LINDA A. SHASHOUA: DEPUTY ATTORNEY GENERAL, ACTING ASSIST
AT THAT PARTICULAR TIME PROSECUTOR, LINDA A SHAS ON BEHALF OF THE STATE. AL LAN
VICTOR BOW MAN, STOOEFRN A I DON'T MEAN TO HAVE, DEPUTY ATTORNEY GENERAL WITH
THE ATTORNEY GENERAL'S OFFICE. CHIEF JUSTICE RABNER: THANK YOU YOU
MR. YOM FOR AGREEING TO APPEAR TELEPHONICALLY WE'VE HAD SOME
DIFFICULTY WITH THE VIDEO EQUIPMENT AND WE PRESSURE GOING WITH US.
MS. SHAS P PLEASE PROCEED. LINDA A. SHASHOUA: THANK YOU YOU
MAY IT FLEES THE COURT, I WOULD LIKE TO RESERVE TWO MINUTES FOR REBUTTAL.
CHIEF JUSTICE RABNER: THAT'S FINE. LINDA A. SHASHOUA:
THIS CASE IS ABOUT A MISS APPLICATION OF SETTLED LAW, WE ASK THIS COURT TO DIS,
EITHER OF WHICH JUSTIFIES REVERSAL T FIRST, THE APPELLATE DIVISION'S FAILURE TO
DEFER TO THE PK R COURTS THE BLANK FINDSING BASESED ON PK R EVIDENTIARY HEARING
IS SUPERFLUOUS, AN SECOND THE APPELLATE DIVISION'S FAILURE TO INCLUDE THE
OVERWHELMING EVIDENCE OF GUILT UNDULY EXPANDED THIS COURT'S STRENGTH OF EVIDENCE
BENCHMARK SENT FORTH IN PIERRE. THE APPELLATE DIVISION ERRED BY POTENTIAL
LY KREET EIGHTING NEW PCR STANDARDS IN DENIAL OF DEFENDANT'S PCR, REVERSING THAT
DENIAL, BY ISOLATING ONE PHRASE FROM ONE PROFFERED WITNESS AN DISREGARDING
EVERYTHING THAT THE PCR COURT FOUND MADE THAT WITNESS NOT CREDIBLE AND EVEN DAMAGING
TO DEFENDANT'S AL ALIBI, THE APPELLATE DIVISION MISAPPLIED THE, STANDARD
IN THIS CASE, CHERRY PICK FROM DEFENDANT'S PROFFER, TO DISREGARD KRED ABILITIES
MADE BY THE PK R COURT AND TO IGNORE THE FULL CONTEXT OF THE EVIDENCE.
HERE THAT COMPELLING EVIDENCE WAS UNDERVALUED, WHICH IS THE NECESSARY
BACKGROUND, TO ANIES ASSESSMENT OF PREJUDICE. THE DEFENDANT CONFESSED TO
BEING AN ACCOMPLICE TO MURDER. THAT WAS CORROBORATED BY AN UNINVOLVED
EYEWITNESS; THAT WAS CORROBORATED BY THE BALLISTICS EVIDENCE AND BY STRONG MOTIVE.
DEFENDANT SHOULD ALSO HAVE FACED AN UPHILL BAT MANY THAT GIVEN
UP UNTIL HIS CROSS-EXAMINATION TESTIMONY AT TRIAL HE NEVER MENTIONED AN ALIBI,
HE DIDN'T MENTION IT IN HIS STATEMENT TO POLICE. HE DIDN'T MENTION IT IN
THE MIRANDA HEARING TESTIMONY AND HE DIDN'T EVEN MENTION IT ON DIRECT EXAMINATION
AT HIS DRIEL. IT WASN'T -- CHIEF JUSTICE
RABNER: MS. SHAS, CAN I ASK YOU THO HOLD FOR A SECOND. I AM GOING TO ASK EVERYONE
AGAIN TO PLEASE MOOT IF YOU'RE NOT SPEAKING; THAT INCLUDES COUNSEL.
WE'RE HAVING SOME NOISE ISSUES. PLEASE GO AHEAD. LINDA
A. SHASHOUA: THANK YOU. IT WASN'T UNTIL CROSS-EXAMINATION WHEN THE
JURY ALONG WITH DEFENDANT'S COUNSEL HEARD FOR THE FIRST TIME THAT THE DEFENDANT
CLAIMED TO BE AT HOME WITH HIS MOTHER ALONG WITH HIS GIRLFRIEND.
IT WASN'T UNTIL AFTER THE HOMICIDE AN FIVE YEARS AFTER TRIAL THAT HE PROFFERED
THE MOTHER AND GIRLFRIEND AS ABDOMINAL WITNESSES. THE PROBLEM
PROPERLY RECOGNIZED IS THAT BOTH ACTUALLY CONTRADICTED DEFENDANT'S PRIOR TRIAL
TESTIMONY. BOTH DEFENDANT'S MOTHER AND DEFENDANT'S GIRLFRIEND CLAIMED THAT
DEFENDANT'S MOTHER WAS HOME WITH THEM. NOT ONLY DID THAT MAKE DEFENDANT'S ALIBI
TESTIMONY AN IMPOSSIBILITY, BUT ALSO A CONTRADICTION.
PARTICULARLY, IN THE FACE OF UNDENY BLEE OVERWHELMING EVIDENCE THAT SHOULD NOT BE
AT TRIAL. AND IN THE CASE OF PIERRE, NONE OF THOSE ALIBI WITNESSES
WOULD HAVE TESTIFIED WOULD HAVE HURT THE DEFENDANT'S ALIBI EVEN IF THEY WERE NOT
FULLY BELIEVED. THEY WOULD HAVE REINFORCED DEFENDANT'S ALIBI. HERE 90
PERCENT OF WHAT THE WITNESS'S WOULD SAY MAKES DEFENDANT A LIAR.
THE ORIGIN OF SUCH EVIDENCE WAS NOT TO UNDERMINE THE CONFIDENCE IN THE OUTCOME OF
THE TRIAL COMPELLING GUILT HERE AS OPPOSED TO THE SPARSE EVIDENCE IN PIERRE,
THE ATTORNEY ERROR OF NOT TAKING A RECESS IS FAR LESS SIGNIFICANT.
WHILE, THE APPELLATE DIVISION SAID PIERRE SHOULD SAY THAT THE REVIEWING DORT SHOULD
NOT FOCUS ON THE OF A DEFENDANT FROM PCR, THE COURT ERRED HERE BY DISREGARDING
THE STARK CONTRADICTS RECOGNIZED BY THE PCR COURT BETWEEN THE DEFENDANT'S GIRLFRIEND
AND MOTHER SAYING THEY WERE ALL HOME TOGETHER AND THE DEFENDANT TESTIFYING
UNDER OATH THAT HE WAS HOME ALONE WITH HIS GIRLFRIEND. THIS IS NOT A NONE FUND
AMENTAL POINT. IT IS THE HEART OF THE ALIBI, HIS WHEREABOUTS.
FINALLY, THE PROBLEM IN THIS CASE IS THAT THE APPELLATE DIVISION HAS OPENED THE
DOOR. CHIEF JUSTICE RABNER: MISS SHAS, HOLD FOR A MOMENT. IT
LOOKS LIKE WE LOST MR. BOW MAN. JUSTICE ALBIN: I AM GETTING FEEDBACK,
I AM HEARING SOMEONE'S -- THE COURT: AS AM I.
JUSTICE PIERRE-LOUIS: IT SOUNDS LIKE IT MIGHT BE COMING FROM THE CELL PHONE.
LINDA A. SHASHOUA: I BELIEVE THE ISSUE IS MR. BOE MAN
CALLED BY PHONE BUT ALSO HAS HIS IPHONE DOWN SO WHEN HE PUTS THE VOLUME DOWN ON
HIS IPHONE THERE WON'T BE ANY FEEDBACK. ALAN DEXTER BOWMAN:
THE IPHONE IS ALL THE WAY DOWN. CHIEF JUSTICE RABNER: MR.
YOM, ARE YOU THERE? STEVEN A. YOMTOV: I AM HERE, YOUR HONOR.
I JUST HAD TO UNMUTE MY PHONE. MY PHONE HAS BEEN MUTD THE WHOLE TIME.
CHIEF JUSTICE RABNER: LET'S PROCEED, MS. SHAS PLEASE GO AHEAD.
LINDA A. SHASHOUA: THANK YOU. I AM ALMOST DONE.
FINALLY THE PROBLEM IN THIS CASE IS THAT THE APPELLATE DIVISION OPENED THE
DOOR TO NEW TRIALS VIRTUALLY EVERY TIME A DEFENDANT PRESENTS ANY KERNEL OF
SUPPORT WITHIN A PROFFER YEARS LATER. IF IT WAS PREJUDICE IN THESE CIRCUMSTANCES
WOULD, WHERE THE ALIBI WITNESSES CONTRADICT THE DEFENDANT'S OWN ALIBI
TESTIMONY, WHERE A PCR JUDGE FOUND THOSE WITNESSES NOT CREDIBLE AND WHERE THE
OVERWHELMING EVIDENCE OF GUILT INCLUDES A DETAILED CONVERSATION, THE PREJUDICE WOULD
ALWAYS BE SATISFIED. THESE COMBINED ERRORS AN THE PART THAT IT TOOK TO
REACH THE DIVISION REQUIRE REVERSAL. CHIEF JUSTICE RABNER: COUNSEL,
THE APPELLATE DIVISION SAID THAT THE DISCREPANCY AS TO WHETHER DEFENDANT
'S MOTHER WAS AT HOME OR WAS AT WORK, QUOTE, HAS NO BEARING ON BEY, THE
GIRLFRIEND'S TESTIMONY. IS THAT CORRECT? LINDA
A. SHASHOUA: NO. I THINK THAT YOU HAVE TO LOOK AT THE CONTEXT, THE FULL CONTEXT
OF WHAT THE DEFENDANT PROFFERED BEFORE THE COURT. I MEAN ON THE ONE HAND
I THINK -- I AGREE THAT THE MOTHER'S TESTIMONY IS T NOT VALUABLE. SHE -- IT'S
IMPOSSIBLE THAT SHE COULD HAVE KNOWN HIS WHEREABOUTS GIVEN THAT DEFENDANT
TESTIFIED THAT SHE DROPPED HIM OFF AN WENT TO WORK. BUT THE GIRLFRIEND SAID THE
EXACT SAME THING SO BY THE MOTHER. CERTAINLY, THE JURY WOULD
HEAR ALL OF THAT AND THE PCR COURT DID. JUSTICE ALBIN: WELL,
NOT NECESSARILY. DID DEFENDANT COULD HAVE PUT JUST MS. BEY ON. THE DEFENDANT
WAS NOT REQUIRED TO PUT MS. BEY AND THE MOTHER ON. AND I THINK THIS IS
THE POINT THAT THE CHIEF WAS GETTING TO. IT'S THE OUTCOME FROM IS THE THE OUTCOME
FROM YOUR POINT OF VIEW ANY DIFFERENT IF JUST MS. BEY WERE CALLED ASBESTOS
WITNESS. LINDA A. SHASHOUA: ONLY SLIGHTLY. I THINK HER STILL,
TESTIMONY STILL SMANS, BUT I THINK THE MOTHER MAKES IT WORSE.
