MAST LONE PROSECUTE THE LAW OFFICE OF ROBIN K LORD APPEARING ON BEHALF TODAY
OF THE APPEAL AND THE SHLAWRENCE ROSS (APPEARANCES ENTERED.) THE COURT:
GOOD AFTERNOON COUNSEL, WELCOME, BE SEATED PLEASE, MS. MASTELLONE, PLEASE GO AHEAD.
MONIKA MASTELLONE: GOOD AFTERNOON AGAIN YOUR HONORS ANIME IT PLEASE THE
COURT. AS A PRELIMINARY MATTER IF I MAY RESERVE TWO MINUTES FOR REBUTTAL.
THE COURT: THAT'S FINE. MONIKA MASTELLONE: THANK YOU. THE ABILITY TO
CONDUCT AN INDEPENDENT DEFENSE INVESTIGATION SEPARATE ARE THE PURVIEW OF THE STATE
IS PROTECTED BY THE SIX AMENDMENT'S GATHERED RIGHT TO A COMPETENT EFFECTIVE AND
ZEALOUS COUNSEL. WHEN BECAUSE OF THE SIX AMENDMENT THE DEFENSE ATTORNEY STANDS
AS THE ONLY SHE WOULD BETWEEN HIS OR HER CLIENT AND THE STATE'S PROSECUTION.
THE ATTORNEY MUST MAKE EVERY EFFORT TO ZEALOUSLY PURSUE A FULL DEFENSE.
WITHOUT THE SIX AMENDMENT THE ACCUSED QUITE LITERALLY HAS NOTHING. AND IN THAT
VAIN ANY LOSS OF THE SIX AMENDMENT'S RIGHT WOULD HAVE A LASTING CHILLING EFFECT.
THIS CASE CONCERNS HOW FAR THE PROTECTIONS OF THE SIX AMENDMENT EXTEND. IN THIS
CASE WE SUBMIT THAT IT IS CLEAR THAT THE BULLET CONSTITUTES THE PROTECTED FRUITS
OF THE DEFENSES INVESTIGATION. AND THAT IT MUST REMAIN WITH THE DEFENSE WITHOUT
THE INTERFERENCE OF THE STATE WHETHER THAT BE BY SEARCH WARRANT OR SUBPOENA OR MOTION
TO COMPEL OR OTHERWISE. IT WAS THE DEFENSE'S DECISION TO ARGUE THE REMOVAL
OF THE BULLET. IT WAS THE DEFENSE'S COMMUNICATION, CONSULTATION AND
COORDINATION WITH THE HOSPITAL THAT ORCHESTRATED THE REMOVAL OF THAT BULLET.
IT WAS THE DEFENDANT'S OWN BODY THAT ENCURED THE ELECTIVE SURGERY WITH WHICH THERE ARE
ALWAYS RISK AS WITH ANY SURGERY THAT RESULTED IN THE BULLET BECOMING
AVAILABLE FOR REVIEW. WE SUBMIT THAT THIS BULLET IS THE PRODUCT OF AND SOLELY
THE PRODUCT OF THE DEFENSE'S INVESTIGATION. WE ALSO SUBMIT THAT IT IS CLEAR
THAT THE HOSPITAL WHICH CURRENTLY PHYSICALLY POSSESS -Z THE BULLET IS AN AGENT
OF THE DEFENSE AND UNDER THE SIX AMENDMENT. THE APPELLATE DIVISION'S REFERENCE
TO THE THIRD PARTY INDOCK WRITTEN UNDER THE FOURTH AMENDMENT IS IRRELEVANT TO THE
SIX AMENDMENT ANALYSIS HERE. AS WITH A EXPERT THE DEFENSE HERE ENLISTED THE
SERVICES OF A LICENSED PROFILE, DOCTORS AND SURGEONS AND NURSES TO ASSIST THE
DEFENSE WITH THAT INVESTIGATION. IF IN THIS CASE THE FRUITS OF THE DEFENSE'S
INVESTIGATION, THE BULLET WERE TO BE GIVEN TO THE STATE IT WOULD HAVE A LASTING
IRREVERSIBLE CHILLING EFFECT ON A DEFENSE ATTORNEY'S ABILITY TO CONDUCT INVESTIGATIONS
MOVING FORWARD. IT WOULD STRIKE FEAR IN ANY DEFENSE ATTORNEY, IT WOULD DETER
THEM FROM AND CAUSE THEM TO FOREGO CONDUCTING CRITICAL INVESTIGATIONS ON ON
BEHALF OF OF THEIR CLIENTS BECAUSE OF THE RISK THAT THE STATE WOULD AGAIN ACCESS
TO POTENTIALLY INCRIM NATURING RESULTS OF THAT INVESTIGATION. HERE BUT FOR THE
DEFENSE'S DECISION TO INVESTIGATE AND SPECIFICALLY THE DEFENSE'S DECISION TO
HAVE MR. ROSS UNDER GO SURGEON TORY WHO HAVE THE BULLET THE STATE WOULD HAVE
NEVER UNDER ANY CIRCUMSTANCES HERE BEEN ABLE TO ACCESS THAT BULLET BECAUSE
THEY COULD NOT HAVE COMPELLED HIM TO UNDER GO THE SIR ARE THE WINSTON V LOOK. THUS
THE DEFENSE IS NOT SURPRISED THE STATE HERE OF ANYTHING. THE ONLY DEPOSITION HERE
WOULD BE TO THE DEFENDANT'S SIX AMENDMENT'S RIGHT WERE IT TO BE ORDERED THAT THE
BULLET BE TURNED OVER TO THE STATE. THIS PRINCIPAL IS EXACTLY WHAT WAS RECOGNIZED
BY THE TRIAL COURT AND NOT JUST ONCE BUT TWICE. BECAUSE IN SEPTEMBER OF 2021
WELL BEFORE THE SURGERY THE STATE FILED A MOTION TO COMPEL ANY AND ALL EVIDENCE
OR DISCOVERY RELATED TO THE BULLET THAT THE DEFENSE MAY HAVE HAD IN ITS POSSESSION.
AND DID IN OCTOBER OF 2021 A MONTH LATER THE TRIAL COURT ISSUED A VERY CLEAR
RULING. IF THE DEFENSE HAD ANY DISCOVERY PERTAINING TO THIS BULLET THE DEFENSE WAS
UNDER NO OBLIGATION TO TURN IT OVER TO THE STATE UNLESS AND UNTIL THE DEFENSE
WAS ONTO USE IT AT TRIAL. SO IN RELIANCE UPON THE OCTANT ORDER AND IN RELIANCE
UPON WILLIAMS, THE CASE LAW WILLIAMS ANAMINE GO, ET CETERA, THE DEFENSE MADE
A CONSCIOUS LITIGATION CHOICE TO UNDER GO THE SURGERY TO RETRIEVE THE BULLET AND
INVESTIGATE FURTHER. AND AS A RESULT IN RESPONSE TO THE SEARCH WARRANT APPLICATION
THE TRIAL COURT ONCE AGAIN IN SEPTEMBER OF 2022 A YEAR LATER RULED ONCE AGAIN
THAT'S STATE WAS NOT ENTITLED TO THAT BULLET. THE TRIAL COURT GOT IT RIGHT
HERE. ACCORDINGLY WE ARE ASKING THAT THIS COURT REVERSE THE APPELLATE DIVISION'S
ORDER AND REAFFIRM THE TRIAL COURT'S OCTOBER 2021 AND SEPTEMBER 2022 RULINGS AND
HOLD THAT THE BULLET HERE SHALL REMAIN WITH THE DEFENSE. AND THAT THE STATE
IS NOT ENTITLED TO SUCH FRUITS OF THE DEFENSE'S INVESTIGATION. THE COURT:
COUNSEL I'M SORRY I THOUGHT YOU WERE DONE. MONIKA MASTELLONE: I WAS GOOD
TO SAY THIS CONCLUDES MY OPEN STATEMENTS MOVING FORWARD THERE WAS SOME THINGS
I WOULD LIKE TO ADDRESS OR AT THIS TIME I WELL THE COME THE COURT'S QUESTIONS.
THE COURT: LET'S PICK IT A PART AND START WITH THE HOSPITAL. DID THE
HOSPITAL HAVE A STATUTORY DUTY TO NOTIFY WITH RESPECT TO WHAT HAPPENED HERE,
TO NOTIFY LAW ENFORCEMENT AGENCY ABOUT THE SURGERY THAT IT INVOLVED GUN SHOT WOUND.
MONIKA MASTELLONE: SO IN RESPONSE TO THAT QUESTION I WOULD NOTE PRELIMINARILY
I DO THING THAT IT'S SOME WHAT IRRELEVANT TO THE OVERALL FOCUS HERE OF THE
SIX AMENDMENT. THE COURT: HUMAN US ANYWAY. MONIKA MASTELLONE: TO
ANSWER YOUR QUESTION, I WOULD SUBMIT HERE IN THIS INSTANCE NO BECAUSE THE STATUTE
CERTAIN WOUNDS AND INJURIES TO BE REPORTED INDICATES THAT IN EVERY CASE OF
A WOUND, INCLUDING CAUSE BY A FIREARM THAT THE INJURY MUST -- SHALL BE REPORTED AT
ONCE. AND HERE IT WAS REPORTED ATTAPS. IT WAS REPORTED AT ONCE FOR TWO REASONS,
ONE, BECAUSE WHEN MR. ROSS INITIALLY WAS BROUGHT TO THE HOSPITAL TO COOPER
HOSPITAL IMMEDIATELY AFTER HE WAS SHOT THE HOSPITAL WAS WELL AWARE THAT THIS
INJURIES EXISTED, THEY -- JUSTICE WAINER APTER: AREN'T YOU MISSING THE
END OF THAT SENTENCE WHERE IT SAYS WHENEVER SUCH CASE IS PRESENTED FOR TREATMENT
OR TREAT IN ADDITION GENERAL HOSPITAL. SO HERE THE CASE WAS PRESENTED FOR
TREATMENT SO WOULDN'T IT AGAIN HAVE TO BE RECORDED. MONIKA MASTELLONE:
SO THIS IS -- THIS CASE WAS PRESENTED FOR TREATMENT OVER 20 TIMES OVER THE COURSE
OF FIVE YEARS. MR. ROSS ACTUALLY HAD A FOLLOW-UP SURGERY IN FEBRUARY OF 2018
BECAUSE THEY HAD TO REDO THE INITIAL SURGERY ON HIS ARM. HE ALSO HAD A CONSULTATION
WITH THE DOCTOR IN MAY OF 2022 JUST PRIOR TO THE AGREEMENT THAT THEY WERE GOING
TO REMOVE THE BULLET AND TURN OVER THE DEFENSE. I MEAN HE DIDN'T JUST SHOW UP AND SAY TAKE IT OUT AND THEN BETWEEN ALL OF THAT WHILE HE WAS IN JAIL BECAUSE
THEY HAD TO BRING HIM BACK TO THE HOSPITAL ONCE OR TWICE EACH MONTH. JUSTICE
PIERRE-LOUIS: BUT THIS PARTICULAR SURGERY INVOLVED REMOVING A BULLET WHICH A
BULLET LODGED IN SOMEONE'S BODY INHERENTLY IS RELATED TO POSSIBLE CRIMINAL ACTIVITY.
ANY OTHER SURGERIES OR ANY OTHER TREATMENT THAT HE MAY HAVE GONE BACK FOR
DIDN'T INVOLVE EVIDENCE OF A CRIME BEING EXTRACTED FROM HIS BODY, WOULDN'T YOU
AGREE THAT FIXING A PLATE OR SCREWS IN HIS ARM IS DIFFERENT FROM THE HOSPITAL
REMOVING A BULLET WHICH AGAIN INHERENTLY IS LINKED TO POTENTIAL CRIMINAL ACTIVITY
AND EVIDENCE OF CRIMINAL ACTIVITY IS DIFFERENT FROM A SURGERY TO ALLEVIATE SOME
DISCOMFORT OR FIX PRIOR SURGERY. MONIKA MASTELLONE: THE POTENTIAL CRIMINAL
ACT HAD ALREADY BEEN REPORTED. LAW ENFORCEMENT WAS WELL AWARE OF IT BECAUSE
THEY WERE THE ONES THAT SHOT AT MR. ROSS. JUSTICE PIERRE-LOUIS: FROM THE
HOSPITAL'S PERSPECTIVE PURSUANT TO THEIR STATUTE. PURSUANT TO THAT STATUTE
AND THEIR REPORTING REQUIREMENTS THE HOSPITAL AT THE TIME OF THE SURGERY WAS
AWARE THAT THEY WERE REMOVING EVIDENCE OF A POTENTIAL CRIMINAL ACTIVITY FROM
SOMEONE'S BODY, DO YOU UNDERSTAND WHAT I'M SAYING IS THE DISTINCTION. MONIKA
MASTELLONE: I UNDERSTAND THE DISTINCTION BETWEEN THE REPORTING REQUIREMENT AND
THE COLLECTION OF EVIDENCE ISSUE BECAUSE BOTH ARE ADDRESSED IN THE COOPER HOSPITAL
POLICY. BUT I WOULD SUBMIT THAT ONLY IN 2C58-EIGHT WHICH IS A STATUTE RATHER THAN
THE HOSPITAL'S POLICY IT SIMPLY REQUIRES THAT LAW ENFORCEMENT BE REPORTED --
THAT LAW ENFORCEMENT BE NOTIFIED AT ONCE OF AN INJURY. THAT WAS AN OLD INJURY.
JUSTICE PIERRE-LOUIS: ARE YOU SAYING AT THE STATUTE IS SAYING THAT LAW
ENFORCEMENT ONLY NEEDS TO BE REPORTED ONE TIME OR -- BECAUSE AT ONCE ALSO MEANS
ONCE THE SURGERY OCCURRED THEY WERE REPORTED AT ONCE THAT THIS BULLET WAS NOW REMOVED
FROM THIS PERSON'S BODY. MONIKA MASTELLONE: THEIR INTERPRETATION OF THE
STATUTE AS WE SEE IT IS THAT LIKE THE PURPOSE AND POLICY BEHIND THE STATUTE IS SO
THAT LAW ENFORCEMENT IS MADE AWARE OF ANY POTENTIAL CRIMES THAT OCCUR WHEN
SOMEONE IS SHOT. THE COURT: LET'S LOOK AT THE PLAIN LANGUAGE OF THE
STATUTE. JUSTICE WE KNOW. POINTED YOU TO THE STATEMENT WHEN IN THE HOSPITAL.
DOESN'T THAT SUGGEST THE HOSPITAL HAD A REPORTING OBLIGATION. IT DOESN'T END THE
CASE. I JUST WANT TO START WITH THE HOSPITAL'S OBLIGATION MARCH.
MONIKA MASTELLONE: URETER TASE OF THE PLAN LANGUAGE I WOULD SUBMIT IS YOU HAVE TO
READ IT IN CONJUNCTION WITH IN EVERY CASE OF A WOUND SHALL BE REPORTED AT ONCE
AND I THINK THAT AT ONCE PART MEANS WHEN THAT INITIAL INJURY IS PRESENTED TO THE
HOSPITAL SO THAT LAW ENFORCEMENT BECOMES AWARE OF IT AND CAN THEN PERFORM AN
INVESTIGATION. THE COURT: EVEN THOUGH THAT'S NOT IN THE LANGUAGE OF THE
STATUTE. THAT'S AN INTERPRETIVE GLOSS THAT YOU'RE PROVIDING. MONIKA MASTELLONE:
WELL IT'S ALSO NOT IN THE STATUTE THAT IN EACH AND EVERY TREATMENT OR FOLLOW-UP
CARE. JUSTICE PATTERSON: HOW ABOUT THE WORD WHENEVER, DOESN'T THE WORD
WHENEVER SUGGEST SOMETHING OTHER THAN ONE TIME, AREN'T THOSE TWO OPPOSITE SIDES
OF THE COIN MS. MASTELLONE WHENEVER SUCH CASE IS PRESENTED FOR TREATMENT. IF
WE ARE READING THAT SEPARATELY FROM THE AT ONCE COMPONENT THEN I WOULD SUBMIT AGAIN
THAT BECAUSE MR. ROSS HAD REPEATEDLY BEEN BACK TO THIS HOSPITAL FOR TREATMENT
IT DOESN'T SAY YOU KNOW WHEN THINGS ARE REMOVED. TREATMENT. HE RECEIVED
REPEATEDLY TREATMENT AT THIS HOSPITAL AND IT WAS NEVER WAS AN ISSUE PRIOR.
JUSTICE PATTERSON: DO YOU KNOW WHETHER THE THE HOSPITAL NOTIFIED LAW ENFORCEMENT
OF ANY OTHER INSTANCES OF TREATMENT. MONIKA MASTELLONE: WELL, HE ACCORDING
TO THE STATE'S VERSION OF THE FACTS THE LAST COMMUNICATION THEY HAD WITH THE
HOSPITAL WAS IN 2018. SO IT APPEARS AND I THINK IT WOULD HAVE BEEN DISCOVERABLE
AND WE WOULD HAVE KNOWN ABOUT IT IF THERE WERE ADDITIONAL COMMUNICATION.
JUSTICE SOLOMON: WHY DOES IT MATTER THE STATUTE SIMPLY SAY WHENEVER THAT TREATMENT
OCCURRED. WE OPERATING AN EMPLOYER TALKING ABOUT THE BULLET REMOVAL. THEY WERE
REQUIRED TO TELL LAW ENFORCEMENT. SO WHETHER THEY TOLD THEM OR NOT IN THOSE
OTHER SUBSTANCES, WHAT BEARING DOES THAT HAVE SPOKEN THIS CASE. THEY WERE OBLIGATED
TO NOTIFY. MAYBE THEY VIOLATED THE STATUTE MAYBE THEY'LL BE CRITICIZED FOR IT.
THE FACT OF THE MATTER IS THE STATUTE JUST SAYS THEY HAD AN OBLIGATION TO NOTIFY
LAW ENFORCEMENT PERHAPS IN EVERY ONE OF THOSE CASES, CERTAINLY A CASE REMOVAL
OF THE BULLET. ISN'T THAT THE ISSUE HERE. MONIKA MASTELLONE: I WOULD SUBMIT
IT'S NOT THE ISSUE HERE BECAUSE I HINGE THE OVER ARCHING ISSUE IS THAT UNDER
THE SIX AMENDMENT ONCE WE HAVE THIS AGENCY WITH THE HOSPITAL AND HAD THIS
AGREEMENT. JUSTICE SOLOMON: WE DIDN'T GET THERE YET I'M JUST ASKING THE
ABOUT THE STATE. THE COURT: ARE YOU AN AGENT OR NOT. THE STATUTE TELLS
YOU WHETHER THEY HAVE A REPORTING OBLIGATION AND IF WE READ THE STATUTE DIFFERENTLY
THAN THE WAY YOU'VE PRESENTED DOES A LETTER FROM COUNSEL TO THE HOSPITAL OVERRIDE
A STATUTORY DUTY. MONIKA MASTELLONE: I THINK THAT THE STATUTORY
DUTY WOULD HAVE TO BE RESISTANT IN A WAY THAT'S CONSTITUTIONAL UNDER THE SIX
AMENDMENT. THE COURT: WE'LL GET THERE IN A SECOND. DOES A LETTER FROM
COUNSEL OVERRIDE A STATUTE. MONIKA MASTELLONE: IN A VACUUM NO BUT THERE
ARE SO MANY OTHER ISSUES AT PLAY HERE I WOULD SUBMIT IN THIS CASE THE READING OF THE
STATUTE REALLY HAS NO BEARING ON THE ULTIMATE DETERMINATION WHETHER THE
DEFENSE SHOULD TAKE POSSESSION OF THIS BULLET OR THAT IT SHOULD REMAIN WITH THE
DEFENSE. THE COURT: SO GIVE US YOUR CONSTITUTIONAL ARGUMENT ON THE HEELS
OF THAT STATEMENT. MONIKA MASTELLONE: WELL, UNDER THE SIX AMENDMENT AS
INDICATED ANY DEFENSE ATTORNEY HAS NOT JUST THE ROLL BUT AN OBLIGATION TO PERFORM
AN INVESTIGATION, THAT PART AND PARCEL TO EFFECTIVE ASSISTANCE OF COUNSEL.
HERE YOU HAVE AN INDIVIDUAL WHO IS ACCUSED OF A CRIME AND REMAINED IN JAIL
FOR FOUR YEARS. THE BULLET WAS INSIDE OF HIM THE ENTIRE TIME. THE STATE HAD
NO ACCESS TO THAT BULLET. ONCE MR. ROSS WAS RELEASED FROM JAIL AND HAD THE ABILITY
TO GET THIS ELECTIVE SURGERY IT WAS DONE STRICTLY IN CONSULTATION AND BASED
ON THE CONSCIOUS CHOICE BY THE DEFENSE. SO ONCE THAT DECISION WAS MADE AS THE
TRIAL COURT INDICATED A CONSCIOUS LITIGATION CHOICE, IT WAS FOR NO OTHER PURPOSE.
