WEBVTT
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SJC-12752
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in the matter of an impounded case.
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Menken, good morning.
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Good morning, I'm attorney Michelle Menken,
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arguing on behalf of the juvenile this morning.
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May it please the court.
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We're here today because a constellation of footnotes
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in this court's decision-
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Those darn footnotes.
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Porriges and Mogelinski one and Mogelinski two
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observed the potential for misuse of general
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as chapter 119, section 72-A
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and caution the commonwealth that delay is to be avoided
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and upon that the commonwealth bears a burden
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to justify delay in that 72A case.
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And so here we are in a case of inordinate delay
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in preceding against someone who is now an adult
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who had a car accident when she was 17 years old,
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a tragic event.
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But one that bears all the earmarks of juvenile misconduct.
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And we're asking the court for guidance
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on when and how the accused can put the commonwealth
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to its burden
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and how the commonwealth's burden is discharged
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and when and how the juvenile can be heard in vindication-
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Can I ask you a question?
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I'm so confused.
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I thought maybe the commonwealth was basically saying
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it could be done pre arraignments
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as part of the second prong of the juvenile court judge,
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what do you think about that?
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Is that right?
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Did I get that wrong?
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I think what the commonwealth,
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what I read what the commonwealth to be saying
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was that it shouldn't happen pre arraignment,
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but that it should happen as part of the second prong
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at the post arraignment, 72A hearing.
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And of course in this case that's not a possibility.
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And our position is that the motion
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can be heard prior to arraignment
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and should be heard consistent
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with what's now a fairly common juvenile court practice
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to fully resolve these kinds of dispositive motions-
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But Justice Lenk's point is well taken.
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Before the case could ever get to superior court
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the issue of any prosecutorial delay
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and the reasons for it would be fully vetted
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in the juvenile court transfer hearing.
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So there's,
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the issue of the due process claim
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we submit is distinct from the issue
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of the public interest
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that's litigated as 72A hearing.
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And to be sure, in the Porriges footnote
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there's an indication that you wanna find out first
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whether this is gonna be transferred
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before you go through the trouble
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of hearing the motion to dismiss on the prosecutorial delay
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and we submit that that's actually upside down.
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So, the question of whether this case is,
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whether jurisdiction is properly invoked under 72A,
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potentially forestalls the need to go through
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the quite elaborate,
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what can be a quite elaborate 72A hearing.
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And the factors, the consideration
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of the propriety of the invocation of jurisdiction
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is really distinct from the way that the issue of delay
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plays into the public interest.
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So we have a nice description in this court's decision
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in JH for example
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of what that 72A hearing looks like
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and what the appropriate considerations are.
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And of course delay is gonna play into questions
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of was there really urgency,
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has there been time for rehabilitation already?
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And the length of the delay is gonna play into that.
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But that's distinct from the due process question
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of whether the juvenile can be hauled into court at all.
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And if that's resolved first,
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then you don't have to go through
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the probable cause hearing,
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which similar to a bindover hearing
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for bringing a case from district to superior,
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and as well the interest of justice
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which is quite-
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So are you saying that there ought to be a hearing
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first pre arraignments regarding the delay?
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Yes.
In which the commonwealth
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is forced to disclose why it waited so long.
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And then if the judge thinks, well,
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that was a pretty good reason as far as I was concerned,
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then you go on to the 72A hearing,
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but do you still take it into account again
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on a second prong?
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Sure.
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Of course with the fact
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that there's been this passage of time
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is going to come into play.
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The fact of delay, not the reason for the delay?
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Well,
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they're gonna be intertwined I would imagine
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in several cases.
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So,
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I mean,
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help me with this,
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why is there ever an arraignment
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in juvenile court under 72A?
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It seems as if the only issue for the juvenile court
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is not to arraign the person,
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but to determine whether the complaint is dismissed,
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the delinquency complaint is to be dismissed
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and the complaint is to issue in criminal court.
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So are you asking why couldn't that entire process
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take place, basically, prior to arraignment?
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I don't see why any arraignment would ever happen
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in juvenile court under 72A.
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Because the decision is whether the complaint
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is dismissed or
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whether a delinquency complaint is to be dismissed
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or whether or not a criminal complaint is to issue,
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if criminal complaint is to issue,
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then the arraignment would be in criminal court.
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Well, I think procedurally
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there would have to be an arraignment on the complaint
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before it was dismissed,
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but also the question of-
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Why?
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That's not
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what happens in juvenile court a lot,
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they often dismiss before the arraignment.
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Well, I guess that's true.
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So I stand corrected on that, I misspoke.
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But I think there is a problem
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where the issue is the consideration of the public interest.
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This court's opinion, that then you do run into
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in article 30 problem, I believe,
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because the juvenile court
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does not have discretion to dismiss prior to arrangement
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a valid complaint in the interest of justice.
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But isn't the issue,
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aren't you claiming that a
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complaint which is unduly delayed is a violation
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of due process and therefore is not a valid complaint?
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Yes, that is my position
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and again is distinct from the question
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of whether the public interest warrants prosecution
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of this now.
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I mean the case as you're referring to,
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which I happened to write,
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didn't address 72A.
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Those were just usually delinquency cases.
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They were not 72A hearings.
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So, you know,
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the law is that
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ordinarily article 30
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would prohibit the juvenile court
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from making a dismissal in the interest of justice
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over the commonwealth's objection.
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However, when the legislature has conferred authority
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in the judge to make that kind of a determination,
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then sure,
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that could happen prior to an arraignment as well.
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Right, the statute expressly permits the judge
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to do that under 72A.
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I'm sorry?
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The statute under 72A expressly permits a judge
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to make that determination.
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I agree and so I-
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So let me just make sure I understand, so
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do I understand you to say
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that what should happen
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at this or any other 72A hearing is
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and I guess there's a question of which order,
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but the judge would need to make a determination
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of three things:
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one, probable cause,
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second, whether there's a due process violation
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for undue delay.
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Neither of which are discretionary,
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both of which would be decisions
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either a factor of law.
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And then thirdly, if you survive the first two,
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the discretionary decision of whether the case
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should be discharged or should proceed to a criminal court.
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Is that your view
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that there were three decisions to make?
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Yes and I agree with your honor,
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that that could all absolutely happen
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prior to arraignment.
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Let me ask one, then on that process
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and first of all let me thank you
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for people that are listening for the hyperlinks
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in your brief they're incredibly helpful, hint.
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(all laughing)
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Thank you.
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But under your analysis
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and I fully understand what you're saying about it,
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the harm being the institution of proceedings
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and there's a due process interest
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and if there's undue delay,
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which we said in the footnote,
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but you make it a mandatory under your own view
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finding by the judge as the chief just laid out
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one of those precepts.
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Why wouldn't we keep the statute as the statute is
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and allow the juvenile to move
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or the judge sua sponte to move
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for a hearing regarding undue delay.
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Because often times the delay is readily explainable.
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The person's in the wind,
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someone comes forward late, et cetera.
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It's not an issue.
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Just like in rule 36,
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if you had it automatically in superior court,
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every case would have a rule 36 hearing, right?
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And we don't have that or due process part of delay.
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Why should this be special?
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Why shouldn't we just leave it to the parties
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to litigate this when it does arise?
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Well, I agree with your honor,
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and I think that
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if a prima facie showing is made by the commonwealth,
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for example, in the application for the complaint
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saying you know the complainant just came forward
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we've had no prior contact with her,
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the delay is easily explained
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and then there's not an issue to litigate.
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But why should we litigate that?
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I don't know that you would need to litigate that
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in every case.
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I guess that's my point
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because juvenile court judges as you all know
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are very busy,
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why should we give them an extra burden
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and the burden should be on the juvenile
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or the judge if they see something that's amiss
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to raise that issue and litigate and have evidence
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if so needed.
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I don't think we're that far apart.
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I mean, I think that our suggestion is
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that a showing be made by the commonwealth
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as part of the institution of the complaint.
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In order to show that this is properly invoked.
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And that in requiring the burden to be discharged
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in that way,
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you actually forestall, potentially, a litigation
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because the defense council may look at this,
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the judge will look at this,
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it's readily explained,
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this is not worth and evidentiary hearing-
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On the papers here, I mean there's a good case for you
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'cause on the papers here it's a mystery, right?