JUSTICE FERNANDEZ-VINA: CAN WE AGREE THAT ENGAGED IN HER OWN KREBLTD FINDINGS AND
DISREGARD THE PCR, NO OPPORTUNITY TO OBSERVE THE WITNESSES CONSIDERING
OTHER FACTORS, FINDINGS OF FACT, BASICALLY, THEY DID THEIR OWN CREDIBILITY FINDINGSES
AN DISAGREED WITH THE APPELLATE COURT AN THAT'S HOW THEY CAME TO THIS RULING;
IS THAT CORRECT. LINDA A. SHASHOUA: CORRECT, YOUR HONOR.
EXACTLY. AND I THINK, YOU KNOW, THE ISSUE HERE, IT WASN'T LIKE THEY FOUND
CLEAR ERROR; THAT'S WITHIN THEIR PURVIEW. THEY DIDN'T FIND CLEAR ERROR IN THE
PCR COURT'S FINDINGS, WHAT THEY DID WAS SAID THEY, WE DON'T AGREE WITH HOW
YOU ASSESS THOSE FINDINGS AND THAT'S ACTUALLY THE SUBSTANCE.
JUSTICE PATTERSON: LET ME ASK YOU ABOUT THE PRINCIPAL YOU WOULD LIKE TO SEE THIS
COURT ADOPT HERE. I UNDERSTAND YOUR ARGUMENT IS THERE IS A DISTINCTION
BETWEEN THIS CASE AND PIERRE INSOFAR AS THE WITNESSES IN PIERRE, WHILE THERE WAS
AN ISSUE WITH DATES AN SO FORTH AND THE CERTIFICATIONS, DID NOT PREDICT THE
DEFENDANT'S OWN ACCOUNT OF WHAT OCCURRED WHEREAS THE MOTHER IN THIS CASE
CONTRADICTED THE DEFENDANT'S OWN ACCOUNT OF WHAT OCCURRED. ARE YOU
ASKING FOR A STATEMENT OF PRINCIPLE THAT IF THE DEFENDANT'S ALIBI TESTIMONY IS
CONTRADICTED BY A PROFFERED ALIBI WITNESS, THEN YOU CAN'T MEET THE SECOND
PRONG OF STRICKLAND AND FRITZ OR SHOULD COURTS LOOK AT THESE ISSUES ON THEIR FACTS
WITHOUT BRIGHT LINE RULES ESSENTIALLY RESTRICTING THEIR VIEW OF HOW IT
SHOULD COME OUT? LINDA A. SHASHOUA: I WOULD PROBABLY SAY THE
LATTER IS FAIR. I THINK THE SYSTEM WORKS REALLY WELL UNDER PIERRE AND PIERRE WAS
VERY CLEAR. THE IDEA IS THAT IF YOU'RE LOOKING TO SEE WHETHER IT WOULD CHANGE
THE OUTCOME OF THE CASE, GIVEN THE STRENGTH OF THE HEFD BENCH MARK TO USE
AND I THID WE DON'T STR TO FOCUS ON ONE PARTICULAR DEE TAIL. FOR INSTANCE,
CERTIFICATIONS IN THIS CASE, BOTH SAID 2007, THEY ARE OFF. NO ONE WAS REALLY
HOLDING AGAINST THAT, CLEARLY A CLERICAL ERROR, KIND OF LIKE OFF BY ONE DAY IN
PIERRE, BUT YES, IF IT'S DAMAGING TO THE ALIBI. IF EVERY STATEMENT BUT ONE MAKES
THE DEFENDANT A LIAR, I DON'T THINK YOU NEED A BRIGHT LINE RULE FOR THAT
TO SAY THAT THIS IS NOT HELPFUL. JUSTICE ALBIN: PIERRE DID NOT SET
FORTH THE NEW RULES OF LAW. IT APPLIED STRICTLY TO A SET OF FACTS. WE'RE
STILL GOVERNED BY PRONG TWO, THE PREJUDICE PRONG IN WHICH THE DEFENDANT HAS TO
SHOW WHETHER THERE IS A REASONABLE PROBABILITY THAT BUT FOR COUNSEL'S
UNPROFESSIONAL ERROR THE RESULT OF THE PROCEEDINGS WOULD HAVE BEEN DIFFERENT, DO YOU
AGREE? LINDA A. SHASHOUA: I DO, YES. YES, YOUR HONOR.
AND I DON'T THINK THIS IS WHAT EARLIER IN THE CASE IT SEEMS LIKE THE ARGUMENT WAS,
WELL, WE SHOULDN'T HAVE TO ESTABLISH PREJUDICE AND IN FACT THE PCR COURT AT
ONE POINT SAID WE DON'T REACH PREJUDICE. THIS IS NOT ONE OF THOSE EXPANSION CASES
AS WE LEARNED IN PIERRE SO PREJUDICE STILL PROVED BY THE DEFENDANT. AND THE
DEFICIENCY IN THIS CASE DOES NOT EQUATE TO PREJUDICE AND THAT'S THE ARGUMENT.
THAT THE IDEA HERE IS THAT THE GIRLFRIEND, IF CALLED, WOULD HAVE --
CHIEF JUSTICE RABNER: MS. SHAS, WE LOST MR. BOW MAN AGAIN, PLEASE WAIT.
CHIEF JUSTICE RABNER: MR. BOW MAN, CAN YOU HEAR US. ALAN
DEXTER BOWMAN: YES, I CAN HEAR YOU AND THE VIDEO SHOULD BE BACK ON SHORTLY.
ALAN DEXTER BOWMAN: I THAT I THAT IT HAS BEEN REPAIRED.
CHIEF JUSTICE RABNER: THANK YOU. PLEASE GO AHEAD.
LINDA A. SHASHOUA: THANK YOU. I THINK THERE IS SOME SPORT ALSO IN
STATE V. ALLEGRO, WHERE THE ALIBI WAS FOUND NOT TO SUPPORT THE DEFENDANT'S
ALIBI. IT DIRECTLY CONTRADICTS HIS TRIAL TESTIMONY THAT THE DEFENDANT -- OR NOT
THE TESTIMONY THAT HE WAS DRIVING A BLUE TRUCK WHERE THE ALIBI WAS 1245
HE WAS DRIVING A WHITE TRUCK AND THE COURT THERE RECOGNIZED THAT THE ABSENCE OF
THOSE WITNESSES COULD NOT HAVE KREEED AIDED A REASONABLE PROBABILITY THAT BUT FOR
COUNSEL'S SFRAL L FAILURE TO INVESTIGATE THE RESULT WOULD HAVE BEEN DIFFERENT.
THAT'S THE SAME ANALYSIS, ALL OF THIS IS STILL UNDER STRICKLAND AND I DON'T THINK
A NEW RULE IS NEEDED. JUSTICE LA VECCHIA: MISS SHAS YOU MENTIONED
EARLIER THAT THE PROPER WITNESSES DID NOT COME FORWARD UNTIL FIVE YEARS
AFTER TRIAL AND WITH REGARD TO MS. BEY, THE GIRLFRIEND, HER CERTIFICATION DOES
NOT EVEN ASSERT THAT SHE APPROACHED COUNSEL AT ANY TIME PRIOR, DURING,
TRIAL, WITH HER WILLINGNESS TO ADVANCE AN ALIBI FOR DECHLT HOW DOES THAT FACTOR
INTO WHAT THE APPELLATE DIVISION DID IN DISREGARDING THE CREDIBILITY FINDINGS OF
THE PCR COURT. LINDA A. SHASHOUA: IT FACTORS N.J.S.A.
BECAUSE, AGAIN, THE APPELLATE DIVISION WAS IGNORING THE FULL CONTEXT THAT THE PCR
COURT HAD BEFORE IT WHEN IT WAS ASSESSING CREDIBILITY AND THAT'S A VERY IMPORTANT
FACTOR, WHEN DID THE WITNESSES COME FORWARD. APPARENTLY THE GIRLFRIEND
CLAIMED THAT SHE WAS SITTING IN COURT THROUGH THE WHOLE TRIAL, SINTH RGS SITHD
WITH THE MOM. THEY NEVER CAME UP AFTER, EVEN AFTER THE FIRST EXCHANGE, BUT
PCR COURT FOUND ATTORNEY'S COUNSEL CREDIBLE, WHEN HE TESTIFIED, I HAD MONTHS OF
MEETING WITH THE MOM AND THE DEFENDANT, NOBODY RAISED IT. AND AFTER THE DEFENDANT
KIND OF LANDED A BOMB SHELL ON HIS CROSS-EXAMINATION TESTIMONY, NOBODY
CAME UP TO HIM AFTER AND THAT WAS CREDITED BY THE PCR COURT SO I THINK IT AGAIN,
INFORMS THE TOTALITY OF THE CIRCUMSTANCES THAT THE PCR COURT HAD BEFORE
IT WHEN IT MADE IT'S DETAILED CREDIBILITY FINDINGS THAT THE GIRLFRIEND WAS NOT
CREDIBLE. JUSTICE ALBIN: DID THE PCR COURT MAKE FINDINGS
THAT THE MOTHER WAS NOT CREDIBLE. THE MOTHER SAYS I HAD THIS CONVERSATION WITH
DEFENSE COUNSEL AND I TOLD HIM THAT WE WERE ALL TOGETHER THAT EVENING.
