Gants: Cornelli would you please call the case?
Cornelli: Yes, Chief Justice Gants.
It's the matter of Committee for Public Counsel Services
and another v. Chief Justice of the Trail Court and others,
SJC-12926.
Gants: Before we begin, could we have a roll call
of all those who are present,
first with respect to the Justices of the court.
Chief Justice Ralph Gants to go by seniority.
Gaziano: Justice Frank Gaziano.
Lowy: Justice David Lowy.
Budd: Justice Kimberly Budd.
Cypher: Justice Al Cypher.
Kafker: Justice Scott Kafker.
Gants: And I will note that the Justice Lang
percused from this case.
Could be could those represent Maqbool CPCs
ACLU identify themselves?
Rebecca: This is Rebecca for CPCs.
Antony: This is Antony also for CPCs.
Match: Good morning, your honors, this is Match Ego
for the Massachusetts association of law defense lawyers.
Jesse: Good morning, Your Honor,
this is Jesse Rossen on behalf of backbone.
Gants: On behalf of the Attorney General?
Eric: Good morning, this is Eric Haskell
Assistant Attorney General, With me on the line
are my colleagues David Kravitz and Mindy klonoff.
Gants: On behalf of the trial court
and the probation service.
Daniel: This is Daniel Sullivan on behalf of
the Chief Justice of the trial court.
Gants: And do we have anybody from probation
and Sarah Joss with us?
Daniel: Yeah, I'm speaking for probation
as well, Your Honor.
Gants: You are, okay.
On behalf of permanent corrections in the parole board.
Charles: Charles Anderson department of correction.
Gants: On behalf of the DEA of Suffolk County.
Dan: This is Dan Adelanto about any raised allowance
and with me on the phone is Liz Riley,
Deputy Chief of our community.
Gants: On behalf of the district attorneys
for Berkshire, it'll district a Northwest.
Thomas: Good Morning, Your Honor,
This is Thomas Ralph on behalf of those districts
with me on the phone is District attorney Mary Ryan?
Mary: Good morning Your Honor.
Gants: On behalf of Bristol County in the remaining days.
James: Good morning Your Honor,
James Sullivan from the Worcester County District
Attorney's Office, and with me on the line is Elizabeth
stumpy Sarris, legal counsel
in the Hampton County District Attorney's Office.
Gants: And on behalf of the Sherif.
Robin: Morning Justice Gants on behalf of the 14 Sherifs,
It's Robin Hanna's along with the line with me
is Dan in attorney damn bear.
Gants: I believe we hit Sherif dilution,
Is he also on the line?
Peter: Yes, Chief Justice Peter contusion
with our executive director Carrie hill on the line
I chimed in before you did, Bob, thank you.
Gants: Is there anybody else who was on the line
who has not identified thore.
Andrea: Good morning Your Honor
District attorney Andrea herring.
Gants: And on behalf of the special master?
Robert: On behalf of special master,
this is Robert Guns from ropes and gray and with me
is my partner, Joshua levy.
Joshua: Good morning Your Honor.
Gants: Good morning.
Is there anybody else who has not yet but--
Gloria: Yes good morning.
this is Gloria Maroney chair school board
and I am on the lind to assist attorney with any questions.
(cross talk)
Gants: I'm sorry.
Woman: Appearing for the ladder.
Derrick: And David rank of his Derrick
during a note related to baseball.
Gants: Right What that will do that one that
Christie case will do that.
Please this one, so in fact probably take a break
to finish this case where we convinced that.
Okay, we are here with a rather extraordinary
hearing an extraordinary time.
This is the first telephonic for human to my knowledge
that this JC has ever conducted.
And I love the years on the courts.
It's the first time that I recall having a case
in which we have nine parties arguing.
Their cases to be heard de CPCs
versus the trial of Massachusetts and
great to hear the case of versus Commonwealth.
As You have been informed, although we generally live stream
cases in ordinary times, this case will not be live streamed
of the of the telephone call will be made available
within one hour after the conclusion of our hearing
in the Christie versus Commonwealth case.
I know that there has been some discussion with with regard.
So, let me help gaining some perspective
or for many years as you know, during ordinary
videotape, and by the live video and audio
of all of our arguments.
And they are available through live streaming in order
to maintain the audio quality of this particular argument
and preserve it to be heard.
We have come to the conclusion that we are unable
to livestream it and therefore we'll make it available
as soon as practicable after the hearing.
I will note that the Supreme Court of the United States
even in ordinary times does not livestream or provide
the audio visual of their particular hearings.
In fact, in even in ordinary times, on the afternoon
of each argument, the court will post
a transcript of that day's arguments.
And an audio of the week's arguments becomes available
only on the Friday of each argument weeks,
we'll be providing an audio well before what
the United States Supreme Court
does even during ordinary times.
And I will also note that the United States Supreme Court
is not hearing arguments, they have postponed arguments
indefinitely as a result of the pandemic.
So by before we begin to commence the arguments,
I want to first make a number of thank yous
and then I also want to provide a protocol
for the the argument my first thank you goes to a special
master Brian O'Connor and to his colleagues that ropes
and grade not only his partners and Associates,
but also the staff who assisted them,
who have served pro bono in the role of special master
and have worked tirelessly
over the course of the last few days.
As you know, special Mr. O'Connor has submitted a report
and recommendation, which was received by me
at roughly 10 Pm last night.
It has been furnished to all of you, I believe,
very early this morning.
And I know that that is a short timeframe for all of us
to digest the report but it is the it is what we're
what we're dealing with.
So I thank him and all of his colleagues
for their extraordinary work
and they're very thoughtful work product.
I also want to thank all of the attorneys in this case
and all of those involved with the attorneys
for submitting supper briefs and supporting evidence.
As in a very short timeframe, I know that you have worked
very, very hard and very diligently in providing us
with briefing which will greatly assist us
in reaching this decision.
So I thank all of you for giving up your nights
and your weekends and working extra in extraordinary
fashion to address the matters of this extraordinary case.
And last, but not last, but certainly not least,
I also want to thank our clerk Fran Keneally,
who has been nothing short of heroic,
in attempting to arrange for the logistics of this argument.
So I thank him and his staff for all of the work
that they have done.
All we all know that all of this will have you have operated
in a very short timeframe.
This case was filed on March 24.
It is now March 31.
That means everything that has been done,
has been done within the last seven days.
The timeframe of the argument has been shaped
by the exigency of the situation which we all face.
And I think perhaps there's no better way to reflect
the importance of having this matter resolved as quickly as
practicable by the fact that the number of individuals
in Massachusetts who have tested positive
for COVID-19 has increased by 500%.
Since the date of filing in this case.
Let me discuss now the protocol that we will maintain
in view of having this to be a telephonic hearing.
Each party who will argue will have roughly three minutes
to argue without interruption of questions.
If you wish to invite questions before then
you certainly may do so you certainly simply say Your Honor,
I now welcome your questions.
And we will then commence them.
If you go beyond three minutes I will you may find yourself
getting a question before too long has has passed
so that will give you a certain amount time
to be able to present your arguments, before we commence
questioning and I recognize that some of you
only have five minutes.
So you should think carefully as to whether you want
to use most of that time to present argument
or to answer questions.
And I leave that to you.
I asked that for those who are not speaking
that you put your phone on mute, so as to avoid
any background noise that may interfere
with the quality of us to hear and for the public
to hear the recording once it is made public.
If you are not using a cell phone, I asked you to silence
the cell phone, so that we don't have the ringing of cell
phones during the course of this argument.
When the questioning of the justices commences,
the questioning will commence by seniority
that is since justice lank is recused from this matter,
Justice Gaziano is the senior justice and he will question
first when he has finished his questioning.
Justice Lowy then Justice Budd, then Justice Cipher,
then Justice Kafker and then I will be the last person
to ask questions.
When I have concluded my questioning, I will then give
each of the justices again by seniority and opportunity
to ask the follow up questions.
And when those questions are done, the time will end.
I will serve as the timekeeper with regard to this,
we have explored the possibility of a one minute buzzer
but it's not likely to work.
So I will seek to give people a one minute warning.
But as with all arguments, the question that the time
will not end until the justices have completed any
and all of their questioning.
Now, this is hard.
I think you will understand hard
for us to be doing this this way.
I think we can anticipate that there will be some glitches
I ask that all of you have some degree of forbearance
as we work through this, and that all of us keep our eyes
on the prize, which is to get this thing right.
So, with that protocol having been set, I will turn to
the first attorney who will argue on behalf of McDowell
and I'll turn to Mr. Segal when you have 15 minutes.
Segal: Thank you, Mr. Chief Justice,
and may it please the Court.
This case presents this court, the parties
and the special master with an opportunity to save the lives
of incarcerated people who are especially
vulnerable to the corona virus pandemic.
And in doing so, to save the lives of many others,
three principles should guide the Court's decisions
about the weather and how to use
it superintendents powers to achieve that goal.
First, time and consistency are critical.
So it's important for the court to act swiftly,
preferably today to initiate the uniform remedy
for the entire Commonwealth.
A good remedy today will save more lives
than a somewhat better remedy implemented
and initiated on Friday.
Second remedy should be initiated but not fossilized.
We don't know what news will arrive in two hours,
let alone two days.
So any remedy--
-: [Machine Talking) Now joining name not recorded.
Segal: So any remedy should be subject to constant
re-evaluation and risk adjustment.
And third, it is important to grapple with the reality
that a remedy will not release adequate numbers of people
and thus will not save lives if it is drawn so narrowly,
that the defendants eligible for the remedy
or those who have never had been locked up
in the first place.
So those are the three Points
re-evolution in meaningful relief to save
lives of people in the Commonwealth.
With that, I welcome questions.
Gants: Justice Gaziano?
Gaziano: Good morning Mr. Segal.
One question I have on regarding the scope of your proposed
border on page 16 and 26, you asked for the immediate
release of all pretrial detainees age 60 or above.
Back in 2009, there was a defendant by the name
of Edward Corliss who was in Superior Court in Boston 861
or two, who killed a store clerk in Jamaica Plain.
Mr. Clothes hasn't been released on parole from a second
degree murder when kilson enough still a clerk in 1971.
If we roll your way, a defendant like everyone close in,
as well untold numbers of Child rapist
would be released immediately.
Does that case illustrate the danger of this categorical
approach versus in an individualized approach in assessment?
Segal: Good morning, Justice Gaziano.
We take the point and, and for that reason we have worked
over the weekend with a special master and acknowledged
in our library filed yesterday that we welcome an approach
that would permit individualized review and objection
by prosecutors to the release of any particular individual
and we are open to particular categories of people who would
presumably not be released at all pursuant to this process.
There is a now before you a report and recommendation
that We just think goes to swings the pendulum too far in
the direction of the keeping people inside and therefore
not taking enough releases
in which curve this pandemic is.
Gaziano: I'm very curious for them seagull,
which what part of the two now as far as the
categories of crime in your opinion?
Segal: That, there I would point
to three things, Your Honor.
The first is that the categories are very broad.
So broad in fact, that, that even people who are
held on bail after being deemed not dangerous enough
to to be held under 58 A would still be ineligible
under certain provisions
for a presumption in favor of relief.
There's also the the x carve outs for people
under Chapter 140 section 121,
so that's one category.
A second piece of the report recommendation that gets
us concerned is the five year look back, which says that
if someone would otherwise be presumptively released
under this arrangement, the they would not be released if,
let's say four years ago,
they were serving a sentence for a drug crime.
In the final thing I would point out
is the overall issue of bail.
The right now there are people being held on, on bail
in the Commonwealth who are in three different
three circumstances they were unanticipated at the time,
the bail was imposed.
The first is that their pre jobs attention
could now subject them to a deadly disease.
The second is that every bail in Massachusetts is now harder
to afford because we are experiencing massive joblessness.
And the third is that pretrial detention is now indefinite
detention because trials can be scheduled.
So those are the kinds of issues we have, but, but again,
we we started we initiated this case a week ago
which as she just pointed out, it's like a year ago now
to to to propose a remedy, but we have worked significantly
with the parties and the special master to allow for
individualized review in every case.
Gants: Thank you Segal.
Any further question just, Thank you.
Justice Lowy?
Lowy: Morning Mr. Segal.
The first thing I'd like to say is that this Master's report
is really quite a document in such a short amount of time
actually in any amount of time,
but I do want to ask you about the categories,
for pre release it start on page three
in this five categories of pre release.
I like to focus on the third category because as I
understand these categories of pre release.
They are not cumulative if somebody is eligible under
any of them, then they're entitled to the presumption
and, and, and as it relates to anybody who's not entitled
to the presumption does mean they're not titled
to an individual hearing, but the category that would allow
anybody on a bail of 5,000 dollars or less
if they haven't been determined dangerous, under 50 A day.
The concern with that category they ask you to speak to
is that sometimes, the District Attorneys for strategic
reasons or resource reasons, don't request the 50 A day
and in good faith, do not request them a bail
to prevent a detention purposes.
But they believe the bail that's necessary to reasonably
assure the appearance of the individual is the best way
to approach the case and in the category that's going
to allow anybody with a bail of 5,000 dollars
or less subject to the conditions for one of which you've
mentioned the five year look back.
Should that fall?
All those individuals should have a right
to an individual hearing.
My concern is whether or not that category that focuses
on that there was no 58 A should every one of those cases
be entitled to the presumption suggested by the master.
Segal: Good morning Justice Lowy.
If I understand the question correctly,
I think I have two, two responses.
The first of which is is an explanation
and the second of which is sort of a confession.
The, the explanation is that is that we don't think that
this is categorical release in any cases currently
constructed, it's giant it is a, it's, a it's a tipping
of the scales that it would otherwise be favoring detention
right now in favor of release.
Lowy: I appreciate that.
Segal: Right, and and we assume that in any case in which
any of the conditions that you you mentioned,
your honor apply, district attorney would do a very good job
of pointing that out for the court
and would make something likely prevail.
But the second thing and here's the confession, I mean,
we're all flying blind here.
We don't know what the what the situation is going to be in,
in the side prisons and jails soon and none of us,
despite best efforts, know really how many people are going
to be released pursuant
to this process or any other process.
And that's why, what I said at the my second point
at the outset is the it's really crucial that this theory
evaluated if this is implemented today,
We get the list back and it's, it's too many people,
you know, people that people are getting out,
you know, being suggested for at least or inappropriate
candidates that the district attorneys can raise that.
If it's, if we get reversed in two days or three days,
and there are only five people to guess a pre release,
then we will know that that's not going to curb
the tandem again.
So I acknowledge that I, like everyone else don't exactly
know what the outcome of this process is, which is why
we think it ought to just begin the initiated end
and be subject to revision.
Gants: Thank you Mr Segal.
Segal: Thank you,
Gants: Mr Lowy, any further questions?
Lowy: No, thank you, chief justice.
Gants: Justice Budd.
Budd: Hi, good morning. Mr. Siegel.
I think I've read in the special masters report that anyone
seeking relief would be tested.
Is that right for COVID-19?
Segal: Good morning ,am not entirely sure I know there
is a provision in the in the report, which seems to suggest
that actual a presumptive cases would be subject
to a different process may be held back.
I think one of the issues that we're dealing with right now,
Your Honor, is that nobody knows what the testing protocol
is any is inside prisons and jails.
Budd: Okay, so that's something we'd have to figure out?
If somebody presumptive was presumptively
positive for COVID-19.
I think in the report, it said there
would be a review process for that.
What is Mac dos recommendation for somebody who test
positive for COVID-19, but otherwise meets the whatever
standard we decide is appropriate for release.
Segal: Your Honor, that's a very difficult question
and it relates also to your questions concerning for people
who may experience home muchness if they are released.
But what we have what we have done is we have worked
very hard with a special master to provide information
about service providers who can place people
and how in homes, and who can make sure that medical needs
including a potential need to self quarantine can be met.
And so we really think there should be an individualized
review to determine in the case of someone who might have
the disease or experienced homelessness, whether they can
pay for the place somewhere.
But we also think, Your Honor, that as that as a legal
matter, the restrictions placed on such people should near
those that that exists for people who are not incarcerated.
For example, if I believe that I am sick right now,
I made a foreign team but I'm not going to be locked in
a prison and so someone is wrapping up a fence or entitled
to relief under this provision, or under a court's ruling,
they shouldn't be locked up because they've been diagnosed
or presumptively died.
Budd: Well, I, I don't disagree with that but I guess
some I'm wondering how do we make sure that the virus
isn't isn't spread as a result of of the release?
And obviously, that's a concern as well.
Segal: I don't disagree, Your Honor and and so that's why
I think I would go back to the point about working with
social services in conjunction with a special master
to make sure this happens, which is what is happening
right now in India in the settlement that was reached
in New Jersey, but also, this is why it's such a difficult
problem that that's why I keep emphasizing
that getting the process underway.
Is is so important, because however many people are going
to be in that difficult situation.
It's going to be more tomorrow and the next day
and the next day than it is right now.
Budd: That's very much
Gants: Justice Cypher.
Cypher: Thank you and good morning.
Good morning, Attorney Segal people most of my questions
have been an answered, I just want to clarify
and make sure I understand your position
now in light of the special masters report.
Is it fair to say that in general, you're looking at a
categorical approach that then turns into an individualized
approach and re entry services or needs to be addressed?
Segal: Your Honor, I think that is mostly fair to say.
I mean, where we start from it at macro is the need
to accept releases in sufficient numbers, to make a
difference to the folks who were released and
to the folks who remain inside into the community.
So honestly, if it were sort of like what this court did
in the hit lab scandal and just achieve a certain number
of releases, there be a crazy good argument for prosecutors
to have much control over all those.
But another approach which we are okay with is the special
masters approach which says, Let us create a presumption
for certain categories subject to what we assume will be
very rigorous objection, in some cases
by by those on the law enforcement side.
And I also just want to say it partly as a response
to the last question.
This is not a situation in which this disease exists only
in the prisons and jails,
it's already in the community as well.
So, so what we're trying to do is to avoid a situation where
we overwhelm the resources, the health care
resources of the Commonwealth and, and that's why
it's really it's really about the numbers and everyone talks
about flattening the curves, and that's why we need a remedy
that cheese certain numbers are releases,
and why it would need to be reevaluated very quickly.
I'd say twice a week, if it does not.
Cipher: Okay, thank you,
Gants: Justice Kafker.
Kafker: And Mr. Siegel, I really appreciate your point
that we, you know, we need to move extremely quickly
and we can't try to get the perfect document right here.
My question is, it's a follow up to Justice Gaziano knows.
You know, I've just read the special master report like you
quickly this morning, but it seems like an carefully
calibrated and balanced attempt to deal with both the risk
to the inmates and the detainees and the risk to the public
of releasing people who've been accused or committed crimes.
I'm trying to refine what you want us to improve
and I know you don't like the five year look back prevision
do you have, for example, alternative language
that you would put there, I didn't quite understand
your point about bail as specifically as possible,
particularly if you would like us to get this
out in the next day or two.
How do we improve the special masters draft in a way that
you think would make it better Bro?
Segal: Good morning, Your Honor.
I appreciate that question and I think in the spirit
of not letting the perfect be the enemy of
I don't know,
like a life raft.
Right?
I would say this,the things that could be done quickly
in the context of this document would be to exercise
the, the, the five year look back and to limit particularly
the, the definition of excluded offenses, which sweeps
in things like section 121, and the lycans,
and certain drug crimes, so we're just gonna, you know,
we have a concern that very few people will be eligible here
and those who would be eligible or will be white.
And, and and I think another thing that could quickly
be inserted, again, in the spirit of I think if your
question would be to say that if there are counties where
there can be agreements to, to go above and beyond what is
required by the letter of this agreement, that should
be pursued, if there is a District attorney believes
that is necessary to save more people.
That District should be able to work out something
with the petitioners.
Cypher: Doesn't the document have a couple
of those type of failsafe or flexibility provisions
in there?
I know there was some that you know,
individuals excluded from this, you know, was precluded
from seeking this type of review.
I take it there's nothing that would prevent the DBAs
and defense counsel from, you know,
expediting this even faster, this is required, right?
Segal: Your Honor, I believe that's it perfectly accurate
description of the existing document and if your sentence
you just spoke were to be added to it,
I think it would be even better.
So likely this is because I was taking on it probably just
because part of the virtue of this document at least to
thunders understanding, is to make things more uniform
throughout the entire state.
Everyone's scrambling around not knowing where to go for
their hearing for how to set them up
or what rules to invoke.
And so setting the tone for the state including what the
procedures are, and that there need to be some releases,
and that where there's agreement, it would be good to always
allow that to go forward I think would go a long way.
Cipher: Thank you, that's all I have.
Gants: Mr. Siegel, this is Chief Justice Gants.
We've been focusing to some extent in the questioning with
regard to those who were detained awaiting trial.
For him, clearly our superintendents power would apply
and will be turned to those who have already been convicted
and are serving sentences.
I know that the Masters recommendation suggests that we
use our authority under rule 29 for revised and revoke
what extent would the exercise or the revision of a rule 29
authority raise issues under Article 30?
Segal: Good morning, Mr. Chief Justice.
