Bailiff: SJC-12752
in the matter of an impounded case.
Justice Gants: Menken, good morning.
-: Good morning, I'm attorney Michelle Menken,
arguing on behalf of the juvenile this morning.
May it please the court.
We're here today because a constellation of footnotes
in this court's decision-
Justice Gants: Those darn footnotes.
Porriges and Mogelinski one and Mogelinski two
observed the potential for misuse of general
as chapter 119, section 72-A
and caution the commonwealth that delay is to be avoided
and upon that the commonwealth bears a burden
to justify delay in that 72A case.
And so here we are in a case of inordinate delay
in preceding against someone who is now an adult
who had a car accident when she was 17 years old,
a tragic event.
But one that bears all the earmarks of juvenile misconduct.
And we're asking the court for guidance
on when and how the accused can put the commonwealth
to its burden
and how the commonwealth's burden is discharged
and when and how the juvenile can be heard in vindication-
-: Can I ask you a question?
I'm so confused.
I thought maybe the commonwealth was basically saying
it could be done pre arraignments
as part of the second prong of the juvenile court judge,
what do you think about that?
Is that right?
Did I get that wrong?
-: I think what the commonwealth,
what I read what the commonwealth to be saying
was that it shouldn't happen pre arraignment,
but that it should happen as part of the second prong
at the post arraignment, 72A hearing.
And of course in this case that's not a possibility.
And our position is that the motion
can be heard prior to arraignment
and should be heard consistent
with what's now a fairly common juvenile court practice
to fully resolve these kinds of dispositive motions-
-: But Justice Lenk's point is well taken.
Before the case could ever get to superior court
the issue of any prosecutorial delay
and the reasons for it would be fully vetted
in the juvenile court transfer hearing.
-: So there's,
the issue of the due process claim
we submit is distinct from the issue
of the public interest
that's litigated as 72A hearing.
And to be sure, in the Porriges footnote
there's an indication that you wanna find out first
whether this is gonna be transferred
before you go through the trouble
of hearing the motion to dismiss on the prosecutorial delay
and we submit that that's actually upside down.
So, the question of whether this case is,
whether jurisdiction is properly invoked under 72A,
potentially forestalls the need to go through
the quite elaborate,
what can be a quite elaborate 72A hearing.
And the factors, the consideration
of the propriety of the invocation of jurisdiction
is really distinct from the way that the issue of delay
plays into the public interest.
So we have a nice description in this court's decision
in JH for example
of what that 72A hearing looks like
and what the appropriate considerations are.
And of course delay is gonna play into questions
of was there really urgency,
has there been time for rehabilitation already?
And the length of the delay is gonna play into that.
But that's distinct from the due process question
of whether the juvenile can be hauled into court at all.
And if that's resolved first,
then you don't have to go through
the probable cause hearing,
which similar to a bindover hearing
for bringing a case from district to superior,
and as well the interest of justice
which is quite-
-: So are you saying that there ought to be a hearing
first pre arraignments regarding the delay?
Ms.Menken: Yes. -: In which the commonwealth
is forced to disclose why it waited so long.
And then if the judge thinks, well,
that was a pretty good reason as far as I was concerned,
then you go on to the 72A hearing,
but do you still take it into account again
on a second prong?
-: Sure.
Of course with the fact
that there's been this passage of time
is going to come into play.
-: The fact of delay, not the reason for the delay?
-: Well,
they're gonna be intertwined I would imagine
in several cases.
So,
-: I mean,
help me with this,
why is there ever an arraignment
in juvenile court under 72A?
It seems as if the only issue for the juvenile court
is not to arraign the person,
but to determine whether the complaint is dismissed,
the delinquency complaint is to be dismissed
and the complaint is to issue in criminal court.
-: So are you asking why couldn't that entire process
take place, basically, prior to arraignment?
-: I don't see why any arraignment would ever happen
in juvenile court under 72A.
Because the decision is whether the complaint
is dismissed or
whether a delinquency complaint is to be dismissed
or whether or not a criminal complaint is to issue,
if criminal complaint is to issue,
then the arraignment would be in criminal court.
-: Well, I think procedurally
there would have to be an arraignment on the complaint
before it was dismissed,
but also the question of-
-: Why?
That's not
what happens in juvenile court a lot,
they often dismiss before the arraignment.
-: Well, I guess that's true.
