WEBVTT
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Cornelli would you please call the case?
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Yes, Chief Justice Gants.
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It's the matter of Committee for Public Counsel Services
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and another v. Chief Justice of the Trail Court and others,
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SJC-12926.
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Before we begin, could we have a roll call
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of all those who are present,
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first with respect to the Justices of the court.
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Chief Justice Ralph Gants to go by seniority.
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Justice Frank Gaziano.
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Justice David Lowy.
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Justice Kimberly Budd.
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Justice Al Cypher.
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Justice Scott Kafker.
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And I will note that the Justice Lang
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percused from this case.
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Could be could those represent Maqbool CPCs
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ACLU identify themselves?
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This is Rebecca for CPCs.
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This is Antony also for CPCs.
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Good morning, your honors, this is Match Ego
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for the Massachusetts association of law defense lawyers.
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Good morning, Your Honor,
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this is Jesse Rossen on behalf of backbone.
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On behalf of the Attorney General?
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Good morning, this is Eric Haskell
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Assistant Attorney General, With me on the line
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are my colleagues David Kravitz and Mindy klonoff.
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On behalf of the trial court
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and the probation service.
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This is Daniel Sullivan on behalf of
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the Chief Justice of the trial court.
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And do we have anybody from probation
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and Sarah Joss with us?
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Yeah, I'm speaking for probation
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as well, Your Honor.
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You are, okay.
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On behalf of permanent corrections in the parole board.
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Charles Anderson department of correction.
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On behalf of the DEA of Suffolk County.
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This is Dan Adelanto about any raised allowance
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and with me on the phone is Liz Riley,
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Deputy Chief of our community.
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On behalf of the district attorneys
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for Berkshire, it'll district a Northwest.
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Good Morning, Your Honor,
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This is Thomas Ralph on behalf of those districts
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with me on the phone is District attorney Mary Ryan?
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Good morning Your Honor.
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On behalf of Bristol County in the remaining days.
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Good morning Your Honor,
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James Sullivan from the Worcester County District
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Attorney's Office, and with me on the line is Elizabeth
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stumpy Sarris, legal counsel
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in the Hampton County District Attorney's Office.
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And on behalf of the Sherif.
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Morning Justice Gants on behalf of the 14 Sherifs,
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It's Robin Hanna's along with the line with me
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is Dan in attorney damn bear.
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I believe we hit Sherif dilution,
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Is he also on the line?
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Yes, Chief Justice Peter contusion
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with our executive director Carrie hill on the line
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I chimed in before you did, Bob, thank you.
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Is there anybody else who was on the line
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who has not identified thore.
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Good morning Your Honor
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District attorney Andrea herring.
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And on behalf of the special master?
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On behalf of special master,
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this is Robert Guns from ropes and gray and with me
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is my partner, Joshua levy.
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Good morning Your Honor.
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Good morning.
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Is there anybody else who has not yet but--
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Yes good morning.
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this is Gloria Maroney chair school board
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and I am on the lind to assist attorney with any questions.
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(cross talk)
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I'm sorry.
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Appearing for the ladder.
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And David rank of his Derrick
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during a note related to baseball.
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Right What that will do that one that
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Christie case will do that.
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Please this one, so in fact probably take a break
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to finish this case where we convinced that.
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Okay, we are here with a rather extraordinary
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hearing an extraordinary time.
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This is the first telephonic for human to my knowledge
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that this JC has ever conducted.
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And I love the years on the courts.
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It's the first time that I recall having a case
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in which we have nine parties arguing.
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Their cases to be heard de CPCs
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versus the trial of Massachusetts and
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great to hear the case of versus Commonwealth.
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As You have been informed, although we generally live stream
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cases in ordinary times, this case will not be live streamed
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of the of the telephone call will be made available
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within one hour after the conclusion of our hearing
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in the Christie versus Commonwealth case.
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I know that there has been some discussion with with regard.
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So, let me help gaining some perspective
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or for many years as you know, during ordinary
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videotape, and by the live video and audio
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of all of our arguments.
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And they are available through live streaming in order
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to maintain the audio quality of this particular argument
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and preserve it to be heard.
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We have come to the conclusion that we are unable
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to livestream it and therefore we'll make it available
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as soon as practicable after the hearing.
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I will note that the Supreme Court of the United States
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even in ordinary times does not livestream or provide
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the audio visual of their particular hearings.
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In fact, in even in ordinary times, on the afternoon
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of each argument, the court will post
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a transcript of that day's arguments.
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And an audio of the week's arguments becomes available
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only on the Friday of each argument weeks,
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we'll be providing an audio well before what
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the United States Supreme Court
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does even during ordinary times.
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And I will also note that the United States Supreme Court
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is not hearing arguments, they have postponed arguments
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indefinitely as a result of the pandemic.
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So by before we begin to commence the arguments,
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I want to first make a number of thank yous
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and then I also want to provide a protocol
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for the the argument my first thank you goes to a special
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master Brian O'Connor and to his colleagues that ropes
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and grade not only his partners and Associates,
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but also the staff who assisted them,
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who have served pro bono in the role of special master
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and have worked tirelessly
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over the course of the last few days.
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As you know, special Mr. O'Connor has submitted a report
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and recommendation, which was received by me
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at roughly 10 Pm last night.
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It has been furnished to all of you, I believe,
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very early this morning.
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And I know that that is a short timeframe for all of us
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to digest the report but it is the it is what we're
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what we're dealing with.
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So I thank him and all of his colleagues
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for their extraordinary work
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and they're very thoughtful work product.
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I also want to thank all of the attorneys in this case
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and all of those involved with the attorneys
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for submitting supper briefs and supporting evidence.
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As in a very short timeframe, I know that you have worked
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very, very hard and very diligently in providing us
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with briefing which will greatly assist us
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in reaching this decision.
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So I thank all of you for giving up your nights
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and your weekends and working extra in extraordinary
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fashion to address the matters of this extraordinary case.
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And last, but not last, but certainly not least,
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I also want to thank our clerk Fran Keneally,
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who has been nothing short of heroic,
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in attempting to arrange for the logistics of this argument.
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So I thank him and his staff for all of the work
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that they have done.
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All we all know that all of this will have you have operated
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in a very short timeframe.
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This case was filed on March 24.
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It is now March 31.
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That means everything that has been done,
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has been done within the last seven days.
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The timeframe of the argument has been shaped
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by the exigency of the situation which we all face.
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And I think perhaps there's no better way to reflect
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the importance of having this matter resolved as quickly as
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practicable by the fact that the number of individuals
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in Massachusetts who have tested positive
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for COVID-19 has increased by 500%.
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Since the date of filing in this case.
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Let me discuss now the protocol that we will maintain
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in view of having this to be a telephonic hearing.
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Each party who will argue will have roughly three minutes
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to argue without interruption of questions.
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If you wish to invite questions before then
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you certainly may do so you certainly simply say Your Honor,
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I now welcome your questions.
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And we will then commence them.
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If you go beyond three minutes I will you may find yourself
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getting a question before too long has has passed
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so that will give you a certain amount time
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to be able to present your arguments, before we commence
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questioning and I recognize that some of you
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only have five minutes.
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So you should think carefully as to whether you want
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to use most of that time to present argument
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or to answer questions.
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And I leave that to you.
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I asked that for those who are not speaking
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that you put your phone on mute, so as to avoid
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any background noise that may interfere
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with the quality of us to hear and for the public
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to hear the recording once it is made public.
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If you are not using a cell phone, I asked you to silence
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the cell phone, so that we don't have the ringing of cell
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phones during the course of this argument.
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When the questioning of the justices commences,
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the questioning will commence by seniority
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that is since justice lank is recused from this matter,
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Justice Gaziano is the senior justice and he will question
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first when he has finished his questioning.
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Justice Lowy then Justice Budd, then Justice Cipher,
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then Justice Kafker and then I will be the last person
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to ask questions.
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When I have concluded my questioning, I will then give
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each of the justices again by seniority and opportunity
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to ask the follow up questions.
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And when those questions are done, the time will end.
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I will serve as the timekeeper with regard to this,
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we have explored the possibility of a one minute buzzer
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but it's not likely to work.
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So I will seek to give people a one minute warning.
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But as with all arguments, the question that the time
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will not end until the justices have completed any
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and all of their questioning.
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Now, this is hard.
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I think you will understand hard
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for us to be doing this this way.
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I think we can anticipate that there will be some glitches
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I ask that all of you have some degree of forbearance
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as we work through this, and that all of us keep our eyes
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on the prize, which is to get this thing right.
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So, with that protocol having been set, I will turn to
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the first attorney who will argue on behalf of McDowell
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and I'll turn to Mr. Segal when you have 15 minutes.
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Thank you, Mr. Chief Justice,
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and may it please the Court.
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This case presents this court, the parties
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and the special master with an opportunity to save the lives
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of incarcerated people who are especially
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vulnerable to the corona virus pandemic.
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And in doing so, to save the lives of many others,
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three principles should guide the Court's decisions
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about the weather and how to use
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it superintendents powers to achieve that goal.
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First, time and consistency are critical.
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So it's important for the court to act swiftly,
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preferably today to initiate the uniform remedy
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for the entire Commonwealth.
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A good remedy today will save more lives
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than a somewhat better remedy implemented
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and initiated on Friday.
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Second remedy should be initiated but not fossilized.
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We don't know what news will arrive in two hours,
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let alone two days.
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So any remedy--
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[Machine Talking) Now joining name not recorded.
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So any remedy should be subject to constant
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re-evaluation and risk adjustment.
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And third, it is important to grapple with the reality
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that a remedy will not release adequate numbers of people
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and thus will not save lives if it is drawn so narrowly,
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that the defendants eligible for the remedy
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or those who have never had been locked up
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in the first place.
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So those are the three Points
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re-evolution in meaningful relief to save
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lives of people in the Commonwealth.
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With that, I welcome questions.
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Justice Gaziano?
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Good morning Mr. Segal.
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One question I have on regarding the scope of your proposed
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border on page 16 and 26, you asked for the immediate
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release of all pretrial detainees age 60 or above.
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Back in 2009, there was a defendant by the name
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of Edward Corliss who was in Superior Court in Boston 861
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or two, who killed a store clerk in Jamaica Plain.
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Mr. Clothes hasn't been released on parole from a second
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degree murder when kilson enough still a clerk in 1971.
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If we roll your way, a defendant like everyone close in,
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as well untold numbers of Child rapist
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would be released immediately.
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Does that case illustrate the danger of this categorical
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approach versus in an individualized approach in assessment?
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Good morning, Justice Gaziano.
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We take the point and, and for that reason we have worked
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over the weekend with a special master and acknowledged
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in our library filed yesterday that we welcome an approach
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that would permit individualized review and objection
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by prosecutors to the release of any particular individual
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and we are open to particular categories of people who would
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presumably not be released at all pursuant to this process.
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There is a now before you a report and recommendation
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that We just think goes to swings the pendulum too far in
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the direction of the keeping people inside and therefore
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not taking enough releases
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in which curve this pandemic is.
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I'm very curious for them seagull,
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which what part of the two now as far as the
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categories of crime in your opinion?
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That, there I would point
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to three things, Your Honor.
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The first is that the categories are very broad.
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So broad in fact, that, that even people who are
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held on bail after being deemed not dangerous enough
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to to be held under 58 A would still be ineligible
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under certain provisions
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for a presumption in favor of relief.
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There's also the the x carve outs for people
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under Chapter 140 section 121,
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so that's one category.
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A second piece of the report recommendation that gets
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us concerned is the five year look back, which says that
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if someone would otherwise be presumptively released
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under this arrangement, the they would not be released if,
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let's say four years ago,
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they were serving a sentence for a drug crime.
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In the final thing I would point out
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is the overall issue of bail.
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The right now there are people being held on, on bail
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in the Commonwealth who are in three different
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three circumstances they were unanticipated at the time,
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the bail was imposed.
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The first is that their pre jobs attention
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could now subject them to a deadly disease.
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The second is that every bail in Massachusetts is now harder
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to afford because we are experiencing massive joblessness.
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And the third is that pretrial detention is now indefinite
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detention because trials can be scheduled.
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So those are the kinds of issues we have, but, but again,
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we we started we initiated this case a week ago
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which as she just pointed out, it's like a year ago now
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to to to propose a remedy, but we have worked significantly
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with the parties and the special master to allow for
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individualized review in every case.
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Thank you Segal.
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Any further question just, Thank you.
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Justice Lowy?
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Morning Mr. Segal.
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The first thing I'd like to say is that this Master's report
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is really quite a document in such a short amount of time
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actually in any amount of time,
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but I do want to ask you about the categories,
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for pre release it start on page three
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in this five categories of pre release.
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I like to focus on the third category because as I
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understand these categories of pre release.
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They are not cumulative if somebody is eligible under
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any of them, then they're entitled to the presumption
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and, and, and as it relates to anybody who's not entitled
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to the presumption does mean they're not titled
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to an individual hearing, but the category that would allow
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00:19:20.566 --> 00:19:24.850
anybody on a bail of 5,000 dollars or less
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if they haven't been determined dangerous, under 50 A day.
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The concern with that category they ask you to speak to
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is that sometimes, the District Attorneys for strategic
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reasons or resource reasons, don't request the 50 A day
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and in good faith, do not request them a bail
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to prevent a detention purposes.
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But they believe the bail that's necessary to reasonably
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assure the appearance of the individual is the best way
360
00:20:02.730 --> 00:20:07.730
to approach the case and in the category that's going
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00:20:08.190 --> 00:20:10.520
to allow anybody with a bail of 5,000 dollars
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or less subject to the conditions for one of which you've
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mentioned the five year look back.
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Should that fall?
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All those individuals should have a right
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to an individual hearing.
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My concern is whether or not that category that focuses
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on that there was no 58 A should every one of those cases
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be entitled to the presumption suggested by the master.
370
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Good morning Justice Lowy.
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If I understand the question correctly,
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I think I have two, two responses.
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The first of which is is an explanation
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and the second of which is sort of a confession.
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The, the explanation is that is that we don't think that
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this is categorical release in any cases currently
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constructed, it's giant it is a, it's, a it's a tipping
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of the scales that it would otherwise be favoring detention
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right now in favor of release.
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I appreciate that.
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Right, and and we assume that in any case in which
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any of the conditions that you you mentioned,
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your honor apply, district attorney would do a very good job
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of pointing that out for the court
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and would make something likely prevail.
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But the second thing and here's the confession, I mean,
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we're all flying blind here.
388
00:21:33.460 --> 00:21:37.892
We don't know what the what the situation is going to be in,
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00:21:37.892 --> 00:21:41.860
in the side prisons and jails soon and none of us,
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00:21:41.860 --> 00:21:45.050
despite best efforts, know really how many people are going
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00:21:45.050 --> 00:21:47.220
to be released pursuant
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to this process or any other process.
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And that's why, what I said at the my second point
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at the outset is the it's really crucial that this theory
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evaluated if this is implemented today,
396
00:22:00.160 --> 00:22:05.160
We get the list back and it's, it's too many people,
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you know, people that people are getting out,
398
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you know, being suggested for at least or inappropriate
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00:22:09.520 --> 00:22:12.250
candidates that the district attorneys can raise that.
400
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If it's, if we get reversed in two days or three days,
401
00:22:15.260 --> 00:22:18.570
and there are only five people to guess a pre release,
402
00:22:18.570 --> 00:22:20.890
then we will know that that's not going to curb
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the tandem again.
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00:22:21.860 --> 00:22:24.610
So I acknowledge that I, like everyone else don't exactly
405
00:22:24.610 --> 00:22:27.520
know what the outcome of this process is, which is why
406
00:22:27.520 --> 00:22:30.630
we think it ought to just begin the initiated end
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and be subject to revision.
408
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Thank you Mr Segal.
409
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Thank you,
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Mr Lowy, any further questions?
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No, thank you, chief justice.
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Justice Budd.
413
00:22:39.990 --> 00:22:43.181
Hi, good morning. Mr. Siegel.
414
00:22:43.181 --> 00:22:48.181
I think I've read in the special masters report that anyone
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seeking relief would be tested.
416
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Is that right for COVID-19?
417
00:22:58.654 --> 00:23:01.500
Good morning ,am not entirely sure I know there
418
00:23:01.500 --> 00:23:06.500
is a provision in the in the report, which seems to suggest
419
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that actual a presumptive cases would be subject
420
00:23:12.230 --> 00:23:14.480
to a different process may be held back.
421
00:23:14.480 --> 00:23:16.490
I think one of the issues that we're dealing with right now,
422
00:23:16.490 --> 00:23:19.250
Your Honor, is that nobody knows what the testing protocol
423
00:23:19.250 --> 00:23:21.200
is any is inside prisons and jails.
424
00:23:22.240 --> 00:23:24.987
Okay, so that's something we'd have to figure out?
425
00:23:24.987 --> 00:23:28.330
If somebody presumptive was presumptively
426
00:23:28.330 --> 00:23:30.060
positive for COVID-19.
427
00:23:30.060 --> 00:23:32.810
I think in the report, it said there
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00:23:32.810 --> 00:23:35.903
would be a review process for that.
429
00:23:35.903 --> 00:23:40.297
What is Mac dos recommendation for somebody who test
430
00:23:41.350 --> 00:23:45.390
positive for COVID-19, but otherwise meets the whatever
431
00:23:45.390 --> 00:23:48.350
standard we decide is appropriate for release.
432
00:23:52.830 --> 00:23:55.590
Your Honor, that's a very difficult question
433
00:23:55.590 --> 00:23:59.240
and it relates also to your questions concerning for people
434
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who may experience home muchness if they are released.
435
00:24:02.170 --> 00:24:05.250
But what we have what we have done is we have worked
436
00:24:05.250 --> 00:24:08.626
very hard with a special master to provide information
437
00:24:08.626 --> 00:24:12.330
about service providers who can place people
438
00:24:12.330 --> 00:24:16.750
and how in homes, and who can make sure that medical needs
439
00:24:16.750 --> 00:24:20.070
including a potential need to self quarantine can be met.
440
00:24:20.070 --> 00:24:22.360
And so we really think there should be an individualized
441
00:24:22.360 --> 00:24:26.130
review to determine in the case of someone who might have
442
00:24:26.130 --> 00:24:28.500
the disease or experienced homelessness, whether they can
443
00:24:28.500 --> 00:24:30.370
pay for the place somewhere.
444
00:24:30.370 --> 00:24:34.030
But we also think, Your Honor, that as that as a legal
445
00:24:34.030 --> 00:24:37.990
matter, the restrictions placed on such people should near
446
00:24:37.990 --> 00:24:40.930
those that that exists for people who are not incarcerated.
447
00:24:40.930 --> 00:24:45.930
For example, if I believe that I am sick right now,
448
00:24:45.970 --> 00:24:48.970
I made a foreign team but I'm not going to be locked in
449
00:24:48.970 --> 00:24:51.640
a prison and so someone is wrapping up a fence or entitled
450
00:24:51.640 --> 00:24:54.550
to relief under this provision, or under a court's ruling,
451
00:24:55.663 --> 00:24:58.890
they shouldn't be locked up because they've been diagnosed
452
00:24:58.890 --> 00:25:00.110
or presumptively died.
453
00:25:02.720 --> 00:25:05.730
Well, I, I don't disagree with that but I guess
454
00:25:05.730 --> 00:25:09.960
some I'm wondering how do we make sure that the virus
455
00:25:09.960 --> 00:25:14.380
isn't isn't spread as a result of of the release?
456
00:25:14.380 --> 00:25:17.957
And obviously, that's a concern as well.
457
00:25:17.957 --> 00:25:20.760
I don't disagree, Your Honor and and so that's why
458
00:25:20.760 --> 00:25:24.900
I think I would go back to the point about working with
459
00:25:24.900 --> 00:25:27.100
social services in conjunction with a special master
460
00:25:27.100 --> 00:25:29.580
to make sure this happens, which is what is happening
461
00:25:29.580 --> 00:25:32.440
right now in India in the settlement that was reached
462
00:25:32.440 --> 00:25:36.090
in New Jersey, but also, this is why it's such a difficult
463
00:25:36.090 --> 00:25:38.700
problem that that's why I keep emphasizing
464
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that getting the process underway.
465
00:25:41.361 --> 00:25:46.361
Is is so important, because however many people are going
466
00:25:46.500 --> 00:25:48.550
to be in that difficult situation.
467
00:25:48.550 --> 00:25:51.200
It's going to be more tomorrow and the next day
468
00:25:51.200 --> 00:25:53.070
and the next day than it is right now.
469
00:25:54.290 --> 00:25:55.540
That's very much
470
00:25:56.910 --> 00:25:57.830
Justice Cypher.
471
00:26:00.470 --> 00:26:02.690
Thank you and good morning.
472
00:26:02.690 --> 00:26:05.900
Good morning, Attorney Segal people most of my questions
473
00:26:05.900 --> 00:26:08.950
have been an answered, I just want to clarify
474
00:26:08.950 --> 00:26:11.290
and make sure I understand your position
475
00:26:11.290 --> 00:26:14.290
now in light of the special masters report.
476
00:26:14.290 --> 00:26:17.380
Is it fair to say that in general, you're looking at a
477
00:26:17.380 --> 00:26:21.220
categorical approach that then turns into an individualized
478
00:26:21.220 --> 00:26:26.200
approach and re entry services or needs to be addressed?
479
00:26:31.019 --> 00:26:35.460
Your Honor, I think that is mostly fair to say.
480
00:26:35.460 --> 00:26:39.990
I mean, where we start from it at macro is the need
481
00:26:39.990 --> 00:26:44.240
to accept releases in sufficient numbers, to make a
482
00:26:44.240 --> 00:26:46.330
difference to the folks who were released and
483
00:26:46.330 --> 00:26:48.960
to the folks who remain inside into the community.
484
00:26:48.960 --> 00:26:52.390
So honestly, if it were sort of like what this court did
485
00:26:53.353 --> 00:26:57.350
in the hit lab scandal and just achieve a certain number
486
00:26:57.350 --> 00:27:01.280
of releases, there be a crazy good argument for prosecutors
487
00:27:01.280 --> 00:27:04.450
to have much control over all those.
488
00:27:04.450 --> 00:27:08.610
But another approach which we are okay with is the special
489
00:27:08.610 --> 00:27:12.580
masters approach which says, Let us create a presumption
490
00:27:12.580 --> 00:27:17.010
for certain categories subject to what we assume will be
491
00:27:17.010 --> 00:27:20.060
very rigorous objection, in some cases
492
00:27:20.060 --> 00:27:22.380
by by those on the law enforcement side.
493
00:27:23.280 --> 00:27:27.570
And I also just want to say it partly as a response
494
00:27:27.570 --> 00:27:29.090
to the last question.
495
00:27:30.242 --> 00:27:35.242
This is not a situation in which this disease exists only
496
00:27:35.860 --> 00:27:37.420
in the prisons and jails,
497
00:27:37.420 --> 00:27:39.220
it's already in the community as well.
498
00:27:39.220 --> 00:27:42.790
So, so what we're trying to do is to avoid a situation where
499
00:27:42.790 --> 00:27:46.510
we overwhelm the resources, the health care
500
00:27:46.510 --> 00:27:49.550
resources of the Commonwealth and, and that's why
501
00:27:49.550 --> 00:27:52.120
it's really it's really about the numbers and everyone talks
502
00:27:52.120 --> 00:27:55.590
about flattening the curves, and that's why we need a remedy
503
00:27:55.590 --> 00:27:57.580
that cheese certain numbers are releases,
504
00:27:57.580 --> 00:27:59.980
and why it would need to be reevaluated very quickly.
505
00:27:59.980 --> 00:28:02.440
I'd say twice a week, if it does not.
506
00:28:04.530 --> 00:28:05.880
Okay, thank you,
507
00:28:06.720 --> 00:28:08.700
Justice Kafker.
508
00:28:08.700 --> 00:28:11.970
And Mr. Siegel, I really appreciate your point
509
00:28:11.970 --> 00:28:16.580
that we, you know, we need to move extremely quickly
510
00:28:18.130 --> 00:28:22.450
and we can't try to get the perfect document right here.
511
00:28:22.450 --> 00:28:26.156
My question is, it's a follow up to Justice Gaziano knows.
512
00:28:26.156 --> 00:28:30.460
You know, I've just read the special master report like you
513
00:28:31.486 --> 00:28:34.790
quickly this morning, but it seems like an carefully
514
00:28:34.790 --> 00:28:39.790
calibrated and balanced attempt to deal with both the risk
515
00:28:41.470 --> 00:28:46.470
to the inmates and the detainees and the risk to the public
516
00:28:46.660 --> 00:28:51.470
of releasing people who've been accused or committed crimes.