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That's correct.
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We know that the commonwealth knew-
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And there might be a great reason
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but we don't know right now.
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We don't know what it is,
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no explanation has been made.
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And the commonwealth dodged a number of moments
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where they were gonna have to explain the delay.
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So you agree with Justice Gaziano
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that the burden to move for a due process dismissal
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is on the juvenile?
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I think that the judge could do it sua sponte.
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Okay, but I mean, in the absence of
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any reason to do it, you don't need to do it.
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Yeah that's our position.
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But once you need to do it,
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then the burden is on the commonwealth then
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to prove that there was good reason.
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Is that what she's saying?
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Or are you saying that the burden
274
00:11:18.110 --> 00:11:20.730
is on the commonwealth initially to make a showing?
275
00:11:20.730 --> 00:11:22.870
I'm saying the burden is on the commonwealth initially
276
00:11:22.870 --> 00:11:23.740
to make a showing
277
00:11:23.740 --> 00:11:25.880
and we suggest in the application for the complaint,
278
00:11:25.880 --> 00:11:27.510
just set forth a fact or two,
279
00:11:27.510 --> 00:11:29.060
explaining the delay.
280
00:11:29.060 --> 00:11:29.893
And then-
281
00:11:29.893 --> 00:11:31.373
And then if it's challenged by the defense,
282
00:11:31.373 --> 00:11:33.300
then it becomes again, the commonwealth's burden
283
00:11:33.300 --> 00:11:36.930
to come forth and prove that it was notwithstanding
284
00:11:36.930 --> 00:11:37.910
Exactly
what it says.
285
00:11:37.910 --> 00:11:39.072
That's exactly our suggestion.
286
00:11:39.072 --> 00:11:42.050
Can you refresh my memory on the framework
287
00:11:42.050 --> 00:11:43.790
on the parameters of the delay?
288
00:11:43.790 --> 00:11:46.740
What would constitute a delay?
289
00:11:46.740 --> 00:11:50.440
Well there's a delay inherent in any 72A prosecution.
290
00:11:50.440 --> 00:11:52.380
Because we're talking about a case
291
00:11:52.380 --> 00:11:54.310
where at least a year has gone by
292
00:11:54.310 --> 00:11:57.030
since the child was under 17,
293
00:11:57.030 --> 00:11:58.170
I'm sorry, 18,
294
00:11:58.170 --> 00:12:00.550
until the child was over 19.
295
00:12:00.550 --> 00:12:02.720
So there's always delay,
296
00:12:02.720 --> 00:12:05.060
and the question is whether that delay
297
00:12:05.060 --> 00:12:08.660
was in bad faith for tactical advantage,
298
00:12:08.660 --> 00:12:13.061
or whether it was an inexcusable neglect,
299
00:12:13.061 --> 00:12:15.640
or whether it was a justified delay.
300
00:12:15.640 --> 00:12:18.520
Every case that came under 72A
301
00:12:18.520 --> 00:12:20.000
would be subject to this?
302
00:12:20.000 --> 00:12:20.833
That's correct,
303
00:12:20.833 --> 00:12:24.070
I mean, so that's why our position,
304
00:12:24.070 --> 00:12:26.380
our suggestion that the commonwealth be
305
00:12:26.380 --> 00:12:28.450
that the application for the complaint
306
00:12:28.450 --> 00:12:30.470
or the initiation of the proceedings
307
00:12:30.470 --> 00:12:34.090
set forth an explanation for why the delay in this case
308
00:12:34.090 --> 00:12:35.080
would potentially
309
00:12:36.990 --> 00:12:39.020
limit the number of motions to dismiss
310
00:12:39.020 --> 00:12:41.320
because if the commonwealth has a burden
311
00:12:41.320 --> 00:12:44.260
to justify the delay in every 72A case,
312
00:12:44.260 --> 00:12:46.280
which it does because there's always delay,
313
00:12:46.280 --> 00:12:48.130
then why wouldn't there be a motion to dismiss
314
00:12:48.130 --> 00:12:50.540
in every 72A case?
315
00:12:50.540 --> 00:12:52.410
The only issue, oh sorry.
316
00:12:52.410 --> 00:12:54.110
I was gonna say, you're talking about the difference
317
00:12:54.110 --> 00:12:55.840
between delay and undue delay?
318
00:12:55.840 --> 00:12:56.710
That's correct.
319
00:12:56.710 --> 00:12:59.070
What is undue delay here, you're saying?
320
00:12:59.070 --> 00:13:01.798
Well, we don't know the reasons for the delay.
321
00:13:01.798 --> 00:13:03.400
I understand, but how long is the delay here?
322
00:13:03.400 --> 00:13:05.610
Well, the delay is almost two years.
323
00:13:05.610 --> 00:13:07.110
It was almost two years from the incident
324
00:13:07.110 --> 00:13:08.217
to the initiation of the process.
325
00:13:08.217 --> 00:13:09.050
Yeah but the first year of it,
326
00:13:09.050 --> 00:13:09.888
you say that's pretty normal,
327
00:13:09.888 --> 00:13:11.930
it's the second year that's the problem.
328
00:13:11.930 --> 00:13:14.160
Well it's always gonna be at least a year.
329
00:13:14.160 --> 00:13:15.631
Right, right, okay.
330
00:13:15.631 --> 00:13:16.464
Okay I'm sorry.
331
00:13:16.464 --> 00:13:18.390
So this will be the first time we've ever
332
00:13:18.390 --> 00:13:21.630
extended this ability to dismiss prior to arraignment
333
00:13:21.630 --> 00:13:24.490
when there is probable cause, right?
334
00:13:24.490 --> 00:13:25.820
The only issue we've got before us
335
00:13:25.820 --> 00:13:28.330
is whether to do this pre arraignment
336
00:13:28.330 --> 00:13:29.833
or post arraignment, right?
337
00:13:32.275 --> 00:13:34.770
So this is the first time we're gonna be saying
338
00:13:36.570 --> 00:13:38.183
you got probable cause here,
339
00:13:39.150 --> 00:13:42.300
but we're still gonna do this prior to arraignment.
340
00:13:42.300 --> 00:13:46.540
Actually in Mogelinski two I believe it is, or one.
341
00:13:46.540 --> 00:13:47.800
In Mogelinski,
342
00:13:49.860 --> 00:13:51.890
it was a jurisdictional issue.
343
00:13:51.890 --> 00:13:54.450
And the case was dismissed on the basis of jurisdiction
344
00:13:54.450 --> 00:13:57.290
even though there was probable cause prior to arraignment.
345
00:13:57.290 --> 00:13:58.906
So remind me
346
00:13:58.906 --> 00:14:01.662
why there was no jurisdiction there?
347
00:14:01.662 --> 00:14:05.400
It was because of the age of the juvenile
348
00:14:05.400 --> 00:14:07.100
after, it was Mogelinski two,
349
00:14:07.100 --> 00:14:10.000
so I think that after the case had gone up
350
00:14:10.000 --> 00:14:11.917
and gone back at that point-
351
00:14:11.917 --> 00:14:14.930
But again, that's an age issue not a
352
00:14:14.930 --> 00:14:18.900
here we've got, we have probable cause,
353
00:14:18.900 --> 00:14:21.550
if this were brought in juvenile court
354
00:14:21.550 --> 00:14:22.520
in a timely way,
355
00:14:22.520 --> 00:14:25.140
there certainly should have been an arraignment.
356
00:14:25.140 --> 00:14:28.630
But now that the prosecutions delayed
357
00:14:28.630 --> 00:14:29.700
we're not gonna do it
358
00:14:30.800 --> 00:14:32.330
we're gonna do it pre arraignment.
359
00:14:32.330 --> 00:14:34.174
I'm just trying to understand the logic,
360
00:14:34.174 --> 00:14:38.030
why we create no record here.
361
00:14:38.030 --> 00:14:39.510
I understand in Humberto H
362
00:14:39.510 --> 00:14:41.650
why we didn't wanna create a record
363
00:14:41.650 --> 00:14:43.160
'cause there was no probable cause
364
00:14:43.160 --> 00:14:46.090
of criminal or juvenile delinquent behavior.