IT WASN'T MEDICALLY NECESSARY, IT WASN'T BECAUSE OF ANY OTHER REASON, THE --
THAT'S WHEN THE AGREEMENT COMES INTO PLAY AND WE HAD THIS AGENCY WITH THE HOSPITAL WHO
NEVER OBJECTED TO THAT ASIAN, NEVER SAID WAIT A MINUTE WE HAVE A STATUTORY
REQUIREMENT, WE CAN'T AGREE TO THIS. JUSTICE WAINER APTER: DID THE HOSPITAL
EVER SAY YES, I'M YOUR AGENT VERBALLY OR IN WRITING YES, WE ARE ACTING AS YOUR
AGENT. MONIKA MASTELLONE: NO, BUT MOST TIMES THAT THERE ARE YOU KNOW EXPERT
WHETHER YOU'RE CONSULTING WITH A EXPERT, RETAINING AN EXPERT I MEAN THAT'S NEVER
NORMALLY EX LIFTLY SAID IT'S UNDERSTOOD. JUSTICE NORIEGA: COUNSEL JUST TO
JUMP BACK TO THE HOSPITAL'S OBLIGATION JUST FOR A SECOND AS IT'S TIED INTO
THE AGENCY ISSUE ARE YOU DRAWING A DISTINCTION BETWEEN WHETHER IT WAS AN
ELECTRIC HAD SURGERY OR VERSUS A MEDICALLY NECESSARY PROCEDURE. MONIKA
MASTELLONE: YES, BECAUSE THAT'S WHAT MAKES IT CLEARLY A DEFENSE ORIENTED DECISION
AND THAT'S WHAT MAKES IT -- THE ONLY REASON THAT THIS BULLET BECAME AVAILABLE FOR
REVIEW OR AT THE TIMING IS BECAUSE IT WAS THE DEFENSE'S PURPOSE TO PERFORM
AN INVESTIGATION. THAT'S WHAT CONNECTS TO US THE PROTECTIONS AND THE PRIVILEGE
UNDER THE SIX AMENDMENT. JUSTICE NORIEGA: DOES THAT CHANGE THE
HOSPITAL'S OBLIGATION AT ALL WHETHER IT'S ELECTIVE VERSUS WHETHER IT WAS MEDICALLY
NECESSARY. MONIKA MASTELLONE: I'M NOT -- I THINK I MEAN IT SEEMS
THAT MY READING OF TWO CREDIT 58-EIGHT MIGHT NOT BE ENTIRELY AGREED BUT I DON'T THINK
IT CHANGES. I THINK THAT THE HOSPITAL IF THEY REMOVE A BULLET BECAUSE IT'S
MEDICALLY NECESSARY -- IT DOESN'T CHANGE THE STATUTORY REPORTING OBLIGATION BUT THEIR
POLICY WAS TO TURN IT OVER TO LAW ENFORCEMENT. I THINK THAT IT MATTERS IN
THAT RESPECT THAT NOT WITHSTANDING THE STATUTE THEY NEVERTHELESS HAD A POLICY.
I WOULD SUBMIT THAT THE LETTER FROM COUNSEL OVERRIDES THAT POLICY. THE COURT:
DOESN'T TAKE TAKE US TO THE RIGHT STARTING POINT. THE QUESTION I THINK IS NOT
WHETHER THE HOSPITAL DID OR DID NOT HAVE THE RIGHT TO NOTIFY, WHETHER THEY HAD AN
OBLIGATION TO FOLLOW THROUGH ON THIS STATUTORY OBLIGATION BUT WHAT WAS
APPROPRIATE AFTERWARDS AND THAT'S WHY I'M STRUGGLING TO UNDERSTAND WHY YOU'RE
WRESTLING SO MIGHTILY WITH RESPECT TO THE MEANING OF THE STATUTE. ISN'T YOUR
ARGUMENT WHAT HAPPENED AFTERWARDS IS WHAT'S OF CONCERN. MONIKA MASTELLONE:
YES, ABSOLUTELY. AGAIN, I DON'T THINK THE TONIGHT I GRIT I OF THE STATUTE
NECESSARILY MATTERS WITH RESPECT TO WHAT THE RULING HERE SHOULD BE AND WHAT THE
CONSTITUTIONAL PRIVILEGES PERTAINING TO MR. ROSS ARE ANNULET MAYLY WHY THIS VERY
CLEARLY ESTABLISHED DEFENSE ORIENTED INVESTIGATION CONCEDED BY I THINK THE STATE
AND THE APPELLATE DIVISION. I DON'T THINK ANYONE IS CONTESTING THAT THE REASON
WHY THE BULLET WAS REMOVED IS BECAUSE IT WAS A DEFENSE INVESTIGATION.
JUSTICE WAINER APTER: JUSTICE PIERRE-LOUIS HAD REFERRED TO A BULLET AS POSSIBLE
PHYSICAL EVIDENCE OF A CRIME, DO YOU AGREE THAT A BULLET IS PHYSICAL EVIDENCE OF
A CRIME. MONIKA MASTELLONE: IN A VACUUM YES. BUT IN THIS CASE NOT
NECESSARILY EVIDENCE OF A CRIME BECAUSE WHAT WE WOULD HAVE TO DISCUSS WITH
THAT CRIME IS, THE CRIME HERE IS THAT MR. ROSS AS ALLEGED BY THE STATE IS ALLEGED
TO HAVE SHOT AT LAW ENFORCEMENT. IN THAT SENSE ANY BULLETS THAT WERE SHOT
TOWARD THE POLICE ARE CERTAINLY EVIDENCE OF A CRIME. WHETHER MR. -- WHETHER
THE BULLET IN MR. ROSS' BODY IS EVIDENCE OF A CRIME I THINK SUGGESTS WE WOULD HAVE
TO ANSWER THE QUESTION OF WHAT IS THAT CRIME. IS IT THE POLICE SHOT AT HIM
CRIMINALLY. IS IT SOMEONE ELSE SHOT AT HIM CRIMINALLY. SO I THINK THERE IS A LITTLE
BIT OF A DISTINCTION ONLY BECAUSE IN LOOKING AT THE LITANY OF CASE LAW THAT
HAS BEEN SUBMITTED BY O P D AND THE STATE. I THINK THE DISTINCTION COMES INTO
PLAY WITH RESPECT TO IS THIS EVIDENCE THAT THE STATE -- THAT IS PROBATIVE TO THE
STATE'S CASE. THERE'S NO -- THERE'S NO QUESTION. JUSTICE WAINER APTER:
YOU'RE SAYING THIS WAS NOT PROBATIVE TO THE STATE'S CASE OR YOU'RE AGREEING
THAT IT WAS. MONIKA MASTELLONE: IT'S NOT EVIDENCE THAT IN ANY WAY FURTHER'S
THEIR CASE BECAUSE THERE IS NO QUESTION THAT HE WAS -- MR. ROSS WAS SHOT BY
THE POLICE. IT'S ON BODY WORN CAMERA FOOTAGE. THERE'S WITNESSES P.
JUSTICE WAINER APTER: I THOUGHT MR. ROSS WAS ALLEGING THERE WAS A THIRD SHOOTER.
MONIKA MASTELLONE: I'M SORRY. JUSTICE WAINER APTER: I THOUGHT MR.
ROSS WAS ALLEGING THERE WAS A THIRD PERSON INVOLVED THAT WAS WHO WAS SHOOTING
AT THE PLEADINGS AND PRESUMABLY COULD HAVE SHOT HIM. MONIKA MASTELLONE:
ASSUMING THAT THERE IS A THIRD PARTY SHOOTER, THAT EVIDENCE WOULD COME INTO
PLAY TO DISPROVE THE STATE'S THEORY BUT IT WOULD NOT HELP THE STATE PROVE THEIR CASE.
THAT WOULD WORK AGAINST THEIR CASE. THE COURT: ISN'T THAT UP TO WHERE
THERE'S AN ADEQUATE SHOWING OF PROBABLE ON THE PART OF THE CASE THAT'S NOT
THE ISSUE IN FRONT OF YOU EVERY US, MAYBE THERE IS, MAYBE THERE ISN'T. MONIKA
MASTELLONE: RIGHT. THE COURT: SUPPOSE A DEFENDANT TURNED OVER THE GUN
AND THE BULLET AND UNWISELY SHARED THAT INFORMATION WITH SOMEONE ELSE AND THE
STATE LEARNED OF IT. IF THEY HAD PROBABLE CAUSE COULD THEY GET A SEARCH WARRANT
AND BY TURNED OVER I MEAN GAVE IT TO THE LAWYER, COULD THE STATE THEN GET A
SEARCH WARRANT FOR THOSE ITEMS. MONIKA MASTELLONE: TURNED THEM OVER LIKE
THE LAWYER HAS POSSESSION OF THEM. THE COURT: THE DEFENSE ATTORNEY
REPRESENTING THE DEFENDANT. MONIKA MASTELLONE: I THINK THAT'S AN OPTION
OR I THINK IT'S ALSO THERE'S YOU KNOW IT'S SUGGESTED THAT THE DEFENSE ATTORNEY MIGHT
HAVE AN OBLIGATION ON ITS OWN MOTION TO TURN OVER THAT -- THOSE ITEMS, I THINK
AGAIN THAT'S VERY DISTINCT AND THAT SHORT OF SORT OF FALSE IN LINE WITH THE
LITANY OF CASES WHERE YOU HAVE DEFENDANTS OR THIRD PARTIES SHOWING UP TO THE
ATTORNEY'S OFFICE LIKE HERE'S THE MURDER WEAPON, HERE'S THE BLOODY SHOE HERE'S THE
WATCH I TOOK OFF THE VIM'S RIBBING. THOSE CASES I THINK ARE TOTALLY
DISTINGUISHABLE FROM THIS CASE BECAUSE IN THIS CASE IT'S NOT THAT A CLIENT OF
A DEFENSE ATTORNEY IS SHOWING UP AND SAYING HERE IS THIS INCRIM NATURING EVIDENCE
HOLD ONTO IT FOR ME. SO TO ANSWER YOUR QUESTION. I THINK THAT THERE IS AN
OBLIGATION THAT, YOU KNOW, IS SORT OF TRIGGERED THERE POTENTIALLY BUT THERE'S
ALSO -- I THINK -- AND IF IT'S NOT, THE PROSECUTOR COULD FILE A MOTION ANTERIOR
GET A SEARCH WARRANT, PENDING UPON THE ISSUES SES. BUT I THINK THAT THAT'S VERY
DISTINGUISHABLE FROM OUR CASE. ANALOGY THOSE LINES IN THE LITANY OF CASE LAW
I THINK THERE'S A COUPLE POLICIES THAT ARE RUNNING THROUGH THEM THAT ARE VERY
CLEAR, FIRST IN ALL OF THOSE CASES THE GOAL IS TO AVOID A RAISE TO EVIDENCE. THEY
DON'T WANT THE DEFENSE ATTORNEY AND THERE INVESTIGATOR TO COMPETE WITH THE POLICE
AND RUN TO THE SCENE AND SEE WHO CAN GET THE EVIDENCE FIRST. AND THE SECOND POLICY
IS THAT THEY DON'T WANT THE ATTORNEY'S OFFICE TO SERVE AS A DEPOSIT TOWER FOR
THAT EVIDENCE. WINE WAYNE ISN'T THAT WHAT KIND OF HAPPENED HERE AND WHAT YOU WERE
HOPING WHAT WILL HAPPEN WAS THAT YOU WOULD ABLE TO GET THE BLURT WITHOUT DISCLOSING
IT TO THE PROSECUTION AND BE ABLE TO DO WHATEVER TESTING ON IT YOU WANTED WITHOUT THE
PROSECUTION EVER FINDING OUT THAT THIS HAD HAPPENED. MONIKA MASTELLONE:
WELL, IT'S DISTINGUISHABLE BECAUSE IF AN ATTORNEY IS SERVING AS A DE POSITIVES
TOWER, IT'S THAT THE CLIENT IS OR THIRD PARTY IS SAYING HERE HOLD ONTO THIS
EVIDENCE. THE EVIDENCE WAS MR. IN MR. LOSSES' BODY THE ENTIRE TIME. NO ONE WAS
GOING TO BE ABLE TO ACCESS THAT BULLET BUT FOR THIS INVESTIGATION THAT WE DECIDED
TO PURSUE WHERE WE REMOVED THE BULLET, IT WOULD -- NO ONE WOULD HAVE EVER HAD
ACCESS TO IT UNLIKE THE THEORETICAL OPPORTUNITY FOR THE STATE TO GET A
SEARCH WARRANT OR OBTAIN THE EVIDENCE. JUSTICE NORIEGA: TAKING ASIDE THE CHARGES
AGAINST MR. ROSS, ONCE THE BULLET BECOMES AVAILABLE, DOESN'T THE STATE THEN
HAVE AN INTEREST IN INVESTIGATING THE NATURE OF THAT BULLET WHERE IT CAME FROM,
AND -- BECAUSE THAT BULLET KITTING INSIDE OF MR. ROSS IS MOST LIKELY A CRIME
OF SOME KIND. SO ISN'T IT IN THERE INTEREST TO INVESTIGATE THAT ONCE IT'S AVAILABLE
AS MASS ANYTHING CAN BE IN THE STATE'S INTEREST IT CAN BE IN THE STATE'S
INTEREST TO GAIN ACCESS TO YOU ARE CONFIDENTABLE EXPERT REPORTS OR THUS BUT IT
DOWN OVER RIDE -- JUSTICE WAINER APTER: I UNDERSTAND CONFIDENTIAL
INFORMATION AND FOR THE ARE PROTECTED BY WORK PRODUCT DOCTRINE AND ATTORNEY CLIENT
DOCTRINE. ARE YOU ARGUING THAT THE BULLET IS WORK PRODUCT. MONIKA MASTELLONE:
SO WORK PRODUCT IS AN INTERESTING CONCEPT BECAUSE THE INDICATION LAW ACTUALLY
MAKES A DISTINCTION BETWEEN TRUE WORK PRODUCT, WORK PRODUCT PRIVILEGE AND THEN
ATTORNEY CLIENT PRIVILEGE. SO TRUE WORK PRODUCT IN AND OF ITSELF IS ANYTHING THAT
IS NEVER ADMISSIBLE SO IT'S AN ATTORNEY'S NOTES AS THEY'RE INTERVIEWING THEIR
CLIENT WHERE AS THE WORK PRODUCT PRIVILEGE IS BROADER THAN THAT AND COVERS
NOT ONLY THOSE NOTES THAT ARE INHERENTLY INADMISSIBLE BEENABLE BUT ALSO ANYTHING
THAT FOR EXAMPLE EXAMPLE AN EXPERT ERROR TO BE POTENTIALLY BE DISMISS I BELIEVE
OR AN ADMISSIBLE BUT IS NOT INHERENTLY WORK PRODUCT. JUSTICE PATTERSON:
EXPERT REPORT IS NOT ATTORNEY CLIENT PRIVILEGE IS IT UNLESS IT APPEARS TO
ENCOMPASS SOME SORT OF PRIVILEGED TONIGHT. IF IT APPEARS IN AN EXPERT REPORT THAT
PRIVILEGE MAY BE WAIVED. MONIKA MASTELLONE: IF IT'S NOT TURNED OVER.
IF THE DEFENSE ATTORNEY CONSULTS AT EXPERT AND THE EXPERT PRODUCES A REPORT IT'S
GOING. JUSTICE PATTERSON: THAT'S IN THE COURT RULE AS WORK PRODUCT
UNDER THE HEADING OF WORK PROPERTY. ATTORNEY CLIENT AND WORK PRODUCT ARE
REALLY DIGS TICKET DOCTRINE ARE THEY NOT. MONIKA MASTELLONE: AND I WAS REFERRING
TO THE WORK PRODUCT PRIVILEGE BECAUSE THE CASE LAW BRAKES IT DOWN.
JUSTICE PATTERSON: YOU SAID AT ONE POINT. MONIKA MASTELLONE: THAT'S THE THIRD
CATEGORY. INHERENT WORK PRODUCT WHICH IS ANYTHING THAT IS OR TRUE WORK PRODUCT
HOW IT'S DEFINED IN THE CASE LAW ANYTHING THAT'S INHERENTLY ADMISSIBLE IN THE
ATTORNEYS NOTICE. WORK PRODUCT PRIVILEGE BROADER COVERED UNDER WORK PRODUCT
SUCH AS AN EXPERT REPORT THAT'S NOT YET TURNED OVER OR A WHICH INTERVIEW REPORT
THAT'S NOT YET TURNED OVER. JUSTICE WAINER APTER: YOU'RE SAYING THE BULLET
WOULD BE THAT, RIGHT I HEARD YOU SAY THAT CORRECTLY IN ANSWER TO MY QUESTION, THE
BULLET WOULD BE WORK PRODUCT PRIVILEGE. MONIKA MASTELLONE: CORRECT.
JUSTICE WAINER APTER: HOW DOES THAT FALL WITHIN ANY EXPLANATION OF WORK PRODUCT
OR THE WORKLOAD PRIVILEGE WHICH INCLUDEDS THING LIKE INTERNAL RECORDS MEMORANDA
ARGUMENTS OR MADE PIE THE ATTORNEY OR THE ATTORNEY DOCUMENTS OR AGENTS INTO
CONNECTION WITH THE INVESTIGATION OF THE ROBS WELLS RECORDS, STATEMENTS SIGNED OR
UNSIGNED OF THE DEFENDANT MADE TO DEFENDANT OR ATTORNEYS AGENT IN A CRIMINAL
CASE. HOW IS A BULLET LIKE THAT. MONIKA MASTELLONE: SO IT'S A VERY UNIQUE
SCENARIO CERTAINLY. BUT I WOULD SUBMIT IT'S WORK PRODUCT PRIVILEGE BECAUSE
IT IS A DIRECT RESULT OF THE WORK PRODUCT THAT THE DEFENSE ATTORNEY WAS ENGAGING
IN AS FAR AS ALL OF THE COORDINATION AND THE CONSULTATION AND COMMUNICATIONS
WITH THE HOSPITAL, THIS CONSCIOUS DECISION TO HAVE THE BULLET REMOVED, THE
DECISION TO HAVE THE SURGERY SUCH THAT THE BULLET COULD BE AVAILABLE TO THE DEFENSE
FOR TESTING, THE SAME BULLET THAT WOULD HAVE NEVER BEEN AVAILABLE TO THE STATE.
JUSTICE PATTERSON: COUNSEL, IF SOMEONE HERE'S THERE IS SOME BALLISTICS
EVIDENCE THAT WAS LEFT AT THE CRIME SCENE AND SENDS AN INVESTIGATOR OUT AND
FIND THAT BALLISTICS EVIDENCE ON THE GROUND, NOT IN THE LAW OFFICE BUT ON THE
GROUND, IS THAT WORK -- IS THE ACTUAL EVIDENCE WORK PRODUCT? I'M NOT TALKING
ABOUT THE LAWYERS MENTAL INSTRUCTING THE INVESTIGATOR OR LAWYERS THINKING PROCESS
AS TO WHY THIS MIGHT BE IMPORTANT, I'M TALKING ABOUT THE ACTUAL EVIDENCE FOUND
ON THE GROUND, IS THAT WORK PRODUCT. MONIKA MASTELLONE: NO, IT IS NOT
WORK -- IT IS NOT WORK PRODUCT BECAUSE IT'S NOT ANYTHING TO DO WITH ANYTHING
THE DEFENSE DID. JUSTICE PATTERSON: WELL, THE DEFENSE SENT SOMEBODY OUT
TO GET IT. DEFENSE KNEW IT WAS WHERE IT WAS OR FOUND OUT IT MIGHT BE THERE SENT
SOMEBODY TO GET IT. THAT DOESN'T, THAT BULLET FOUND ON THE GROUND BY THE
INVESTIGATOR DIRECTED BY THE DEFENSE COUNSEL IS NOT ITSELF WORK PRODUCT IS IT.
MONIKA MASTELLONE: NO, I'M NOT AS YOU GOING THAT IN THAT SCENARIO IT WOULD
BE. THE BULLET WAS ALREADY THERE. THE DEFENSE DID NOTHING BUT MAKE THE BULLET
AVAILABLE. JUSTICE WAINER APTER: SO WHAT IF THE BULLET IS NOT FOUND AT THE
SCENE OF THE CRIME THAT'S WHY THE POLICE HAVEN'T FOUND IT. INSTEAD THE DEFENDANT
HAD MOVED THE BULLET AND PUT IT SOMEWHERE ELSE. IT'S ONLY BECAUSE OF THE
DEFENDANT THEY WERE ABLE TO FIND THE BULLET. THE POLICE WOULDN'T HAVE FOUND THE
BULLET THERE. THEY WEREN'T AT THE SYNOEKETE. THE DEFENDANT MAKES THE BULLET
ACCESSIBLE TO BY TELLING HIS LAWYER TELLING EXPLAIN TO GO GET IT THEN WHAT.