SO DID THE PCR COURT EVER MAKE A CREDIBILITY FINDING CONCERNING THAT STATEMENT?
SHASZ SHAS YES, THE PCR JUDGE WHO WAS ALSO THE TRIAL JUDGE SPECIFICALLY REJECTED
THE MOTHER'S TESTIMONY AND FOUND HER NOT CREDIBLE SPECIFICALLY ON THAT EVIDENCE
AND FOUND THAT THE TRIAL COUNSEL WAS CREDIBLE ON THAT SAME POINT, THAT.
JUSTICE LA VECCHIA: IN YOUR PETITION APPENDIX, I BELIEVE YOU
POINTED OUT AT PAGE 153 THAT THE COURT FOUND HER TESTIMONY TO BE UNBELIEVABLE AND
THAT SHE HAD NEVER APPROACHED COUNSEL AS A POTENTIAL WITNESS; IS THAT THE
CITATION TO THE TRANSCRIPT THAT YOU'RE REFERRING TO AND TO THE PCR FINDING.
LINDA A. SHASHOUA: YES AND I BELIEVE ITS HE IS ALSO, P S A 127, ABOUT
THERE IN THE PCR COURT OPINION ITSELF. JUSTICE LA VECCHIA:
THANK YOU. AND IS A SIMILAR FINDING MADE BY THE PCR COURT IN
THE SECOND PCR WITH REGARD TO MS. BEY? LINDA A. SHASHOUA: I BELIEVE
BECAUSE THE GIRLFRIEND NEVER REPRESENTED THAT SHE DID TALK TO COUNSEL SO
THAT NEVER CAME UP, BUT THE FINDINGS THERE ARE P S A 128 REGARDING THE GIRLFRIEND.
JUSTICE LA VECCHIA: THANK YOU. LINDA A. SHASHOUA:
AND ONE LAST THING. THE MOM SAID THAT SHE NEVER EVEN MEANT THE DEVENLS TRIAL
COUNSEL UNTIL THE DAY OF TRIAL. THAT WAS ALSO REJECTED. CHIEF
JUSTICE RABNER: ARE THERE OTHER QUESTIONS ANYONE HAS? MS.
SHAS, ANYTHING YOU WOULD LIKE TO ADD? WE'LL HAVE YOU BACK FOR REBUTTAL.
LINDA A. SHASHOUA: THANK YOU VERY MUCH. CHIEF
JUSTICE RABNER: MR. YOM. STEVEN A. YOMTOV: THANK YOU, YOUR HONOR,
CAN YOU HEAR ME OKAY? CHIEF JUSTICE RABNER: WE CAN, PLEASE
GO AHEAD. STEVEN A. YOMTOV: OKAY. THE ATTORNEY GENERAL'S
CONCERN IN THIS CASE IS TWOFOLD, FIRST, APPLYING AND UPHOLDING DEFERENTIAL STANDARDS
TO A PCR COURT'S CREDIBILITY DETERMINATION IS CRITICAL. THIS CASE IS A
PERFECT EXAMPLE OF AN APPELLATE COURT SUBSTITUTING ITS OWN FINDINGS BECAUSE IT
DID NOT AGREE WITH THE PCR COURT'S CREDIBILITY FINDINGS CONCERNING
DEFENDANT'S ALIBI WITNESSES WHO ONLY FIRST CAME TO LIGHT, AND THIS IS IMPORTANT,
DURING DEFENDANT'S CROSS-EXAMINATION AT TRIAL AND YEARS AFTER HIS ARREST. THE
UNTIMELINESS OF THESE ALIBI WITNESSES SHOULD HAVE RAISED A RED FLAG CONCERNING
THEIR VERACITY BUT THAT WAS IGNORED BY THE PANEL. THE SECOND
CONCERN OF THE ATTORNEY GENERAL IS APPLYING AND UPHOLDING STRICKLAND'S PREJUDICE
STANDARDS TO INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS AND NOT THE PANEL'S
EXPANSION OF THE STRENGTHS OF THE EVIDENCE TET, TEST AS SET FORTH IN STATE V. PIERRE.
EFFECTIVELY THERE IS CREATED A PARADIGM WHERE PREJUDICE CAN BE
ESTABLISHED IN VIRTUAL ANY CASE WHICH IS NOT SUPPORTED BY OVERWHELMING EVIDENCE
OF GUILT. NEVERTHELESS, BOTH THE STATE AND THE
ATTORNEY GENERAL SUBMIT THAT THE DEFENDANT'S WERE CONVICTION WAS SUPPORTED BY STRONG
EVIDENCE IF NOT OVERWHELMING EVIDENCE OF GUILT, HERE THE DEFENDANT'S DETAILED
CONFESSION AN AN EYEWITNESS PLACED AT THE SCENE OF THE SHOOTING AND ALSO, KEEP
IN MINDS IN PIERRE, THERE WAS NO CONFESSION AND THE ALIBIS WERE TIMELY WHICH
ARE CRITICAL DIFFERENCES BETWEEN THE TWO CASES. THE STRENGTH
OF THE EVIDENCE, WHILE IMPORTANT TO THE PREJUDICE ANALYSIS CANNOT BE THE SOLE
FOCUS AS THE PANEL SEEMS TO SUGGEST BECAUSE THAT INVITES THE APPELLATE COURT
AND THIS IS IMPORTANT, TO MAKE FACTUAL AND CREDIBILITY JUDGMENTS, WHICH IS NOT
ITS ROLE AND EXACTLY WHAT HAPPENED IN THIS CASE. THE PANEL
INAPPROPRIATELY AND WRONGLY ASSESSED BASE CREDIBILITY, THIS PANEL IGNORED THE
DEFENDANT WITH THE DEFENDANT'S MOTHER'S TESTIMONY WHO WAS COMPLETELY DIS
CREDITED WHEN SHE TESTIFIED AT THE PCR HEARING THAT SHE WAS AT HOME THE NIGHT OF THE
SHOOTING WHICH WAS A COMPLETE CONTRADICTION TO DEFENDANT'S TRIAL
TESTIMONY THAT SHE DROPPED HIM OFF AT HOME AND WENT TO WORK.
RATHER, THE APPROPRIATE STANDARD AND FOCUS FULLY SET FORTH IN STRICKLAND THAT IT IS
THE DEFENDANT'S BURDEN ON PCR TO PROVE THAT COUNSEL'S DEFICIENT SWASHG,
UNDERMINDS COUNSEL TO A REASONABLE DEGREE OF RESPONSIBILITY. HERE,
MS. BEY TESTIFIED THAT SHE WAS AT HOME WITH THE DEFENDANT AN HIS MOTHER ON THE
NIGHT OF THE SHOOTING, BUT DEFENDANT HAD ALREADY TESTIFIED THAT HIS MOTHER
WENT TO WORK AS THE PCR COURT REPRESENTS, IT WOULD HAVE SUBSTANTIALLY INCREASED
THE LIKELIHOOD THAT THE JURY WOULD NOT BELIEVE ANY OF THE DEFENSE WITNESSES
AND THUS WOULD HAVE INCREASED THE LIKELIHOOD OF DEFENDANT'S CONVICTION.
SO UNDER THESE CIRCUMSTANCES, POST-CONVICTION RELIEF WAS PROPERLY DENIED
AND THE APPELLATE DIVISION JUDGMENT SHOULD BE REVERSED. THE COURT:
HOLD FOR A SECOND, MR. YOM. CHIEF JUSTICE RABNER: SURE.
MR. BOE MAN CAN YOU HEAR US? ALAN DEXTER BOWMAN: YES, THE VIDEO
IS COMING BACK ON SHORTLY, AS WELL. CHIEF JUSTICE RABNER:
I KNOW THAT YOUR VIDEO IS COMING IN AND OUT DURING THE COURSE OF THE ARGUMENT,
WE'LL PROCEED YOU WILL LET US KNOW IF YOU WOULD PREFER IF WE NOT DO SO, WOULD THAT
BE ALL RIGHT? ALAN DEXTER BOWMAN: 30 SECONDS, YOUR HONOR.
CHIEF JUSTICE RABNER: AND FOR THOSE WHO ARE WATCHING AND HAVEN'T
SEEN SOME OF OUR ARGUMENTS WE HAVE HAD PRACTICALLY TWO DOZEN OF THESE AND THIS
SEEMS TO BE OUR LUCKY DAY. THEY'VE GONE SMOOTHLY UP UNTIL NOW.
ALAN DEXTER BOWMAN: IT DOESN'T WANT TO FUNCTION IN THE INTEREST OF MOVING FORWARD
I WILL JUST GO WITH THE AUDIO, I SUPPOSE. CHIEF JUSTICE RABNER:
THANK YOU, MR. BOW MAN. MR. YOM, PLEASE PROCEED.
STEVEN A. YOMTOV: I WAS FINISHED WITH MY OPENING, YOU KNOW, IF YOU HAVE ANY QUESTIONS,
YOUR HONORS. JUSTICE ALBIN: I HAVE ONE QUESTION, MR. YOM,
ONCE THE DEFENDANT ON CROSS-EXAMINATION MENTIONED THAT HE WAS AT HOME WITH MS.