365
00:14:46.090 --> 00:14:48.860
Here we have that behavior,
366
00:14:48.860 --> 00:14:51.683
but we're gonna do it prior to arraignment.
367
00:14:53.550 --> 00:14:56.030
A major part of the reasoning behind Humberto H
368
00:14:56.030 --> 00:14:59.200
was to protect the child against the consequences-
369
00:14:59.200 --> 00:15:01.190
Because the child, there was no probable cause
370
00:15:01.190 --> 00:15:03.220
to bring any proceeding against the child.
371
00:15:03.220 --> 00:15:05.890
But of course if there were no jurisdiction
372
00:15:05.890 --> 00:15:07.830
due to age or due to in this case,
373
00:15:07.830 --> 00:15:09.450
the improper invocation
374
00:15:09.450 --> 00:15:12.510
of this unique jurisdictional statute-
375
00:15:12.510 --> 00:15:16.270
I get why they can't proceed.
376
00:15:16.270 --> 00:15:18.350
I get why you'd punish the commonwealth
377
00:15:18.350 --> 00:15:21.676
for its bad behavior and delay,
378
00:15:21.676 --> 00:15:24.440
but I don't get why there's no record created.
379
00:15:24.440 --> 00:15:26.120
What's the logic in that?
380
00:15:26.120 --> 00:15:31.120
Because it's not, the juvenile shouldn't be saddled
381
00:15:31.250 --> 00:15:33.360
with all of the consequences
382
00:15:33.360 --> 00:15:35.040
of being brought into the system
383
00:15:35.040 --> 00:15:37.000
and having the creation of the CARI
384
00:15:37.000 --> 00:15:38.310
and so forth-
385
00:15:38.310 --> 00:15:39.730
But it would have been fine
386
00:15:39.730 --> 00:15:42.330
if they did it in juvenile court.
387
00:15:42.330 --> 00:15:45.120
Again, you would have had an arraignment in juvenile court.
388
00:15:45.120 --> 00:15:46.600
Because there was probable cause.
389
00:15:46.600 --> 00:15:49.110
It wouldn't be an Humberto H case.
390
00:15:49.110 --> 00:15:53.080
It's just now, it's like you get an even better
391
00:15:53.080 --> 00:15:55.270
because the commonwealth has delayed,
392
00:15:55.270 --> 00:15:57.230
now you're
393
00:15:57.230 --> 00:16:00.000
even though there is delinquent behavior,
394
00:16:00.000 --> 00:16:01.380
it's completely
395
00:16:03.570 --> 00:16:05.049
wiped out.
396
00:16:05.049 --> 00:16:06.860
It just seems like we're going one step further
397
00:16:06.860 --> 00:16:08.110
than we've gone before.
398
00:16:08.110 --> 00:16:09.350
Well, once upon a time,
399
00:16:09.350 --> 00:16:11.410
I mean that was the way it was in any case
400
00:16:11.410 --> 00:16:13.870
where the child aged out.
401
00:16:13.870 --> 00:16:15.370
There just was no jurisdiction,
402
00:16:15.370 --> 00:16:16.370
there was no case,
403
00:16:16.370 --> 00:16:18.290
and the legislature understood
404
00:16:18.290 --> 00:16:21.320
that the natural maturation process
405
00:16:21.320 --> 00:16:25.840
gave sufficient assurance that this wouldn't be repeated
406
00:16:25.840 --> 00:16:29.400
and nature did the job that the juvenile court
407
00:16:29.400 --> 00:16:30.233
would have done.
408
00:16:30.233 --> 00:16:33.546
So it's not that outlandish to suggest
409
00:16:33.546 --> 00:16:36.700
that in a case where the commonwealth
410
00:16:36.700 --> 00:16:39.200
is trying to manipulate the system
411
00:16:39.200 --> 00:16:42.394
in order to invoke 72A or the commonwealth has been
412
00:16:42.394 --> 00:16:47.160
inexcusably negligent in the initiation of process
413
00:16:47.160 --> 00:16:50.518
that child doesn't get into,
414
00:16:50.518 --> 00:16:53.360
the individual doesn't get hauled into court
415
00:16:53.360 --> 00:16:56.640
for the thing that they did when they were a child.
416
00:16:56.640 --> 00:16:58.960
I just wonder what step comes first
417
00:16:58.960 --> 00:17:00.975
in the analysis however
418
00:17:00.975 --> 00:17:02.900
when we're talking about jurisdiction,
419
00:17:02.900 --> 00:17:04.940
so I'd like you to talk to me
420
00:17:04.940 --> 00:17:07.850
a little bit about jurisdiction.
421
00:17:07.850 --> 00:17:11.090
Why isn't it that the issue here
422
00:17:11.090 --> 00:17:15.980
is whether or not this now 19-year-old
423
00:17:17.580 --> 00:17:19.840
should be prosecuted in the superior court?
424
00:17:19.840 --> 00:17:22.790
Whether they should have the jurisdiction.
425
00:17:22.790 --> 00:17:24.958
And assuming probable cause,
426
00:17:24.958 --> 00:17:27.053
one of the questions as to whether or not
427
00:17:27.053 --> 00:17:28.390
this should be a prosecution
428
00:17:28.390 --> 00:17:31.090
in the superior court is the reason for the delay,
429
00:17:31.090 --> 00:17:33.210
because as you've referenced,
430
00:17:33.210 --> 00:17:36.100
there can be all sorts of untoward reasons
431
00:17:36.100 --> 00:17:37.463
that might exist.
432
00:17:38.450 --> 00:17:41.830
Or inexcusable reasons that might exist for the delay.
433
00:17:41.830 --> 00:17:46.820
But why isn't the whole 72A transfer process
434
00:17:46.820 --> 00:17:48.730
really asking the question
435
00:17:48.730 --> 00:17:50.750
of whether they should be jurisdiction
436
00:17:50.750 --> 00:17:54.043
in the superior court to prosecute this case?
437
00:17:55.810 --> 00:17:56.867
I mean,
438
00:17:56.867 --> 00:18:00.430
because the question is whether there's jurisdiction at all,
439
00:18:00.430 --> 00:18:02.590
and we know that it goes to the superior court
440
00:18:02.590 --> 00:18:04.720
if there's gonna be jurisdiction at all
441
00:18:04.720 --> 00:18:06.650
because the child is an adult.
442
00:18:06.650 --> 00:18:09.230
And imagine a scenario where-
443
00:18:09.230 --> 00:18:10.390
Only if it's in the interest
444
00:18:10.390 --> 00:18:11.730
of justice to do so, right?
445
00:18:11.730 --> 00:18:12.563
I'm sorry, I just-
446
00:18:12.563 --> 00:18:13.690
But it's only in the interest of justice
447
00:18:13.690 --> 00:18:14.523
to do so.
448
00:18:14.523 --> 00:18:16.060
It only goes to the superior court
449
00:18:16.060 --> 00:18:17.630
if it's in the interest of justice to do so, right?
450
00:18:17.630 --> 00:18:18.463
That's correct.
451
00:18:18.463 --> 00:18:20.470
And of course the question of delay
452
00:18:20.470 --> 00:18:21.580
is gonna come into play there,
453
00:18:21.580 --> 00:18:23.440
but it's gonna be different than for example,
454
00:18:23.440 --> 00:18:26.772
imagine a case where the commonwealth deliberately waits,
455
00:18:26.772 --> 00:18:29.280
because it's not a case that qualifies
456
00:18:29.280 --> 00:18:31.140
for youthful offender indictment.
457
00:18:31.140 --> 00:18:34.020
And they think it's too serious to stay in juvenile court
458
00:18:34.020 --> 00:18:37.050
and you know I hate to say that this might ever happen,
459
00:18:37.050 --> 00:18:39.110
but imagine that it did.
460
00:18:39.110 --> 00:18:42.180
And so the commonwealth deliberately undertakes
461
00:18:42.180 --> 00:18:44.630
to charge this child as an adult
462
00:18:44.630 --> 00:18:47.783
and waits the period of time for that to happen.