MONIKA MASTELLONE: THEN THE ATTORNEY HAS OPTIONS SAY THANKS FOR LETTING
ME KNOW AND LEAVE IT AT THAT. IF THE ATTORNEY IS MADE AWARE THAT THIS BULLET
IS INCRIM NATURING I WOULD IMAGINE THAT THE ATTORNEY MIGHT NOT WANT TO GET INVOLVED
P WITH RETRIEVING THAT BULLET. IF THE BULLET -- JUSTICE WAINER APTER:
WOULDN'T WOULDN'T IT BECOME WORK PRODUCT JUST BECAUSE IT WAS RETRIEVED BY THE
ATTORNEY WOULD IT. MONIKA MASTELLONE: THE WORK PRODUCT IN THAT SCENARIO WOULD
BE IF THE DEFENSE RESPIRATOR WROTE A REPORT ABOUT IT OR TOOK PHOTOGRAPHS LULLABY
THE ACTUAL EVIDENCE NOT ACTUAL WORK PRODUCT. WHY IS IT DIFFERENT HERE PASS
MASS BECAUSE THE WORK PRODUCT PRIVILEGE WHICH IS BROADER COVERS THE EFFORTS OF THE
INVESTIGATION HERE WITH A BULLET WOULD NEVER HAVE BEEN AVAILABLE TO THE STATE.
WE'RE NOT GOING TO THE SCENE OR GOING MR. VERY WHERE OR CLIENT TOLD US EVIDENCE
IS. JUSTICE PIERRE-LOUIS: SO EFFORTS TO GO GET EVIDENCE. MONIKA
MASTELLONE: BUT I'M NOT SAYING THAT THE BODY WORN CAMERA PRODUCT PRIVILEGE IS DEFINED
MERELY BY EFFORTS. I THINK WHAT'S DISTINGUISHABLE HERE IS THAT THERE WAS SO
MUCH MORE INVOLVED TO IT. IT WAS THE COORDINATION WITH THOUGH EXPERT AND THE
SURGEONS THEY'RE EXPERT WE'RE COORDINATING. JUSTICE SOLOMON: THEY WEREN'T
HIRED BY DEFENSE COUNSEL. IT'S TOTALLY DIFFERENT. AND ISN'T THE DISTINCTION
THAT PHYSICAL EVIDENCE, THE BULLET IS NOT WORK PRODUCT AND CAN NEVER BE WORK
PRODUCT, THE ONLY THING THAT CAN BE WORK PRODUCT IS HIRING THE EXPERT TOILE AT THE
BULLET AND SAYING IT CAME OUT THIS GUN OR THIS BEGUN. THAT MAY NOT BE CLOSE
BEEN IF THEY HAD AN EXPERT AT THE TRIAL AND HAD HIS REPORT BUT DIDN'T USE HIM.
MONIKA MASTELLONE: THERE CERTAINLY IS THE DISTINCTION. ORDINARILY SPEAKING
PHYSICAL WHETHER I EVIDENCE IS NOT WORK PRODUCT -- JUSTICE WAINER APTER:
HAS ANY COURT EVER HELD THAT PHYSICAL EVIDENCE IS PHYSICAL EVIDENCE IS WORK
PRODUCT YOU'RE ARGUING IN THIS CASE IT'S SO UNIQUE THE BULLET IS WORK PRODUCT. IS
THERE ANY CASE THAT HAS EVER HELD THAT A BULLET IS WORK PRODUCT. MONIKA
MASTELLONE: I'M SAYING THIS IS COVERED BY WORK PRODUCT PRIVILEGE. JUSTICE
WAINER APTER: HAS ANY CASE EVER HELD WORK PRODUCT PRIVILEGE. MONIKA
MASTELLONE: NO, NEVER ABOUT SOLE SOPL THE CASE YOU SEEM TO ATTACH SIGNIFICANCE ON
THE FACT THAT EXPERT EXTRACTED THE BULLET. HE'S ARE NOT DEFENDANT'S EXPERT. THESE
ARE INDEPENDENT HEALTH CARE PROVIDERS. MONIKA MASTELLONE: INTERESTINGLY
ENOUGH THOUGH, IT'S NOT UNUSUAL FOR LET'S SAY A DEFENSE ATTORNEY TO WANT TO
HAVE A CLIENT SUBMITTED TO CERTAIN TYPES OF TESTINGS LET'S SAY BRAIN IMAGING
SCANS AND THEY HIRE THE EXPERT TO MAKE THE PRESCRIPTION -- JUSTICE SOLOMON:
BUT THAT'S NOT WHAT HAPPENED HERE. HE WAS SENT TO THE HOSPITAL FOR TREATMENT.
THERE WERE DOCTORS DID THIS. BUT THAT BEGS THE QUESTION I'M REALLY ASKING IS,
IS THERE ANY CASE OUT THERE THAT EVER HELD THAT THE PHYSICAL EVIDENCE IS IN
FACT PROTECTED BY ATTORNEY WORK PRODUCT PRIVILEGE. MONIKA MASTELLONE:
THERE'S REALLY NO CASE ON THIS AT ALL IN NEW JERSEY WITH RESPECT TO PHYSICAL
EVIDENCE. WE'RE REFERRING TO ALL THE CASE LAW THAT'S PERSUASIVE. JUSTICE
WAINER APTER: WHAT ABOUT OUTSIDE OF NEW JERSEY. MONIKA MASTELLONE: I THINK
ALL OF THOSE CASES CONSISTENTLY -- THE RULING IN THOSE CASES ARE CONSISTENT.
SO THE ANSWER IS NO. BUT THAT DOESN'T MEAN THAT THIS CASE IS NOT EXTREMELY
DIFFICULTIES ISSUE I BELIEVE FROM THOSE CASES. PRIMARILY BECAUSE UNLIKE THOSE PLACES
WE'RE TALKING ABOUT A PEACE OF EVIDENCE THAT MAY HAVE BEEN AVAILABLE. ALL
OF NOSE CASES THE ATTORNEYS ARE POTENTIALLY DEPRIVE THE STATE OF SOMETHING,
WE'RE NOT SURPRISING THE STATE OF ANYTHING. THEY NEVER WOULD HAVE MET THE WINSTON
B LOOK FACTORS. BEYOND THAT WE'RE NOT TALKING ABOUT A SCENARIO WHERE THERE'S A
CONCERN ABOUT A RAISE TO THE EVIDENCE OR A WESTERN DID OUR CLIENT'S GIVING US
RECEIVED SO THEY CAN HOLD ONTO IT MORE. JUSTICE NORIEGA: NOW THERE'S A PIECE
OF EVIDENCE THAT EXISTS IS IT YOUR POSITION THE TRIAL COULD GO FORWARD THE
STATE IS PROHIBITED FROM EXAMINING, THE LOOKING AT IT COULD GO ANY INVESTIGATION
ON IT EVEN THOUGH THEY KNOW WHERE IT IS THEY CAN ACCESS. YOU CAN PRIEST THEM FROM
ACTING ACCESSING THE REST OF THE CASE BASED ON ATTORNEY CLIENT PRIVILEGE. MONIKA
MASTELLONE: IN THIS CASE WHEN OUR CLIENT WAS IN JAIL FOR FOUR YEARS AND WE WERE
ABOUT TO START A TRIAL AND THE STATE WAS TRIAL READY WITH THE EXCEPTION OF 66
WITNESSES WE LEARNED OF AND HAD TO ADJOURN THAT TRIAL. THE STATE THEY CHARGED
OUR CLIENT. THEY GOT AN INDICTMENT AGAINST OUR CLIENT. THE CASE WAS PEDESTRIANING
THREE, FOUR YEARS THEN THEY SAID THEY'RE READY TO GO TO TRIAL. THERE'S NO
DEPOSITION HERE. WE'RE NOT DID HE PRICING THE STATE OF ANYTHING IF I CAN SUGGEST
AN ANALOGY. JUSTICE PATTERSON: IS YOUR POINT THIS IS IMPORTANT BECAUSE
THEY WERE WILLING TO GO TO COURT WITHOUT IT. MONIKA MASTELLONE: I'M SAYING
THE WE'RE KNOTTED PRICING THE STATE OF -- THE HE CAN POSED WAS ARE WE PREVENTING
FROM THE STATE FROM USING EVIDENCE AT TRIAL THAT THEY MAY WANT AND/OR NEED.
NO, BECAUSE THEY SAID WE'RE AS A RESULTING A TRIAL. WE WERE MIDWAY DURING JURY
SELECTION. JUSTICE PATTERSON: BECAUSE THEIR UNDERSTANDING WAS THE
BULLET REMAINED IN YOUR CLIENT'S BODY WHERE THEY COULDN'T -- IT WAS NOT GOING
TO APPEAR AT TRIAL. SO WHY IS THAT IN ANY WAY A FACTOR THAT THEY WERE WIGGLING TO
GO TO TRIAL ON PRESUMABLY A COURT IMPOSED SCHEDULE NOT HAVING THAT BULLET BEFORE
THE BULLET WAS REMOVED FROM YOUR CLIENT'S BODY. A BECAUSE I THINK AGAIN WE HAVE
TO TAKE A STEP BACK LOOK AT WHAT DOES THE EARNS NO QUESTION WHAT THE MR. ROSS WAS SHOT
BY THE POLICE. THE ONLY VALUE IN THIS BULLET IS THAT IT COULD POET LETTERLY DISCONCLUDE
THE STATE'S THEORY IF I CAN SUGGEST AN ANALOGY. A MURDERER CASE YOU HAVE AN INDIVIDUAL
WHO WHO IS CHARGED WITH MURDER POTENTIALLY VEHICLE RAISE A LIMITED CAPACITY DEFENSE,
BUT THE STATE DOES NOT NEED A PSYCH OPERATING AN EMPLOYER VAL OF THE DEFENDANT TO PROVE
THEIR CASE UNLESS AND UNTIL THE DEFENSE ATTORNEY TERMS FINDS A NINE ISSUED CAPACITY OFFENSE,
REYES THAT TO THE STATE. NOW THE STATE HAS ACCESS TO THE CLIENT TO PERFORM THEIR OWN
INVESTIGATION, BUTTED TO THEIR OWN EVALUATION OF THE CLIENT. THEY WOULD NEVER HAD BEEN
ACHE TO DO THAT INITIALLY. BECAUSE WE THEN RAISED THE ISSUE NOW THEY HAVE AN OPPORTUNITY
TO DISPUTE THE EVIDENCE THAT WE SUBMIT DISPUTES THEIR TEAR I. THAT EXAMPLES VERY SIMILAR
TO WHAT IS HAPPENING HERE. THE BULLET IS IS NOT PROBATIVE TO THEIR ABILITY TO PROVE
THAT MR. ROSS WAS SHOT ON THE POLICE IT'S ON A MILLION VIEWS. BUT IF WE HAVE THE BULLET
AND WE FIND THAT IT'S EXCULPATORY SOME SOME FASHION IT DISPROOFS THE OF COURSE WE'RE
GOING TORY REVEAL THAT TO THE CASE BECAUSE THAT'S HELPFUL TO US AND HEN THE STATE HAS
THE OPPORTUNITY TO DISPUTE IT. JUSTICE PATTERSON: THIS MAY BE EVIDENCE THAT
THE STATE COULD USE AT TRIAL TO ESSENTIALLY BEFORE YOU ASSERTED A DEFENSE OF THIRD
PARTY GUILT WHICH IS GUESS IS WHAT WE'RE TALKING ABOUT MERE THAT ANOTHER PERSON MAY
HAVE BEEN SHOOTING, AN UNKNOWN PERSON. MONIKA MASTELLONE: YES MR. PRESIDENT.
JUSTICE PATTERSON: IS THAT THE THEORY OF IT. MONIKA MASTELLONE:
I YES. YOU'RE SAYING THE STATE DOESN'T NEED THAT BECAUSE IT DOESN'T SHOW OTHER THAN
THE POLICE SHOT THE DEFENDANT BUT IT IS POTENTIALLY VERY RELEVANT TO THE CASE
DEPENDING ON HOW THE CASE PROCEEDS. MONIKA MASTELLONE: POTENTIALLY VERY
RELEVANT. BUT THE WHOLE PURPOSE BEING THAT AS THE DEFENSE ATTORNEYS WE RECOGNIZE
THAT POTENTIAL RELEVANCY THAT IT COULD DISPROVE THE STATE'S THEORY POTENTIALLY.
WE ENGAGED IN THIS INVESTIGATION. IT WOULD BE A CHALLENGE EFFECT THAT AFTER
ALL THOSE RECORDS NOW WE'RE GOING TOLD THIS BULLET HAS TO NOW BE TURNED OVER TO
THE STATE. IT REALLY CAN PUT A TENDER ACCUSED OF VERY SERIOUS OFFENSINGS THIS
BULLET INSIDE OF HIM COULD POTENTIAL EYELY EXONERATE HIM OR EXCULPATORY, NOW
YOU HAVE AN ATTORNEY WHO IS YOU KNOW CHOICE DO I TEST THE BULLET. IMAGINE IF THE
DEFENSE ATTORNEY IS TOO SCARED TO ENGAGE IN THAT INVESTIGATION AND MR. ROSS GETS
CONVICTED AT TRIAL BECAUSE THE ONE PIECE OF EVIDENCE THAT WOULD HAVE EXCULPATED
HIM WAS NEVER AT THE TIMED. JUSTICE PATTERSON: IT'S EXCULPATORY. IF IT'S
EXCULPATORY, DEPEND. WHETHER OR NOT THE STATE EVERY SEES IT. Q CORRECT BUT
IF IT'S INCULPATORY WE'VE JUST ASKED -- JUSTICE PATTERSON: YOU JUST SAID IT
CANNOT BE INCULPATORY. MONIKA MASTELLONE: I'M NOT SAYING THAT.
BECAUSE IT COULD POTENTIALLY PRIEST THE DEFENSE FROM PURSUING ITS INVESTIGATION FURTHER,
IT IT COULD THOUGHT THE DEFENSE. JUSTICE PIERRE-LOUIS: HOW WOULD THAT
PRIEST FROM YOU PURSUING YOUR OWN INVESTIGATION. MONIKA MASTELLONE:
NO ONE KNOWS AT THIS POINT BECAUSE THE HOSPITAL POSSESS -Z THE BULLET TACTUALLY
WHAT THE BULLET IS GOING TO REVEAL. GOING INTO THIS SPECIFIC QUESTION WHAT COULD
THE BOOK POTENTIALLY BE. REALLY THE ISSUES HERE IS WHY THE WE PERMIT A DEFENSE
ATTORNEYS INVESTORS EFFORTS TO ULTIMATELY CALLS HEM TO THE STATE USE IT AGAINST
OUR CLIENT IT WOULD HAVE A CHILLING EFFECT. THE COURT: COUNSEL YOU'RE
AN ADVANCING TWO AT ALL TIMES HERE AND I'M NOT SURE HOW MUCH THEY A LINE WITH
EACH OTHER. THE FIRST IS THIS BULLET WOULD NEVER EXIST BUT FOR DEFENSE COUNSEL'S
HE MEANS THIS IS HOW WE'RE GOING TO VET GAIT AND THAT'S WHAT BROUGHT IT TO LIGHT
AND THEREFORE, IT SHOULD NOT BE DISCLOSED TO THE STATE. YOUR OTHER
ARGUMENT IS THE STATE HUNT COME FORWARD WITH A GOOD REASON WHY THIS IS RELEVANT
FOR THEM. IF YOU REST AN ARGUMENT ON THAT ARE YOU CONCEDING THAT IF THEY COME
UP FOR A GOOD REASON THEY GET IT. MONIKA MASTELLONE: I'M NOT RESTING AN
ARGUMENT ON THAT. THE COURT: THEN WHY WOULD WE PUT THAT INTO OUR ANALYSIS
HERE. MONIKA MASTELLONE: I'M NOT SUBMITTING THAT EDIT NEEDS TO BE AS PART
OF THE APPEARANCE I WAS JUST APPEARING AS PART OF THE QUESTION. I THINK GENERALLY
EFFECTS THERE IS AN INTERESTED CHOICE WE PUT IN ALL OF THE EVERY DAY TO RETRIEVE
THE BULLET. IT WOULD NEVER HAVE BEEN ABLE TO WHERE IT TO THE STATE. IT WOULD
HAVE A CHILLING EFFECT AS A RESULT OF THOSE EFFORTS IF THE DEFENSE ATTORNEY PURSUED
NOW THE BULLET GATES TURNED OTHER TO THE STATE. I THINK IT'S CLEAR THE DEFENSE
WOULD HAVE ELECTED IN EVER TO REMOVE THE BULLET IF THERE WAS A CHANCE IT WOULD
BE REMOVED TO THE STATE. JUSTICE WAINER APTER: WHY WOULD ALL THAT IMPACT
THE SIX ARMEDMENT NOT ONLY A RIGHT FOR A TENDER BUT A RIGHT TORE ATTORNEY TO MAKE
EVERY DAY KNOCK OVER TO THE STATE MILLIONS THE ATTORNEY WANTS IT TO. IT JUST
SEEMS THAT THAT IS VERY FAR. MONIKA MASTELLONE: I THINK THAT'S A VERY
SPECIFIC WAY TO PAY HIM IT. BUT THE MORE PROBABLE WAY TO FRAME IT INCLUDES
THE RIGHT OF EFFECTIVE ASSISTANCE OF COUNSEL WHICH INCLUDEDS ZEALOUS ADD SORRY
WHICH ALSO INCLUDES THE RIGHT TOP DEFENSE CONTINUE TO CONDUCT AN UNFETTERED
CONFIDENT INVESTIGATION ON BEHALF OF THE LAST. THAT'S WHY WE HAVE P C CS SOMETIMES
THE DEFENSE CAN'T DON'T EXCULPATORY IN MR. ROSS' BODY MANY YEARS LATER I'M
SURE HE WOULD A GO IN ANTI WERE SUED PREVENTED HITS LIBERTIES FROM BEING TAKEN
AWAY. AND I ALSO THINK TO ANSWER YOUR HONOR'S QUESTION WITH WHAT AM I RESTING MY
ARGUMENT ON. THERE IS AN UNDER AND OCTOBER 21, THE JUDGE VERY MAY A VERY CLEAR
RULE WHEN THE STATE HAZE SAID IF THE DEFENSE HAS ANY AND OUR DISCOVERY PERTAINING
TO THIS BULLET BECAUSE WE PERCEIVE THE DENSE MAY ISSUED. THE REPORT RULED KNOW.
IF IT HAS IN DISCOVERY ANY EVIDENCE RELATED TO THE N.J.S.A. UNLESS THEY'RE
GOING TO USE IT AT TRIAL SO A YEAR LATER AFTER MR. ROSS GETS RELEASED AND THIS
SURGERY IS PURSUED, I THINK THAT IT WOULD BE FUN MENTALLY UNFAIR NOW AFTER RELIANCE
OF THAT RULING AND RETAINS THE UNDERSTANDING EVER HOW BILL YAMS ANAMINE OH COME
INTO PLAY WITH VISION TO OTHER NOW WE HAVE TO TURN IT OVER. JUSTICE PATTERSON:
BUT THAT RULING WAS SUBJECT TO APPEAL. YOU'RE HIRE BECAUSE THE APPELLATE
DIVISION REVERSED IT. MONIKA MASTELLONE: NO, THE ON OCTOBER 21 ORDER WAS
NEVER ALLEGED TO THE STATE IN THE STATE HAD APPEALED WITHIN TIME IN OCTOBER
TRILOGILY IF THE APPELLATE NICKS RULED ACCORDINGLY. JUSTICE PATTERSON:
ARE YOU SAYING THE STATE WAVED THE RIGHT TO GO TO APPELLATE DIVISION ABOUT GETTING
THIS BULLET. I'M NOT APPEAL THAT ORDER. Q NO, WHAT I WAS IS A STATING WE WERE
UNDER AN OBLIGATION TO TURN OVER ANY BULLET EVIDENCE. WE RELIED UPON THAT JUAN WAYNE
THAT WAS NOT IN THE CONTEXT OF A SEARCH WARRANT, RIGHT. THERE WAS NO SEARCH WARRANT
REQUESTED, IT WAS JUST UNDER THE DISCOVERY RULES, CORRECT? MONIKA MASTELLONE:
RIGHT. JUSTICE WAINER APTER: WHERE AS SEPTEMBER 22 SPLITS A SEARCH WARRANT
INSTEAD OF ACTUALLY COULD GO ON THE FOUR FRAMEWORK THAT I HAD BEEN USING BEFORE
CORRECT. THE DEFENDANT: CORRECT. THE COURT: THERE WAS NO ONES WITH YOU IN
20 CONTINUE. I WOULD NOTE THE SEARCH WARRANT ISSUE IS REAL A DISTRACTION OR
HELPED REGULAR HERE THE FAT THAT THE FIFTH DEEMED DEEMS AN INVESTIGATION OR FRUITS
AVENUE INVESTIGATION. JUSTICE WAINER APTER: THAT'S ONLY IF WE AGREE WITH YOU
THE BULLET ITS PRIVILEGED, WORK PRODUCTIVITY THAT IS THE WAY YOU FRAMED IT. Q
IT IS COVERED BY THE CONFIDENTIALITY ALTHOUGH OF A DEFENSE COURSE AND OUR ABILITY TO CONDUCT
THAT WITHOUT THE MEASURES OF THE STATE WHENEVER IT'S A MOTION TO COMPEL OR A SEARCH WARRANT?