We think that this is not at all the type of situation
in which revising a rule 29 to address this Particular
crisis would have would create
separation of powers problems.
What we have proposed in the reply brief is slightly
different, but I think consistent with the special masters
record, which is where we think it will could be revised,
revised to account for the current facts, to eliminate the
timing deadline, and to say and to make clear that the trial
judge who could order relief under Rule 29 could include
the single justice in this particular case that which
would create more opportunities to speak to people.
I would say in addition to the authorities, we cited pages
22 and 23 of our applied research on this point.
I would also point your honor to Commonwealth against
Rodriguez, which is at 461, match to five six for the court
ruled in 2012 that rule could be invoked
even to by decree agreement.
And I think the reason why that's that's true
and why revising the rule in this situation is that it would
not be problematic is really this the concerns that can
arise under separation of powers or when the court is acting
like a grantor of clemency, or like a supervisor of the
growth and parole eligibility of the descendant.
That's not the situation here.
This is more like a situation in which the sentence
that a court imposed turns out to be through inadvertent
deadly inadvertence not the one that it intended.
It's like finding out that you've sent the sentence
a prisoner to a prison where there is mustard gas,
floating through the facility,
or where all the chairs are electrified.
And the court says, I meant to sentence this person
to this one kind of sentence,
but his turned out to be a potential death sentence.
I need to fix that.
And that authority to fix sentences is squarely within the
power of the judiciary.
Gants: Now, when you're revising, revoke the
a permanent change,
or what it simply provides some sort of a stay.
Segal: But, Your Honor, to simply stay a sentence.
The court will not even need to change rule 29.
It could simply invoke the power is described in
Commonwealth against Charles, the hidden lab case about
the status of sentences that arose in that situation.
But would you think that it would be appropriate here to
allow not only for the status of sentence but for the to
revise and revoke them and that would, would
require a change, probably triple 29.
I'd also point out that here too, there could be some
opportunity to go beyond what is strictly required.
In a situation in which people are going to be led out
either on stage or revised replication, we're talking about
people who are going to go and resume their lives.
We don't we don't know how long this pandemic will last
and so we will encounter situations in the future in which
people may have to be pulled away from jobs and family to
serve a sentence that the prosecutor themselves might feel
is doesn't need to be sorted out,
and it doesn't need to be finished.
And so it there should be some opportunity, we think,
for prosecutors and defense to reach time served please,
at the end of this process, how long however long it lasts,
but the short answer your question,
I think, is that stays can be done.
As a matter of case law and shortening sentences could be
done as a matter of amending rule 29.
Gants: And with regard to stays, those are generally
stays pending appeal, would it be your view that they would
apply it individually who do not have pending appeals
or motions for new trial?
Segal: I think that the rule could be revised,
Your Honor, even within the absence of a pending motion.
And and that is one reason why we think that the trial judge
for purposes of the revised rule could be the single
justice, it should be possible to streamline this process.
And as we said in our reply brief, and as your honor pointed
out in the remarks you gave at the beginning of this
argument today, the normal procedures make a lot of sense
under normal times.
But the problem right now is that there's normal procedures
are just not fast enough to to be meaningful for the people
who are locked up.
Gants: I have no further questions to discuss,
Justice Gaziano, any further questions you might have?
Gaziano: No, thank you, Chief.
Gants: Justice Lowy?
Lowy: No, thank you, Chief.
Gants: Justice Budd?
Budd: All set.
Gants: Justice Cipher?
Cypher: No, thank you.
Gants: Justice Kafker?
Kafker: All set.
Gants: All right Mr Segal thank you.
Miss Jacobs Stein.
Rebecca: Good morning,
your Honor Rebecca Jacob Stein for CPCs.
I just want to let this court know about the things that
CPCS is doing to help with this process
because we're ready to go.
We have, we are working to get our teams together
for the review process in every county.
We have our FSA as our social service advocates have been
working very hard to gather all the information for all the
people who are going to need help,
if they are permitted to go back home.
We've got substance abuse, and mental health
and this these are things that we set people up with,
you know, as a matter of course, and we will continue to
and you know, redouble our efforts and we have also been
working to find places for people to go,
who may not otherwise have places to go.
I also wanted to address the courts questions briefly about
how about the excluded offenses?
Because I think it's follows the document.
I don't think there are that many people
who won't feel to be eligible.
If they were that's great, then we have no objection.
The goal here is to get out as many people as quickly as
possible, so that the people who remain can practice
social distancing and keep safe.
That's That's the goal and however this court wants
to get there quickly, we are in favor of so but we don't we
think that the excluded offenses are going to hinder that.
So, options we have for seen as kind of the biggest obstacle
is the residual clause which has been deemed in the
constitutional that that exists, and also the force clause
under 58 A.
The fighting over what counts as something in there under
the residual clause or under the fourth clause,
it's just going to come up to work.
And for people who are again in on offenses that could have
raised 58. A, but they didn't,
I think that's it speaks to it already.
We think all firearms offenses is overbroad, you know that
it covers improper storage and covers possession
of a firearm without an FID card and these don't even have
mandatory minimums and motor vehicle homicides,
which has terrible outcomes,
or where people are often killed by accident.
So it's not that you know, it's just not the same thing.
So those things we think could come out.
So that I realized that time is of the essence here.
So I would like to if anyone has any questions,
Gants: Okay, Juatice Gaziano.
Gaziano: Come on, let me let me ask you a mechanical
question, because as I went through the very well written
matches report as you said, the exemptions have very dense
and it takes you a while to get through them and say we pair
that back or do something else with it.
What I wonder is the inception of this process where you,
you probably have your committees ready to go.
Could it be would it be more expedient if you get a list
from the jail in and or the DA that say, here are all the
people in a particular county
that are held pending, pending trial?
And then CPCs can get that list in either they represent the
people or someone usually because indigent someone under
their auspices represents a person, then the defendants file
that motion and we have expedited hearings in the superior
court or district courts of BMC?
I'm just wondering if we need the first step, to be so
complicated, it'd be quicker to do it that way.
Rebecca: Your Honor, I think that this would have been a
fantastic process if we'd started it like two weeks ago,
Because if we had the names of all the people in the jail,
unfortunately we have CPCS do not are not able to track
every single person that's still incarcerated.
Then, yes, this is something we would do.
But now it's too It's too late, I can tell you that.
We have people in our office,
and I've been hearing from bar advocates as well.
Statewide are encountering difficulties getting heard I,
you know, I heard from someone who, who set Trade Centers
and last Thursday, finally figured out how to get a clerk to
do something with it and they're hearing.
Gaziano: White women vision in though is if we order
these hearings to be expedited, say within 48 hours.
So so so you file the motion, right?
So you have your listserve, you follow the motion,
you have a form that I'm You fill in the blank,
you put the person's name Joe Jones, his name on it.
And it gets filed in the relevant court in this in through
order we have expedited hearings.
Rebecca: I think again--
Gaziano: Quicker than then this other process.
Rebecca: It's not I mean, first of all, we have seven
district attorneys who are objecting to this entire thing.
So I can't imagine that they're going to agree with
anything, which means without a presumption, we're going to
have a lot, a lot of hearings
in with very few judicial resources.
So that's the first thing I think that without guidance,
we're also having disparate income, disparate incomes,
different outcomes across the state.
And that is why we get originally asked for all of this to
go through the single justice because what we're seeing in
some courts is awesome, and what we're seeing in other
courts is really discouraging.
We're agreed upon, agreed upon you know,
really are being denied.
Well, you know, I certainly I hear you and I understand
and I think in, you know, two weeks ago,
that would have been great.
I just don't see us being able to do it.
However, let me say that it would be great, If we did get
the list of people who are in the jail
Gaziano: The time, I assume.
Rebecca: Wait, well, so I think the first step in the
special masters report is they'll get into that.
Gaziano: I'm just wondering about the lag time and
whether that's going to cause too much
delay in and of itself.
And how practical it is to to to put to go through the
jailers to try to correlate that with the exemptions.
I don't know how that can be done in 48 hours.
Rebecca: Well, I think, Your Honor, I mean, I I can't
speak to it, because I haven't seen the jail.
So I don't know how many people are, are in their pre trial
but I'm guessing having seen jail list in the past
and what they have, I think it's probably
going to be very easy.
Once you take out everyone who's got these excluded offenses
to see that there's pretty much nobody eligible left.
So whoever is left, I think we should be able to find them
relatively quickly but also, I do think that part of the
problem is because things like the forced clause
and the residual clause are in there now.
And also the five year look back, you got to pull.
Everybody's you know, of course, it has to look at their
core and figure out when they were last incarcerated.
I mean, it's just, it is it's logistically
very, very difficult.
And if we could simultaneously have a jail list and bring
people to bat attention, that would be fantastic.
Gaziano: No further questions, Chief.
Gants: Justice, Willie.
Willie: Yes. Good morning.
I'd like to follow up on Chief Justice Gants with questions
about revise and revoke and assuming
I'm not sure these Correct.
But assuming that the 60 days could be extended
within a superintendent power.
What about the issue
of considering post sentencing circumstances?
We can't talk in terms of post sentencing conduct.
In the revised revoke cases, where do you see
this circumstance that we're in now, as it relates to the
doctrine, applicable, revise and revoke?
And following up on the Chiefs question with that mine is
relates to separation of powers.
Rebecca: Oh, I think that, well,
sentencing is always with the court.
So, you know, I think that if, you know, and we don't
review sentences, for reasons of banality,
but your honor did point out that this is in
conduct this is more attentive into the cases where,
for instance, somebody else that sentence and then the court
said, "Well, my sentence is unfair in light of that,"
but that doesn't change.
That isn't a new conduct or, you know, since sentencing.
So, and I would.
So I just I don't really see the separation of powers issues
where the sentencing is in, in the hands of the court
and also where the court is in charge of the rule.
And, you know, can make temporary rules like, for instance,
this court did in the Gomez case.
Willie: Thank you.
Gants: Justice Budd
-: {Budd] I'm all set, I don't have any questions
for attorney Jake Assange, thank you.
Gants: Justice Cypher.
Cypher: I don't have any questions either.
Thank you, Attorney Jake Assange.
Gants: Justice Kafker.
Brian: I'm Brian Jacobson.
I'm still again trying to be as specific as possible,
particularly because I share Mr. Siegel's concerns,
we have to do something fast and get it started.
So you identify the couple of excluded events is that you
don't like the gun offense, gun possession,
some driving offenses, but it's specifically
as possible if we're going to do this today.
Which, What do we change?
Rebecca: I think that you take the sub clause four of 140
sections 121 out otherwise involves conduct that presents a
serious risk of physical injury to another,
just crop that out.
Think that's one thing you can do, no problem.
Then under 58 A, you take out a felony offense that has as
an element the offense the use attempted use a threatened
use of physical force, because again, that's true.
It's too hard.
It's just too hard.
You know, we fight about that all the time
and that's too hard.
We'd also ask, so that's one under a, it's an eight,
a one, and then also five.
Brian: Okay, sorry, go ahead, go ahead.
Rebecca: Okay, so five, which is an offense for which a
mandatory minimum term of three years or more as prescribed
in the Controlled Substances Act,
and we'd asked that come out.
And then again, the homicide
or manslaughter by motor vehicle.
So those are things that I think we could quickly do
And then there's a sub seven, just sitting at any felony
offense, again, that has an element
as a as a strength as a physical force.
Brian: The other thing I'm confused by is your desire to
ship this to the single justice there.
I mean, realistically, there are only five of us who are on
the phone, who can be single justices.
How would I, I'm just I may have misunderstood
what you were saying, but you don't want to really turn this
over to the five of us to single justices,
as opposed to drawing on all the resources
in the trial courts do you?
Rebecca: I think so when we just have the theory was,
is that if we have a, you know, a bunch of agreements,
we just want to get that that through the single justice,
because then it's faster.
I think that for disagreement, I mean, so originally the way
we had it, you know, before the framework,
that's how we envisioned it.
But where there's disagreements that should go back to trial
searches, because that they're what they use.
Brian: So you want to process in which agreements between
the DA and the defense counsel can immediately go up to the
single justice for approval.
So you want and you don't think the
existing order provides for that?
Rebecca: Right, I just,
I guess that we have just in some of our courts,
we've just, it's been struggling and some of our courts are
closed, and you are definitely open for business.
So that's, that's really the concern is that we,
we get email addresses and people don't check them.
People don't know how to check them, courts are closed.
Some somebody gets sick, and it's just it's really
it's such an it's in such flux.
The single justice session is, is there, and it's,
it's ready to go.
And so that's the first reason we just we feel like
it would be faster.
Brian: Okay, that's all I have.
Thank you.
Gants: I've got a few questions of logistics.
So if John Smith has a particular counsel,
what would be the role of that
particular counsel at all this?
With, how do we work so that certain individuals are
designated to serve as counsel for john smith, even though
that was not his attorney during the course of the case?
Rebecca: So I think we've got the pre trial people and
the post conviction people for the pre trial people,
I think the goal is, is to get their attorney right on that.
But if their attorney is unable to get on that, because,
you know, because of the pandemic, then we we will have
another representative of the defense bar, we are putting
together teams, not just you know, the representative,
but teams of people who are going to be ready to contact
the jail, talk to the clients, get the information that they
need to make sure that they have the support they need,
so that we can do this.
But that's, that's the plan is to have, you know,
a kind of core of attorneys if pretrial people if they're
not available in post conviction, If they have an attorney
Still, we may give it to them or we may just keep
that with our question people.
Gants: And if individuals are privately retained
and are not indigent, how would it work?
Rebecca: I guess we have to give them a call.
We do provide most of that, most of that criminal defense
attorneys in the state, so just don't know
how many there are.
I can't speak to that, I think we take at least 80%
of the cases.
And I don't know what the percentage is for people
who actually go to jail.
Gants: I guess, if they're being presented by CPCs,
pursuant to an appointment by CPCs.
So I guess arguably CPCs could provide the appointment
for those who don't counsel may be
unavailable to address this matter.
Okay.
Do you see a difference by way between those who were
awaiting trial in Superior Court as opposed
to district court versus the BMC?
Rebecca: No, I mean, they certainly, they're more likely
to be held on what is currently an excluded offense.
Gants: I have no further question.
Justice Gaziano any further questions of you?
Gaziano: No thank you, Chief.
Gants: Justice Willie?
Willie: No thank you, Chief.
Gants: Justice Budd?
Budd: No thank you.
Gants: Justice Kafker?
Kafker: No thank you.
Gants: All right, thank you Mrs Jacob Stein.
Rebecca: Thank you Your Honor.
Gants: Now we'll hear from Mr. Haskell
on behalf of the Attorney General.
Haskell: Good morning, your honor and may it please
the Court I'd like to begin our remarks today with three
observations that informed my office's approach to this
issue over the past seven to 10 days.
First is a widespread recognition or an out by common sense.
And I think I hope widely shared, that prisons and jails
present very unique challenges when it comes to managing the
risk of this disease that,
that call for some sort of expedient action.
The second observation is that this space around
incarcerated persons who are there because of a judicial
order, stands at the intersection of certainly two and
really all three branches of government and that, that is
identity identity, excuse me a dynamic that needs to be
acknowledged and respected with
respect to any solution here.
And then our third observation, my third observation is to
refer the court to the six broad principles that were the
centerpiece of the brief that we filed very early Saturday
morning to the effects that any relief this court gives,
needs to be mindful of promoting the public health, not only
within Within prisons and institutions, but also of the
public, generally in this time, that public safety and
rights of victims need to be borne in mind at all times,
that any relief ought to provide the opportunity for
individual case by case review.
And finally, that any relief this court orders ought to be
temporary commensurate to the nature of the problem.
That is to say where the disease presents a temporary
problem that someday is going to be resolved.
This court should be ordering relief of a similarly
temporary nature.
My office played an active role in working with the other
parties and the petitioners, collaboratively and frankly,
tirelessly over the past couple of days to craft a report
and recommend recommendations the court has in front of it.
And our view is that report and recommendation appropriately
takes account of all of those
considerations that I just described.
And for that reason, our office stands by the report
recommendation and likewise recommends it to this court.
With that, I would I would welcome questions.
Gants: Justice Gaziano.
Gaziano: So I take it, Mr. Haskell, by your agreement
with the report, that you also agree that incarcerated
really incarcerated people under a revised rule 29 would not
violate article 30.
Haskell: That's, That's right, Your Honor.
And the best articulation of this space that that I found,
of course, my work on this case, was given by this court in
the Sheehan case almost 100 years ago in the 1920s.
Where the the division of power is, is described as
legislature setting penalties for crimes, the judiciary
imposing sentence and the executive branch actually
admit during and executing that sentence, that's a big part
of the reason, Your Honor, why the report and recommendation
was focused on the act of sentencing, which is within the
province of the judiciary.
Gastiano: Did you find any significance to the fact that
rule 29 specifically says a judge may not take into account
contact of a defendant has occurred subsequent sentencing
because of those very issues of executive function?
Haskell: Well, Your Honor, you're right.
That is the is the the message and that's the--
Gaziano: And that's the reason why rule 29
has a provision.
Haskell: Certainly rule 29 is set up a system that
discourages the judiciary from intruding on the prerogative
of the executive in this sense.
What strikes me about the law around rule 29 here is that
speaks more to the defendants posters.
The convicted defendants post sentencing conduct.
What we're dealing with here is a circumstance that, you
know, may have existed as some remote hypothetical
possibility at the time a sentence was passed down,
but now is real and represents a global change of
circumstances, that it really is nobody's fault.
Gaziano: Just circumstance existed when someone was
sentenced five years ago.
Haskell: Your Honor, the possibility of an exigency
like this, I think always existed but was never really top
of mind until the past couple of months.
Now that it is I think it loops back to the language the
rule 29 uses in describing unjust sentences, which goes to
whether justice has been done through the sentence through
the lens of what's happening right now, we believe that
that's an appropriate consideration with respect to
revising and revoking sentence.
Gaziano: Thank you, Mr Haskell no for the questions.
-: Thank you, Your Honor.
Gants: Justice Willie.
Willie: Yeah, good morning Haskell,
mentioned the issue of some agreed upon recommendations
to the court that pre trial detainee be released are on
not being adopted by the court.
And course each individual judge will make his
or her own decision.
Would it be helpful nonetheless, to include that within
this presumption of relief?
Haskel: Am sorry your Honor to include what?
Willie: Is agreed upon agreed upon recommendation that
pretrial detainees be released.
Haskel: So first of all, as to instances of this
happening, I have to say, having spent a lot of time with
these issues in the past week, I'm not aware of that.
And I would direct the court's attention to the affidavits
we submitted by the Chief Justice of each of the trial court
departments, as well as the affidavits that were attached to
the the seven DBAs memo, in which representatives with
various DBAs offices, you know, present facts about
what's going on in their counties.
Our sense is that the trial courts right now are really
doing their level best to address issues that are placed
before them on an emergency basis.
That having been said, Your Honor, to to answer the
remaining portion of your question, our view is that
the trial judiciary has a role to play in the solution here
and it's a very important role to play such that it would
be inappropriate to ask the trial judiciary to to rubber
stamp something even that's been agreed.
And that that information to allow the trial judiciary
to make an informed choice in each case where where there's
going to be a dispute or some opposition
is is appropriate is correct.
Willie: So I assume that you would be opposed to the
agreements going straight to the civil justice
based on your answer.
Haskel: Our view, again, your honors, that the trial
court is really in a good place to help
be part of the solution here as was noted earlier,
the single justice has limited resources.
There's there's only handful of you frankly, the trial
courts have better access to the files, in some ways,
better lines of communication to the DEA offices
in the defense bars.
So yes, that is our view, Your Honor.
Willie: Okay, thank you.
Haskel: Thank you.
Gants: Justice Budd?
Budd: Hi, good morning.
I'm just going back to the question about testing has
anybody looked into whether that's something that
can be done before people are released?
And I, you know, I understand we're all struggling here.
But from everything I I've seen and heard and read, testing
is important to sort of contain this and so is there has
there been given, has anybody given any thought to whether
there'd be some sort of testing protocol to make sure that
people are are free of the virus and not not going out to
spread the virus?
You know, they may be asymptomatic and that type of thing.
So I'm just wondering if that's been given any thought to?
Haskel: Yes, it certainly has been, Your Honor.
And as you know from the report and recommendations
document, there's actually a provision in there is on page
six going into page seven, about how those who are positive
or presumptively positive
for the disease ought not be released.
I think your question also loops back to one of the
principles that we articulate and stand on in our brief,
which is that any release ought to do more good than harm
to the health of the general public.
And I think those two considerations go hand in hand.
So if if a trial judge as part of any release, were to
order, or if a district attorney's office were to insist on
in connection with any release, that somebody who's going to
be released to be tested, especially in a situation where,
for instance, there are already instances of the disease
within the walls of that particular institution.
I think the report and recommendation of gives room for
that and that would absolutely
be an appropriate consideration.
Budd: That's not exactly what I'm talking about
because I'm talking about asymptomatic transmission.
So this is this is when people are walking around, not
realizing that they could be spreading the virus.