463
00:18:48.710 --> 00:18:51.290
So now the juvenile is,
464
00:18:51.290 --> 00:18:52.750
so this is improper.
465
00:18:52.750 --> 00:18:53.923
I mean
466
00:18:53.923 --> 00:18:55.190
it's inappropriate.
467
00:18:55.190 --> 00:18:57.760
It's not fair to the child
468
00:18:57.760 --> 00:19:01.400
for the consequences of their child misstep,
469
00:19:01.400 --> 00:19:04.700
their youthful mistakes to follow them into adulthood.
470
00:19:04.700 --> 00:19:07.153
We have policy against that.
471
00:19:09.616 --> 00:19:12.950
So the juvenile bears the consequence
472
00:19:12.950 --> 00:19:15.360
of having been arraigned on a juvenile complaint
473
00:19:15.360 --> 00:19:18.330
of having been made to work with council,
474
00:19:18.330 --> 00:19:20.370
to pull together,
475
00:19:20.370 --> 00:19:24.660
to mount a vigorous defense on probable cause,
476
00:19:24.660 --> 00:19:26.850
and on the interest of justice,
477
00:19:26.850 --> 00:19:29.960
and the juvenile is bearing these consequences
478
00:19:29.960 --> 00:19:33.060
and the only consequence to the prosecution
479
00:19:33.060 --> 00:19:35.060
is that potentially
480
00:19:35.060 --> 00:19:38.540
the length of the delay plays into the question
481
00:19:38.540 --> 00:19:40.280
of whether the prosecution goes forward.
482
00:19:40.280 --> 00:19:43.440
When the consequence to the prosecution should be
483
00:19:43.440 --> 00:19:47.200
that they're not allowed to institute this prosecution.
484
00:19:47.200 --> 00:19:50.460
The juvenile should be
485
00:19:50.460 --> 00:19:52.190
out of fundamental fairness
486
00:19:52.190 --> 00:19:54.573
spared that process.
487
00:19:56.348 --> 00:19:57.438
Okay, thank you.
488
00:19:57.438 --> 00:19:59.521
Thank you.
489
00:20:04.053 --> 00:20:06.193
Ms. DeLateur, good morning.
490
00:20:07.670 --> 00:20:08.510
Good morning your honors,
491
00:20:08.510 --> 00:20:10.240
may it please the court, Monica DeLateur
492
00:20:10.240 --> 00:20:11.810
on behalf of the commonwealth.
493
00:20:11.810 --> 00:20:13.090
Sitting with me at council table
494
00:20:13.090 --> 00:20:15.010
is assistant district attorney Michelle Slade
495
00:20:15.010 --> 00:20:17.810
who is the child prosecutor in the underlying case.
496
00:20:17.810 --> 00:20:19.720
Can I ask you a question to begin with?
497
00:20:19.720 --> 00:20:20.553
Excuse me?
498
00:20:20.553 --> 00:20:21.386
I just wanna be clear about
499
00:20:21.386 --> 00:20:23.480
what the commonwealth's position is.
500
00:20:23.480 --> 00:20:25.580
It seemed to me that below,
501
00:20:25.580 --> 00:20:26.750
the commonwealth is basically saying
502
00:20:26.750 --> 00:20:29.300
oh no, this question of whether or not we delayed,
503
00:20:29.300 --> 00:20:30.803
that gets resolved in superior court,
504
00:20:30.803 --> 00:20:34.000
that doesn't get resolved in juvenile court.
505
00:20:34.000 --> 00:20:35.280
And it seemed to me that in your brief
506
00:20:35.280 --> 00:20:38.770
you were saying, no no it gets resolved in juvenile court,
507
00:20:38.770 --> 00:20:40.300
it just gets resolved in the second prong
508
00:20:40.300 --> 00:20:42.050
of the inquiry, of the transfer hearing.
509
00:20:42.050 --> 00:20:43.510
Is that right?
510
00:20:43.510 --> 00:20:45.620
It is consistent with our previous position.
511
00:20:45.620 --> 00:20:46.980
So in our motion to arraign
512
00:20:46.980 --> 00:20:49.640
it's in the commonwealth's appendix 133
513
00:20:49.640 --> 00:20:53.500
we stated that we believe that the merits
514
00:20:53.500 --> 00:20:55.090
of the motion for a prosecution,
515
00:20:55.090 --> 00:20:56.750
to dismiss a prosecution delay
516
00:20:56.750 --> 00:20:58.500
should happen at the transfer hearing.
517
00:20:58.500 --> 00:21:00.100
It's also consistent with our position
518
00:21:00.100 --> 00:21:02.349
in the opposition to the 211.3-
519
00:21:02.349 --> 00:21:05.315
Okay, then is it inconsistent with what the judge did?
520
00:21:05.315 --> 00:21:08.460
To the extent that Justice Craven here
521
00:21:08.460 --> 00:21:10.700
held that it should not be considered
522
00:21:10.700 --> 00:21:11.533
at the transfer hearing,
523
00:21:11.533 --> 00:21:12.690
I would agree that that is incorrect.
524
00:21:12.690 --> 00:21:15.080
Okay, all right that's the source of it, okay.
525
00:21:15.080 --> 00:21:15.913
So you say
526
00:21:15.913 --> 00:21:18.840
that the judge should basically decided probable cause
527
00:21:19.728 --> 00:21:22.720
and if there is probable cause, arraign the person,
528
00:21:22.720 --> 00:21:24.620
and then determine whether there is
529
00:21:24.620 --> 00:21:25.970
where the issue was raised
530
00:21:25.970 --> 00:21:27.150
or is a live issue
531
00:21:27.150 --> 00:21:28.920
where there's a due process issue
532
00:21:28.920 --> 00:21:31.730
and then whether in his or her discretion
533
00:21:31.730 --> 00:21:34.330
the case should be dismissed
534
00:21:34.330 --> 00:21:36.460
or a criminal complaint should issue.
535
00:21:36.460 --> 00:21:37.420
That is correct.
536
00:21:37.420 --> 00:21:39.410
You think that should all happen in juvenile court.
537
00:21:39.410 --> 00:21:40.730
Yes, to be clear about where we are,
538
00:21:40.730 --> 00:21:43.140
the transfer hearing does occur in juvenile court
539
00:21:43.140 --> 00:21:45.370
before any particular transfer to the adult court.
540
00:21:45.370 --> 00:21:48.130
So I guess the confusion that I have is
541
00:21:48.130 --> 00:21:50.400
why do we proceed with an arraignment
542
00:21:50.400 --> 00:21:54.160
where the matter be invariably be dismissed
543
00:21:54.160 --> 00:21:55.453
in juvenile court?
544
00:21:57.273 --> 00:22:00.160
Either because there is a due process violation
545
00:22:00.160 --> 00:22:02.100
or because the matter should be discharged
546
00:22:02.100 --> 00:22:03.110
or because
547
00:22:04.400 --> 00:22:06.980
it should go on to be tried in superior court.
548
00:22:06.980 --> 00:22:09.060
The case can never be tried in juvenile court,
549
00:22:09.060 --> 00:22:10.160
so I don't know of any situation
550
00:22:10.160 --> 00:22:11.430
in which we arraignment somebody
551
00:22:11.430 --> 00:22:13.530
where we know it's gonna be dismissed.
552
00:22:13.530 --> 00:22:14.410
Well I think it's unclear
553
00:22:14.410 --> 00:22:15.940
if we know it would be dismissed.
554
00:22:15.940 --> 00:22:18.900
I think in the absence of statutory authority to do so,
555
00:22:18.900 --> 00:22:21.170
a juvenile court judge would not be able to dismiss
556
00:22:21.170 --> 00:22:23.100
before arraignment on the grounds
557
00:22:23.100 --> 00:22:25.210
on the interest of justice and indeed doing so
558
00:22:25.210 --> 00:22:27.320
would be a violation of separation of powers.
559
00:22:27.320 --> 00:22:29.060
Yeah but I guess the question is,
560
00:22:29.060 --> 00:22:30.840
the case can't proceed in juvenile court.