So I stand corrected on that, I misspoke.
But I think there is a problem
where the issue is the consideration of the public interest.
This court's opinion, that then you do run into
in article 30 problem, I believe,
because the juvenile court
does not have discretion to dismiss prior to arrangement
a valid complaint in the interest of justice.
-: But isn't the issue,
aren't you claiming that a
complaint which is unduly delayed is a violation
of due process and therefore is not a valid complaint?
-: Yes, that is my position
and again is distinct from the question
of whether the public interest warrants prosecution
of this now.
-: I mean the case as you're referring to,
which I happened to write,
didn't address 72A.
Those were just usually delinquency cases.
They were not 72A hearings.
-: So, you know,
the law is that
ordinarily article 30
would prohibit the juvenile court
from making a dismissal in the interest of justice
over the commonwealth's objection.
However, when the legislature has conferred authority
in the judge to make that kind of a determination,
then sure,
that could happen prior to an arraignment as well.
-: Right, the statute expressly permits the judge
to do that under 72A.
-: I'm sorry?
-: The statute under 72A expressly permits a judge
to make that determination.
-: I agree and so I-
-: So let me just make sure I understand, so
do I understand you to say
that what should happen
at this or any other 72A hearing is
and I guess there's a question of which order,
but the judge would need to make a determination
of three things:
one, probable cause,
second, whether there's a due process violation
for undue delay.
Neither of which are discretionary,
both of which would be decisions
either a factor of law.
And then thirdly, if you survive the first two,
the discretionary decision of whether the case
should be discharged or should proceed to a criminal court.
Is that your view
that there were three decisions to make?
-: Yes and I agree with your honor,
that that could all absolutely happen
prior to arraignment.
-: Let me ask one, then on that process
and first of all let me thank you
for people that are listening for the hyperlinks
in your brief they're incredibly helpful, hint.
(all laughing)
Ms.Menken: Thank you.
-: But under your analysis
and I fully understand what you're saying about it,
the harm being the institution of proceedings
and there's a due process interest
and if there's undue delay,
which we said in the footnote,
but you make it a mandatory under your own view
finding by the judge as the chief just laid out
one of those precepts.
Why wouldn't we keep the statute as the statute is
and allow the juvenile to move
or the judge sua sponte to move
for a hearing regarding undue delay.
Because often times the delay is readily explainable.
The person's in the wind,
someone comes forward late, et cetera.
It's not an issue.
Just like in rule 36,
if you had it automatically in superior court,
every case would have a rule 36 hearing, right?
And we don't have that or due process part of delay.
Why should this be special?
Why shouldn't we just leave it to the parties
to litigate this when it does arise?
-: Well, I agree with your honor,
and I think that
if a prima facie showing is made by the commonwealth,
for example, in the application for the complaint
saying you know the complainant just came forward
we've had no prior contact with her,
the delay is easily explained
and then there's not an issue to litigate.
-: But why should we litigate that?
-: I don't know that you would need to litigate that
in every case.
-: I guess that's my point
because juvenile court judges as you all know
are very busy,
why should we give them an extra burden
and the burden should be on the juvenile
or the judge if they see something that's amiss
to raise that issue and litigate and have evidence
if so needed.
-: I don't think we're that far apart.
I mean, I think that our suggestion is
that a showing be made by the commonwealth
as part of the institution of the complaint.
In order to show that this is properly invoked.
And that in requiring the burden to be discharged
in that way,
you actually forestall, potentially, a litigation
because the defense council may look at this,
the judge will look at this,
it's readily explained,
this is not worth and evidentiary hearing-
-: On the papers here, I mean there's a good case for you
'cause on the papers here it's a mystery, right?
-: That's correct.
We know that the commonwealth knew-
-: And there might be a great reason
but we don't know right now.
-: We don't know what it is,
no explanation has been made.
And the commonwealth dodged a number of moments
where they were gonna have to explain the delay.
-: So you agree with Justice Gaziano
that the burden to move for a due process dismissal
is on the juvenile?
-: I think that the judge could do it sua sponte.
-: Okay, but I mean, in the absence of
any reason to do it, you don't need to do it.
-: Yeah that's our position.
-: But once you need to do it,
then the burden is on the commonwealth then
to prove that there was good reason.
Justice Lenk: Is that what she's saying?