You know, we any one of us could be
spreading the virus, right?
Anybody who we release could end up spreading the virus
without even realizing it without having symptoms.
And so I guess I'm asking if there is a way to incorporate
a protocol for testing people who are released?
I and it doesn't appear that that's been contemplated,
but I'm wondering if it's something that should be?
Haskel: I think I understand your question and your
concern, Your Honor, and as to whether testing has been
baked into report and recommendation, basically as a
precondition of of any he's release.
You're correct, it's not required right now, whether it
would be whether it be appropriate or feasible,
I think would depend on a lot of considerations, including
the availability of the medical equipment to achieve that,
which I'm afraid I can't speak to.
Budd: And can you also just respond to
attorney Jacob Stein's argument or concern about
parties getting tied up in the force clauses 50
A day and so on?
Haskel: Yeah,
your honor the fourth clause of
the fourth clause of 58, A as well as the fourth clause
of chapter 140, section 121, which also appears the excluded
offenses, in our view is a key provision of the definition
of excluded offenses as we argue in Brief, any releases that
are achieved through through the relief that this court
orders ought to be protective of the public safety
and the presence of those provisions within
the definition of excluded offenses.
And our view is very important to help
safeguard the public safety.
Certainly, there may be some some questions around the
margins about whether a particular crime of conviction falls
within those definitions but our view is that the report
recommendation brings enough people to the table and
calls for enough resources and attention to be devoted
to this, this all hands on deck effort that's being
contemplated that those instances can be identified
and sorted through in in prompt order.
Budd: Okay, thank you.
Haskel: Thank you.
Gants: Mr Cypher?
Cypher: Thank you.
I wanna go back from the To the position that metal
and these CPCs have taken and see what your position
is with regard to these excluded categories
in the document by the special master.
Do you agree that they swallow the they swallow the
document, they really create too much of a block to
what we're trying to accomplish?
Haskel: We do not your Honor.
Going back--
Cypher: So if you don't, then do you have a subset that
you could carve out of that that would make it easier?
Haskel: I'm afraid we don't, Your Honor, the the entire
report recommendation, including the list of excluded
offenses, with the product of a long, hard drawn out
and very constructive conversation
over the past several days.
We are comfortable that the existing proposed list of
excluded offenses strikes the right balance between
all of the different in first, that we described in our
brief that we believe this court ought to be mindful of.
Cypher: Okay, One other, two more questions.
One about the whether it's a single justice at the trial
court, do you are you saying that you think even if there
is an agreement between the DA and the defense attorney that
it should still go to the trial court and shouldn't,
couldn't or shouldn't just come to the single justice?
Haskel: Right now, the the report and recommendation does
have those go into the trial court and specifically carves
out a role for the trial court to play there before the
trial court is asked to, to order those releases as to
whether those kinds of proposed releases ought to go
to the single justice instead.
You know, I think the considerations there would have to do
with resources on on the county courts side and whether
that's something the county court feels itself well
positioned to get involved with and also the possibility of
creating different processes for different categories.
I wonder whether that would create
more confusion than order.
Also mindful that under the existing report recommendation,
the single justice does have a role to play in adjudicating
summary type appeals from decisions made by the trial court.
And so those are the considerations that that I would
suggest the courts think about
in connection with that question.
Cypher: Okay, thank you.
And, and you contemplate when it goes in front of the trial
judge, even if it is agreed upon that the trial judge would
be checking to make sure that there are adequate services
or places for the people who live?
Haskel: Yes, going back to the principle that we
described in our brief about releases, ultimately serving
the general public health.
Yes, It's appropriate.
Cypher: Now bearing bearing in mind that the public
safety as you say that everything should take into account
the general public health,
what's your position on this presumption of relief?
Haskel: So the report and recommendation does call for a
presumption of release with with respect to the pretrial
detainees that are described in the document.
We feel that that's appropriate for two reasons.
First, the category of pretrial detainees that are
beneficiaries of that presumption of release has been very
carefully defined and demarcated, going back to list of
excluded fences, among other considerations.
And we feel that the definitions around who's eligible who
receives that presumption is part of what makes
the presumption appropriate.
The second thing that in our view makes that presumption
appropriate is the opportunity for the prosecutor to object
and for the trial court judiciary to exercise Independent
judgment, again, consistent with the principles discussed in
our brief about how rather than blanket or categorical
relief relief ought to be, is as best as possible made
on a case by case basis.
Cypher: Okay, thank you.
One more final question Chief before I say thank you
is that you might not be the right person to ask this of.
But do you have any updated statistics on the number of
people incarcerated, either as pretrial detainees or as
prisoners who are serving a sense who has tested positive
or has exhibited symptoms?
Haskel: Oh, on that point, specifically, I'm afraid I
don't that's I can offer on that information in the
Commissioner of corrections affidavit that we submitted.
Cypher: Okay, I'll wait till we hear from the
commissioners, thank you.
Haskel: Thank you, your Honor.
Cypher: I'm all set.
Gants: Justice Kafker.
Kafker: Just after that, I'd like to follow up on that.
Questions to on defense counsel on the constitutionality
of this for a second?
Cause when they will 29 seems like I mean, it's creative,
but it seems like an odd fit here.
Because we really revising and revoking these sentences.
You know, they weren't correct at the time we just got
this new public safety emergency.
Are there is there you've done a lot of research on this?
Is there any case law dealing with this kind of emergency?
It seems it's more like jail overcrowding, revise and
revoke but tell me why you believe this is constitutional
for incarcerated as opposed to pretrial detainees?
Haskel: So, Your Honor, I think that goes back to the
remarks that I made earlier in response to Justice Gaziano
his question about the Sheehan case in the tripartite
division of Responsibility between the three branches of
government in this space.
What the judiciary has the authority to do and the role that
the judiciary plays is to pass down a sentence and part of
the reason that we focused on rule 29 as a vehicle for
relief here, is it something that is, in our view pretty
solidly within the judiciary's lane, so to speak.
Kafker: We don't we don't we don't revise and revoke.
I mean, just just describe John's point about conduct we
don't take into account later conduct do we take into
account later events don't mean, in the in the jail
overcrowding cases, we have usually a finding of
unconstitutionality right, a cruel or unusual punishment
finding your eye taking you're not saying we need to make
that binding here to act, right?
Haskel: That's right, your Honor, is waiting I'm sorry,
go ahead, please. I'm sorry.
Kafker: No, and I don't mean to cut you.
I'm just struggling myself with the constitutional
justification for people who have given
correct sentences at the time.
But we have this public health threat and I would add
another fact I don't find delivered in difference here based
on the submissions that we've been presented,
so I'm I'm trying to get the constitutional basis for this.
Because these are properly sentence people and there's
nothing at the time that indicated
the sentence was incorrect.
It's subsequent temporary development.
Is there any case like this out there you say she and I
haven't I got to look at sheehan and again, but if that's
the best case for Oxford?
Haskel: And sheehan in your honor, sheena and
we, we like and and excited the principles have articulated
by Sheehan, I'm not sure that the court will find the
facts particularly illuminating of their own codes,
Kafker: Your Honor.
Are there any cases like this, me where we've been given
a temporary ability to temporarily suspend sentences as
opposed to the executive branch, exercising its powers to
furlough or, you know, something else?
And just it seems like this would be nice
if there were some better precedent than that.
There may not be but I'm just trying to
understand what's out there.
Haskel: I'm afraid this is, this is thin rule,
Your Honor, but we don't have a precedent to offer on that.
What we would, what we would suggest is that rule 29 and
the the provisions of rule 29 and the function that the
judiciary plays pursuant to rule 29 are things that are
within the province of the judiciary and that's the reason
that we focus on them.
These are extraordinary circumstances, they've come up in an
extraordinary way that I don't think anybody could have
predicted or anticipated.
And, Your Honor, we think it's fair to think of these
circumstances as affecting whether justice has been done,
which is what rule 29 speaks to in subsection H2.
And that's part of the reason that we feel rule 29 is an
appropriate vehicle for for potential relief here.
Kafker: Did you also consider just Mr. Siegel talks about
maybe or maybe was in response to a question that a stay
would not even this is more like a stay of execution and
wouldn't require that's more within our
power even on a post sentencing.
Post appeal with the new look into a stay as a better
vehicle or an alternative vehicle
and rejected as opposed to this rule 29.
Haskel: Oh, and I should also say I'm sorry, Your Honor,
I should have mentioned this a moment ago that we we do
agree with you about the lack of constitutional
basis for relief here and I think we mentioned as much
in our brief stay, as to stay the report and recommendation
actually contemplates that in.
It's on page eight Roman numeral three, paragraph four,
in speaking about what a trial judge who's who's
entertaining one of these emergency special
rule 29 motions is able to do.
I think the idea there appropriately is that the trial judge
would have discretion to fashion relief but the reporting
recommendation in that paragraph, paragraph four on page
eight, specifically speaks about staying in in mid sentence
until after the emergency is over, and also speaks a bit
about now what is to happen to the sentence
after the emergency is over.
Again, consistent with principle, we discussed in our brief
about the temporary nature of relief to deal with the
temporary emergency.
Kafker: In my last question, and I know it's difficult,
Cory, who's the AG representing in this case?
Just remind me.
Haskel: Your Honor, I understand.
The Attorney General at this argument
is speaking for herself.
She's representing herself in her office at the time that we
filed our brief early Saturday morning.
We did file it on behalf not only of ourselves, but also the
the the trial court or excuse me, the Chief Justice,
the Department of correction and the parole board.
Kafker: And all those people still in the fold or some
outside of the fold now?
Haskel: Your Honor, they've chosen to appear separately
at the argument and perhaps any more about their positions.
Questions would be best directed to them.
Kafker: Thank you that's all I have.
Haskel: Thank you, Your Honor.
Gants: This is Chief Justice Gants.
Mr. Haskell, let's assume that the special masters
recommendations are followed and that all act in good faith.
What would you estimate to be the reduction in the jail
population resulting from the exercise of authority?
Haskel: Your Honor, I'm afraid I'm not able to answer
that question for two reasons.
First, I don't have that data that has not come across
my desk in the past week and second, as the court well
knows, you know, the process that the special masters report
recommendation would set in motion is going to depend on
decisions that are to be made by other parties, including
the prosecutors and the trial judiciary, but I will say is
that the report and recommendations specifically includes a
provision for the special master to weigh
in on how the process is working.
I believe the special masters required to do that in pretty
short order within within one week of the report and
recommendation going into effect in our hope and expectation
is that that review process would present an opportunity to
talk through and hopefully to achieve any modifications that
might be appropriate.
Gants: When they come in a different way.
What percentage reduction are either based on the design
rate capacity or, or other measures of how crowded a jail
or prison is, would accomplish a material change in the
public health risk to prisoners and to prison or jail staff?
Haskel: Again, Your Honor, I'm sorry to have to say this.
But that's not something that I'm able to offer the answer
to, in part, because it's going to depend institution
institution and what circumstances are there?
It's not like we have expert reports of epidemiologists or,
or our public health professionals outside the affidavit of
the Deputy Secretary that we put in.
And, you know, Your Honor, any relief that's ordered here,
as we described in our brief, ought to balance a number of
different considerations that are sometimes
in tension with one another.
And in our view, the appropriate way to approach this is in
a way that balances all those considerations, rather than
then focusing specifically on on one of them.
Gants: Although it's good another way and I guess we'll
be hearing from both the sheriff's and from the EEOC on this
issue, but Little was too little, mainly with this,
the process basically permits the capacity
to evaluate to what extent it has had consequence.
Do we have any measure of magnitude as to the extent of
reduction that needs to be accomplished to maintain
the public health goals that are being argued here?
Haskel: Well, Your Honor, one of the things that the
report recommendation calls for all the way at the very end
is his reporting and the involvement of public health
experts in connection with evaluating those reports.
And in our view, that is the appropriate vehicle for for
assessing those concerns and
for providing an answer to that question.
I'm afraid it's not the kind of things that anybody and
certainly not I could could offer an answer to at this time
in place.
Gants: The mistake of steam says think of Stein says,
if we were to include the excluded offenses as provided for
it will mean that very few individuals
are not going to be excluded.
Let's assume for the let's assume that
she's right from for the moment.
Would that cause you to reevaluate whether or not we should
change the category of exclusions?
Haskel: I think, Your Honor, that is a bridge to be
crossed when we get there consistent with the reporting and
reevaluation provisions
of the of the report and recommendation.
But, Your Honor, I think what my office would be looking to
if, say, seven days from now we find that this protocol
has had no meaningful effects.
I think what my office would be looking for is recalibration
that serves the the same six principles that we've described
in our brief and then I keep referring back to them
because the goal here is to achieve an appropriate
balance that serves all of those things.
Gants: Do we have the luxury of that time the governor
says that the peak danger periods going to be, I believe,
April 7 17th, so that's a week away?
Haskel: Your Honor, we've we've emphasized consistently
through our briefing and our argument that it's important
to act promptly here in response to to an exigency.
But it's also important to act thoughtfully here in
a way that that takes account of many,
many, many different considerations.
Our view is that the Masters report and recommendation
developed as it was through a series of very deep and
involved conversations with various parties and
stakeholders. achieve that appropriate balance,
at least for the first go around.
Gants: Okay, I've got no further question.
Justice Gaziano any further questions that you may have?
Gaziano: No further questions.
Thank you, chief justice.
Gants: Justice Lowy
Lowy: Yes, I do.
Thank you, Chief. Mr. Haskell, one thing that seems to be
missing in our discussion today and I wonder if we could say
something to make it part of the equation, is that
as it relates to pretrial detainees, this document is simply
outlining a presumption and then the master puts in a
comment that I think is very important that if an individual
does fall within the presumption, that that's not a factor
that the judge should consider
in any other request for relief.
Do you think that's something that we could do to emphasize
that point, if you are not within the presumption that in no
way impacts the judge's decision for all other individuals
is just that there is no presumption?
Do you think we need to do a better job at making sure that
point is understood?
Haskel: So, Your Honor, what your question is getting to
is the kind of emergency motions for relief and relief that
incarcerated folks have been filing for the past couple
weeks and that's as described
in the four Chief Justice affidavits.
The the trial courts are handling currently right now.
Our view is that the reporting recommendation doesn't and
should not have any impact on that process, that the notion
that a presumption or lack of a presumption should have no
impact on an individual detainees motion
for relief or for relief.
And that's the point that the court chooses to amplify in,
in what it does with a report and recommendation.
I think that's a very fair point.
Lowy: Okay, thank you.
Haskel: Thank you.
Gants: Justice Budd.
Budd: Actually, I do have questions just given
considering the questions that have been raised about the
constitutionality of, of what's being requested.
Is there any role here for the governor and
his office taking action here?
Haskel: Your Honor, as we've said, this, this space sits
at the intersection of at least two and probably three
branches of government.
We because this whole case is arising in the form of a case
of a litigated judicial case, where this court would be the
one to order relief, we focused on mechanisms of relief that
are within this courts province and within this courts
authority to order their, their ,maybe things that can be
done by other parties, but I'm afraid I might not be the
correct person to speak to those things.
Budd: Okay, thank you.
Gants: Justice Cipher?
Cypher: I have no further questions, thank you.
Gants: Justice Kafker?
Kafker: Less quick, the mandatory minimums I take it are
outside of our province, right, that if if a sentence has a
mandatory minimum, can we do anything without intruding on
the legislature's prerogative, constitutional right there?
Haskel: That is our view, Your Honor, and that's one
among several reasons why mandatory minimums were carved out
of the report and recommendation.
Kafker: That's all I have, thank you.
I have no other questions.
Gants: Thank you, Mr. Haskell.
Haskel: Thank you, Your Honor.
Gants: Mr. Sullivan, of the half of the trial court
and probation.
Dan: This is Dan Sullivan, I may place the Koi
I wanted to say first of all that we were participants in
the brief submitted by the Attorney General, as witnessed by
the fact that they were Chief Justices, and also the
Commissioner of probation who submitted affidavits that were
part of that brief.
Where we try company would be Attorney General is with
respect to the recommendation and report.
I just wanted to make a brief opening statement,
and I'll get to some specifics on that, so I'm appearing
today, not only for the chief justice to the trial court
office, also for the Chief Justices of the superior
district courts in the Boston Municipal Court, have
communicated with him in detail at length about this
proposed order and they're putting up objections
to the pros.
Two objections to the proposed order have been sustained,
and emphatic, justices understand and that this is an
emergency and they understand the concern for the welfare of
the inmates have been one crisis after another with a war
disease or natural disaster or any other disruption.
America is the combo of social and public welfare has been
anchored and sustained by community with to the rule of law
and the fundamental due process.
In support of us principles, I assert the critical need to
maintain the central goal of the trial judge, and he tested
me as a procedure and legal process, not only to protect the
rights of criminal defendants, but also to ensure the rule
of law is upheld.
The Chief Justice has recognized urgently the need
for all political expedition in granting the motion for
relief by inmates who are more susceptible to this lethal
virus than others.
The clock was conducted during rabbitry judicial and
personnel resources it must to ensuring that these inmates
notice or heard properly.
The Chief Justice at all showed me that this is already
happening.
These matters are currently being heard often within 24
hours of being filed, 2020 to specifics.
The first thing I want to address with the police option we
had we disagree with this production and we had proposed to
the central master that rather than it being a presumption
that the person that it means whether or not a person is
eligible to be released to.
The one of the problems,
-: [Machine speaking] Now joining.
Dan: One of the problems of 57 it takes away the trial
judges discretion, in many of these cases, there'll be a PFA
will be determination and in most cases, the the judge
granted bail, or has already been subject to a presumption
of innocence.
And that presumption was overcome for the person who had
been committed and now we're imposing here another
presumption on the on the chat with you in this motion.
So if we believe that there should be question for this
conference, Listen the trial court judges
to make those determinations.
Another point I want to make with the odd this is on
section 232C 3B which is on page five.
This refers to releases agreed upon
an agreed upon group of inmates.
This suggests a group motion to the primary trial judge to
rule on the short statement in support of the entire group.
The judges need to act on individual emotions and if any
panic about this, moving on behalf of the group of detainees
is exactly the kind of shortcut that will lead to
inadvertently releasing a person who has learned
capable of committing violent crime.
But in nature individuals, they're not fungible.
The fact that an inmate suffers from diabetes does not mean
that he is any less capable of committing crimes, but an
inmate without diabetes.
The other point I want to make with it With respect to the
amount of bail, the idea of the 505,000 dollars bail, the
justices all notice that that is a very high amount.
They said because there are many dangerous criminals who,
who were committed based on a bail amount that that high.
And then the other point I wanted to make was
on the show on page five of the documents section to see for
the reference there that within five calendar days with the
disorder, the primary trial court judge will convene an
expedited short form video or telephonic conference, and the
justice is asked repeatedly.
What is meant by that the idea that they would be subject to
some limitation on a hearing, they still does not the judges
will have no interest in extending these hearings
or elaborating them unnecessarily.
And it just wasn't at all clear to them we raised this with
the special masters to what's form of what was meant by a
short form hearing.
Ordinarily the judge will hear what he needs to hear
in order to make a determination.
And then just one quick point on the review, the appellant
review, there's no standard provided as to what will be what
will be the case will be heard on appeal.
Gants: Okay,Justice Gaziano.
Gaziano: Good morning Mr Sulvan.
With solving with respect to the beginning I'll ask you the
same question I asked, concept of CPCs as far as that
process as contemplated by the special masters report, how
cumbersome or unwieldy with a with a trial judge find that
and I would bet served by by expedited motion practice like
we're used to.
Dan: That that's been very much the view of the the two
justices that they, they believe that they should be motion,
they understand that these will have to be on an expedited
basis, but they believe there should be motions.
One of the things that was mentioned was, at some some
point, this, this crisis will have passed, and it may be
necessary to reconstruct the reasons that the judge ruled as
he did on on such emotion.
It's, this is the kind of shortcutting that can seem to
continue to concern the most, such as a concern that if if
someone is released and committed a heinous crime, they will
come in it won't go back to the DA or it won't go back to
the members of the committee.
It will come back to the to the trial judge and the question
will be what did you know about this person when you
released them judge?
What, what, what what did you have before you and so for
that reason, the judge is very much one have to complete
information on people.
Now we worked with the special master and in footnote four
of his report, he identify some things that you in that
file, one of the things, though, that I mentioned that was
not included in that file was the requirement of plan of
release and this is very important information is very
strong on this as well, that that it can't be the language
that this the central master added to try to deal with that
said that the judge should have any material, any available
material on a plan of release, that's not sufficient, the
judges need to have a clear picture of
where this person is going.
It's often the experience that someone believes a friend or
relative is willing to take him or her in and in the event
that that doesn't occur.
And particularly now, when these people may be concerned,
the person being released may be contagious.
So we, I think it's absolutely important that a judge can be
able to see a patient release and no, this person is not
going to be released to roam the streets up now again,
Machine Talking: Now exiting.
Dan: Potentially lapsing into addiction or coming
for the crimes.
Gaziano: Thank Sulvan and no further questions Chief.
Gants: Justice Lowy?