BEY, DO YOU THINK THAT CREATED SOME EXPECTATION IN THE MINDS OF THE JURY
THAT IF THIS IS AN ALIBI, THEN WHERE IS MS. BEY AND THAT PUT SOME PRESSURE ON THE
DEFENDANT TO PRODUCE MS. BEY? STEVEN A. YOMTOV: WELL, NO, I THINK
THAT ONCE HE SAID THAT, YOU KNOW, I THINK THAT GOES MORE TOWARDS, IF I AM
UNDERSTANDING YOUR QUESTION, CORRECTLY THAT GOES MORE TOWARDS THE FIRST PRONG OF
STRICKLAND, THAT, YOU KNOW, IT FELL UPON COUNSEL AT THAT POINT TO, YOU KNOW,
AS THE PCR COURT FOUND TO AT LEAST ASK FOR AN ADJOURNMENT SO THAT HE COULD FIND
OUT WHAT WAS GOING ON AND CONTACT MS. BEY AND SEE IF SHE COULD CORROBORATE WHAT
HE WAS SAYING. BUT THAT'S THE WHOLE POINT OF THE COURT RULE, YOU KNOW, AND THAT
GIVES EVERYBODY A CHANCE TO RESPOND. JUSTICE ALBIN: LET
ME SEE IF I UNDERSTAND YOUR POSITION. ONCE WE HOLD THE DEFICIENCY
PRONG, YOUR POCK IS EVEN IF DEFENSE COUNSEL HAD AN OPPORTUNITY TO SPEAK
WITH MS. BEY WHEN THE CONTRADICTIONS BETWEEN WHAT SHE WOULD HAVE TESTIFIED TO AGAINST
WHAT THE DEFENDANT TESTIFIED TO WOULD HAVE LED TO DEFENSE COUNSEL NOT PUTTING
HER ON THE STANDS; IS THAT YOUR POSITION. STEVEN A. YOMTOV: WHAT WAS
THAT LAST YORD, THAT HE WOULD NOT HAVE PUT HER ON THE STAND.
JUSTICE ALBIN: IT'S UNLIKE THAT HE WOULD HAVE OR DO YOU THINK THAT YOU DON'T EVEN
HAVE TO REACH THAT ISSUE. STEVEN A. YOMTOV: I DON'T THINK
YOU NEED TO REACH THAT ISSUE, BUT, YOU KNOW, THE PROBLEM WITH THIS CASE
IS THAT WE'RE LOOKING AT EVERYTHING IN HINDSIGHT AFTER A PCR HEARING AND IF YOU
LOOK AT IT IN REAL TIME, YOU KNOW, IT -- YOU KNOW, CONCEDING THE POINT THAT
COUNSEL SHOULD HAVE AT LEAST ASKED FOR AN ADJOURNMENT WE PROBABLY WOULD HAVE
GOTTEN A BETTER ANSWER AS TO WHAT BEY WOULD HAVE TESTIFIED TO, BUT BEY DIDN'T COME
FORWARD OR DEFENDANT PROFFER THEIR CERTIFICATION UNTIL YEARS LATER. I
THINK THE PCR HEARING WASN'T UNTIL 2012/2013 SO IT REALLY -- I WANT ON TO FOCUS
AND THIS IS THE PROBLEM WITH THE OPINION IT REALLY DIDN'T GET INTO THE TIME
LINESS ASPECT OF IT AND THAT IF IT HAD BEEN TIMELY PROFFERED, THEN WHAT HAPPENED
-- AS IN PIERRE, I THINK IT WOULD HAVE GIVEN IT SOME MORE -- YOU KNOW, IT WOULD
HAVE TENDED TO BE MORE BELIEVABLE, BUT BY ALL THIS PASSAGE OF TIME IT REALLY
BECOMES QUESTIONABLE AND IF I COULD JUST ANSWER AN EARLIER QUESTION THAT WAS ASKED
OF MS. SHAS, YOU KNOW, WHEN YOU LOOK AT THE MOTHER'S TESTIMONY, IT HAS TO BE
VIEWED IN THE SAME CONTEXT AS BEY'S TESTIMONY BECAUSE WHEN YOU HAVE TWO PEOPLE,
IT'S NOT JUST ONE PERSON SAYING SOMETHING AGAINST ANOTHER, WHERE THEY ARE
DIAMETRICALLY OPPOSED. YOU HAVE TWO ALIBI WITNESS SESSION WHO ARE IN SYNCH AND
BOTH ARE CONTRADICTING WHAT DEFENDANT SAID AT TRIAL SO I DON'T THINK YOU
COULD JUST PUT THE MOTHER'S TESTIMONY OVER TO ONE SIDE. YOU HAVE TO CONSIDER IT
AND SINCE THE CAT IS OUT OF THE BAG, IT'S, YOU KNOW, AS WE KNOW THAT EXPRESSION,
THE FACT THAT WE NOW KNOW THAT THE MOTHER WOULD TESTIFY THAT SHE WAS AT HOME WITH
THEM, WHICH IS A COMPLETE CONTRADICTION, THERE IS NOTHING THAT PREVENTS THE
STATE FROM CALLING THE MOTHER AS A REBUTTAL WITNESS TO REFUTE THAT DEFENDANT IS,
YOU KNOW, IS NOT TELLING THE TRUTH HERE. CHIEF JUSTICE RABNER:
MR. YOM, I AM NOT SURE WHY YOU NEED TO GO THAT FAR AND FOLLOW UP ON JUSTICE
ALBIN'S QUESTION. SUPPOSE THAT VERY AFTERNOON MS. BEY HAD TAKEN THE STAND, WE
KNOW FROM THE RECORD THAT EXISTS NOW THAT THE JURY WOULD HAVE HEARD THESE TWO
STORIES, THE DEFENDANT SAID I WAS HOME AND I WAS HOME WITH JUST ONE PERSON,
NOT MY MOM, MY GIRLFRIEND AND THEN MS. BEY WOULD HAVE TAKEN THE STAND AND TESTIFIED
I WAS WITH THE DEFENDANT, BUT THERE WERE TWO OF US WITH HIM, THAT NIGHT,
MOM, AS WELL, ISN'T THAT A SIGNIFICANT MATTER THAT WOULD BEAR ON THE PREJUDICE
PRONG? STEVEN A. YOMTOV: ABSOLUTELY. THAT'S OUR PRIMARY
ARGUMENT THAT THAT IS A FUNDAMENTAL POINT. AND THAT GOES TO BOTH GENERAL CREDIBILITY
AS WELL AS SUBSTANTIVE. WE HAVE HERE A WITNESS WHO IS -- MEANING BEY, WHO IS
IS SAYING THAT THERE WERE THREE PEOPLE AT THE HOME INSTEAD OF THE TWO AS YOU JUST
POINTED OUT AND IT ALSO GOES TO THE SUBSTANCE. I MEAN, HOW CAN YOU -- IF
HE SAYS THE MOTHER WENT TO WORK AND BEY IS STAYING THAT SHE WAS THEN HOME, YOU KNOW,
IT GOES TO THE HEART OF WHAT THE, WHAT THE PERSON IS TESTIFYING TO AND I THINK
IF THIS WAS IN FRONT OF THE JURY, THEY JUST WOULD NOT HAVE BELIEVED IT -- HIS VERSION.
CHIEF JUSTICE RABNER: ANY OTHER QUESTIONS FOR MR. YOM, ANYONE?
CHIEF JUSTICE RABNER: MR. YOM, ANYTHING ELSE?
STEVEN A. YOMTOV: NO. CHIEF JUSTICE RABNER:
THANK YOU, YOU MR. BOE MAN. ALAN DEXTER BOWMAN: ONE OF THE THINGS THAT
STANDS OUT FROM MY PERSPECTIVE, PARTICULARLY WHEN BOTH PROSECUTORS MAKE REFERENCE TO THE
PCR COURT, I THINK THERE'S A COMPLICATION ON -- A DIFFERENCE IN THIS PARTICULAR CASE AND
IN OTHER CASES WHEN ONE REFERS TO THE PCR COURT. THERE'S ONLY ONE JUDGE OF THE MANY
JUDGES WHO'VE HAD AN OPPORTUNITY TO REVIEW THIS CASE WHO ACTUALLY MET MS. BEY. AND THAT'S
JUDGE NATALE. AND FROM MY PERSPECTIVE JUDGE NATALE WAS THE PCR COURT. IN THIS CASE WHEN
THE PCR WAS INITIALLY FILED AND WAS DENIED AND THERE WAS NO HEARING CONDUCTED AND JUDGE
NATALE SAID HE AGREED THAT WAS A STRATEGIC DECISION AND MR. GABRIEL WAS WITHOUT
RESOURCE. RELATIVE TO THE ALIBI WITNESS PARTICULARLY MS. BEY AND THAT SHE TESTIFIED
THAT THERE WAS A SUBSTANTIALLY POSSIBILITY THAT THE RESULT WOULD HAVE BEEN DIFFERENT BECAUSE
HER TESTIMONY WAS CONSISTENT WITH THE TESTIMONY OF MR. GIDEON. AND THAT WAS HE WAS HOME
ALL NIGHT WITH HER AND FROM HER PERSPECTIVE SHE WAS HOME ALL NIGHT WITH HIM. AND SO THAT
MATTER HE GRANT PCR AT SOME POINT EVEN THOUGH MR. YOMTOV DISPARAGES THE WITNESSES TO SOME
DEGREE BUT WHAT IS SIGNIFICANT HERE THROUGHOUT THIS CASE IS THAT THERE WAS NO FAILURE
OF SECOND PRONG SATISFACTION IN THIS PARTICULAR CASE. WHAT JUDGE NATALE FOUND AND HE
HEARD -- HE'S THE ONLY JURIST IN THIS CASE WHO HEARD MS. BEY AND HEARD FROM THE MOTHER,
HE FOUND THAT SHE WAS -- WHETHER HE WOULD HAVE BELIEVED HER OR NOT IF HE WERE A JUROR
IS ONE THING, BUT THE NEXT THING, THE MOST SIGNIFICANT WAS IS WHETHER A JURY WOULD HAVE
ACQUITTED MR. GIDEON THAN PERHAPS JUDGE NATALE DID IN HIS COMMENTARY. THE CREDIBILITY
AND THAT SORT OF THING, HE MADE AN UNEQUIVOCAL JUDGMENT A JURY SHOULD MAKE A DECISION
WITH RESPECT TO WHETHER OR NOT THIS EVIDENCE IS SUBSTANTIAL AND TRUTHFUL. AND HE DID.