JUSTICE SOLOMON: THIS ISSUE DIDN'T BECOME RIPE UNTIL THEY APPLIED FOR
THE SEARCH WARRANT, THEY WERE TURNED DOWN AND THE APPEAL, BECAUSE THEY OBVIOUSLY
NEW WE CAN'T FORCE THE DEFENDANT TOP PRODUCE THIS BULLET THAT'S INSIDE SIDE OF IN.
ONCE THEY LEARNED NOW THAT THE HAND IS IN A HAPPENED OF A THEY ARE. DIFFICULT QUESTION.
THAT WAS DECIDED AT THAT POINT IN TIME, NOW. A QUITE. ANTSY TO RESPOND
TO THAT I WOULD SUBMIT FACTUAL BASIS IT'S NO DIFFERENCE IF THE STATE HAD ASKED THE DEFENSE
TO TURN OVER WE DIDN'T DEPEND TO USE. THE COURT: OF HIS. ONE THING THAT WHILE
TRACTOR TRAILERS EVERY INSIDE IN THE THAT THEY HAVE IN THE STATE UNDER THE
FOURTH AMENDMENT, A RIGHT TO THAT PHYSICAL EVIDENCE BY HAVING A SEARCH WARRANT
ISSUED THEY HAVE THAT RIGHT TO THAT PHYSICAL EVIDENCE AT THAT POINT IN TIME. THEY'RE
NOT PREVENTED TO TOP PROHIBITED, THERE'S NO PRINCIPLE THAT WOULD LIMIT THEIR RIGHT
TO REMAND THAT FIGURE EVIDENCE. GO DO A SHAREHOLDER: JUSTICE SOLOMON:
NOW THAT MONIKA MASTELLONE: CORRECT, THAT GOES THE STATE'S
POSITION, BUT OUR POSITION IS THAT IT'S IRRELEVANT TO A 6TH AMENDMENT ANALYSIS
HERE IF THE COURT WERE TO AGREE THAT THE ITEM HERE WAS PROTECTED BY WORK
PRODUCT PRIVILEGE AND ATTORNEY/CLIENT PRIVILEGE AND ET CETERA, THEN THE SEARCH WARRANT
IS IRRELEVANT, THEY CAN'T GAIN ACCESS TO IT. JUSTICE WAINER
APTER: AND IF WE DIDN'T AGREE THEN THERE IS NO WAY TO AGREE ON THE 6TH AMENDMENT
PIECE, CORRECT? UNLESS WE AGREE THAT THE BULLET IS PROTECTED BY WORK PRODUCT
PRIVILEGE, THERE IS NO OTHER WAY TO GET TO WHERE YOU'RE GOING.
MONIKA MASTELLONE: NOT JUST WORK PRODUCT PRIVILEGE BUT THE BROADER PRINCIPLE OF THE
6TH AMENDMENT RIGHT TO CONFIDENTIAL INVESTIGATION, THE 6TH AMENDMENT I
SUBMIT IS THE ONLY ISSUE AT PLAY HERE AND IF THE 6TH AMENDMENT DOES COVER THIS
INVESTIGATION INCLUDING THE FRUITS DERIVED FROM IT, THEN THAT'S THE ONLY ISSUE THAT
WOULD NEED TO BE DECIDED AND THE SEARCH WARRANT THEN IS OF NO MOMENT.
CHIEF JUSTICE RABNER: I THINK WE HAVE YOUR POSITION AND WE'LL INVITE
YOU BACK FOR REBUTTAL. MONIKA MASTELLONE: THANK YOU.
THE COURT: THANK YOU COUNSEL, MR. WELFEL. SCOTT M. WELFEL:
THANK YOU AND MAY IT PLEASE THE COURT. I'D LIKE TO TALK ABOUT BOTH WHAT MAKES
THIS CASE UNIQUE BUT ALSO WHAT THE BROADER IMPLICATIONS ARE AND I WANDER TO START
BY POSITING OR CITING THE RULE THAT I AM PROPOSING. OUR INTEREST IS OBVIOUSLY
THAT THIS COURT'S RULING STRIKE THE BALANCE BETWEEN DEFENSE RIGHT TO A THOROUGH
INVESTIGATION, AND THE STATE'S RIGHT TO PHYSICAL EVIDENCE, AND WE PROPOSE THAT
THE RULE THAT WOULD BALANCE BOTH OF THESE INTERESTS IS THAT THE PRODUCTS OF A
DEFENSE INVESTIGATION ARE PROTECTED FROM DISCLOSURE UNLESS THE INVESTIGATION BY
REMOVING OR ALTDZING EVIDENCE INTERFERED WITH THE PROSECUTION'S OPPORTUNITY
TO DISCOVER OR OBTAIN THAT EVIDENCE, AND THE QUOTE BY REMOVING OR ALTERING THE
EVIDENCE INTERFERED WITH THE PROSECUTION'S OPPORTUNITY ORABLE, THAT'S FROM
MEREDITH, WHICH IS THE WALLET CASE, ONE OF THE CASES THAT TALKS ABOUT DEFENSE COUNSEL'S
OBLIGATION TO TURN OVER EVIDENCE. JUSTICE WAINER APTER: CAN YOU
REPEAT THAT ONE MORE TIME, YOU'RE PROPOSED RULE. SCOTT M. WELFEL:
SURE, THE PRODUCTS OF A DEFENSE INVESTIGATION ARE PROTECTED FROM DISCLOSURE
UNLESS THE INVESTIGATION BY REMOVING OR ALTERING EVIDENCE INTERFERED WITH THE
PROSECUTION'S OPPORTUNITY TO DISCOVER OR OBTAIN THAT EVIDENCE.
SO IT APPLY IT TO A BUNCH OF DIFFERENT SCENARIOS WITH A BULLET BUT I WANT TO
ACTUALLY START BY TALKING ABOUT OTHER INVESTIGATIONS THAT WE THINK ARE
INCREDIBLY IMPORTANT THAT THIS RULING NOT CHILL AND DETER DEFENSE ATTORNEYS FROM
PURSUING. SO SUPPOSE YOU HAVE A BAR FIGHT AND DEFENDANT COMES TO HIS PUBLIC
DEFENDER AND SAYS LOOK, IT WAS SELF-DEFENSE, GO GET THE VIDEO. WELL THERE'S TWO
SCENARIOS WHERE THEY GET THE VIDEO, ONE IS THEY GET THAT ONLY COPY OF THE VIDEO
AND NOW THEY HAVE IT, THEIR POSSESSION OF IT WOULD DEPRIVE THE STATE OF
ACCESSING IT. WELL OF COURSE THEY HAVE AN OBLIGATION TO TURN IT OVER, REGARDLESS
OF WHETHER THEY WANTED TO USE IT AT TRIAL, BUT ANOTHER SCENARIO IS WHERE THEY
JUST GET -- THEY DOWNLOAD A COPY OF IT, THEY DON'T BE AT ALL INTERFERE WITH THE
STATE'S -- THAT SOUNDS LIKE DISCOVERY TO ME. JUSTICE PATTERSON:
AND THAT'S ALL UNDER THE UMBRELLA OF DISCOVERY. SCOTT M.
WELFEL: FOR OUR PERSPECTIVE, IT IS THE 6TH AMENDMENT, THIS CASE IS NOT ABOUT DISCOVERY
RULES, WE BELIEVE THAT THE APPELLATE DIVISION WRONGLY SAID MINK GO AND
WILLIAMS ARE LIMITED TO THE CONTEXT. JUSTICE PATTERSON: SO YOUR SCENARIO
IS THAT THE STATE KNOWS ABOUT THE EVIDENCE AND GETS A SEARCH WARRANTS FOR
IT? SCOTT M. WELFEL: YES, SO LET'S PLAY IT OUT. I MEAN
IF THE STATE GOES INDEPENDENT OF ANYTHING DEFENSE DID AND THEY GET THE SURVEILLANCE,
THEY ALSO GET A COPY, WELL THEN THEY'RE ENTITLED TO THAT COPY AND DEFENSE IS
ENTITLED TO THEIR COPY, BUT SUPPOSE THEY DIDN'T GET IT WITHIN THE TIME OF THE
RETENTION PERIOD, A LOT OF BARS OR PLACES HAVE A 30 DAY PERIOD, AND ALTHOUGH DEFENSE
DOWNLOADING IT, THEY DIDN'T PREVENT THE STATE FROM ACCESSING, NOW BECAUSE
THE THEY DID THEIR JOB AND THE STATE DIDN'T DO THEIR JOB, NOW THEY HAVE THE ONLY
COPY. WELL THEY WENT OUT THERE TO PURSUE A DEFENSE INVESTIGATION, THEIR
INVESTIGATION DIDN'T IMPAIR THE STATE'S ABILITY TO DO ITS INVESTIGATION, SHOULD
THE STATE NOW GET A SEARCH WARRANT AND, I MEAN THERE ARE CASES THAT DO FOR
PHYSICAL EVIDENCE AND OTHER CONTEXTS WHERE THE DEFENSE DID THEIR POSSESSION DID
DEPRIVE THE STATE OF ACCESS TO IT, THE GUN, THE BLOODY SHOES, THEY HAVE
A LOT OF SEARCH WARRANTS OF ATTORNEYS OFFICES AND A LOT OF TIMES ATTORNEYS WILL
COME FORWARD AND GIVE IT TO THEM. CHIEF JUSTICE RABNER: SO
APPLY YOUR FACTS TO THE FACTS THAT WE HAVE HERE, A SINGLE BULLET THAT IS
UNAVAILABLE UNTIL THE DEFENDANT ON HIS OWN DECIDES TO REMOVE IT, OR ON THE ADVISE
OF COUNSEL. SCOTT M. WELFEL: SO WE THINK THIS IS THE ONLY
SCENARIO THAT I CAN THINK OF WHERE THE PIECE OF EVIDENCE WAS ALWAYS UNIQUE, WHERE
THAT DEFENSE COUNSEL WOULD NOT HAVE AN OBLIGATION TO TURN IT OVER AND THE 6TH
AMENDMENT WOULD PROTECT IT FROM DISCLOSURE, AND THAT'S BECAUSE UNDER WINSTON,
THE STATE WOULD NOT HAVE HAD ACCESS TO IT AND SO THE DEFENSE INVESTIGATION IS NOT
DEPRIVING THE STATE OF ANYTHING. JUSTICE WAINER APTER: BUT
ONCE THE BULLET IS OUT AND THERE'S ONLY ONE BULLET, SRNLT THE DEFENDANT REEFGS
REFUSING TO TURN IT OVER DEPRIVING THE STATE THE ABILITY TO TEST THE BULLET.
SCOTT M. WELFEL: YES, BUT THE INVESTIGATION OF REMOVING IT DIDN'T
DEPRIVE THE STATE THE ABILITY TO ACCESS IT. JUSTICE SOLOMON:
THE STATE NEVER HAD THE ABILITY TO ACTION IT. SCOTT M. WELFEL:
THAT'S CORRECT. JUSTICE SOLOMON: SO HOW IS THAT LIKE YOUR
VIDEO EXAMPLE, IN THAT CASE THE STATE COULD HAVE GONE AND COPIED THE VIDEO, IN THIS
CASE THEY ACTUALLY MADE THE REQUEST, THEY KNEW ABOUT IT, THEY SAID TO THE
DEFENDANT, WHOSE THE ONLY ONE IN THE WORLD WHO COULD HAVE ACCESS TO IT, PLEASE GIVE
IT TO US, AND THEY DIDN'T SAY OKAY, IN FACT THEY FOUGHT IT. HOW IS YOUR VIDEO
EXAMPLE IN ANY WAY ANALOGOUS TO THIS. THE STATE KNEW WHAT THEY NEEDED TO DO,
DID IT IN TIME, THE BULLET IS IN THE DEFENDANT, BULLETS CAN BE TAKEN OUT OF THE
DEFENDANT, GIVE IT TO US AND IF YOU EVER GET IT OUT GIVE IT TO US AND THEY
NOT ONLY DIDN'T DO THAT, THEY TRIED TO NOW KEEP IT AND PREVENT THEM FROM GETTING
IT, HOW IS THAT LIKE YOUR VIDEO ANALOGY. SCOTT M. WELFEL:
NO, I AGREE, I DON'T THINK THERE IS ANY EXAMPLE THAT IS DIRECTLY ON POINT. THE
REASON FOR THAT EXAMPLE IS TO SAY THAT PHYSICAL EVIDENCE CAN'T BE THE
LIMITING PRINCIPLE. I ALSO THINK UNIQUENESS CAN'T BE THE LIMITING PRINCIPLE
BECAUSE SUPPOSE THE PSYCHIATRIST IN COMPANIES Y' ALL LICK WAS THE OATH
PSYCHIATRIST THAT WOULD HAVE ISSUED AN OPINION THAT WENT AGAINST THE DEFENDANT'S
DEFENSE AT TRIAL. AND AGAIN THAT REPORT WASN'T OBTAINED VIA DISCOVERY RULES,
THE PSYCHIATRIST VOLUNTARILY TURNED IT OVER TO THE PROSECUTION, JUST LIKE
THE HOSPITAL VOLUNTARILY CONTACTED THE PROSECUTOR HERE. JUSTICE
PATTERSON: CAN A BULLET BE WORK PRODUCT, BE SUBJECT TO THE WORK PRODUCT IMMUNITY,
AND I'M DISTINGUISHING THAT FROM MEETINGS AND DISCUSSIONS AND WRITINGS AND
MEMOS WHERE THE LAWYER MAKES THE POTENTIALLY FINE TUNED DECISION WHETHER OR
NOT TO HAVE IT REMOVED. CAN THE BULLET ITSELF EVER BE WORK PRODUCT?
SCOTT M. WELFEL: SO IF YOU LOOK AT MINUTE GO, I DON'T THINK THE QUESTION OF
WHETHER IT'S WORK PRODUCT IS THE RIGHT QUESTION. JUSTICE
PATTERSON: BUT HUMOR ME AS WAS SAID EARLIER TODAY, BECAUSE WE'RE HEARING THAT THE
6TH AMENDMENT AND THE WORK PRODUCT PRIVILEGE FROM COUNSEL FOR THE
DEFENDANT ARE VERY CLOSELY INTERTWINED IN THIS CASE, AND TELL ME IF I'M WRONG BUT
THE WORK PRODUCT DOCTRINE IMMUNITY, IT'S BEEN CALLED A NUMBER OF THINGS, HAS
NEVER BEEN HELD TO PROTECT PHYSICAL EVIDENCE, FACTUAL EVIDENCE, I'M NOT TALKING
ABOUT SXERTS REPORTS, BUT FACTUAL EVIDENCE THAT MAY BE FOUND OUT BY VIRTUE OF
LAWYERS EFFORTS. SCOTT M. WELFEL: I'M NOT ASSERTING THAT THE
BULLET IS WORK PRODUCT AND I THINK WE DON'T NEED TO -- WE DON'T NEED FOR
THE COURT TO FINDS IT TO BE WORK PRODUCT FOR THE COURT TO SIDE WITH THE DEFENSE
HERE. I MEAN IF YOU LOOK AT PAGE 585 OF MINUTE GO, MINUTE GO SAYS THE HAND
WRITING EXPERT REPORT WASN'T EXACTLY WORK PRODUCT BUT WHY WAS IT CLOSELY ANALOGOUS,
IT WAS CLOSELY ANALOGOUS BECAUSE IT'S REVELATION TO THE PROSECUTOR SUBVERTS
THE ABILITY FOR THE DEFENSE COUNSEL TO EFFECTIVELY MAINTAIN REPRESENTATION, SO
THE AEMENTD AEMD IS BROADER. JUSTICE PATTERSON: BUT EXPERTS
ARE RRAISE RESPECTFULLY MANY CONSIDERATIONS THAT ARE NOT AT ISSUE
HERE, AN EXPERT IS RETAINED BY THE LAWYER, THERE'S A WRITING, THE EXPERT TELLS THE
LAWYER WHAT THE SCOPE OF THE INQUIRY IS, THE EXPERT SUBMITS THE REPORT AT LEAST
IN THE FIRST INSTANCE TO THE LAWYER AND THERE ARE PROVISIONS FOR SO-CALLED
ARM CHAIR EXPERTS OR CONSULTANTS WHO ARE NEVER GOING TO BE CALLED AT TRIAL.
NONE OF THAT IS AT ISSUE HERE, AND I AGREE WITH YOU, IT'S A VERY UNIQUE CASE, BUT
NONE OF THAT IS AT ISSUE HERE. SCOTT M. WELFEL: I AGREE,
I THINK THAT GOES MORE TO THE QUESTION OF WHETHER THERE WAS A REASONABLE
EXPECTATION OF AGENCY WITH THE HOSPITAL WHICH I WILL ADDRESS, BUT BEFORE I TURN
TO THAT, I DO HAVE ONE MORE EXAMPLE OF WHY THE LINE CAN'T BE PHYSICAL EVIDENCE
AND WHY WE NEED TO INSURE THAT WE'RE KNOTS DETERRING DEFENSE COUNSEL FROM
INVESTIGATION. SO DEFENDANT GETS INTO A CAR ACCIDENT, HE DOES THE RIGHT THING,
HE CALLS THE POLICE, THE POLICE COME, THEY ISSUE HIM A DWI TICKET, HE HIRES
AN ATTORNEY THAT NIGHT AND SAYS LOOK I WASN'T DRINKING, LET'S DO A BLOOD DRAW,
LET'S DRAW MY BLIED. NOW THAT BLOOD DRAW IS PHYSICAL EVIDENCE, THE POLICE HAD
THE OPPORTUNITY TO IF THEY WANTED TO GET A COURT ORDER, THEY COULD HAVE,
THEY LET HIM GO, AND WE WANT ALL THE DEFENSE COUNSEL IN THE WORLD HAVE THE FREEDOM
TO DO THAT SO THAT WHEN THAT BAC COMES BACK AS ZERO, BECAUSE THEY HAVE THAT
EVIDENCE, IF THEY DON'T DO IT THEN THAT'S LOST FOREVER, WE DON'T WANT THEM TOUK
AFRAID WHAT IF IT COMES BACK AT.01, NOW IT'S INCULPATORY, WE HAVE TO TURN THAT
OVER. JUSTICE SOLOMON: WHY WOULD THEY HAVE TO TURN
THAT OVER, THAT'S DIFFERENT THAN THIS CASE BECAUSE THEY COULDN'T COMPEL A BLOOD
TEST, THEY CAN'T COMPEL A BULLET REMOVAL, THIS IS PHYSICAL EVIDENCE, IT'S EXISTED,
EVERYONE KNOWS IT EXISTS AND ALL THE STATE IS ASKING IS IF IT BECOMES AVAILABLE,
WE WANT TO GET IT AND TEST IT JUST LIKE YOU DO. YOU CAN TEST IT, BUT WE DO TOO,
THEY'VE ALREADY TOLD THEM THAT, THEY'VE ALREADY REQUESTED THAT. THE DEFENDANT
IS RELYING ON THE FACT THAT NOW WE CAN REMOVE IT, THEY'VE GOT THIS DISCOVERY
ORDER AND WE DON'T EVER HAVE TO GIVE IT TO THEM IN CASE IT'S NOT EXCULPATORY. FRANKLY,
AS FAR AS I CAN TELL, I DON'T KNOW WHETHER THEY THINK THEY CAN RAISE THAT DEFENSE
THAT THERE WAS A BULLET IN THIS GUY THAT CAME FROM SOMEBODY ELSE'S GUN AND NOW
THAT'S UNAVAILABLE TO THE STATE, HOPEFULLY NOT, BUT HOW IN THE WORLD IS THIS LIKE
ANYTHING, ANYTHING CLOSE TO WHAT YOU'RE SUGGESTING IS AN APPROPRIATE ANALOGY,
THAT IT'S NOT LIMITED BY PHYSICAL EVIDENCE. SCOTT M. WELFEL:
AGAIN, I'M NOT SUGGESTING THAT SCENARIO IS ON POINT, I AM POSITING BOTH.
JUSTICE SOLOMON: HOW IN THE WORLD DOES IT APPLY. SCOTT M.