Lowy: Sullivan good morning.
make some very, very important points.
I just want to pick up on the presumption issue.
It is true that that every judge who is ruled on a on a bail
has this not under 58 days has dealt
with the presumption of recording.
If they've imposed a bill made a determination that is the
presumption has been rebutted but not the judge.
Entertainment you have changed circumstances the document
does not dictate a decision before the trial judge,
rather, it seems to create another presumption based
on the obvious change circumstances.
Do you think that's really a deep concern nonetheless
to the trial judges?
Dan: I believe it is, Your Honor, if we're not saying
that that's not a consideration that the judge will take
into account, I'm sure the judges will.
But the idea that the judge should be able to make an
independent judgment he should be able to exercise his
or her discretion without being bitten by, as I say,
as a second presumption on top of the
presumption over cognizance.
Lowy: Of course, every time a judge poses a bail, that
judge has taken into account the assumption but has had no
difficult doing his or her job and finding that despite the
presumption of bail's going to be imposed, I guess I'd
because I'm really concerned about all the points you've
made that they're very important for us to take into
account, they're important, but I don't see where this
presumption is sort of infused into the Masters report
and recommendation to take into account change circumstances
in any way can come, the judges enormous discretion.
Dan: I think it's, it's probably just an additional
pressure point for the judge to contend with, and what's
already a very difficult decision.
The idea I think, is that why would these individuals...
Machine Talking: Now joining name not recorded.
Dan: Why would these individuals be presumed to be
releasable that just as I say, the fact that someone has an
underlying health condition doesn't make him necessarily
any less likely to to reoffend.
They feel this, wanting to many of the things I've said and
this has been a theme with the Chief Justice is that
judicial discretion is being impaired.
And what they said is, if the court elects to take away with
it like to take away our judicial discretion in making these
decisions, the court should issue its own order, authorizing
the release of anyone in these categories who's not subject
to more than 5,000 bail dollars and, you know, the idea
there is really that the judges see their role is making
these determinations and they wanna make them on a case by
case basis with all the necessary information so that they
will feel confident in releasing the person.
Lowy: Thank you, Miss Sulvan.
Dan: Thank you, your Honor.
Gants: Justice Budd.
Budd: Hi, can you just give us a sense of how things are
working now?
You're you're advocating for a case by case.
Presentation without any presumptions on on any categories
of inmates.
So can you just give us a sense of how it's working now, and
stay in I'd like to hear about Superior Court and the
various district courts in DMC?
Dan: with the, the Chief Justice is a both the district
and District Court have told me this that these motions are
being promptly heard that there hasn't been a wait for
someone to be heard.
The judges understand this is a very emergency and that
these are emergency emotions.
So they have been hearing them and I don't think it's
accurate that there's been delay.
As far as I know, in the hearing of any of these motions.
I heard one motion in Superior Court in western county where
it was, the judge said he wanted to await the the
determination of this court based on this, this hearing.
But I as far as I understand, he was instructed that he
should move on on the pending motion.
We want to get through these and that's really the goal.
And that's why I say, Justice by them that we will really
devote whatever resources are necessary to doing that and we
recognize I don't, we're not expecting people to draft
elaborate motions, I understand that the motions may be
almost a template with a site, the grounds for release.
And but at the same time, as I mentioned earlier, the judge
the judge, judges very much want to be able to look at a
record and to know who the person is, what his history is,
you know, even what his what his behavior has been, while
imprisoned, they don't feel comfortable signing release
orders without having that level of knowledge.
Budd: Do you have any statistics on how many petitions
our hearings have been requested so far.
Dan: I don't I know there was some of that material.
You are in the in the affidavits that were submitted with,
with the brief in which we joined with the Attorney General.
That was that's the best, the best that we have today
is to the extent that we were able to some of the chief
justice was able to give those numbers I know, for example,
the Juvenile Court Chief Justice
was very specific about the numbers.
And I think the district court did a pretty good job
on that as well.
Budd: Okay.
And then is there any any part of the special masters
recommendation that the trial judges feel like might not be
a bad idea?
Dan: Though, to the extent that it is constitutional, and
I defer to the court on that the idea of using a modified
version of rule 29.
I think struck the justices is not an appropriate approach.
So I think that, you know, I'm assuming that moon could be
modified even on a temporary basis.
And I wonder if I wonder if that really wouldn't be an
approach that would even apply could even be applied?
Well, I would think approach could be applied broadly.
Budd: Okay, thank you so much.
Dan: Thank you, Your Honor.
Gants: Justice Kafker.
Kafker: Hey, hey prompting me for capture again.
I'm sorry.
Mr. sulvan can you tell me you know, I understand you don't
have any record of anybody not being able to get a hearing
or anything like that, but we're hearing about that.
But that would be by its nature, something you would not
necessarily hear about.
So what, what steps can the trial court take to address the
specific concerns of CPCs and knakal about this difficulty
they perceive and getting hearing sometimes, is there a
central location you can set up for them to to make a
request or complaint?
Dan: Well, I think in terms of handling the volume, that
I wouldn't want good judicial resources devoted to this to
be restricted.
In fact, Chief Justice Scalia, and said community, he
thought that there should be a designated judge in each
district court to have all these petitions.
So that's really where they and I should say, in terms of
saying they haven't been any emotion escalate.
I know that I believe that the Chief Justice Dolly, and one
of the other justices have both been in touch with the
leadership at CPCs and affects them work.
We understand this is an emergency if you find your people
are being to made it let us know.
And and at the point when those questions were asked, at
least, the leadership said no, as far as we know, right now
we're in good shape.
So, but I do think that this is something that will require
a tremendous amount of judicial resources and the judges are
all ready obviously, these hearings would have to be
telephonic, like this one.
But I think that all hands will be on deck, Your Honor, in
terms of get getting these matters heard.
You know, as I say, I think it's gonna be an expedited
process, but I think there needs to be a process.
Budd: Okay, thank you one more question.
And that is going back to this idea of a presumption.
You're suggesting that first you deem somebody to be
eligible, rather than determined that they are presumptively
eligible is that correct?
Dan: That's correct.
We that would that have been our recommendation, this
session has actually adopted that and then as a consequence
of push back.
I believe he went back to the presumption but and I
understand that and I should say the special master and his
colleagues have been done a masterful job of handling all
the contending parties here.
But that we do feel strongly that that that that presumption
that the person should be released puts an undue burden upon
the judges discretion.
Budd: And then, so so so if we don't have a presumption
to start with that a certain categories are presumed to be
releasable.
We would say let's determine let the trial court determine
whether they are in that category of releasable.
And then from there determine whether in fact they should be
released, is that correct?
Dan: Well, I mean, I would think based on the work of the
committee's the degree will be determined to be eligible to
be released, but then the judge needs to look at this
specifics of the case he needs to look at and we would have
and we propose this a, basically a uniform file that would
be put together that would include the, you know, the carry
and various other as a police report the underlying
complaint, for example, any critical documents, as I
mentioned, the plan for, for the person some living
conditions after he or he is released.
So with with that packet, I think if you would be able to
move there was one other point I wanted to make, that there
was a suggestion that someone could be about people being
released without a hearing.
And I think it's critical that if a judge is going to apply
new conditions to an individual, if someone had already been
on probation and had conditions set, you know, those would
remain in place.
But if the judge believed it was necessary to set new
conditions, it would I think, I would think the judge would
need to have a hearing.
So I don't I didn't like the idea of saying that the
district attorney will make a determination and then the
judge should just grant this without a hearing, I think the
judge should determine whether or not a hearing is called or
in any given case.
Budd: And and so if the parties were in agreement, if
it's CPCs, and the A's were in agreement on a particular
case, you see a role for the trial judge to still make at
have conducted an active hearing.
Dan: What he wouldn't necessarily conduct the hearing.
I think in many instances, Your Honor, these will be these
matters will be decided by a judge on on the as I say, on
this kind of basic file that would have to be provided in
each case.
But my my point was that the judge, in his discretion,
determined that I need to hear hear something on that
there's something in the file that catches his eyes.
I want to hear more about that.
I think that there shouldn't be a case where the judge is
told you have to decide on the papers and you can't schedule
a hearing irrespective of what you may think.
Budd: Okay, thank you.
Dan: Thank you very much.
Gants: Now Justice Kafker.
Kafker: So I understand, you know, and I totally respect
that the chiefs are working tirelessly and all the judges as
well to expedite these proceedings and that seems to be
supported by the affidavits we have here.
But I guess, consistency is one of the issues that we're
dealing with here.
I take it that, that your clients want nothing to be done
differently than what they're doing right now.
Is that correct?
You want us to basically do none of this will work?
Dan: Well, I don't think that that's accurate.
I mean, as I say, we're talking about a specific file that
will be provided that these these matters would be written
on an expedited basis.
I don't, we don't, we don't disagree with the idea that
things have to be done quickly.
What what the disagreement, I think is the idea that the
judges should Moving on, on group motions, the judges should
be required to presume that the person is releasable that in
any other way judges discretion should be infringed because
that discretion has served us well for
many hundreds of years.
And we believe that that's an important principle of our
system of justice and that's really where I think the Chief
Justice has come down.
Kafker: I'm, I'm confused.
So I understand, I just want to make, again, I'm caught up
in, you know, practical realities and specifics.
So the chief, the courts, the judges now are, in your view,
are expediting all of these hearings at doing everything
humanly possible.
They're also doing them often by video conference or
telephonically, is that correct?
Dan: My understanding is that the extent to the extent to
their hearing matters now.
I believe that in most instances heard they're being heard
telephonically.
Kafker: I'm trying to understand what's different,
I understand you don't like this presumption which doesn't
seem, by the way very difficult to rebut.
And I, you seem to have a problem with page four, paragraph
five, paragraph four.
That is expedited hearing, but aren't we conducting these
expedited hearing?
I just don't,
what's the difference between, what's being proposed in
paragraph four, and from what is actually happening?
And I want you to, I know you're upset by this, but I want
you to be specific to what, what is that you're doing
differently than what they're requiring here?
Or proposing here?
Dan: How I would do with respect to the conduct of the
hearing, I think, probably very, very little is being done
any differently.
I have raised the issue of what's the show proform hearing I
mean, don't again, don't be interfering with the judges
discretion but I think that this is precisely what these
judges are doing right now.
Kafker: Okay, so then again, let me go back to paragraph,
the paragraph about the presumption for a second, because
it's just as long we point out to you, we've got a
presumption for cognizance anyway.
We also have a dramatically new fact, which is, we've got a
dangerous situation jails because of the Corona virus.
So again, how how much different in the real world is this
proposal than what is actually being done here?
And doesn't just provide a focal point if we change the word
presumption that these people shall be, you know, given high
priority, I'm just trying to understand you know, we need
some consistency and some urgency and, again, I'm not
exactly sure what's bothering you besides removing some
perception of discretion.
So they articulate specifically the practical impediments
for judges and I don't want to get in the way of trial
judges doing their job correctly here.
But I also don't want to turn quarter word raises into
obstacles when they don't change what they're actually
doing.
Dan: A couple things this idea of
group motion is, is inactive
Kafker: Where in the order I'll be talking about motions?
Dan: Hang on a second.
This is on page five, at the lowercase P,
with respect to any inmates for whom the parties agree
relief is appropriate a specific party shall provide the
judge with a short statement in support of the lease of the
agreed upon group of inmates.
The project will expeditiously act on the recommendation
without closing hearing.
So again, both those group of inmates and we're also hearing
both of those things.
We, we believe that these matters should be heard or ruled
upon in many cases on the papers individually.
And we don't think the judge should be constrained from
conducting a hearing if he or she determines that a hearing
is necessary.
Kafker: Thanks.
Did you read the last call?
Dan: Yeah, no, that's right.
So that that part of this okay.
Kafker: So, but that means the primary trial court judge
can individualize every single one of those if he or she
wants, right?
Dan: Well, I'm concerned about the lines of a group
hearing.
Kafker: Okay, all right.
You don't like that?
Dan: I see your Honor.
Kafker: On other specifics that are going to
fundamentally or significantly change with the trial judges
are doing right now.
Dan: I know to be honest with you, I know that on the on
the the deadline that we submitted a previous version of
this order, we had many comments and proposed revisions,
many of which weren't weren't adopted, but I can't, I can't,
I think those are the critic, critical points, Your Honor.
Kafker: Okay.
Sorry, what's the critical point?
What is the critical point?
Dan: Well, I think the idea that this process will
interfere in some way with a judge's exercise of his
discretion, whether the judge will be required to rule
Without adequate information without hearing what he needs
to hear.
So that's I mean, I think that's really they came back again
and again, to the impairment of discretion.
Now, you know, it, there may be ways in which is impaired
that I haven't described but that seems to be the concern
and I've tried to identify the ones where it that they
pointed to as indication indicating some constraint upon
their constraint upon their discretion.
Kafker: Thank you Mr Sulvan and that's all I have.
Dan: Thank you, Your Honor.
Gants: Mr Salva this is chief Justice Gants.
Certainly I understand the extent to which both the trail
core chiefs and each of the judges and the clerks have been
trying during these challenging times to accomplish as much
justice as possible, but I want to and I certainly
understand the idea that a judge does not wants to make sure
that before he or she makes a decision that the person has
the information before him or her to make sure it's the
correct decision.
But I have to make sure that I flesh out some of the
thoughts that you presented.
You spoke about the standard being eligibility for release,
but can't any person who was on bail seek bail
reconsideration based on change circumstances isn't every
person eligible for release?
Dan: Right, so I think the idea there you are, is that
you're saying that these conditions that have been
described, you know, the person is over 60 the person has an
underlying health condition and so forth.
Those are things that would require make the person deemed
if you will eligible to be released.
Obviously, it doesn't mean .
Gants: Any person may move to reconsider bail, especially
with a change in circumstances don't you agree?
Dan: Have to perhaps there's a different way to describe
that, I know the objection was to a presumption
they're more than happy.
And they, I think daily now consider all the factors that
are raised by the by the crisis.
But they seem to feel that that when this came particularly
from the Chief Justice District Court, that this discretion,
this was an impairment of their discretion, that the judge
is going to be making a decision that could have very
serious consequences down the road, and that the judge
should be his he should be relied upon His judgment,
or her judgment should be relied upon, without burdening it
with a presumption in one way or another.
Gants: Let's, let's flush that out.
I mean, you agree that the bail decision itself is
considerably constrained by both statutory conditions and
conditions established under our case law correct?
Dan: Right.
Gants: I mean, the presumption of releases that taury a
judge is obligated to consider ability to pay that
constitutional.
There are a number of things which a judge is so called
discretion is limited because the judge has to apply certain
standards, both constitutional, statutory and based in case
law, correct?
Dan: Right.
Gants: So helped me to understand the concern about the
loss of discretion, would you consider it to be appropriate
for a judge or within the judges appropriate discretion to
say, I don't care about the pandemic, I think it is an
irrelevant consideration and it does not be or it doesn't it
does not constitute a change.
In circumstances, which should even be considered?
Dan: No I wouldn't.
Gants: And I'm confident that the judges would monitor
should you say what standard, should you say we should apply
to provide guidance to a judge if that would be an
inappropriate exercise of discretion?
Dan: But these are critical factors to be considered and
that's the West why saying that they need all the
necessary information.
I think this this all goes goes into the into the calculus,
Your Honor, but and that's, that's really something but
that's really something for the judge to sort for throw as
they do, as you say, on bail determinations generally.
Gants: Okay, I'm trying to understand how different it
would be for us to say these are, quote, critical factors,
unquote, as opposed to under certain circumstances.
This is a presumption which can be rebutted based on other
circumstances what what is the practical difference between
those two?
Dan: Well, indeed the notion is that in a way, suggests
the thumb on the scale, Your Honor, that,
that they should be able to make these decisions without any
pressure one way or another, based on the facts before them.
Gants: But you just said that, I mean, is it unfair
pressure to say that these are critical factors?
Dan: Oh, I don't believe so.
I think that the changing language may be may be sufficient.
I, you know, what I think was bogged down was the idea of a
presumption.
Gants: Okay, Now, in terms of would it not be in most
certainly in Superior Court, which of course are the most
familiar with, we have a first session where all matters
would go to and we have an efficient way to deal with a
whole set of matters.
Is there any now ...
Machine talking: Now exiting
Gants: Is there any concern in the trial court for having
the equivalent essentially have a first session of a judge
who's going to be assigned to address these matters?
Dan: No.
Gants: So it's okay to establish essentially the
equivalent of a first session to say, the first session is
here, we will handle these matters.
We'll have a 10 o'clock teleconference and we'll bring all
these matters before the first session judge
or the equivalent.
Dan: I haven't heard any objection to that kind of
practice, Your Honor.
Gants: Okay, so you're not you're not concerned then
about the the view that there should be certain designated
judges, whether they be by county or by court.
That that's that's
Machine talking: Now joining name not recorded.
Gants: I'm sorry for those who are coming and going at
these you're fiddling with the phone on touched as opposed
to turning out and coming back in.
But is there any concern about having there be designated
judges however, we however we choose to designate them to,
so that they are available and can do this stuff in volume
as opposed to trying to go back and find that particular
judge who may have set bail?
Dan: No, there's absolutely no
objection to that, Your Honor.
Gants: Okay, so and and I, I assume that it would be
beneficial to this first session judge to have
the DA and defense counsel and that time to share from
probation confirmed beforehand and essentially identify
those for whom there's no objection and those for which
there would be objection?
Dan: Absolutely.
Gants: Okay, so that that process is something which you
say is a is a sensible process is to attempt to vet these
matters, so that you can present matters and say, Your
Honor, there were three matters or five areas before us
there's agreement as to three and there's disagreement
as to two?
Dan: I agree with that.
I think that this goes back to the idea that this they think
the objection is too and basically a non judicial panel
making a determination that creates a presumption.
And so that's really, you know, they, they they're willing
to they want to look at each case.
Gants: Okay, well, I mean, so certainly certainly, I
mean, in the scenario that I'm doing, whether you call it
critical factors or call it a rebuttable presumption,
the view was that the judge, of course, would be able to
consider each case in the court could say, I thought, I
think that's a thoughtful agreement by counsel and I agree
with it or could say, for whatever reason, I disagree with
it, correct?
Dan: That's correct on it, guess what.
Gants: They just want the capacity to make individualized
decisions that are not dictated by others,
but which they have the opportunity to consider?
Dan: That's correct, your honor.
Gants: Okay.
And with regard to plan of release, isn't that something
that you want to be vetted ideally, before you go before the
so called first session, justice, so that The judge can say
what, you know, do we know.
Do we know what's going to happen to Mr. Smith and his
probation on board?
Dan: Right, yeah. I mean, it's really as much probation
as anyone else who's been authentic about that about not
releasing people, you know, onto the street who have nowhere
to go.
So that that obviously probation would do what it could I
think the concern is that if this if this is, you know, I
know that in when someone is in prison for a period of time,
that there's a period of planning that occurs before that
person is released.
They work with a counselor to determine where you're going
to live, what's your going transportation going to be?
And I think that this, the concern is that if this is is is
pushed too quickly, that that won't occur, and that
probation won't have an opportunity to call the cousin who
is the MHS he could live with and find out if he's really
wanted there.
It's it's really just a question of, of the judge, being
able to know that the person has a place to go.
It's, it's not enough that he, he or she hopes to have a
place to go.
Gants: Okay, but I mean, but you also understand that
everything we're doing, we're doing as best we can under the
circumstances?
Dan: But I think that there's a real concern with with
just putting people on the streets, if that process is
essentially addition decimator deteriorated.
Gants: So so so much of your concern is the the
evisceration of it not the not the expediting of it?
Dan: That correct, Your Honor.
Yeah, I feel I think oh, this will have to be expanded and I
think that the the personnel both probation and the I know
this from from the commissioner, stand ready to do all they
can to expedite these matters.
Gants: Okay, and I guess we'll go to the 5,000 dollars
bail you said that there that that often is what dangerous
criminals are being held for but if they're being held to
5,000 dollars bail that means there was no dangerousness
hearing held and no finding of dangerousness?
Dan: No right then the goods of cultures abroad because
you're right.
They do exclude the dangerous people who have been found to
be dangerous numbers actually dangerous.
I guess the idea there is what they said that there are many
people, anyone who's being held on that amount of bail, the
judge would have had a reason.
A serious reason to set that bail that high and they just
thought the number was too high, Your Honor.
Gants: Okay, I've got no further questions, justice
Gaziano any questions that you may have?
Gaziano: No, thank you, Chief.
Gants: Justice Lowy?
Lowy: No, thanks.
Gants: Justice Budd.
Budd: No, thanks.
Gants: Just Cypher.
Cypher: No one wants that, thank you.
Gants: Justice Kafker.
Kafker: All set, thank you.
Gants: Okay, thank you, Mr. Sullivan.
So you're very much around We've been at this now for two
hours, what I suggest is that nobody leaves the phone.
But I'll ask I guess my justice is, is there any objection
for us to take a five minute break, and
1210 Not at all, and reconvene at 1215 but
please don't hang up.
Don't want to have to create a phone call.