517
00:28:51.470 --> 00:28:55.960
I'm trying to refine what you want us to improve
518
00:28:56.940 --> 00:29:00.570
and I know you don't like the five year look back prevision
519
00:29:00.570 --> 00:29:03.800
do you have, for example, alternative language
520
00:29:03.800 --> 00:29:08.800
that you would put there, I didn't quite understand
521
00:29:09.310 --> 00:29:13.070
your point about bail as specifically as possible,
522
00:29:13.070 --> 00:29:15.814
particularly if you would like us to get this
523
00:29:15.814 --> 00:29:16.840
out in the next day or two.
524
00:29:16.840 --> 00:29:21.840
How do we improve the special masters draft in a way that
525
00:29:22.700 --> 00:29:26.160
you think would make it better Bro?
526
00:29:30.000 --> 00:29:31.630
Good morning, Your Honor.
527
00:29:31.630 --> 00:29:34.580
I appreciate that question and I think in the spirit
528
00:29:35.604 --> 00:29:37.980
of not letting the perfect be the enemy of
529
00:29:37.980 --> 00:29:39.430
I don't know,
530
00:29:39.430 --> 00:29:41.529
like a life raft.
531
00:29:41.529 --> 00:29:42.530
Right?
532
00:29:42.530 --> 00:29:46.190
I would say this,the things that could be done quickly
533
00:29:46.190 --> 00:29:50.030
in the context of this document would be to exercise
534
00:29:50.030 --> 00:29:55.030
the, the, the five year look back and to limit particularly
535
00:29:57.060 --> 00:30:02.060
the, the definition of excluded offenses, which sweeps
536
00:30:03.770 --> 00:30:06.290
in things like section 121, and the lycans,
537
00:30:06.290 --> 00:30:08.840
and certain drug crimes, so we're just gonna, you know,
538
00:30:08.840 --> 00:30:11.980
we have a concern that very few people will be eligible here
539
00:30:11.980 --> 00:30:15.357
and those who would be eligible or will be white.
540
00:30:15.357 --> 00:30:19.100
And, and and I think another thing that could quickly
541
00:30:19.100 --> 00:30:21.750
be inserted, again, in the spirit of I think if your
542
00:30:21.750 --> 00:30:25.267
question would be to say that if there are counties where
543
00:30:25.267 --> 00:30:30.267
there can be agreements to, to go above and beyond what is
544
00:30:33.020 --> 00:30:36.700
required by the letter of this agreement, that should
545
00:30:36.700 --> 00:30:38.970
be pursued, if there is a District attorney believes
546
00:30:38.970 --> 00:30:42.300
that is necessary to save more people.
547
00:30:42.300 --> 00:30:44.720
That District should be able to work out something
548
00:30:44.720 --> 00:30:46.590
with the petitioners.
549
00:30:46.590 --> 00:30:49.540
Doesn't the document have a couple
550
00:30:49.540 --> 00:30:52.801
of those type of failsafe or flexibility provisions
551
00:30:52.801 --> 00:30:53.940
in there?
552
00:30:57.272 --> 00:31:00.082
I know there was some that you know,
553
00:31:00.082 --> 00:31:02.320
individuals excluded from this, you know, was precluded
554
00:31:02.320 --> 00:31:04.550
from seeking this type of review.
555
00:31:04.550 --> 00:31:07.060
I take it there's nothing that would prevent the DBAs
556
00:31:07.060 --> 00:31:10.890
and defense counsel from, you know,
557
00:31:10.890 --> 00:31:14.530
expediting this even faster, this is required, right?
558
00:31:16.633 --> 00:31:20.006
Your Honor, I believe that's it perfectly accurate
559
00:31:20.006 --> 00:31:24.390
description of the existing document and if your sentence
560
00:31:24.390 --> 00:31:26.630
you just spoke were to be added to it,
561
00:31:26.630 --> 00:31:28.230
I think it would be even better.
562
00:31:31.560 --> 00:31:34.990
So likely this is because I was taking on it probably just
563
00:31:34.990 --> 00:31:39.180
because part of the virtue of this document at least to
564
00:31:39.180 --> 00:31:43.010
thunders understanding, is to make things more uniform
565
00:31:43.010 --> 00:31:44.220
throughout the entire state.
566
00:31:44.220 --> 00:31:47.080
Everyone's scrambling around not knowing where to go for
567
00:31:48.034 --> 00:31:49.445
their hearing for how to set them up
568
00:31:49.445 --> 00:31:50.330
or what rules to invoke.
569
00:31:50.330 --> 00:31:53.280
And so setting the tone for the state including what the
570
00:31:53.280 --> 00:31:56.590
procedures are, and that there need to be some releases,
571
00:31:56.590 --> 00:32:00.682
and that where there's agreement, it would be good to always
572
00:32:00.682 --> 00:32:02.710
allow that to go forward I think would go a long way.
573
00:32:03.610 --> 00:32:05.360
Thank you, that's all I have.
574
00:32:07.270 --> 00:32:09.327
Mr. Siegel, this is Chief Justice Gants.
575
00:32:09.327 --> 00:32:12.780
We've been focusing to some extent in the questioning with
576
00:32:12.780 --> 00:32:15.730
regard to those who were detained awaiting trial.
577
00:32:16.800 --> 00:32:20.650
For him, clearly our superintendents power would apply
578
00:32:20.650 --> 00:32:23.420
and will be turned to those who have already been convicted
579
00:32:23.420 --> 00:32:24.800
and are serving sentences.
580
00:32:24.800 --> 00:32:29.420
I know that the Masters recommendation suggests that we
581
00:32:29.420 --> 00:32:33.640
use our authority under rule 29 for revised and revoke
582
00:32:35.182 --> 00:32:40.182
what extent would the exercise or the revision of a rule 29
583
00:32:40.610 --> 00:32:43.510
authority raise issues under Article 30?
584
00:32:49.710 --> 00:32:51.398
Good morning, Mr. Chief Justice.
585
00:32:51.398 --> 00:32:55.760
We think that this is not at all the type of situation
586
00:32:55.760 --> 00:33:00.580
in which revising a rule 29 to address this Particular
587
00:33:00.580 --> 00:33:05.340
crisis would have would create
588
00:33:05.340 --> 00:33:07.650
separation of powers problems.
589
00:33:07.650 --> 00:33:10.980
What we have proposed in the reply brief is slightly
590
00:33:10.980 --> 00:33:14.045
different, but I think consistent with the special masters
591
00:33:14.045 --> 00:33:17.490
record, which is where we think it will could be revised,
592
00:33:17.490 --> 00:33:22.250
revised to account for the current facts, to eliminate the
593
00:33:22.250 --> 00:33:26.920
timing deadline, and to say and to make clear that the trial
594
00:33:26.920 --> 00:33:31.200
judge who could order relief under Rule 29 could include
595
00:33:31.200 --> 00:33:35.930
the single justice in this particular case that which
596
00:33:35.930 --> 00:33:38.990
would create more opportunities to speak to people.
597
00:33:38.990 --> 00:33:43.790
I would say in addition to the authorities, we cited pages
598
00:33:43.790 --> 00:33:46.805
22 and 23 of our applied research on this point.
599
00:33:46.805 --> 00:33:50.300
I would also point your honor to Commonwealth against
600
00:33:51.200 --> 00:33:54.776
Rodriguez, which is at 461, match to five six for the court
601
00:33:54.776 --> 00:33:58.993
ruled in 2012 that rule could be invoked
602
00:33:58.993 --> 00:34:01.493
even to by decree agreement.
603
00:34:01.493 --> 00:34:04.390
And I think the reason why that's that's true
604
00:34:05.258 --> 00:34:07.930
and why revising the rule in this situation is that it would
605
00:34:07.930 --> 00:34:12.710
not be problematic is really this the concerns that can
606
00:34:14.050 --> 00:34:19.050
arise under separation of powers or when the court is acting
607
00:34:19.380 --> 00:34:23.900
like a grantor of clemency, or like a supervisor of the
608
00:34:23.900 --> 00:34:26.660
growth and parole eligibility of the descendant.
609
00:34:26.660 --> 00:34:28.660
That's not the situation here.
610
00:34:28.660 --> 00:34:32.310
This is more like a situation in which the sentence
611
00:34:32.310 --> 00:34:36.800
that a court imposed turns out to be through inadvertent
612
00:34:36.800 --> 00:34:40.280
deadly inadvertence not the one that it intended.
613
00:34:40.280 --> 00:34:43.340
It's like finding out that you've sent the sentence
614
00:34:43.340 --> 00:34:46.871
a prisoner to a prison where there is mustard gas,
615
00:34:46.871 --> 00:34:48.730
floating through the facility,
616
00:34:48.730 --> 00:34:51.600
or where all the chairs are electrified.
617
00:34:51.600 --> 00:34:54.760
And the court says, I meant to sentence this person
618
00:34:54.760 --> 00:34:57.490
to this one kind of sentence,
619
00:34:57.490 --> 00:35:00.360
but his turned out to be a potential death sentence.
620
00:35:00.360 --> 00:35:02.350
I need to fix that.
621
00:35:02.350 --> 00:35:06.690
And that authority to fix sentences is squarely within the
622
00:35:06.690 --> 00:35:07.980
power of the judiciary.
623
00:35:09.940 --> 00:35:13.100
Now, when you're revising, revoke the
624
00:35:13.100 --> 00:35:14.584
a permanent change,
625
00:35:14.584 --> 00:35:18.990
or what it simply provides some sort of a stay.
626
00:35:21.170 --> 00:35:26.020
But, Your Honor, to simply stay a sentence.
627
00:35:27.044 --> 00:35:32.044
The court will not even need to change rule 29.
628
00:35:32.510 --> 00:35:35.140
It could simply invoke the power is described in
629
00:35:35.140 --> 00:35:38.740
Commonwealth against Charles, the hidden lab case about
630
00:35:38.740 --> 00:35:41.674
the status of sentences that arose in that situation.
631
00:35:41.674 --> 00:35:46.674
But would you think that it would be appropriate here to
632
00:35:46.790 --> 00:35:49.910
allow not only for the status of sentence but for the to
633
00:35:49.910 --> 00:35:53.630
revise and revoke them and that would, would
634
00:35:53.630 --> 00:35:56.330
require a change, probably triple 29.
635
00:35:56.330 --> 00:35:58.600
I'd also point out that here too, there could be some
636
00:35:58.600 --> 00:36:03.600
opportunity to go beyond what is strictly required.
637
00:36:04.412 --> 00:36:08.150
In a situation in which people are going to be led out
638
00:36:08.150 --> 00:36:11.330
either on stage or revised replication, we're talking about
639
00:36:11.330 --> 00:36:13.070
people who are going to go and resume their lives.
640
00:36:13.070 --> 00:36:16.060
We don't we don't know how long this pandemic will last
641
00:36:16.060 --> 00:36:19.180
and so we will encounter situations in the future in which
642
00:36:19.180 --> 00:36:23.070
people may have to be pulled away from jobs and family to
643
00:36:23.070 --> 00:36:26.380
serve a sentence that the prosecutor themselves might feel
644
00:36:26.380 --> 00:36:28.400
is doesn't need to be sorted out,
645
00:36:28.400 --> 00:36:29.600
and it doesn't need to be finished.
646
00:36:29.600 --> 00:36:32.855
And so it there should be some opportunity, we think,
647
00:36:32.855 --> 00:36:37.510
for prosecutors and defense to reach time served please,
648
00:36:39.822 --> 00:36:41.120
at the end of this process, how long however long it lasts,
649
00:36:41.120 --> 00:36:42.850
but the short answer your question,
650
00:36:42.850 --> 00:36:45.299
I think, is that stays can be done.
651
00:36:45.299 --> 00:36:50.299
As a matter of case law and shortening sentences could be
652
00:36:51.370 --> 00:36:53.220
done as a matter of amending rule 29.
653
00:36:54.070 --> 00:36:55.870
And with regard to stays, those are generally
654
00:36:55.870 --> 00:36:59.140
stays pending appeal, would it be your view that they would
655
00:36:59.140 --> 00:37:02.720
apply it individually who do not have pending appeals
656
00:37:02.720 --> 00:37:03.970
or motions for new trial?
657
00:37:09.780 --> 00:37:12.030
I think that the rule could be revised,
658
00:37:12.030 --> 00:37:16.340
Your Honor, even within the absence of a pending motion.
659
00:37:16.340 --> 00:37:20.830
And and that is one reason why we think that the trial judge
660
00:37:20.830 --> 00:37:22.780
for purposes of the revised rule could be the single
661
00:37:22.780 --> 00:37:26.100
justice, it should be possible to streamline this process.
662
00:37:26.100 --> 00:37:29.630
And as we said in our reply brief, and as your honor pointed
663
00:37:29.630 --> 00:37:32.340
out in the remarks you gave at the beginning of this
664
00:37:32.340 --> 00:37:37.340
argument today, the normal procedures make a lot of sense
665
00:37:37.530 --> 00:37:38.560
under normal times.
666
00:37:38.560 --> 00:37:41.680
But the problem right now is that there's normal procedures
667
00:37:41.680 --> 00:37:45.200
are just not fast enough to to be meaningful for the people
668
00:37:45.200 --> 00:37:46.100
who are locked up.
669
00:37:47.690 --> 00:37:49.350
I have no further questions to discuss,
670
00:37:49.350 --> 00:37:51.550
Justice Gaziano, any further questions you might have?
671
00:37:51.550 --> 00:37:52.840
No, thank you, Chief.
672
00:37:52.840 --> 00:37:54.130
Justice Lowy?
673
00:37:54.130 --> 00:37:55.460
No, thank you, Chief.
674
00:37:55.460 --> 00:37:56.440
Justice Budd?
675
00:37:56.440 --> 00:37:57.879
All set.
676
00:37:57.879 --> 00:37:58.899
Justice Cipher?
677
00:37:58.899 --> 00:38:00.680
No, thank you.
678
00:38:00.680 --> 00:38:02.320
Justice Kafker?
679
00:38:02.320 --> 00:38:03.153
All set.
680
00:38:03.153 --> 00:38:05.060
All right Mr Segal thank you.
681
00:38:06.000 --> 00:38:07.110
Miss Jacobs Stein.
682
00:38:08.311 --> 00:38:09.370
Good morning,
683
00:38:09.370 --> 00:38:11.605
your Honor Rebecca Jacob Stein for CPCs.
684
00:38:11.605 --> 00:38:16.605
I just want to let this court know about the things that
685
00:38:17.020 --> 00:38:22.020
CPCS is doing to help with this process
686
00:38:22.050 --> 00:38:24.180
because we're ready to go.
687
00:38:24.180 --> 00:38:27.435
We have, we are working to get our teams together
688
00:38:27.435 --> 00:38:30.800
for the review process in every county.
689
00:38:30.800 --> 00:38:34.590
We have our FSA as our social service advocates have been
690
00:38:34.590 --> 00:38:38.140
working very hard to gather all the information for all the
691
00:38:38.140 --> 00:38:39.480
people who are going to need help,
692
00:38:39.480 --> 00:38:41.660
if they are permitted to go back home.
693
00:38:42.660 --> 00:38:46.849
We've got substance abuse, and mental health
694
00:38:46.849 --> 00:38:50.454
and this these are things that we set people up with,
695
00:38:50.454 --> 00:38:54.600
you know, as a matter of course, and we will continue to
696
00:38:54.600 --> 00:38:58.830
and you know, redouble our efforts and we have also been
697
00:38:58.830 --> 00:39:01.530
working to find places for people to go,
698
00:39:01.530 --> 00:39:03.860
who may not otherwise have places to go.
699
00:39:04.927 --> 00:39:08.400
I also wanted to address the courts questions briefly about
700
00:39:09.290 --> 00:39:11.810
how about the excluded offenses?
701
00:39:12.820 --> 00:39:15.086
Because I think it's follows the document.
702
00:39:15.086 --> 00:39:17.700
I don't think there are that many people
703
00:39:17.700 --> 00:39:20.440
who won't feel to be eligible.
704
00:39:20.440 --> 00:39:22.970
If they were that's great, then we have no objection.
705
00:39:22.970 --> 00:39:27.100
The goal here is to get out as many people as quickly as
706
00:39:27.100 --> 00:39:31.280
possible, so that the people who remain can practice
707
00:39:31.280 --> 00:39:33.510
social distancing and keep safe.
708
00:39:33.510 --> 00:39:37.346
That's That's the goal and however this court wants
709
00:39:37.346 --> 00:39:41.501
to get there quickly, we are in favor of so but we don't we
710
00:39:41.501 --> 00:39:45.870
think that the excluded offenses are going to hinder that.
711
00:39:45.870 --> 00:39:49.703
So, options we have for seen as kind of the biggest obstacle
712
00:39:49.703 --> 00:39:54.130
is the residual clause which has been deemed in the
713
00:39:54.130 --> 00:39:58.990
constitutional that that exists, and also the force clause
714
00:39:58.990 --> 00:40:00.110
under 58 A.
715
00:40:01.150 --> 00:40:04.470
The fighting over what counts as something in there under
716
00:40:04.470 --> 00:40:06.710
the residual clause or under the fourth clause,
717
00:40:06.710 --> 00:40:08.730
it's just going to come up to work.
718
00:40:08.730 --> 00:40:11.870
And for people who are again in on offenses that could have
719
00:40:11.870 --> 00:40:13.450
raised 58. A, but they didn't,
720
00:40:14.440 --> 00:40:16.900
I think that's it speaks to it already.
721
00:40:16.900 --> 00:40:20.270
We think all firearms offenses is overbroad, you know that
722
00:40:20.270 --> 00:40:22.570
it covers improper storage and covers possession
723
00:40:22.570 --> 00:40:25.060
of a firearm without an FID card and these don't even have
724
00:40:25.060 --> 00:40:28.203
mandatory minimums and motor vehicle homicides,
725
00:40:28.203 --> 00:40:30.270
which has terrible outcomes,
726
00:40:32.040 --> 00:40:34.290
or where people are often killed by accident.
727
00:40:34.290 --> 00:40:38.640
So it's not that you know, it's just not the same thing.
728
00:40:38.640 --> 00:40:41.614
So those things we think could come out.
729
00:40:41.614 --> 00:40:46.614
So that I realized that time is of the essence here.
730
00:40:46.810 --> 00:40:50.250
So I would like to if anyone has any questions,
731
00:40:51.240 --> 00:40:53.020
Okay, Juatice Gaziano.
732
00:40:53.020 --> 00:40:55.130
Come on, let me let me ask you a mechanical
733
00:40:55.130 --> 00:40:58.880
question, because as I went through the very well written
734
00:40:58.880 --> 00:41:03.310
matches report as you said, the exemptions have very dense
735
00:41:03.310 --> 00:41:07.980
and it takes you a while to get through them and say we pair
736
00:41:07.980 --> 00:41:10.380
that back or do something else with it.
737
00:41:10.380 --> 00:41:14.950
What I wonder is the inception of this process where you,
738
00:41:14.950 --> 00:41:18.517
you probably have your committees ready to go.
739
00:41:18.517 --> 00:41:23.517
Could it be would it be more expedient if you get a list
740
00:41:24.220 --> 00:41:28.330
from the jail in and or the DA that say, here are all the
741
00:41:28.330 --> 00:41:30.300
people in a particular county
742
00:41:30.300 --> 00:41:34.510
that are held pending, pending trial?
743
00:41:34.510 --> 00:41:38.900
And then CPCs can get that list in either they represent the
744
00:41:38.900 --> 00:41:42.215
people or someone usually because indigent someone under
745
00:41:42.215 --> 00:41:46.490
their auspices represents a person, then the defendants file
746
00:41:46.490 --> 00:41:49.530
that motion and we have expedited hearings in the superior
747
00:41:49.530 --> 00:41:51.530
court or district courts of BMC?
748
00:41:52.560 --> 00:41:56.860
I'm just wondering if we need the first step, to be so
749
00:41:56.860 --> 00:41:59.670
complicated, it'd be quicker to do it that way.
750
00:42:01.520 --> 00:42:02.900
Your Honor, I think that this would have been a
751
00:42:02.900 --> 00:42:06.860
fantastic process if we'd started it like two weeks ago,
752
00:42:07.810 --> 00:42:10.520
Because if we had the names of all the people in the jail,
753
00:42:10.520 --> 00:42:14.000
unfortunately we have CPCS do not are not able to track
754
00:42:14.000 --> 00:42:16.300
every single person that's still incarcerated.
755
00:42:19.754 --> 00:42:20.980
Then, yes, this is something we would do.
756
00:42:20.980 --> 00:42:25.151
But now it's too It's too late, I can tell you that.
757
00:42:25.151 --> 00:42:28.590
We have people in our office,
758
00:42:28.590 --> 00:42:31.319
and I've been hearing from bar advocates as well.
759
00:42:31.319 --> 00:42:35.408
Statewide are encountering difficulties getting heard I,
760
00:42:35.408 --> 00:42:38.820
you know, I heard from someone who, who set Trade Centers
761
00:42:38.820 --> 00:42:42.388
and last Thursday, finally figured out how to get a clerk to
762
00:42:42.388 --> 00:42:44.530
do something with it and they're hearing.
763
00:42:44.530 --> 00:42:48.281
White women vision in though is if we order
764
00:42:48.281 --> 00:42:52.387
these hearings to be expedited, say within 48 hours.
765
00:42:52.387 --> 00:42:55.900
So so so you file the motion, right?
766
00:42:55.900 --> 00:42:57.990
So you have your listserve, you follow the motion,
767
00:42:57.990 --> 00:43:00.960
you have a form that I'm You fill in the blank,
768
00:43:00.960 --> 00:43:04.170
you put the person's name Joe Jones, his name on it.
769
00:43:04.170 --> 00:43:07.416
And it gets filed in the relevant court in this in through
770
00:43:07.416 --> 00:43:10.090
order we have expedited hearings.
771
00:43:11.516 --> 00:43:12.970
I think again--
772
00:43:12.970 --> 00:43:15.203
Quicker than then this other process.
773
00:43:15.203 --> 00:43:18.190
It's not I mean, first of all, we have seven
774
00:43:18.190 --> 00:43:22.000
district attorneys who are objecting to this entire thing.
775
00:43:22.000 --> 00:43:24.090
So I can't imagine that they're going to agree with
776
00:43:24.090 --> 00:43:27.262
anything, which means without a presumption, we're going to
777
00:43:27.262 --> 00:43:29.080
have a lot, a lot of hearings
778
00:43:29.080 --> 00:43:31.320
in with very few judicial resources.
779
00:43:32.160 --> 00:43:36.280
So that's the first thing I think that without guidance,
780
00:43:36.280 --> 00:43:39.080
we're also having disparate income, disparate incomes,
781
00:43:39.080 --> 00:43:42.210
different outcomes across the state.
782
00:43:42.210 --> 00:43:44.640
And that is why we get originally asked for all of this to
783
00:43:44.640 --> 00:43:49.640
go through the single justice because what we're seeing in
784
00:43:49.690 --> 00:43:51.950
some courts is awesome, and what we're seeing in other
785
00:43:51.950 --> 00:43:53.560
courts is really discouraging.
786
00:43:54.550 --> 00:43:58.545
We're agreed upon, agreed upon you know,
787
00:43:58.545 --> 00:44:01.040
really are being denied.
788
00:44:03.498 --> 00:44:07.500
Well, you know, I certainly I hear you and I understand
789
00:44:07.500 --> 00:44:10.140
and I think in, you know, two weeks ago,
790
00:44:10.140 --> 00:44:11.540
that would have been great.
791
00:44:11.540 --> 00:44:13.150
I just don't see us being able to do it.
792
00:44:13.150 --> 00:44:17.500
However, let me say that it would be great, If we did get
793
00:44:17.500 --> 00:44:20.480
the list of people who are in the jail
794
00:44:20.480 --> 00:44:22.030
The time, I assume.
795
00:44:23.200 --> 00:44:24.820
Wait, well, so I think the first step in the
796
00:44:24.820 --> 00:44:27.902
special masters report is they'll get into that.
797
00:44:27.902 --> 00:44:30.820
I'm just wondering about the lag time and
798
00:44:30.820 --> 00:44:32.590
whether that's going to cause too much
799
00:44:32.590 --> 00:44:33.820
delay in and of itself.
800
00:44:35.709 --> 00:44:39.050
And how practical it is to to to put to go through the
801
00:44:39.050 --> 00:44:42.830
jailers to try to correlate that with the exemptions.
802
00:44:42.830 --> 00:44:45.130
I don't know how that can be done in 48 hours.