561
00:22:30.840 --> 00:22:34.220
I mean, the transfer hearing has to say
562
00:22:34.220 --> 00:22:35.740
either the case will be dismissed
563
00:22:35.740 --> 00:22:37.900
or it will go to superior court.
564
00:22:37.900 --> 00:22:42.810
So, what is the purpose to have an arraignment
565
00:22:42.810 --> 00:22:47.250
when the case invariably cannot proceed in juvenile court?
566
00:22:47.250 --> 00:22:48.600
Well there has to be an arraignment
567
00:22:48.600 --> 00:22:50.900
before the transfer hearing.
568
00:22:50.900 --> 00:22:52.730
The transfer hearing is focused on the offenses
569
00:22:52.730 --> 00:22:53.563
that are charged,
570
00:22:53.563 --> 00:22:55.340
and there wouldn't be any alleged charges at that point
571
00:22:55.340 --> 00:22:57.210
if it had happened before arraignment.
572
00:22:57.210 --> 00:22:59.080
There does need to be an arraignment in juvenile court
573
00:22:59.080 --> 00:23:00.960
before the transfer hearing.
574
00:23:00.960 --> 00:23:03.487
And that arraignment can occur on a legally valid complaint,
575
00:23:03.487 --> 00:23:05.910
just looking at the four corners of the complaint,
576
00:23:05.910 --> 00:23:07.900
and determining whether that is a legally valid complaint
577
00:23:07.900 --> 00:23:09.047
to go forward.
578
00:23:09.047 --> 00:23:11.250
And that can happen in the juvenile court
579
00:23:11.250 --> 00:23:12.167
before arraignment.
580
00:23:12.167 --> 00:23:15.040
You're just really talking about the certain parts
581
00:23:15.040 --> 00:23:15.900
of an arraignment,
582
00:23:15.900 --> 00:23:19.780
a question of whether or not council
583
00:23:19.780 --> 00:23:20.620
should be appointed,
584
00:23:20.620 --> 00:23:24.160
whether or not the juvenile understands the nature
585
00:23:24.160 --> 00:23:25.570
of the charges
586
00:23:25.570 --> 00:23:27.870
that's just part of the arraignment process
587
00:23:27.870 --> 00:23:29.320
before you move forward.
588
00:23:29.320 --> 00:23:30.153
Correct.
589
00:23:30.153 --> 00:23:31.750
So in terms of there being jurisdiction
590
00:23:31.750 --> 00:23:33.560
under the statute for the case to go forward
591
00:23:33.560 --> 00:23:35.280
and whether there is probable cause.
592
00:23:35.280 --> 00:23:37.280
Those are the two determinations that can be done
593
00:23:37.280 --> 00:23:39.360
before arraignment in a juvenile court.
594
00:23:39.360 --> 00:23:41.452
In Newton N. Confirms that,
595
00:23:41.452 --> 00:23:43.550
Orbin O. And I would suggest Benjamin B.
596
00:23:43.550 --> 00:23:44.590
As the other case as well,
597
00:23:44.590 --> 00:23:45.970
those are the two determinations
598
00:23:45.970 --> 00:23:47.720
that a judge can make at that time.
599
00:23:48.600 --> 00:23:50.370
And I would suggest
600
00:23:50.370 --> 00:23:52.261
in allowing this type of remedy
601
00:23:52.261 --> 00:23:54.810
where we could have a motion dismissed
602
00:23:54.810 --> 00:23:56.297
for prosecution delay before an arraignment,
603
00:23:56.297 --> 00:23:58.210
and I think this suggests what Kafker's point
604
00:23:58.210 --> 00:24:00.250
with this would be allowing a type of remedy
605
00:24:00.250 --> 00:24:01.930
for this particular group of juveniles
606
00:24:01.930 --> 00:24:03.060
that wouldn't actually be available
607
00:24:03.060 --> 00:24:04.187
for any other types of juveniles.
608
00:24:04.187 --> 00:24:06.020
Those are the two determinations
609
00:24:06.020 --> 00:24:07.730
that you can have before arraignment
610
00:24:07.730 --> 00:24:09.910
that could allow for a dismissal of the case.
611
00:24:09.910 --> 00:24:12.330
And this would allow a separate type of remedy
612
00:24:12.330 --> 00:24:14.030
that would only be separate, excuse me,
613
00:24:14.030 --> 00:24:15.210
would only be able to happen
614
00:24:15.210 --> 00:24:16.620
with this particular type of group.
615
00:24:16.620 --> 00:24:17.880
I understand that.
616
00:24:17.880 --> 00:24:20.520
Can you express for me again
617
00:24:20.520 --> 00:24:24.277
what is the harm to the commonwealth
618
00:24:24.277 --> 00:24:28.453
proceeding as the juvenile has suggested.
619
00:24:29.320 --> 00:24:31.540
So, I would say there's three considerations.
620
00:24:31.540 --> 00:24:33.550
As I've noted, it would be a violation
621
00:24:33.550 --> 00:24:35.640
of separation of powers to allow a judge
622
00:24:35.640 --> 00:24:37.193
to make that determination
623
00:24:37.193 --> 00:24:39.500
to dismiss the case at that point
624
00:24:39.500 --> 00:24:40.760
in the interest of justice.
625
00:24:40.760 --> 00:24:42.440
It would be a judge stepping-
626
00:24:42.440 --> 00:24:43.764
Is that really what the judge is doing though?
627
00:24:43.764 --> 00:24:44.863
Isn't the judge doing it
628
00:24:44.863 --> 00:24:47.143
because it's a violation of due process?
629
00:24:51.250 --> 00:24:53.120
If you're thinking of in terms of the interest-
630
00:24:53.120 --> 00:24:55.470
Let's say it's a lousy delay, lousy reason for delay,
631
00:24:55.470 --> 00:24:58.090
let's say there's a really no good reason for delay.
632
00:24:58.090 --> 00:25:02.240
And the judge hears that
633
00:25:02.240 --> 00:25:04.093
after having seen in the part of the application
634
00:25:04.093 --> 00:25:05.900
that the commonwealth basically has to say
635
00:25:05.900 --> 00:25:07.047
what the reason was, right?
636
00:25:07.047 --> 00:25:09.510
That's what the defendant is suggesting
637
00:25:10.430 --> 00:25:11.853
that they have to first say,
638
00:25:11.853 --> 00:25:14.580
that the commonwealth has to with its initiation papers
639
00:25:14.580 --> 00:25:17.180
has to say what the reason was for the delay, right?
640
00:25:17.180 --> 00:25:18.013
I'm sorry, I didn't quite understand.
641
00:25:18.013 --> 00:25:20.510
It has to say what the reason was for the delay, right?
642
00:25:20.510 --> 00:25:21.983
That would be the first step.
643
00:25:23.966 --> 00:25:25.670
According to the defendant with the procedure
644
00:25:25.670 --> 00:25:26.880
that they're asking for,
645
00:25:26.880 --> 00:25:29.310
the first step would be for the commonwealth
646
00:25:29.310 --> 00:25:32.210
in its initiation papers to somehow say,
647
00:25:32.210 --> 00:25:33.400
well this is the reason for the delay.
648
00:25:33.400 --> 00:25:35.590
Let's say it's a bad reason for delay
649
00:25:35.590 --> 00:25:37.750
and the judge says, okay I'm not gonna put up with that,
650
00:25:37.750 --> 00:25:38.583
it's dismissed,
651
00:25:38.583 --> 00:25:40.651
you're saying that's a violation of article 30?
652
00:25:40.651 --> 00:25:42.050
Yes, I am saying that.
653
00:25:42.050 --> 00:25:43.930
Because that would allow the judge to determine
654
00:25:43.930 --> 00:25:46.110
on a legally valid complaint without statutory-
655
00:25:46.110 --> 00:25:47.410
Why is it a legally valid complaint
656
00:25:47.410 --> 00:25:49.270
if it's being brought for a lousy reason
657
00:25:49.270 --> 00:25:50.830
for the delay and delay?
658
00:25:50.830 --> 00:25:51.840
I'm sorry, excuse me.