AND HE MADE A DECISION RELATIVE TO WHAT THE VIOLATION WAS FROM THE TRIAL LAWYER, SAID
THAT TRIAL LAWYER AFTER YOU'RE IN OPEN COURT THAT THERE WAS A WITNESS. HE DEPRIVED MR.
GIDEON OF AN OPPORTUNITY TO HAVE A JURY HEARING THIS EVIDENCE. AND WHATEVER YOU WANT TO
SAY ABOUT JUDGE NATALE's OPINION AND HIS METHODOLOGY AND THE STRUCTURE OF HIS
ARGUMENTS, HE'S ABSOLUTELY CORRECT IN THE CONTEXT THAT THIS IS A JURY QUESTION IN THIS
CONTEXT WHETHER OR NOT. WHICH IS SOMETHING ELSE. TO SAY HE DILIGENTLY AVOID TALKING
ABOUT WHAT WAS IT ABOUT MS. BEY THAT HE COULD HAVE ATTACKED. THIS WAS AN IMPECCABLE WOMAN
OTHER THAN THE FACT THAT SHE HAD A RELATIONSHIP WHICH APPEARS. THERE WAS NO ATTACK THAT
COULD BE MADE ON HER CREDIBILITY, CHARACTER OR ON THE TRUTHFULNESS OF HER CLAIM THAT SHE
SPENT THE NIGHT WITH MR. GIDEON. THERE'S NO EVIDENCE CONTRADICTORY OF THAT OTHER THAN,
AS THE STATE LIKES TO POINT OUT, SOME GUY ON THE SCENE WITH NUMEROUS WAS CORRECT IN HIS
ANALYSIS. HE WAS FROM THAT PERSPECTIVE A RIVAL DRUG DEALER WHO HAD CREDIBILITY ISSUES
HIMSELF. AND HE DIDN'T RENDER THE EVIDENCE OVERWHELMING BECAUSE HALF THE STATE'S
EVIDENCE WAS OVERWHELMING, MR. GIDEON WOULD HAVE BEEN CONVICTED OF MURDER AND HE WAS NOT.
HE WAS ACQUITTED OF MURDER AND ALL THE EVIDENCE THE STATE SEEKS TO. BUT IT WAS NOT
SUFFICIENTLY OVERWHELMING EVEN WITH THE WITNESS TESTIFYING TO A CONFESSION SHE RECANTED
I GUESS ON THE WITNESS STAND. DESPITE ALL THAT THE STATE COULD NOT CONVICT HIM OF A MURDER.
PERHAPS HAD SOMETHING TO DO WITH THE FACT THAT ON CROSS-EXAMINATION HE TESTIFIED I WAS
WITH MY GIRLFRIEND ALL NIGHT. AND PERHAPS THE JURY SAID THE OTHER ASPECT OF THE CASE
THEY WERE PERHAPS WEAK AND THE JURY SAW THIS AND THAT MAY BE THE REASON WHY THE VERDICT
As TO THE MURDER COUNT WAS DIFFERENT. BUT MY POSITION AND MAKE IT EASIER FOR
GUYS THAT SCURRY AROUND THE SECOND PRONG IF YOU DON'T DO THIS OR THAT, WHAT IS SIGNIFICANT
HERE IT'S BEEN MY PERSPECTIVE IN MY HEAD 30 YEARS THAT WHEN YOU GET INTO THIS CONTEXT
OF PREJUDICE AND WHETHER OR NOT THE PRONG HAS BEEN MET, COURTS, WHEN THEY'RE WEIGHING
DECISIONS RELATIVE TO OUTCOME DETERMINATION, THAT SORT OF THING, IT'S NOT MY COMPREHENSION
THAT JUDGES SAY, WELL, THEY DIDN'T PERSUADE ME. IF I WAS A JUROR, I WOULD NOT HAVE BELIEVED
IT. I DON'T THINK THAT'S THE TEST. I THINK THE TEST IS A TEST IS IF THE EVIDENCE IS
SUFFICIENTLY LET'S SAY CREDIBLE, HAS SUFFICIENT INTEGRITY, THAT A JURY SHOULD MAKE A
DETERMINATION WITH RESPECT TO WHETHER OR NOT THE OUTCOME WOULD HAVE BEEN DIFFERENT. AND
IN THIS PARTICULAR CASE I'LL SAY IT ONE MORE TIME, BECAUSE IN MODERN DAY AMERICA IT IS
PARTICULARLY SIGNIFICANT WHAT YOU MIGHT CALL IN OUR SYSTEM THE WAY PARTICULAR WITNESSES
ARE VIEWED. HAD MS. BEY, A COLLEGE EDUCATED WOMAN FROM THE SUBURBS, I SUPPOSE, AND WE
ALL UNDERSTAND THAT THERE'S SOME DIFFERENCE IN THE EVALUATION OF HER TESTIMONY AS OPPOSED
TO. AND AS I INDICATED BEFORE, WHAT IS SIGNIFICANT IN THIS CASE, YOU HAVE THE
STRICKLAND'S IMPECCABLE WITNESS SHE HAS NO PRIOR RECORD, SHE'S A WORKING A PERSON OF A
CERTAIN PEDIGREE, THEY HAVE LESS OPPORTUNITY TO UNDER PIN A REVERSAL OF THEIR DECISION
AND MS. BEY -- THE ONLY JUDGE -- THERE HAVE BEEN MANY JUDGES IN THIS CASE. MAYBE TEN.
JUDGE NATALE. LET ME BACKTRACK A BIT BECAUSE MR. YOMTOV AND MS. SHA ONE OF THE JUSTICES
SAID WHERE CERTAIN HAS BEEN MADE ON A COLD RECORD BY A TELEVISION -- JUSTICE
FERNANDEZ-VINA: MR. BOWMAN, DID I HEAR YOU SAY JUDGE NATALE IS THE ONLY ONE THAT HEARD
FROM MS. BEY AND MS. GIDEON. ALAN DEXTER BOWMAN: HE NEVER HEARD THE WITNESSES.
NEVER MET THEM. HE DID IT ON A COLD RECORD. AND BASICALLY SPLIT THE SAME FINDING THAT
JUDGE NATALE USED TO MAKE A DETERMINATION THAT IT WAS NECESSARY IN THIS CASE FOR THE JURY
TO MAKE A DECISION. HE SPLIT JUDGE NATALE's -- JUSTICE ALBIN: MR. BOWMAN,
MR. BOWMAN. MY QUESTION TO YOU IS, DID JUDGE NATALE EVER ADDRESS PRONG NUMBER TWO OF
STRICKLAND? DID HE EVER MAKE A FINDING THAT THERE WAS A REASONABLE PROBABILITY THAT BUT
FOR DEFENSE COUNSEL's UN-PROFESSIONAL ERROR, AND THAT IS FAILURE TO SPEAK WITH MS. BEY
AFTER HER NAME WAS MENTIONED ON CROSS, THE RESULT OF THE PROCEEDINGS WOULD HAVE BEEN DIFFERENT?
THAT IS, DID HE EVER MAKE A FINDING THAT IF MS. BEY HAD TESTIFIED THERE'S A REASONABLE
PROBABILITY THAT THE JURY WOULD HAVE ACQUITTED YOUR CLIENT? DID HE EVER ADDRESS THAT.
ALAN DEXTER BOWMAN: YES, I THINK HE DID. BUT I THINK HE DID IN A DIFFERENT
LANGUAGE. I THINK -- JUSTICE ALBIN: WELL, IF YOU THINK HE DID IT IN A DIFFERENT
WAY BUT THAT HE DID IT, THEN QUOTE TO US EXACTLY WHAT HE SAID THAT YOU BELIEVE ADDRESSED
PRONG NUMBER TWO. ALAN DEXTER BOWMAN: I'LL QUOTE IT TO YOU. I'LL QUOTE IT
FOR YOU. HE BASICALLY SAID -- AND LET ME GIVE A LITTLE BACKGROUND WITH RESPECT TO MR.
-- JUSTICE ALBIN: WELL, JUST QUOTE HIM. GO AHEAD AND QUOTE THE LANGUAGE.
ALAN DEXTER BOWMAN: HOLD ON ONE SECOND. JUSTICE ALBIN: THAT HE
USED TO ADDRESS PRONG NUMBER TWO. HE SAID -- THIS IS THE LANGUAGE THAT JUDGE NATALE USED
THAT I INTERPRETED AS COVERING THE SECOND CROWE IN STRICT LAND. HE SAID MR. DEPRIVED
HIS CLIENT OF TO SUPPORT HIS CLAIM OF INNOCENCE IN THAT HE WAS HOME THAT NIGHT WITH HIS
GIRLFRIEND. ESSENTIALLY WHAT JUDGE NATALE SAW IS -- JUSTICE ALBIN:
MR. BOWMAN, THAT'S DIFFERENT. THAT'S DEFICIENCY. DEPRIVING THE JURY OF HEARING MS. BEY
IS ONE THING. WHETHER MS. BEY WOULD HAVE UNDERMINED THE CONFIDENCE OF THE JURY, OKAY,
IN ITS DETERMINATION TO FIND GUILT, THAT'S SOMETHING DIFFERENT. THAT'S ENTIRELY
DIFFERENT. DO YOU INDUSTRY WITH ME? ALAN DEXTER BOWMAN: YES, YOUR HONOR.