WELFEL: THE RULE, THERE ARE MANY SUGGESTIONS, MANY QUESTIONS DURING MISS
MASTELLONE'S PRESENTATION THAT SUGGESTED THERE WAS A POTENTIAL TO DRAW THE
LINE AT PHYSICAL EVIDENCE. PHYSICAL EVIDENCE IS DIFFERENT FROM EXPERT REPORTS,
AND I'M PROVIDING BOTH OF THESE EXAMPLES TO SAY THE LINE CAN'T BE PHYSICAL
EVIDENCE, BUT I DO THINK THE LINE IS WHEN DEFENSE COUNSEL'S INVESTIGATION DEPRIVES
THE STATE OF ACCESS TO THAT, SO SUPPOSE THE DEFENDANT IN THE BLOOD SNAR JOE
DIDN'T CALL THE POLICE AND GOES TO DEFENSE AND GETS A BLOOD DRAW, WELL BY NOT
REPORTING IT MIEDLY ASSIST YOU'RE OBLIGATED TO DO WHEN THERE'S A CAR ACCIDENT
RESULTING IN INJURY, THAT ACTION DID THAT POTENTIALLY DEPRIVE THE STATE FROM
GETTING THE BLOOD ANALYSIS, THEIR ACTIONS WOULD HAVE DEPRIVED. SO I'M POSITING
THESE EXAMPLES IN FURTHERANCE OF MY PRINCIPLE. AND I THINK THAT AT THE
BOTTOM LINE, WE CAN'T HAVE A RULE WHERE A DEFENSE INVESTIGATION IS GOING TO PUT
THE STATE, THE PROSECUTION, THE POLICE, IN A WORSE PLACE THAN IT WOULD HAVE BEEN
OTHERWISE. THIS INVESTIGATION IS NOT PUTTING THE STATE IN A WORSE STATE OTHERWISE
BECAUSE THEY HAD NO ACCESS TO THE BULLET, BUT AT THE SAME TIME AS LONG AS IT
DOESN'T PUT THE STATE IN A WORSE POSITION, IT SHOULDN'T RUN THE RISK OF PUTTING
DEFENDANT IN A WORSE POSITION. AND SO THERE WAS A QUESTION.
JUSTICE WAINER APTER: HOW WOULD THAT APPLY WITH EVERYTHING WE WERE TALKING
ABOUT WHERE ONLY THE DEFENDANT KNOWS WHERE THE EVIDENCE IS LOCATED AND THE
DEFENDANT DOESN'T TELL THE POLICE BUT THE DEFENDANT TELLS THEIR ATTORNEY.
SCOTT M. WELFEL: THEY STILL HAVE THE POSSIBILITY OF FINDING IT.
JUSTICE WAINER APTER: SO IF THE ATTORNEY GOES AND GETS THE
EVIDENCE FROM A LOCATION, THE STATE COULD NOT HAVE FOUND IT, THE DEFENDANT THREW
IT AWAY AFTER THE CRIME WAS COMMITTED, HE TELLS HIS ATTORNEY WHERE, THE
ATTORNEY GETS IT, YOU'RE SAYING THE ATTORNEY HAS NO OBLIGATION TO THEN HAND IT
OVER. SCOTT M. WELFEL: NO, ABSOLUTELY THEY WOULD, THE DISTINCTION
IN THIS CASE AND WHAT MAKES IT UNIQUE IS IT'S NOT A PHYSICAL LOGISTICAL FACTUAL
POSSIBILITY THAT THE STATE DIDN'T HAVE, IT IS A LEGAL IMPOSSIBILITY, UNDER
WINSTON V LEE, AND THAT'S WHY ITS UNIQUE. JUSTICE PATTERSON: AND
THESE ARE VERY TOUGH QUESTIONS AND YOU'RE HELPING US WITH THIS, BUT WHERE IS THE
6TH AMENDMENT RIGHT IF IN FACT IN THE EXAMPLE THAT JUSTICE WAINER APTER JUST GAVE
YOU ABOUT THE BULLET THAT'S HIDDEN SOMEWHERE IT WOULD NOT BE A 6TH AMENDMENT
VIOLATION TO REQUIRE THE ATTORNEY TO GIVE THAT BULLET FOUND IN THAT HIDING PLACE
TO THE STATE? SCOTT M. WELFEL: THAT'S CORRECT.
JUSTICE PATTERSON: AND THERE'S NO AEMD, THAT DOESN'T IMPLICATE THE 6TH AMENDMENT.
SCOTT M. WELFEL: IT IMPLICATES THE AERMD BUT IT'S NOT A VI
OLATION BECAUSE THE OUTER LIMIT IS THAT THE AEMD CAN'T PRY VENT THE STATE FROM HAVING
ACCESS TO WHAT IT LEGALLY COULD HAVE ACCESS TO. JUSTICE
PATTERSON: AS A PRACTICAL MATTER IN OUR HYPOTHETICAL THE STATE WOULD NEVER HAVE
FOUND THAT BULLET. SCOTT M. WELFEL: CORRECT.
THE WITNESS: IT'S ONLY WHAT THE STATE CAN'T LEGALLY HAVE ACCESS TO, NOT WHAT
THE STATE WOULD NEVER HAVE PHYSICALLY ACCESS TO BECAUSE ONLY THE DEFENDANT
KNOWS WHERE IT IS. SCOTT M. WELFEL: I MEAN THERE'S LOTS OF TIMES
DEFENDANT HID SOMETHING AND SOMEBODY ULTIMATELY FINDS IT, SO I THINK THAT'S WHAT
MAKES THIS CASE UNIQUE, I WOULD NOT SUGGEST. JUSTICE WAINER
APTER: JUSTICE WAINER APTER: IS THERE ANY CASE ACROSS THE
COUNTRY THAT HAS EVER MADE THAT KIND OF DISTINCTION OR SUPPORTED ANYTHING LIKE
THE RULE THAT YOU'RE SUGGESTING. SCOTT M. WELFEL: AGAIN,
I THINK IT WOULDN'T APPLY TO ANY SCENARIO OTHER THAN -- BECAUSE OF WINSTON V
LEE, I CAN'T THINK OF ANY OTHER SCENARIO WHERE THERE WOULD BE A CERTAINTY UP FRONT
THAT THE STATE WOULD BE LEGALLY PROHIBITED FROM ACCESSING IT PIECHLT AND YOU'RE
MAKING THE. JUSTICE PIERRE-LOUIS: AND YOU'RE MAKING THE
DISTINCTION TIMING WHY IS THAT THE STATE WAS LEGALLY PROHIBITED FROM ACCESSING
THIS BULLET PRIOR TO THE SURGERY. SCOTT M. WELFEL: YES.
JUSTICE PIERRE-LOUIS: BUT NOW THAT THE BULLET IS AVAILABLE,
BECAUSE THE STATE HAD PREVIOUSLY BEEN LEGALLY PROHIBITED FROM ACCESSING THE BULLET,
THE STATE THEREFORE IS NOT BEING DEPRIVED OF THAT EVIDENCE. IS THAT WHAT
YOU'RE SAYING? SCOTT M. WELFEL: THAT'S TRUE, THAT'S ONE OF
THE PRE CONDITIONS, THE OTHER IS THAT THE REASON IT'S NOW AVAILABLE IS BECAUSE OF THE
DEFENSE INVESTIGATION, HAD THE DEFENDANT GONE IN FOR MEDICALLY NECESSARY
SURGERY, NOT AT THE DIRECTION OF DEFENSE COUNSEL, THERE'S NO AEMD THERE, THE DEFENDANT
BRINGS IT IN, NO AEMD THERE, THE REASON IT BECAME AVAILABLE IS BECAUSE IT WAS
REMOVED AT THE DIRECTION OF DEFENSE COUNSEL. AND WHILE IT SHOULDN'T PUT THE STATE.
JUSTICE WAINER APTER: IS THERE ANY CASE THAT HAS EVER AGREED
WITH THAT, THAT THE 6TH AMENDMENT RIGHT TO COUNSEL MEANS THAT THE COUNSEL CAN NEVER
BE PUT AT A DISADVANTAGE WITH REGARD TO ANYTHING THEY THINK IS NECESSARY
WITH REGARD TO AN INVESTIGATION. SCOTT M. WELFEL: THE PRINCIPLES
AND THE LANGUAGE IN MINUTE GO AND WILLIAMS SUGGESTS THAT THAT IS THE BASIS
FOR IT, WILT YIMS, IT'S IMPORTANT TO OUR CONCEPT OF CRIMINAL JUSTICE TO COMPEL
THE DIVEST UNDER THE GUISE OF RECIPROCAL SDOFRN RE -- JUSTICE
WAINER APTER: AGAIN, WEERP NOT TALKING ABOUT RECIPROCAL DISCOVERY.
SCOTT M. WELFEL: WILLIAMS THOUGH ADDRESSING AN ORDER UNDER THE DISCOVERY RULES
IS A 6TH AMENDMENT RULING WHICH APPLIES JUST AS WELL IN KOS Y' ALL LICK, IT
WAS VOLUNTARILY TURNED OEFRP TO THE STATE BY THE EXPERT ITSELF, SO THE PRINCIPLE
UNDER THE 6TH AMENDMENT THAT IS ARTICULATED, AND AGAIN, I'M NOT SUGGESTING
THIS STATEMENT BE TAKEN IN A VACUUM, THAT ANY INCULPATORY EVIDENCE IS PROTECTED
FROM BEING TURNED OVER, YOU KNOW, DEFENDANT COMES IN WITH THE GUN, WITH THE
BLOODY SHOES OR A THIRD-PARTY DOES OR DRAWS A DIAGRAM AND THE DEFENSE GOES
OUT TO THE SCENE AND INVESTIGATES AND REMOVES ONE OF THOSE IETSDZ, ANY OF THOSE
SCENARIOS, BY TAKING POSSESSION OF IT, BY REMOVING IT, BY ALTERING IT, DEFENSE
COUNSEL WOULD BE INTERFEREING WITH THE PROSECUTOR'S ABILITY TO POTENTIALLY ACCESS
IT, HERE THERE WAS NO POSSIBILITY BECAUSE OF WINSTON V LEE, I CAN'T THINK
OF ANY OTHER SCENARIO WHERE YOU WOULD KNOW THAT THERE WAS NO LEGAL POSSIBILITY
AND THAT'S WHY THE RESULT WE'RE PROPOSING IN THIS CASE IS INCREDIBLY LIMITED.
JUSTICE PATTERSON: DO WE KNOW, I MEAN IT SEEMS TO ME THAT
IT WOULD BE VERY STRANGE IF THE SURGEONS OPERATED ON THE BASIS OF A DOCUMENT SIGNED
BY A LAWYER. PRESUMABLY DEFENDANT NOW OUT OF JAIL AUTHORIZED AND DIRECTED
THAT THE SURGEONS PROCEED. AM I CORRECT ABOUT THAT? SCOTT M.
WELFEL: YES. JUSTICE PATTERSON: SO WHEN THERE'S ALL THIS
TALK ABOUT HOW THIS WAS THE DIRECTION OF DEFENSE COUNSEL, BUT GENERALLY DOCTORS
DON'T CHECK WITH THEIR PATIENTS LAWYERS TO FIND OUT IF THEY SHOULD OPERATE, THEY
HAVE A CONSULTATION THAT'S A MEDICAL CONSULTATION WITH THEIR PATIENT AND IT'S ULTIMATELY
THE PATIENT WHO'S AUTHORITY IT IS UNDER WHICH THE SURGERY PROCEEDS. SO THIS
IDEA THAT THIS IS ALL PART OF THE DEFENSE INVESTIGATION, YES, PRESUMABLY, AND I'M
NOT ASKING YOU OR YOUR CO-COUNSEL WHAT HAPPENED BETWEEN LAWYER AND CLIENT,
BUT PRESUMABLY THE ADVICE TO THE CLIENT WAS TO AUTHORIZE THIS. BUT IN THE END
WHAT THE DOCTORS DID IN REMOVING THAT WAS UNDER THE AUTHORITY OF THE PATIENT,
THE DEFENDANT HIMSELF, NOT SOME SORT OF COUNSEL ISSUE THAT YOU MIGHT FIND
WITH AN EXPERT. SO WHY IS -- WHERE IS THE 6TH AMENDMENT LAWYER CLIENT ASPECT OF
THIS? SCOTT M. WELFEL: I MEAN I THINK THAT THERE'S BEEN
NO SUGGESTION THAT DEFENDANT WENT IN FOR THE SURGERY FOR ANY REASON OTHER THAN
AFTER CONSULTATION WITH COUNSEL MADE A LITIGATION CHOICE REGARDING THAT.
JUSTICE PATTERSON: BUT IN THE END THE RETRIEVAL WHICH IN THIS VERY UNUSUAL
CASE IS NOT A RETRIEVAL BY AN INVESTIGATOR WHO CAN GO OUT AND DIG AROUND
A CRIME SCENE, BUT THE RETRIEVAL WENT BY THE AUTHORITY OF THE DEFENDANT HIMSELF,
NOT THE LAWYERS. SCOTT M. WELFEL: WHAT IF DEFENDANT AT DEFENSE
COUNSEL'S INVESTIGATION WEREN'T AND GOT A CAT SCAN AT DEFENSE COUNSEL'S INVESTIGATION
-- I'M SORRY, THEIR ADVICE, THEIR DIRECTION, AND THERE WAS SIMILARLY
LIMITED INFORMATION, PLEASE TURN OVER THE CAT SCAN AFTERWARDS, AND I MEAN THAT WAS THE ONLY PLACE, YOU CAN'T HIRE A PRIVATE SURGEON TO COME TO YOUR HOME WITHOUT
NOT GOING TO BE AVAILABLE,. JUSTICE PATTERSON: I UNDERSTAND
THAT WAS THE WAY IT HAD TO PROCEED, BUT THAT'S WUCH RONE OF MANY ASPECTS
AS TO WHICH I FIND THE EXPERT ANALOGY TO BE REALLY IRRELEVANT.
CHIEF JUSTICE RABNER: MR. WELFEL TRY TO DRAW YOUR ARGUMENT TO A CLOSE AS YOU ANSWER
THE QUESTION, PLEASE. YOU CAN ANSWER THE QUESTION, I DID NOT MEAN TO INTERRUPT
YOUR ANSWER TO THE QUESTION. SCOTT M. WELFEL: I THOUGHT JUSTICE
PATTERSON WAS MAKING A COMMENT -- JUSTICE PATTERSON: NOT
WORTHY OF TAKING UP ADDITIONAL TIME. SCOTT M. WELFEL: I THINK
IT'S CLEAR IT'S NOT DIRECTLY ON PAR WITH WILLIAMS, IT'S NOT AN EXPERT
AGREEMENT, BUT IN WILLIAMS IT WAS AN INTERVIEW WITH A WITNESS AND THEN THE WITNESS'S
IDENTIFICATION OF A PHOTOGRAPH OF THE DEFENDANT, AND SO THE 6TH AMENDMENT
ISN'T LIMITED TO EXPERTS, THE REASON WE'RE TALKING ABOUT EXPERTS HERE IS BECAUSE
OBVIOUSLY THE PURPOSE WHERE WAS TO HAVE THE BULLET EVALUATED BY AN EXPERT FOR THE
CALIBER. AND THERE WAS SOME QUESTION EARLIER IN TERMS OF THIS THIRD-PARTY
GUILT THEORY, YES, LOOKING AT THE DEFENSE BRIEF WHICH YOU DON'T HAVE ACCESS TO
THE DISCOVERY BUT THE DEFENSE BRIEF WHEN THEY CITE THE STATEMENT OF FACTS
IT SAYS IT WAS OBSERVED TWO PEOPLE, ONE OF WHOM WAS ALLEGED TO BE MR. ROSS AND
ONE MUSCLE FLASH SO IT APPEARS THERE IS EVIDENCE THAT MAY SUGGEST IT WAS
THE OTHER INDIVIDUAL WHO HAD THE GUN WITH THE MUZZLE FLASH. CHIEF
JUSTICE RABNER: THANK YOU COUNSEL. SCOTT M. WELFEL: THANK YOU.
THE COURT: MR. CARROLL. BRIAN W. CARROLL:
GOOD AFTERNOON. MAY IT PLEASE THE COURT. MY NAME IS BRIAN CARROLL, I HAVE THE
PRIVILEGE AND PLEASURE OF REPRESENTING THE ASSOCIATION OF CRIMINAL DEFENSE
LAWYERS OF NEW JERSEY TODAY AS FRIENDS OF THE COURT IN THIS MATTER OF CONSTITUTIONAL
IMPORTANCE. THIS COURT HAS LONG STRIVED TO HARM NIEFDZ CONSTITUTIONAL
PROVISIONS WHERE TENSION HAS ARISEN BETWEEN THEM BEING CAREFUL TO CONSIDER ALL PARTS
OF CONSTITUTION AS A WHOLE AND NOT ONE PART AS A SEPARATE AND INDEPENDENT
PROVISION BEARING NO RELATION TO THE REMAINDER. HOWEVER AS IT STANDS AND WITH
ALL DUE RESPECT THE APPELLATE DIVISION'S RULING ELEVATES THE FOURTH AMENDMENT
CONSIDERATIONS WITHOUT GIVING DUE WEIGHT TO THE CRITICAL 6TH AMENDMENT PROVISIONS
AT PLAY HERE, INDEED DO REMEMBER HOLD THAT THE FOURTH AMENDMENT, COOPER
MEDICAL CENTER, WITHOUT GIVING DUE CONSIDERATION TO THE RELATIONSHIP BETWEEN COOPER
AND THE DEFENSE AND MORE CRITICALLY THE CIRCUMSTANCES GIVING RISE TO THAT
RELATIONSHIP SIGNIFICANTLY THREATENS THE GUARANTIES OF THE 6TH AMENDMENT. AS
THIS COURT HAS LONG RECOGNIZED AND AS MY PREDNISONE SEVERS HAVE ALREADY EMPHASIZED
THE PRESERVATION OF LIBERTY THROUGH EXERCISE OF THE 6TH AMENDMENT RIGHT
TO COUNSEL IS AMONG THE MOST SACRED AND SENSITIVE OF RIGHTS. THE RIGHT TO A THOROUGH
DEFENSE INVESTIGATION IS ALSO APART OF THAT RIGHT TO COUNSEL.
CONCERNS OVER ENCROACHMENT ON THESE CONSTITUTIONAL SAFEGUARDS ARE HEIGHTENED
WHEREAS HERE IT'S NOT POSSIBLE FOR DEFENSE COUNSEL TO PORMENT NECESSARY ASPECTS
OF HER INVESTIGATION AND TO T THEREBY MOUNT A FULL AND EFFECTIVE DEFENSE FOR HER
CLIENT WITHOUT THIRD-PARTY ASSISTANCE OF A HIGHLY SPECIALIZED OR TECHNICAL
NATURE ACTING AT HER DIRECTION. UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE --
JUSTICE PATTERSON: LET ME PAUSE YOU FOR A MOMENT.
DID THE DOCTORS PERFORM THE SURGERY AT THE DIRECTION OF DEFENSE COUNSEL?
BRIAN W. CARROLL: I BELIEVE UNDER THE RECORD THERE IS SOME
SUGGESTION THAT THERE WAS -- THAT THERE WERE COMMUNICATIONS BETWEEN COUNSEL AND
COOPER, I'M NOT SURE THE EXTENTS OF THE UNDERSTANDING THERE.
JUSTICE PATTERSON: LAWYERS, AND I HAVE THE GREATEST RESPECT FOR OUR PROFESSION,
BUT DO LAWYERS HAVE THE AUTHORITY TO DIRECT DOCTORS TO OPERATE ON PATIENTS?
AND IF SO, WHAT'S THE SOURCE OF THAT? BRIAN W. CARROLL: SO I THINK
THAT'S THE PROBLEM THAT I'M ABOUT TO GET INTO, IF I MAY. JUSTICE
PATTERSON: SURE. BRIAN W. CARROLL: AND WE CAN COME BACK TO THE
QUESTION IF IT STILL ARISES. UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE DEFENSE
COUNSEL COULD NOT HAVE EXTRACTED THE AT ISSUE PROJECTILE HERSELF OR WITH THE
HELP OF ANY OTHER PERSON OR ENTITY NOT SUBJECT TO THE REPORTING REQUIREMENT OF
N.J.S.A. 2C 58-8 BECAUSE OF THE SEPARATE STATUTE THAT EXISTS N.J.S.A. 45:14 B-4
WHICH BARS UNAUTHORIZED PRACTICE OF MEDICINE AND SURGERY IN THIS CASE.