659
00:25:51.840 --> 00:25:54.834
I'm sorry, I just I'm assuming the worst,
660
00:25:54.834 --> 00:25:57.360
you can see that in the decisions
661
00:25:57.360 --> 00:25:59.060
we did not assume the worst about the commonwealth,
662
00:25:59.060 --> 00:26:01.693
we felt that this was gonna happen very rarely, right?
663
00:26:03.630 --> 00:26:05.030
We thought it was gonna happen very rarely
664
00:26:05.030 --> 00:26:06.340
that there was gonna be an abuse of discretion
665
00:26:06.340 --> 00:26:07.290
by the prosecutor.
666
00:26:07.290 --> 00:26:08.870
Yes, I would agree that would happen rarely,
667
00:26:08.870 --> 00:26:12.460
but in terms of figuring out jurisdiction
668
00:26:12.460 --> 00:26:13.780
for a legally valid complaint
669
00:26:13.780 --> 00:26:15.128
that the delay of a prosecution-
670
00:26:15.128 --> 00:26:16.347
I guess my question is how do you determine
671
00:26:16.347 --> 00:26:18.360
it's a legally valid complaint.
672
00:26:18.360 --> 00:26:20.400
So determination of jurisdiction
673
00:26:20.400 --> 00:26:22.530
and whether there's probable cause,
674
00:26:22.530 --> 00:26:23.930
but under the terms of jurisdiction
675
00:26:23.930 --> 00:26:26.180
it's whether the case can go forward in juvenile court
676
00:26:26.180 --> 00:26:29.270
and the delay of prosecution has nothing to do
677
00:26:29.270 --> 00:26:31.610
with a jurisdiction of whether the case can go forward
678
00:26:31.610 --> 00:26:33.280
and whether it's a legally valid complaint
679
00:26:33.280 --> 00:26:35.120
rooted in probable cause.
680
00:26:35.120 --> 00:26:36.580
Essentially what would happen
681
00:26:36.580 --> 00:26:40.590
is we would have a different way of analyzing these cases
682
00:26:40.590 --> 00:26:43.390
from adult speedy trial cases.
683
00:26:43.390 --> 00:26:47.820
There'd be a whole different framework for analysis.
684
00:26:47.820 --> 00:26:49.062
I would agree with that
685
00:26:49.062 --> 00:26:51.132
and this court has never found that
686
00:26:51.132 --> 00:26:53.273
either in juvenile court or adult court
687
00:26:53.273 --> 00:26:54.850
that the actions of the prosecutor
688
00:26:54.850 --> 00:26:56.510
were so egregious that it would bar arraignment.
689
00:26:56.510 --> 00:26:58.810
I had asked you to give me the reasons
690
00:26:58.810 --> 00:27:00.120
it would be difficult for the commonwealth
691
00:27:00.120 --> 00:27:02.330
or harmful and you told me one,
692
00:27:02.330 --> 00:27:04.840
and then we got,
693
00:27:04.840 --> 00:27:05.990
so can you give me the other two.
694
00:27:05.990 --> 00:27:06.823
I'm sorry.
695
00:27:06.823 --> 00:27:07.785
No. (laughing)
696
00:27:07.785 --> 00:27:08.618
so that was the first one,
697
00:27:08.618 --> 00:27:10.640
the second one, which I've already iterated as well,
698
00:27:10.640 --> 00:27:12.850
which is that it would be allowing for a different treatment
699
00:27:12.850 --> 00:27:14.520
for a particular group of juveniles
700
00:27:14.520 --> 00:27:16.200
that are charged in this way.
701
00:27:16.200 --> 00:27:18.380
And I think it's also important to consider
702
00:27:18.380 --> 00:27:20.550
what an evidentiary hearing before arraignment
703
00:27:20.550 --> 00:27:21.400
would even look like.
704
00:27:21.400 --> 00:27:23.050
I would point again to Newton N.
705
00:27:23.050 --> 00:27:24.540
Where this court iterated
706
00:27:24.540 --> 00:27:26.590
that there might not even be enough information
707
00:27:26.590 --> 00:27:28.400
for that type of hearing before an arraignment
708
00:27:28.400 --> 00:27:29.580
and indeed before arraignment
709
00:27:29.580 --> 00:27:32.205
before there's even an attachment of a right to council.
710
00:27:32.205 --> 00:27:33.580
I would also note again
711
00:27:33.580 --> 00:27:36.640
that there's no statutory authority,
712
00:27:36.640 --> 00:27:38.320
again to litigate this type of motion.
713
00:27:38.320 --> 00:27:39.550
And if this is allowed,
714
00:27:39.550 --> 00:27:41.400
I do not see a reason why a defendant
715
00:27:41.400 --> 00:27:43.631
would be able to bring any other type of motion
716
00:27:43.631 --> 00:27:44.810
before arraignment as well.
717
00:27:44.810 --> 00:27:46.453
So along those lines,
718
00:27:47.740 --> 00:27:50.520
obviously we don't just have statutory speedy trial,
719
00:27:50.520 --> 00:27:52.990
we have constitutional speedy trial issues
720
00:27:52.990 --> 00:27:54.730
in Barker v. Wingo.
721
00:27:54.730 --> 00:27:59.730
And if the speedy trial provision of the constitution
722
00:28:01.320 --> 00:28:02.350
has been violated
723
00:28:02.350 --> 00:28:06.340
then there's due process concerns about that prosecution,
724
00:28:06.340 --> 00:28:11.080
however are there any cases ever suggesting in any context
725
00:28:11.080 --> 00:28:14.210
that where there's a constitutional speedy trial issue
726
00:28:14.210 --> 00:28:17.210
that some proceeding has to happen pre arraignment?
727
00:28:17.210 --> 00:28:19.017
I have not seen that before, no,
728
00:28:19.017 --> 00:28:21.930
and I would suggest that the way that the legislature
729
00:28:21.930 --> 00:28:23.210
has created juvenile code
730
00:28:23.210 --> 00:28:26.270
has provided a mechanism in the 72A transfer hearing
731
00:28:26.270 --> 00:28:27.770
for those concerns to be addressed.
732
00:28:27.770 --> 00:28:28.827
But no I have not seen that.
733
00:28:28.827 --> 00:28:31.610
Why wouldn't the statutory authority be found
734
00:28:31.610 --> 00:28:34.170
in section 72A itself?
735
00:28:34.170 --> 00:28:37.340
Although it doesn't say anything about a pre arraignment
736
00:28:39.000 --> 00:28:41.463
bad faith delay hearing,
737
00:28:42.721 --> 00:28:46.800
it could be argued that such a hearing is necessary
738
00:28:46.800 --> 00:28:48.930
to effectuate 72A.
739
00:28:48.930 --> 00:28:51.440
Because the legislature's given you this extraordinary
740
00:28:51.440 --> 00:28:56.000
authority as council, prior council has just said,
741
00:28:56.000 --> 00:28:57.050
to bring these cases,
742
00:28:57.050 --> 00:28:58.823
and now you have this authority,
743
00:29:00.070 --> 00:29:02.870
the statute may contemplate having a hearing
744
00:29:02.870 --> 00:29:05.074
to find out whether or not that authority
745
00:29:05.074 --> 00:29:06.413
has been exceeded.
746
00:29:09.340 --> 00:29:12.560
So I would suggest that it's consistent
747
00:29:12.560 --> 00:29:14.660
with those two considerations under 72A
748
00:29:16.700 --> 00:29:18.210
in terms of determining whether
749
00:29:18.210 --> 00:29:20.370
there has been prosecution delay.
750
00:29:20.370 --> 00:29:22.120
It's consistent with the interest of justice
751
00:29:22.120 --> 00:29:22.953
and the protection of,
752
00:29:22.953 --> 00:29:23.950
oh excuse me, interest of the public
753
00:29:23.950 --> 00:29:25.030
and protection of the public.
754
00:29:25.030 --> 00:29:27.650
And I would note that the case law under 72A
755
00:29:27.650 --> 00:29:29.620
is very broad in what those considerations are.
756
00:29:29.620 --> 00:29:31.550
It's guided by fundamental fairness,
757
00:29:31.550 --> 00:29:32.980
there are not evidentiary rules
758
00:29:32.980 --> 00:29:34.320
that need to be followed
759
00:29:34.320 --> 00:29:36.970
and indeed that language in terms of interest of the public
760
00:29:36.970 --> 00:29:39.230
and protection of the public are interchangeable.