I DOCHLT I UNDERSTAND YOUR POSITION HAS A LITTLE MORE AUTHORITY THAN MINE, BUT, YES, I DOCHLT
I BELIEVE -- AND I'LL SAY IT ONE MORE TIME BECAUSE IT IS SIGNIFICANT AND IT NEVER CAME
OUT IN THE PRESENTATIONS MADE BY THE PROSECUTORS. JUDGE NATALE IS THE ONLY JUDGE IN THIS
CASE WHO MET MS. BEY. AND WHO COULD EVALUATE HER CREDIBILITY IN PERSON AS WELL AS WHAT
EFFECT SHE MIGHT HAVE ON A JURY AND HIS FINDINGS AND DECISION WASN'T THE MOST ARTFUL,
PARTICULARLY IN TERMS OF. BUT HE DECIDED MS. BEY's TESTIMONY HAD SOME SIGNIFICANCE AND
THE JURY SHOULD NOT HAVE BEEN DEPRIVED. IF THAT'S ASSUMED AND IF YOUR HONOR IS CORRECT
HE DIDN'T USE WHAT YOU MIGHT CALL TRADITIONAL SECOND PRONG LANGUAGE, THE MOST RECENT
DECISIONS FROM THE APPELLATE DIVISION MS. SHA AND MR. YOMTOV AS ELIMINATING THE SECOND
PRONG, I DON'T SEE THAT AS A USURPING BUT THE AUTHORITY OF THE TRIAL COURT TO MAKE THIS
DECISION. IF THEY ASSUME THAT JUDGE NATALE DIDN'T MAKE THAT DECISION, IT WENT TO THE
APPELLATE DIVISION. THE APPELLATE DIVISION REMANDED IT BACK. JUDGE NATALE GOT SICK AND
JUDGE POE LANCE 63 TOOK OVER. BASED ON JUDGE NATALE's FINDINGS, THE FINDING THAT JUDGE
NATALE HAD USED TO FIND THAT THE PCR AGREEMENT WAS APPROPRIATE, DECIDED, NO, THESE WITNESSES
ARE NOT CREDIBLE, NOBODY'S EVER GOING TO BELIEVE THEM. LET'S TAKE IT BACK
UP TO -- CHIEF JUSTICE RABNER: MR. BOWMAN, I WANTED TO ASK YOU A QUESTION
ABOUT THE APPELLATE DIVISION DECISION, BECAUSE YOU ARGUED BEFORE ABOUT THE LEVEL OF
CREDIBILITY AND HOW TO ASSESS THAT. THE -- A FEW PLACES IN THE OPINION FOCUSES ON WHETHER
THE TESTIMONY RELATED TO A CRITICAL QUESTION OR A FUNDAMENTAL POINT. HERE, WHERE THE
DEFENDANT WAS AT THE TIME OF THE SHOOTING. ARE YOU FAMILIAR WITH THE JURY CHARGE FALSE
IN ONE, FALSE IN ALL? ALAN DEXTER BOWMAN: I'M FAMILIAR WITH THAT. I THINK
WE ALL HAD. CHIEF JUSTICE RABNER: TO GET THAT CHARGE, DO YOU NEED TO SHOW
THAT THE FALSITY RELATED TO A CRITICAL QUESTION OR A FUND ATTACHMENT POINT OR DOES IT
SIMPLY TURN ON WHETHER THERE WAS FALSE TESTIMONY RELATED TO A MATERIAL FACT? ALAN
DEXTER BOWMAN: I THINK THAT MS. BEY -- TALKING ABOUT MS. BEY -- CHIEF JUSTICE
RABNER: I'M JUST TALKING ABOUT THE PRINCIPAL AT LARGE AND THEN WE'LL COME TO THE FACTS.
ALAN DEXTER BOWMAN: THERE'S A CERTAIN PRINCIPLE ASSOCIATED WITH THAT PARTICULAR
ADMONITION OR JURY INSTRUCTION IN TERMS OF ITS APPLICATION, WHETHER IT'S GIVEN OR WHETHER
IT'S NOT IS RELATIVELY -- VERY RARELY DO COURTS REFUSE TO GIVE THAT CHARGE IF THERE APPEARS
TO BE IN-CONSISTENT STATEMENTS ABOUT A PARTICULAR WITNESS IN A TRIAL. CHIEF JUSTICE
RABNER: HERE'S THE LANGUAGE. I'M LOOKING AT THE CHARGE. IT RELATES TO KNOWING OR WILLFUL
FALSE TESTIMONY AS TO A MATERIAL FACT WITH THE INTENT TO DECEIVE. SHOULD THE CONCEPT
BE ANY DIFFERENT WHEN IT TURNS TO THE PCR PHASE OF THE CASE? SHOULD WE BE TALKING ABOUT
MATERIALITY OR WHETHER ABOUT A STATEMENT WENT TO A FUNDAMENTAL OR CRITICAL POINT IN OF
THE CASE IN THE COURT'S EVALUATION? ALAN DEXTER BOWMAN: IF YOUR HONOR IS
ATTEMPTING TO APPLY THIS FALSE IN ONE FALSE IN ALL, THERE'S NO FALSITY IN HER TESTIMONY.
THERE'S NOT INDICATING ANY WHATSOEVER. CHIEF JUSTICE RABNER: I'LL TELL YOU
WHAT I'M TRYING TO DO. I'M NOT HIDING THE BALL HERE. I'M TRYING TO GET YOUR HELP ON
WHAT THE APPROPRIATE LEGAL STANDARD SHOULD BE, BECAUSE WE HAVE AN APPELLATE DIVISION
DECISION THAT SEEMS TO BE FOCUSED ON FUNDAMENTAL ASPECTS OF THE TESTIMONY AS OPPOSED TO
SIMPLY WHETHER SOMETHING IS MATERIAL. SO LET ME -- I'LL COME TO THE FACTS FOR YOU. IS
IT MATERIAL IN YOUR JUDGMENT THAT THE DEFENDANT SAID, I WAS HOME WITH ONE PERSON AND MS.
BEY SAID I WAS HOME WITH THE DEFENDANT AND A THIRD PERSON AS WELL? IS THAT A MATERIAL
FACT? ALAN DEXTER BOWMAN: I THINK THAT THE MATERIAL FACT IN THIS PARTICULAR
CASE AS ARTICULATED BY THE APPELLATE DIVISION IS WHETHER OR NOT MS. BEY IN HER TESTIMONY
ESTABLISHED THE FUNDAMENTAL POINT THAT -- HER TESTIMONY ASSISTED IN THE TWO OF THEM.
THAT THEY WERE AT THE MOTHER's HOUSE TOGETHER. WITH RESPECT TO WHETHER OR NOT THERE'S
-- I DON'T KNOW, RELATIVE TO OTHER ASPECTS OF IT. I UNDERSTAND WHAT YOUR HONOR MEANS.
BUT I DON'T BELIEVE THERE'S A FUNDAMENTAL FACT OR MATERIALITY OF ANYTHING THE POWER OF
MS. BEY's OPPORTUNITY TO TESTIMONY AND. JUSTICE ALBIN: MR. BOWMAN, LET ME
ASK YOU A QUESTION. WITH THIS THEME OF WHAT THE CHIEF JUSTICE ASKED YOU. I'M GOING TO CHANGE
THE FACTS A LITTLE BIT. LET'S SAY MS. BEY HAD SAID, OH, YEAH, I WAS WITH THE DEFENDANT
IN THE APARTMENT WITH 15 OTHER PEOPLE. AND WE WERE HAVING A BIG PARTY ALL NIGHT LONG.
WE WERE ALL TOGETHER. AND THE DEFENDANT SAID, OH, NO, I WAS JUST THERE WITH MY GIRLFRIEND.
WOULD YOU THINK THAT WOULD BE A PROBLEM? OR IS YOUR POSITION THAT SO LONG AS MS. BEY
AND THE DEFENDANT AGREE ON THE FACT THAT THE TWO OF THEM WERE AT HOME TOGETHER, THAT'S
ALL THAT MATTERS AND THAT'S WHAT WOULD PERSUADE A JURY? ALAN DEXTER BOWMAN:
I DON'T THINK THAT IT'S NECESSARILY ALL THAT MATTERS. I THINK ALSO WITH RESPECT TO THE
TWO WITNESSES, THE MOTHER AND MS. BEY, WILL I THINK THERE WAS SOME CONFUSION AS TO WHETHER
OR NOT THEY BELIEVED THE MOTHER WAS UN-STAIRS OR THE MOTHER SAID SHE WENT TO WORK. BUT
THERE'S NO KWIFL OCCASION AND NO DAMAGE DONE TO MS. BEY, A CRITICAL ASPECT IN THIS CASE
PSHGS THE DEFENDANT WAS HOME WITH HER -- JUSTICE ALBIN: ADDRESS MY HYPOTHETICAL.
IN MY HYPOTHETICAL, IS THAT DIFFERENT? WOULD YOU COME TO THE SAME CONCLUSION UNDER MY
HYPOTHETICAL? MS. BEY IS SAYING WE'RE ALL AT HOME, BIG PARTY, 15 PEOPLE. DEFENDANT IS
THERE. AND DEFENDANT TESTIFIES OH, NO, I WAS JUST HOME WITH MS. BEY. NO ONE ELSE WAS
THERE. IS YOUR POSITION THE SAME? ALAN DEXTER BOWMAN: NO. OBVIOUSLY NOT,
YOUR HONOR. I THINK THAT WOULD BE A DIFFERENT SITUATION THAN WE HAVE FWH THIS PARTICULAR
CASE. AS I INDICATED BEFORE, MS. BEY -- YOU KNOW -- JUSTICE ALBIN: WHY SIT
DIFFERENT? DEFENDANT SAID THE MOTHER WENT TO WORK AND MS. BEY SAID, OH, NO, SHE WAS
COOKING. WE WERE WATCHING TELEVISION. WE WERE ALL SITTING ON THE COUCH TOGETHER. WHY
IS THAT DIFFERENT? THAN THE HYPOTHETICAL I GAVE YOU. ALAN DEXTER BOWMAN:
I THINK THAT WAS EARLIER IN THE NIGHT AND MS. BEY RE-TIRED. MS. BEY WAS ILL THAT EVENING
AS INDEPENDENT IT. AND MR. GIDEON RE-TIRED TO THE UPSTAIRS AND WHAT HAPPENED THEREAFTER
IS -- NOBODY, NOTHING IN THIS CASE CONTRADICTS MS. BEY's CONCEPT THAT SHE WAS HOME.