SO AS SUCH COUNSEL IS SEEMINGLY LEFT WITH NO CHOICE BUT TO EITHER INSTRUCT HER
CLIENT TO LEAVE THE JURISDICTION, SOMETHING THAT WE WOULD SUBMIT NO
DEFENDANT NOR DEFENSE COUNSEL SHOULD BE FORCED TO HAVE TO DO, OR INSTEAD ENGAGE
A LICENSED MEDICAL PROFESSIONAL OF THE STATE TO AID HER INVESTIGATION INTO THIS
POTENTIALLY ASK CULL PAP TOWER -- JUSTICE PATTERSON: DID
THE LAWYER RETAIN THE DOCTOR, BASED. CHIEF JUSTICE RABNER:
BASED ON THE RECORD WE HAVE IN THIS CASE. BRIAN W. CARROLL:
I THINK THAT'S A DISPUTED FACT BETWEEN THE TWO PARTIES, I THINK THE DEFENSE WAS
UNTHDZ THE IMPRESSION THAT THERE WAS POTENTIALLY MORE OF AN AGREEMENT THAN
THERE WAS, BUT I DON'T -- THAT'S -- JUSTICE PATTERSON: ALL I'M SAYING
IS THIS IS NOT A LAWYER RETAINING A DOCTOR TO TESTIFY, THIS IS A LAWYER
RETAINING A DOCTOR TO OPERATE ON AN ADULT, AND I MAY BE MISSING SOMETHING HERE,
BUT MY UNDERSTANDING OF THE AUTHORITY GRANTED TO DOCTORS TO PERFORM MEDICAL
TREATMENT AND PROCEDURES ON PEOPLE, INCLUDING SURGERY, THAT THE AUTHORITY COMES
FROM THE PATIENT, NOT FROM A THIRD-PARTY. SO WHEN YOU SAY THIS WAS A DOCTOR RETAINED
BY COUNSEL, AND THIS IS ALL PART OF THE INVESTIGATION, IT JUST DOESN'T MAKE
SENSE TO ME, THAT'S ALL I CAN -- AND I COULDN'T FIND IN THE RECORD ANY INDICATION
THAT THAT ACTUALLY HAPPENED. BRIAN W. CARROLL: SO OUR POSITION
IS THAT COOPER IS ESSENTIALLY A QUINTESSENTIAL NECESSARY INTERMEDIARY
OR AGENT OF THE DEFENSE, TO WHOM COURTS HAVE LONG EXTENDED THE WORK PRODUCT
PROTECTIONS WE'VE BEEN TALKING ABOUT BEFORE AND THE ATTORNEY/CLIENT PRIVILEGE.
JUSTICE WAINER APTER: AGAIN, THAT GOES TO REPORTS AND WRITINGS,
NOT TO PHYSICAL EVIDENCE OF A CRIME. BRIAN W. CARROLL: WE
THINK THAT THE ELEMENT OF NECESSITY COUNSELS IN FAVOR OF FINDING -- OF EXTENDS
GO THE PROTECTIONS A LITTLE BIT FURTHER UNDER THE UNIQUE CIRCUMSTANCES OF
THIS CASE. THE APPELLATE DIVISION GOT INTO A BIT OF A DISCUSSION AS TO WHETHER
DEFENSE COUNSEL ASSUMED THE RISK THAT THIS WOULD ULTIMATELY END UP IN BY
CONSULTING COOPER MEDICAL CENTER THAT THIS WOULD END UP IN THE HANDS OF THE STATE.
WE WOULD SUBMIT THAT THE ASSUMPTION OF THE RISK DOCTRINE WHICH RESTS ON THE
PRINCIPLES THAT WHEN INFORMATION IS RELAYED TO A THIRD-PARTY VOLUNTARILY THE PERSON
RELAYING THAT INFORMATION ASSUMES THE RISK THAT IT WILL REACH THE EARS OF THE
GOVERNMENT. WHAT WE'RE SAYING HERE IS UNDER THE UNIQUE CIRCUMSTANCES OF THIS CASE
DEFENSE COUNSEL HAVE NO REASONABLE ABILITY TO PROVIDE FOR AN ALTERNATIVE MEANS
OF EXTRACT GO THE BULLET RAISING A LEGITIMATE QUESTION AS TO WHETHER COOPER THE
SO-CALLED THIRD-PARTY WAS CON SILTED VOLUNTARILY OR OUT OF SHEER NECESSITY,
AGAIN, IN LIGHT OF THE TECHNICAL NATURE OF THE SKILLS NEEDED TO AID THE DEFENDANT
INTO THE INVESTIGATION OF THE POTENTIALLY EXCULPATORY LEAD DEFENSE COUNSEL IS
RNECESSARILY HAS TO ENLIST THE HELP OF COOPER, AND THAT'S WHERE WE THINK
THAT THE TWO DIFFERENT AMENDMENTS ARE CONFLICT IT'S. JUSTICE
SOLOMON: THERE'S SOMETHING I DON'T UNDERSTAND ABOUT THAT POSITION, THE STATE
KNEW ABOUT THE BULLET, KNEW THE BULLET WAS IN THE DEFENDANT AND HAD ALREADY
REQUESTED THAT THEY BE PROVIDED WITH THE EVIDENCE TO EXAMINE FOR WHATEVER REASON.
SO WHETHER THEY WERE COMPELLED BY STATUTE OR NOT, THE STATE ALREADY KNEW
IT EXISTED AND ALREADY HAD REQUESTED ACCESS TO IT. THE QUESTION I THINK OR CONCERN
THAT YOU'RE RAISE BEEN OR DISCUSSING IS THE ENTER RELATION BETWEEN THE FOURTH
AND THE SIXTH AMENDMENTS. NOW DOES ANYTHING ABOUT THIS CIRCUMSTANCE
ASSUMING THAT THE APPELLATE DIVISION GOT IT RIGHT IN ANY WAY AFFECT THE DEFENDANT'S
ABILITY OR RIGHT TO INVESTIGATE? THAT IS TO HAVE AN EXPERT LOOK AT THE BULLET,
TO OBTAIN THE BULLET, HOW DOES THE FACT THAT THE STATE WILL THEN HAVE A CHANCE
TO HAVE IT EXAMINED BY AN EXPERT IN ANY WAY INHIBIT THE DEFENDANT'S ABILITY TO
INVESTIGATE? BRIAN W. CARROLL: I'M SORRY, WOULD YOU MIND
JUST REPEATING? JUSTICE SOLOMON: HOW DOES, ASSUMING THE
APPELLATE DIVISION WAS RIGHT AND THAT THERE'S AN OBLIGATION TO PROVIDE THE
BULLET TO THE STATE TO EXAMINE TO DO SO WHATEVER, HOW DOES THAT IN ANY WAY UNDERMINE
THE 6TH AMENDMENT RIGHT, THAT IS THE ABILITY OF THE DEFENDANT TO
INVESTIGATE AND PREPT A DEFENSE, BECAUSE THEY HAVE THE BULLET, THEY CAN HAVE IT
EXAMINED, THEY CAN DETERMINE WHETHER THERE WAS A THIRD-PARTY INVOLVED THAT
ENDED UP SHOOTING THE DEFENDANT, HOW DOES IN THIS CASE, I GUESS I'M REPEATING MYSELF,
BUT HOW IN THIS CASE WOULD THE APPELLATE DIVISION'S DECISION IF AFFIRMED IN ANY
WAY INHIBIT DEFENSE COUNSEL'S ABILITY TO CONDUCT AN INVESTIGATION?
BRIAN W. CARROLL: WELL WE THINK THAT IT COULD HAVE THE POTENTIAL TO CHILL A DEFENSE
COUNSEL UNDER SIMILAR SET OF FACTS FROM TAKING THAT NEXT STEP, FROM HAVING
THE BULLET. JUSTICE SOLOMON: HOW? WHY? BRIAN W.
CARROLL: IF THEY ARE CONCERNED THAT ULTIMATELY BY ENGAGING, BY HAVING THEIR
DEFENDANT -- THEIR CLIENT RATHER, GO TO THE HOSPITAL TO HAVE THE BULLET REMOVED
THAT THAT'S GOING TO ENDS UP IN THE HANDS OF THE STATE THEY MAY TAKE THEIR CHANCES
AND SAY AND FOREGO A POTENTIALLY EXCULPATORY LEAD.
JUSTICE SOLOMON: THAT'S NOT THE SITUATION HERE, EVERYBODY KNEW THE POLICE WERE
SHOOT, DEFENSE COUNSEL ALREADY ADMITTED, THE SIM SHUN IS THE BULLET IS THE
POLICE OFFICER'S BULLET. THERE'S NOTHING CHILLING HERE, WORST COMES TO WORST IT
TURNS OUT THEY WERE RIGHT, IT'S A BULLET, WORST COMES TO WORST THEY'RE GOING TO
KNOW THAT THE BULLET WAS TAKEN OUT AND TESTED BY THE DEFENDANT, THE DEFENDANT
IS NOT IN A POSITION NOW TO GET UP AND SAY IT WAS A THIRD-PARTY THAT PUT THAT BULLET
IN MY CLIENT BECAUSE THEY KNOW THAT THEY DIDN'T, HOW IN ANY WAY IN THIS CASE
IS THE INVESTIGATIVE RIGHT THAT YOU'RE CONCERNED ABOUT INHIBITED.
BRIAN W. CARROLL: I THINK IT GOES BACK TO THE FACT THAT THE DEFENSE COUNSEL WAS
UNDER THE IMPRESSION, BASED ON WHAT HAD TRANSPIRED IN THE CASE PRIOR, THAT
IF THIS BULLET WAS TO COME OUT, WAS TO BE TAKEN OUT AT HER DIRECTION, IT WAS INDICATED
ED THAT IT WOULD BE CONSIDERED SOME SORT OF RECIPROCAL DISCOVERY, WHEREBY
IF IT TURNED OUT TO BE HELPFUL TO HER CASE AND SHE WAS GONE BEING TO USE IT AT
TRIAL, SHE WOULD HAVE TO TURN IT OVER. BUT THE FACT THAT ULTIMATELY IT BECAME
A FOURTH AMENDMENT ISSUE, SHE WAS -- I WON'T SAY THAT SHE WAS MISLED IN
ANY WAY, BUT I THINK THERM POTENTIALLY UNDER THE ASSUMPTION THAT TAKING THIS,
RUNNING DOWN THIS LEAD AND DOING THE THOROUGH INVESTIGATION, THAT THE 6TH
AMENDMENT GUARANTIES A CLIENT WOULD BE PROTECTED AND IT WOULD -- THE FRUITS OF THAT
INVESTIGATION WOULD BE PROTECTED. JUSTICE SOLOMON: THE ONLY
WAY THAT THAT IN ANY WAY EFFECTS THE DEFENSE COUNSEL'S RIGHT TO INVESTIGATE
IS IF THE INTENTION WAS TO SAY THAT IT WAS A BULLET FROM ANOTHER PERSON, NOT A
POLICE OFFICER OR THE DEFENDANT. THAT WOULD SUPPORT THE DEFENSE IF THAT
ARGUMENT IS MADE, BUT IF THEY HAVE THE BULLET AND THEY KNOW IT'S NOT, IT'S FROM
THE POLICE OFFICER, THEN THAT ARGUMENT CAN'T ETHICALLY BE MADE. THEY CAN'T
MISREPRESENT TO THE COURT WHAT THEY KNOW TO BE UNTRUE. SO IN THIS CASE, UNDER THE
FACTS OF THIS CASE AND I CAN'T IMAGINE IN ANY OTHER CASE, I CAN'T IMAGINE, I
CAN'T THINK OF IT, HOW IN THE WORLD IS THE RIGHT TO INVESTIGATION AND THE 6TH AMENDMENT
THAT WE'RE TALKING ABOUT AND THE FOURTH AND SIXTH CLASHING, HOW DOES THAT IN
ANY WAY HURT THE DEFENDANT'S RIGHT TO INVESTIGATE? ALL RIGHT, I'M GOING TO
STOP ASKING THAT QUESTION, MAYBE YOU COULD ANSWER IT ONE MORE TIME AND I'M GOING
TO STOP ANSWERING IT AFTER THAT. BRIAN W. CARROLL: I WILL
I GUESS RELY ON MY INARTFULLY STATED ANSWER. CHIEF JUSTICE
RABNER: YOU SAID EARLIER THAT IT WAS THE ATTORNEY THAT DIRECTED THE SURGERY, YOU
MEANT RECOMMENDED, NOT DIRECTED I TAKE IT. BRIAN W. CARROLL:
YES, CORRECT. CHIEF JUSTICE RABNER: AND THAT GOES BACK TO YOUR
COLLOQUY WITH JUSTICE PATTERSON AS WELL. BRIAN W. CARROLL: YES.
CHIEF JUSTICE RABNER: HOW DOES THE STATUTE THAT SAYS THERE IS
NO PRIVILEGE FOR THE EXPERT, FOR THE PHYSICIAN HERE, AS TO INFORMATION WHICH THE
PHYSICIAN IS REQUIRED TO REPORT TO A PUBLIC OFFICIAL AFFECT OUR ANALYSIS?
BRIAN W. CARROLL: THE STATUTE? CHIEF JUSTICE
RABNER: 2A KWOER ARE A-22.5 SAYS THERE'S NO DOCTOR PATIENT PRIVILEGE IN A SITUATION
"WHERE THE PHYSICIAN OR THE PATIENT IS REQUIRED TO REPORT TO A PUBLIC
INFORMATION -- PUBLIC OFFICIAL DO THE DO THE DO THE CERTAIN INFORMATION LIKE WE HAVE
HERE. HOW DOES THAT BEAR ON THE STRENGTH OF YOUR ARGUMENT. BRIAN
W. CARROLL: SO WE WOULD SUBMIT THAT ANY ETHICAL LEGAL OBLIGATIONS TO ULTIMATELY
TURN OVER THE BULLET AT THE END OF THE DAY TO THE OTHER SIDE IS BEYOND THE
SCOPE OF WHAT OUR PRESENTER FOCUS WAS ON TODAY, AS A FRIENDS OF THE COURT.
CHIEF JUSTICE RABNER: OKAY. JUSTICE NORIEGA: COUNSEL,
DOES THE DEFENSE HAVE AN OBLIGATION TO TURN THE BULTD OVER IF THIS HADN'T
BEEN REVEALED TO THE STATE AND COOPER DELIVERED IT TO THE DEFENSE ATTORNEY, AT SOME
POINT DOWN THE ROAD ARE THEY OBLIGATED TO TURN IT OVER TO THE STATE, BASED ON
RULES OF PROFESSIONAL CONDUCT, SO AT SOME POINT DOWN THE ROAD --
BRIAN W. CARROLL: I THINK THAT WAS THE ANSWER I WAS GIVING THE CHIEF JUSTICE,
I'M NOT SURE WHETHER I WAS ANSWERING YOUR QUESTION OR I WAS MISINTERPRETING
TO WHAT JUSTICE NORIEGA IS SUGGEST GO, I DO THINK THERE IS A PROFESSIONAL OBLIGATION
TO TURN OVER EVIDENCE THAT IS LEGAL EVIDENCE OF A CRIME, OUR FOCUS TODAY
DIDN'T GET INTO THAT -- JUSTICE PATTERSON: YOU'RE NOT SPEAKING TO
THAT ON BEHALF OF THE A C L -- BRIAN W. CARROLL: YES, SO WE
TAKE NO POSITION ON THAT. THE COURT: ALL RIGHT. THANK YOU.
ANY FURTHER. BRIAN W. CARROLL: NO. THE COURT:
THANK YOU. MISS SULLIVAN. MAURA M. SULLIVAN: THANK YOU, YOUR HONORS,
UNLESS THE COURT HAS ANY IMMEDIATE QUESTIONS I'D LIKE TO ADDRESS SOME
ARGUMENTS RAISED BY THE DEFENSE THIS AFTERNOON, THE FA FOURTH AMENDMENT IS KNOLL
IS A RED HERRING IN THIS CASE, IT IS THE OATH ISSUE IN THIS CASE, THIS IS
A CASE THAT CALLS FOR A STRAIGHTFORWARD FOURTH AMENDMENT ANALYSIS, THE PROJECTILE
IN THIS CASE PRE EXISTED ANY INVESTIGATION, THE PHYSICAL EVIDENCE THAT
RELATED TO A CRIME, THE STATE PROPERLY APPLIED FOR A SEARCH WARRANT OF A THIRD-PARTY,
AND THE TRIAL COURT NEEDED TO DETERMINE WHETHER THERE WERE PROBABLE CAUSE.
THE TRIAL COURT HOWEVER WRONGLY INTERJECTED DISCOVERY RULES WHICH WERE JUST SIMPLY
INAPPLICABLE IN THIS CASE. THE PROJECTILE IS NOT A FRUIT OF THE DEFENSE'S
INVESTIGATION, IT'S EVIDENCE RELATED TO A CRIME. AND THIS IS NOT WORK PRODUCT,
THE ATTORNEY DID NOT CREATE THIS EVIDENCE. AS TO THE ISSUE
OF WHERE THE EVIDENCE IS AND WHERE WE STAND NOW, THE EVIDENCE IS IN THE HANDS OF
A THIRD-PARTY, THE DEFENDANT WAS NOT COMPELLED TO DO ANYTHING, HE ELECTED
TO HAVE THIS PROCEDURE. INGOING BACK TO THE PROCEDURAL HISTORY INVOLVED IN THIS CASE,
THE MECHANISMS IN WHICH THE STATE SOUGHT TO OBTAIN THIS EVIDENCE MATTERS
AND WHO IT WAS DIRECTED TO MATTERS. WE WERE NOT FILING A MOTION TO COMPEL THE
DEFENDANT OR THE DEFENSE TO DO ANYTHING. WE FILED A SEARCH WARRANT, AN
APPLICATION FOR A SEARCH WARRANT ON A THIRD-PARTY. GOING BACK TO THE QUESTIONING
EARLIER THIS MORNING, COOPER DID HAVE AN OBLIGATION UNDER THE STATUTE TO REPORT
THE GUNSHOT WOUND AND I'LL RELY ON THE PLAIN LANGUAGE IN THAT STATUTE AND THAT
IT PROPERLY DID SO IN THIS CASE. IN LOOKING AT THIS CASE
AS ALMOST AN ISSUE OF WHERE WE ARE NOW TAKING ASIDE ALL OF THE HYPOTHETICALS
THAT CAN BEING INVOLVED IN THIS CASE AND WHAT IS ACTUALLY PRESENTED BEFORE THE
COURT, IF LOOKING AT IT IN ALMOST AS A CASE OF REMEDY, WE WOULD SUBMIT THAT
IT'S NOT A CASE OF THE EXCLUSIONARY RULE BECAUSE AGAIN COOPER IS A THIRD-PARTY,
IT'S NOT AN ARM OF THE STATE AND ESSENTIALLY THE DEFENSE IS SEEKING TO
SUPPRESS EVIDENCE IN THIS CASE AND NOT AN ALLOWING THE STATE TO OBTAIN EVIDENCE
IN THE CASE, BUT UNDER OUR ARGUMENT THE DEFENSE IS NEVER GOING TO BE PRECLUDED
FROM THE EVIDENCE. WE WOULD SUBMIT THAT IN THE NORMAL COURSE THE STATE
SHOULD BE ABLE TO APPLY FOR THE SEARCH WARRANT, IF GRAFRNLTED WE SHOULD BE ABLE TO
OBTAIN THAT PROJECTILE, TEST IT, WE WOULD MAKE THOSE RORLTHS AVAILABLE TO
DEFENSE COUNSEL AND WE'D MAKE THE BULLET AVAILABLE TO DEFENSE COUNSEL. WE ARE NEVER
GOING TO PRECLUDE THE DEFENDANT FROM THE PROJECTILE BUT UNDER THEIR ARGUMENT
AND IN USING THE 6TH AMENDMENT TO TRY TO SHIELD THE EVIDENCE, THEY'RE TRYING TO
PRECLUDE THE STATE. CHIEF JUSTICE RABNER: SO CAN YOU DEAL
DIRECTLY WITH THE ARGUMENT THAT MISS MASTELLONE WAS ADVANCING THAT THE ONLY REASON
YOU HAVE THE OPPORTUNITY TO CONSIDER GETTING THIS EVIDENCE IS BECAUSE THE DEFENSE
ATTORNEY SAID I WANT THIS FOR PURPOSES OF OUR INVESTIGATION, WE WANT TO
FURTHER IT, MY ADVISE AS COUNSEL IN PREPARING FOR TRIAL IS THAT THIS SURGERY BE
DONE SO THAT WE CAN GET ACCESS TO IT. DOES THAT CLOUD THE ISSUE AND MAKE
THE MORE THAN SIMPLY A FOURTH AMENDMENT QUESTION? MAURA M.
SULLIVAN: IT DOESN'T BECAUSE OF WHERE THE BULLET ACTUALLY IS NOW AND IT'S IN THE
HANDS OF A THIRD-PARTY WHICH WE APPLIED FOR A SEARCH WARRANT TO OBTAIN.
CHIEF JUSTICE RABNER: RIGHT, BUT IT WOULDN'T BE THERE, IS
THE ARGUMENT, BUT FOR COUNSEL'S ADVICE IN FURTHERING A DEFENSE INVESTIGATION.