761
00:29:39.230 --> 00:29:41.290
And essentially the question is whether the juvenile
762
00:29:41.290 --> 00:29:43.683
should be subject to any prosecution at all.
763
00:29:44.560 --> 00:29:45.860
Can I?
764
00:29:45.860 --> 00:29:46.980
Are you done, sorry.
765
00:29:46.980 --> 00:29:49.000
Yeah I'm trying to understand
766
00:29:49.000 --> 00:29:50.810
in a case in which you have,
767
00:29:50.810 --> 00:29:52.140
I'm not saying this is the case,
768
00:29:52.140 --> 00:29:54.530
but in case in which you have abused the process,
769
00:29:54.530 --> 00:29:59.323
the commonwealth has delayed, you know, improperly.
770
00:30:00.760 --> 00:30:03.630
Why do we want this post arraignment?
771
00:30:03.630 --> 00:30:05.730
Why do we want the record?
772
00:30:05.730 --> 00:30:08.000
'Cause what we're creating is,
773
00:30:08.000 --> 00:30:08.930
In Humberto H.
774
00:30:08.930 --> 00:30:13.010
I understand the whole logic of having no record,
775
00:30:13.010 --> 00:30:15.210
here we're gonna have no record
776
00:30:17.000 --> 00:30:20.150
is it valuable to have a record in this circumstance?
777
00:30:20.150 --> 00:30:22.280
I'm just trying to understand in a case where
778
00:30:22.280 --> 00:30:27.100
the commonwealth has created a due process violation,
779
00:30:27.100 --> 00:30:30.000
why do we still want an arraignment
780
00:30:30.000 --> 00:30:32.230
and a record in that respect?
781
00:30:32.230 --> 00:30:34.520
Why is that good policy?
782
00:30:34.520 --> 00:30:35.440
I'm not saying it's not,
783
00:30:35.440 --> 00:30:37.260
I just don't know, I'd like to understand that.
784
00:30:37.260 --> 00:30:39.180
Yeah, I think there would still need to be
785
00:30:39.180 --> 00:30:41.230
if it's a legally valid complaint,
786
00:30:41.230 --> 00:30:43.900
and that the actions of the juvenile
787
00:30:43.900 --> 00:30:45.640
have supported probable cause,
788
00:30:45.640 --> 00:30:48.060
that can still result in CARI record;
789
00:30:48.060 --> 00:30:49.520
I still think that's appropriate,
790
00:30:49.520 --> 00:30:51.210
and not be able to have judges step in
791
00:30:51.210 --> 00:30:52.170
in terms of when-
792
00:30:52.170 --> 00:30:54.870
So we want a CARI record
793
00:30:54.870 --> 00:30:58.690
in a case in which there is probable cause
794
00:30:58.690 --> 00:31:01.180
to a have proceeded in juvenile court,
795
00:31:01.180 --> 00:31:02.920
but the commonwealth
796
00:31:02.920 --> 00:31:06.510
created a constitutional due process violation by delay.
797
00:31:06.510 --> 00:31:09.770
I think without statutory authorization
798
00:31:09.770 --> 00:31:11.670
that has to be the procedure going forward.
799
00:31:11.670 --> 00:31:13.150
I will note that-
800
00:31:13.150 --> 00:31:14.364
Why does it have to be the,
801
00:31:14.364 --> 00:31:16.550
that's one thing I'm not quite sure I follow.
802
00:31:16.550 --> 00:31:17.770
Why does it have to be the procedure?
803
00:31:17.770 --> 00:31:20.370
Well, in terms of if the prosecution has decided
804
00:31:20.370 --> 00:31:21.203
to go forward,
805
00:31:21.203 --> 00:31:22.070
that would be the next step
806
00:31:22.070 --> 00:31:23.430
in terms of there being an arraignment
807
00:31:23.430 --> 00:31:26.020
and that a CARI record would enter.
808
00:31:26.020 --> 00:31:27.781
I will note that in the last-
809
00:31:27.781 --> 00:31:30.550
I'm not sure I see how you're on,
810
00:31:30.550 --> 00:31:32.240
you've sort of lost your high horse
811
00:31:32.240 --> 00:31:34.000
by, in my hypothetical,
812
00:31:34.000 --> 00:31:36.770
by behaving improperly.
813
00:31:36.770 --> 00:31:38.620
I'm trying to understand why we still want a record
814
00:31:38.620 --> 00:31:39.453
of that juvenile.
815
00:31:39.453 --> 00:31:41.460
is that to protect the public
816
00:31:41.460 --> 00:31:44.480
that this person, there was probable cause,
817
00:31:44.480 --> 00:31:46.000
and we wanna know about that?
818
00:31:46.000 --> 00:31:49.200
I'm just trying to understand the logic of keeping
819
00:31:49.200 --> 00:31:51.890
a CARI record in that case.
820
00:31:51.890 --> 00:31:54.810
Well, I wouldn't suggest that prosecutions go forward
821
00:31:54.810 --> 00:31:55.643
on bad faith,
822
00:31:55.643 --> 00:31:57.860
but I do think that there would need to be a CARI record
823
00:31:57.860 --> 00:32:01.700
in terms of it being a legally valid CARI record.
824
00:32:01.700 --> 00:32:04.620
I think that actually fits in with the purpose of 72A
825
00:32:04.620 --> 00:32:08.027
about not having defendants fall in between the cracks
826
00:32:08.027 --> 00:32:10.530
with these cases.
827
00:32:10.530 --> 00:32:13.800
I will note that if a case does end up being discharged
828
00:32:13.800 --> 00:32:15.070
at the 72A transfer hearing,
829
00:32:15.070 --> 00:32:16.720
there are now mechanisms in place
830
00:32:16.720 --> 00:32:20.370
where a juvenile can expunge and seal their CARI record.
831
00:32:20.370 --> 00:32:23.190
Well shouldn't this be the extraordinary case?
832
00:32:23.190 --> 00:32:25.270
We assume that you're gonna act in good faith,
833
00:32:25.270 --> 00:32:26.810
this should be the extraordinary case,
834
00:32:26.810 --> 00:32:30.030
that's what the footnote had contemplated.
835
00:32:30.030 --> 00:32:31.660
Well I think, so the-
836
00:32:31.660 --> 00:32:32.610
I would hope so.
837
00:32:32.610 --> 00:32:34.090
Right.
838
00:32:34.090 --> 00:32:36.680
The footnote in Mogelinski one
839
00:32:36.680 --> 00:32:38.700
and the iteration in Mogelinski two
840
00:32:38.700 --> 00:32:39.840
the commonwealth is not suggesting
841
00:32:39.840 --> 00:32:41.040
that there is not a burden
842
00:32:41.040 --> 00:32:43.610
that they have to show that there is inexcusable delay
843
00:32:43.610 --> 00:32:44.443
or there is an absence-
844
00:32:44.443 --> 00:32:46.787
I might agree with you that the juvenile
845
00:32:46.787 --> 00:32:49.874
should be the moving party in this,
846
00:32:49.874 --> 00:32:52.790
but once the issue is raised
847
00:32:52.790 --> 00:32:54.970
and a judge finds his bad faith,
848
00:32:54.970 --> 00:32:57.000
I think the point that Justice Kafker raises
849
00:32:57.000 --> 00:32:57.833
is a good one,
850
00:32:57.833 --> 00:33:00.463
why should the juvenile be saddled with a CARI entry?
851
00:33:03.620 --> 00:33:07.804
I think that in this current legislative scheme
852
00:33:07.804 --> 00:33:09.920
that is the procedure going forward
853
00:33:09.920 --> 00:33:11.620
is that if there is
854
00:33:11.620 --> 00:33:13.230
if it's supported by probable cause
855
00:33:13.230 --> 00:33:14.520
and if there's jurisdiction
856
00:33:14.520 --> 00:33:16.700
under the juvenile code to do so,
857
00:33:16.700 --> 00:33:18.700
it would proceed with arraignment and a CARI record.