THE REPORTER CAN'T HEAR WHAT MR. BOWMAN IS SAYING. OFTENTIMES THE
GOVERNMENT PUTS ON WITNESSES WHO ARE IN-CONSISTENT AND ROUTINELY IN THEIR
SUMMATION WHEN THEY'RE ATTACKED, IN SUMMATION AND CROSS-EXAMINATION, THE GOVERNMENT SAYS,
YOU TAKE OUR WITNESSES AS WE FIND THEM AND NO WITNESSES ARE PERFECT. THE SAME WAY THE
CIRCUMSTANCE LIKE THIS. HER RELATION WITH MR. GIDEON AND THERE'S NO INDICATION OTHERWISE.
I DON'T WANT TO SAY BIAS. IN OUR SYSTEM IT MAKES IT I THINK THIS IS A LITTLE DIFFERENT.
JUSTICE SOLOMON: BEFORE YOU GO ON TO THE NEXT SET OF FACTS, HOW DO YOU DEAL
WITH THE QUESTION WHICH THE SECOND PCR COURT RELIED ON TO SOME EXTENT THAT MS. BEY WAIT
ED FIVE YEARS, NOTWITHSTANDING HAVING BEEN AT TRIAL, HEARD THE TESTIMONY, WAITED FIVE YEARS
TO PROVIDE THE INFORMATION THAT TRIAL COUNSEL SAID HE WAS NEVER GIVEN DESPITE NUMEROUS
MEETINGS WITH THE WITNESSES AND THE DEFENDANT. AND SECONDLY -- AND SECONDLY -- I HATE
TO MIX THEM UP, BUT THERE'S -- THE FACTS THAT YOU ADDED TO THAT, THAT THEY WERE UPSTAIRS,
SHE WAS DOWNSTAIRS COOKING, ALL OF THAT HEIGHTENS THE INCONSISTENCY BETWEEN MS. BEY's
TESTIMONY AND DEFENDANT'S STATEMENT, DOESN'T IT? SO DEAL WITH THE FIVE YEARS FIRST.
ALAN DEXTER BOWMAN: I'LL DEAL WITH THE FIRST FIVE YEARS FIRST. THE DEFENDANT
TESTIFIED AT TRIAL, IN THE TRIAL, HE WAS HOME WITH HIS GIRLFRIEND. THE GOVERNMENT HAS
CONCEDED THE FIRST PRONG OF STRICKLAND. THAT WAS IN REAL TIME DURING THE TRIAL, NOT FIVE
YEARS LATER. JUSTICE SOLOMON: I WAS REFERRING TO HIS STATEMENT. BUT GO AHEAD.
ALAN DEXTER BOWMAN: I UNDERSTAND. HIS STATEMENT ALSO, WHICH IS ALSO -- MR.
AT THE PCR HEARING SAID HE COULD NOT IT'S ALL ABOUT THE WITNESSES AND HE DIDN'T HIS
PRACTICE THAT HE SENT AN INVESTIGATOR OUT. BUT HE NEVER SAID I WAS NEVER TOLD AND I ASKED
THAT PARTICULAR QUESTION ABOUT THAT. HE COULD NOT -- AND MR. THE REPORTER
CANNOT UNDERSTAND WHAT MR. BOWMAN IS SAYING. AS I INDICATED BEFORE, HIS ONLY
STATEMENT RELATIVE TO HIM AND NOT -- HE BEEN TOLD. (INAUDIBLE). HE TESTIFIED I WAS WITH
MY GIRLFRIEND AND HE DOESN'T ASK FOR AN ADJOURNMENT. HE DOESN'T EVEN TRY TO TALK TO
THE WOMAN IN REAL TIME THE DEFENDANT HIMSELF WAS OFF TO THE NEXT LAWYER. HE SAID I TOLD
MR. I HAD WITNESSES. WHATEVER. (INAUDIBLE). SHE WAS IN COURT. THIS IS ANOTHER POINT.
IT'S IRREFUTABLE SHE WAS IN COURT AT THE TIME HE TESTIFIED. SO A LOT OF THINGS HERE IN
THIS CASE ARE RATHER TROUBLING. THINGS LIKE THAT. PCR COURT SAID WHY SIGNIFICANT FIVE
YEARS (INAUDIBLE). AND THAT IS THE REASON WHY THE GOVERNMENT CONCEDED THE FIRST PRONG.
THE LAWYERS SAT THERE AND DID NOTHING. JUSTICE PIERRE-LOUIS: I WAS GOING
TO ASK A SIMILAR QUESTION AS JUSTICE SOLOMON AS TO MS. BEY SOME COMING FORWARD. IS THERE
ANY INDICATION, MR. BOWMAN, THAT SHE SPOKE TO THE LAWYER ABOUT HER ALIBI TESTIMONY AND
THE FACT THAT SHE WAS WITH -- THAT SHE CLAIMS SHE WAS WITH THE DEFENDANT ON THE NIGHT
OF THE SHOOTING? ALAN DEXTER BOWMAN: AS I INDICATED BEFORE, AT THE PCR --
AND THE MOTHER TESTIFIED. THE MOTHER IS A DIFFERENT STORY. AND THEY'RE NOT SIAMESE
TWINS. BUT THERE'S AN INDICATION AND WHAT THIS CASE IS ABOUT IS MS. BEY WAS IN COURT WITH
THIS LAWYER AT THE TIME THE DEFENDANT TESTIFIED THAT HE WAS HOME WITH HER. SHE WAS IN
COURT. SHE WAS AVAILABLE AT THAT POINT TO LEAN OVER AND SAY, YOU KNOW, IS THAT TRUE,
IS SHE AVAILABLE? HE DID NOTHING. SO HE SAID, WELL, (INAUDIBLE) FOR FIVE YEARS HOLD
THAT AGAINST HER. YOU DON'T HOLD IT AGAINST THE WOMAN BUT YOU HOLD IT AGAINST THE GOVERNMENT,
THE SYSTEM. NOTHING HAPPENED THAT DAY. AND I'LL TELL YOU SOMETHING ELSE --
JUSTICE ALBIN: YOU'RE CONCENTRATING ON THE DEFICIENCY PRONG. THE QUESTION
IS, OKAY, IF HE SPOKE WITH HER AND PUT HER ON THE STAND AND SHE TESTIFIED TO WHAT SHE
TESTIFIED TO IN THE PCR HEARING, WOULD -- IS THERE A REASONABLE PROBABILITY THAT THE JURY
WOULD HAVE ACQUITTED HER? AND YOU'RE SAYING -- ACQUITTED THE DEFENDANT. AND YOU'RE SAYING
YES. ALAN DEXTER BOWMAN: I'M SAYING ABSOLUTELY, YOUR HONOR, BECAUSE IT WOULD HAVE
BEEN IMPOSSIBLE FOR HIM TO BE WITH HER AND INVOLVED IN THE CRIMINALITY. AND I'LL SAY IT
ONE MORE TIME, IT WAS SIGNIFICANT IN THIS CASE THAT THE ONLY JUDGE WHO MET MS. BEY
(INAUDIBLE) THE JURY BELIEVED IT. JUSTICE ALBIN: JUDGE NATALE NEVER SAID P
GO AHEAD. JUSTICE PIERRE-LOUIS: MR. BOWMAN, SO, EVEN IN LIGHT OF DEFENDANT'S
VERY DETAILED STATEMENT, IN LIGHT OF THE FACT THAT THERE WAS AN EYEWITNESS THAT PUT HIM
AT THE SCENE, YOU BELIEVE THAT MS. BEY's TESTIMONY ALONE WOULD HAVE ABSOLUTELY LED TO
HIS ACQUITTAL? ALAN DEXTER BOWMAN: IF SHE MALTSS UP WELL WITH THIS SO-CALLED
EYEWITNESS IN TERMS OF EVALUATING FOR THEIR CREDIBILITY, SHE MATCHES UP VERY WELL AGAINST
HIM WITHOUT A DOUBT. NOW ALSO -- JUSTICE PIERRE-LOUIS: DIDN'T THE
EYEWITNESSES STATEMENT WITH REGARD TO WHAT TOOK PLACE IN THE ALLEYWAY CORROBORATE DEFENDANT'S
OWN STATEMENT WITH REGARD TO THE FACT THAT HE WAS THERE WITH TWO OTHER INDIVIDUALS ALL
ADDRESSED IN BLACK? THE EYEWITNESS SAYS THE EXACT SAME THING, THAT HE SAW PRIOR TO THE
SHOOTING THREE INDIVIDUALS ALL ADDRESSED IN BLACK IN THE ALLEYWAY WITH FIREARMS. THEIR
STATEMENTS ARE CONSISTENT WITH EACH OTHER, CORRECT? ALAN DEXTER BOWMAN: THE
DEFENDANT BASICALLY TESTIFIED THAT HE FABRICATED THE CONFESSION BECAUSE HE WAS BEING COERCE
D BY THE GOVERNMENT AND THEY TOLD HIM HE COULD GO HOME IF HE TOLD AMISS TRUTH ABOUT HAVING
BEEN INVOLVED, CONSISTENT WITH HIS EYEWITNESS. NOW, 20, 30 YEARS AGO, THERE WERE
ROUTINE, WHAT YOU MIGHT CALL, CLAIMS OF COERCION OR CONFESSION IN THIS KIND OF CONTEXT. IN
MODERN DAY THE PARTICULAR CITY OR COUNTY IN WHICH THIS ARISES, THE POLICE DEPARTMENT HAS BEEN
WAS MIGHT CALL RADICALLY MODIFIED BECAUSE OF THIS ERA WAS RIPE WITH CORRUPTION. NOT
MONEY CORRUPTION BUT CORRUPTION WITH CONFESSION AND THAT SORT OF THING. AND NOBODY MENTIONS
THAT. AND THAT'S BY DEFENSE LAWYERS SOMETIMES FEEL, I DON'T KNOW, LONELY, BECAUSE THERE'S
THIS STANDARD WHEN YOU'RE TALKING ABOUT LAW ENFORCEMENT, THEY'RE PROCEEDING, WHEN YOU'RE
TALKING ABOUT SOMEBODY WHO'S NOT LAW ENFORCEMENT, THERE'S A NATURAL GAP OR A NATURAL
ENTITLEMENT TO CREDIBILITY THAT LAW ENFORCEMENT HAS. NOW, I'M GOING TO SAY
SOMETHING ELSE TOO THAT'S SIGNIFICANT. AND I'M A BLACK MAN, ROUTINELY I HAVE TO REVERT
TO WHAT YOU MIGHT CALL ANALYSIS OF RACIAL ISSUES IN PARTICULAR CASES LIKE THIS. AND YEARS
AGO EVERY TIME THAT THIS COURT HAS PERMISSION TO STUDY DISPARITY OR WHATEVER OR
INSTITUTIONALIZED TRAINING RELATIVE TO FALSIFYING COMPLAINTS FOR ARREST PEOPLE ON THE TURNPIKE
OR GARDEN STATE PARKWAY SYSTEMATIC RACIST. AND IN PARTICULAR YOU TALK ABOUT THE.CASES
WHEN HUNDREDS OF THOUSANDS OF PEOPLE WERE STOPPED ON THE CROSS STREETS WHO ULTIMATELY
WENT AND HAD SUPPRESSION MOTIONS IN COURT THROUGHOUT NEW JERSEY AND THE POLICE OFFICERS
WERE DEEMED TO BE CREDIBLE 89 PERCENT OF THOSE PARTICULAR TIMES THEY WERE NOT BEING TRUE.