Or are you saying that the burden
is on the commonwealth initially to make a showing?
-: I'm saying the burden is on the commonwealth initially
to make a showing
and we suggest in the application for the complaint,
just set forth a fact or two,
explaining the delay.
And then-
-: And then if it's challenged by the defense,
then it becomes again, the commonwealth's burden
to come forth and prove that it was notwithstanding
Ms. Menken: Exactly -: what it says.
-: That's exactly our suggestion.
-: Can you refresh my memory on the framework
on the parameters of the delay?
What would constitute a delay?
-: Well there's a delay inherent in any 72A prosecution.
Because we're talking about a case
where at least a year has gone by
since the child was under 17,
I'm sorry, 18,
until the child was over 19.
So there's always delay,
and the question is whether that delay
was in bad faith for tactical advantage,
or whether it was an inexcusable neglect,
or whether it was a justified delay.
-: Every case that came under 72A
would be subject to this?
-: That's correct,
I mean, so that's why our position,
our suggestion that the commonwealth be
that the application for the complaint
or the initiation of the proceedings
set forth an explanation for why the delay in this case
would potentially
limit the number of motions to dismiss
because if the commonwealth has a burden
to justify the delay in every 72A case,
which it does because there's always delay,
then why wouldn't there be a motion to dismiss
in every 72A case?
Justice Gants: The only issue, oh sorry.
-: I was gonna say, you're talking about the difference
between delay and undue delay?
Ms. Menken: That's correct.
-: What is undue delay here, you're saying?
-: Well, we don't know the reasons for the delay.
-: I understand, but how long is the delay here?
-: Well, the delay is almost two years.
It was almost two years from the incident
to the initiation of the process.
-: Yeah but the first year of it,
you say that's pretty normal,
it's the second year that's the problem.
-: Well it's always gonna be at least a year.
Justice Lenk: Right, right, okay.
Okay I'm sorry.
-: So this will be the first time we've ever
extended this ability to dismiss prior to arraignment
when there is probable cause, right?
The only issue we've got before us
is whether to do this pre arraignment
or post arraignment, right?
So this is the first time we're gonna be saying
you got probable cause here,
but we're still gonna do this prior to arraignment.
-: Actually in Mogelinski two I believe it is, or one.
In Mogelinski,
it was a jurisdictional issue.
And the case was dismissed on the basis of jurisdiction
even though there was probable cause prior to arraignment.
-: So remind me
why there was no jurisdiction there?
-: It was because of the age of the juvenile
after, it was Mogelinski two,
so I think that after the case had gone up
and gone back at that point-
-: But again, that's an age issue not a
here we've got, we have probable cause,
if this were brought in juvenile court
in a timely way,
there certainly should have been an arraignment.
But now that the prosecutions delayed
we're not gonna do it
we're gonna do it pre arraignment.
I'm just trying to understand the logic,
why we create no record here.
I understand in Humberto H
why we didn't wanna create a record
'cause there was no probable cause
of criminal or juvenile delinquent behavior.
Here we have that behavior,
but we're gonna do it prior to arraignment.
-: A major part of the reasoning behind Humberto H
was to protect the child against the consequences-
-: Because the child, there was no probable cause
to bring any proceeding against the child.
-: But of course if there were no jurisdiction
due to age or due to in this case,
the improper invocation
of this unique jurisdictional statute-
-: I get why they can't proceed.
I get why you'd punish the commonwealth
for its bad behavior and delay,
but I don't get why there's no record created.
What's the logic in that?
-: Because it's not, the juvenile shouldn't be saddled
with all of the consequences
of being brought into the system
and having the creation of the CARI
and so forth-
-: But it would have been fine
if they did it in juvenile court.
Again, you would have had an arraignment in juvenile court.
Because there was probable cause.
It wouldn't be an Humberto H case.
It's just now, it's like you get an even better
because the commonwealth has delayed,
now you're
even though there is delinquent behavior,
it's completely
wiped out.
It just seems like we're going one step further
than we've gone before.
-: Well, once upon a time,
I mean that was the way it was in any case
where the child aged out.
There just was no jurisdiction,
there was no case,
and the legislature understood
that the natural maturation process
gave sufficient assurance that this wouldn't be repeated
and nature did the job that the juvenile court
would have done.