858
00:33:18.700 --> 00:33:21.110
Well, why isn't the answer to the question
859
00:33:21.110 --> 00:33:25.113
well, article 30, there's probable cause, arraignment.
860
00:33:26.850 --> 00:33:29.120
At the transfer hearing there's a determination
861
00:33:29.120 --> 00:33:30.610
of bad faith
862
00:33:30.610 --> 00:33:32.330
and then there's a motion to expunge
863
00:33:32.330 --> 00:33:34.960
because it was a due process violation
864
00:33:34.960 --> 00:33:37.630
and this shouldn't be anything on the CARI.
865
00:33:37.630 --> 00:33:38.820
And you don't have anything on the CARI,
866
00:33:38.820 --> 00:33:41.640
but you don't have to violate article 30 to get there.
867
00:33:41.640 --> 00:33:42.530
I would agree with that
868
00:33:42.530 --> 00:33:44.740
that that would be the yes, that would be the procedure.
869
00:33:44.740 --> 00:33:45.573
Is that-
870
00:33:47.054 --> 00:33:48.740
Would the next step
871
00:33:48.740 --> 00:33:51.095
would it be possible if there was an allegation
872
00:33:51.095 --> 00:33:54.770
that the police in some way had behaved improperly
873
00:33:54.770 --> 00:33:57.650
to file a motion to suppress pre arraignment?
874
00:33:57.650 --> 00:33:59.370
That would not be possible.
At all?
875
00:33:59.370 --> 00:34:00.203
No,
876
00:34:00.203 --> 00:34:02.420
the only two determinations that can come
877
00:34:02.420 --> 00:34:04.510
before arraignment are related to probable cause
878
00:34:04.510 --> 00:34:05.670
and jurisdiction.
879
00:34:05.670 --> 00:34:08.216
Related into the legally valid complaint.
880
00:34:08.216 --> 00:34:09.049
Here's my problem,
881
00:34:09.049 --> 00:34:09.980
did we ever have a situation
882
00:34:09.980 --> 00:34:12.030
where a court is acting on something
883
00:34:12.030 --> 00:34:15.240
that the jurisdiction of a court is not assumed?
884
00:34:15.240 --> 00:34:19.253
I mean, in juvenile court under the Humberto H.
885
00:34:21.980 --> 00:34:23.320
procedure,
886
00:34:23.320 --> 00:34:25.510
nobody's questioning the juvenile court has jurisdiction
887
00:34:25.510 --> 00:34:26.710
over that matter, right?
888
00:34:27.650 --> 00:34:30.640
Correct, though that situation was Mogelinski two,
889
00:34:30.640 --> 00:34:32.700
would be a situation where there was a question
890
00:34:32.700 --> 00:34:35.270
about jurisdiction before arraignment
891
00:34:35.270 --> 00:34:37.360
in terms of whether the juvenile had been apprehended
892
00:34:37.360 --> 00:34:38.650
after the age of 19
893
00:34:38.650 --> 00:34:40.620
and then also in Wallace W.
894
00:34:40.620 --> 00:34:41.890
Which was a case from last year,
895
00:34:41.890 --> 00:34:43.757
determining section 52
896
00:34:43.757 --> 00:34:45.660
and the definition of first offense.
897
00:34:45.660 --> 00:34:46.493
So those determinations,
898
00:34:46.493 --> 00:34:48.230
those are cases that have occurred before arraignment
899
00:34:48.230 --> 00:34:49.380
in that type of regard.
900
00:34:51.040 --> 00:34:54.030
So but I mean, the difference between this case
901
00:34:54.030 --> 00:34:56.420
and Humberto and Orbin and Newton
902
00:34:56.420 --> 00:34:59.970
is that the statute provides for the possibility
903
00:34:59.970 --> 00:35:02.713
of a juvenile court judge having the authority
904
00:35:02.713 --> 00:35:04.880
to dismiss the case,
905
00:35:04.880 --> 00:35:08.090
which you don't have except in 72A.
906
00:35:08.090 --> 00:35:08.960
I see my time's expired,
907
00:35:08.960 --> 00:35:10.057
but if I may answer the question.
908
00:35:10.057 --> 00:35:10.890
Yes, of course.
909
00:35:10.890 --> 00:35:11.743
Yes I would agree with that,
910
00:35:11.743 --> 00:35:15.300
that this legislature has provided this as a mechanism.
911
00:35:15.300 --> 00:35:17.510
Okay, so I mean it seems that the issue of CORI
912
00:35:17.510 --> 00:35:19.270
is not so much in article 30 issue,
913
00:35:19.270 --> 00:35:21.550
'cause the judge here has the statutory authority
914
00:35:21.550 --> 00:35:24.010
to do what a juvenile court judge would not do
915
00:35:24.010 --> 00:35:25.300
in other circumstances,
916
00:35:25.300 --> 00:35:28.000
but it's a question of, it's a prudential question
917
00:35:28.000 --> 00:35:30.330
of whether a finding of probable cause
918
00:35:30.330 --> 00:35:32.117
should trigger a CARI.
919
00:35:32.117 --> 00:35:34.159
Yes, a CARI, not a CORY, I just wanna be clear.
920
00:35:34.159 --> 00:35:34.992
CARI, you're right.
921
00:35:34.992 --> 00:35:36.670
A CARI record yes.
922
00:35:36.670 --> 00:35:38.310
But in the statute, correct me if I'm wrong,
923
00:35:38.310 --> 00:35:40.372
it says discharged, not dismissed, right?
924
00:35:40.372 --> 00:35:44.320
Yes, it's discharged or it's dismissal of the juvenile
925
00:35:44.320 --> 00:35:46.220
complaint to issue a criminal complaint.
926
00:35:46.220 --> 00:35:48.184
I apologize that I was using those terms interchangeably.
927
00:35:48.184 --> 00:35:50.160
Right so the discharge seems to me to be something
928
00:35:50.160 --> 00:35:54.200
that should not trigger a CARI.
929
00:35:54.200 --> 00:35:55.290
Correct?
930
00:35:55.290 --> 00:35:56.740
'Cause in some ways
931
00:35:56.740 --> 00:35:59.835
the defendant, the juvenile may disagree with this,
932
00:35:59.835 --> 00:36:02.110
but the commonwealth should be incentivized
933
00:36:02.110 --> 00:36:03.060
not to bring these
934
00:36:03.060 --> 00:36:06.560
because it could lead to an ultimate discharge.
935
00:36:06.560 --> 00:36:07.393
Yes I would agree.
936
00:36:07.393 --> 00:36:08.510
Under the interest of justice,
937
00:36:08.510 --> 00:36:10.140
the juvenile court should say,
938
00:36:10.140 --> 00:36:11.570
you have probable cause,
939
00:36:11.570 --> 00:36:13.270
but I'm looking at this thing
940
00:36:13.270 --> 00:36:14.570
and given the passage of time,
941
00:36:14.570 --> 00:36:16.410
the gravity of the offense, et cetera,
942
00:36:16.410 --> 00:36:17.920
the matter's discharged.
943
00:36:17.920 --> 00:36:19.090
I would agree with that happens,
944
00:36:19.090 --> 00:36:21.400
it'd be a disincentive for the commonwealth to delay
945
00:36:21.400 --> 00:36:24.740
is that there is a safety valve essentially in place
946
00:36:24.740 --> 00:36:28.210
to ensure that only proper cases can go forward.
947
00:36:28.210 --> 00:36:29.043
Excuse me.
948
00:36:29.043 --> 00:36:31.180
And I would note that in Newton N.
949
00:36:31.180 --> 00:36:33.393
This was partly deciphered that
950
00:36:35.730 --> 00:36:37.570
this could result in an entry on a CARI,
951
00:36:37.570 --> 00:36:39.300
but without the legislature acting
952
00:36:39.300 --> 00:36:40.790
and providing this authority
953
00:36:40.790 --> 00:36:42.640
it would be a violation of separation of powers
954
00:36:42.640 --> 00:36:44.490
to dismiss a legally valid complaint.
955
00:36:45.470 --> 00:36:46.303
Okay, thank you.
956
00:36:46.303 --> 00:36:48.300
All right, thank you very much, your honors.