803
00:44:47.610 --> 00:44:51.780
Well, I think, Your Honor, I mean, I I can't
804
00:44:51.780 --> 00:44:53.580
speak to it, because I haven't seen the jail.
805
00:44:53.580 --> 00:44:56.990
So I don't know how many people are, are in their pre trial
806
00:44:56.990 --> 00:45:01.260
but I'm guessing having seen jail list in the past
807
00:45:01.260 --> 00:45:02.690
and what they have, I think it's probably
808
00:45:02.690 --> 00:45:04.250
going to be very easy.
809
00:45:04.250 --> 00:45:06.920
Once you take out everyone who's got these excluded offenses
810
00:45:06.920 --> 00:45:09.807
to see that there's pretty much nobody eligible left.
811
00:45:09.807 --> 00:45:13.190
So whoever is left, I think we should be able to find them
812
00:45:13.190 --> 00:45:15.820
relatively quickly but also, I do think that part of the
813
00:45:15.820 --> 00:45:19.270
problem is because things like the forced clause
814
00:45:19.270 --> 00:45:21.623
and the residual clause are in there now.
815
00:45:21.623 --> 00:45:24.410
And also the five year look back, you got to pull.
816
00:45:26.320 --> 00:45:28.860
Everybody's you know, of course, it has to look at their
817
00:45:28.860 --> 00:45:31.270
core and figure out when they were last incarcerated.
818
00:45:31.270 --> 00:45:33.610
I mean, it's just, it is it's logistically
819
00:45:33.610 --> 00:45:34.690
very, very difficult.
820
00:45:37.390 --> 00:45:40.930
And if we could simultaneously have a jail list and bring
821
00:45:40.930 --> 00:45:44.450
people to bat attention, that would be fantastic.
822
00:45:46.510 --> 00:45:48.770
No further questions, Chief.
823
00:45:48.770 --> 00:45:50.320
Justice, Willie.
824
00:45:50.320 --> 00:45:52.840
Yes. Good morning.
825
00:45:52.840 --> 00:45:56.050
I'd like to follow up on Chief Justice Gants with questions
826
00:45:56.050 --> 00:45:59.060
about revise and revoke and assuming
827
00:45:59.060 --> 00:46:00.690
I'm not sure these Correct.
828
00:46:00.690 --> 00:46:04.380
But assuming that the 60 days could be extended
829
00:46:04.380 --> 00:46:06.938
within a superintendent power.
830
00:46:06.938 --> 00:46:11.370
What about the issue
831
00:46:11.370 --> 00:46:14.860
of considering post sentencing circumstances?
832
00:46:14.860 --> 00:46:18.820
We can't talk in terms of post sentencing conduct.
833
00:46:20.400 --> 00:46:23.930
In the revised revoke cases, where do you see
834
00:46:24.896 --> 00:46:29.896
this circumstance that we're in now, as it relates to the
835
00:46:30.759 --> 00:46:33.650
doctrine, applicable, revise and revoke?
836
00:46:33.650 --> 00:46:38.650
And following up on the Chiefs question with that mine is
837
00:46:38.820 --> 00:46:41.857
relates to separation of powers.
838
00:46:44.963 --> 00:46:47.150
Oh, I think that, well,
839
00:46:47.150 --> 00:46:48.850
sentencing is always with the court.
840
00:46:48.850 --> 00:46:52.590
So, you know, I think that if, you know, and we don't
841
00:46:52.590 --> 00:46:55.720
review sentences, for reasons of banality,
842
00:46:55.720 --> 00:46:58.460
but your honor did point out that this is in
843
00:46:58.460 --> 00:47:02.623
conduct this is more attentive into the cases where,
844
00:47:04.930 --> 00:47:07.431
for instance, somebody else that sentence and then the court
845
00:47:07.431 --> 00:47:10.765
said, "Well, my sentence is unfair in light of that,"
846
00:47:10.765 --> 00:47:13.370
but that doesn't change.
847
00:47:13.370 --> 00:47:18.370
That isn't a new conduct or, you know, since sentencing.
848
00:47:18.840 --> 00:47:21.060
So, and I would.
849
00:47:21.060 --> 00:47:24.950
So I just I don't really see the separation of powers issues
850
00:47:24.950 --> 00:47:29.950
where the sentencing is in, in the hands of the court
851
00:47:30.030 --> 00:47:33.120
and also where the court is in charge of the rule.
852
00:47:34.110 --> 00:47:37.420
And, you know, can make temporary rules like, for instance,
853
00:47:37.420 --> 00:47:39.070
this court did in the Gomez case.
854
00:47:41.062 --> 00:47:42.112
Thank you.
855
00:47:43.240 --> 00:47:44.290
Justice Budd
856
00:47:45.478 --> 00:47:47.020
{Budd] I'm all set, I don't have any questions
857
00:47:47.020 --> 00:47:49.440
for attorney Jake Assange, thank you.
858
00:47:49.440 --> 00:47:50.550
Justice Cypher.
859
00:47:52.120 --> 00:47:53.790
I don't have any questions either.
860
00:47:53.790 --> 00:47:55.440
Thank you, Attorney Jake Assange.
861
00:47:56.750 --> 00:47:58.030
Justice Kafker.
862
00:47:59.020 --> 00:48:00.470
I'm Brian Jacobson.
863
00:48:01.947 --> 00:48:04.370
I'm still again trying to be as specific as possible,
864
00:48:04.370 --> 00:48:07.978
particularly because I share Mr. Siegel's concerns,
865
00:48:07.978 --> 00:48:11.770
we have to do something fast and get it started.
866
00:48:11.770 --> 00:48:15.240
So you identify the couple of excluded events is that you
867
00:48:15.240 --> 00:48:20.180
don't like the gun offense, gun possession,
868
00:48:21.291 --> 00:48:25.260
some driving offenses, but it's specifically
869
00:48:25.260 --> 00:48:28.280
as possible if we're going to do this today.
870
00:48:28.280 --> 00:48:29.800
Which, What do we change?
871
00:48:31.960 --> 00:48:36.720
I think that you take the sub clause four of 140
872
00:48:36.720 --> 00:48:39.890
sections 121 out otherwise involves conduct that presents a
873
00:48:39.890 --> 00:48:41.540
serious risk of physical injury to another,
874
00:48:41.540 --> 00:48:43.470
just crop that out.
875
00:48:43.470 --> 00:48:46.520
Think that's one thing you can do, no problem.
876
00:48:46.520 --> 00:48:51.520
Then under 58 A, you take out a felony offense that has as
877
00:48:54.760 --> 00:48:57.450
an element the offense the use attempted use a threatened
878
00:48:57.450 --> 00:49:00.250
use of physical force, because again, that's true.
879
00:49:00.250 --> 00:49:01.083
It's too hard.
880
00:49:01.083 --> 00:49:02.740
It's just too hard.
881
00:49:02.740 --> 00:49:04.000
You know, we fight about that all the time
882
00:49:04.000 --> 00:49:05.810
and that's too hard.
883
00:49:05.810 --> 00:49:08.988
We'd also ask, so that's one under a, it's an eight,
884
00:49:08.988 --> 00:49:11.930
a one, and then also five.
885
00:49:14.719 --> 00:49:15.730
Okay, sorry, go ahead, go ahead.
886
00:49:15.730 --> 00:49:17.880
Okay, so five, which is an offense for which a
887
00:49:17.880 --> 00:49:21.120
mandatory minimum term of three years or more as prescribed
888
00:49:21.120 --> 00:49:22.470
in the Controlled Substances Act,
889
00:49:22.470 --> 00:49:25.080
and we'd asked that come out.
890
00:49:25.080 --> 00:49:27.830
And then again, the homicide
891
00:49:27.830 --> 00:49:30.180
or manslaughter by motor vehicle.
892
00:49:30.180 --> 00:49:32.630
So those are things that I think we could quickly do
893
00:49:32.630 --> 00:49:37.630
And then there's a sub seven, just sitting at any felony
894
00:49:38.000 --> 00:49:39.490
offense, again, that has an element
895
00:49:39.490 --> 00:49:41.970
as a as a strength as a physical force.
896
00:49:44.432 --> 00:49:49.432
The other thing I'm confused by is your desire to
897
00:49:49.490 --> 00:49:51.590
ship this to the single justice there.
898
00:49:51.590 --> 00:49:55.870
I mean, realistically, there are only five of us who are on
899
00:49:55.870 --> 00:49:57.980
the phone, who can be single justices.
900
00:49:59.340 --> 00:50:01.460
How would I, I'm just I may have misunderstood
901
00:50:01.460 --> 00:50:04.440
what you were saying, but you don't want to really turn this
902
00:50:04.440 --> 00:50:06.880
over to the five of us to single justices,
903
00:50:06.880 --> 00:50:09.480
as opposed to drawing on all the resources
904
00:50:09.480 --> 00:50:11.030
in the trial courts do you?
905
00:50:12.660 --> 00:50:15.410
I think so when we just have the theory was,
906
00:50:15.410 --> 00:50:18.820
is that if we have a, you know, a bunch of agreements,
907
00:50:18.820 --> 00:50:23.730
we just want to get that that through the single justice,
908
00:50:23.730 --> 00:50:25.900
because then it's faster.
909
00:50:25.900 --> 00:50:29.810
I think that for disagreement, I mean, so originally the way
910
00:50:29.810 --> 00:50:31.610
we had it, you know, before the framework,
911
00:50:31.610 --> 00:50:33.120
that's how we envisioned it.
912
00:50:34.160 --> 00:50:37.160
But where there's disagreements that should go back to trial
913
00:50:38.581 --> 00:50:40.460
searches, because that they're what they use.
914
00:50:42.237 --> 00:50:45.170
So you want to process in which agreements between
915
00:50:45.170 --> 00:50:50.170
the DA and the defense counsel can immediately go up to the
916
00:50:52.780 --> 00:50:54.310
single justice for approval.
917
00:50:54.310 --> 00:50:56.380
So you want and you don't think the
918
00:50:57.414 --> 00:50:59.064
existing order provides for that?
919
00:51:02.510 --> 00:51:04.209
Right, I just,
920
00:51:04.209 --> 00:51:08.260
I guess that we have just in some of our courts,
921
00:51:08.260 --> 00:51:10.710
we've just, it's been struggling and some of our courts are
922
00:51:10.710 --> 00:51:13.930
closed, and you are definitely open for business.
923
00:51:13.930 --> 00:51:18.044
So that's, that's really the concern is that we,
924
00:51:18.044 --> 00:51:23.044
we get email addresses and people don't check them.
925
00:51:23.560 --> 00:51:26.450
People don't know how to check them, courts are closed.
926
00:51:26.450 --> 00:51:29.452
Some somebody gets sick, and it's just it's really
927
00:51:29.452 --> 00:51:31.910
it's such an it's in such flux.
928
00:51:31.910 --> 00:51:36.426
The single justice session is, is there, and it's,
929
00:51:36.426 --> 00:51:37.840
it's ready to go.
930
00:51:37.840 --> 00:51:40.620
And so that's the first reason we just we feel like
931
00:51:40.620 --> 00:51:41.570
it would be faster.
932
00:51:42.540 --> 00:51:43.940
Okay, that's all I have.
933
00:51:43.940 --> 00:51:44.773
Thank you.
934
00:51:45.740 --> 00:51:47.530
I've got a few questions of logistics.
935
00:51:47.530 --> 00:51:52.530
So if John Smith has a particular counsel,
936
00:51:53.669 --> 00:51:56.100
what would be the role of that
937
00:51:56.100 --> 00:51:57.650
particular counsel at all this?
938
00:51:58.967 --> 00:52:01.480
With, how do we work so that certain individuals are
939
00:52:01.480 --> 00:52:04.620
designated to serve as counsel for john smith, even though
940
00:52:04.620 --> 00:52:07.440
that was not his attorney during the course of the case?
941
00:52:08.750 --> 00:52:11.090
So I think we've got the pre trial people and
942
00:52:11.090 --> 00:52:14.240
the post conviction people for the pre trial people,
943
00:52:14.240 --> 00:52:17.170
I think the goal is, is to get their attorney right on that.
944
00:52:17.170 --> 00:52:21.422
But if their attorney is unable to get on that, because,
945
00:52:21.422 --> 00:52:25.780
you know, because of the pandemic, then we we will have
946
00:52:25.780 --> 00:52:28.951
another representative of the defense bar, we are putting
947
00:52:28.951 --> 00:52:31.460
together teams, not just you know, the representative,
948
00:52:31.460 --> 00:52:35.070
but teams of people who are going to be ready to contact
949
00:52:35.070 --> 00:52:38.940
the jail, talk to the clients, get the information that they
950
00:52:38.940 --> 00:52:42.720
need to make sure that they have the support they need,
951
00:52:42.720 --> 00:52:43.910
so that we can do this.
952
00:52:43.910 --> 00:52:46.760
But that's, that's the plan is to have, you know,
953
00:52:46.760 --> 00:52:50.450
a kind of core of attorneys if pretrial people if they're
954
00:52:50.450 --> 00:52:54.450
not available in post conviction, If they have an attorney
955
00:52:54.450 --> 00:52:57.490
Still, we may give it to them or we may just keep
956
00:52:57.490 --> 00:53:00.620
that with our question people.
957
00:53:02.080 --> 00:53:04.370
And if individuals are privately retained
958
00:53:04.370 --> 00:53:06.370
and are not indigent, how would it work?
959
00:53:08.850 --> 00:53:10.790
I guess we have to give them a call.
960
00:53:11.800 --> 00:53:16.220
We do provide most of that, most of that criminal defense
961
00:53:19.990 --> 00:53:21.930
attorneys in the state, so just don't know
962
00:53:21.930 --> 00:53:23.817
how many there are.
963
00:53:23.817 --> 00:53:27.170
I can't speak to that, I think we take at least 80%
964
00:53:27.170 --> 00:53:28.760
of the cases.
965
00:53:28.760 --> 00:53:30.410
And I don't know what the percentage is for people
966
00:53:30.410 --> 00:53:31.610
who actually go to jail.
967
00:53:33.892 --> 00:53:38.892
I guess, if they're being presented by CPCs,
968
00:53:39.613 --> 00:53:42.840
pursuant to an appointment by CPCs.
969
00:53:42.840 --> 00:53:46.944
So I guess arguably CPCs could provide the appointment
970
00:53:46.944 --> 00:53:51.944
for those who don't counsel may be
971
00:53:53.760 --> 00:53:55.800
unavailable to address this matter.
972
00:53:56.849 --> 00:53:59.020
Okay.
973
00:53:59.020 --> 00:54:02.070
Do you see a difference by way between those who were
974
00:54:02.070 --> 00:54:04.340
awaiting trial in Superior Court as opposed
975
00:54:04.340 --> 00:54:05.990
to district court versus the BMC?
976
00:54:11.570 --> 00:54:15.300
No, I mean, they certainly, they're more likely
977
00:54:15.300 --> 00:54:17.900
to be held on what is currently an excluded offense.
978
00:54:22.050 --> 00:54:23.371
I have no further question.
979
00:54:23.371 --> 00:54:24.710
Justice Gaziano any further questions of you?
980
00:54:24.710 --> 00:54:25.810
No thank you, Chief.
981
00:54:25.810 --> 00:54:27.170
Justice Willie?
982
00:54:27.170 --> 00:54:28.420
No thank you, Chief.
983
00:54:28.420 --> 00:54:29.527
Justice Budd?
984
00:54:29.527 --> 00:54:30.382
No thank you.
985
00:54:30.382 --> 00:54:32.070
Justice Kafker?
986
00:54:32.070 --> 00:54:35.514
No thank you.
987
00:54:35.514 --> 00:54:39.060
All right, thank you Mrs Jacob Stein.
988
00:54:39.060 --> 00:54:40.180
Thank you Your Honor.
989
00:54:40.180 --> 00:54:41.870
Now we'll hear from Mr. Haskell
990
00:54:41.870 --> 00:54:43.570
on behalf of the Attorney General.
991
00:54:45.480 --> 00:54:48.020
Good morning, your honor and may it please
992
00:54:48.020 --> 00:54:51.385
the Court I'd like to begin our remarks today with three
993
00:54:51.385 --> 00:54:56.067
observations that informed my office's approach to this
994
00:54:56.067 --> 00:54:59.540
issue over the past seven to 10 days.
995
00:55:00.490 --> 00:55:04.310
First is a widespread recognition or an out by common sense.
996
00:55:04.310 --> 00:55:08.160
And I think I hope widely shared, that prisons and jails
997
00:55:08.160 --> 00:55:11.140
present very unique challenges when it comes to managing the
998
00:55:11.140 --> 00:55:12.827
risk of this disease that,
999
00:55:12.827 --> 00:55:17.172
that call for some sort of expedient action.
1000
00:55:17.172 --> 00:55:20.981
The second observation is that this space around
1001
00:55:20.981 --> 00:55:25.380
incarcerated persons who are there because of a judicial
1002
00:55:25.380 --> 00:55:29.490
order, stands at the intersection of certainly two and
1003
00:55:29.490 --> 00:55:33.230
really all three branches of government and that, that is
1004
00:55:33.230 --> 00:55:37.350
identity identity, excuse me a dynamic that needs to be
1005
00:55:37.350 --> 00:55:39.060
acknowledged and respected with
1006
00:55:39.060 --> 00:55:41.650
respect to any solution here.
1007
00:55:41.650 --> 00:55:44.590
And then our third observation, my third observation is to
1008
00:55:44.590 --> 00:55:48.430
refer the court to the six broad principles that were the
1009
00:55:48.430 --> 00:55:51.520
centerpiece of the brief that we filed very early Saturday
1010
00:55:51.520 --> 00:55:55.855
morning to the effects that any relief this court gives,
1011
00:55:55.855 --> 00:55:59.660
needs to be mindful of promoting the public health, not only
1012
00:55:59.660 --> 00:56:04.270
within Within prisons and institutions, but also of the
1013
00:56:04.270 --> 00:56:08.260
public, generally in this time, that public safety and
1014
00:56:08.260 --> 00:56:11.601
rights of victims need to be borne in mind at all times,
1015
00:56:11.601 --> 00:56:15.880
that any relief ought to provide the opportunity for
1016
00:56:15.880 --> 00:56:18.730
individual case by case review.
1017
00:56:18.730 --> 00:56:23.630
And finally, that any relief this court orders ought to be
1018
00:56:23.630 --> 00:56:27.540
temporary commensurate to the nature of the problem.
1019
00:56:27.540 --> 00:56:32.110
That is to say where the disease presents a temporary
1020
00:56:32.110 --> 00:56:36.290
problem that someday is going to be resolved.
1021
00:56:36.290 --> 00:56:39.920
This court should be ordering relief of a similarly
1022
00:56:39.920 --> 00:56:41.680
temporary nature.
1023
00:56:41.680 --> 00:56:46.630
My office played an active role in working with the other
1024
00:56:46.630 --> 00:56:50.220
parties and the petitioners, collaboratively and frankly,
1025
00:56:50.220 --> 00:56:54.210
tirelessly over the past couple of days to craft a report
1026
00:56:54.210 --> 00:56:57.330
and recommend recommendations the court has in front of it.
1027
00:56:57.330 --> 00:57:01.750
And our view is that report and recommendation appropriately
1028
00:57:01.750 --> 00:57:03.280
takes account of all of those
1029
00:57:03.280 --> 00:57:05.850
considerations that I just described.
1030
00:57:05.850 --> 00:57:09.640
And for that reason, our office stands by the report
1031
00:57:09.640 --> 00:57:14.272
recommendation and likewise recommends it to this court.
1032
00:57:14.272 --> 00:57:16.640
With that, I would I would welcome questions.
1033
00:57:17.767 --> 00:57:19.860
Justice Gaziano.
1034
00:57:19.860 --> 00:57:23.890
So I take it, Mr. Haskell, by your agreement
1035
00:57:23.890 --> 00:57:28.890
with the report, that you also agree that incarcerated
1036
00:57:28.890 --> 00:57:33.146
really incarcerated people under a revised rule 29 would not
1037
00:57:33.146 --> 00:57:34.910
violate article 30.
1038
00:57:36.150 --> 00:57:38.541
That's, That's right, Your Honor.
1039
00:57:38.541 --> 00:57:42.280
And the best articulation of this space that that I found,
1040
00:57:42.280 --> 00:57:45.290
of course, my work on this case, was given by this court in
1041
00:57:45.290 --> 00:57:48.610
the Sheehan case almost 100 years ago in the 1920s.
1042
00:57:48.610 --> 00:57:51.914
Where the the division of power is, is described as
1043
00:57:51.914 --> 00:57:55.587
legislature setting penalties for crimes, the judiciary
1044
00:57:55.587 --> 00:57:59.740
imposing sentence and the executive branch actually
1045
00:57:59.740 --> 00:58:03.330
admit during and executing that sentence, that's a big part
1046
00:58:03.330 --> 00:58:06.070
of the reason, Your Honor, why the report and recommendation
1047
00:58:06.070 --> 00:58:10.320
was focused on the act of sentencing, which is within the
1048
00:58:10.320 --> 00:58:11.820
province of the judiciary.
1049
00:58:11.820 --> 00:58:14.900
Did you find any significance to the fact that
1050
00:58:14.900 --> 00:58:18.410
rule 29 specifically says a judge may not take into account
1051
00:58:18.410 --> 00:58:21.930
contact of a defendant has occurred subsequent sentencing
1052
00:58:21.930 --> 00:58:26.780
because of those very issues of executive function?
1053
00:58:28.160 --> 00:58:29.620
Well, Your Honor, you're right.
1054
00:58:29.620 --> 00:58:32.830
That is the is the the message and that's the--
1055
00:58:32.830 --> 00:58:34.560
And that's the reason why rule 29
1056
00:58:34.560 --> 00:58:35.430
has a provision.
1057
00:58:37.662 --> 00:58:41.538
Certainly rule 29 is set up a system that
1058
00:58:41.538 --> 00:58:46.538
discourages the judiciary from intruding on the prerogative
1059
00:58:46.710 --> 00:58:49.610
of the executive in this sense.
1060
00:58:49.610 --> 00:58:54.260
What strikes me about the law around rule 29 here is that
1061
00:58:55.300 --> 00:58:59.970
speaks more to the defendants posters.
1062
00:58:59.970 --> 00:59:03.630
The convicted defendants post sentencing conduct.
1063
00:59:03.630 --> 00:59:06.480
What we're dealing with here is a circumstance that, you
1064
00:59:07.340 --> 00:59:10.640
know, may have existed as some remote hypothetical
1065
00:59:10.640 --> 00:59:13.510
possibility at the time a sentence was passed down,
1066
00:59:13.510 --> 00:59:17.564
but now is real and represents a global change of
1067
00:59:17.564 --> 00:59:21.380
circumstances, that it really is nobody's fault.
1068
00:59:21.380 --> 00:59:24.750
Just circumstance existed when someone was
1069
00:59:24.750 --> 00:59:25.583
sentenced five years ago.
1070
00:59:27.480 --> 00:59:29.620
Your Honor, the possibility of an exigency
1071
00:59:29.620 --> 00:59:32.780
like this, I think always existed but was never really top
1072
00:59:32.780 --> 00:59:35.010
of mind until the past couple of months.
1073
00:59:35.010 --> 00:59:38.500
Now that it is I think it loops back to the language the
1074
00:59:38.500 --> 00:59:42.640
rule 29 uses in describing unjust sentences, which goes to
1075
00:59:42.640 --> 00:59:46.390
whether justice has been done through the sentence through
1076
00:59:46.390 --> 00:59:49.920
the lens of what's happening right now, we believe that
1077
00:59:49.920 --> 00:59:52.540
that's an appropriate consideration with respect to
1078
00:59:52.540 --> 00:59:54.860
revising and revoking sentence.
1079
00:59:54.860 --> 00:59:56.440
Thank you, Mr Haskell no for the questions.
1080
00:59:56.440 --> 00:59:58.420
Thank you, Your Honor.
1081
00:59:58.420 --> 00:59:59.820
Justice Willie.
1082
00:59:59.820 --> 01:00:02.770
Yeah, good morning Haskell,
1083
01:00:04.400 --> 01:00:09.093
mentioned the issue of some agreed upon recommendations
1084
01:00:10.550 --> 01:00:14.690
to the court that pre trial detainee be released are on
1085
01:00:15.730 --> 01:00:18.090
not being adopted by the court.
1086
01:00:18.090 --> 01:00:21.110
And course each individual judge will make his
1087
01:00:21.110 --> 01:00:22.990
or her own decision.
1088
01:00:24.000 --> 01:00:28.330
Would it be helpful nonetheless, to include that within
1089
01:00:28.330 --> 01:00:29.900
this presumption of relief?