So it's not that outlandish to suggest
that in a case where the commonwealth
is trying to manipulate the system
in order to invoke 72A or the commonwealth has been
inexcusably negligent in the initiation of process
that child doesn't get into,
the individual doesn't get hauled into court
for the thing that they did when they were a child.
-: I just wonder what step comes first
in the analysis however
when we're talking about jurisdiction,
so I'd like you to talk to me
a little bit about jurisdiction.
Why isn't it that the issue here
is whether or not this now 19-year-old
should be prosecuted in the superior court?
Whether they should have the jurisdiction.
And assuming probable cause,
one of the questions as to whether or not
this should be a prosecution
in the superior court is the reason for the delay,
because as you've referenced,
there can be all sorts of untoward reasons
that might exist.
Or inexcusable reasons that might exist for the delay.
But why isn't the whole 72A transfer process
really asking the question
of whether they should be jurisdiction
in the superior court to prosecute this case?
-: I mean,
because the question is whether there's jurisdiction at all,
and we know that it goes to the superior court
if there's gonna be jurisdiction at all
because the child is an adult.
And imagine a scenario where-
Justice Lenk: Only if it's in the interest
of justice to do so, right?
-: I'm sorry, I just-
-: But it's only in the interest of justice
to do so.
It only goes to the superior court
if it's in the interest of justice to do so, right?
-: That's correct.
And of course the question of delay
is gonna come into play there,
but it's gonna be different than for example,
imagine a case where the commonwealth deliberately waits,
because it's not a case that qualifies
for youthful offender indictment.
And they think it's too serious to stay in juvenile court
and you know I hate to say that this might ever happen,
but imagine that it did.
And so the commonwealth deliberately undertakes
to charge this child as an adult
and waits the period of time for that to happen.
So now the juvenile is,
so this is improper.
I mean
it's inappropriate.
It's not fair to the child
for the consequences of their child misstep,
their youthful mistakes to follow them into adulthood.
We have policy against that.
So the juvenile bears the consequence
of having been arraigned on a juvenile complaint
of having been made to work with council,
to pull together,
to mount a vigorous defense on probable cause,
and on the interest of justice,
and the juvenile is bearing these consequences
and the only consequence to the prosecution
is that potentially
the length of the delay plays into the question
of whether the prosecution goes forward.
When the consequence to the prosecution should be
that they're not allowed to institute this prosecution.
The juvenile should be
out of fundamental fairness
spared that process.
Justice Gants: Okay, thank you.
Ms. Menken: Thank you.
Justice Gants: Ms. DeLateur, good morning.
-: Good morning your honors,
may it please the court, Monica DeLateur
on behalf of the commonwealth.
Sitting with me at council table
is assistant district attorney Michelle Slade
who is the child prosecutor in the underlying case.
-: Can I ask you a question to begin with?
-: Excuse me?
-: I just wanna be clear about
what the commonwealth's position is.
It seemed to me that below,
the commonwealth is basically saying
oh no, this question of whether or not we delayed,
that gets resolved in superior court,
that doesn't get resolved in juvenile court.
And it seemed to me that in your brief
you were saying, no no it gets resolved in juvenile court,
it just gets resolved in the second prong
of the inquiry, of the transfer hearing.
Is that right?
-: It is consistent with our previous position.
So in our motion to arraign
it's in the commonwealth's appendix 133
we stated that we believe that the merits
of the motion for a prosecution,
to dismiss a prosecution delay
should happen at the transfer hearing.
It's also consistent with our position
in the opposition to the 211.3-
-: Okay, then is it inconsistent with what the judge did?
-: To the extent that Justice Craven here
held that it should not be considered
at the transfer hearing,
I would agree that that is incorrect.
-: Okay, all right that's the source of it, okay.
-: So you say
that the judge should basically decided probable cause
and if there is probable cause, arraign the person,
and then determine whether there is
where the issue was raised
or is a live issue
where there's a due process issue
and then whether in his or her discretion
the case should be dismissed
or a criminal complaint should issue.
-: That is correct.
-: You think that should all happen in juvenile court.
-: Yes, to be clear about where we are,
the transfer hearing does occur in juvenile court
before any particular transfer to the adult court.
-: So I guess the confusion that I have is
why do we proceed with an arraignment
where the matter be invariably be dismissed
in juvenile court?
Either because there is a due process violation
or because the matter should be discharged
or because
it should go on to be tried in superior court.