WHAT I'M SAYING IN THIS CASE WHAT IS SIGNIFICANT IN TERMS OF THE PEOPLE INVOLVED
IN THIS ARGUMENT, THE ONLY TWO PEOPLE WHO HAVE MET MS. BEY IS MYSELF AND JUDGE NATALE
AND MS. BEY STANDS UP HEAD AND SHOULDERS ABOVE THIS SO-CALLED EYEWITNESS. HEAD AND
SHOULDERS TERMS OF CREDIBILITY, LIFESTYLE AND ANY OTHER ASPECT. AND WHEN YOU DECIDE THIS
CASE -- JUSTICE ALBIN: MR. BOWMAN, I DON'T UNDERSTAND SOMETHING. YOU STARTED
OUT BY SAYING THAT JUDGE NATALE WAS DISPARAGING THE WITNESSES, WHICH INCLUDED MS. BEY.
APPARENTLY DISPARAGING HER I THINK EQUATES TO NOT BELIEVING HER, BUT HE CAME TO THE DECISION
THAT SHE SHOULD HAVE BE PERMITTED TO TESTIFY. SO IT DOESN'T SEEM TO ME THAT JUDGE NATALE
WAS PUTTING HIS MARK OF APPROVAL ON HER CREDIBILITY. AM I MISTAKEN ABOUT THAT?
ALAN DEXTER BOWMAN: WHAT HE WAS DOING WAS SAYING, I HAVE SOME QUALMS ABOUT THESE
PARTICULAR WITNESSES. BUT IT'S NOT MY ROLE TO DISQUALIFY HIM BECAUSE I PARTICULARLY KNOW
A CIRCUMSTANCE WHERE IF SHE'S BELIEVED -- IF SHE'S BELIEVED BY THE JURY AND THERE'S NO
COULD TRA DEPICTION OF HER CLAIM, IF SHE'S BELIEVED BY A JURY, HE'LL GET ACQUITTED. AND
I SHOULDN'T GRANT MY JUDGMENT FOR THE JUDGMENT OF A JURY IN THIS PARTICULAR CIRCUMSTANCE
WHATEVER I MIGHT FEEL ABOUT THESE CIRCUMSTANCES. THE EVIDENCE IS SUFFICIENT THAT A JURY
SHOULD HEAR IT AND THEREIN LIES THE VIOLATION. DEFENSE COUNSEL DID NOT EFFECTUATE THAT.
JUSTICE SOLOMON: CONTRADICTED THE DEFENDANT AND THAT'S WHY HE REACHED HIS
CONCLUSION. ALAN DEXTER BOWMAN: ABOUT THIS ARGUMENT, BOTH PROSECUTORS TALKED
ABOUT THE -- MS. BEY AND MS. GIDEON AS IF THEY'RE SIAMESE TWINS. JUSTICE SOLOMON:
NO, NO. HE CONTRADICTED THE DEFENDANT. SHE CONTRADICTED THE DEFENDANT. AND I THOUGHT
THAT'S WHAT JUDGE NATALE WAS CONCERNED WITH. ALAN DEXTER BOWMAN: MS. BEY
DID NOT CONTRADICT THE DEFENDANT. THE MOTHER MAY HAVE. BUT THE MOTHER WOULDN'T HAVE BEEN
CALLED AS A WITNESS IF THAT WAS TRUE. THE TWO PEOPLE WERE NOT TETHERED TOGETHER.
JUSTICE SOLOMON: THAT'S NOT HOW I REMEMBER THE DEFENDANT'S STATEMENT BUT OKAY.
JUSTICE PATTERSON: MR. BOWMAN, YOU MADE A COMMENT, I WANTED TO ASK YOU ABOUT IT, IN
ADDRESSING THE REASONABLE PROBABILITY ON THE SECOND PRONG. YOU SAID THAT THIS JURY
VERDICT WAS EQUIVOCAL AND I THINK THE COURT IS ALWAYS RELUCTANT TO SPECULATE WHAT JURY
VERDICTS MEAN. BECAUSE THE DEFENDANT WAS ACQUITTED OF MURDER AND CONVICTED OF
MANSLAUGHTER AND YOU INDICATED THAT SHOWS THAT THEY MAY HAVE OR TO SOME DEGREE BELIEVED
THE CLIENT'S ALIBI. BUT IF HIS ALIBI WERE TO BE BELIEVED, HE COULDN'T HAVE BEEN CONVICT
ED OF MANSLAUGHTER OR MURDER BECAUSE HE WOULDN'T HAVE BEEN TLCHLT SO WHY DOES IT HELP YOU
THAT THERE WAS A LESSER INCLUDED OFFENSE OF MANSLAUGHTER AS TO WHICH HE WAS KIBTED THAT
REALLY ISN'T CONSISTENT WITH HIS ALIBI? ALAN DEXTER BOWMAN: WELL, TWO REASONS,
JUDGE. FIRST OF ALL, HE DIDN'T GET TO PRESENT HIS ALIBI WITNESS. HAD MS. BEY BEEN THERE,
WE BELIEVE THAT THE VERDICTS WOULD HAVE BEEN DIFFERENT ALL TOGETHER. JUSTICE
PATTERSON: GOT YOU ON P I UNDERSTAND THAT ARGUMENT. BUT WHY IS THE JURY'S
DETERMINATION CONVICTED OF LESSER INCLUDED OFFENSE OF MANSLAUGHTER, WHERE I ASSUME THE
JURY CONCLUDED HE WAS ON THE SCENE AND NOT HOME WITH HIS GIRLFRIEND, HAVE ANYTHING TO DO
WITH THIS? ALAN DEXTER BOWMAN: BECAUSE THE FACTS OF THIS CASE AS BY THE
GOVERNMENT IN ITS PROOFS AND ITS SO-CALLED EYEWITNESS MADE THAT SCENARIO WHEN IT PROVED
THE MURDER CONVICTIONS. AND IT SAID THE EVIDENCE IS OVERWHELMING. IF THE EVIDENCE IS
SO OVERWHELMING -- JUSTICE PATTERSON: WHEN THEY SAY THE EVIDENCE IS OVERWHELMING,
I THINK I'M READING THE BRIEFS AND HEARING THE ARGUMENTS TO BE THE EVIDENCE IS OVERWHELMING
THAT HE WAS PRESENT AT THE SHOOTING AND TOOK PART IN THE SHOOTING. WHETHER IT'S MANSLAUGHTER
OR ITS FIRST DEGREE MURDER IS ANOTHER STORY. ALAN DEXTER BOWMAN: THEN HE'D
GET CONVICTED OF MURDER, JUDGE. IF THE EVIDENCE WAS OVERWHELMING. THERE WAS SOME DOUBT
IN THE JURIES MIND TO ERADICATE THE CONCEPT OF OVERWHELMING EVIDENCE THAT THIS ALIBI
DEFENSE TO HAVE. JUSTICE ALBIN: MR. BOWMAN, IT HAS NOTHING TO DO -- I DON'T
SEE HOW THAT -- THIS IS WHAT JUSTICE PATTERSON IS SAYING. I DON'T SEE WHAT THAT HAS TO DO
WITH THE ALIBI. THE JURY COULD HAVE FOUND THAT BECAUSE HE WASN'T THE SHOOTER OR HE DIDN'T
HAVE THE SAME MENS REA AND DECIDED ABOUT THE REASONABLE. I DON'T UNDERSTAND WHAT THAT
HAS TO DO WITH THE ALIBI DEFENSE. ALAN DEXTER BOWMAN: WELL, JUDGE, THE ALIBI
DEFENSE WOULD HAVE STREN TEND THE DEFENDANT'S POSITION OF NON-CULPABILITY. THERE'S NO
DOUBT ABOUT P THAT THE ALIBI DEFENSE WITH MS. BEY AS A WITNESS WOULD HAVE BEEN A SUBSTANTIAL
POSITIVE EFFECT ON THE DEFENSE OF THIS CASE AND TO THE EXTENT THAT YOUR HONOR INDICATED
THAT THERE ARE OTHER REASONS PERHAPS WHY HE DIDN'T GET CONVICTED, I CONCUR IN THAT
COMPLETELY. IT'S IMPOSSIBLE ORDINARILY TO DETERMINE EXACTLY BY A PARTICULAR JURY. BUT
IT IS NOT IMPOSSIBLE TO SAY HERE THAT THE EVIDENCE WAS NOT OVERWHELMING RELATIVE TO THE
GOVERNMENT's THEORY. CHIEF JUSTICE RABNER: MR. BOWMAN, I THINK WE HAVE YOUR
POSITION R THERE ANY OTHER QUESTIONS? THANK YOU, MR. BOWMAN. MS. SHA? DID YOU WANT
TO OFFER BRIEFLY REBUTTAL? LINDA A. SHASHOUA: UNLESS THE COURT HAS ANY
QUESTIONS, WE'D ASK THIS COURT TO REVERSE.