1090
01:00:31.590 --> 01:00:33.470
Am sorry your Honor to include what?
1091
01:00:33.470 --> 01:00:36.290
Is agreed upon agreed upon recommendation that
1092
01:00:36.290 --> 01:00:37.950
pretrial detainees be released.
1093
01:00:39.670 --> 01:00:41.770
So first of all, as to instances of this
1094
01:00:41.770 --> 01:00:44.450
happening, I have to say, having spent a lot of time with
1095
01:00:44.450 --> 01:00:47.190
these issues in the past week, I'm not aware of that.
1096
01:00:47.190 --> 01:00:50.710
And I would direct the court's attention to the affidavits
1097
01:00:50.710 --> 01:00:53.890
we submitted by the Chief Justice of each of the trial court
1098
01:00:53.890 --> 01:00:57.230
departments, as well as the affidavits that were attached to
1099
01:00:57.230 --> 01:01:02.170
the the seven DBAs memo, in which representatives with
1100
01:01:02.170 --> 01:01:05.960
various DBAs offices, you know, present facts about
1101
01:01:05.960 --> 01:01:08.160
what's going on in their counties.
1102
01:01:08.160 --> 01:01:11.430
Our sense is that the trial courts right now are really
1103
01:01:11.430 --> 01:01:15.270
doing their level best to address issues that are placed
1104
01:01:15.270 --> 01:01:17.790
before them on an emergency basis.
1105
01:01:17.790 --> 01:01:20.940
That having been said, Your Honor, to to answer the
1106
01:01:20.940 --> 01:01:23.660
remaining portion of your question, our view is that
1107
01:01:23.660 --> 01:01:26.915
the trial judiciary has a role to play in the solution here
1108
01:01:26.915 --> 01:01:31.170
and it's a very important role to play such that it would
1109
01:01:31.170 --> 01:01:34.559
be inappropriate to ask the trial judiciary to to rubber
1110
01:01:34.559 --> 01:01:38.210
stamp something even that's been agreed.
1111
01:01:38.210 --> 01:01:42.990
And that that information to allow the trial judiciary
1112
01:01:42.990 --> 01:01:46.311
to make an informed choice in each case where where there's
1113
01:01:46.311 --> 01:01:49.400
going to be a dispute or some opposition
1114
01:01:49.400 --> 01:01:51.670
is is appropriate is correct.
1115
01:01:51.670 --> 01:01:54.697
So I assume that you would be opposed to the
1116
01:01:54.697 --> 01:01:57.780
agreements going straight to the civil justice
1117
01:01:57.780 --> 01:01:59.600
based on your answer.
1118
01:02:00.899 --> 01:02:03.650
Our view, again, your honors, that the trial
1119
01:02:03.650 --> 01:02:08.030
court is really in a good place to help
1120
01:02:08.030 --> 01:02:13.030
be part of the solution here as was noted earlier,
1121
01:02:13.440 --> 01:02:16.430
the single justice has limited resources.
1122
01:02:16.430 --> 01:02:19.540
There's there's only handful of you frankly, the trial
1123
01:02:19.540 --> 01:02:23.170
courts have better access to the files, in some ways,
1124
01:02:23.170 --> 01:02:26.140
better lines of communication to the DEA offices
1125
01:02:26.140 --> 01:02:27.500
in the defense bars.
1126
01:02:27.500 --> 01:02:29.370
So yes, that is our view, Your Honor.
1127
01:02:29.370 --> 01:02:31.130
Okay, thank you.
1128
01:02:31.130 --> 01:02:32.470
Thank you.
1129
01:02:32.470 --> 01:02:34.310
Justice Budd?
1130
01:02:34.310 --> 01:02:35.600
Hi, good morning.
1131
01:02:35.600 --> 01:02:39.800
I'm just going back to the question about testing has
1132
01:02:39.800 --> 01:02:43.910
anybody looked into whether that's something that
1133
01:02:43.910 --> 01:02:46.360
can be done before people are released?
1134
01:02:46.360 --> 01:02:49.660
And I, you know, I understand we're all struggling here.
1135
01:02:49.660 --> 01:02:54.660
But from everything I I've seen and heard and read, testing
1136
01:02:57.252 --> 01:03:02.252
is important to sort of contain this and so is there has
1137
01:03:04.520 --> 01:03:08.350
there been given, has anybody given any thought to whether
1138
01:03:08.350 --> 01:03:12.250
there'd be some sort of testing protocol to make sure that
1139
01:03:12.250 --> 01:03:17.250
people are are free of the virus and not not going out to
1140
01:03:19.980 --> 01:03:20.900
spread the virus?
1141
01:03:20.900 --> 01:03:23.990
You know, they may be asymptomatic and that type of thing.
1142
01:03:23.990 --> 01:03:27.210
So I'm just wondering if that's been given any thought to?
1143
01:03:28.050 --> 01:03:30.720
Yes, it certainly has been, Your Honor.
1144
01:03:30.720 --> 01:03:34.410
And as you know from the report and recommendations
1145
01:03:34.410 --> 01:03:39.092
document, there's actually a provision in there is on page
1146
01:03:39.092 --> 01:03:43.710
six going into page seven, about how those who are positive
1147
01:03:43.710 --> 01:03:45.090
or presumptively positive
1148
01:03:45.090 --> 01:03:47.800
for the disease ought not be released.
1149
01:03:47.800 --> 01:03:50.240
I think your question also loops back to one of the
1150
01:03:50.240 --> 01:03:53.710
principles that we articulate and stand on in our brief,
1151
01:03:53.710 --> 01:03:58.070
which is that any release ought to do more good than harm
1152
01:03:58.070 --> 01:04:00.040
to the health of the general public.
1153
01:04:00.040 --> 01:04:03.387
And I think those two considerations go hand in hand.
1154
01:04:03.387 --> 01:04:08.387
So if if a trial judge as part of any release, were to
1155
01:04:10.060 --> 01:04:14.690
order, or if a district attorney's office were to insist on
1156
01:04:14.690 --> 01:04:18.010
in connection with any release, that somebody who's going to
1157
01:04:18.010 --> 01:04:21.691
be released to be tested, especially in a situation where,
1158
01:04:21.691 --> 01:04:24.610
for instance, there are already instances of the disease
1159
01:04:24.610 --> 01:04:26.930
within the walls of that particular institution.
1160
01:04:26.930 --> 01:04:30.680
I think the report and recommendation of gives room for
1161
01:04:30.680 --> 01:04:32.300
that and that would absolutely
1162
01:04:32.300 --> 01:04:33.900
be an appropriate consideration.
1163
01:04:36.910 --> 01:04:38.590
That's not exactly what I'm talking about
1164
01:04:38.590 --> 01:04:42.210
because I'm talking about asymptomatic transmission.
1165
01:04:42.210 --> 01:04:45.900
So this is this is when people are walking around, not
1166
01:04:45.900 --> 01:04:48.890
realizing that they could be spreading the virus.
1167
01:04:48.890 --> 01:04:50.650
You know, we any one of us could be
1168
01:04:50.650 --> 01:04:52.250
spreading the virus, right?
1169
01:04:52.250 --> 01:04:55.740
Anybody who we release could end up spreading the virus
1170
01:04:55.740 --> 01:04:58.710
without even realizing it without having symptoms.
1171
01:04:58.710 --> 01:05:03.710
And so I guess I'm asking if there is a way to incorporate
1172
01:05:06.168 --> 01:05:09.220
a protocol for testing people who are released?
1173
01:05:09.220 --> 01:05:14.220
I and it doesn't appear that that's been contemplated,
1174
01:05:15.880 --> 01:05:18.680
but I'm wondering if it's something that should be?
1175
01:05:18.680 --> 01:05:21.090
I think I understand your question and your
1176
01:05:21.090 --> 01:05:25.060
concern, Your Honor, and as to whether testing has been
1177
01:05:25.060 --> 01:05:27.590
baked into report and recommendation, basically as a
1178
01:05:27.590 --> 01:05:31.160
precondition of of any he's release.
1179
01:05:31.160 --> 01:05:34.371
You're correct, it's not required right now, whether it
1180
01:05:34.371 --> 01:05:38.800
would be whether it be appropriate or feasible,
1181
01:05:38.800 --> 01:05:41.398
I think would depend on a lot of considerations, including
1182
01:05:41.398 --> 01:05:45.570
the availability of the medical equipment to achieve that,
1183
01:05:45.570 --> 01:05:47.270
which I'm afraid I can't speak to.
1184
01:05:48.290 --> 01:05:51.410
And can you also just respond to
1185
01:05:51.410 --> 01:05:56.410
attorney Jacob Stein's argument or concern about
1186
01:05:59.720 --> 01:06:03.080
parties getting tied up in the force clauses 50
1187
01:06:03.080 --> 01:06:04.945
A day and so on?
1188
01:06:04.945 --> 01:06:06.790
Yeah,
1189
01:06:08.100 --> 01:06:10.640
your honor the fourth clause of
1190
01:06:10.640 --> 01:06:15.640
the fourth clause of 58, A as well as the fourth clause
1191
01:06:17.330 --> 01:06:21.950
of chapter 140, section 121, which also appears the excluded
1192
01:06:21.950 --> 01:06:26.550
offenses, in our view is a key provision of the definition
1193
01:06:26.550 --> 01:06:31.550
of excluded offenses as we argue in Brief, any releases that
1194
01:06:31.999 --> 01:06:35.900
are achieved through through the relief that this court
1195
01:06:35.900 --> 01:06:39.830
orders ought to be protective of the public safety
1196
01:06:39.830 --> 01:06:43.050
and the presence of those provisions within
1197
01:06:43.050 --> 01:06:45.070
the definition of excluded offenses.
1198
01:06:45.070 --> 01:06:49.020
And our view is very important to help
1199
01:06:49.020 --> 01:06:51.006
safeguard the public safety.
1200
01:06:51.006 --> 01:06:54.230
Certainly, there may be some some questions around the
1201
01:06:54.230 --> 01:06:58.190
margins about whether a particular crime of conviction falls
1202
01:06:58.190 --> 01:07:02.680
within those definitions but our view is that the report
1203
01:07:02.680 --> 01:07:05.720
recommendation brings enough people to the table and
1204
01:07:05.720 --> 01:07:09.300
calls for enough resources and attention to be devoted
1205
01:07:09.300 --> 01:07:12.620
to this, this all hands on deck effort that's being
1206
01:07:12.620 --> 01:07:16.080
contemplated that those instances can be identified
1207
01:07:16.080 --> 01:07:18.880
and sorted through in in prompt order.
1208
01:07:19.990 --> 01:07:21.240
Okay, thank you.
1209
01:07:22.487 --> 01:07:23.553
Thank you.
1210
01:07:23.553 --> 01:07:24.480
Mr Cypher?
1211
01:07:26.070 --> 01:07:27.120
Thank you.
1212
01:07:28.479 --> 01:07:32.820
I wanna go back from the To the position that metal
1213
01:07:32.820 --> 01:07:37.090
and these CPCs have taken and see what your position
1214
01:07:37.090 --> 01:07:40.000
is with regard to these excluded categories
1215
01:07:40.000 --> 01:07:43.500
in the document by the special master.
1216
01:07:43.500 --> 01:07:45.898
Do you agree that they swallow the they swallow the
1217
01:07:45.898 --> 01:07:49.790
document, they really create too much of a block to
1218
01:07:49.790 --> 01:07:52.040
what we're trying to accomplish?
1219
01:07:52.040 --> 01:07:54.800
We do not your Honor.
1220
01:07:54.800 --> 01:07:55.633
Going back--
1221
01:07:55.633 --> 01:08:00.610
So if you don't, then do you have a subset that
1222
01:08:01.650 --> 01:08:04.350
you could carve out of that that would make it easier?
1223
01:08:05.920 --> 01:08:09.590
I'm afraid we don't, Your Honor, the the entire
1224
01:08:09.590 --> 01:08:12.740
report recommendation, including the list of excluded
1225
01:08:12.740 --> 01:08:17.740
offenses, with the product of a long, hard drawn out
1226
01:08:18.210 --> 01:08:20.370
and very constructive conversation
1227
01:08:20.370 --> 01:08:22.230
over the past several days.
1228
01:08:22.230 --> 01:08:25.700
We are comfortable that the existing proposed list of
1229
01:08:25.700 --> 01:08:28.520
excluded offenses strikes the right balance between
1230
01:08:28.520 --> 01:08:31.302
all of the different in first, that we described in our
1231
01:08:31.302 --> 01:08:34.463
brief that we believe this court ought to be mindful of.
1232
01:08:36.031 --> 01:08:38.340
Okay, One other, two more questions.
1233
01:08:38.340 --> 01:08:42.030
One about the whether it's a single justice at the trial
1234
01:08:42.030 --> 01:08:45.460
court, do you are you saying that you think even if there
1235
01:08:45.460 --> 01:08:48.320
is an agreement between the DA and the defense attorney that
1236
01:08:48.320 --> 01:08:51.006
it should still go to the trial court and shouldn't,
1237
01:08:51.006 --> 01:08:53.790
couldn't or shouldn't just come to the single justice?
1238
01:08:55.990 --> 01:09:00.110
Right now, the the report and recommendation does
1239
01:09:00.110 --> 01:09:03.010
have those go into the trial court and specifically carves
1240
01:09:04.072 --> 01:09:05.250
out a role for the trial court to play there before the
1241
01:09:05.250 --> 01:09:10.035
trial court is asked to, to order those releases as to
1242
01:09:10.035 --> 01:09:15.035
whether those kinds of proposed releases ought to go
1243
01:09:15.610 --> 01:09:17.150
to the single justice instead.
1244
01:09:18.096 --> 01:09:20.680
You know, I think the considerations there would have to do
1245
01:09:20.680 --> 01:09:25.522
with resources on on the county courts side and whether
1246
01:09:25.522 --> 01:09:27.630
that's something the county court feels itself well
1247
01:09:27.630 --> 01:09:30.820
positioned to get involved with and also the possibility of
1248
01:09:30.820 --> 01:09:35.495
creating different processes for different categories.
1249
01:09:35.495 --> 01:09:39.490
I wonder whether that would create
1250
01:09:39.490 --> 01:09:41.783
more confusion than order.
1251
01:09:41.783 --> 01:09:46.160
Also mindful that under the existing report recommendation,
1252
01:09:46.160 --> 01:09:50.216
the single justice does have a role to play in adjudicating
1253
01:09:50.216 --> 01:09:54.380
summary type appeals from decisions made by the trial court.
1254
01:09:54.380 --> 01:09:56.960
And so those are the considerations that that I would
1255
01:09:56.960 --> 01:09:58.380
suggest the courts think about
1256
01:09:58.380 --> 01:10:00.610
in connection with that question.
1257
01:10:00.610 --> 01:10:01.443
Okay, thank you.
1258
01:10:01.443 --> 01:10:04.630
And, and you contemplate when it goes in front of the trial
1259
01:10:04.630 --> 01:10:07.750
judge, even if it is agreed upon that the trial judge would
1260
01:10:07.750 --> 01:10:10.570
be checking to make sure that there are adequate services
1261
01:10:10.570 --> 01:10:13.540
or places for the people who live?
1262
01:10:15.070 --> 01:10:17.260
Yes, going back to the principle that we
1263
01:10:17.260 --> 01:10:20.870
described in our brief about releases, ultimately serving
1264
01:10:20.870 --> 01:10:22.090
the general public health.
1265
01:10:22.090 --> 01:10:23.570
Yes, It's appropriate.
1266
01:10:23.570 --> 01:10:27.290
Now bearing bearing in mind that the public
1267
01:10:27.290 --> 01:10:31.130
safety as you say that everything should take into account
1268
01:10:31.130 --> 01:10:32.620
the general public health,
1269
01:10:32.620 --> 01:10:35.960
what's your position on this presumption of relief?
1270
01:10:37.740 --> 01:10:41.820
So the report and recommendation does call for a
1271
01:10:41.820 --> 01:10:46.820
presumption of release with with respect to the pretrial
1272
01:10:46.972 --> 01:10:50.852
detainees that are described in the document.
1273
01:10:50.852 --> 01:10:54.830
We feel that that's appropriate for two reasons.
1274
01:10:54.830 --> 01:10:59.106
First, the category of pretrial detainees that are
1275
01:10:59.106 --> 01:11:02.670
beneficiaries of that presumption of release has been very
1276
01:11:02.670 --> 01:11:07.230
carefully defined and demarcated, going back to list of
1277
01:11:07.230 --> 01:11:10.620
excluded fences, among other considerations.
1278
01:11:10.620 --> 01:11:15.040
And we feel that the definitions around who's eligible who
1279
01:11:15.040 --> 01:11:18.390
receives that presumption is part of what makes
1280
01:11:18.390 --> 01:11:20.140
the presumption appropriate.
1281
01:11:20.140 --> 01:11:22.920
The second thing that in our view makes that presumption
1282
01:11:22.920 --> 01:11:26.830
appropriate is the opportunity for the prosecutor to object
1283
01:11:26.830 --> 01:11:30.290
and for the trial court judiciary to exercise Independent
1284
01:11:30.290 --> 01:11:33.890
judgment, again, consistent with the principles discussed in
1285
01:11:33.890 --> 01:11:38.130
our brief about how rather than blanket or categorical
1286
01:11:38.130 --> 01:11:43.090
relief relief ought to be, is as best as possible made
1287
01:11:43.090 --> 01:11:44.290
on a case by case basis.
1288
01:11:45.680 --> 01:11:46.513
Okay, thank you.
1289
01:11:46.513 --> 01:11:51.513
One more final question Chief before I say thank you
1290
01:11:51.610 --> 01:11:55.800
is that you might not be the right person to ask this of.
1291
01:11:55.800 --> 01:12:00.090
But do you have any updated statistics on the number of
1292
01:12:00.090 --> 01:12:04.090
people incarcerated, either as pretrial detainees or as
1293
01:12:04.090 --> 01:12:08.110
prisoners who are serving a sense who has tested positive
1294
01:12:08.110 --> 01:12:09.530
or has exhibited symptoms?
1295
01:12:11.030 --> 01:12:13.820
Oh, on that point, specifically, I'm afraid I
1296
01:12:13.820 --> 01:12:16.710
don't that's I can offer on that information in the
1297
01:12:16.710 --> 01:12:19.340
Commissioner of corrections affidavit that we submitted.
1298
01:12:19.340 --> 01:12:22.020
Okay, I'll wait till we hear from the
1299
01:12:22.020 --> 01:12:23.870
commissioners, thank you.
1300
01:12:23.870 --> 01:12:24.710
Thank you, your Honor.
1301
01:12:24.710 --> 01:12:26.183
I'm all set.
1302
01:12:26.183 --> 01:12:27.016
Justice Kafker.
1303
01:12:28.147 --> 01:12:30.900
Just after that, I'd like to follow up on that.
1304
01:12:30.900 --> 01:12:35.210
Questions to on defense counsel on the constitutionality
1305
01:12:35.210 --> 01:12:36.500
of this for a second?
1306
01:12:36.500 --> 01:12:41.500
Cause when they will 29 seems like I mean, it's creative,
1307
01:12:43.046 --> 01:12:45.140
but it seems like an odd fit here.
1308
01:12:45.140 --> 01:12:49.310
Because we really revising and revoking these sentences.
1309
01:12:50.470 --> 01:12:53.020
You know, they weren't correct at the time we just got
1310
01:12:53.020 --> 01:12:56.020
this new public safety emergency.
1311
01:12:56.950 --> 01:13:01.180
Are there is there you've done a lot of research on this?
1312
01:13:01.180 --> 01:13:04.730
Is there any case law dealing with this kind of emergency?
1313
01:13:04.730 --> 01:13:08.910
It seems it's more like jail overcrowding, revise and
1314
01:13:08.910 --> 01:13:13.120
revoke but tell me why you believe this is constitutional
1315
01:13:14.130 --> 01:13:17.290
for incarcerated as opposed to pretrial detainees?
1316
01:13:19.463 --> 01:13:22.120
So, Your Honor, I think that goes back to the
1317
01:13:22.120 --> 01:13:25.360
remarks that I made earlier in response to Justice Gaziano
1318
01:13:25.360 --> 01:13:28.930
his question about the Sheehan case in the tripartite
1319
01:13:28.930 --> 01:13:31.930
division of Responsibility between the three branches of
1320
01:13:31.930 --> 01:13:33.580
government in this space.
1321
01:13:33.580 --> 01:13:37.910
What the judiciary has the authority to do and the role that
1322
01:13:37.910 --> 01:13:42.240
the judiciary plays is to pass down a sentence and part of
1323
01:13:42.240 --> 01:13:47.240
the reason that we focused on rule 29 as a vehicle for
1324
01:13:47.520 --> 01:13:51.950
relief here, is it something that is, in our view pretty
1325
01:13:51.950 --> 01:13:55.500
solidly within the judiciary's lane, so to speak.
1326
01:13:56.340 --> 01:13:58.940
We don't we don't we don't revise and revoke.
1327
01:13:58.940 --> 01:14:01.920
I mean, just just describe John's point about conduct we
1328
01:14:01.920 --> 01:14:05.009
don't take into account later conduct do we take into
1329
01:14:05.009 --> 01:14:09.870
account later events don't mean, in the in the jail
1330
01:14:09.870 --> 01:14:14.870
overcrowding cases, we have usually a finding of
1331
01:14:15.340 --> 01:14:20.020
unconstitutionality right, a cruel or unusual punishment
1332
01:14:20.020 --> 01:14:24.760
finding your eye taking you're not saying we need to make
1333
01:14:25.949 --> 01:14:27.550
that binding here to act, right?
1334
01:14:28.480 --> 01:14:31.010
That's right, your Honor, is waiting I'm sorry,
1335
01:14:31.010 --> 01:14:32.410
go ahead, please. I'm sorry.
1336
01:14:34.379 --> 01:14:35.392
No, and I don't mean to cut you.
1337
01:14:35.392 --> 01:14:37.916
I'm just struggling myself with the constitutional
1338
01:14:37.916 --> 01:14:40.870
justification for people who have given
1339
01:14:40.870 --> 01:14:43.160
correct sentences at the time.
1340
01:14:43.160 --> 01:14:47.790
But we have this public health threat and I would add
1341
01:14:48.700 --> 01:14:51.880
another fact I don't find delivered in difference here based
1342
01:14:52.790 --> 01:14:55.030
on the submissions that we've been presented,
1343
01:14:55.030 --> 01:14:59.480
so I'm I'm trying to get the constitutional basis for this.
1344
01:15:00.480 --> 01:15:05.480
Because these are properly sentence people and there's
1345
01:15:06.557 --> 01:15:08.274
nothing at the time that indicated
1346
01:15:08.274 --> 01:15:09.270
the sentence was incorrect.
1347
01:15:09.270 --> 01:15:12.770
It's subsequent temporary development.
1348
01:15:12.770 --> 01:15:15.560
Is there any case like this out there you say she and I
1349
01:15:15.560 --> 01:15:18.410
haven't I got to look at sheehan and again, but if that's
1350
01:15:19.360 --> 01:15:20.740
the best case for Oxford?
1351
01:15:20.740 --> 01:15:23.140
And sheehan in your honor, sheena and
1352
01:15:24.830 --> 01:15:29.830
we, we like and and excited the principles have articulated
1353
01:15:29.830 --> 01:15:32.870
by Sheehan, I'm not sure that the court will find the
1354
01:15:32.870 --> 01:15:35.736
facts particularly illuminating of their own codes,
1355
01:15:35.736 --> 01:15:37.345
Your Honor.
1356
01:15:37.345 --> 01:15:42.345
Are there any cases like this, me where we've been given
1357
01:15:44.091 --> 01:15:49.091
a temporary ability to temporarily suspend sentences as
1358
01:15:51.005 --> 01:15:56.005
opposed to the executive branch, exercising its powers to
1359
01:15:56.210 --> 01:15:58.590
furlough or, you know, something else?
1360
01:15:58.590 --> 01:16:01.250
And just it seems like this would be nice
1361
01:16:01.250 --> 01:16:04.580
if there were some better precedent than that.
1362
01:16:04.580 --> 01:16:06.110
There may not be but I'm just trying to
1363
01:16:06.110 --> 01:16:08.240
understand what's out there.
1364
01:16:08.240 --> 01:16:10.990
I'm afraid this is, this is thin rule,
1365
01:16:10.990 --> 01:16:15.510
Your Honor, but we don't have a precedent to offer on that.