CAN YOU ADDRESS THAT ARGUMENT? MAURA M. SULLIVAN: SO I DON'T
THINK THAT IT CHANGES THE NATURE OF THE ITEM OF WHAT IT IS ACTUALLY THAT
THEY SOUGHT TO OBTAIN, WHICH IS A PROJECTILE, A BULLET, A PIECE OF EVIDENCE THAT
ORIGINATED ON THE NIGHT OF THE CRIME. AND WHILE THEY TOOK THE EFFORTS TO GO GET
IT AND NOW IT IS ACCESSIBLE, IT'S ACCESSIBLE IN THE HANDS OF A
THIRD-PARTY, AND AGAIN U-IT HASN'T CHANGED WHATSOEVER JUST BECAUSE THE DEFENSE IS
THE ONES WHO WENT TO GO GET IT. IT'S STILL A PIECE OF EVIDENCE RELATED TO A
CRIME. JUST THE FACT THAT THE DEFENSE SOUGHT TO OBTAIN IT DOESN'T CHANGE THE NATURE
OF WHAT EXACTLY IT IS. JUSTICE WAINER APTER: WHAT ABOUT
SO IS THE FACTS THAT IT'S IN THE HANDS OF A THIRD-PARTY NECESSARY TO YOUR
ARGUMENT, SO FOR EXAMPLE COOPER HOSPITAL HAD INFORMED YOU BUT THEN HANDED THE BULLET
OVER TO DEFENSE COUNSEL, YOU'RE SAYING YOU COULD NOT GET A SEARCH WARRANT
TO GET THE BULLET FROM DEFENSE COUNSEL, YOU CAN ONLY GET THE SEARCH WARRANTS FROM
A THIRD-PARTY. MAURA M. SULLIVAN: NO, WE CAN ALSO GET IT FROM
DEFENSE COUNSEL OR DEFENDANT, BUT I THINK IN THE FACTS THAT ARE ACTUALLY BEFORE
THE COURT I THINK IT'S IMPORTANT THAT IT'S A THIRD-PARTY JUST ALSO TO DISTINGUISH
THAT THE 5TH AMENDMENT ISN'T AT PLAY HERE, THERE'S NO MOTION TO COMPEL, THERE'S
NO IMPLICATIONS OF THE 5TH AMENDMENT IF THE DEFENDANT IS THE ONE RESPONDING OR
GIVING OVER THAT BULLET, MIG TO IMPLICATE THAT, AS WELL AS THE 6TH AMENDMENT IS
NOT RELEVANT HERE, IT'S STRAIGHT FOURTH AMENDMENT THIRD-PARTY, BUT EVEN IF IT
WASN'T IN THE THIRD-PARTY, YES, WE WOULD BE ABLE TO OBTAIN IT BY SEARCH WARRANT.
JUSTICE FASCIALE: WOULD APPLICATION OF OUR STATE CONSTITUTION
ARTICLE 1 PARAGRAPH 7 CHANGE ANYTHING? MAURA M. SULLIVAN:
UNDER THE -- IN THE STATE. JUSTICE FASCIALE: YES.
MAURA M. SULLIVAN: I DON'T THINK IT'S IMPLICATED, I THINK IT GOES STRAIGHT
BACK TO THE FOURTH AMENDMENT ANALYSIS. JUSTICE FASCIALE:
I'M TALKING ABOUT OUR STATE CONSTITUTION PROTECTION AGAINST UNREASONABLE
SEARCHES AND SEIZURES WOULD AM AN INDICATION OF THAT CONSTITUTIONAL PROVISION IN
OUR OWN STATE CONSTITUTION CHANGE ANY OF THE ANALYSIS. MAURA M.
SULLIVAN: NO, MY ARGUMENT IS THAT IT WOULD EQUALLY APPLY IN THE SAME WAY AND IT'S
A DETERMINATION THAT THE TRIAL COURT HASN'T SEEN REACHED YET BECAUSE IT
ERRONEOUSLY APPLIED OF THES DISCOVERY RULES, SO IT DID NOT ADDRESS PROBABLE CAUSE
YET, IT SHOULD HAVE JUST SIMPLY ADDRESSED THE SEARCH WARRANTS.
JUSTICE PATTERSON: WHAT DO YOU SAY TO THE DEFENSE ARGUMENT THAT IF YOU PREVAIL
AND THE APPELLATE DIVISION'S DECISION IS AFFIRMED, NO DEFENSE COUNSEL WILL EVER
ADVISE A CLIENT TO GET A BULLET OUT OF THAT CLIENT'S BODY IN CIRCUMSTANCES LIKE
THIS. MAURA M. SULLIVAN: THERE'S REALLY NO PREJUDICE TO
THE DEFENSE IN THIS CASE BECAUSE IF WE WERE TO BE SUCCESSFUL IN SAYING THAT THE
TRIAL COURT SHOULD HAVE APPLIED THE FOURTH AMENDMENT ALL ALONG, SHOULD HAVE
DETERMINED PROBABLE CAUSE, IF WE SUCCESSFULLY GET THAT PULT PU BULLET, AGAIN, WE'RE
NEVER GOING TO PRECLUDE THE DEFENDANT FROM THAT BULLET OR INHIBIT THEIR
INVESTIGATION IN ANY WAY, THE DEFENSE IS NOT GOING TO BE PREJUDICED. HOWEVER UNDER
THE TRIAL COURT'S RULING AS IT STANDS RIGHT NOW AND THE ARGUMENTS THAT THE DWEN
IS ADVANCING SAYING THAT THE 6TH AMENDMENT SHIELDS THIS OR THEIR INVESTIGATION
SHIELDS THIS, THEY'RE PRECLUDING THE STATE FROM OBTAINING A PIECE OF EVIDENCE RELATED
TO A CRIME WHICH THE DEFENDANT IS CHARGED WITH. JUSTICE PATTERSON:
IS IT YOUR POSITION THAT YOU HAVE AUTHORITY IN TERMS OF THE TESTING OF THE
BULLET. MAURA M. SULLIVAN: I THINK THAT I AM, BECAUSE IT
SHOULD GO TO US FIRGS, WE ARE RESPONSIBLE FOR THE INVESTIGATION OF THE CRIME, WE'RE
CHARGED WITH MAKING SURE THAT THAT INVESTIGATION IS THOROUGH AND IT'S A
PURSUIT IN THE TRUTH SEEKING PROCESS IN SEEKING DISCOVERY -- NOT DISCOVERY, I'M
SORRY, I DON'T MEAN TO INTERJECT THE DISCOVERY RULES, IN KEEPING WITH THE
FOURTH AMENDMENT ANALYSIS, BUT IT'S A PURSUIT FOR JUSTICE. JUSTICE
PATTERSON: WOULD THE BALLISTICS TEFT GO THAT YOU'RE PROPOSING BE DESTRUCTIVE IN
ANY WAY, IS THE REMEDY THAT YOU'RE SEEKING ULTIMATELY POTENTIALLY COMPROMISING
THE DEFENDANT TO DO WHAT THAT BULLET WHAT HE AND HIS COUNSEL INTEPDED TO DO, WHICH IS
I GUESS ULTIMATELY TO TEST IT. MAURA M. SULLIVAN: I DON'T
-- I THINK THAT IT MIGHT HAVE BEEN A SUGGESTION AT TWO DIFFERENT TIMES IN
THE LOWER COURT RECORD ABOUT THE TRIAL ATTORNEY, THE ASSISTANT PROSECUTOR SUGGESTING
THAT PHOTOGRAPHS CAN BE TAKEN OF THE BULLET TO DEMONSTRATE THAT IT'S MAINTAINING
IT'S INTEGRITY OR THAT IT IS IF THE DEFENSE WOULD SEEK TO SOMEHOW WANT TO
KNOW ABOUT ITS ORIGINAL STATE PRIOR TO TESTING OR ANYTHING, AND I THINK THOSE
PRECAUTIONS COULD BE MADE. BUT AGAIN, WRE HAVEN'T EVEN GOTTEN TO THAT PART OF
THE PROCEDURE OR ANY TYPE OF COURSE IN THAT PART OF THE LITIGATION BECAUSE WE STILL
NEED TO DETERMINE THE PROPER ANALYSIS UNDER THE SEARCH WARRANT.
CHIEF JUSTICE RABNER: QUESTIONS, ANYONE? MAURA M. SULLIVAN: UNLESS
THE COURT HAS ANY OTHER QUESTIONS, THE STATE WOULD REQUEST THAT THE COURT
AFFIRM THE APPELLATE DIVISION'S DECISION. CHIEF JUSTICE RABNER:
THANK YOU. MR. KLEIN? ADAM D. KLEIN: MR. CHIEF JUSTICE
AND MAY IT PLEASE THE COURT, SO I WANT TO START WITH A QUESTION THAT THE
CHIEF JUSTICE ASKED ABOUT WHETHER THE DEFENSE DECISION TO HAVE THE BULLET DISTRACTED
AND LTHS AVAILABILITY CLOUDS THE FOURTH AMENDMENT ANALYSIS AND THEN I WANT
TO TALK ABOUT SIMPLIFYING THIS CASE DOWN TO ITS NUTS AND BOLTS AND THEN VIEWING
THE ARGUMENTS OFFERED IN THAT LIGHT TO MAKE THE CASE MORE EASILY RESOLVABLE.
SO FIRST THE DEFENSE'S ARGUMENT THAT BUT FOR THE STRATEGIC DECISION OF THE DEFENSE
TO HAVE THE BULLET REMOVED IT WOULD NOT BE AVAILABLE OR IT'S THEN PROTECTED
BY THE 6TH AMENDMENT AND ARTICLE 1 PARAGRAPH 10 OF THE STATE CONSTITUTION, THAT
ARGUMENT LACKS FORCE FIRST BECAUSE THE WILLIAMS COURT ALREADY SORT OF
REJECTED THAT ARGUMENT. IN THAT CASE BUT FOR THE DEFENSE INTERVIEWING THE VICTIM,
THE VICTIM WOULD NOT HAVE THEN IDENTIFIED THE DEFENDANT AS THE PERPETRATOR USING
THE PHOTO ARRAY, BUT THEN THIS COURT SAID IN WILLIAMS THE STATE COULD PROPERLY
CALL THE VICTIM TO TESTIFY AT TRIAL AS HAVING IDENTIFIED THE DEFENDANT AS THE
PERPETRATOR USING THE A RAY. SO THAT SORT OF BUT FOR CAUSATION ANALYSIS IS NOT
ONE THAT SHOULD HOLD ANY WEIGHT UNDER THE 6TH AMENDMENT OR UNDER ARTICLE 1
PARAGRAPH 10. THE SECOND POINT HAS TO DO WITH THE ORIGINAL I
KNOW ACCESS IBLT OF THE BULLET AS REFERRED TO BY THE DEFENSE AND THE DEFENSE AMICI.
SO THE ONLY REASON THAT THIS CASE MAY FEEL EVEN SOMEWHAT SIMILAR TO WILLIAMS IS
THAT THERE'S A HIGHLY UNUSUAL FACT. WE HAVE IMPORTANT EVIDENCE THAT WAS
LODGED IN THE DEFENDANT'S BODY AND IT WAS PERHAPS INACCESSIBLE TO THE PROSECUTION
UNLESS THE DEFENDANT FREELY CHOSE TO HAVE THAT EVIDENCE SURGICALLY EXTRACTED.
AND THAT SEEMS SUPERFICIALLY SIMILAR TO THE DECISION IN WILLIAMS IN WHICH THE
EVIDENCE WOULD NOT HAVE BEEN AVAILABLE WERE IT NOT FOR DEFENSE COUNSEL'S
DECISION TO HAVE EXPERT REPORTS MADE OR TO CREATE SUMMARIES OR WITNESS STATEMENTS
WRITINGS. BUT IN REALITY THE INCIDENTAL I KNOW ACCESS ABILITY OF THE BULLET
HERE IS GROUNDED ONLY IN FOURTH AMENDMENT PRIVACY CONCERNS AND ARTICLE 1 PARAGRAPH
7 CONCERNS ABOUT UNJUSTIFIED INTRUSIONS IN ONE'S PERSON THAT ARE COMPLETELY
ORTHOGONAL TO THE 6TH AMENDMENT EFFECTIVE ASSISTANCE CONCERNS THAT UNDERGIRD WILLIAMS.
SO THOSE CASES, WILLIAMS AND MINUTE GO, THEY INVOLVED WORK PRODUCT LIKE
MATERIAL AND AN EXPERT REPORT THAT WERE CREATED BY DEFENSE COUNSEL DURING AN
INVESTIGATION AND THEREFORE THEY WERE DIRECTLY -- THEY DIRECTLY TIED UP 6TH
AMENDMENT CONCERNS, THE SAME ISN'T TRUE HERE. AND THEN IF I CAN JUST
RETURN TO THE POINT I MAKE ABOUT REDUCING THE CASE SORT TO ITS ESSENCE.
JUSTICE PATTERSON: BEFORE YOU GET THERE, DO YOU SEE ANY DAYLIGHT BETWEEN THE
6TH AMENDMENT ARGUMENT THAT THE DEFENDANT IS MAKING AND THE ASSERTION THAT THE
ATTORNEY WORK PRODUCT PROTECTS THIS BULLET. ADAM D. KLEIN:
NO, ABSOLUTELY NOT, THE BULLET IS NOT ATTORNEY WORK PRODUCT P-THE BUMENT IS --
IT IS PHYSICAL EVIDENCE OF A CRIME THAT PRE EXISTED THE DEFENSE INVESTIGATION,
IT PRE EXISTED EVEN THE RETENTION OF DEFENSE COUNSEL, AND IT'S NOT -- IT DOESN'T
SHARE ANY OF THE CHARACTERISTICS OF WORK PRODUCT. JUSTICE
PATTERSON: AND IF THAT IS SO, DOES THAT MEAN THAT THEY HAVE NO 6TH AMENDMENT ARGUMENT
OR IS THERE SOME OTHER ARGUMENT THAT YOU WOULD RECOGNIZE THEMATICLY BASED
ON THE AMD AND THE RIGHT TO A THOROUGH INVESTIGATION THAT IS KNOTS RELIANT ON THE
FACT THAT THE WORK PRODUCT COVERS THIS BULLET. ADAM D. KLEIN:
I DON'T THINK THAT IT'S COVERED AT ALL BY THE 6TH AMENDMENT, I CAN'T THINK OF
ANY REASON WHY 6TH AMENDMENT WOULD EXTEND TO PHYSICAL EVIDENCE LIKE A BULLET,
LIKE THE BULLET IN THIS CASE. IF I COULD JUST BRIEFLY JUST RUN DOWN,
THE BULLET IN THIS CASE IS ANALOGOUS TO THE HANDWRITINGS IN STATE VS. MINK
OH, THAT IS THE EVIDENCE FROM WHICH THE ATTORNEYS DELIBERATIVE PROCESS, THAT THE
ATTORNEY THEN DERIVED SOMETHING FROM. SO BOTH SIDES CAN ACCESS THE HAND
WRITING, BOTH SIDES CAN ULTIMATELY ACCESS THE BULLET, AND THE STATE CAN'T COMPEL
THE DEFENSE TO TURN OEFR OVER WHAT IS DERIVED FROM THE BULLET WHICH IF IT
TURNS OUT TO BE AN INCULPATORY EXPERT REPORT. SO WHAT THE PARTIES ARE REALLY ASKING
FOR IS THE DEFENSE IS SAYING ONLY WE CAN ACCESS THE BULLET, NOTWITHSTANDING THE
FACT THAT THE BULLET IS NOT WORK PRODUCT, ONLY WE CAN ACCESS IT, ONLY WE CAN TEST
IT. THE STATE IS SAYING, THAT HAS A DUTY TO INVESTIGATE CRIME, WE CAN USE A
WARRANT TO GET THE BULLET, WE CAN HAVE AN EXPERT TEST IT, WE'LL TURN THE RESULTS
OVER, BUT THEN THE DEFENSE CAN ALSO ACCESS IT AND TEST IT, AND IF INDEED THAT
REPORT COMES BACK INCULPATORY, THEN THE DEFENSE UNDER WILLIAMS AND MINK OH
WILL NOT HAVE TO TURN IT OVER TO THE STATE. JUSTICE
PATTERSON: I INTERRUPTED YOU AS YOU WERE ABOUT TO SIMPLIFY THE CASE, SO I DON'T
WANT TO IMPEDE YOUR EFFORT TO DO THAT. ADAM D. KLEIN: NO,
I'M ALMOST DONE, SO ESSENTIALLY WHEN IT'S BOILED DOWN THAT WAY, THE DEFENSE'S
6TH AMENDMENT RIGHT TO HAVE AN EXPERT OF HIS CHOOSING ANALYZE THE BULLET AND HAVE
THAT REPORT IF IT GENERATED AND INCULPATORY, HAVE IT TO HIMSELF, THAT IS
SOMETHING THAT WILL REMAIN PROTECTED UNDER THE STATE'S POSITION AND UNDER THE
ONE THAT THE ATTORNEY GENERAL IS PUTTING FORWARDS. THERE WAS
SOME BRIEF TALK ABOUT FUNDAMENTAL FAIRNESS IN THIS CASE. I DON'T THINK THAT'S
A DOCTRINE THAT SHOULD BE APPLIED, I THINK WHAT WOULD REALLY BE UNJUST AS
IT WAS DISCUSSED IN DOUGH VERSUS IMPORTANT WRITS, WOULD BE PERMITTING DEFENSE COUNSEL
TO HAVE FREEDOM FROM DISCLOSURE OF PHYSICAL EVIDENCE TO THE ONE BRANCH OF
GOVERNMENT THAT IS CHARGED WITH INVESTIGATING AND PROSECUTEING CRIME UNDER THE
AUSPICES OF THE 6TH AMENDMENT WHEN THAT EVIDENCE ISN'T WORK PRODUCT, IT ISN'T
PRIVILEGED. I DON'T THINK THIS IS AN APPROPRIATE CASE FOR THE COURT TO PRONOUNCE
ON THE WINSTON STANDARD, THERE'S BEEN SOME TALK ABOUT THAT BUT IT'S REALLY NOT
AT ISSUE IN THE CASE. JUSTICE PATTERSON: WHY DOES THE STATE
GET AUTOMATIC PRIORITY IN THE BALLISTICS TESTING, AND PRESUMABLY HAD NOT
THIS ENTIRE CONTROVERSY BETWEEN THE PARTIES NOT OCCURRED, THE DEFENDANT WOULD
HAVE THE BULLET, WOULD HAVE PERHAPS TESTED IT BY NOW, YOU'VE GOT -- NOT YOU
AS THE ATTORNEY GENERAL, BUT THE STATE IS OBVIOUSLY PROCEEDING BY WAY OF WARRANT,
WHY SHOULD THE STATE AUTOMATICALLY HAVE THE FIRST DIBS ON THIS BULLET IN ORDER
TO DO THE BALLISTICS TESTING. ADAM D. KLEIN: SO, FIRST, IT IS THE
STATE THAT IS CHARGED WITH PROVING THE DEFENDANT'S GUILT BEYOND A REASONABLE
DOUBT. IT'S THE STATE THAT IS OBLIGATED TO INVESTIGATE AND PROSECUTE CRIME. BUT
I DO HAVE SOME SAFEGUARDS IN MIND THAT MIGHT HELP THE COURT TO COME TO A
RULE THAT ACCOMMODATES THE INTERESTS OF THE DEFENSE AND THE STATE.
SO I THINK THAT IF THIS KINDS OF PHYSICAL EVIDENCE, IF THE COURT WERE TO PRONOUNCE
THAT THE DEFENSE WOULD GET THIS EVIDENCE TO TEST FIRST, WHICH IS NOT WHAT
I'M PUTTING FORWARD AS AN ADVOCATE, IT SHOULD BE MANDATORY TO ALERT THE STATE THAT
THE EVIDENCE IS GOING TO BE TESTED AND MANDATORY TO A REPORT THAT THE DEFENSE
HAS THE EVIDENCE, THE STATE SHOULD BE GIVEN A CHANCE TO OBJECT AND SEEK A COURT
ORDER IF THE CASE HAS BEEN INDICTED ON DEFENSE TESTING IF IT HAS A REASONABLE
BASIS TO BELIEVE THAT THE DEFENSE TESTING WILL BE PROBLEMATIC, FOR EXAMPLE,
IF IT WILL DESTROY THE EVIDENCE OR SOMEHOW COMPROMISE IT. THERE SHOULD BE PROPER
HANDLING, PACKAGING, LABELING, STORAGE OF THE PHYSICAL EVIDENCE. AGAIN, THERE
HAS TO BE AVOIDANCE OF DESTRUCTION OF THE EVIDENCE, AND IMPORTANTLY I THINK THE
STATE'S SCOMBERT SHOULD BE ABLE TO BE THERE DURING TESTING OF THE EVIDENCE.
CHIEF JUSTICE RABNER: DOES ALL OF THAT APPLY IN REVERSE.
ADAM D. KLEIN: OF COURSE, YOUR HONOR, YES. CHIEF
JUSTICE RABNER: IF IN THIS CASE THE DEFENDANT HAD BEEN ABLE TO DISLODGED THE BULD
ON HIS OWN AND GIVE IT TO DEFENSE COUNSEL WITHOUT ANY KNOWLEDGE OR INVOLVEMENT
OF THE STATE, WHAT ASPECT OF THE SAFEGUARDS WOULD APPLY THEN. ADAM
D. KLEIN: IN THAT INSTANCE I PRESUME THAT THE STATE WOULD GO, THEY WOULD SEEK A
WARRANT TO GET THAT EVIDENCE, THE DEFENSE COUNSEL WOULD BE UNDER --
CHIEF JUSTICE RABNER: THEY WOULD HAVE TO TELL YOU FOR SFARTDS THEY WOULD HAVE
AN OBLIGATION TO ACH FIRM TIFL TELL YOU WHAT DEFENDANT HAS SHOWN TO DEFENSE
COUNSEL. ADAM D. KLEIN: YES, I THINK DEFENSE COUNSEL HAS
AN OBLIGATION TO REPORT THAT FIRST UNDER THE ETHICAL RULES, SO I THINK ALL OF THESE
SAFEGUARDS WOULD APPLY IF THE DEFENSE WERE TO BE ABLE TO DISLODGE THE BULLET
BECAUSE IT'S IN THE BEST INTEREST OF EVERYONE THAT BOTH SIDES BE ABLE TO TEST IT.