The case can never be tried in juvenile court,
so I don't know of any situation
in which we arraignment somebody
where we know it's gonna be dismissed.
-: Well I think it's unclear
if we know it would be dismissed.
I think in the absence of statutory authority to do so,
a juvenile court judge would not be able to dismiss
before arraignment on the grounds
on the interest of justice and indeed doing so
would be a violation of separation of powers.
-: Yeah but I guess the question is,
the case can't proceed in juvenile court.
I mean, the transfer hearing has to say
either the case will be dismissed
or it will go to superior court.
So, what is the purpose to have an arraignment
when the case invariably cannot proceed in juvenile court?
-: Well there has to be an arraignment
before the transfer hearing.
The transfer hearing is focused on the offenses
that are charged,
and there wouldn't be any alleged charges at that point
if it had happened before arraignment.
There does need to be an arraignment in juvenile court
before the transfer hearing.
And that arraignment can occur on a legally valid complaint,
just looking at the four corners of the complaint,
and determining whether that is a legally valid complaint
to go forward.
And that can happen in the juvenile court
before arraignment.
-: You're just really talking about the certain parts
of an arraignment,
a question of whether or not council
should be appointed,
whether or not the juvenile understands the nature
of the charges
that's just part of the arraignment process
before you move forward.
-: Correct.
So in terms of there being jurisdiction
under the statute for the case to go forward
and whether there is probable cause.
Those are the two determinations that can be done
before arraignment in a juvenile court.
In Newton N. Confirms that,
Orbin O. And I would suggest Benjamin B.
As the other case as well,
those are the two determinations
that a judge can make at that time.
And I would suggest
in allowing this type of remedy
where we could have a motion dismissed
for prosecution delay before an arraignment,
and I think this suggests what Kafker's point
with this would be allowing a type of remedy
for this particular group of juveniles
that wouldn't actually be available
for any other types of juveniles.
Those are the two determinations
that you can have before arraignment
that could allow for a dismissal of the case.
And this would allow a separate type of remedy
that would only be separate, excuse me,
would only be able to happen
with this particular type of group.
-: I understand that.
Can you express for me again
what is the harm to the commonwealth
proceeding as the juvenile has suggested.
-: So, I would say there's three considerations.
As I've noted, it would be a violation
of separation of powers to allow a judge
to make that determination
to dismiss the case at that point
in the interest of justice.
It would be a judge stepping-
-: Is that really what the judge is doing though?
Isn't the judge doing it
because it's a violation of due process?
-: If you're thinking of in terms of the interest-
-: Let's say it's a lousy delay, lousy reason for delay,
let's say there's a really no good reason for delay.
And the judge hears that
after having seen in the part of the application
that the commonwealth basically has to say
what the reason was, right?
That's what the defendant is suggesting
that they have to first say,
that the commonwealth has to with its initiation papers
has to say what the reason was for the delay, right?
Ms. DeLateur: I'm sorry, I didn't quite understand.
-: It has to say what the reason was for the delay, right?
That would be the first step.
According to the defendant with the procedure
that they're asking for,
the first step would be for the commonwealth
in its initiation papers to somehow say,
well this is the reason for the delay.
Let's say it's a bad reason for delay
and the judge says, okay I'm not gonna put up with that,
it's dismissed,
you're saying that's a violation of article 30?
-: Yes, I am saying that.
Because that would allow the judge to determine
on a legally valid complaint without statutory-
-: Why is it a legally valid complaint
if it's being brought for a lousy reason
for the delay and delay?
-: I'm sorry, excuse me.
-: I'm sorry, I just I'm assuming the worst,
you can see that in the decisions
we did not assume the worst about the commonwealth,
we felt that this was gonna happen very rarely, right?
We thought it was gonna happen very rarely
that there was gonna be an abuse of discretion
by the prosecutor.
-: Yes, I would agree that would happen rarely,
but in terms of figuring out jurisdiction
for a legally valid complaint
that the delay of a prosecution-
-: I guess my question is how do you determine
it's a legally valid complaint.
-: So determination of jurisdiction
and whether there's probable cause,
but under the terms of jurisdiction
it's whether the case can go forward in juvenile court
and the delay of prosecution has nothing to do
with a jurisdiction of whether the case can go forward
and whether it's a legally valid complaint
rooted in probable cause.