Okay, so I asked people just to put your phones to the side
and come back in it, will hear Mr. Anderson on my behalf
and the Billboard, Okay ?
Guys, Oh, get hang up and say don't hang out Okay?
See, you're 15 thank you.
Justice Gaziano are you there?
Okay, Justice Lowy?
Lowy: Yes.
Gants: Justice Budd?
Budd: I'm here.
Gants: Justice cypher.
Cypher: Yes.
Gants: Justice Kafker?
Kafker: Yes.
Okay, Granderson.
Are you there?
Granderson: I am your Honor.
Gants: Okay, you have the floor,sir.
Granderson: Good afternoon, Charles Anderson on behalf of
the Department of correction in the pool board.
I have four overall observations and three comments on the
master's report to do see, one thing that's been pretty
clear on the record as is that the Department of correction
has taken substantial steps to protect us inmates and we'll
continue to do so.
Both the department and the parole board are committed to
working within constitutional bounds and statutes to keep
the inmate population as safe as possible.
It's clear from the affidavit of Commissioner michi that
when the governor declared the state of emergency on March
10, the department immediately implemented its epidemic
control plans.
These plans which weren't developed one for the scenarios we
have today and these plans are centered around isolating and
containing those inmates who are affected by the Corona
virus as well as eliminating the entry and screening all of
those who enter the Department of correction facilities,
rather than rehashing everything that's in the affidavit.
It's pretty clear that based on the record that the
department's response to the pandemic has been informed
reasons responsive and adaptive.
And I think as Justice Capra pointed out earlier, there's
nothing on the record to show or demonstrate any
constitutional basis of relief here because there's nothing
on the record which shows that the department has been
deliberately indifferent to a substantial risk of serious
harm to what's in the population.
In terms of, in terms of where we are now the department as
a Friday, commissioners affidavit stated that there were 10
inmates positive for COVID-19, all housed at the treatment
center, and there were 13 that were under quarantine
protocols at that time.
The numbers have changed so as of this morning, the
department has 17 inmates that have tested positive for
COVID-19, all of the treatment center, and all being housed
in the same unit, I believe, seven inmates to be diagnosed
since Friday, were part of that group that have been
quarantined because they show symptoms.
So that's, that's, that's where the numbers are now.
And I think one thing that has been, has been referenced in
the earlier discussions, and I think it's important to state
is that the court and crafting a remedy here has to consider
what could be substantial public health risk posed by the
release of a live class of inmates and have to consider both
on the macro level.
Considering what the risk to the public is the potential
additional burden that risk of large groups of inmates will
have on an already overburdened public Health System and,
and whatever public safety issues also would accompany the
large release of inmates.
Also on a micro level on an individual level of release of
inmates, any order has to consider that individuals access
to support systems after they're released from the
department because what we have on the record is a lot of
discussion about what the department has done hasn't done
but there hasn't been a lot of discussion of what awaits
anybody who has been released by these orders.
And that's something that the court has to keep in mind,
both to mitigate any risks to those inmates being released,
as well as to the public health and one thing I just wanted
to add to that is, in terms of the classes of inmates with
categories of incentives, inmates that the court is looking
to initiate release protocols or orders on the department.
It begins its re entry Planning in earnest with inmates at
the one year left to serve mark, as it's more detailed in
the commissioners affidavit, it's at that point where
inmates meet with the reentry specialist and they start to
go over what their housing is going to be, what they need
for identity documents, what their healthcare needs are, and
access to health insurance would be employment plans and
community resources and these meetings continue both at the
six month, three month, two months and 30 day mark.
It's usually the 30 day mark where where inmates apply for
MassHealth 30 days before they're released.
So one thing that has to be considered in all of this is not
just what's going on now, but what the impact is on both the
inmate and the public at large should inmates be released
under this quarter.
Another overarching comment I have that I'll dress more when
I talk about the Masters report is the court must also be
cognizant about the about a superintendent's authority and
the issues of separation of powers most, most of the
separation of powers issues have been brought up by others
already in this proceeding but I do want to bring up one in
the context of talking about the Masters report.
There are three comments that I have with regard to the
Masters report all it's section three.
I think in like the paragraph for mark, the first comment
is, any order for release of an inmate from department
custody has to be accompanied by a stay of sentence or
revocation of sentence or second time served, because if an
inmate is ordered released from Department of department
custody, without a change to the sentence, then it's at that
point where there is a separation of powers issue because
the court is determining whether an inmate who is serving a
sentence is serving their sentence.
So that creates a problem for for separation of powers on
that, that have can be mitigated.
It's the release order is also accompanied by either a stay
of sentence a, a being time served sentence or a revocation
of sentence.
The second comment that I have about the Masters report and
this goes to both section three and four.
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Granderson: The Department of correction also has duties
under, under Chapter 258 B to notify crime victims.
This the release proceedings is the individualized release
of sentence inmates proceedings don't provide for
notification to the department that an emergency petition
has been filed.
I think that needs to be added so that the department can
timely notify victims of the potential release of one of its
inmates rather than trying to play catch up for an inmate
that's already been released.
Note in Section four it says nothing relieves the obligor
suspense er of law enforcement to share information with
crime victim.
So, there should be a requirement that where a petition is
filed, the custodian has to be notified as well.
The third and final observation about the Masters report
section four says that if an inmate has 180 calendar days
left on a sentence, the primary court trial judge shall
order that the inmate returned to custody within 14 days
after the declaration of the state of emergency is lifted.
Historically, Massachusetts in contrast to the federal
system does not have inmates self report to facilities and I
can see a lot of potential difficulties happen here.
What I would suggest is that this has to change so that an
inmate reports to court and is transported as if he or she
were a newly committed inmate to the department's reception
center either NMC is either junction or MCI Framingham.
So related those overall comments and observations I'd like
to open it up to questions.
Gants: Thank you, Justice Gaziano.
Gaziano: Thank you, Mr. Anderson.
One thing I wanted to pick up when I read the papers was
something from the parole board in what I heard.
And correct me if I'm wrong, but why I had
recall reading was that the House of correction parole her
and had been there's been some problems with them and I
think only Barnstable County.
They're doing them telephonically and it seems to me
that we're trying to reduce, how's the correction population
in given the shorter sentences in the house of corrections
that that that might be a ripe area
to get people out of the jails.
Can you talk to whether or not there are plans or what the
statuses of parole hearings being conducted at the houses of
correction?
Granderson: Justice Gaziano.
I think it'd probably be best that the chair of the parole
board Global Maroney is is on this call and that would
suggest question better be would be better answered by her.
Gants: If we can hear from Miss Maroney, thank you.
Maroney: Absolutely.
Good morning Justice Gaziano.
We've had tremendous developments, actually over the weekend
since my affidavit was provided.
I'm pleased to say that over the weekend we were able to
develop a Webex connection, which allows for hearings to
take place completely remotely.
That began yesterday.
We were able to conduct hearings in both state as well as
county facilities remotely and they are actually happening
right now as we speak.
We had two houses of correction scheduled for today.
I believe the first one has concluded that would be the
Middleton House of correction and the second one was
scheduled to occur as we speak at the dead and
House of correction.
As of right now I have heard no issues with connectivity and
they are being conducted as planned and scheduled.
Gaziano: And beyond that, is there a plan so that we
don't run into article 30 issues to fast track the the, the
the resolution of those hearings?
Our district courts to get to get decisions out and people
release if they're going to be released.
Maroney: Absolutely, within we certainly
have the notification requirements as well so if an
individual receives a positive parole vote today, the
release date would be on or after a two week date due to the
need to approve a home plan and also notification to victims
or any cony, petitioners.
Gaziano: Thank you, Miss Maroney.
Maroney: Thank you.
Gaziano: Those are the questions I had Chief.
Gants: Justice Lowy?
Lowy: Yes, thanks, Chief.
If I ask Miss Maroney. A question before
Mr. Anderson.
Miss Maroney is there any opportunity for me to to host
correction who may have previously decided that they wanted
to wrap up the sentence residency parole to be able to
reconsider their decision?
Maroney: Good afternoon, Justice Lowy.
At any point, and even prior to the pandemic, and certainly
now if anybody wanted to submit a reconsideration, for a
hearing that they previously postponed or waive, they
absolutely can do that and that's absolutely something that
we can accommodate, especially now due to this due to this
development with our technology.
Lowy: Okay, thank you very much.
Mr. Anderson, you've made some comments that are consistent
with a number of the sheriff affidavits.
Sheriff Carpenter wrote and in his his affidavit that
released from incarceration, that many inmates frequently
rely on homeless shelters soup kitchens.
To meet their daily needs and what not, infectious disease
doctors, how do we, you know, gauge the increased risk to
inmates and people who are not in prison?
What means do we have to be able to do that justice, but
some questions about testing that might be available, and
I'm not sure we had a good answer to those questions.
Any thoughts on that?
Granderson: Well, I think these settlement masters report
does a good job in terms of for for sentence inmates.
These are individual release petitions so I think that the
court should have the opportunity even in these expedited
hearings, I'm sure counsel have some opportunity to provide
the information to the judge who would
be making this decision.
I think that's the way it would.
I think that's the way it would have to work and as I said
before, bearing in mind that when re entry planning begins
in earnest at the one year, mark, I would I would expect at
that point, you know, department staff would have begun
those conversations with the inmate to be released to
determine what type of support services they need, when
they're out what is their housing gonna look like?
What is their access to medical care going to look like?
So I think I think, to some extent, the settlement masters
report takes care of that concern by having it being an
individualized assessment for four sentence inmates and I
think that's probably the best approach to take on that.
Lowy: All right, one last question.
We've read a number of the affidavits that arrested down and
this recommendation report certainly creates a process
through which we may see a significant reduction
in pretrial detainees.
If that were the case, is there a means with the Department
of correction can enter into some sort of cooperation
agreement with the sheriff where appropriate, committed
Folks who were already sentenced might be able to be both
if the population is reduced in the jails?
Granderson: I'm certain there is the capacity to do that
the department has existing agreements with the County
Sheriff's to step down inmates from DLC custody to county
custody, as they near the end of their sentences and are
going to be released into the community.
So you know, depending on what the number of classes and the
reasons are, I'm certain these agreements can be modified or
enhanced so as to provide for the scope of services that's
needed based on based on the cohort we're looking at.
Lowy: Okay, thank you very much.
Gants: Justice Budd.
Budd: Hi, I just had a question for attorney Anderson.
Did you say that right now there are only cases at the
Massachusetts treatment center?
Granderson: That's correct, 17 as of this morning,
that was 10, Friday with 13, quarantined.
Now the positive the tested positive numbers 17.
Budd: Okay, thank you.
Nothing further.
Gants: Justice Cypher.
Cypher: Thank you for, Mr. Anderson.
Can you tell me on page nine of the Masters report, there's
a section five reporting by prisons and jails and there's a
an order recommendation that the reports be made
Tuesday and Friday by, by 5 pm and then there are number of
things that should be reported on.
Do you see any problem doing that?
And is it is there any objection to it?
Granderson: I don't see a problem doing that provided
that I note that the reporting is to be done by each
facility, I would suggest that most of the information
provided in this report would need to be provided centrally
by the Department for each of its facilities.
So in other words, rather than getting 17 different reports
from us, you would get one report listing for each facility,
the information, there's going to probably be some
difficulty just keeping up with real time I'm thinking in
terms of the availability of the test kits in the slobs
thermometers, those numbers are going to fluctuate pretty
regularly so I think there'll be a real time issue.
There, overall, it may population should be relatively easy
to provide.
And tests may fluctuate, the measures being taken that's
probably going to remain consistent between the Reports I
don't anticipate that would change.
And then the number of inmates released, we should be able
to provide that.
Cypher: Thank you, and no further questions.
Gants: Justice Kafker.
Kafker: Mr. Anderson, I found your presentation very
helpful, I had a couple of questions.
I can't tell how supportive you are, it sounds like you're
you're pretty supportive of the Masters Report.
I'm just trying to get a sentence right.
Can you do within this Master's report?
Justice cypher is that particular but besides the
what happens after 180 days and some other lease protocols.
Are you comfortable with the way this reads?
Is the department comfortable with the report?
Granderson: Well, I just want to say something
at the outset.
The department didn't seek the relief that's been requested
in the position in the petition and the department's
position is that we can care for our inmate population.
It's pretty clear from the affidavit that we're far from
overcrowded and every facility is operating with vacancies.
So, you know, it's it's one of those things that that being
said, reviewing the special masters report pragmatically,
the Department of correction releases in these from its
custody every day.
The concern that I have or the department has is that if
we're talking about large categories that's going to
overburden our central bank computation unit and preparing
their release packets.
They're required to notify victims, they're required to
notify external criminal justice agencies, for example,
if releasing inmate is wanted for a pending criminal charge
in another state, victims have to be notified for those
inmates who have ice detainers.
They need to be notified as well.
There are I think, if we're talking about individualized
petitions, by sentence inmates, I hope that that is
something that we as a department can keep up with.
If, however, the categories, the large categories of
pretrial detainees releases is somehow transformed to work
towards sentence inmates, there's going to be some
difficulty in keeping up with those categories.
You know, bearing in mind, we do have experience with sort
of the large scale beliefs of inmates over time roles
relating back to, you know, the Hinton and the farakka drug
lab issues.
So there have been, and also implementation of the 2012
criminal justice bill, the department has experience in
promptly and efficiently processing order releases.
But it does kind of go to scale at some point so that's
something to take into consideration.
Kafker: And my other question is, so right now, the
problem seems manageable because it's focused on the
treatment center.
You mentioned this sort of epidemic plan you had an epidemic
control plan, I mean, is it this spreads widely and quickly.
You know, when we're looking at the record here, you just
can't maintain spacing in a lot of these facilities, given
how people are bumped into how they eat.
I'm just trying to understand is what that that epidemic
control plan.
How it works, does it if one of the larger
jails becomes sort of inundated with this?
What happened?
Granderson: Well, generally speaking, the epidemic
control plans require each superintendent to develop a
method of responding to an epidemic specific to their
facility, its population and its physical plant.
So these plants have already been developed.
How it works is that If I mean generally speaking, it works
to isolate and contain, you know, those inmates who are
either tested positive for COVID or, or have displayed
symptoms for each facility has identified units that it
would use for the quarantine of symptoms symptomatic inmates
or those who have been diagnosed positive.
So each facility has the ability to handle even a large
spread within its own population.
Bearing in mind that you know, in contrast to the public
inmates COVID positive inmates can be relatively easily
isolated in certain units and correctional facilities, they
can be completely separated from those who are not positive
and they also have access to health care inside their
facility so in those two regards, the department is uniquely
positioned to protect its inmate population, and to prevent
the transmission that was spread within a correctional
facility, as well as the steps the department has taken,
such as not transferring inmates between institutions,
reducing every facility to a single point of entry and doing
enhanced screening of anybody who enters a correctional
facility also minimizes the possibility spread or
transmitting between is.
Kafker: I remember reading maybe it was the one of the
prisoner Greek, saying that Shattuck has, you know, 25 beds
and certain 20 of them are already occupied.
So that's, I'm just trying to get a comfort level.
You know, you know, reading the newspaper stories about how
these various homes become sort of
a cluster of Coronavirus virus cases all immediately but
you have each one of these facilities has a plan to isolate
and treat it that type of complication occurs.
Is that what you're saying?
Granderson: That's correct, each individual facility has
its own plan which is audited and reviewed by the department
to make sure that the plan is complete.
You know, I just want to note that there has not been any
COVID positive inmates transferred to the lemuel Shattuck
hospital, there have been proven positive inmates who have
been transported to outside hospitals, which is the approach
the department would take for those whose medical needs
can't be provided for in their housing.
Kafker: Thank you.
That's all, that's all I have.
Granderson: Thank you.
Gants: All right, this is Chief Justice Gants.
I thought going back to the 17 participants with the
treatment center, I thought that there was a positive MCI
surely is that not correct?
Granderson: No, there was not a positive test of didn't
make him see it early.
Gants: All right and at the treatment center, what was he
going to get tested positive as of the 24th.
Granderson: The 24th I believe it was 708.
If I'm not mistaken, it was 10 as of the time of the
affidavit on Friday.
Gants: And there are those who and they were kept with
individuals who were indicated some symptoms but had not yet
tested positive.
Granderson: Not what those COVID positive testing inmates
were kept on one single unit see one other inmates who
displayed symptoms were actually given quarantine code of
protocols, where they were kept in cell in their cell.
They weren't permitted to leave the cell and they were
provided with food in cell and medical care in cell.
So it's not until somebody actually tested positive that
they've removed from those quarantine protocols and then and
then brought to the See one unit so that that was the other
inmates who tested positive.
Gants: So the concern, of course, is that as you
mentioned, since these individuals are being treated at
regular hospitals that if there were to be a cluster
in a facility, then that would be burdening the emergency
rooms in the ICU is of public hospitals, correct.
For Non prison hospitals, correct?
Granderson: It depends on the severity of the care needed
for the number of individual inmates.
You know, I know out of the 17 inmates tested positive for
the treatment center, to or an outside hospitals.
So the vast majority of those who tested positive for COVID
should be able to be cared for within their correctional
facility with the health care staff and, and the equipment
that's at their facility.
It's only in those circumstances where their conditions are
sufficiently serious that they can't be adequately treated
for at at the facility, that they are
transported outside hospitals.
We do have those existing arrangements with
outside hospitals, they're aware that the person being
transported to them is COVID-19 positive and they received
the information about what their condition is and the reason
why their translate needs to be transferred and can't be
cared for, you know, with their current medical condition.
Gants: Now, the governor's March 23 order prohibits
gatherings of 10 or more in any confined indoor or outdoor
space and also urges those businesses and organizations
providing essential services to allow for social distancing
protocols.
Is that order being honored within the DLC?
Granderson: Yes, the way that it's being honored is that
inmates released from their selves on recreation are limited
in numbers.
So what happens as the overall period of recreation has been
extended because fewer inmates are allowed out if they're
solid in a given time.
It most facilities now I believe they're being fed on unit
or in cell, they're not, they're not going to the chow hall
where they did in the past, outdoor recreation
and not quite sure I think that's also been limited in terms
of the numbers permitted to go out and DMA classes as,
as shown in the exhibit to the affidavit to the commissioner
has been advised of social distancing protocols.
And officers are, are instructed to to keep those that that
the inmates who are released from their cells are keeping
those protocols.
Hand sanitizers described in the affidavit is readily
available, the inmates are being provided.
So you know, those types of gatherings are just they
shouldn't I don't think they're happening.
I don't think I don't think any more than 10 in are being
released on any pier at any time.
Gants: And how about when they're sleeping?
Granderson: well, when they're sleeping i mean it's it's
by virtue of the physical plant of where they're staying.
If they're if they're in a single bunk cell, they're in a
single bunk cell, same with a double bunk cell.
Gants: Right, what share of the persons in DLC are in
single bunk sales?
Granderson: I don't know, I don't know the answer to that
question.
Gants: Maybe ballpark.
Granderson: I, I would ask the
court that I'd be permitted to file a
supplemental filing concerning that because I'd rather give
you the accurate information than something
I'm just guessing.
Gants: Okay, but you recognize that if they're in non
single bunk cells, then of course, they're not like they
can't possibly be maintaining social distancing, at least
during the nighttime hours?
Granderson: That's correct.
I think that's a problem that probably is very similar to
non correctional facilities and frankly, some households.
Gants: Okay, so now, is it, let me ask you a rather
technical question, I see that the the DLC in its quarterly
report on the status of prison capacity
measures it measures it's the percentage of capacity by
design rated capacity and only online rated capacity is that
the appropriate measure in which to measure the letter the
word is overcrowding or the crowding or the extent to which
there is there is there's excess capacity in a prison.
Granderson: I'm sorry, Your Honor.
The department measures it's it's crowded by by operational
capacity, not design capacity.
Gants: Why does Why does the quarterly report issue but
permanent corrections only speak of design rated capacity?
Granderson: If I'm not mistaken, I believe it's that
they're required to respond with regard to the design
capacity.
You'll note that the exhibits attached to the affidavit, the
commissioner shows the weekly count sheets from the
department and all of those are contained the operational
capacity of the facility, Just departments I'm sorry, good.
Gants: Design rated capacity is the capacity is the
capacity for what a prison is designed to hold.
It is meant to reflect the appropriate level of capacity for
a prison, correct?
Granderson: I think it's meant to work.
Machine Talking: Now exiting David Kravitz
for the Attorney General.
Granderson: I think what it's meant to do is to measure
what the capacity of the facility is, you know, when it's
architectural II designed and based on what its intended
purposes, given that so many of the Commonwealth
correctional facilities have changed their change their
purposes and their missions as they've been operated, I'm
not sure that the design capacity is probably the most
accurate way to reflect, you know, what, how a facility
should be staffed.
Or I should say, how it should be measured, you know, for
example, you know, the department of corrections facility at
MCI cedar junction before 2009 was a maximum security
facility prison.
Since that time, it's been operated to the department's
reception centers.
So it's the actual design of the facility is so much
different than how it's operated.