CHIEF JUSTICE RABNER: AND THE FRAMEWORK THAT YOU'RE REFERRING
TO, WHAT ARE RULES OF EVIDENCE DOES THAT APPLY. ADAM D. KLEIN:
IT'S NOT CITED IN MY BRIEF BUT I CAN TELL YOU WHERE ILTHS DRAWN FROM, IF THE COURT
WOULD LIKE, BUT THIS WOULD APPLY TO ANY KIND OF EVIDENCE THAT WOULD UNDERGO
FORENSIC TESTING. CHIEF JUSTICE RABNER: WERE YOU GOING TO
TELL US THE SOURCE. ADAM D. KLEIN: YES. SO THE CRIMINAL JUSTICE
STANDARDS OF THE AMERICAN BAR ASSOCIATION, SECTION 4-4.7. CHIEF
JUSTICE RABNER: THANK YOU. ADAM D. KLEIN: YOU'RE WELCOME, YOUR HONOR.
ADAM D. KLEIN: JUST A FEW VERY QUICK FINAL COMMENTS. THE
STATE I BELIEVE IN RESPONSE TO JUSTICE FASCIALE'S QUESTION, THE STATE IS -- THEIR
PROCESS IS COMPORT GO WITH ARTICLE 1 PARAGRAPH 7 BY OBTAINING THE EVIDENCE
WITH A WARRANT SUPPORTED BY PROBABLE CAUSE AND PARTICULARLY DESCRIBING THINGS THAT ARE
GOING TO BE SEIZED, AND I DON'T THINK IN RESPONSE TO JUSTICE PATTERSON'S
QUESTION THAT THERE'S GOING TO BE ANY KINDS OF CHILLING EFFECT THAT THE COURT SHOULD BE
CONCERNED ABOUT BECAUSE THE DEFENSE SHOULDN'T BE IN A POSITION WHERE
THEY'RE -- WELL I'LL LEAVE IT AT THAT, I DON'T THINK THERE'S GOING TO BE ANY KIND
OF IMPERMISSIBLE CHILLING EFFECT. UNLESS THE COURT HAS ANY QUESTIONS I WOULD
JUST ASK THAT THE COURT FIND THAT PHYSICAL EVIDENCE LIKE A BULLET, THAT IS GENERATED
ON THE NIGHT OF THE CRIME AND NOT BY DEFENSE COUNSEL, IS NOT PROTECTED BY
THE 6TH AMENDMENT OR ARTICLE 1 PARAGRAPH 10, THAT THIS IS A STRAIGHTFORWARD FOURTH
AMENDMENT ANALYSIS, AND TO AFFIRM THE ORDER OF THE APPELLATE DIVISION. THANK YOU.
CHIEF JUSTICE RABNER: THANK YOU. MISS MASTELLONE, BRIEF
REBUTTAL? MONIKA MASTELLONE: THANK YOU. TO BEGIN MY
REBUTTAL I WOULD REALLY LIKE TO ANSWER JUSTICE SOLOMON'S QUESTION. THE QUESTION
PERTAINED TO, YOU KNOW, WHAT IS REALLY THE PREJUDICE HERE. AND THE ANSWER IS THAT
THE RECORD BELOW INDICATES THAT THE PREDECESSOR ATTORNEY RELAYED THAT
THERE WERE TWO BULLET WOUNDS IN EACH HIP, ONE IN EACH HIP AND THEN ONE IN THE ARM,
THE ONE IN THE ARM EXPLODED, THAT'S FROM THE COPS, AND IT WAS SUBMITTED THAT
THE BULLET IN EACH HIP COULD POTENTIALLY BE FROM THE THIRD-PARTY SHOOTER. SO WE HAVE
AN EXPLODED BULLET, WE HAVE A BULLET THAT WAS JUDGE REMOVED AND THEN WE HAVE A
N EMPTY HOLE. JUST BECAUSE THE BULLET THAT'S ULTIMATELY TESTED, EVEN IF IT CAME
BACK AS THE -- A BULLET FROM THE COP'S GUN, FROM THE POLICE OFFICER'S GUN,
IT DOESN'T NEGATE THE DEFENSE, IT DOESN'T NEGATE THE DEFENSE THAT THERE COULD STILL
BE A THIRD-PARTY SHOOTER IT JUST WOULD HAVE ASSISTED US IN DISPROVING, IT
WOULD CERTAINLY SUPPORT THAT THEORY AND IF THE STATE ULTIMATELY GETS THE BULLET
AND IT'S THE POLICE OFFICER'S GUN NOW THEY HAVE EVIDENCE TO DISPROVE THE THEORY
THAT WOOER USING TO DISPROVE THEIR THEORY, SO IT'S ESSENTIALLY THEY'RE NOT
MUTUALLY EXCLUSIVE IS MY POINTER, AND THE PREJUDICE IS NOT JUST IN THIS CASE IN
THAT RESPECT, BUT THE BROADER PREJUDICE IS IT'S IMPOSSIBLE TO CONCEIVE OF
ALL OF THE POTENTIAL SCENARIOS WHERE THE BULLET REMOVED COULD BE INCULPATORY,
ABSOLUTELY INCULPATORY AS OPPOSED TO MAYBE JUST IT DOESN'T HEDGE OUR DEFENSE
OR IT HELPS THE STATE SDPROOUF RDISPROVE OUR DEFENSE AND IN THAT SCENARIO, THE
SCENARIOS WE CAN'T ALL SIT HERE AND THINK ABOUT, THAT'S WHERE THE CHILLING
EFFECT COMES INTO PLAY, BECAUSE IN THIS SCENARIO IT'S REL VAFRNTS BUT IN OTHER
POTENTIAL SCENARIOS NOW YOU HAVE DEFENSE ATTORNEYS THAT MIGHT NOT WANT TO DO
ANYTHING BECAUSE THEY'RE TOO SCARED TO. AND THAT'S REALLY THE CHILLING EFFECT
THAT'S AT PLAY HERE BECAUSE THAT COULD POTENTIALLY EXONERATE OR EXCULPATE
THEIR CLIENT MOVING FORWARD AND ENDS UP IN A CONVICTION THAT DIDN'T NEED TO BE AND
THAT'S NOT ADMINISTRATION OF JUSTICE, SO I HOPE THAT ANSWER JUSTICE SOLOMON'S
QUESTION. GOING TO JUSTICE I THINK IT WAS PATTERSON'S
QUESTION REGARDING THE RETENTION OF THE HOSPITAL. WE DID NOT SPECIFICALLY RETAIN
THE HOSPITAL IN THE TRADITIONAL SENSE, HOWEVER, THAT'S WHERE AGENCY COMES
INTO PLAY. THERE WAS NUMEROUS COMMUNICATIONS AS INDICATED IN THE RECORD BELOW BETWEEN
THE DEFENSE AND THE HOSPITAL, IT WASN'T RESTRICTED TO ONE SPECIFIC LETTER.
BASED ON THOSE NUMEROUS COMMUNICATIONS AS WELL AS THE LETTER, THERE WAS AN UNDERSTANDING
THAT THERE WAS AN AGENCY AND I THINK IT'S WORTH NOTING THAT THE CASE LAW
INDICATES THAT EVEN IF, EVEN IF THERE WASN'T AN OFFICIAL AGENCY, ONCE THE DEFENDANT
AS A UNILATERAL PARTY PERCEIVES THERE TO BE THAT AGENCY THAT THAT'S ENOUGH
FOR THE DEFENDANT TO RELY UPON. SO -- CHIEF JUSTICE RABNER: CAN YOU
TELL US WHERE IN THE RECORD, GIVE US THE CITATIONS PLEASE?
MONIKA MASTELLONE: FOR THAT PRINCIPLE. JUSTICE WAINER APTER: THE
COMMUNICATIONS. CHIEF JUSTICE RABNER: THE COMMUNICATIONS
THAT YOU ALLUDED TO. THE LETTER IS AT D A 18 IF THAT HELPS YOU.
MONIKA MASTELLONE: IT'S IN THE TRANSCRIPT ON PAGE 30 FROM STARTING AT LINE 15 TO
PAGE 31. JUSTICE PATTERSON: THIS IS THE TRANSCRIPT BEFORE THE
TRIAL COURT? MONIKA MASTELLONE: YES. CHIEF
JUSTICE RABNER: WHAT'S THE DATE? MONIKA MASTELLONE: THE DATE IS
SEPTEMBER OF -- SEPTEMBER 7TH OF -- NO, I'M SORRY. SEPTEMBER 7TH OF 2022,
AND I CAN READ THE QUOTE IF YOUR HONORS WOULD LIKE. SO WE HAD MADE ARRANGEMENTS
IN ADVANCE AS REFERENCED IN MY JUNE 9TH, 2020 LETTER TO DR. MOORE OF 17
-- OF COOPER HOSPITAL TO HAVE THE BULLET REMOVED AND BE TURNED OVER TO MY PRIVATE
INVESTIGATOR. WE HAD MANY COMMUNICATIONS WITH THE DOCTOR'S OFFICE AND THE HOSPITAL
AND THEY ALL AGREED, THEY EVEN LET US KNOW AVLT BULLET WAS REMOVED AND WHERE TO
PISHG IT UP, AND IT WASN'T UNTIL MY INVESTIGATOR SHOWS UP TO PICK IT UP THIS
GENTLEMAN IN CHARGE OF SECURITY, MR. I THINK IT WAS MR. CAMPBELL IF MY MEMORY
SERVES ME, I'M JUST CHECKING HIS NAME REAL QUICK, YEAH, HE REFUSED TO TURN IT OVER
AND SAID THAT HE'S CONTACTED THE POUR. CHIEF JUSTICE RABNER:
SO I'M ACCEPTING THAT THAT'S REPRESENTATIONS OF COUNSEL, IS THERE ANYTHING
ELSE IN THE RECORD, ANY OTHER WRITTEN DOCUMENTS ASIDE FROM THE LETTER
ITSELF. MONIKA MASTELLONE: NOTHING IN THE RECORD BELOW BUT
THAT'S WHAT WAS REPRESENTED, YES. JUSTICE PATTERSON: LET ME JUST
EXPAND ON MY QUESTION. I WAS JUST VERY CONFUSED BY THE IDEA THAT A LAWYER
COULD MAKE A DOCTOR, A TREATING PHYSICIAN, AN AGENT IN RENDERING MEDICAL TREATMENT.
YOU WOULD AGREE THAT YOUR CLIENT IS THE PERSON WHO HAD THE AUTHORITY TO SIGN
THE CONSENT FORM AND DIRECT THE DOCTOR TO PERFORM THE SURGERY. AM I CORRECT ABOUT THAT?
MONIKA MASTELLONE: SO, THE DEFENSE COUNSEL CAN'T CALL UP
THE HOSPITAL AND SAY HEY, DO THISHGS BUT IT WAS THE CULMINATION OF FACTORS OF THE
DEFENSE ATTORNEY COMMUNICATING WITH THE CLIENT, THE DEFENSE ATTORNEY
COMMUNICATING WITH THE HOSPITAL, IT WAS IN EFFECT A TEAM, IT WAS A TEAM EFFORT AT THAT
POINT, BECAUSE WITHOUT -- JUSTICE PATTERSON: BUT AS A LEGAL
MATTER, YOU AS A LAWYER, I'M NOT SINGLING YOU OUT, AN ATTORNEY FR A CLIENT
DOES, UNLESS THERE IS A GUARDIANSHIP PERHAPS OR SOME RELATIONSHIP, A FIDUCIARY
RELATIONSHIP, CANNOT DIRECT A PHYSICIAN TO PERFORM SURGERY ON A CLIENT. AM I
RIGHT ABOUT THAT? MONIKA MASTELLONE: CORRECT. BUT WE CAN
DISCUSS IT WITH THE CLIENT. JUSTICE PATTERSON: RIGHT, SO
YOU GOT -- YOU, I'M NOT ASKING FOR YOUR COMMUNICATIONS BUT THE SENSE I GET
IS THAT YOUR CLIENT AUTHORIZED THE DOCTORS TO PERFORM THE SURGERY. CORRECT? AND
I DON'T WANT TO GET INTO ADVICE BUT I'M PRESUMING THERE WAS PROBABLY SOME
ADVICE AND I'M NOT ASKING ABOUT THAT. BUT YOU'RE NOT SUGGESTING THAT THERE WAS
A DIRECT LEGAL RELATIONSHIP BETWEEN YOU AND THESE DOCTORS, ARE YOU?
MONIKA MASTELLONE: YES, BECAUSE -- I AM, BECAUSE I DON'T THINK IT NECESSARILY
HAS TO BE AN OFFICIAL WE ARE RETAINING THIS PERSON, I THINK THAT AGENCY
IS WHAT REPRESENTS THE RELATIONSHIP THERE. AND IT CAN BE THE PERCEIVED RELATIONSHIP
BY THE DEFENDANT THAT WE RELIED UPON. SO I THINK THAT THAT'S A CRITICAL
COMPONENT TO THE ANSWER TO YOUR QUESTION. CHIEF JUSTICE RABNER:
DID THE HOSPITAL RESPOND TO THE LETTER OF JUNG 9TH, 2022, IS THERE A LETTER
IN RESPONSE? MONIKA MASTELLONE: THERE'S NO LETTER IN
RESPONSE BUT I THINK THE PURPOSE OF THE LETTER WAS TO MEMORIALIZE WHAT HAD BEEN
COMMUNICATED AND OBVIOUSLY THEY WERE IN RECEIPT OF IT, THEY EVEN -- THERE WERE
COMMUNICATIONS AFTER THE LETTER WHERE THEY SAID HERE'S WHERE YOU CAN COME
PICK UP THE BULLET, SO, YOU KNOW, IT WASN'T UNTIL I THINK -- I THINK WHAT
SUGGESTED BY THE RECORD BELOW IS THAT THE DOCTORS PERHAPS ARE NOT ON THE SAME
PAGE AS THE SECURITY OFFICER, IT WAS THE SECURITY OFFICER WHO ULTIMATELY TOOK POSSESSION
OF THE BULLET AND MADE THE DECISION TO CONTACT LAW ENFORCEMENT WHO CONTACTED
THE PROSECUTOR'S OFFICE. BECAUSE THAT'S JUST THE POLICY OF THE HOSPITAL WHERE
THE DOCTORS DON'T PUT THE BULLET, YOU KNOW, ON A SHELF, THEY GIVE IT TO
SECURITY TO MAINTAIN CHAIN OF CUSTODY, SO I THINK THAT THAT'S WHERE THINGS WENT
AWRY HERE IS THAT WE HAD AN AGREEMENT WITH THE DOCTORS WHEREAS THE SECURITY OFFICER
WAS DOING HIS OWN THING. CHIEF JUSTICE RABNER: CAN YOU RESPOND
TO THE FRAMEWORK THAT MR. KLEIN OUTLINED, WHAT'S YOUR POSITION ON THAT.
MONIKA MASTELLONE: I'M SORRY, I DIDN'T QUITE UNDERSTAND THE
FRAMEWORK, CAN IT BE SUMMARIZED. CHIEF JUSTICE RABNER: WHY DON'T
YOU GO AHEAD WITH YOUR REBUTTAL. MONIKA MASTELLONE: SO THE
-- I WOULD ALSO LIKE TO JUST BRIEFLY ADDRESS THAT WHETHER -- THERE WAS A
SUGGESTION THAT BECAUSE THE STATE IS NOT SEEKING TO COMPEL THE BULLET, I THINK THAT'S
SORT OF A RED HERRING AS WELL BECAUSE YOU HAVE THE TRIAL COURT ORDER THAT SAYS
THEY CANNOT -- THEY CANNOT HAVE ACCESS TO IT, SO NOW THEY'RE SEEKING A SEARCH
WARRANT, IT'S STILL AN ACT OF COMPULSION AND IF YOU ARE TO ACCEPT THE PREMISE THAT
THIS WAS A DEFENSE ORIENTED INVESTIGATION AND THIS BULLET IS THE FRUITS
OF THAT INVESTIGATION, THEN THE MANNER IN WHICH THEY ARE SEEKING TO COMPEL IT IS
IRRELEVANT, BECAUSE THE 6TH AMENDMENT WOULD PROTECT AND THAT PRIVILEGE WOULD
ENSURE THAT THE BULLET REMAINS WITH THE DEFENSE. I ALSO JUST
WANT TO NOTE THAT I THINK THERE WAS A FURTHER COMMENT MADE ABOUT HOW THIS CASE
IS SIMILAR TO MINUTE GO AND THE HANDWRITING, I THINK THAT THAT'S NOT
NECESSARILY -- I DON'T THINK THAT'S CORRECT, BECAUSE IN MINK GO, THE ACTUAL HAND
WRITING SAMPLES WERE NOT ULTIMATELY USED AT TRIAL, I DON'T THINK IT WAS CONTESTED
THAT THEY COULDN'T BE, AND SIMILARLY IN WILLIAMS, THE -- IT WAS FOUND THAT THE
PHOTOGRAPHS COULD NOT BE USED EITHER. FINALLY I JUST WANT
TO NOTE THAT GOING BACK TO JUSTICE WAINER APTER'S QUESTION EARLIER, IN WILLIAMS
IT DOES SAY EVIDENTIAL MATERIALS OBTAINED IN THE EXERCISE OF THIS PROFESSIONAL
RESPONSIBILITY, MEANING DEFENSE INVESTIGATION, ARE SO INTERWOVEN WITH
PROFESSIONAL JUDGEMENTS RELATING TO A CLIENT'S CASE, STRATEGY AND TACTICS, THAT
THEY MAY BE SAID TO SHARE CHARACTERISTICS OF AN ATTORNEY'S WORK PRODUCT. SO GOING
BACK TO MY ARGUMENT EARLIER ABOUT WORK PRODUCT, IT IS BROADER THAN JUST
WHAT WE MIGHT PERCEIVE BY DEFINITION, THE LITERAL DEFINITION OF WORK PRODUCT, IT'S
SHARING THE CHARACTERISTICS OF, AND THAT'S WHAT WE HAVE HERE, THE CHARACTERISTICS
OF WHAT OCCURRED HERE IS ATTORNEY WORK PRODUCT PRIVILEGE, IT'S AN ATTORNEY MAKING
A DECISION, AN ATTORNEY MAKING A CONSCIOUS LITIGATION CHOICE, ATTORNEY HAVING
NUMEROUS CONVERSATIONS BETWEEN THE CLIENTS AND WHAT WE PERCEIVE TO BE OUR AGENTS,
ANAL THAT UNIVERSE OF THINGS THAT OCCURRED ARE THE EQUIVALENT OR THE
CHARACTERISTICS OF WORK PRODUCT. IT'S ALL COMING FROM THE THOUGHT PROCESSES AND
THE STRATEGIC DECISIONMAKING OF A DEFENSE ATTORNEY'S MIND. AND SO I THINK
THAT THAT'S IMPORTANT AS WELL. AND THERE WAS. CHIEF JUSTICE RABNER:
COUNSEL, WE'RE A LITTLE OVER THAT TWO MINUTES YOU ASKED FOR, SO IF YOU COULD
DRAW YOUR REBUTTAL TO A CLOSE. MONIKA MASTELLONE: I WOULD JUST HE
NOTE THAT WITH REGARD TO MY QUESTION TO JUSTICE SOLOMON THERE IS A CASE
THAT SUPPORTS WHAT I INDICATED WHICH IS COMPANY SEAL LEK AND IN THAT CASE IT DEALT
WITH THE PSYCHIATRIST REPORT AND THE TESTIMONY, EVEN THOUGH THE
PSYCHIATRIST'S REPORT DID NOT SUPPORT THE DEFENSE, IT WAS -- THE DEFENSE COULD STILL
HAVE BEEN PUT FORWARD. SO I THINK THAT AGAIN GETTING TOO MUCH INTO THE NITTY
GRITTY OF THE BULLET ITSELF, IT DOESN'T PRECLUDE THE DEFENSE FROM PUTTING
FORTH ITS DEFENSE, THE CHILLING EFFECT HERE IS WHAT IF THE BULLET DOESN'T SUPPORT
OUR DEFENSE AND NOW, NOT ONLY CAN WE NOT PUT FORTH THE DEFENSE IN THE WAY
WE WOULD HAVE IDEALLY LIKED, BUT NOW THE STATE GETS THE OPPORTUNITY TO DISPROVE
THAT OR TRY TO FURTHER THEIR CASE AGAINST US PROVING THAT WITH A BULLET
THAT WE DECIDED ALL ALONG WE WANTED TO HELP OUR CLIENT. IF HELPING OUR CLIENT
MEANS THE STATE ULTIMATELY GETS TO HURT US, THEN THAT'S THE HURTING EFFECT.
CHIEF JUSTICE RABNER: THANK YOU COUNSEL.