-: Essentially what would happen
is we would have a different way of analyzing these cases
from adult speedy trial cases.
There'd be a whole different framework for analysis.
-: I would agree with that
and this court has never found that
either in juvenile court or adult court
that the actions of the prosecutor
were so egregious that it would bar arraignment.
-: I had asked you to give me the reasons
it would be difficult for the commonwealth
or harmful and you told me one,
and then we got,
so can you give me the other two.
Justice Lenk: I'm sorry.
-: No. (laughing)
so that was the first one,
the second one, which I've already iterated as well,
which is that it would be allowing for a different treatment
for a particular group of juveniles
that are charged in this way.
And I think it's also important to consider
what an evidentiary hearing before arraignment
would even look like.
I would point again to Newton N.
Where this court iterated
that there might not even be enough information
for that type of hearing before an arraignment
and indeed before arraignment
before there's even an attachment of a right to council.
I would also note again
that there's no statutory authority,
again to litigate this type of motion.
And if this is allowed,
I do not see a reason why a defendant
would be able to bring any other type of motion
before arraignment as well.
-: So along those lines,
obviously we don't just have statutory speedy trial,
we have constitutional speedy trial issues
in Barker v. Wingo.
And if the speedy trial provision of the constitution
has been violated
then there's due process concerns about that prosecution,
however are there any cases ever suggesting in any context
that where there's a constitutional speedy trial issue
that some proceeding has to happen pre arraignment?
-: I have not seen that before, no,
and I would suggest that the way that the legislature
has created juvenile code
has provided a mechanism in the 72A transfer hearing
for those concerns to be addressed.
But no I have not seen that.
-: Why wouldn't the statutory authority be found
in section 72A itself?
Although it doesn't say anything about a pre arraignment
bad faith delay hearing,
it could be argued that such a hearing is necessary
to effectuate 72A.
Because the legislature's given you this extraordinary
authority as council, prior council has just said,
to bring these cases,
and now you have this authority,
the statute may contemplate having a hearing
to find out whether or not that authority
has been exceeded.
-: So I would suggest that it's consistent
with those two considerations under 72A
in terms of determining whether
there has been prosecution delay.
It's consistent with the interest of justice
and the protection of,
oh excuse me, interest of the public
and protection of the public.
And I would note that the case law under 72A
is very broad in what those considerations are.
It's guided by fundamental fairness,
there are not evidentiary rules
that need to be followed
and indeed that language in terms of interest of the public
and protection of the public are interchangeable.
And essentially the question is whether the juvenile
should be subject to any prosecution at all.
-: Can I?
Are you done, sorry.
Yeah I'm trying to understand
in a case in which you have,
I'm not saying this is the case,
but in case in which you have abused the process,
the commonwealth has delayed, you know, improperly.
Why do we want this post arraignment?
Why do we want the record?
'Cause what we're creating is,
In Humberto H.
I understand the whole logic of having no record,
here we're gonna have no record
is it valuable to have a record in this circumstance?
I'm just trying to understand in a case where
the commonwealth has created a due process violation,
why do we still want an arraignment
and a record in that respect?
Why is that good policy?
I'm not saying it's not,
I just don't know, I'd like to understand that.
-: Yeah, I think there would still need to be
if it's a legally valid complaint,
and that the actions of the juvenile
have supported probable cause,
that can still result in CARI record;
I still think that's appropriate,
and not be able to have judges step in
in terms of when-
-: So we want a CARI record
in a case in which there is probable cause
to a have proceeded in juvenile court,
but the commonwealth
created a constitutional due process violation by delay.
-: I think without statutory authorization
that has to be the procedure going forward.
I will note that-
-: Why does it have to be the,
that's one thing I'm not quite sure I follow.
Why does it have to be the procedure?
-: Well, in terms of if the prosecution has decided
to go forward,
that would be the next step
in terms of there being an arraignment
and that a CARI record would enter.
I will note that in the last-
-: I'm not sure I see how you're on,
you've sort of lost your high horse
by, in my hypothetical,
by behaving improperly.
I'm trying to understand why we still want a record
of that juvenile.
is that to protect the public
that this person, there was probable cause,
and we wanna know about that?
I'm just trying to understand the logic of keeping
a CARI record in that case.
-: Well, I wouldn't suggest that prosecutions go forward
on bad faith,
but I do think that there would need to be a CARI record
in terms of it being a legally valid CARI record.