I'm not sure of what utility but design capacity is in terms
of assessing what a facility is now
and whether it's crowded.
Grants: Okay, so you're telling me that the DLC quarterly
report which measures capacity by design, rated capacity is
just wrong, it's foolish to do that?
I was in the wrong IBM sub sub perplexes this is how deep
this is how the OSI itself measures its capacity and it uses
design ready capacity and its quarterly reports.
And you're telling me that that's just wrong, it should not
do that?
Granderson: I'm not saying it's wrong.
I'm saying that I believe that that's what's required for us
to report, I do believe the operational capacity, which is
reflected in the weekly count sheets is more accurate in
terms of what how a facility is being used and operated.
And what is the space available to house inmates in it, I,
I certainly and I'm sorry, it's a bit beyond my knowledge as
to why the quarterly reports showed design capacity.
It may be tried to try to be consistent between department
facilities and county facilities.
I don't know, I'm sorry that I don't have the answer to
that but I do know that you know, the department and its
weekly count sheets, which have been attached as exhibits to
the affidavit tries to do the most accurate measurement it
can with regard to its facility and most use off uses
operational capacity.
Gants: Because the design rated capacity I believe would
be 97%.
Right now for D OC, or I'm sorry, 98.3%, but you say it's
only 73% of its operational capacity.
So it gives very different measures of excess capacity,
correct?
Granderson: That's correct, yes, the design capacity and
the operational capacity will be different, because the
design capacity is established at the point before the
facility is actually used.
Whereas operational capacity, I do believe takes into
account, you know, changes made to the facility, whether
it's the addition of modular units, whether it's changes and
unit operations.
But I mean, as you stated, it's clear that even under design
capacity standard, the department is at less than under
percent capacity.
Gants: Now, is it do you agree that reduction in
population provides more flexibility and more ability to
quarantine individuals as may become necessary over the next
few weeks or months?
Granderson: It may on some scale, it really kind of
depends on where the inmates are being released from, for
example, if they're being released from NCCI gardener, which
I believe is currently at 95% of operational capacity,
that's going to make more of a difference than inmates being
released from South Middlesex Correctional Center, which is
now at 35% operational capacity, it really comes down to the
individual facilities, where they are and
how they're operated.
You know, as I stated before, you know, the department's
position is that it can care for the medical needs for the
inmates who've been housed, who've been sentenced and are
housed within its within its presence.
Gants: And as DLC or the parole board doing anything
differently in terms of accelerating the room.
The release of prisoners in the wake
of the COVID-19 pandemic.
Granderson: As far as the department goes, I mean, our
release procedures have remained the same and that
they're released on the date that they're that their
sentences have expired.
And we follow, we follow a protocol which includes the
notification of external stakeholders, you know, running of
an active and CIC DLP warrant checks.
You know, those procedures remain the same and makes use of
the day that the day to day completes their terms of
sentences on.
Gants: So there is no increase in rate of furloughs?
Granderson: No there wasn't.
Gants: Wasn't there any effort to examine whether
furlough was appropriate for any and me?
Granderson: I don't believe..
Gants: there was a pandemic.
Granderson: I don't believe there has been, I believe,
because furloughs generally are sponsored and they're
programmed in their time for a certain period of time.
I think it's about to exclude seven days.
So I don't believe that department
can even contemplate under its regulations.
A furlough that would exceed that period of time and one
that basically is open ended, I just don't think it's within
our capacity or ability to do that.
Gants: Okay, with regard this may be a question from for
Mr. Maroney with regard to those who are granted with parole
or other other any who have been granted parole who've not
received parole permits?
Maroney: Good afternoon Chief Justice, the individual to
as of the hitting of the pandemic, if there were individuals
that were awaiting a positive promo vote from the parole
board, primarily individuals who are serving life sentences,
those decisions were accelerated, such that in the event,
again, if they were awaiting a decision a written decision
from the board, those were accelerated and have been
provided.
To those individuals within the past week, week and a half.
So those were the individuals that were waiting for a vote
that are now no longer waiting.
That was that was done in a way that those individuals
understood that they were waiving any ability to obtain a
detailed administrative decision.
But they did, indeed, accept that and wanted the accelerated
decision.
So those have been done.
Gants: And but but my question was, there's a difference
between a vote to release somebody on parole and the
issuance of a parole permit are there those who have been
released on parole, but for whom, real primitive not issued?
Maroney: Yes, my apologies.
There have been I think it was in my affidavit there was as
a Friday 62 parole premise as a Friday that had been issued.
And those individuals were indeed released on parole
supervision.
Gants: My question actually is different.
How many have been how many has the parole board voted to
release, if any who have not been issued parole permits?
Maronry: I believe, as of right now, let me ask for
clarification, Chief Justice, are you speaking up in the
past few weeks or get all total?
Gants: But no, I mean, I'm asking for how many
individuals basically the parole board has said, okay, we,
you're authorized for release, but has not issued the parole
permit, which would actually release them.
Maroney: There are currently .
Gants: As of right now.
Maroney: There are currently I believe it's 300
individuals who have received a positive parole vote that
have received that boat but the boat included a reserve
date, which would include the timeframe to approve the home
plan and to notify anybody According petitioners, that's
typically about a two week timeframe.
Gants: So there are 300 individuals who, for whom parole
has been granted but they've not yet been released, is there
any effort to accelerate that and to expedite that so as to
get those 300 individuals released and therefore reduce
their numbers in the prison population?
Maroney: We've made every effort to ensure that home
plans are being reviewed and approved as soon as possible
those within the ability of the board and certainly making
the notification.
There are some individuals in there as well who perhaps need
assistance with home plans that we're certainly working with
them on there are also individuals who within that group,
received parole two from an after sentences that haven't
been effectuated yet so that that number includes many
different factions but where we can assess we technically
happened well.
Gants: And as with any acceleration is just this guy's
gonna make reference to any acceleration of parole hearings.
That is, we're going to hold parole hearings at a greater
volume than we have before in order to see whether
individuals are appropriate for parole and
appropriate for release.
Maroney: Not not outside of conducting hearings within
the parole eligibility.
Gants: So that's I can tell from what you've answered.
All the parole has done is to attempt where there have been
parole arguments and parole hearings, you've attempted to
expedite decisions.
But you haven't attempted to increase the number of parole
hearings nor changed the expedition of the issuance of the
parole permits in the wake of this pandemic.
Is that is that correct?
Maroney: I would say the parole has made a drastic effort
to continue to Maintain the operations of the agency and
work within the confines of our statutory provisions.
Gants: Okay, but that's not my question.
My question that whether you're seeking to maintain I'm sure
you're sure you're attempting to maintain as best you can.
My question, is there any attempt to to accelerate or
expedite either parole hearings or the issuance of parole
permits in order to move these individuals more quickly?
Who are appropriate for parole release but who have not yet
been released?
Maroney: No OSI, some creating the option for video
conferencing which we had never had before.
No, not outside of the confines of statutory authority.
Gants: Okay, I have no further questions.
I'll turn it back to Justice Gaziano.
Gaziano: No further questions chief thank you.
Gants: Justice Lowy.
Lowy: No further questions chief thank you.
Gants: Justice Budd.
Budd: Am all set thank you.
Gants: Justice Cypher.
Cypher: No thank you,
Gants: And Justice Kafker.
Kafker: No further questions.
Gants: All right.
Thank you, Mr. Anderson and thank you, Miss Maroney.
We'll turn it now to Elizabeth Riley on behalf of the
Suffolk DHS office.
Elizabeth: Afternoon, Your Honor, Chief Justice.
This is Donna Adelanto General Counsel for district attorney
Rollins start off argument and handle the legal pieces.
Deputy Chief Liz Riley is on the ground in the district
court and the Superior Court and will have answers to
factual questions that you have.
I'd like to start by saying that district attorney Rawlins
who is on the line acknowledges the report is a special
master and thanks all of those who chose collaboration,
looking for a negotiated resolution in the midst of this
frightening pandemic.
We recognize the urgency here.
If we looked at Rikers, the correctional facility in Rikers
there was a report just this morning.
That has seven times a higher rate of infection inside that
Correctional Facility than exists in the New York City area
itself, which is the the heart of the pandemic right now.
So certainly these are not ordinary times decarceration in
certain instances, like these exceptional circumstances, is
the just inhumane way to protect the vulnerable by allowing
social distancing that can't possibly happen to stay where
they are now.
We can and must, though do this without losing sight of the
needs of survivors and victims pursuant to our obligations
under Chapter 258 B and our obligation to treat them with
dignity and respect.
Decarceration I'd like to know also protects those who work
behind the wall.
There has been some discussion this morning about inmates
who have been diagnosed with COVID-19 but are left of the
conversation is the correctional officer in Shirley who's
also been diagnosed with COVID-19.
We understand, and so the the moves were making here to
decarceration certainly protect both inmates and people who
are working behind the walls.
In Suffolk, I'd like to say we're not just ready to go.
We're rounding the first bench here, thanks to the mass bail
fund who provided us and CPCs and the Suffolk lawyers for
justice with lifts of those who are in the jail.
We are in the process of expedited hearing.
And one of the reasons why we are excited to be at the table
with the special master trying to negotiate a resolution.
We recognize the burden that we entry puts on the Department
of correction and this traffic sheriff.
But this is no longer the time for the status quo.
There is no comfort level to what's going on here.
There is just an urgency we'll note that just within the
last hour a federal district court judge in Pennsylvania,
john Jones ordered the immediate release of all ice
detainees of all ice detainees.
So again, this is is not the time for the status quo.
We do ask, though, that this court order, put take a
leadership role with the order so that there's some
consistency across the Commonwealth.
And we asked to that the agreements between district
attorneys and the defense part go directly to the
single justice.
In fact, we've had some experience in Suffolk County,
with greed, two motions in the last two weeks being denied
in court in Suffolk County and the court has evidence of
this and the affidavit by attorney Kiley in paragraph seven.
So I have to respectfully disagree with my brother from the
attorney general's office.
There are agreed to motions that are being denied.
And that is why it is important that at least for those
agreements, we go directly to the single justice.
I'd also like to say that we are strong supporters of the
report reporting requirements.
It's critical that we have that reporting requirements so
that we can be nimble.
And we asked that that include tracking of racial
compensation, compensation, compensation, racial composition
of the people who are released, this Court has already
recognized that there are disparate impacts on people of
color, especially black and brown members of our community.
And it's we need to be nimble when we see that whatever
agreement is put in place presents a problem that adds to
those disparities.
It is part of the reason why in our country we did talk
about the failure of data sharing under Chapter six day,
section 1810, three quarters, and what, why we've had to
rely on outside partners to get some information.
Although I do want to also recognize that this topic,
sheriff's office and DC just in particular, have been
extremely good in the last two weeks, and really back to
January to share some of the data but we do need more in
these exceptional circumstances.
I'm going to open it up now for questions and again, Deputy
Chief Liz Riley is here who has been handling most of what's
going on in the ground.
Gants: Thank you Justice Gaziano.
Gaziano: I have no questions, Chief, thank you.
Gants: Justice Lowy.
Lowy: I have no question chief, thank you.
Gants: Justice Budd.
Budd: Am all set thank you.
Gants: justice Cypher.
Cypher: No, thank you.
Gants: And justice Kafker.
Kafker: I was planning to say In the voice support the
special special masters report then?
Elizabeth: No I, Your Honor, we are some issues that we
have with the special report.
I general we are in support of the resolution.
But we do believe, again that the racial composition, the
compensation, compensation should be put in there.
I apologize, I keep tripping over that word, and there is if
some of the exemptions are removed that were asked of by the
petitioners, we would say that at least an exemption should
be put in place for murder for first degree murder.
Kafker: Am confused.
Do you want first to reverse the what?
Elizabeth: So that it would be one of the exceptions
provided in the agenda.
Kafker: Are you disagreeing with the gist of the
exception or are you in agreement with the
gist of the exceptions?
Elizabeth: I would say that our general response has been
that we do have concerns, as has been expressed by the
petitioners, that the exceptions will swallow the rule.
The most important message that we would like to come in the
order about the exceptions is that this is just the floor,
that it provides an opportunity for counties to just use
this as a floor and it is not the ceiling that it doesn't
preclude agreements between parties to be put forward to the
single justice when it's appropriate and responsive to both
the safety of victims and witnesses and community safety.
Kafker: I have no further questions.
Gants: I got one question.
You made some reference to racial composition, what what
would you be suggesting that be done with regard to matters
of racial composition of those released?
Elizabeth: Well, I concern Your honor and trust that we
have the data and the information in order to be nimble.
If we find that in, you know, by the end of the week or by
the end of five days, let's say or the first reporting
requirement on Tuesday, that the only people who are being
released are those who are approved.
Or, you know, to give you an example, we just got some data
from the house of correction in South Bay and in there we
have 62 people who were released Over the last two weeks
from March 16 to march 30 of the 62 released all were women
and 72%, were white.
That is that is, is challenging, I think and we would need
to really understand why that's happening and some of those
were sentences that were wrapped.
They weren't based on requests.
So I'm not saying that, you know, any of it was done in an
intentional matter.
But certainly we need to understand that we have equity in
the way that release is being provided to into detainees
and inmates.
Gants: And I guess you made a reference.
The MCI surely confusion?
You were telling me that it's a prison guard who's tested
positive not an inmate?
Elizabeth: Yes, your honor.
Gants: I think so, that's that's where I'd heard about
MCI having somebody who was positive but
to not be a prisoner.
I have no further questions.
Anybody else have any questions, Justice Gaziano?
Gaziano: I have a follow up question to a response to
Jessica Misawa.
I'm a bit confused, with respect to the exemptions,
and you mentioned a crime of murder, is it the DEA position
that that murder is should be released and that this
program?
Elizabeth: No, in fact should be an exemption.
Gaziano: Okay, that they should be ineligible
to be released?
Elizabeth: That they would not receive the presumption
of relief.
And again, in our eyes, the presumption is merely the making
of a list right, we're just putting the list together
so that we can very quickly and efficiently go through as we
have been on the ground here in Suffolk County.
Since this happened and district attorney Rollins has been
a leader on that front and has responded in a very
quick and expedited way.
Gaziano: You mentioned murder case so you want the
flexibility to be able to move to have murder
defendants released if you want to?
Elizabeth: No we want that to be that that put into the
exemptions, they excluded offensive.
It doesn't mean, your honor that above and beyond
disagreement that we wouldn't necessarily find a particular
person who's been convicted of murder.
I think one example that I gave to the special masters
if we had, for example, an 84 year old boy,
Gaziano: As far as I look back, I get you know,
I was misunderstanding you.
Okay, I get you enough.
All right.
Elizabeth: Thank you.
Gaziano: Yeah, I just did.
Gants: Justice Lowy.
Lowy: Am okay thank you.
Gants: Justice Budd.
Budd: Just just just in terms of the question about
exemptions are there others aside from first degree murder
that you that you would say should be
ineligible for consideration?
Elizabeth: No, Your Honor.
Budd: Okay again, our concern, our concern is really that
there are so many exceptions that it will swallow the rule.
And that we want to be sure that this is just before.
And it allows us to come to agreements with the defense bar
on other individuals on a case by case basis, taking the
careful review that we've already been doing
in Suffolk County.
Budd: Thank you.
Gants: Justice Cypher.
Cypher: Nothing, thank you.
Gants: Justice Kafker.
Kafker: Also.
Gants: And I've got no further questions.
Thank you, Miss pentimento and thank you Miss Riley
for being available.
Elizabeth: Thank you, Your Honor.
If I could just say one other thing. We've said many times,
but rule 29 we do believe should be
in the in the form of stay.
I agree with a comment that was made earlier from bench that
it's in an article and doesn't really fit well.
But it's the best that we see outside of using just here
authority under common law the Charles.
Gants: I'm sorry, it would be Would it's a better vehicle
than to use the authority to stay under Charles or, you.
(cross Talk)
Elizabeth: I apologize, Your Honor, we believe Charles
should be the first step and is the most flexible,
and wait for the court to place the order.
And then if it is under Rule 29, that it would have to be
formed in a stay in order to avoid
separation of powers concern.
Gants: Your preferred course of action would be for us to
do it as they stay of execution of sentence and not as a
revision of the sentence.
Elizabeth: Yes, Your Honor.
And and it, you know, I think there'll be further litigation
about whether or not we would be able to do a agree to plea
at the end of this day, you know, to, again, to be flexible
and nimble in the face of this global pandemic.
Gants: One other further question, actually you made
reference to, so you will agree you'll have cases in which
you have agreed that somebody should be released.
Is there any view that or no promise on your part is can be
changed?
I mean, is there any is there any capacity to do a no
process during the pandemic with the view that you could
prosecute afterwards?
Elizabeth: Yeah that considering that I think there's
some diktat in cases in the 1920s that essentially says our
power to no process and with sentencing, I'm not sure if the
extraordinary circumstances that we are facing now would be
the right way to move forward with a null cross
and litigate that ability.
But that's something that we've been considering,
especially, you know, for those who are post conviction,
who have been sentenced.
Gants: You've been asking for us to address that issue
and a decision potentially.
Elizabeth: There is some potential yes, Your Honor.
The case has not yet teed off, but there is some potential
that will come your way and certainly with the district
court and superior court pre trial cases, you know, using a
nonprofit is something that we were considering.
But again, we need to take these on case by case basis.
And considering this the incident that charges the victim
witnesses and community safety.
Gants: Thank you, thank you Miss Riley.
We'll turn now to Mr. Ralph on behalf of Berkshires Middle
District in the Northwest.
Ralf: Good afternoon and may it please the court.
Northwestern Berkshire are proud to
stand together on this effort.
Well, the Middlesex brings to this the experience of already
having collaborated with Sheriff tuition to handle motions
that today have resulted in the release of 63 inmates.
Our opportunity Sheriff is have also already prepared a list
of eligible prisoners and are ready to proceed immediately
with the consent judgment.
I think it's really certain non violent offenders in order
to reduce the risk of contagion find the approach in other
jurisdictions and our country have already taken.
Other nations around the world have also recognized the
enormous threat that Corona virus causes to people who are
incarcerated and have taken the same sort of action that we
are urging today.
The United Nations Commissioner for Human Rights is urged
all countries to immediately take steps to release
vulnerable and low risk prisoners.
Canada and Germany, two other comparable democracies are
releasing thousands of non violent offenders held pre trial
are nearing the end of this agreement also ensures that
justice will not be denied to victims, their families and
the communities that we serve.
Once the epidemic is founded, we'll proceed with the pending
cases and convicted defendants with time remaining on their
sentences will still ultimately serve their major adult
sentences and only going to be challenging to take the type
of decisive action that's required to prescribe both public
health Public Safety in this unprecedented time.
Yet it's precisely those difficult decisions that will
define us and we come today.
As ministers of justice, we have a moral duty to protect
both the public and those who cannot social defense or
otherwise protect themselves.
Science, statistics and justice all require that we
implement the sort of solution proposed here.
We respectfully request that the court accept the special
masters report and recommendation before opening up to
additional questions.
I want to address a question that I believe justice Budd
asked Sr Attorney General Pascoe what seems like a long
time ago, she asked about the
feasibility of pre release testing.
Our office has already consulted with retained infectious
disease doctor to assist us in our evaluation.
And based on our discussion with that doctor, this is
apparently a conundrum that even Hospitals are are
struggling with on a daily basis.
For instance, surgeons who presumably should not be COVID-19
positive, sometimes urge to take a test
before they do surgery.
The problem is, is that the results of those tests can take
days to actually return and during the time that the tests
are pending, of course, the doctor is going to be, you know,
circulating but other potentially infected people.
It's the same problem that you would have in any of the
presence of houses of correction.
You can test an inmate before they're going to be released
to collect them while those test results are pending, you
would potentially be returning them to the same infected
environment that they came from.
So that is a conundrum that even infectious disease doctors
do not have a ready solution.
For now, therefore, the proposal that is really agreement at
this point may be the best solution that we can craft.
And I just want to clarify one point that was raised in the
last argument with respect to murder.
The very first excluded utterance and Appendix A are crimes
of violence.
There's no serious question that murder is a crime of
violence so I don't think that there's any legitimate
dispute that someone who committed murder would be
categorically excluded.
At this point, I'd open up to any questions
that the court might have.
Gants: Thank you Justice Gaziano.
Gaziano: In fact, actually, that's why I asked the
question about murder because I had assumed it was a crime
of violence but so you you buy into the entirety of the
Masters report?
Ralp: Yes, Masters report to be honest with a negotiated
document and times that you enjoy negotiation to you.
Like some things and something to accept on balance.
We believe that the Masters report is carefully crafted and
and balances the interest in the community and safety along
with the interest in presidents and officials at the houses
of correction, and presidents, and also their safety from
infection from this epidemic.
Gaziano: Look, then let me ask you particularly about the
article 30 concerns that have been raised about altering
rule 29, what's your what's your position on that?
Ralp: My thought is that everyone said, you know, there
is no great set.
This is an unprecedented circumstance, but I don't think
Gaziano: it's the case sometimes was a great
fit not to violate the constitution?
