion. So that's where I think the line is drawn by those cases. And knowing that's where I sort of am drawing the line, take a look at those cases, and we'll discuss it again before the opening, excuse me, before the closing arguments.
[03:22:16] Speaker 01:
Thank you, Your Honor.
[03:22:17] Speaker 05:
Just to be clear, I think what I'm... And what were the cases? What the court's saying is that you would think the Commonwealth could comment that something about... That there is no evidence that Anna Walsh died of natural causes. And, of course, the defendant can make his... I just want to be clear about this because I think we might reach some common ground here.
[03:22:41] Speaker 00:
That's what I'm trying to achieve.
[03:22:43] Speaker 05:
And I'm responding to something that the Commonwealth represented I'm not going to go into right now. So let's just stick to this, if we may. So if the government's allowed to say what you just said.
[03:22:56] Speaker 00:
What I just said.
[03:22:57] Speaker 05:
And, of course, the defendant can argue there's no evidence that there was any homicide or any.
[03:23:02] Speaker 00:
I expect you're going to.
[03:23:03] Speaker 05:
I certainly shouldn't be here, I suppose. But I can, once again, recite the evidence of sudden unexpected death that came in there.
[03:23:18] Speaker 00:
That's a little complicated because there's absolutely none of that that ties it to Anuash. There's no testimony before this jury that ties sudden unexpected death to Anuash, is there?
[03:23:32] Speaker 05:
Judge, there's, well, when the court asked me that, my response is the government's case is Using that phrase, it's built on a house of cards suggesting that a homicide occurred without any direct evidence of a homicide. So another causation of death should be fair game to argue. Because it's equally consistent. And if, and, you know, cite the Arimos and Proff, if you have two equally inconsistent propositions, neither have been proved by reasonable doubt. That there is no direct evidence of a homicide. And building on that, we've always said there's no direct evidence that anything that came into evidence The acts of disposal, the acts of the use of tools occurred after the death of Ms. Wolfe. So why is it that the Commonwealth is allowed to ask the jury to speculate based on their circumstantial evidence? I shouldn't use the word speculative. Reach some conclusion based on nothing more than circumstantial when there's no direct evidence of a homicide. And we can't.
[03:25:00] Speaker 00:
They can met out their burden with that circumstance. The law is clear there. They can met out their burden purely with circumstantial evidence. They can. And their circumstantial evidence with regard to the death, again, are those breadcrumbs. And what they're going to argue, those breadcrumbs mean from The searches to the evidence tree from the bags and other distinctions in the evidence.
[03:25:44] Speaker 05:
All of which, Judge, as we've always argued and will continue to argue, came after any death. So the issue is, what is the manner of death? And we now have evidence that from their own medical examiner, that death can occur suddenly, unexpectedly, without injury. And it's up for the jury to decide. If they can, what evidence do they have as to manner of death when the real possibility, if not probability, is sudden, unexpected death due to natural causes, as Dr. Atkinson testifies to. And it's equally inconsistent with us. All we're saying is they don't have any direct evidence of homicide. So why do they get to argue based on their circumstantial evidence when their circumstantial evidence really could only speak, might only speak, to conduct post-death where the death was not a homicide?
[03:26:51] Speaker 00:
But there is evidence in the record before this jury that
[03:27:03] Speaker 05:
There was no objection whatsoever to the entire cross-examination of Dr. Atkinson. So all of that testimony is before the jury. It's not like we represented that, you know, we made some representation that we will present evidence later, and so we made a decision.
[03:27:30] Speaker 00:
You can make an argument based on circumstantial evidence. That's what they're going to do in their case. I presume, I don't know what the Carmel is going to argue, I presume that they are going to draw a line between some of the evidence that was retrieved from the bags as being circumstantial evidence of things that happened before the dismemberment. So, for example, the slipper, the blood in the hair. I presume their argument is going to be that that happened before. That's circumstantial evidence because once the foot covers are Purchased, presumably they were purchased as a reasonable inference to be drawn, they were purchased to be used. That's evidence of something that happened before.
[03:28:40] Speaker 05:
I think that's an argument.
[03:28:41] Speaker 00:
I think that's an argument to be made based on the circumstantial evidence that's presented. But so I'm turning to you and saying, if you want to argue to the jury that there was circumstantial evidence that Ana Walsh died of some natural causes, I'm just asking, what's the circumstantial evidence upon which you base that argument?
