this is a case of ineffective assistance of counsel there was no eyewitness identification the coaled case rested on one witness that was the codefendant her name is janet brady and she was not impeached with her plea bargain that by testifying she was saving not only herself but her son and friends and the son from a life sentence without the possibility of parole she was not a peach with my second point about ineffective assistance of coun is one of the men who at a meeting over the green meadow ride strings with mrs brady and our son and the friend chatted about having difficulty trying to kill her live in lover at that point two days before they pay top and said we'll do it for free mr kiosk city to look for less than twenty five hundred defense attorney review right that's the decision that you've got to confront if you convince a stretch will then the case will go back to the district court for the merits to be considered but either way we're not going to reach the merits so you was stick in cost or what happened was the claim was not new nor substantial and it was based on ineffective assistance of counsel argument and it was being did also followed phoenix and so it was never overruled and it's never gone to the full court and it really has to be confined considered just in the confines of that case it has to be independent now to quit procedural grounds they reach the federal meretz there was no clear an express statement that it was being to follow on state grounds such as substantial risk of a miscarriage of justice no flame me if there is not questions on that move to cousin prejudice ok this is a case of first impression here before you and that is the application trivino vs they are a branding case from the supreme court and what you have to do in that case is look to the state procedural framer in this case that is applies to first degree murder cases while that they don't want to see an effective assistance of counsel at fresh first time in a direct appeal rather it should be brought posed to appeal and also massachusetts there is no right to counsel even in first degree murder cases it's in the discretion of the judge at the trial level and just because this plan or re cases under two seventy eight thirty three that doesn't change anything the defendant still has the right to respond to federal merits and also as here there's a claim of normally we review district court decisions on particular points the district court he had never which the question of course and prejudiced because of its finding about the  deals with it gets the petitioner back to trial counsel so they do if there is a procedural to file as to trial counsel and i will make the concision asked to trial counsel there was present the case they have refused to provide the police reports which they admit they have now and the ballistic reports and other documents they claim that because it was turned over thirty seven years never has to be given to the petitioner again that's not something that and i do think that this court should rule on the merits of an effective assistance of counsel this case is thirty seven years  in just in state court for ten years with the appointment council having been granted but never appointed it sat on the district court judge judge just asked for six and a half years with no discovery provided no evidentiary hearing my client is seventy sound and i think it's time that the merits reached there is no reason why this court can't do it i could ten and unless i'm missing some case law which i'd be more than happy to respond to i don't know of any reason why this court can't reach the merits of it hurt but i was not granted any discovery nor an evidentiary hearing for the first first opinion was that two fourteen of the nerds when it's two fourteen me two thousand and fourteen oh yeah or your honour's me it please the court assistant attorney general and thomas for responding this like to start with i ask you why would you well my understanding is is that they them was district attorney's office at the time when they started the he has turned over everything it had so whether these reports still in sr not it's purely requested they have given well we'll tell you this wonder why i'm sorry your honor but we did take exception to that in the district court that that was true that we had these and we're not turning them over the other thing too is in state law she didn't make the showing she needed to make this was purely a fishing expedition so as far as requiring all this additional again your honor she didn't meet any burden the other thing too is that it is established by the record my sister dispute that trial counsel did have all of these documents that she stating because in the transcript and i can cite to those pages before trial the judge goes through all of the discovery motions and the prosecutor explains how he turned over this or that and defense counsel agrees specifically prosecutor said if you remember i open my entire file you came over and you reviewed my entire file and copy whatever you want so there was no dispute and that includes the statement that regarding that mrs brady said when she was visiting with the victim that you know it could have been my ex husband who did this and the victim response yes it could have counsel did know about that prior to prior to the trial beginning i think i can discuss more about the evidence but as far as  the single justice the gatekeepers ruling that it was arguably new and not substantial several points first arguably new is not a determination that the issue was knew to be new as far as the gate keeper is concerned possibility of a successful decision in the appeal and also as this court noted in cost and mendez a single justice does not have the authority to reach the merits of an appeal he is simply the gate keeper to decide whether plenary review and an opportunity to file a motion for a new trial prior to the direct appeal concluding the defendant has raised a new and substantial issue that's worthy of the procedural well phoenix your honor this court stated that under the special circumstances the case was not procedurally defaulted and there because the single justice specifically  stated that he was not dismissing the ineffective assistance of counsel claim on the ground of a lack of novelty or on any other theory of weight for now on our position we think the single justice was incorrect in doing that specific case was where the