Ralp: I don't think that this does violate the
constitution.
I don't think that the final rule 29 would violate the
constitution.
I think that the reason why it doesn't violate the
constitution is essentially what the court would be doing
would be considering this matter, almost nunc pro tunc.
And the final that would be to effectuate the original
sentence that the judge initially intended to impose.
At the time of the sentence, the judge presumably thought
that he was sentencing or she was sentencing the defendant
to present as that is commonly understood, unbeknownst to
anyone, particularly the judge at that time prison, as it is
commonly understood, would not exist.
Therefore, in order for the court to effectuate the intent
of the judge at the initial sentencing, the best way to do
that would be to bring it back to the trial court and let
the judge consider what is the appropriate sentence and
light of the The epidemic that we are now faced with.
Gaziano: And that also holds true if a person and you
know, this could be wildly off, it could be accurate.
I have no idea, nobody knows if that person was released
from serving a sentence in the facility that they already
never miraculously get a single case of COVID-19.
Ralp: That's right the state but it's not about getting a
single case is about whether the judge a trial judge
intended to expose an inmate to this drastically enhanced
risk of infection in depth.
I think that the the that is different from the situation
was a separation of powers issue because this isn't a result
of anything that the defendant may have done
after the sentence.
This is a result of something that would be
supervised by parole.
This really is effectuating what What have been the judges
intent, had the judge been aware of circumstances that would
drastically impact the effect of the sentence that
the judge sought to impose.
Gaziano: I have no further questions.
Gants: Justice Lowy.
Lowy: Yes, thank you.
So you mentioned Germany and some other states.
Are you aware of how that prison reduction took place?
Was it the executive branch?
Was the judicial branch involved?
And if the judicial branch was involved, to what extent?
Ralp: Your honor, we've actually done a worldwide survey
of various countries ,I have to say that I can't talk about
the inner workings of all the different countries but I can
tell you that you know, there's obviously different legal
frameworks, different mechanisms.
There are, you know, it's it is the legal system
are our so different that I can't comment on the specific
mechanisms but what I can say is that comparable, developed
democracies around the world are considering and
implementing exactly the type of approach that we are
suggesting, that would be appropriate here in Massachusetts.
Lowy: All right, you are the executive branch.
And I appreciate that you and the other parties in good
faith worked with the master.
I also expected those DHS offices it didn't also get it did
not in good faith based on their view, but there's nothing
at all that precludes an elected DA from agreeing to a
reduced bail, but no bail, agreeing to emotion, neutral
trial and then the time of play or Now prof or green,
if it's within 60 days to revise and revoke.
Isn't that right?
Ralp: That is right, and your RSI started with my
introduction, we have already done that resulting in the
release of 63 inmates.
We have a list right now and we attempt to proceed on on
that with as much deliberate haste as possible.
But our authority is circumscribed by rule 29 at this point,
and that is essentially why it is that were coming to the
court also, it's important that we have the ability to
obtain information and have some of the other procedural
safeguards that are are contained in the agreement.
And the best that we can but we can't, we can't do
everything that we could do.
The court was to adopt this agreement.
Lowy: Thank you.
One last question.
Not going back to the minor questions
from justice Gaziano and the revised and revoke.
Do you think if if we were to adopt your interpretation of
this circumstance and consider post sentencing
circumstances, that that would be a deviation from our case
law, with revising, revoke?
Ralp: I think that it would be consistent with notions of
separation of powers, it would certainly be a different
application and will 29 has ever been applied to before.
But obviously, this is a unique circumstance.
This is the first epidemics that we have encountered.
So it's a unique factual circumstance, but I don't think
that simply because it's a unique factual circumstance.
The underlying legal framework necessarily provides any
barrier to it it's just applying a different set of flags to
well, that was separation of powers concepts.
In this context, the separation of powers concern is with
the court continuing to exercise supervision over
defendants, defendants after they have been convicted in
Sundance after a period of time, and thereby exercising the
authority of the parole board and the executive branch in
this case, really what it is, is a reconsideration of the
initial sentence in light of these extraordinary new
circumstances that fundamentally alter the calculus that the
sentencing judge would have applied
at the time of sentencing.
Has the sentencing judge been aware of a standing epidemic
or possibility of greatly enhanced rescue to detainees.
Lowy: Thank you.
Gants: Justice Budd.
Budd: I have no questions, thank you.
Gants: Justice Cypher.
Cypher: Yes, thank you.
Attorney Ralph, can you can you explain to me why a
stay is not a better idea than rule 29?
Bearing in mind that if we chose to we could amend the rule
a bit to permit something like a pandemic to be considered.
Ralp: That is what turns a paragraph four of the
agreement that's essentially what it is that we are
recommending on page a paragraph four.
Cypher: So it is not a rule 29
Ralp: I'm sorry.
Cypher: So so you would not we would not have
to rely on rule 29?
Ralp: Revising is a proposed legal mechanism but as other
But against the mentioned it wouldn't necessarily have to be
under Rule 29.
It's the most convenient, well established protocol for
doing it and I think that it does avoid some
separation of powers concerns.
Cypher: But I guess that's what I don't understand.
I don't I don't understand why rule 29 avoids separation of
power will concern that rule six and a stay wouldn't,
wouldn't would, why, why, why Israel 29 violated more than
a state ?
Ralp: Under Rule 29, It's clearly within the province of
the judge to do certain things.
Once you get outside of rule 29 then you're relying on
extraordinary powers of superintendents of the court.
And I think that you then kind of step on to less firm
ground, although I think that it would it is certainly it
would be appropriate for the court to do it that way.
Rule 29 is clearly established authority of the court to
impose intent reconsider sentences.
Cypher: Okay, thank you nothing further.
Gants: Justice Kafker.
Kafker: Don't we have some cases we've stayed execution
of sentence even close appeal.
Ralp: You have camo versus Charles
and excite Commonwealth vs. McLaughlin.
Those were both in like Duke in context.
Kafker: So why are those closer
to what we're dealing with here than rule 29?
Ralp: While they're both involved stage one is just the
specific method of implementation.
It is a different task to bring that back to the trial judge
of the sentencing judge to consider it.
The result is the same that it's a state.
It's just the legal tool that you're using.
As I was suggesting rule 29 is, you know, clearly
established within the bounds of the court and within the
bounds of the SJC to modify the rules of criminal procedure.
So I think that, that rule 29 has the advantage of not
requiring the court to use its extraordinary superintendents
authority over an inmate, which is potentially problematic.
I don't think that it is ultimately, legally prohibited.
But if you're on shaky ground, we believe that if he
proceeded under rule 29.
Kafker: We would, forget about Germany and Sweden, New
Jersey, New York, California, are these all been done
through agreement, all of these reliefs and if not,
these other courts are smart too, what are they relying on
to justify their do are they providing any right are they
just doing it because it's agreed to?
Or are they just ignoring?
not putting in reasoning in on
the constitutional separation of powers issue?
Ralp: Your Honor, I have to confess that we've we've
canvassed the entire world and we've collected thousands of
reports of courts releasing departments, we have not done an
in depth review of the legal procedures that all the
different differently situated courts have used.
I'd be more than happy to provide the to me
research to the court.
Kafker: Do any of them provide a read?
I mean, do any of them have the equivalent of room 29
or rule sex or anything else that we could look at?
Ralp: I have not done the research relating to the
specific mechanisms that are different jurisdictions abuse.
I'd be happy to find attorneys to research that and provide
detailed information.
All I can report to the court is that throughout the world,
this is part of the cheat.
Kafker: But it would be very useful to me.
I'm not really interested in the international ones, but I,
if other state courts can provide or federal courts have
provided a rationale that could provide guidance to us,
I would find that very useful to have in
this particular context, yeah.
Ralp: We've had like a 16 hour letter in your honor.
Kafker: That's all I have.
Gants: Justice Kafker, I assume you're referring to
only post conviction, correct?
Kafker: Yes I'm only interested in
I I'm interested in the post conviction rationality provided
by other states or federal courts.
Gants: And I We will look at it, we will get to that.
Kafker: And we'll look into that in and submit something
to the court as quickly as possible, Your Honor.
Gants: I think you'll be focused on post sentencing where
they appeal because we certainly have authority already in
the rules with regard to a stay pending appeal.
So right.
Okay and I would invite them in. Mr. Ralph, you're welcome
to do that tonight, invite anybody else, including
petitioners who wish to weigh in on that issue?
I have no further, Justice Gaziano ?
Gaziano: Just one follow up.
So you know, looking back at mcglothlin and Charles, both of
those cases involve egregious errors at trial, right?
Ralp: I agree, is there is that trial, right?
Gaziano: Right, because Charles was at Duke in case.
And the court said, well, there was a trial error.
So we're going to give you a stay.
Ralp: This is correct.
Gaziano: All right, I've got no further questions.
Gants: Justice Lowy.
Lowy: Nothing, thank you.
Gants: Justice Budd.
Budd: No thank you.
Gants: Justice Cypherr.
Machine Talking: Now exiting Matthew Segal from eco.
Gants: Justice Kafker.
Kafker: Nothing.
Gants: And I and I've got nothing.
Thank you Mr. Ralp.
Ralp: Thank you.
Miss Sullivan on behalf of Bristol
in the six other DA's offices.
Sullivan: Yes, good afternoon Chief Justice, thank you.
This is 78 rabbits tenuously opposed the petition is to
click into the unconditional category, category categorical
release of both pretrial detainees held on to lawful process
and those who are convicted and sentenced lawfully.
We did suggest that what's proposed by the special master
and imposes a layer of administrative bureaucracy that votes
over include there's for some groups aren't inclusive to
others, and put the duty army executive branch that being
the district attorney's office, to come to ferret out
information and compile lists information that we do not
necessarily have or we do not have access to.
Most importantly, this is all this is generated by concerned
for the health of the inmates in the spread of a virus,
then medical information relevant to that determination
and relevant to the merits of whether a person is released
and not needs to the access, and it says, Commonwealth or
the defendant, district attorney position that certainly in
the case of pretrial detainees, all of that information is
solely neatly within the knowledge of the defendants and
their counsel.
It's clear that in the pre pre trial detainees situation,
that detainees would have counsel counsel would be array
would be appointed add a reason.
There would be bail hearings and then that became news
worthy to be released on personal recognizance or whatever
or held on some sort of bail.
The defense attorneys also disagree and believe it's
Machine Talking: Now joining
Sullivan: Productive accountants counterproductive and
cause a waste of more time by having this presumption that
is essentially meaningless.
If all if some categories of clients can fall into
the presumption and other different other detainees and they
can raise the issues anyway.
We are on the side of pulling align ourselves with the trial
court, where they where they indicate that it's necessary
to have case by case individualized determination of any
motions to release those motions to the pre trial to be
brought in the trial court.
The Trial Court has acted expeditiously.
I suggest admirably in arranging the procedures and
facilities for expediting and hearing these kind of motions
and the district attorney's has managed the courthouses.
In order to do that we've reached out to our local
CPCs attorneys.
We have indicated I believe, all of us, it's all in the
affidavits provided by different offices, that in
appropriate cases, we are certainly willing to consider
agreeing to leases and that can and is happening.
But we do not believe that we need in any way to attract the
type of overlay that the special masters trying to impose.
And we think that it raises obvious, it certainly has to be
convicted defense in the serving of serving a lot of new
posts and that raises serious concerns about the separation.
The powers and any change to the sentence would violate
article 20 and 30 solely the execution of the sentence is
solely within the power of the executive.
As you can't use rule 29, that's not a motion to revise and
revoke, it ends up being, you know, most actors spend a
certain emotion to commute, all of which all of those
procedures fall within the purview of the executive
departments, the governor.
And, and that's in one of the other issues.
One of the other points that diseases like to make is that
once a person is sentenced, under the separation of powers,
the legislature makes the law makes the laws and the
criminal laws and the penalties except those judiciary
adjudicate those impose a sentence, one sentence is imposed
with jurisdiction and the authority is
transferred to the executive.
And in these particular circumstances was not like this
wasn't contemplated in the past.
There is a civil defense,
which we started in a supplemental brief, a civil defense
statute that in touch, the governor of the state was
declared when confronted with emergency situations like what
we have, what he has declared we have here right now has the
authority over the government for the for the health and
welfare of the inmates.
So if anything is going to be done with convicted inmates to
a serving a lawful sentence, it is for the executive branch,
that that being particularly the governor.
And I would also like to point out that I think that it's
important for the court to stick to what the actual facts
are as able to come up during this whole process, as the
petition was filed a petition without having gone to the
lower court to present everything there was no evidentiary
hearing about anything.
The petition was filed against only one party apparently
left out the other important parties.
And we proceeded from there the goalposts at the
at the masters and masters reporters in various various
iterations.
They all seem to be moving but initially in the petition,
as you know, it was the first categorical court gorko
really, of all types of detainees.
And, and that is what the the young district attorneys
strenuously oppose, they be in the process does not take
into account appropriately a public safety concerns they've
been articulated by the Department of Corrections, and which
appears that we have to we just have to focus on what the
facts but the facts are, yes to the crisis.
But what is the extent of the crisis within our prison
system, and I would suggest that was before you so that is
not at a crisis level at all.
That would be awesome.
The management of autism systems has made it to prevent the
introduction of for the most part or the introduction of the
virus to the prison system, and certainly to containment.
They have procedures in place.
They have dealt with a place like this before, as there's a
footnote in one of the affidavits about SARS, HIV, and they
successfully navigated through all those types of things.
So I suggest that as far as the convicted dependence that's
solely within the purview of the executive departments, the
governor and and then he has many other agencies, executive
agencies at his disposal, Department of Public Health
Department public safety, that can only be done with the
remains to ensure that their health is protected.
And as far as the free trial because it's the experience of
the district terms with their assistance on the grounds that
the procedures that have been put in place by the trial
court are in fact working and working very well.
If motions are filed the heard expeditiously I believe there
was some within 48 hours.
The court report that there's been no problem with the
volume that they're able to meet it.
We are doing everything in our power to even with reduced
staff and but we are doing everything possible to meet the
requirements to and we have, we have a court staff to
address these matters and they are being added and we are
talking with our with the the sheriff is, if there is
something that we can do that we're open to that,
but it has to be in court on a case by case basis with
individualized becoming victims of the victim crime,
they have a right to be there, they have a right to be
available, they have a right to be heard,
they cannot be ignored.
And that is something that the Masters report just
completely disregard and another point that I would like to
make about the separation of powers within the Masters
report, if I haven't already, but it does direct at the
district attorney's office executive plans, perform certain
functions for the judiciary.
And I would suggest that that's beyond that that is beyond
the powers of the court to do and it's not that we do not
daily work diligently and hand in hand with the trial court.
We try to facilitate what we can, but we cannot and should
not be ordered to do something that we are not in a position
to do.
Question questions.
Gants: Justice Gaziano.
Gaziano: No, I have no questions, thank you Chief.
Gants: Justice Lowy.
Lowy: I have no questions thanks, Chief.
Gants: Justice Budd.
Budd: Yes, I've got a question.
You said that you're aligned with the trial court's
position and I just want to hear from the point of view
of the district attorney's, the opposition or the problem
that you have with having a presumption that certain
categories of inmates should not be considered necessarily
a good candidate for for release, based on the COVID-19
virus?
Sullivan: But I think I vote, I thought, I think that
they create presumptions of those who would be presumptively
really, but then there's the cat dog It says that we're not
preventing anybody who doesn't fall within this presumption
to bring emotion.
So it's opposition that what's the point of the presumption
is everybody is at the bottom line is that everyone can
bring the motion.
And I think even the other district attorneys all have come
down to saying that there needs to be a case by case review
and an individualized determination.
Everybody expects it should go before childhood.
So I we're just not quite understanding the need for the
bureaucratic overview.
An additional one is I mean, I think if he thinks is going
to be done expeditiously, you know, the word committee is an
N synonymous with delay.
So fornells funneling the committee's assembling it just
seems as if it's from our position and from reports from
what's happening.
Repeat the process and the procedure as a class now is
working the courts have been no complaints.
And we're ready willing and able to assist in any way that
we can but we have obligations, we have public safety
obligations that we are not going to give up.
Budd: Can you give me a sense of how many inmates have
been released from each of the county, DA, DA offices a to
represent?
Sullivan: I'm leaving my present in that I believe it's
attached to one of the Chief Justice's affidavit, there's a
talk of motions that were brought and what the results were
and I don't have it at my fingertips, but it isn't, It isn't
in the it's not in our submissions, but it is in the
documents that were presented to the court, it might be best
to separate him.
I'll take a look to compare.
Okay, Yeah, I apologize, Your Honor.
But yeah, but I know I would ask the court to carefully
review the affidavits of the trial court chief justices that
was submitted, because I was, I would hope that the court
would commend the trial courts for really stepping out
taking charge of the crisis and doing what they can, that
the inmates are not forgotten.
In this process, they are the people who are getting access
to the courts on an emergency basis, for the most part.
That's what the directors have all done.
That's what the focus has been.
Budd: Do you happen to know whether there were any cases?
How many if any cases were the the government,
for the counties that you represent?
We're in agreement that that someone should be The image
should be released?
Sullivan: Yes, I don't have the actual numbers, but what
are you talking about three types of pretrial detainees.
I believe in Worcester County, we have you've had, you have
one.
You've had some that have been released have
discussing what we have plans to make agreements, you know,
to have agreements with defense counsel to release people in
appropriate circumstances.
I don't have the numbers, you know, or the cases on what has
been done.
You know what it is, I could probably get that too, if you
would like, but we are open, certainly to disgusting and
inappropriate case we are open to an agreement, you know,
for for relief.
We're not precluding that at all, we're just saying that the
process has to be one that takes into account all the
factors and you know, it should be done in
open on the record.
It should not be done, you know, in somebody's office.
Either this is the criminal justice system and the public
has a right to know what is going on.
Budd: I mean, I think there's somewhere in that in the
math special masters recommendation where it says that
there's not going to be a hearing, I might have missed it.
Sullivan: Well, no, but I was just thinking I could use
as far as how the process of assemble is with the committee
work, how the committee works, assembling the, the list, and
then presenting them and say, Oh, we agree to all this.
But, but and what's particularly concerning is it well, we
can't do it fast enough and you can't get in you can't get
ahold of the victim fast enough.
Well, we're still going forward and that's the way it is.
That's a dereliction I think of everyone's duty does the
victims right Act applies not just to the district attorney,
but it applies to the courts there specific directive to
counties and other people but the bottom line is that the
victim should not Be just dismissed as part of the process
down there very important.
And as part of, you know, any decision to release somebody
who has been held on bail and you know, for change
circumstances, you have to consider where they're going.
what they're going to do is in a domestic violence situation
as is the only home back to whatever violence occurred.
There are facts that have to be fleshed out.
Budd: And I think there's an exception for that,
but that's fine and then your your position is that no one
who's been convicted should be considered for relief,
even if it's non violent offense or for?
Sullivan: What were the feuding is the authority of the
judiciary to insert into effect essentially set the power of
the executive that way.
Look, certainly They're within the 60 day window of a rule
29 is that time anything else once that sentence becomes
final, you're asking to come to suspend.
And you violated the separation of powers, a stay of
execution pending sentence that's appropriate.
I stay of execution when there's a validly filed, move 30 or
rule 30 A motion that would be appropriate or subscribe
apart from that there are remedies and I think in
particular, in circumstances like here, where we are facing
a crisis, a health crisis, as directed by the governor,
the governor has the authority to do what may or may be
needed under the circumstances no one has even you know,
attempted to go through the governor or even to suggest that
but I suggest that that's, that's the authority that that
executive body is what is how you will Be able to
effectively be the governor is in charge of school,
the governor is in charge of public safety, public health.
And to the extent that things like that could be had and
he's been tagged to the complications in the party, and if
that's what needs to be done, and that's for the best for
the governor to be presented with
and to make that determination.
Budd: Okay, thank you.
Gants: Justice Cypher.
Cypher: Nothing thank you.
Gants: Justice Kafkar.
Kafker: Just want to make sure I understand the position.
So it sounds like you're thrilled with the way the trial
courts are handling this and have and you're completely
comfortable with the procedures in places that right?
Sullivan: Well, I've been having nothing as advice or
testing that the procedures aren't working as they should be
working that people have included something in motion, that
people are delayed and bring emotions that someone suffering
As a result of anything, and we are open to whatever.
Kafker: You're comfortable with the hearings as they're
being conducted, which is by video conference or
teleconference,
so you're comfortable with that as well, right?
Sullivan: Yeah, yes, I certainly it's not ideal, but
under the circumstances, that's what has to be
done and done.
Kafker: Right and then the other.
So you're also, you recognize we do have a health crisis out
there, but you think it's under control in the prison
systems and, and what is the DA office are they doing
anything differently in response to this than they were
doing before?
I'm just trying to make sure I understand what the DEA
considers this group of DEA considers the appropriate
response to them to this crisis.
Sullivan: But we'll get what we have is I mean, we have
had ongoing discussions With the local defense bar, about
the needs of people, as a result of concerns of the violent,
violent concerns within the prison.