[03:29:11] Speaker 05:
That our argument fundamentally would be that all of the evidence that the government suggests was evidence that was created in the context of a homicide, there is no evidence that it was not created after a death. And so since the jury heard all about not only just the possibility, but the probability that there is sudden unexpected death, that the jury needs to decide for themselves, could it have been sudden unexpected death? And all of that evidence that the government is arguing is evidence of a homicide. of an attempt to conceal evidence that a person, and using the language and conscience of guilt, a person is acting in a way not out of conscience of guilt, but out of fear, or fright, or anything of the sort. So why is it that, given the state of this evidence, We can argue our differences that we believe the jury is allowed to make if they so choose. And if they decide that that evidence of concealment was evidence of a man acting innocently and not with a guilty conscience, then how did Anna Walsh die? Maybe she died a sudden, unexpected death, and he tried to conceal it. out of fear or fright, as is contained in the language of the consciousness of fear. And so the jury gets disliked. And it may, certainly, the thrust of that argument is that it raises a reasonable doubt. And that's the evidence the jury heard.
[03:31:00] Speaker 01:
Your Honor?
[03:31:03] Speaker 00:
Listen, they may not want, I'm not precluding you for making that argument right now. And in fact, they probably want you to make that argument. I'll hear from the Commonwealth.
[03:31:13] Speaker 01:
Sorry for interrupting, Your Honor. Your Honor, this started out with a motion that the Commonwealth not make any reference in closing to representations by counsel in opening statement. The Commonwealth does not intend to burden shift. The Commonwealth does not intend to refer to matters not in evidence. There certainly was testimony from the medical examiner talking about different ways people can die. The Commonwealth is certainly entitled to comment on that testimony, which is in evidence. But the Commonwealth is not going to comment on the opening statement.
[03:31:49] Speaker 00:
All right.
[03:31:52] Speaker 05:
And that's why I was thinking we might find common ground here.
[03:31:57] Speaker 00:
Sounds like we have. Pardon? Sounds like we have.
[03:32:01] Speaker 05:
So as long as we're able to argue, I think we have.
[03:32:23] Speaker 01:
I think we're close.
[03:32:25] Speaker 00:
I don't need to be part of this conversation. I've directed you to the cases why I think they could say something short of commenting on your opening statement. And I've told you what I think they could say. And just be talking to one another.
[03:32:44] Speaker 01:
Thank you, Your Honor.
[03:32:45] Speaker 00:
So that there's no surprises.
[03:32:48] Speaker 01:
There's always surprises. That's true.
[03:32:53] Speaker 00:
All right. And again, I did not mean to create a whirlwind of activity by my comments. I just think that idea that they couldn't comment at all about the State of the Evans, I didn't want to leave it there. And maybe the takeaway is I should stop thinking about these things three or four days before they're going to happen. But you have the cases now, all right? Take a look at the verdict slip. It looks very straightforward to me. I don't think that there's going to be any edits or changes to it. Again, I'll finalize that at the very end. So you'll have plenty of time between now and then to look at it. How long are the parties thinking they're going to need for closing arguments?
[03:33:43] Speaker 05:
More than 45 minutes.
[03:33:45] Speaker 01:
All right. That sounds good, Your Honor.
[03:33:47] Speaker 00:
So 45 it is. I won't cut you off in a case like this, of course. I have cut off in other cases when it's a two-day case and we're on 45, 47, but that isn't this case. But just, I know you all have a ton of experience, but 45 minutes is about as much as they can take effectively, in my view. So let's try to keep it to that. We will be getting them fresh in the morning, which is good, as opposed to having a couple hours of evidence in the bank and they're already tired. That's all I have on my agenda. Anything that you need.
[03:34:28] Speaker 01:
Your Honor, would the parties have an opportunity to see the next draft of the court's instructions?
[03:34:33] Speaker 00:
Yes. So I will be going back and editing as consistent with what we discussed and I will then create a new draft and that will go out to you this afternoon.
[03:34:47] Speaker 01:
Thank you.
[03:34:49] Speaker 00:
And I know that maybe some other language you want, I'll consider putting that in in the morning. So maybe 8.45 tomorrow so that when the jury comes in we don't have a Big delay if we need to make any changes. And that's it. All right. Thank you. One other thing that I want to say is that you can be seated. I very much appreciate the work that you've done in the case to get the case in and tried efficiently on both sides. You picked what you needed to pick as your positions. And I appreciate the professionalism that you've shown on both sides and working with each other. And as I say, I drop into Norfolk County every once in a while, as I drop into other counties. You and I, counsel, and I know that this is pretty much the routine of how the courts in the Commonwealth of Massachusetts operate day to day. There's nothing unusual about this case. The level at which you perform is the level at which I see when I travel county to county and I appreciate the work that you've done on this case and will continue to do on this case.
[03:36:12] Speaker 02:
Thank you.