single justice stated in one sentence that he denied the petition for the gatekeeper petition for the reason stated in the commonwealth opposition to the to the petition and in the congo all supposition it dealt both with default and with the merits and so this court held that it couldn't decipher what the single justice relied on so in that case they actually bypassed the procedural default claim because it's not jurisdictional and that it was easier to review petitioners claims on the merits i'm sorry an ineffective assistance of appellate counsel claim merely reiterated the same stuff that the claims asserted against the trial counsel and stated that those circumstances this is not a new claim and that's exactly what happened here court then the gate keeper in discussing what the trial judge had found noted that the trial judge found waiver on all these issues and again so his substantiality review so that's how  we that's how you read or you read that as consistent with her exactly and again as far as the development of this law through phoenix and these other cases it seems to be that originally started with  simpson where the court said it's adequate and independent where there was procedural waiver allow and so that seems to be how it developed here if you have no  more questions on that point as far as cause being established martinez martinez and trevino do not apply in massachusetts very limited exception to the coleman rule that ineffective assistance rules and funding decisions and all that makes it impossible for extended to do so where massachusetts may actually have the opposite under thirty three a review it's encouraged and the s j c itself can conduct the evidentiary hearing and decide on a motion for a new trial or it can remain to to the trial court to do that and then review the decision on the motion for new trial the denial of assume together with the direct appeal so and as answer this for me if you would if we get past all the procedural stuff given the concerns about trial counsel concerns about subsequent counsel concerns about the expert  quotes concerns about the inability to get information from the commonwealth the fact that the case that my word not anyone else is languished in the federal district court for so long should we be concerned about this case on the merits no if not why not not at all your honor because of the claims that were made again both in state court and in district court on the motions for discovery there purely spec sr doesn't cite to anything that any of this evidence would prove or it's likely to prove that deprived him of an otherwise available defense the two most then that's to my sister mentioned seem to be most troublesome is the idea that trial counsel did not peach mrs brady who hired mr lee to kill her boyfriend correct them he did not  ten forty seven to ten seventy three and that shows the strategy this was a purely strategic decision that was not unreasonable made on reasonable when made counsel was his whole defense was that this woman was not credible and i did particularly like the last line where he said that the reason mrs brady wanted her live in boyfriend killed was because he was leaving her and he had been with other women and he was leaving her and so defense counsel the point was you see what she does when she's rejected she hires someone to kill her boyfriend and the defendant that he had rejected in advance she made on him and so there we know now that she's making this allegation against mr murray for that reason and also to take any  suggesting that her son or his friends might have done it that the same purpose arsehole point was that she's not credible and if she was credible she would never made this joke around her son she wouldn't have so this whole point was she wasn't credible so to and cross examine her which is definitely multiple massachusetts cases have recognized that the government on her plea deal would be in essence saying that the government believe her story another very important part is her statement that she gave to the police the day after the murder prior to the defendant being arrested this is consistent with her statement with her testimony at trial so there's no evidence that she changed her shotgun but what he disagreed with is that anyone could tell that the pellets that were in the victim's body were number eight shot first which is the same that the defendant used and that also the defense was that someone planted that shell there because the defendant who regularly practice shot at this beach and there were all these spent shells and so the defense was that it was hard to refute the commonwealth's evidence two experts testifying that it was consistent with coming from his gun and the gentleman who apparently had the shotgun had the shock at the time there was testimony that the defendant picked it up the day of the murder and then there was other defense testimony picked up the day after me and he picked it up from his the man where he used to shoot a so again your honor the defendant it wasn't these claims that the ballistics expert was somehow ineffective really is not supported by the record and also i know i counsel made an error of law he thought that he is he had used up his findings such that he couldn't replace the experts he knew to be an adequate based on an error of law and then especially sa that we don't want to turn appellate courts into a review of the experts because again strategic trial time please the corn again there's a lot to like to respond to i left time before if there's any chance i can go a little over it be grateful i think it was over three minutes and you have one minute ok when you get to it first i know for sure that the con walk has the police reports the first time i requested them the chief of appeals in was district attorney's office told me he went and got the and they hound them the problem is that she left that office a new chief came in and ever since then i've not been able to get them i felt serious after serious as time went on of all the efforts i made to try to unfortunately they gave me heavily redacted ones which are in costs i didn't touch upon the alibi that my brief as to the new case into and the ballistics what my real claim is before he chose the theory he didn't investigate it and he put on a competent defense expert and i point you to two affidavits from highly qualified firearms expert that i submit by affidavit in the state court in federal