1366
01:16:15.510 --> 01:16:19.830
What we would, what we would suggest is that rule 29 and
1367
01:16:22.200 --> 01:16:25.810
the the provisions of rule 29 and the function that the
1368
01:16:25.810 --> 01:16:30.810
judiciary plays pursuant to rule 29 are things that are
1369
01:16:30.820 --> 01:16:34.010
within the province of the judiciary and that's the reason
1370
01:16:34.010 --> 01:16:35.270
that we focus on them.
1371
01:16:36.120 --> 01:16:40.321
These are extraordinary circumstances, they've come up in an
1372
01:16:40.321 --> 01:16:43.160
extraordinary way that I don't think anybody could have
1373
01:16:43.160 --> 01:16:45.360
predicted or anticipated.
1374
01:16:45.360 --> 01:16:48.730
And, Your Honor, we think it's fair to think of these
1375
01:16:48.730 --> 01:16:53.300
circumstances as affecting whether justice has been done,
1376
01:16:53.300 --> 01:16:57.400
which is what rule 29 speaks to in subsection H2.
1377
01:16:57.400 --> 01:17:01.490
And that's part of the reason that we feel rule 29 is an
1378
01:17:02.334 --> 01:17:06.010
appropriate vehicle for for potential relief here.
1379
01:17:06.010 --> 01:17:10.050
Did you also consider just Mr. Siegel talks about
1380
01:17:10.916 --> 01:17:13.440
maybe or maybe was in response to a question that a stay
1381
01:17:14.330 --> 01:17:17.930
would not even this is more like a stay of execution and
1382
01:17:17.930 --> 01:17:21.840
wouldn't require that's more within our
1383
01:17:21.840 --> 01:17:24.750
power even on a post sentencing.
1384
01:17:26.160 --> 01:17:30.850
Post appeal with the new look into a stay as a better
1385
01:17:30.850 --> 01:17:32.480
vehicle or an alternative vehicle
1386
01:17:32.480 --> 01:17:35.400
and rejected as opposed to this rule 29.
1387
01:17:36.420 --> 01:17:38.240
Oh, and I should also say I'm sorry, Your Honor,
1388
01:17:38.240 --> 01:17:40.980
I should have mentioned this a moment ago that we we do
1389
01:17:40.980 --> 01:17:44.170
agree with you about the lack of constitutional
1390
01:17:44.170 --> 01:17:46.870
basis for relief here and I think we mentioned as much
1391
01:17:47.736 --> 01:17:52.490
in our brief stay, as to stay the report and recommendation
1392
01:17:52.490 --> 01:17:54.545
actually contemplates that in.
1393
01:17:54.545 --> 01:17:59.545
It's on page eight Roman numeral three, paragraph four,
1394
01:18:00.651 --> 01:18:04.400
in speaking about what a trial judge who's who's
1395
01:18:05.359 --> 01:18:07.530
entertaining one of these emergency special
1396
01:18:07.530 --> 01:18:10.530
rule 29 motions is able to do.
1397
01:18:10.530 --> 01:18:13.910
I think the idea there appropriately is that the trial judge
1398
01:18:13.910 --> 01:18:18.710
would have discretion to fashion relief but the reporting
1399
01:18:18.710 --> 01:18:22.769
recommendation in that paragraph, paragraph four on page
1400
01:18:22.769 --> 01:18:26.120
eight, specifically speaks about staying in in mid sentence
1401
01:18:26.120 --> 01:18:29.710
until after the emergency is over, and also speaks a bit
1402
01:18:29.710 --> 01:18:32.260
about now what is to happen to the sentence
1403
01:18:32.260 --> 01:18:34.180
after the emergency is over.
1404
01:18:34.180 --> 01:18:37.120
Again, consistent with principle, we discussed in our brief
1405
01:18:37.120 --> 01:18:40.320
about the temporary nature of relief to deal with the
1406
01:18:40.320 --> 01:18:41.440
temporary emergency.
1407
01:18:42.830 --> 01:18:45.760
In my last question, and I know it's difficult,
1408
01:18:45.760 --> 01:18:48.650
Cory, who's the AG representing in this case?
1409
01:18:48.650 --> 01:18:50.440
Just remind me.
1410
01:18:50.440 --> 01:18:54.340
Your Honor, I understand.
1411
01:18:54.340 --> 01:18:57.060
The Attorney General at this argument
1412
01:18:57.060 --> 01:18:58.620
is speaking for herself.
1413
01:18:58.620 --> 01:19:02.200
She's representing herself in her office at the time that we
1414
01:19:02.200 --> 01:19:04.780
filed our brief early Saturday morning.
1415
01:19:04.780 --> 01:19:08.730
We did file it on behalf not only of ourselves, but also the
1416
01:19:08.730 --> 01:19:12.310
the the trial court or excuse me, the Chief Justice,
1417
01:19:12.310 --> 01:19:14.810
the Department of correction and the parole board.
1418
01:19:15.800 --> 01:19:19.180
And all those people still in the fold or some
1419
01:19:19.180 --> 01:19:21.190
outside of the fold now?
1420
01:19:21.190 --> 01:19:23.470
Your Honor, they've chosen to appear separately
1421
01:19:23.470 --> 01:19:27.810
at the argument and perhaps any more about their positions.
1422
01:19:27.810 --> 01:19:30.270
Questions would be best directed to them.
1423
01:19:30.270 --> 01:19:31.940
Thank you that's all I have.
1424
01:19:31.940 --> 01:19:33.570
Thank you, Your Honor.
1425
01:19:33.570 --> 01:19:36.020
This is Chief Justice Gants.
1426
01:19:36.020 --> 01:19:41.020
Mr. Haskell, let's assume that the special masters
1427
01:19:42.600 --> 01:19:46.250
recommendations are followed and that all act in good faith.
1428
01:19:46.250 --> 01:19:50.250
What would you estimate to be the reduction in the jail
1429
01:19:50.250 --> 01:19:55.250
population resulting from the exercise of authority?
1430
01:19:59.390 --> 01:20:02.580
Your Honor, I'm afraid I'm not able to answer
1431
01:20:02.580 --> 01:20:04.830
that question for two reasons.
1432
01:20:04.830 --> 01:20:08.750
First, I don't have that data that has not come across
1433
01:20:08.750 --> 01:20:11.980
my desk in the past week and second, as the court well
1434
01:20:11.980 --> 01:20:16.130
knows, you know, the process that the special masters report
1435
01:20:16.130 --> 01:20:20.170
recommendation would set in motion is going to depend on
1436
01:20:20.170 --> 01:20:23.330
decisions that are to be made by other parties, including
1437
01:20:23.330 --> 01:20:27.460
the prosecutors and the trial judiciary, but I will say is
1438
01:20:27.460 --> 01:20:31.390
that the report and recommendations specifically includes a
1439
01:20:31.390 --> 01:20:34.730
provision for the special master to weigh
1440
01:20:34.730 --> 01:20:37.160
in on how the process is working.
1441
01:20:37.160 --> 01:20:40.483
I believe the special masters required to do that in pretty
1442
01:20:40.483 --> 01:20:43.840
short order within within one week of the report and
1443
01:20:43.840 --> 01:20:47.510
recommendation going into effect in our hope and expectation
1444
01:20:47.510 --> 01:20:51.950
is that that review process would present an opportunity to
1445
01:20:51.950 --> 01:20:54.910
talk through and hopefully to achieve any modifications that
1446
01:20:54.910 --> 01:20:55.960
might be appropriate.
1447
01:20:57.120 --> 01:20:58.670
When they come in a different way.
1448
01:21:01.370 --> 01:21:06.117
What percentage reduction are either based on the design
1449
01:21:07.060 --> 01:21:12.060
rate capacity or, or other measures of how crowded a jail
1450
01:21:14.450 --> 01:21:19.450
or prison is, would accomplish a material change in the
1451
01:21:22.450 --> 01:21:27.450
public health risk to prisoners and to prison or jail staff?
1452
01:21:30.210 --> 01:21:33.806
Again, Your Honor, I'm sorry to have to say this.
1453
01:21:33.806 --> 01:21:36.610
But that's not something that I'm able to offer the answer
1454
01:21:36.610 --> 01:21:41.130
to, in part, because it's going to depend institution
1455
01:21:41.130 --> 01:21:44.410
institution and what circumstances are there?
1456
01:21:44.410 --> 01:21:48.809
It's not like we have expert reports of epidemiologists or,
1457
01:21:48.809 --> 01:21:53.809
or our public health professionals outside the affidavit of
1458
01:21:53.870 --> 01:21:55.670
the Deputy Secretary that we put in.
1459
01:21:56.681 --> 01:22:01.681
And, you know, Your Honor, any relief that's ordered here,
1460
01:22:02.120 --> 01:22:05.890
as we described in our brief, ought to balance a number of
1461
01:22:05.890 --> 01:22:08.370
different considerations that are sometimes
1462
01:22:08.370 --> 01:22:10.090
in tension with one another.
1463
01:22:10.090 --> 01:22:13.691
And in our view, the appropriate way to approach this is in
1464
01:22:13.691 --> 01:22:16.620
a way that balances all those considerations, rather than
1465
01:22:16.620 --> 01:22:20.230
then focusing specifically on on one of them.
1466
01:22:21.880 --> 01:22:24.010
Although it's good another way and I guess we'll
1467
01:22:25.028 --> 01:22:28.720
be hearing from both the sheriff's and from the EEOC on this
1468
01:22:28.720 --> 01:22:33.720
issue, but Little was too little, mainly with this,
1469
01:22:34.300 --> 01:22:37.940
the process basically permits the capacity
1470
01:22:37.940 --> 01:22:40.990
to evaluate to what extent it has had consequence.
1471
01:22:42.720 --> 01:22:47.720
Do we have any measure of magnitude as to the extent of
1472
01:22:47.800 --> 01:22:51.470
reduction that needs to be accomplished to maintain
1473
01:22:52.680 --> 01:22:56.840
the public health goals that are being argued here?
1474
01:22:57.910 --> 01:22:59.610
Well, Your Honor, one of the things that the
1475
01:22:59.610 --> 01:23:02.990
report recommendation calls for all the way at the very end
1476
01:23:02.990 --> 01:23:07.990
is his reporting and the involvement of public health
1477
01:23:08.350 --> 01:23:12.350
experts in connection with evaluating those reports.
1478
01:23:12.350 --> 01:23:16.403
And in our view, that is the appropriate vehicle for for
1479
01:23:17.760 --> 01:23:19.670
assessing those concerns and
1480
01:23:19.670 --> 01:23:22.280
for providing an answer to that question.
1481
01:23:22.280 --> 01:23:26.040
I'm afraid it's not the kind of things that anybody and
1482
01:23:26.040 --> 01:23:29.100
certainly not I could could offer an answer to at this time
1483
01:23:29.100 --> 01:23:29.933
in place.
1484
01:23:30.930 --> 01:23:34.310
The mistake of steam says think of Stein says,
1485
01:23:35.160 --> 01:23:40.160
if we were to include the excluded offenses as provided for
1486
01:23:40.730 --> 01:23:43.392
it will mean that very few individuals
1487
01:23:43.392 --> 01:23:46.420
are not going to be excluded.
1488
01:23:48.110 --> 01:23:50.310
Let's assume for the let's assume that
1489
01:23:51.879 --> 01:23:53.380
she's right from for the moment.
1490
01:23:53.380 --> 01:23:58.380
Would that cause you to reevaluate whether or not we should
1491
01:23:59.190 --> 01:24:01.610
change the category of exclusions?
1492
01:24:03.540 --> 01:24:06.970
I think, Your Honor, that is a bridge to be
1493
01:24:06.970 --> 01:24:10.740
crossed when we get there consistent with the reporting and
1494
01:24:10.740 --> 01:24:12.470
reevaluation provisions
1495
01:24:12.470 --> 01:24:15.430
of the of the report and recommendation.
1496
01:24:15.430 --> 01:24:19.090
But, Your Honor, I think what my office would be looking to
1497
01:24:19.090 --> 01:24:22.840
if, say, seven days from now we find that this protocol
1498
01:24:22.840 --> 01:24:24.850
has had no meaningful effects.
1499
01:24:24.850 --> 01:24:28.380
I think what my office would be looking for is recalibration
1500
01:24:28.380 --> 01:24:32.980
that serves the the same six principles that we've described
1501
01:24:32.980 --> 01:24:35.040
in our brief and then I keep referring back to them
1502
01:24:35.040 --> 01:24:38.780
because the goal here is to achieve an appropriate
1503
01:24:38.780 --> 01:24:41.310
balance that serves all of those things.
1504
01:24:41.310 --> 01:24:44.479
Do we have the luxury of that time the governor
1505
01:24:44.479 --> 01:24:49.479
says that the peak danger periods going to be, I believe,
1506
01:24:49.870 --> 01:24:52.540
April 7 17th, so that's a week away?
1507
01:24:56.790 --> 01:24:59.300
Your Honor, we've we've emphasized consistently
1508
01:24:59.300 --> 01:25:03.340
through our briefing and our argument that it's important
1509
01:25:03.340 --> 01:25:07.630
to act promptly here in response to to an exigency.
1510
01:25:07.630 --> 01:25:10.370
But it's also important to act thoughtfully here in
1511
01:25:10.370 --> 01:25:14.740
a way that that takes account of many,
1512
01:25:14.740 --> 01:25:17.390
many, many different considerations.
1513
01:25:17.390 --> 01:25:21.870
Our view is that the Masters report and recommendation
1514
01:25:22.715 --> 01:25:26.870
developed as it was through a series of very deep and
1515
01:25:26.870 --> 01:25:29.330
involved conversations with various parties and
1516
01:25:29.330 --> 01:25:32.590
stakeholders. achieve that appropriate balance,
1517
01:25:32.590 --> 01:25:34.560
at least for the first go around.
1518
01:25:35.980 --> 01:25:38.070
Okay, I've got no further question.
1519
01:25:38.070 --> 01:25:39.820
Justice Gaziano any further questions that you may have?
1520
01:25:39.820 --> 01:25:41.714
No further questions.
1521
01:25:41.714 --> 01:25:43.105
Thank you, chief justice.
1522
01:25:43.105 --> 01:25:43.938
Justice Lowy
1523
01:25:43.938 --> 01:25:44.771
Yes, I do.
1524
01:25:44.771 --> 01:25:47.380
Thank you, Chief. Mr. Haskell, one thing that seems to be
1525
01:25:47.380 --> 01:25:50.900
missing in our discussion today and I wonder if we could say
1526
01:25:50.900 --> 01:25:55.410
something to make it part of the equation, is that
1527
01:25:55.410 --> 01:26:00.410
as it relates to pretrial detainees, this document is simply
1528
01:26:00.440 --> 01:26:05.040
outlining a presumption and then the master puts in a
1529
01:26:05.040 --> 01:26:09.230
comment that I think is very important that if an individual
1530
01:26:09.230 --> 01:26:13.370
does fall within the presumption, that that's not a factor
1531
01:26:13.370 --> 01:26:15.540
that the judge should consider
1532
01:26:15.540 --> 01:26:19.591
in any other request for relief.
1533
01:26:19.591 --> 01:26:24.591
Do you think that's something that we could do to emphasize
1534
01:26:25.130 --> 01:26:30.130
that point, if you are not within the presumption that in no
1535
01:26:30.496 --> 01:26:34.400
way impacts the judge's decision for all other individuals
1536
01:26:34.400 --> 01:26:37.170
is just that there is no presumption?
1537
01:26:37.170 --> 01:26:39.840
Do you think we need to do a better job at making sure that
1538
01:26:39.840 --> 01:26:40.900
point is understood?
1539
01:26:42.120 --> 01:26:44.630
So, Your Honor, what your question is getting to
1540
01:26:44.630 --> 01:26:49.234
is the kind of emergency motions for relief and relief that
1541
01:26:49.234 --> 01:26:52.080
incarcerated folks have been filing for the past couple
1542
01:26:52.080 --> 01:26:53.770
weeks and that's as described
1543
01:26:53.770 --> 01:26:56.650
in the four Chief Justice affidavits.
1544
01:26:56.650 --> 01:27:01.650
The the trial courts are handling currently right now.
1545
01:27:01.690 --> 01:27:05.840
Our view is that the reporting recommendation doesn't and
1546
01:27:05.840 --> 01:27:10.210
should not have any impact on that process, that the notion
1547
01:27:10.210 --> 01:27:14.000
that a presumption or lack of a presumption should have no
1548
01:27:14.000 --> 01:27:17.710
impact on an individual detainees motion
1549
01:27:17.710 --> 01:27:20.170
for relief or for relief.
1550
01:27:20.170 --> 01:27:24.040
And that's the point that the court chooses to amplify in,
1551
01:27:24.890 --> 01:27:27.850
in what it does with a report and recommendation.
1552
01:27:27.850 --> 01:27:29.760
I think that's a very fair point.
1553
01:27:31.000 --> 01:27:31.979
Okay, thank you.
1554
01:27:31.979 --> 01:27:33.860
Thank you.
1555
01:27:33.860 --> 01:27:35.445
Justice Budd.
1556
01:27:35.445 --> 01:27:38.456
Actually, I do have questions just given
1557
01:27:38.456 --> 01:27:42.490
considering the questions that have been raised about the
1558
01:27:42.490 --> 01:27:45.680
constitutionality of, of what's being requested.
1559
01:27:46.930 --> 01:27:49.551
Is there any role here for the governor and
1560
01:27:49.551 --> 01:27:53.550
his office taking action here?
1561
01:27:56.910 --> 01:28:01.350
Your Honor, as we've said, this, this space sits
1562
01:28:01.350 --> 01:28:04.220
at the intersection of at least two and probably three
1563
01:28:04.220 --> 01:28:05.370
branches of government.
1564
01:28:08.921 --> 01:28:13.921
We because this whole case is arising in the form of a case
1565
01:28:14.180 --> 01:28:17.640
of a litigated judicial case, where this court would be the
1566
01:28:17.640 --> 01:28:22.640
one to order relief, we focused on mechanisms of relief that
1567
01:28:24.293 --> 01:28:27.732
are within this courts province and within this courts
1568
01:28:27.732 --> 01:28:30.900
authority to order their, their ,maybe things that can be
1569
01:28:30.900 --> 01:28:35.150
done by other parties, but I'm afraid I might not be the
1570
01:28:35.150 --> 01:28:37.880
correct person to speak to those things.
1571
01:28:37.880 --> 01:28:39.460
Okay, thank you.
1572
01:28:39.460 --> 01:28:40.670
Justice Cipher?
1573
01:28:42.894 --> 01:28:44.290
I have no further questions, thank you.
1574
01:28:44.290 --> 01:28:46.050
Justice Kafker?
1575
01:28:46.050 --> 01:28:49.360
Less quick, the mandatory minimums I take it are
1576
01:28:49.360 --> 01:28:53.350
outside of our province, right, that if if a sentence has a
1577
01:28:53.350 --> 01:28:58.280
mandatory minimum, can we do anything without intruding on
1578
01:28:58.280 --> 01:29:01.590
the legislature's prerogative, constitutional right there?
1579
01:29:02.740 --> 01:29:05.070
That is our view, Your Honor, and that's one
1580
01:29:05.070 --> 01:29:09.530
among several reasons why mandatory minimums were carved out
1581
01:29:09.530 --> 01:29:11.180
of the report and recommendation.
1582
01:29:12.210 --> 01:29:13.760
That's all I have, thank you.
1583
01:29:13.760 --> 01:29:14.800
I have no other questions.
1584
01:29:14.800 --> 01:29:16.240
Thank you, Mr. Haskell.
1585
01:29:16.240 --> 01:29:17.330
Thank you, Your Honor.
1586
01:29:17.330 --> 01:29:19.840
Mr. Sullivan, of the half of the trial court
1587
01:29:19.840 --> 01:29:20.673
and probation.
1588
01:29:26.490 --> 01:29:29.810
This is Dan Sullivan, I may place the Koi
1589
01:29:29.810 --> 01:29:34.650
I wanted to say first of all that we were participants in
1590
01:29:34.650 --> 01:29:37.610
the brief submitted by the Attorney General, as witnessed by
1591
01:29:37.610 --> 01:29:40.470
the fact that they were Chief Justices, and also the
1592
01:29:40.470 --> 01:29:44.170
Commissioner of probation who submitted affidavits that were
1593
01:29:44.170 --> 01:29:45.310
part of that brief.
1594
01:29:46.370 --> 01:29:50.430
Where we try company would be Attorney General is with
1595
01:29:50.430 --> 01:29:53.680
respect to the recommendation and report.
1596
01:29:53.680 --> 01:29:56.220
I just wanted to make a brief opening statement,
1597
01:29:56.220 --> 01:29:59.760
and I'll get to some specifics on that, so I'm appearing
1598
01:29:59.760 --> 01:30:02.330
today, not only for the chief justice to the trial court
1599
01:30:02.330 --> 01:30:05.442
office, also for the Chief Justices of the superior
1600
01:30:05.442 --> 01:30:09.080
district courts in the Boston Municipal Court, have
1601
01:30:09.080 --> 01:30:11.310
communicated with him in detail at length about this
1602
01:30:11.310 --> 01:30:14.070
proposed order and they're putting up objections
1603
01:30:14.070 --> 01:30:14.903
to the pros.
1604
01:30:14.903 --> 01:30:17.748
Two objections to the proposed order have been sustained,
1605
01:30:17.748 --> 01:30:22.325
and emphatic, justices understand and that this is an
1606
01:30:22.325 --> 01:30:25.580
emergency and they understand the concern for the welfare of
1607
01:30:25.580 --> 01:30:29.090
the inmates have been one crisis after another with a war
1608
01:30:29.090 --> 01:30:32.518
disease or natural disaster or any other disruption.
1609
01:30:32.518 --> 01:30:36.135
America is the combo of social and public welfare has been
1610
01:30:36.135 --> 01:30:38.670
anchored and sustained by community with to the rule of law
1611
01:30:38.670 --> 01:30:40.640
and the fundamental due process.
1612
01:30:40.640 --> 01:30:43.750
In support of us principles, I assert the critical need to
1613
01:30:43.750 --> 01:30:47.370
maintain the central goal of the trial judge, and he tested
1614
01:30:47.370 --> 01:30:50.850
me as a procedure and legal process, not only to protect the
1615
01:30:50.850 --> 01:30:53.750
rights of criminal defendants, but also to ensure the rule
1616
01:30:53.750 --> 01:30:55.310
of law is upheld.
1617
01:30:55.310 --> 01:30:57.890
The Chief Justice has recognized urgently the need
1618
01:30:57.890 --> 01:31:02.151
for all political expedition in granting the motion for
1619
01:31:02.151 --> 01:31:04.280
relief by inmates who are more susceptible to this lethal
1620
01:31:04.280 --> 01:31:05.910
virus than others.
1621
01:31:05.910 --> 01:31:08.350
The clock was conducted during rabbitry judicial and
1622
01:31:08.350 --> 01:31:11.227
personnel resources it must to ensuring that these inmates
1623
01:31:11.227 --> 01:31:13.020
notice or heard properly.
1624
01:31:13.910 --> 01:31:16.446
The Chief Justice at all showed me that this is already
1625
01:31:16.446 --> 01:31:17.620
happening.
1626
01:31:17.620 --> 01:31:20.492
These matters are currently being heard often within 24
1627
01:31:20.492 --> 01:31:25.492
hours of being filed, 2020 to specifics.
1628
01:31:26.751 --> 01:31:31.751
The first thing I want to address with the police option we
1629
01:31:31.820 --> 01:31:36.820
had we disagree with this production and we had proposed to
1630
01:31:37.560 --> 01:31:40.850
the central master that rather than it being a presumption
1631
01:31:40.850 --> 01:31:42.250
that the person that it means whether or not a person is
1632
01:31:42.250 --> 01:31:46.700
eligible to be released to.
1633
01:31:47.672 --> 01:31:50.100
The one of the problems,
1634
01:31:51.186 --> 01:31:52.080
[Machine speaking] Now joining.
1635
01:31:54.700 --> 01:31:58.810
One of the problems of 57 it takes away the trial
1636
01:31:58.810 --> 01:32:02.760
judges discretion, in many of these cases, there'll be a PFA
1637
01:32:02.760 --> 01:32:07.760
will be determination and in most cases, the the judge
1638
01:32:07.840 --> 01:32:12.840
granted bail, or has already been subject to a presumption
1639
01:32:14.610 --> 01:32:15.443
of innocence.
1640
01:32:16.496 --> 01:32:17.870
And that presumption was overcome for the person who had
1641
01:32:17.870 --> 01:32:20.380
been committed and now we're imposing here another
1642
01:32:20.380 --> 01:32:25.380
presumption on the on the chat with you in this motion.