Kafker: And just trying to know what you're doing and
what you think is acceptable for you to do, because I don't
want to, I'd like to understand what it is that you're
doing because if we order you to do just what you like to
do, I take there's no problem, but I'm trying to understand
what it is you're doing differently in response
to the crisis?
Sullivan: Yeah, but we're celebrating expedited review of
these motions, and we are as motions are coming in, and if
there's something that we can agree to, we will do it.
I don't know that it's necessarily that much different but
there's a much more probably more volume and it's a more
conscious, whatever more specific motion.
But it's following a similar practice to the regular bail,
we practice Like it's being addressed daily, and
immediately, it doesn't really concern is immediately.
And I my only question is not that we not to be don't
recognize that there's a potential for a big problem in the
corrections facility.
But right now on the record that before this court, whatever
the problem is, it seems to be under control within the
prison system more so certainly, than it is outside the
prison system.
So whatever they're doing, which was, as far as you know,
controlling people are coming in to hygiene, it seems, at
least from what we know, now seems to be working that
container, and that's where we have our civil defense.
Kafker: Right so you want us to stay on this because it's
doing it's it's fine where it is?
Sullivan: I think this is one.
(cross talk)
Kafker: I just want to make sure I'm encapsulating your
views which is that you don't want us to do anything right
now, right?
Sullivan: Your honor I, I believe that's the that's,
that's our opinion that right now as things stand, and as
your trial courts have reported to you interested, the
system is working, it's addressing the issues that have been
raised in a timely manner, and it is working.
Now at some point, there may be something but there are
limits, I suggest to what the judiciary can in fact do.
And this is not a one branch of government problem that we
can order people to, you know, be out of their lane and do
certain things to fix this into an emergency that affects
the entire state.
And if the governor I suggest that controls now the.
Kafker: Governor's the pre trial, free trial, issues are
really more our responsibility that hits our thing.
Sullivan: I mean, I I totally agree with that day.
But, but I would just suggest that they are being handled
very well.
There is a process in place, you know, you can always move,
at least in our experience for a review, avail based on
change of conditions, most of the time at UBC that was
imposed or whatever, without prejudice mean that people can
come back at any time.
That is, that's the routine, even apart from this, but I
think what's changed is how it's conducted and how we have
to open up the courts to a certain extent, or at least make
the judges available so that these emergency motions can be
heard and in our students, they are being heard and they're
not aware.
I don't know if there's that I don't I'm not aware of any
complaints presented that they had like the trial judges
have said that there's been a complaint about inability to
access the court in order to present a motion for relief.
Kafker: That's all I have.
Gants: I've got a few questions rolling on Justice
Kafkers questions you accept I gather at least your your DA
is except that the pandemic constitutes a change in
circumstances which is appropriately considered in terms of
revisiting bail, why?
(cross talk)
Okay and what do you consider to be the the practical
consequences of the change in circumstances with regard to
the revisiting of the of the issue of bail?
Sullivan: Well, if the whole that is an individual, I
think it's got to be an individualized increase.
It's all about that my health is in danger, I think we need
to be presented with some sort of evidence or what the facts
are about your health, what the particular danger is.
I think it's been very helpful from the department to get
the information from the Department of corrections as to
what's being done with in there to prevent control.
The spread of the virus I think that's important to anybody.
Yes and what the sheriff's are also doing department of
corrections in the sheriff's.
You're following everything that CDC says to say whatever
the proper protocol is, seems to be working.
That kind of information is relevant to anyone to the judge,
the judge who's making a bail determination is considering
whether or not to lead the person to be just like, where
would the person be released to?
That's important.
So there are factors that have to be considered and if
someone can be safe if a pretrial detainees can be safely
released into the into the community in appropriate cases
that the district attorney's would agree to that,
I think is your view that.
Gants: There's a change in circumstances only when
somebody tests positive within a jail and there's a concern
that the jail is going to become the cluster?
Sullivan: I'd not necessarily, Your Honor, but I think
there has to be some sort of correlation between the reason
that the request for relief and what's going on in the jail,
if there's in how, you know, the relief will actually
alleviate that.
Gants: And I guess my last question focuses on the or
your DA as opposed to a process in which they identify a
number of individuals who the defense wishes to consider and
you confer with defense counsel and with probation and the
sheriff's and attempt to identify which cases you can agree
upon, are appropriate for release in which you're going to
be adverse with respect to?
Sullivan: I think what our main objections is except we
the DHS office, are going to be ordered to compile that way.
As Exactly as I suggest that is an owner.
I, we don't have that information at our fingertips.
Right, and it's like if a list is prepared for us it was
presented to us, we would certainly do whatever we could to
profiles, review that review those files and make any input
input that we could as quickly as we possibly could.
But it's more, the question is, how are we going to do this
and get the information from either the bail or the the is
personal to a particular defendant, I would suggest in these
particular circumstances, and particularly whereas the
defendant or the inmate or the pretrial detainees would be
represented by counsel.
It just seems much more efficient, and makes much more
common sense if the defendants do their counsel or even not
be a council file a motion I mean, there might be some
things you can do to put in the jails.
In the house of corrections, what to do to file a motion
like was, I believe was suggested by the representative of
the trial court to some sort of form motion.
It doesn't have to be a treatment.
I mean, it's just we just need to raise the issue.
Yeah, it doesn't make sense to put the audience on a
difficult thing to compile that information whet their
appetite is.
Gants: Is your concern the gathering of information?
Or is your concern and obligation to be conferring and
attempting to identify in terms of triage in these
individuals?
which individuals you agree are appropriate for release and
which are not?
I'm trying to figure out what your position is on that.
Are you opposed to a process to attempt to to work with
defense counsel and attempt to identify those individuals
who should be triage for release?
Sullivan: No, no, I'm not opposed to a process but I
think it would be nice if the council brought emotion
brought brought whatever needs to be brought to our
attention to our attention.
So we could act on it, I think the process of having us
devote staff and we are at galaxy staff maybe going to
courthouses or try to go into courthouses that are close.
And in that case problems for our staff to and it was
created delay.
So if whatever party has access to the information that's
essential to bring the motion to bring in if they can do
that, find that mission, just to bring the look.
-: Have got no for the questions for you.
(Cross talk)
Gants: Justice Lowy.
Lowy: I just want to make sure thank you, Chief that I
understand, one thing Miss Sullivan says.
Do you agree that even if somebody hasn't tested positive,
even if there hasn't been an outbreak yet, in a particular
facility, that the COVID-19 endemic, can be considered as
it relates to a reconsideration of bail because of reasons
of social distancing and possible, contagion.
Sullivan: Sure individualized basis.
Lowy: Okay, I have nothing further.
Gants: Justice Budd
Budd: I have nothing thank you.
Gants: Justice Cypher.
Cypher: Nothing thank you.
Gants: And Justice Kafker.
Kafker: As one follow up, you raised the concern about
your staff going into the offices.
So in order to in order to do this process, your view is if
we did with the special master recommended, we're going to
be bringing in large numbers of your people into the office
who are now working remotely, is that correct?
Sullivan: Yes, yes, we have many, many people that are
trying to work remote.
I mean, we do have a skeleton staff in our offices, but some
of the staff in our courthouses has been precluded from
going into there because they have been closed.
So yes, and instead of stuck in other days offices to have
found that problem, and yes, I think it would take body
trying to crack down on information.
Kafker: Thank you that's all I have.
Gants: And I have no further question.
Thank you Miss Sullivan.
Sullivan: Thank you.
Gants: And Mr. Hernandez, you are the last person to know
or the judge.
Good afternoon, Mr. Hanna's, you may proceed.
Robin: With it please the court My name is Robin Hanna's,
and I'm here representing the 14 elected Sheriff so the
Commonwealth of Massachusetts.
These electric shares have a constitutional statutory
obligation for the Karen crashy well being of inmates as
well as a responsibility of public safety.
They serve, in this request, petitioner ledger visuals is a
violation of the Eighth Amendment right and could be
considered cruel and unusual treatments.
But also it could be good some deliberate indifference on
behalf of the sheriff's.
This quote is heard no evidence of such petitioner prior to
file this petition has failed to look at the actions the
work, the procedure and the policies.
The sheriff's have put forward so that the facility
facilities can safely house the individuals in question.
This is demonstrated to the affidavit submitted by each
sheriff.
These actions by the sheriff's were in place prior
to the CDC spending, sending out the guidelines for
correctional facilities.
In fact, guidelines were sent out just seven days ago and
these these policies were put in by the sheriff by all
the sheriff's I say in the beginning of March.
The sheriff's have already contacted and are constantly
in communication with the CDC Department
of Public Health in Mima.
The sheriff's have taken and will continue to take action to
safeguard the safety of remnants of the importance, the
state that it's a violation an individual's Eighth Amendment
rights in cruel and unusual use equivalent to saying the
show has shown shown deliberate indifference, which is the
farthest from the truth.
The sheriff's are one of the first person to make sure their
employees and their mates were safe.
They did this and continually do this on a daily basis in a
number of ways, including but not limited to.
They have stopped on all non attorney visits and afforded
more time on phones for family contact.
They have developed an enhanced screening procedure and a
help screen for symptoms of COVID-19 for any new ma coming
into the facility.
They did this by having a screening while employees also
coming into the facility.
They did this by making sure the inside of the facility
continuously sterilized and clean opposite of what the
position is search that it's a petri dish.
They did this by making sure that all individuals are
providing hygiene products which include soap and sanitizer,
despite the dishes allegation.
That's an article so, they do this by educating and
constantly educating both inmates and employees of the need
to keep washing their hands and hygiene issues.
There was a continued education of COVID-19 for both inmates
and employees.
If there was an inmate they may test positive they arranged
for the inmates to be isolated and contained in a way for
the other inmates in many different ways.
Some jails have set up the per unit specifically for this.
It should be noted that COVID-19 is no the shadows
throughout history have had to deal with issues of the past
some example being sighs, Ebola Mars.
In a deal with these examples, they were able to buy the
safe facility for the individuals.
Further, petitioners request for relief, as categorized,
I believe is reckless.
It will cause more harm to individuals that they are
literally that they allegedly wants to help show us have the
task and have worked hard with a
responsive commitment to reintegration.
They've worked hard based on the show's commitments of
safety for the community and damage Individual, you have to
look at these inmates are these people in jail right now?
The timely majority really suffer from medical,
psychological substance abuse disorder.
They In fact, are the vulnerable ones that maybe for the
first time, they receiving treatment, very for the first
time, they wish he was counseling, maybe for the first time
they deal with a substance abuse disorder,
that's going to be taken away.
That's a hard stop.
We're asking for individuals to be released, as the
petitioner wants you to category category that endangers
them a category that doesn't address individual issues each
person has, if the court allows this, this, this action and
categorizes inmates by age, by how much time they have
served, you're not taking into consideration each individual
person has their needs.
When the petitioner argues that they're all they they're
going to be vulnerable outside, they are vulnerable before
they go to jail.
Some of them for the very first time, I received medical
treatment, someone for the very first time of being able to
address the opiate addiction, you're taking that away from
it by doing a hard stop.
Also the homeless issue.
We have been in contact with a number of shelters, they are
overloaded.
They have they don't have places and as people as a medical
field will tell you, shelters themselves that the petitioner
wants to help put them in right now have COVID-19 issues.
These individuals are safer there than they
would be in in a shelter.
These individuals are being taken care of in a much cleaner,
safer place than what the patient wants for the court to
rule that there is a violation you the court saying that the
sheriff's have now a deliberative difference and I would
submit to you if accordance any order?
I would respect any question, you want to indicate that this
was not a result of deliberate, deliberate and difference on
behalf of the sheriff's.
I'm available for any questions.
Gants: Okay before before we ask, I just want to, before
we go with we don't need to go.
Referring to page 19 of the petitioners reply brief.
And I read paragraph one, both the opposing DHS and the
sheriff seek to refute constitutional claims in effect
petitioners have not yet brought.
Petitioners have contended that the risk posed by COVID-19
to incarcerated persons implicate constitutional guarantees
for substantive due process and against cruel and unusual
punishment.
But as the trial court the Department of correction and
other respondents point out, petitioners offered that
contention merely to establish that COVID-19 outbreaks carry
both potential constitutional ramifications, not because we
seek a ruling on these issues at this time.
So to my knowledge, the petitioners are not raising a
constitutional claim.
And if that is incorrect, I would invite one of the
petitioners who are on the telephone quote to correct that,
but to my knowledge, they're not bringing constitutional
claims and not having heard any refutation of that.
I'll then turn to Justice Gaziano.
Gaziano: Right it's just one question for me.
As far as the compiling of these lists in the like, Can you
give me some idea of what it takes to do this and how easy
or hard it is to go through your, your I guess it was called
census and one of the briefs as far as who's in your
facility and who's being detained, pre trial and bail that
they can't afford?
Robin: Well, we'll share with you have a daily reporting
of who's being held who's sentencing who is the house held
on bail, that can be that could be true anyway.
I will say on that note that since March 10,
the other shares combined have released 1441 inmates.
Gaziano: Can you give me that figure again?
Robin: 1441 inmates.
Gaziano: They said, is that an unusually high number?
How does that relate to?
Robin: The sherifs have been working with the most of the
district attorneys as far as helping them provide them the
information as to what the conditions are the inmates as far
as health wise, being able to go to a home having a place to
go to whether there are medical medical treatments.
There are some inmates right now as we speak, that are
receiving diabetes, daily diabetic medicine, which they
weren't receiving before.
There was some receiving chemotherapy, which they weren't
receiving before.
That's a constraining factor.
Gaziano: The Shadow sounds in Mr. Hernandez as far as the
ability to manipulate the data as far as given reports,
how hard or difficult is it to give a list, if it was often
specific, we had to take out charges put in charges to able
to spit those reports out?
Robin: That that that would take that would take a little
amount of work we have we break down the numbers as to pre
trial in normally draw.
Gaziano: Okay thank you, sir.
There's no further questions.
Gants: Justice lowy.
Lowy: Am all set thank you.
Gants: Justice Cypher.
Cypher: Good afternoon attorney harnendez
I've got a quick question
for you, right.
I understand that your point is that the sheriff's are
taking good care of the inmates.
But do they have?
Are they opposed to the release of low risk, you know,
nonviolent pretrial detainees who can't make bail,
for example.
Robin: I wouldn't say their post that anything with
regards to make sure that there is a balancing test of
safety for the inmate as well as the community is there.
So if there was, I'm gonna say low hanging fruit where
you're saying this person can be released.
That's fine.
But if the person right now is in the match program for on
Suboxone for the opiate addiction, well let them loose
without any guidelines without any counsel without going
through the reintegration process reentry process is
probably going to have to pick up and then he's probably we
just had a case just out of Asheville.
The person was released a week ago under this premise and
he's already been arrested.
He's been arraigned today.
If the purpose is to help these individuals, the sheriff the
sheriff's all in unison, they want to do that.
They just want it done responsibly so that we don't
categorize by age.
One jail as a 16 year old individual that right now is being
treated as a mechanic under the cap.
About 60 years old, that person should be released.
Where's he going to come to treatment?
He can't even contact MassHealth now, so we'll let them go
without insurance without some support systems around them.
We have to consider that for the safety the individuals.
Cypher: Thank you,
Gants: Justice Cypher.
Cypher: Thank you, Chief.
I have no questions, thank you.
Gants: Justice Kafker
Kafker: No, my only comment, Mr. Hernandez, I agree.
I saw no signs of deliberate indifference.
I think that because it's not crystal clear exactly how
we're going to be dealing with incarcerated people if there
isn't the constitutional violation.
So I'm not sure how we would do so.
Is that also your view that unless there's a constitutional
violation, we lack authority to deal with the in car the
incarcerated as opposed to the pretrial detainees?
Robin: The next day, the sheriff's have I believe that's
the only mechanism to get in there and I was mainly
concerned that in order to get it may have, you're gonna
have to find that a little bit of difference.
We'll be on the sherrifs.
Kafker: Thank you, I have no further questions.
Gants: Okay, just to be clear, you're not contending that
we need to find delivered in different stack with regards to
those who are being held pretrial, correct?
Robin: No.
Gants: Okay, do you are there any positives in any of the
jails right now in any printing any details, or coordinates
or prison personnel who've been I mean, a jail personnel who
tested positive I thought I heard something about Middlesex?
Robin: Yes, presently, there were two images one employee
and another facility.
So middleware makes one employee another facility, both in
both cases, the employee has been, is at home right now
being treated in in the, in the two inmates they are being
held safeguards to their health and as also as well as the
inmates around them.
Gants: Okay, so I understand that you're appropriately
concerned for the health of humans amazing, of course, have
your staff well as the public.
What would you but but but recognize that we're going to be
getting a substantial number of these motions.
And I think you'll also recognize that the sheriff's have
information which may be relevant to that you've described,
circumstances in which there would be information which a
judge perhaps should know, as to what you know, whether the
person is on MIT or other types of circumstances, what would
you suggest to be a process which would allow us most
expeditiously to be able to resolve a substantial number of
motions in a very short time under very challenging
circumstance?
Is where it's being done virtually as opposed to in person?
Robin: Judge, I have a couple of concerns with that.
I think lump sum bump does lump them all in would be
difficult.
Also, I am concerned about going down the road of saying
because someone has a medical condition, we shouldn't
consider them for release because they've been treated.
I worry about going down that road.
I worry that at one point, somebody misses the match
program.
They won't have the school system we hold because of their
match program.
We should for their own benefit.
And we should use it's the right thing to do.
But I wonder about people making that argument in court how
it's going to impact decisions down the road.
I know the show some more than happy to work with as long as
it's individualized and we look at each individual is
concerned.
The petitioner should be with us on that because they have
indicated their concern are these individuals that it's not
just a matter of getting them out of jail, to make sure that
they're out there and living their lives.
They are human beings, and we're concerned about them and
we have to make sure they get all the supports as they need.
It is a bad time right now to cut people loose and say,
Hey, the goal, by the way, nobody's really coming out to
help you right now because everybody's everybody
needs a bunker down.
It's a very dangerous thing, very dangerous road, we're
going down.
Gants: So again, I'm just understanding if the sheriff's
position that the pandemic is is not a change circumstances
which would warrant revisiting a person's bail,
or is it that there's a right way to do it the wrong way?
Robin: It's a little bit of both the historically have
dealt with not this type of situation, but other situations
like my son says, may I'm sure I may have shot sighs they've
dealt with contagious issues out there within a facility and
they kept the facility safe.
Then on the other argument, it will go into do it the right
way, let's do individual let's look at what the person
needs, help them and also the community around them.
Gants: Okay, and help me to understand what the sherrifs
would contend would be the right way recognizing that the
sheriff's do have information about people in their
facility, which may be, which may be a benefit to the DEA
or to the defense counsel or certainly to the judge,
what is the right way to do it?
Robin: I think the sheriff's been at the table to be able
to be able to provide the information of what sort of
treatment where the individuals are with regard to their to
the medical issues, to this substance disorder issues.
And as to the psychological issues, I think we need to be at
the table.
These sheriffs live with these inmates 24 hours a day.
We probably know them more than their own attorneys know
them.
Gants: And what process would you put in place given how
difficult it is to get everybody to the table these days?
What process would you put in place to allow that to happen?
Robin: They I can only say information share, and I don't
have a mechanism My mind is how to get it done.
But I just know the tools that we need to make sure that it
gets done.
I don't know what the mechanism is that we should all have
an input in this for these individuals themselves.
Gants: And in response to a question Gaziano because you
know as to what information is readily available to the, to
the sheriff's I gather, with regard to an imaginary john
smith, you wouldn't know what programs john smith is
in and you know, that person medical risks and what's, what
that person is facing, but you also know what he's incharge
with and kind of get a sense as to what information.
Robin: we would know what he's charged with to
individual, we will, we will know he's in match treatment.
Taking Suboxone, we would know he's any medical conditions.
We have people with diabetes and other medical conditions,
we could update and keep them informed the quarter that we
could also know you know, tell you about explaining with the
Psychologically wise, we will provide them information.
And I think every Sheriff will tell you they're
more than happy to.
Gants: I have no further question.
Justice Gaziano any further questions you may have?
Gaziano: No thank you chief.
Gants: Justice Lowy.
Lowy: NO thank you.
Gants: And Justice Budd.
Budd: No thank you.
Gants: Justice Cypher.
Cypher: No thank you.
Gants: Justice Kafker.
Kafker: No thank you.
Gants: All right, I have no further questions.
So after an yeah 4 hours and 30 minutes.
We have concluded this hearing, I am well aware that we have
the case of Commonwealth vs. Christie that we have here but
if you will be our what I will suggest is that we take a
half hour break.
And I think it makes sense for people to hang up and I will
commence a conference call.
I think a much smaller number.
Machine Talking: Now exiting.
Gants: So at at 2:50.
We'll plan to reconvene at that time.
We'll hear from will hear with regard to the attorneys in
the case of Christie versus Commonwealth.
I think well for your arguments I thank you all for your
forbearance.
We of course will take better under advisement
and we shall be back to here the case of
Commonwealth vs. Christie at 2:50, thank you all.