I think that actually fits in with the purpose of 72A
about not having defendants fall in between the cracks
with these cases.
I will note that if a case does end up being discharged
at the 72A transfer hearing,
there are now mechanisms in place
where a juvenile can expunge and seal their CARI record.
-: Well shouldn't this be the extraordinary case?
We assume that you're gonna act in good faith,
this should be the extraordinary case,
that's what the footnote had contemplated.
-: Well I think, so the-
-: I would hope so.
-: Right.
The footnote in Mogelinski one
and the iteration in Mogelinski two
the commonwealth is not suggesting
that there is not a burden
that they have to show that there is inexcusable delay
or there is an absence-
-: I might agree with you that the juvenile
should be the moving party in this,
but once the issue is raised
and a judge finds his bad faith,
I think the point that Justice Kafker raises
is a good one,
why should the juvenile be saddled with a CARI entry?
-: I think that in this current legislative scheme
that is the procedure going forward
is that if there is
if it's supported by probable cause
and if there's jurisdiction
under the juvenile code to do so,
it would proceed with arraignment and a CARI record.
-: Well, why isn't the answer to the question
well, article 30, there's probable cause, arraignment.
At the transfer hearing there's a determination
of bad faith
and then there's a motion to expunge
because it was a due process violation
and this shouldn't be anything on the CARI.
And you don't have anything on the CARI,
but you don't have to violate article 30 to get there.
-: I would agree with that
that that would be the yes, that would be the procedure.
Is that-
-: Would the next step
would it be possible if there was an allegation
that the police in some way had behaved improperly
to file a motion to suppress pre arraignment?
-: That would not be possible. -: At all?
-: No,
the only two determinations that can come
before arraignment are related to probable cause
and jurisdiction.
Related into the legally valid complaint.
-: Here's my problem,
did we ever have a situation
where a court is acting on something
that the jurisdiction of a court is not assumed?
I mean, in juvenile court under the Humberto H.
procedure,
nobody's questioning the juvenile court has jurisdiction
over that matter, right?
-: Correct, though that situation was Mogelinski two,
would be a situation where there was a question
about jurisdiction before arraignment
in terms of whether the juvenile had been apprehended
after the age of 19
and then also in Wallace W.
Which was a case from last year,
determining section 52
and the definition of first offense.
So those determinations,
those are cases that have occurred before arraignment
in that type of regard.
-: So but I mean, the difference between this case
and Humberto and Orbin and Newton
is that the statute provides for the possibility
of a juvenile court judge having the authority
to dismiss the case,
which you don't have except in 72A.
-: I see my time's expired,
but if I may answer the question.
Justice Gants: Yes, of course.
-: Yes I would agree with that,
that this legislature has provided this as a mechanism.
-: Okay, so I mean it seems that the issue of CORI
is not so much in article 30 issue,
'cause the judge here has the statutory authority
to do what a juvenile court judge would not do
in other circumstances,
but it's a question of, it's a prudential question
of whether a finding of probable cause
should trigger a CARI.
-: Yes, a CARI, not a CORY, I just wanna be clear.
Justice Gants: CARI, you're right.
-: A CARI record yes.
-: But in the statute, correct me if I'm wrong,
it says discharged, not dismissed, right?
-: Yes, it's discharged or it's dismissal of the juvenile
complaint to issue a criminal complaint.
I apologize that I was using those terms interchangeably.
-: Right so the discharge seems to me to be something
that should not trigger a CARI.
Correct?
'Cause in some ways
the defendant, the juvenile may disagree with this,
but the commonwealth should be incentivized
not to bring these
because it could lead to an ultimate discharge.
-: Yes I would agree.
-: Under the interest of justice,
the juvenile court should say,
you have probable cause,
but I'm looking at this thing
and given the passage of time,
the gravity of the offense, et cetera,
the matter's discharged.
-: I would agree with that happens,
it'd be a disincentive for the commonwealth to delay
is that there is a safety valve essentially in place
to ensure that only proper cases can go forward.
Excuse me.
And I would note that in Newton N.
This was partly deciphered that
this could result in an entry on a CARI,
but without the legislature acting
and providing this authority
it would be a violation of separation of powers
to dismiss a legally valid complaint.
Justice Gants: Okay, thank you.
-: All right, thank you very much, your honors.