1643
01:32:25.460 --> 01:32:29.510
So if we believe that there should be question for this
1644
01:32:29.510 --> 01:32:31.390
conference, Listen the trial court judges
1645
01:32:31.390 --> 01:32:32.840
to make those determinations.
1646
01:32:37.147 --> 01:32:39.747
Another point I want to make with the odd this is on
1647
01:32:41.140 --> 01:32:45.620
section 232C 3B which is on page five.
1648
01:32:45.620 --> 01:32:50.620
This refers to releases agreed upon
1649
01:32:50.800 --> 01:32:53.170
an agreed upon group of inmates.
1650
01:32:53.170 --> 01:32:56.070
This suggests a group motion to the primary trial judge to
1651
01:32:57.161 --> 01:33:00.450
rule on the short statement in support of the entire group.
1652
01:33:00.450 --> 01:33:03.660
The judges need to act on individual emotions and if any
1653
01:33:03.660 --> 01:33:08.470
panic about this, moving on behalf of the group of detainees
1654
01:33:08.470 --> 01:33:10.570
is exactly the kind of shortcut that will lead to
1655
01:33:10.570 --> 01:33:13.180
inadvertently releasing a person who has learned
1656
01:33:13.180 --> 01:33:15.340
capable of committing violent crime.
1657
01:33:15.340 --> 01:33:18.190
But in nature individuals, they're not fungible.
1658
01:33:18.190 --> 01:33:20.820
The fact that an inmate suffers from diabetes does not mean
1659
01:33:20.820 --> 01:33:23.250
that he is any less capable of committing crimes, but an
1660
01:33:23.250 --> 01:33:24.550
inmate without diabetes.
1661
01:33:28.770 --> 01:33:31.300
The other point I want to make with it With respect to the
1662
01:33:31.300 --> 01:33:36.300
amount of bail, the idea of the 505,000 dollars bail, the
1663
01:33:36.680 --> 01:33:39.910
justices all notice that that is a very high amount.
1664
01:33:39.910 --> 01:33:43.710
They said because there are many dangerous criminals who,
1665
01:33:43.710 --> 01:33:48.710
who were committed based on a bail amount that that high.
1666
01:33:54.183 --> 01:33:55.980
And then the other point I wanted to make was
1667
01:33:58.000 --> 01:34:02.900
on the show on page five of the documents section to see for
1668
01:34:03.802 --> 01:34:07.550
the reference there that within five calendar days with the
1669
01:34:08.855 --> 01:34:10.872
disorder, the primary trial court judge will convene an
1670
01:34:10.872 --> 01:34:14.290
expedited short form video or telephonic conference, and the
1671
01:34:14.290 --> 01:34:16.620
justice is asked repeatedly.
1672
01:34:16.620 --> 01:34:21.620
What is meant by that the idea that they would be subject to
1673
01:34:23.660 --> 01:34:27.150
some limitation on a hearing, they still does not the judges
1674
01:34:27.150 --> 01:34:30.173
will have no interest in extending these hearings
1675
01:34:30.173 --> 01:34:34.130
or elaborating them unnecessarily.
1676
01:34:34.130 --> 01:34:36.660
And it just wasn't at all clear to them we raised this with
1677
01:34:36.660 --> 01:34:39.490
the special masters to what's form of what was meant by a
1678
01:34:39.490 --> 01:34:41.314
short form hearing.
1679
01:34:41.314 --> 01:34:43.090
Ordinarily the judge will hear what he needs to hear
1680
01:34:43.090 --> 01:34:45.120
in order to make a determination.
1681
01:34:53.250 --> 01:34:56.909
And then just one quick point on the review, the appellant
1682
01:34:56.909 --> 01:35:01.909
review, there's no standard provided as to what will be what
1683
01:35:01.990 --> 01:35:04.040
will be the case will be heard on appeal.
1684
01:35:07.924 --> 01:35:09.680
Okay,Justice Gaziano.
1685
01:35:11.410 --> 01:35:12.570
Good morning Mr Sulvan.
1686
01:35:12.570 --> 01:35:17.310
With solving with respect to the beginning I'll ask you the
1687
01:35:17.310 --> 01:35:21.550
same question I asked, concept of CPCs as far as that
1688
01:35:21.550 --> 01:35:25.000
process as contemplated by the special masters report, how
1689
01:35:25.000 --> 01:35:29.260
cumbersome or unwieldy with a with a trial judge find that
1690
01:35:29.260 --> 01:35:34.260
and I would bet served by by expedited motion practice like
1691
01:35:35.030 --> 01:35:35.863
we're used to.
1692
01:35:36.830 --> 01:35:40.070
That that's been very much the view of the the two
1693
01:35:40.070 --> 01:35:43.960
justices that they, they believe that they should be motion,
1694
01:35:43.960 --> 01:35:46.070
they understand that these will have to be on an expedited
1695
01:35:46.070 --> 01:35:48.440
basis, but they believe there should be motions.
1696
01:35:48.440 --> 01:35:51.350
One of the things that was mentioned was, at some some
1697
01:35:51.350 --> 01:35:55.370
point, this, this crisis will have passed, and it may be
1698
01:35:55.370 --> 01:36:00.070
necessary to reconstruct the reasons that the judge ruled as
1699
01:36:00.070 --> 01:36:02.311
he did on on such emotion.
1700
01:36:02.311 --> 01:36:06.370
It's, this is the kind of shortcutting that can seem to
1701
01:36:06.370 --> 01:36:11.030
continue to concern the most, such as a concern that if if
1702
01:36:11.030 --> 01:36:14.290
someone is released and committed a heinous crime, they will
1703
01:36:14.290 --> 01:36:17.110
come in it won't go back to the DA or it won't go back to
1704
01:36:17.110 --> 01:36:18.400
the members of the committee.
1705
01:36:18.400 --> 01:36:21.030
It will come back to the to the trial judge and the question
1706
01:36:21.030 --> 01:36:23.590
will be what did you know about this person when you
1707
01:36:23.590 --> 01:36:24.620
released them judge?
1708
01:36:24.620 --> 01:36:27.200
What, what, what what did you have before you and so for
1709
01:36:27.200 --> 01:36:30.230
that reason, the judge is very much one have to complete
1710
01:36:30.230 --> 01:36:32.240
information on people.
1711
01:36:32.240 --> 01:36:35.320
Now we worked with the special master and in footnote four
1712
01:36:35.320 --> 01:36:40.320
of his report, he identify some things that you in that
1713
01:36:40.600 --> 01:36:43.360
file, one of the things, though, that I mentioned that was
1714
01:36:43.360 --> 01:36:47.240
not included in that file was the requirement of plan of
1715
01:36:47.240 --> 01:36:50.210
release and this is very important information is very
1716
01:36:50.210 --> 01:36:54.030
strong on this as well, that that it can't be the language
1717
01:36:54.030 --> 01:36:59.030
that this the central master added to try to deal with that
1718
01:36:59.640 --> 01:37:02.660
said that the judge should have any material, any available
1719
01:37:02.660 --> 01:37:05.920
material on a plan of release, that's not sufficient, the
1720
01:37:05.920 --> 01:37:08.507
judges need to have a clear picture of
1721
01:37:08.507 --> 01:37:10.819
where this person is going.
1722
01:37:10.819 --> 01:37:15.560
It's often the experience that someone believes a friend or
1723
01:37:15.560 --> 01:37:18.920
relative is willing to take him or her in and in the event
1724
01:37:18.920 --> 01:37:20.850
that that doesn't occur.
1725
01:37:20.850 --> 01:37:23.290
And particularly now, when these people may be concerned,
1726
01:37:23.290 --> 01:37:25.590
the person being released may be contagious.
1727
01:37:25.590 --> 01:37:29.200
So we, I think it's absolutely important that a judge can be
1728
01:37:29.200 --> 01:37:32.705
able to see a patient release and no, this person is not
1729
01:37:32.705 --> 01:37:35.267
going to be released to roam the streets up now again,
1730
01:37:35.267 --> 01:37:37.580
Now exiting.
1731
01:37:37.580 --> 01:37:41.510
Potentially lapsing into addiction or coming
1732
01:37:41.510 --> 01:37:42.343
for the crimes.
1733
01:37:44.190 --> 01:37:46.320
Thank Sulvan and no further questions Chief.
1734
01:37:47.750 --> 01:37:49.620
Justice Lowy?
1735
01:37:49.620 --> 01:37:50.480
Sullivan good morning.
1736
01:37:50.480 --> 01:37:53.360
make some very, very important points.
1737
01:37:53.360 --> 01:37:58.050
I just want to pick up on the presumption issue.
1738
01:37:59.790 --> 01:38:04.790
It is true that that every judge who is ruled on a on a bail
1739
01:38:08.720 --> 01:38:11.450
has this not under 58 days has dealt
1740
01:38:12.305 --> 01:38:14.620
with the presumption of recording.
1741
01:38:14.620 --> 01:38:18.490
If they've imposed a bill made a determination that is the
1742
01:38:20.419 --> 01:38:22.500
presumption has been rebutted but not the judge.
1743
01:38:26.570 --> 01:38:31.570
Entertainment you have changed circumstances the document
1744
01:38:31.940 --> 01:38:36.940
does not dictate a decision before the trial judge,
1745
01:38:37.279 --> 01:38:42.279
rather, it seems to create another presumption based
1746
01:38:45.008 --> 01:38:46.808
on the obvious change circumstances.
1747
01:38:48.340 --> 01:38:52.843
Do you think that's really a deep concern nonetheless
1748
01:38:54.660 --> 01:38:55.760
to the trial judges?
1749
01:38:57.110 --> 01:38:59.490
I believe it is, Your Honor, if we're not saying
1750
01:38:59.490 --> 01:39:02.695
that that's not a consideration that the judge will take
1751
01:39:02.695 --> 01:39:04.110
into account, I'm sure the judges will.
1752
01:39:04.110 --> 01:39:06.920
But the idea that the judge should be able to make an
1753
01:39:06.920 --> 01:39:09.710
independent judgment he should be able to exercise his
1754
01:39:09.710 --> 01:39:13.740
or her discretion without being bitten by, as I say,
1755
01:39:13.740 --> 01:39:15.490
as a second presumption on top of the
1756
01:39:15.490 --> 01:39:16.890
presumption over cognizance.
1757
01:39:17.853 --> 01:39:22.330
Of course, every time a judge poses a bail, that
1758
01:39:22.330 --> 01:39:27.330
judge has taken into account the assumption but has had no
1759
01:39:29.380 --> 01:39:33.980
difficult doing his or her job and finding that despite the
1760
01:39:33.980 --> 01:39:38.790
presumption of bail's going to be imposed, I guess I'd
1761
01:39:38.790 --> 01:39:41.590
because I'm really concerned about all the points you've
1762
01:39:42.850 --> 01:39:44.963
made that they're very important for us to take into
1763
01:39:44.963 --> 01:39:48.739
account, they're important, but I don't see where this
1764
01:39:48.739 --> 01:39:53.739
presumption is sort of infused into the Masters report
1765
01:39:54.230 --> 01:39:59.230
and recommendation to take into account change circumstances
1766
01:39:59.722 --> 01:40:04.722
in any way can come, the judges enormous discretion.
1767
01:40:08.690 --> 01:40:10.550
I think it's, it's probably just an additional
1768
01:40:10.550 --> 01:40:13.310
pressure point for the judge to contend with, and what's
1769
01:40:13.310 --> 01:40:15.320
already a very difficult decision.
1770
01:40:15.320 --> 01:40:19.190
The idea I think, is that why would these individuals...
1771
01:40:19.190 --> 01:40:21.750
Now joining name not recorded.
1772
01:40:22.800 --> 01:40:26.370
Why would these individuals be presumed to be
1773
01:40:26.370 --> 01:40:30.960
releasable that just as I say, the fact that someone has an
1774
01:40:30.960 --> 01:40:34.188
underlying health condition doesn't make him necessarily
1775
01:40:34.188 --> 01:40:38.210
any less likely to to reoffend.
1776
01:40:39.210 --> 01:40:42.160
They feel this, wanting to many of the things I've said and
1777
01:40:43.343 --> 01:40:45.700
this has been a theme with the Chief Justice is that
1778
01:40:45.700 --> 01:40:48.880
judicial discretion is being impaired.
1779
01:40:48.880 --> 01:40:53.710
And what they said is, if the court elects to take away with
1780
01:40:53.710 --> 01:40:57.160
it like to take away our judicial discretion in making these
1781
01:40:57.160 --> 01:41:01.250
decisions, the court should issue its own order, authorizing
1782
01:41:01.250 --> 01:41:04.640
the release of anyone in these categories who's not subject
1783
01:41:04.640 --> 01:41:09.640
to more than 5,000 bail dollars and, you know, the idea
1784
01:41:10.710 --> 01:41:14.610
there is really that the judges see their role is making
1785
01:41:14.610 --> 01:41:17.300
these determinations and they wanna make them on a case by
1786
01:41:17.300 --> 01:41:21.500
case basis with all the necessary information so that they
1787
01:41:21.500 --> 01:41:24.360
will feel confident in releasing the person.
1788
01:41:25.620 --> 01:41:26.870
Thank you, Miss Sulvan.
1789
01:41:26.870 --> 01:41:27.980
Thank you, your Honor.
1790
01:41:29.490 --> 01:41:30.440
Justice Budd.
1791
01:41:31.860 --> 01:41:35.490
Hi, can you just give us a sense of how things are
1792
01:41:35.490 --> 01:41:36.323
working now?
1793
01:41:36.323 --> 01:41:39.250
You're you're advocating for a case by case.
1794
01:41:42.939 --> 01:41:47.470
Presentation without any presumptions on on any categories
1795
01:41:47.470 --> 01:41:49.810
of inmates.
1796
01:41:49.810 --> 01:41:54.740
So can you just give us a sense of how it's working now, and
1797
01:41:54.740 --> 01:41:57.470
stay in I'd like to hear about Superior Court and the
1798
01:41:57.470 --> 01:41:59.330
various district courts in DMC?
1799
01:42:00.600 --> 01:42:03.670
with the, the Chief Justice is a both the district
1800
01:42:03.670 --> 01:42:06.890
and District Court have told me this that these motions are
1801
01:42:06.890 --> 01:42:10.390
being promptly heard that there hasn't been a wait for
1802
01:42:10.390 --> 01:42:12.088
someone to be heard.
1803
01:42:12.088 --> 01:42:13.720
The judges understand this is a very emergency and that
1804
01:42:13.720 --> 01:42:15.590
these are emergency emotions.
1805
01:42:15.590 --> 01:42:18.710
So they have been hearing them and I don't think it's
1806
01:42:18.710 --> 01:42:21.280
accurate that there's been delay.
1807
01:42:21.280 --> 01:42:23.320
As far as I know, in the hearing of any of these motions.
1808
01:42:23.320 --> 01:42:26.974
I heard one motion in Superior Court in western county where
1809
01:42:26.974 --> 01:42:31.126
it was, the judge said he wanted to await the the
1810
01:42:31.126 --> 01:42:35.106
determination of this court based on this, this hearing.
1811
01:42:35.106 --> 01:42:38.410
But I as far as I understand, he was instructed that he
1812
01:42:38.410 --> 01:42:40.750
should move on on the pending motion.
1813
01:42:40.750 --> 01:42:43.470
We want to get through these and that's really the goal.
1814
01:42:43.470 --> 01:42:46.770
And that's why I say, Justice by them that we will really
1815
01:42:46.770 --> 01:42:50.040
devote whatever resources are necessary to doing that and we
1816
01:42:50.040 --> 01:42:53.560
recognize I don't, we're not expecting people to draft
1817
01:42:53.560 --> 01:42:56.632
elaborate motions, I understand that the motions may be
1818
01:42:56.632 --> 01:43:00.940
almost a template with a site, the grounds for release.
1819
01:43:01.880 --> 01:43:06.182
And but at the same time, as I mentioned earlier, the judge
1820
01:43:06.182 --> 01:43:08.700
the judge, judges very much want to be able to look at a
1821
01:43:08.700 --> 01:43:12.440
record and to know who the person is, what his history is,
1822
01:43:12.440 --> 01:43:17.401
you know, even what his what his behavior has been, while
1823
01:43:17.401 --> 01:43:20.430
imprisoned, they don't feel comfortable signing release
1824
01:43:20.430 --> 01:43:22.730
orders without having that level of knowledge.
1825
01:43:25.461 --> 01:43:28.603
Do you have any statistics on how many petitions
1826
01:43:31.560 --> 01:43:34.150
our hearings have been requested so far.
1827
01:43:35.751 --> 01:43:37.660
I don't I know there was some of that material.
1828
01:43:37.660 --> 01:43:41.282
You are in the in the affidavits that were submitted with,
1829
01:43:41.282 --> 01:43:44.110
with the brief in which we joined with the Attorney General.
1830
01:43:44.110 --> 01:43:47.530
That was that's the best, the best that we have today
1831
01:43:47.530 --> 01:43:50.530
is to the extent that we were able to some of the chief
1832
01:43:50.530 --> 01:43:53.095
justice was able to give those numbers I know, for example,
1833
01:43:53.095 --> 01:43:54.695
the Juvenile Court Chief Justice
1834
01:43:55.719 --> 01:43:56.820
was very specific about the numbers.
1835
01:43:56.820 --> 01:43:58.700
And I think the district court did a pretty good job
1836
01:43:58.700 --> 01:43:59.810
on that as well.
1837
01:43:59.810 --> 01:44:01.469
Okay.
1838
01:44:01.469 --> 01:44:06.173
And then is there any any part of the special masters
1839
01:44:07.470 --> 01:44:12.470
recommendation that the trial judges feel like might not be
1840
01:44:12.770 --> 01:44:13.603
a bad idea?
1841
01:44:20.716 --> 01:44:24.050
Though, to the extent that it is constitutional, and
1842
01:44:24.050 --> 01:44:29.050
I defer to the court on that the idea of using a modified
1843
01:44:30.940 --> 01:44:32.340
version of rule 29.
1844
01:44:33.740 --> 01:44:38.090
I think struck the justices is not an appropriate approach.
1845
01:44:39.356 --> 01:44:43.300
So I think that, you know, I'm assuming that moon could be
1846
01:44:43.300 --> 01:44:45.920
modified even on a temporary basis.
1847
01:44:45.920 --> 01:44:48.820
And I wonder if I wonder if that really wouldn't be an
1848
01:44:48.820 --> 01:44:51.580
approach that would even apply could even be applied?
1849
01:44:53.872 --> 01:44:57.590
Well, I would think approach could be applied broadly.
1850
01:44:58.870 --> 01:45:00.240
Okay, thank you so much.
1851
01:45:00.240 --> 01:45:02.120
Thank you, Your Honor.
1852
01:45:02.120 --> 01:45:03.370
Justice Kafker.
1853
01:45:05.130 --> 01:45:08.345
Hey, hey prompting me for capture again.
1854
01:45:08.345 --> 01:45:12.410
I'm sorry.
1855
01:45:15.500 --> 01:45:19.720
Mr. sulvan can you tell me you know, I understand you don't
1856
01:45:20.858 --> 01:45:23.758
have any record of anybody not being able to get a hearing
1857
01:45:24.852 --> 01:45:27.252
or anything like that, but we're hearing about that.
1858
01:45:27.252 --> 01:45:28.750
But that would be by its nature, something you would not
1859
01:45:28.750 --> 01:45:30.650
necessarily hear about.
1860
01:45:30.650 --> 01:45:35.500
So what, what steps can the trial court take to address the
1861
01:45:35.500 --> 01:45:40.500
specific concerns of CPCs and knakal about this difficulty
1862
01:45:40.720 --> 01:45:43.450
they perceive and getting hearing sometimes, is there a
1863
01:45:43.450 --> 01:45:47.137
central location you can set up for them to to make a
1864
01:45:47.137 --> 01:45:48.800
request or complaint?
1865
01:45:50.550 --> 01:45:53.410
Well, I think in terms of handling the volume, that
1866
01:45:53.410 --> 01:45:58.410
I wouldn't want good judicial resources devoted to this to
1867
01:45:58.570 --> 01:45:59.550
be restricted.
1868
01:46:00.470 --> 01:46:03.780
In fact, Chief Justice Scalia, and said community, he
1869
01:46:03.780 --> 01:46:06.580
thought that there should be a designated judge in each
1870
01:46:06.580 --> 01:46:08.730
district court to have all these petitions.
1871
01:46:09.810 --> 01:46:14.210
So that's really where they and I should say, in terms of
1872
01:46:14.210 --> 01:46:16.140
saying they haven't been any emotion escalate.
1873
01:46:16.140 --> 01:46:21.140
I know that I believe that the Chief Justice Dolly, and one
1874
01:46:21.180 --> 01:46:24.140
of the other justices have both been in touch with the
1875
01:46:24.140 --> 01:46:26.900
leadership at CPCs and affects them work.
1876
01:46:26.900 --> 01:46:29.610
We understand this is an emergency if you find your people
1877
01:46:29.610 --> 01:46:31.880
are being to made it let us know.
1878
01:46:33.562 --> 01:46:35.280
And and at the point when those questions were asked, at
1879
01:46:36.928 --> 01:46:39.445
least, the leadership said no, as far as we know, right now
1880
01:46:39.445 --> 01:46:40.626
we're in good shape.
1881
01:46:40.626 --> 01:46:44.470
So, but I do think that this is something that will require
1882
01:46:44.470 --> 01:46:48.080
a tremendous amount of judicial resources and the judges are
1883
01:46:48.080 --> 01:46:51.600
all ready obviously, these hearings would have to be
1884
01:46:51.600 --> 01:46:52.900
telephonic, like this one.
1885
01:46:54.053 --> 01:46:58.010
But I think that all hands will be on deck, Your Honor, in
1886
01:46:58.010 --> 01:47:02.665
terms of get getting these matters heard.
1887
01:47:02.665 --> 01:47:05.180
You know, as I say, I think it's gonna be an expedited
1888
01:47:05.180 --> 01:47:07.770
process, but I think there needs to be a process.
1889
01:47:09.100 --> 01:47:11.190
Okay, thank you one more question.
1890
01:47:11.190 --> 01:47:14.700
And that is going back to this idea of a presumption.
1891
01:47:14.700 --> 01:47:17.210
You're suggesting that first you deem somebody to be
1892
01:47:17.210 --> 01:47:21.250
eligible, rather than determined that they are presumptively
1893
01:47:21.250 --> 01:47:22.660
eligible is that correct?
1894
01:47:22.660 --> 01:47:23.493
That's correct.
1895
01:47:23.493 --> 01:47:25.970
We that would that have been our recommendation, this
1896
01:47:25.970 --> 01:47:29.500
session has actually adopted that and then as a consequence
1897
01:47:29.500 --> 01:47:30.333
of push back.
1898
01:47:31.640 --> 01:47:34.870
I believe he went back to the presumption but and I
1899
01:47:34.870 --> 01:47:37.650
understand that and I should say the special master and his
1900
01:47:37.650 --> 01:47:41.330
colleagues have been done a masterful job of handling all
1901
01:47:41.330 --> 01:47:43.870
the contending parties here.
1902
01:47:43.870 --> 01:47:48.540
But that we do feel strongly that that that that presumption
1903
01:47:48.540 --> 01:47:51.830
that the person should be released puts an undue burden upon
1904
01:47:51.830 --> 01:47:54.060
the judges discretion.
1905
01:47:55.710 --> 01:47:59.740
And then, so so so if we don't have a presumption
1906
01:47:59.740 --> 01:48:04.580
to start with that a certain categories are presumed to be
1907
01:48:04.580 --> 01:48:05.413
releasable.
1908
01:48:06.650 --> 01:48:09.810
We would say let's determine let the trial court determine
1909
01:48:09.810 --> 01:48:13.460
whether they are in that category of releasable.
1910
01:48:13.460 --> 01:48:16.160
And then from there determine whether in fact they should be
1911
01:48:16.160 --> 01:48:17.460
released, is that correct?
1912
01:48:19.521 --> 01:48:23.256
Well, I mean, I would think based on the work of the
1913
01:48:23.256 --> 01:48:26.034
committee's the degree will be determined to be eligible to
1914
01:48:26.034 --> 01:48:29.830
be released, but then the judge needs to look at this
1915
01:48:29.830 --> 01:48:33.310
specifics of the case he needs to look at and we would have
1916
01:48:33.310 --> 01:48:36.690
and we propose this a, basically a uniform file that would
1917
01:48:36.690 --> 01:48:39.800
be put together that would include the, you know, the carry
1918
01:48:39.800 --> 01:48:42.000
and various other as a police report the underlying
1919
01:48:42.000 --> 01:48:45.870
complaint, for example, any critical documents, as I
1920
01:48:45.870 --> 01:48:50.170
mentioned, the plan for, for the person some living
1921
01:48:50.170 --> 01:48:52.500
conditions after he or he is released.
1922
01:48:52.500 --> 01:48:56.520
So with with that packet, I think if you would be able to
1923
01:48:56.520 --> 01:48:59.710
move there was one other point I wanted to make, that there
1924
01:48:59.710 --> 01:49:04.252
was a suggestion that someone could be about people being
1925
01:49:04.252 --> 01:49:06.980
released without a hearing.
1926
01:49:06.980 --> 01:49:11.180
And I think it's critical that if a judge is going to apply
1927
01:49:11.180 --> 01:49:13.870
new conditions to an individual, if someone had already been
1928
01:49:13.870 --> 01:49:16.880
on probation and had conditions set, you know, those would
1929
01:49:16.880 --> 01:49:18.020
remain in place.
1930
01:49:18.020 --> 01:49:21.405
But if the judge believed it was necessary to set new
1931
01:49:21.405 --> 01:49:23.944
conditions, it would I think, I would think the judge would
1932
01:49:23.944 --> 01:49:25.010
need to have a hearing.
1933
01:49:25.010 --> 01:49:27.500
So I don't I didn't like the idea of saying that the
1934
01:49:27.500 --> 01:49:31.890
district attorney will make a determination and then the
1935
01:49:31.890 --> 01:49:34.090
judge should just grant this without a hearing, I think the
1936
01:49:34.090 --> 01:49:36.770
judge should determine whether or not a hearing is called or
1937
01:49:36.770 --> 01:49:37.670
in any given case.
1938
01:49:38.650 --> 01:49:41.250
And and so if the parties were in agreement, if
1939
01:49:41.250 --> 01:49:45.250
it's CPCs, and the A's were in agreement on a particular
1940
01:49:45.250 --> 01:49:49.479
case, you see a role for the trial judge to still make at
1941
01:49:49.479 --> 01:49:51.480
have conducted an active hearing.
1942
01:49:52.470 --> 01:49:54.500
What he wouldn't necessarily conduct the hearing.
1943
01:49:54.500 --> 01:49:55.851
I think in many instances, Your Honor, these will be these
1944
01:49:55.851 --> 01:50:00.480
matters will be decided by a judge on on the as I say, on
1945
01:50:00.480 --> 01:50:03.146
this kind of basic file that would have to be provided in
1946
01:50:03.146 --> 01:50:05.420
each case.
1947
01:50:05.420 --> 01:50:09.860
But my my point was that the judge, in his discretion,
1948
01:50:11.234 --> 01:50:13.120
determined that I need to hear hear something on that
1949
01:50:13.120 --> 01:50:14.980
there's something in the file that catches his eyes.
1950
01:50:14.980 --> 01:50:16.700
I want to hear more about that.
1951
01:50:16.700 --> 01:50:19.900
I think that there shouldn't be a case where the judge is
1952
01:50:19.900 --> 01:50:22.684
told you have to decide on the papers and you can't schedule
1953
01:50:22.684 --> 01:50:25.000
a hearing irrespective of what you may think.
1954
01:50:26.430 --> 01:50:27.930
Okay, thank you.
1955
01:50:27.930 --> 01:50:29.850
Thank you very much.
1956
01:50:29.850 --> 01:50:32.170
Now Justice Kafker.
1957
01:50:32.170 --> 01:50:35.880
So I understand, you know, and I totally respect
1958
01:50:35.880 --> 01:50:39.180
that the chiefs are working tirelessly and all the judges as
1959
01:50:39.180 --> 01:50:43.300
well to expedite these proceedings and that seems to be
1960
01:50:43.300 --> 01:50:46.550
supported by the affidavits we have here.
1961
01:50:46.550 --> 01:50:51.550
But I guess, consistency is one of the issues that we're
1962
01:50:52.179 --> 01:50:54.620
dealing with here.
1963
01:50:54.620 --> 01:50:59.620
I take it that, that your clients want nothing to be done
1964
01:51:01.190 --> 01:51:03.010
differently than what they're doing right now.
1965
01:51:03.010 --> 01:51:04.240
Is that correct?
1966
01:51:04.240 --> 01:51:08.970
You want us to basically do none of this will work?
1967
01:51:08.970 --> 01:51:11.740
Well, I don't think that that's accurate.
1968
01:51:11.740 --> 01:51:14.840
I mean, as I say, we're talking about a specific file that
1969
01:51:14.840 --> 01:51:17.910
will be provided that these these matters would be written
1970
01:51:17.910 --> 01:51:20.040
on an expedited basis.
1971
01:51:20.040 --> 01:51:23.770
I don't, we don't, we don't disagree with the idea that
1972
01:51:23.770 --> 01:51:25.510
things have to be done quickly.
1973
01:51:25.510 --> 01:51:28.638
What what the disagreement, I think is the idea that the
1974
01:51:28.638 --> 01:51:33.600
judges should Moving on, on group motions, the judges should
1975
01:51:33.600 --> 01:51:37.030
be required to presume that the person is releasable that in
1976
01:51:37.030 --> 01:51:41.300
any other way judges discretion should be infringed because
1977
01:51:41.300 --> 01:51:44.760
that discretion has served us well for
1978
01:51:44.760 --> 01:51:46.230
many hundreds of years.
1979
01:51:46.230 --> 01:51:50.110
And we believe that that's an important principle of our
1980
01:51:50.110 --> 01:51:52.600
system of justice and that's really where I think the Chief
1981
01:51:52.600 --> 01:51:54.330
Justice has come down.
1982
01:51:55.310 --> 01:51:56.790
I'm, I'm confused.
1983
01:51:56.790 --> 01:52:00.720
So I understand, I just want to make, again, I'm caught up
1984
01:52:01.788 --> 01:52:04.810
in, you know, practical realities and specifics.
1985
01:52:04.810 --> 01:52:09.640
So the chief, the courts, the judges now are, in your view,
1986
01:52:09.640 --> 01:52:13.180
are expediting all of these hearings at doing everything
1987
01:52:13.180 --> 01:52:15.020
humanly possible.
1988
01:52:15.020 --> 01:52:18.642
They're also doing them often by video conference or
1989
01:52:18.642 --> 01:52:20.890
telephonically, is that correct?
1990
01:52:21.810 --> 01:52:25.141
My understanding is that the extent to the extent to
1991
01:52:25.141 --> 01:52:26.200
their hearing matters now.
1992
01:52:26.200 --> 01:52:31.040
I believe that in most instances heard they're being heard
1993
01:52:32.307 --> 01:52:33.140
telephonically.
1994
01:52:33.140 --> 01:52:36.430
I'm trying to understand what's different,
1995
01:52:36.430 --> 01:52:39.140
I understand you don't like this presumption which doesn't
1996
01:52:39.140 --> 01:52:41.530
seem, by the way very difficult to rebut.
1997
01:52:42.408 --> 01:52:47.408
And I, you seem to have a problem with page four, paragraph
1998
01:52:47.537 --> 01:52:50.426
five, paragraph four.
1999
01:52:50.426 --> 01:52:55.010
That is expedited hearing, but aren't we conducting these
2000
01:52:55.010 --> 01:52:56.890
expedited hearing?
2001
01:52:56.890 --> 01:52:57.723
I just don't,
2002
01:52:58.685 --> 01:53:02.200
what's the difference between, what's being proposed in
2003
01:53:02.200 --> 01:53:04.130
paragraph four, and from what is actually happening?
2004
01:53:04.130 --> 01:53:07.140
And I want you to, I know you're upset by this, but I want
2005
01:53:08.228 --> 01:53:11.780
you to be specific to what, what is that you're doing
2006
01:53:12.990 --> 01:53:15.600
differently than what they're requiring here?
2007
01:53:16.580 --> 01:53:17.480
Or proposing here?
2008
01:53:19.500 --> 01:53:22.680
How I would do with respect to the conduct of the
2009
01:53:22.680 --> 01:53:27.350
hearing, I think, probably very, very little is being done
2010
01:53:27.350 --> 01:53:28.380
any differently.
2011
01:53:28.380 --> 01:53:31.050
I have raised the issue of what's the show proform hearing I
2012
01:53:31.050 --> 01:53:34.200
mean, don't again, don't be interfering with the judges
2013
01:53:34.200 --> 01:53:36.160
discretion but I think that this is precisely what these
2014
01:53:36.160 --> 01:53:38.020
judges are doing right now.
2015
01:53:38.020 --> 01:53:41.280
Okay, so then again, let me go back to paragraph,
2016
01:53:41.280 --> 01:53:44.848
the paragraph about the presumption for a second, because
2017
01:53:44.848 --> 01:53:47.170
it's just as long we point out to you, we've got a
2018
01:53:47.170 --> 01:53:49.460
presumption for cognizance anyway.
2019
01:53:50.420 --> 01:53:55.420
We also have a dramatically new fact, which is, we've got a
2020
01:53:57.940 --> 01:54:02.940
dangerous situation jails because of the Corona virus.
2021
01:54:04.720 --> 01:54:09.310
So again, how how much different in the real world is this
2022
01:54:09.310 --> 01:54:12.150
proposal than what is actually being done here?
2023
01:54:13.091 --> 01:54:18.091
And doesn't just provide a focal point if we change the word
2024
01:54:19.592 --> 01:54:22.730
presumption that these people shall be, you know, given high
2025
01:54:22.730 --> 01:54:27.090
priority, I'm just trying to understand you know, we need
2026
01:54:27.090 --> 01:54:31.050
some consistency and some urgency and, again, I'm not
2027
01:54:31.050 --> 01:54:35.577
exactly sure what's bothering you besides removing some
2028
01:54:36.730 --> 01:54:38.500
perception of discretion.
2029
01:54:38.500 --> 01:54:43.130
So they articulate specifically the practical impediments
2030
01:54:43.970 --> 01:54:46.130
for judges and I don't want to get in the way of trial
2031
01:54:46.130 --> 01:54:48.240
judges doing their job correctly here.
2032
01:54:49.620 --> 01:54:54.620
But I also don't want to turn quarter word raises into
2033
01:54:55.980 --> 01:54:58.979
obstacles when they don't change what they're actually
2034
01:54:58.979 --> 01:55:03.979
doing.
2035
01:55:06.323 --> 01:55:08.120
A couple things this idea of
2036
01:55:08.120 --> 01:55:11.308
group motion is, is inactive
2037
01:55:11.308 --> 01:55:14.750
Where in the order I'll be talking about motions?
2038
01:55:14.750 --> 01:55:16.897
Hang on a second.
2039
01:55:30.757 --> 01:55:34.174
This is on page five, at the lowercase P,
2040
01:55:40.173 --> 01:55:41.520
with respect to any inmates for whom the parties agree
2041
01:55:41.520 --> 01:55:44.436
relief is appropriate a specific party shall provide the
2042
01:55:44.436 --> 01:55:48.020
judge with a short statement in support of the lease of the
2043
01:55:48.020 --> 01:55:49.760
agreed upon group of inmates.
2044
01:55:52.610 --> 01:55:55.650
The project will expeditiously act on the recommendation
2045
01:55:55.650 --> 01:55:56.980
without closing hearing.
2046
01:55:56.980 --> 01:56:00.690
So again, both those group of inmates and we're also hearing
2047
01:56:00.690 --> 01:56:01.740
both of those things.
2048
01:56:02.755 --> 01:56:06.760
We, we believe that these matters should be heard or ruled
2049
01:56:06.760 --> 01:56:10.160
upon in many cases on the papers individually.
2050
01:56:11.175 --> 01:56:14.350
And we don't think the judge should be constrained from
2051
01:56:14.350 --> 01:56:18.470
conducting a hearing if he or she determines that a hearing
2052
01:56:18.470 --> 01:56:20.040
is necessary.
2053
01:56:20.040 --> 01:56:21.167
Thanks.
2054
01:56:21.167 --> 01:56:22.000
Did you read the last call?
2055
01:56:22.000 --> 01:56:23.513
Yeah, no, that's right.
2056
01:56:23.513 --> 01:56:24.550
So that that part of this okay.
2057
01:56:24.550 --> 01:56:27.930
So, but that means the primary trial court judge
2058
01:56:27.930 --> 01:56:31.270
can individualize every single one of those if he or she
2059
01:56:31.270 --> 01:56:32.103
wants, right?
2060
01:56:34.210 --> 01:56:35.680
Well, I'm concerned about the lines of a group
2061
01:56:35.680 --> 01:56:37.120
hearing.
2062
01:56:37.120 --> 01:56:38.600
Okay, all right.
2063
01:56:38.600 --> 01:56:39.433
You don't like that?
2064
01:56:39.433 --> 01:56:40.520
I see your Honor.
2065
01:56:42.229 --> 01:56:44.190
On other specifics that are going to
2066
01:56:44.190 --> 01:56:47.730
fundamentally or significantly change with the trial judges
2067
01:56:47.730 --> 01:56:49.037
are doing right now.
2068
01:56:52.852 --> 01:56:56.260
I know to be honest with you, I know that on the on
2069
01:56:56.260 --> 01:57:01.260
the the deadline that we submitted a previous version of
2070
01:57:02.585 --> 01:57:06.380
this order, we had many comments and proposed revisions,
2071
01:57:06.380 --> 01:57:10.120
many of which weren't weren't adopted, but I can't, I can't,
2072
01:57:10.120 --> 01:57:13.370
I think those are the critic, critical points, Your Honor.
2073
01:57:13.370 --> 01:57:14.560
Okay.
2074
01:57:14.560 --> 01:57:16.210
Sorry, what's the critical point?
2075
01:57:18.160 --> 01:57:19.330
What is the critical point?
2076
01:57:19.330 --> 01:57:23.850
Well, I think the idea that this process will
2077
01:57:23.850 --> 01:57:26.840
interfere in some way with a judge's exercise of his
2078
01:57:26.840 --> 01:57:30.670
discretion, whether the judge will be required to rule
2079
01:57:30.670 --> 01:57:34.900
Without adequate information without hearing what he needs
2080
01:57:34.900 --> 01:57:35.733
to hear.
2081
01:57:36.570 --> 01:57:40.480
So that's I mean, I think that's really they came back again
2082
01:57:40.480 --> 01:57:44.390
and again, to the impairment of discretion.
2083
01:57:44.390 --> 01:57:48.870
Now, you know, it, there may be ways in which is impaired
2084
01:57:48.870 --> 01:57:52.080
that I haven't described but that seems to be the concern
2085
01:57:52.080 --> 01:57:56.040
and I've tried to identify the ones where it that they
2086
01:57:56.040 --> 01:58:00.350
pointed to as indication indicating some constraint upon
2087
01:58:00.350 --> 01:58:04.470
their constraint upon their discretion.
2088
01:58:05.810 --> 01:58:07.600
Thank you Mr Sulvan and that's all I have.
2089
01:58:07.600 --> 01:58:08.720
Thank you, Your Honor.
2090
01:58:10.310 --> 01:58:12.500
Mr Salva this is chief Justice Gants.
2091
01:58:13.580 --> 01:58:17.143
Certainly I understand the extent to which both the trail
2092
01:58:17.143 --> 01:58:20.370
core chiefs and each of the judges and the clerks have been
2093
01:58:20.370 --> 01:58:24.110
trying during these challenging times to accomplish as much
2094
01:58:24.110 --> 01:58:26.950
justice as possible, but I want to and I certainly
2095
01:58:26.950 --> 01:58:30.660
understand the idea that a judge does not wants to make sure
2096
01:58:30.660 --> 01:58:33.790
that before he or she makes a decision that the person has
2097
01:58:34.840 --> 01:58:37.530
the information before him or her to make sure it's the
2098
01:58:37.530 --> 01:58:38.420
correct decision.
2099
01:58:38.420 --> 01:58:42.400
But I have to make sure that I flesh out some of the
2100
01:58:42.400 --> 01:58:43.800
thoughts that you presented.
2101
01:58:46.430 --> 01:58:51.430
You spoke about the standard being eligibility for release,
2102
01:58:52.570 --> 01:58:56.540
but can't any person who was on bail seek bail
2103
01:58:56.540 --> 01:58:59.120
reconsideration based on change circumstances isn't every
2104
01:58:59.120 --> 01:59:00.520
person eligible for release?
2105
01:59:01.730 --> 01:59:04.350
Right, so I think the idea there you are, is that
2106
01:59:04.350 --> 01:59:07.730
you're saying that these conditions that have been
2107
01:59:07.730 --> 01:59:12.090
described, you know, the person is over 60 the person has an
2108
01:59:12.090 --> 01:59:13.890
underlying health condition and so forth.
2109
01:59:13.890 --> 01:59:18.890
Those are things that would require make the person deemed
2110
01:59:20.070 --> 01:59:22.290
if you will eligible to be released.
2111
01:59:22.290 --> 01:59:23.123
Obviously, it doesn't mean .
2112
01:59:23.123 --> 01:59:27.390
Any person may move to reconsider bail, especially
2113
01:59:27.390 --> 01:59:29.610
with a change in circumstances don't you agree?
2114
01:59:29.610 --> 01:59:32.034
Have to perhaps there's a different way to describe
2115
01:59:32.034 --> 01:59:34.456
that, I know the objection was to a presumption
2116
01:59:34.456 --> 01:59:36.130
they're more than happy.
2117
01:59:36.130 --> 01:59:41.130
And they, I think daily now consider all the factors that
2118
01:59:41.210 --> 01:59:44.080
are raised by the by the crisis.
2119
01:59:44.080 --> 01:59:48.310
But they seem to feel that that when this came particularly
2120
01:59:48.310 --> 01:59:51.560
from the Chief Justice District Court, that this discretion,
2121
01:59:51.560 --> 01:59:54.240
this was an impairment of their discretion, that the judge
2122
01:59:54.240 --> 01:59:57.410
is going to be making a decision that could have very
2123
01:59:57.410 --> 01:59:59.771
serious consequences down the road, and that the judge
2124
01:59:59.771 --> 02:00:03.913
should be his he should be relied upon His judgment,
2125
02:00:03.913 --> 02:00:06.809
or her judgment should be relied upon, without burdening it
2126
02:00:06.809 --> 02:00:09.720
with a presumption in one way or another.
2127
02:00:11.160 --> 02:00:12.580
Let's, let's flush that out.
2128
02:00:12.580 --> 02:00:15.760
I mean, you agree that the bail decision itself is
2129
02:00:17.773 --> 02:00:21.443
considerably constrained by both statutory conditions and
2130
02:00:21.443 --> 02:00:25.840
conditions established under our case law correct?
2131
02:00:26.700 --> 02:00:28.089
Right.
2132
02:00:28.089 --> 02:00:30.989
I mean, the presumption of releases that taury a
2133
02:00:32.100 --> 02:00:35.120
judge is obligated to consider ability to pay that
2134
02:00:35.120 --> 02:00:36.240
constitutional.
2135
02:00:37.470 --> 02:00:41.840
There are a number of things which a judge is so called
2136
02:00:41.840 --> 02:00:45.600
discretion is limited because the judge has to apply certain
2137
02:00:47.269 --> 02:00:49.480
standards, both constitutional, statutory and based in case
2138
02:00:49.480 --> 02:00:50.460
law, correct?
2139
02:00:50.460 --> 02:00:51.570
Right.
2140
02:00:51.570 --> 02:00:56.550
So helped me to understand the concern about the
2141
02:00:57.879 --> 02:00:59.980
loss of discretion, would you consider it to be appropriate
2142
02:00:59.980 --> 02:01:04.270
for a judge or within the judges appropriate discretion to
2143
02:01:04.270 --> 02:01:08.060
say, I don't care about the pandemic, I think it is an
2144
02:01:08.060 --> 02:01:11.300
irrelevant consideration and it does not be or it doesn't it
2145
02:01:11.300 --> 02:01:12.750
does not constitute a change.
2146
02:01:13.747 --> 02:01:15.760
In circumstances, which should even be considered?
2147
02:01:15.760 --> 02:01:16.860
No I wouldn't.
2148
02:01:18.082 --> 02:01:20.800
And I'm confident that the judges would monitor
2149
02:01:22.039 --> 02:01:24.060
should you say what standard, should you say we should apply
2150
02:01:24.060 --> 02:01:28.460
to provide guidance to a judge if that would be an
2151
02:01:28.460 --> 02:01:31.430
inappropriate exercise of discretion?
2152
02:01:31.430 --> 02:01:35.020
But these are critical factors to be considered and
2153
02:01:35.020 --> 02:01:36.990
that's the West why saying that they need all the
2154
02:01:36.990 --> 02:01:38.100
necessary information.
2155
02:01:38.100 --> 02:01:42.050
I think this this all goes goes into the into the calculus,
2156
02:01:42.050 --> 02:01:45.860
Your Honor, but and that's, that's really something but
2157
02:01:45.860 --> 02:01:49.080
that's really something for the judge to sort for throw as
2158
02:01:49.080 --> 02:01:52.240
they do, as you say, on bail determinations generally.
2159
02:01:53.100 --> 02:01:55.229
Okay, I'm trying to understand how different it
2160
02:01:55.229 --> 02:01:59.260
would be for us to say these are, quote, critical factors,
2161
02:01:59.260 --> 02:02:02.899
unquote, as opposed to under certain circumstances.
2162
02:02:02.899 --> 02:02:07.090
This is a presumption which can be rebutted based on other
2163
02:02:07.090 --> 02:02:10.012
circumstances what what is the practical difference between
2164
02:02:10.012 --> 02:02:12.050
those two?
2165
02:02:12.050 --> 02:02:16.950
Well, indeed the notion is that in a way, suggests
2166
02:02:16.950 --> 02:02:19.373
the thumb on the scale, Your Honor, that,
2167
02:02:19.373 --> 02:02:23.444
that they should be able to make these decisions without any
2168
02:02:23.444 --> 02:02:25.908
pressure one way or another, based on the facts before them.
2169
02:02:25.908 --> 02:02:29.417
But you just said that, I mean, is it unfair
2170
02:02:29.417 --> 02:02:33.990
pressure to say that these are critical factors?
2171
02:02:33.990 --> 02:02:34.823
Oh, I don't believe so.
2172
02:02:34.823 --> 02:02:38.430
I think that the changing language may be may be sufficient.
2173
02:02:38.430 --> 02:02:41.020
I, you know, what I think was bogged down was the idea of a
2174
02:02:41.020 --> 02:02:41.853
presumption.
2175
02:02:44.710 --> 02:02:49.710
Okay, Now, in terms of would it not be in most
2176
02:02:51.540 --> 02:02:53.770
certainly in Superior Court, which of course are the most
2177
02:02:54.722 --> 02:02:57.146
familiar with, we have a first session where all matters
2178
02:02:57.146 --> 02:03:01.270
would go to and we have an efficient way to deal with a
2179
02:03:01.270 --> 02:03:03.137
whole set of matters.
2180
02:03:03.137 --> 02:03:06.202
Is there any now ...
2181
02:03:06.202 --> 02:03:07.920
Now exiting
2182
02:03:09.300 --> 02:03:11.520
Is there any concern in the trial court for having
2183
02:03:11.520 --> 02:03:15.800
the equivalent essentially have a first session of a judge
2184
02:03:15.800 --> 02:03:19.700
who's going to be assigned to address these matters?
2185
02:03:19.700 --> 02:03:20.769
No.
2186
02:03:20.769 --> 02:03:24.660
So it's okay to establish essentially the
2187
02:03:24.660 --> 02:03:28.133
equivalent of a first session to say, the first session is
2188
02:03:28.133 --> 02:03:29.830
here, we will handle these matters.
2189
02:03:29.830 --> 02:03:33.020
We'll have a 10 o'clock teleconference and we'll bring all
2190
02:03:33.020 --> 02:03:35.550
these matters before the first session judge
2191
02:03:35.550 --> 02:03:36.450
or the equivalent.
2192
02:03:37.603 --> 02:03:40.090
I haven't heard any objection to that kind of
2193
02:03:40.090 --> 02:03:41.220
practice, Your Honor.
2194
02:03:41.220 --> 02:03:43.460
Okay, so you're not you're not concerned then
2195
02:03:43.460 --> 02:03:46.830
about the the view that there should be certain designated
2196
02:03:46.830 --> 02:03:50.240
judges, whether they be by county or by court.
2197
02:03:50.240 --> 02:03:52.490
That that's that's
2198
02:03:52.490 --> 02:03:55.120
Now joining name not recorded.
2199
02:03:58.476 --> 02:04:01.462
I'm sorry for those who are coming and going at
2200
02:04:01.462 --> 02:04:03.430
these you're fiddling with the phone on touched as opposed
2201
02:04:03.430 --> 02:04:05.130
to turning out and coming back in.
2202
02:04:07.530 --> 02:04:11.560
But is there any concern about having there be designated
2203
02:04:11.560 --> 02:04:14.960
judges however, we however we choose to designate them to,
2204
02:04:16.594 --> 02:04:19.050
so that they are available and can do this stuff in volume
2205
02:04:19.050 --> 02:04:22.490
as opposed to trying to go back and find that particular
2206
02:04:22.490 --> 02:04:24.680
judge who may have set bail?
2207
02:04:24.680 --> 02:04:25.560
No, there's absolutely no
2208
02:04:25.560 --> 02:04:27.000
objection to that, Your Honor.
2209
02:04:28.119 --> 02:04:31.160
Okay, so and and I, I assume that it would be
2210
02:04:31.160 --> 02:04:34.533
beneficial to this first session judge to have
2211
02:04:34.533 --> 02:04:39.300
the DA and defense counsel and that time to share from
2212
02:04:39.300 --> 02:04:42.070
probation confirmed beforehand and essentially identify
2213
02:04:42.070 --> 02:04:46.060
those for whom there's no objection and those for which
2214
02:04:46.060 --> 02:04:47.420
there would be objection?
2215
02:04:47.420 --> 02:04:48.800
Absolutely.
2216
02:04:48.800 --> 02:04:51.360
Okay, so that that process is something which you
2217
02:04:51.360 --> 02:04:54.840
say is a is a sensible process is to attempt to vet these
2218
02:04:54.840 --> 02:04:58.750
matters, so that you can present matters and say, Your
2219
02:04:58.750 --> 02:05:01.500
Honor, there were three matters or five areas before us
2220
02:05:02.497 --> 02:05:04.290
there's agreement as to three and there's disagreement
2221
02:05:04.290 --> 02:05:06.117
as to two?
2222
02:05:06.117 --> 02:05:07.880
I agree with that.
2223
02:05:07.880 --> 02:05:11.290
I think that this goes back to the idea that this they think
2224
02:05:11.290 --> 02:05:14.967
the objection is too and basically a non judicial panel
2225
02:05:14.967 --> 02:05:18.860
making a determination that creates a presumption.
2226
02:05:20.050 --> 02:05:23.380
And so that's really, you know, they, they they're willing
2227
02:05:24.246 --> 02:05:25.810
to they want to look at each case.
2228
02:05:25.810 --> 02:05:28.040
Okay, well, I mean, so certainly certainly, I
2229
02:05:28.040 --> 02:05:30.500
mean, in the scenario that I'm doing, whether you call it
2230
02:05:30.500 --> 02:05:33.171
critical factors or call it a rebuttable presumption,
2231
02:05:33.171 --> 02:05:36.620
the view was that the judge, of course, would be able to
2232
02:05:36.620 --> 02:05:39.920
consider each case in the court could say, I thought, I
2233
02:05:39.920 --> 02:05:43.000
think that's a thoughtful agreement by counsel and I agree
2234
02:05:43.000 --> 02:05:46.250
with it or could say, for whatever reason, I disagree with
2235
02:05:46.250 --> 02:05:47.350
it, correct?
2236
02:05:48.737 --> 02:05:49.865
That's correct on it, guess what.
2237
02:05:49.865 --> 02:05:51.230
They just want the capacity to make individualized
2238
02:05:51.230 --> 02:05:54.310
decisions that are not dictated by others,
2239
02:05:54.310 --> 02:05:57.090
but which they have the opportunity to consider?
2240
02:05:57.090 --> 02:05:58.460
That's correct, your honor.
2241
02:05:58.460 --> 02:06:00.120
Okay.
2242
02:06:00.120 --> 02:06:05.080
And with regard to plan of release, isn't that something
2243
02:06:05.080 --> 02:06:09.210
that you want to be vetted ideally, before you go before the
2244
02:06:09.210 --> 02:06:12.476
so called first session, justice, so that The judge can say
2245
02:06:12.476 --> 02:06:15.500
what, you know, do we know.
2246
02:06:15.500 --> 02:06:18.487
Do we know what's going to happen to Mr. Smith and his
2247
02:06:18.487 --> 02:06:20.173
probation on board?
2248
02:06:20.173 --> 02:06:24.300
Right, yeah. I mean, it's really as much probation
2249
02:06:24.300 --> 02:06:27.590
as anyone else who's been authentic about that about not
2250
02:06:27.590 --> 02:06:32.160
releasing people, you know, onto the street who have nowhere
2251
02:06:32.160 --> 02:06:33.690
to go.
2252
02:06:33.690 --> 02:06:37.227
So that that obviously probation would do what it could I
2253
02:06:37.227 --> 02:06:40.530
think the concern is that if this if this is, you know, I
2254
02:06:40.530 --> 02:06:44.510
know that in when someone is in prison for a period of time,
2255
02:06:44.510 --> 02:06:47.080
that there's a period of planning that occurs before that
2256
02:06:47.080 --> 02:06:48.070
person is released.
2257
02:06:49.440 --> 02:06:52.450
They work with a counselor to determine where you're going
2258
02:06:52.450 --> 02:06:55.640
to live, what's your going transportation going to be?
2259
02:06:55.640 --> 02:06:59.821
And I think that this, the concern is that if this is is is
2260
02:06:59.821 --> 02:07:02.930
pushed too quickly, that that won't occur, and that
2261
02:07:02.930 --> 02:07:07.721
probation won't have an opportunity to call the cousin who
2262
02:07:07.721 --> 02:07:11.380
is the MHS he could live with and find out if he's really
2263
02:07:11.380 --> 02:07:13.020
wanted there.
2264
02:07:13.020 --> 02:07:16.050
It's it's really just a question of, of the judge, being
2265
02:07:16.050 --> 02:07:19.610
able to know that the person has a place to go.
2266
02:07:19.610 --> 02:07:24.610
It's, it's not enough that he, he or she hopes to have a
2267
02:07:25.540 --> 02:07:26.373
place to go.
2268
02:07:27.338 --> 02:07:30.010
Okay, but I mean, but you also understand that
2269
02:07:30.010 --> 02:07:32.652
everything we're doing, we're doing as best we can under the
2270
02:07:32.652 --> 02:07:34.540
circumstances?
2271
02:07:34.540 --> 02:07:37.399
But I think that there's a real concern with with
2272
02:07:37.399 --> 02:07:41.920
just putting people on the streets, if that process is
2273
02:07:41.920 --> 02:07:45.130
essentially addition decimator deteriorated.
2274
02:07:45.130 --> 02:07:47.990
So so so much of your concern is the the
2275
02:07:47.990 --> 02:07:52.000
evisceration of it not the not the expediting of it?
2276
02:07:52.000 --> 02:07:53.020
That correct, Your Honor.
2277
02:07:53.020 --> 02:07:56.570
Yeah, I feel I think oh, this will have to be expanded and I
2278
02:07:56.570 --> 02:08:01.110
think that the the personnel both probation and the I know
2279
02:08:01.110 --> 02:08:05.972
this from from the commissioner, stand ready to do all they
2280
02:08:05.972 --> 02:08:09.840
can to expedite these matters.
2281
02:08:09.840 --> 02:08:12.140
Okay, and I guess we'll go to the 5,000 dollars
2282
02:08:12.140 --> 02:08:17.140
bail you said that there that that often is what dangerous
2283
02:08:17.200 --> 02:08:19.510
criminals are being held for but if they're being held to
2284
02:08:19.510 --> 02:08:21.750
5,000 dollars bail that means there was no dangerousness
2285
02:08:21.750 --> 02:08:24.960
hearing held and no finding of dangerousness?
2286
02:08:24.960 --> 02:08:26.890
No right then the goods of cultures abroad because
2287
02:08:26.890 --> 02:08:28.367
you're right.
2288
02:08:28.367 --> 02:08:31.203
They do exclude the dangerous people who have been found to
2289
02:08:31.203 --> 02:08:33.010
be dangerous numbers actually dangerous.
2290
02:08:33.861 --> 02:08:36.260
I guess the idea there is what they said that there are many
2291
02:08:36.260 --> 02:08:39.570
people, anyone who's being held on that amount of bail, the
2292
02:08:39.570 --> 02:08:41.876
judge would have had a reason.
2293
02:08:41.876 --> 02:08:46.757
A serious reason to set that bail that high and they just
2294
02:08:46.757 --> 02:08:50.380
thought the number was too high, Your Honor.
2295
02:08:52.277 --> 02:08:55.150
Okay, I've got no further questions, justice
2296
02:08:55.150 --> 02:08:56.970
Gaziano any questions that you may have?
2297
02:08:56.970 --> 02:08:58.360
No, thank you, Chief.
2298
02:08:58.360 --> 02:08:59.300
Justice Lowy?
2299
02:08:59.300 --> 02:09:00.813
No, thanks.
2300
02:09:00.813 --> 02:09:01.646
Justice Budd.
2301
02:09:01.646 --> 02:09:02.985
No, thanks.
2302
02:09:02.985 --> 02:09:04.374
Just Cypher.
2303
02:09:04.374 --> 02:09:06.880
No one wants that, thank you.
2304
02:09:06.880 --> 02:09:08.480
Justice Kafker.
2305
02:09:08.480 --> 02:09:09.770
All set, thank you.
2306
02:09:09.770 --> 02:09:11.360
Okay, thank you, Mr. Sullivan.
2307
02:09:11.360 --> 02:09:14.700
So you're very much around We've been at this now for two
2308
02:09:14.700 --> 02:09:18.030
hours, what I suggest is that nobody leaves the phone.
2309
02:09:18.991 --> 02:09:23.300
But I'll ask I guess my justice is, is there any objection
2310
02:09:25.778 --> 02:09:27.785
for us to take a five minute break, and
2311
02:09:27.785 --> 02:09:29.370
1210 Not at all, and reconvene at 1215 but
2312
02:09:30.301 --> 02:09:31.212
please don't hang up.
2313
02:09:31.212 --> 02:09:32.590
Don't want to have to create a phone call.
2314
02:09:32.590 --> 02:09:35.540
Okay, so I asked people just to put your phones to the side
2315
02:09:37.495 --> 02:09:42.478
and come back in it, will hear Mr. Anderson on my behalf
2316
02:09:42.478 --> 02:09:45.896
and the Billboard, Okay ?
2317
02:09:45.896 --> 02:09:50.410
Guys, Oh, get hang up and say don't hang out Okay?
2318
02:09:50.410 --> 02:09:55.410
See, you're 15 thank you.
2319
02:09:55.439 --> 02:09:56.320
Justice Gaziano are you there?
2320
02:09:58.724 --> 02:10:01.400
Okay, Justice Lowy?
2321
02:10:01.400 --> 02:10:02.233
Yes.
2322
02:10:02.233 --> 02:10:03.300
Justice Budd?
2323
02:10:03.300 --> 02:10:04.300
I'm here.
2324
02:10:04.300 --> 02:10:06.030
Justice cypher.
2325
02:10:06.030 --> 02:10:07.100
Yes.
2326
02:10:07.100 --> 02:10:08.730
Justice Kafker?
2327
02:10:08.730 --> 02:10:09.610
Yes.
2328
02:10:09.610 --> 02:10:10.750
Okay, Granderson.
2329
02:10:10.750 --> 02:10:12.110
Are you there?
2330
02:10:12.110 --> 02:10:13.190
I am your Honor.
2331
02:10:13.190 --> 02:10:15.600
Okay, you have the floor,sir.
2332
02:10:15.600 --> 02:10:17.720
Good afternoon, Charles Anderson on behalf of
2333
02:10:17.720 --> 02:10:20.480
the Department of correction in the pool board.
2334
02:10:20.480 --> 02:10:24.420
I have four overall observations and three comments on the
2335
02:10:24.420 --> 02:10:29.420
master's report to do see, one thing that's been pretty
2336
02:10:30.270 --> 02:10:34.108
clear on the record as is that the Department of correction
2337
02:10:34.108 --> 02:10:37.200
has taken substantial steps to protect us inmates and we'll
2338
02:10:37.200 --> 02:10:38.320
continue to do so.
2339
02:10:39.450 --> 02:10:41.830
Both the department and the parole board are committed to
2340
02:10:41.830 --> 02:10:45.130
working within constitutional bounds and statutes to keep
2341
02:10:45.130 --> 02:10:48.630
the inmate population as safe as possible.
2342
02:10:48.630 --> 02:10:53.630
It's clear from the affidavit of Commissioner michi that
2343
02:10:54.130 --> 02:10:57.253
when the governor declared the state of emergency on March
2344
02:10:57.253 --> 02:11:00.220
10, the department immediately implemented its epidemic
2345
02:11:00.220 --> 02:11:01.170
control plans.
2346
02:11:01.170 --> 02:11:04.530
These plans which weren't developed one for the scenarios we
2347
02:11:04.530 --> 02:11:08.860
have today and these plans are centered around isolating and
2348
02:11:08.860 --> 02:11:13.310
containing those inmates who are affected by the Corona
2349
02:11:13.310 --> 02:11:17.730
virus as well as eliminating the entry and screening all of
2350
02:11:17.730 --> 02:11:21.430
those who enter the Department of correction facilities,
2351
02:11:22.570 --> 02:11:25.620
rather than rehashing everything that's in the affidavit.
2352
02:11:25.620 --> 02:11:27.960
It's pretty clear that based on the record that the
2353
02:11:27.960 --> 02:11:31.620
department's response to the pandemic has been informed
2354
02:11:31.620 --> 02:11:34.360
reasons responsive and adaptive.
2355
02:11:34.360 --> 02:11:38.541
And I think as Justice Capra pointed out earlier, there's
2356
02:11:38.541 --> 02:11:40.610
nothing on the record to show or demonstrate any
2357
02:11:40.610 --> 02:11:44.110
constitutional basis of relief here because there's nothing
2358
02:11:44.110 --> 02:11:47.460
on the record which shows that the department has been
2359
02:11:47.460 --> 02:11:50.410
deliberately indifferent to a substantial risk of serious
2360
02:11:50.410 --> 02:11:52.060
harm to what's in the population.
2361
02:11:53.130 --> 02:11:58.130
In terms of, in terms of where we are now the department as
2362
02:11:59.640 --> 02:12:04.050
a Friday, commissioners affidavit stated that there were 10
2363
02:12:04.050 --> 02:12:08.350
inmates positive for COVID-19, all housed at the treatment
2364
02:12:08.350 --> 02:12:11.290
center, and there were 13 that were under quarantine
2365
02:12:11.290 --> 02:12:13.040
protocols at that time.
2366
02:12:13.040 --> 02:12:16.380
The numbers have changed so as of this morning, the
2367
02:12:17.239 --> 02:12:20.470
department has 17 inmates that have tested positive for
2368
02:12:20.470 --> 02:12:24.690
COVID-19, all of the treatment center, and all being housed
2369
02:12:24.690 --> 02:12:28.540
in the same unit, I believe, seven inmates to be diagnosed
2370
02:12:28.540 --> 02:12:31.600
since Friday, were part of that group that have been
2371
02:12:31.600 --> 02:12:33.800
quarantined because they show symptoms.
2372
02:12:34.900 --> 02:12:38.100
So that's, that's, that's where the numbers are now.
2373
02:12:40.460 --> 02:12:45.460
And I think one thing that has been, has been referenced in
2374
02:12:45.920 --> 02:12:48.670
the earlier discussions, and I think it's important to state
2375
02:12:48.670 --> 02:12:52.940
is that the court and crafting a remedy here has to consider
2376
02:12:52.940 --> 02:12:56.780
what could be substantial public health risk posed by the
2377
02:12:56.780 --> 02:13:00.084
release of a live class of inmates and have to consider both
2378
02:13:00.084 --> 02:13:02.400
on the macro level.
2379
02:13:02.400 --> 02:13:06.280
Considering what the risk to the public is the potential
2380
02:13:06.280 --> 02:13:10.540
additional burden that risk of large groups of inmates will
2381
02:13:10.540 --> 02:13:14.070
have on an already overburdened public Health System and,
2382
02:13:15.210 --> 02:13:19.506
and whatever public safety issues also would accompany the
2383
02:13:19.506 --> 02:13:20.440
large release of inmates.
2384
02:13:20.440 --> 02:13:24.320
Also on a micro level on an individual level of release of
2385
02:13:24.320 --> 02:13:28.150
inmates, any order has to consider that individuals access
2386
02:13:28.150 --> 02:13:31.389
to support systems after they're released from the
2387
02:13:31.389 --> 02:13:34.510
department because what we have on the record is a lot of
2388
02:13:34.510 --> 02:13:37.475
discussion about what the department has done hasn't done
2389
02:13:37.475 --> 02:13:40.921
but there hasn't been a lot of discussion of what awaits
2390
02:13:40.921 --> 02:13:44.022
anybody who has been released by these orders.
2391
02:13:44.022 --> 02:13:46.080
And that's something that the court has to keep in mind,
2392
02:13:46.080 --> 02:13:49.410
both to mitigate any risks to those inmates being released,
2393
02:13:49.410 --> 02:13:54.410
as well as to the public health and one thing I just wanted
2394
02:13:54.950 --> 02:13:59.950
to add to that is, in terms of the classes of inmates with
2395
02:14:00.290 --> 02:14:04.470
categories of incentives, inmates that the court is looking
2396
02:14:04.470 --> 02:14:09.470
to initiate release protocols or orders on the department.
2397
02:14:10.590 --> 02:14:14.550
It begins its re entry Planning in earnest with inmates at
2398
02:14:14.550 --> 02:14:18.710
the one year left to serve mark, as it's more detailed in
2399
02:14:18.710 --> 02:14:21.490
the commissioners affidavit, it's at that point where
2400
02:14:21.490 --> 02:14:24.120
inmates meet with the reentry specialist and they start to
2401
02:14:24.120 --> 02:14:27.400
go over what their housing is going to be, what they need
2402
02:14:27.400 --> 02:14:30.590
for identity documents, what their healthcare needs are, and
2403
02:14:31.509 --> 02:14:34.738
access to health insurance would be employment plans and
2404
02:14:34.738 --> 02:14:36.450
community resources and these meetings continue both at the
2405
02:14:36.450 --> 02:14:39.400
six month, three month, two months and 30 day mark.
2406
02:14:39.400 --> 02:14:43.430
It's usually the 30 day mark where where inmates apply for
2407
02:14:43.430 --> 02:14:46.480
MassHealth 30 days before they're released.
2408
02:14:46.480 --> 02:14:49.700
So one thing that has to be considered in all of this is not
2409
02:14:49.700 --> 02:14:53.490
just what's going on now, but what the impact is on both the
2410
02:14:53.490 --> 02:14:58.150
inmate and the public at large should inmates be released
2411
02:14:58.150 --> 02:14:59.100
under this quarter.
2412
02:15:01.550 --> 02:15:04.970
Another overarching comment I have that I'll dress more when
2413
02:15:05.927 --> 02:15:08.330
I talk about the Masters report is the court must also be
2414
02:15:08.330 --> 02:15:13.070
cognizant about the about a superintendent's authority and
2415
02:15:13.070 --> 02:15:15.790
the issues of separation of powers most, most of the
2416
02:15:15.790 --> 02:15:19.940
separation of powers issues have been brought up by others
2417
02:15:19.940 --> 02:15:22.590
already in this proceeding but I do want to bring up one in
2418
02:15:22.590 --> 02:15:25.010
the context of talking about the Masters report.
2419
02:15:25.900 --> 02:15:29.810
There are three comments that I have with regard to the
2420
02:15:29.810 --> 02:15:32.480
Masters report all it's section three.
2421
02:15:33.660 --> 02:15:38.510
I think in like the paragraph for mark, the first comment
2422
02:15:39.566 --> 02:15:43.490
is, any order for release of an inmate from department
2423
02:15:43.490 --> 02:15:46.610
custody has to be accompanied by a stay of sentence or
2424
02:15:46.610 --> 02:15:51.610
revocation of sentence or second time served, because if an
2425
02:15:51.940 --> 02:15:55.610
inmate is ordered released from Department of department
2426
02:15:55.610 --> 02:15:59.860
custody, without a change to the sentence, then it's at that
2427
02:15:59.860 --> 02:16:02.270
point where there is a separation of powers issue because
2428
02:16:02.270 --> 02:16:05.990
the court is determining whether an inmate who is serving a
2429
02:16:05.990 --> 02:16:08.150
sentence is serving their sentence.
2430
02:16:08.150 --> 02:16:11.880
So that creates a problem for for separation of powers on
2431
02:16:11.880 --> 02:16:13.530
that, that have can be mitigated.
2432
02:16:14.716 --> 02:16:17.140
It's the release order is also accompanied by either a stay
2433
02:16:20.260 --> 02:16:23.210
of sentence a, a being time served sentence or a revocation
2434
02:16:24.310 --> 02:16:25.143
of sentence.
2435
02:16:25.143 --> 02:16:27.380
The second comment that I have about the Masters report and
2436
02:16:27.380 --> 02:16:30.080
this goes to both section three and four.
2437
02:16:30.080 --> 02:16:32.780
Now joining name not recorded.
2438
02:16:34.330 --> 02:16:38.160
The Department of correction also has duties
2439
02:16:38.160 --> 02:16:43.160
under, under Chapter 258 B to notify crime victims.
2440
02:16:44.020 --> 02:16:47.080
This the release proceedings is the individualized release
2441
02:16:47.080 --> 02:16:49.910
of sentence inmates proceedings don't provide for
2442
02:16:51.030 --> 02:16:54.490
notification to the department that an emergency petition
2443
02:16:54.490 --> 02:16:55.980
has been filed.
2444
02:16:55.980 --> 02:16:58.610
I think that needs to be added so that the department can
2445
02:16:58.610 --> 02:17:03.370
timely notify victims of the potential release of one of its
2446
02:17:03.370 --> 02:17:06.410
inmates rather than trying to play catch up for an inmate
2447
02:17:06.410 --> 02:17:07.860
that's already been released.
2448
02:17:08.750 --> 02:17:11.810
Note in Section four it says nothing relieves the obligor
2449
02:17:11.810 --> 02:17:15.650
suspense er of law enforcement to share information with
2450
02:17:15.650 --> 02:17:17.206
crime victim.
2451
02:17:17.206 --> 02:17:20.645
So, there should be a requirement that where a petition is
2452
02:17:20.645 --> 02:17:23.000
filed, the custodian has to be notified as well.
2453
02:17:23.000 --> 02:17:28.000
The third and final observation about the Masters report
2454
02:17:28.590 --> 02:17:33.370
section four says that if an inmate has 180 calendar days
2455
02:17:33.370 --> 02:17:36.500
left on a sentence, the primary court trial judge shall
2456
02:17:36.500 --> 02:17:39.611
order that the inmate returned to custody within 14 days
2457
02:17:39.611 --> 02:17:43.982
after the declaration of the state of emergency is lifted.
2458
02:17:43.982 --> 02:17:47.540
Historically, Massachusetts in contrast to the federal
2459
02:17:47.540 --> 02:17:51.490
system does not have inmates self report to facilities and I
2460
02:17:51.490 --> 02:17:54.660
can see a lot of potential difficulties happen here.
2461
02:17:54.660 --> 02:17:57.220
What I would suggest is that this has to change so that an
2462
02:17:57.220 --> 02:18:02.220
inmate reports to court and is transported as if he or she
2463
02:18:02.380 --> 02:18:05.390
were a newly committed inmate to the department's reception
2464
02:18:05.390 --> 02:18:09.080
center either NMC is either junction or MCI Framingham.
2465
02:18:09.080 --> 02:18:12.830
So related those overall comments and observations I'd like
2466
02:18:12.830 --> 02:18:14.180
to open it up to questions.
2467
02:18:15.070 --> 02:18:16.760
Thank you, Justice Gaziano.
2468
02:18:16.760 --> 02:18:18.350
Thank you, Mr. Anderson.
2469
02:18:18.350 --> 02:18:22.290
One thing I wanted to pick up when I read the papers was
2470
02:18:22.290 --> 02:18:25.120
something from the parole board in what I heard.
2471
02:18:27.131 --> 02:18:28.490
And correct me if I'm wrong, but why I had
2472
02:18:28.490 --> 02:18:33.490
recall reading was that the House of correction parole her
2473
02:18:33.612 --> 02:18:36.682
and had been there's been some problems with them and I
2474
02:18:36.682 --> 02:18:37.730
think only Barnstable County.
2475
02:18:38.847 --> 02:18:40.820
They're doing them telephonically and it seems to me
2476
02:18:40.820 --> 02:18:45.330
that we're trying to reduce, how's the correction population
2477
02:18:45.330 --> 02:18:49.590
in given the shorter sentences in the house of corrections
2478
02:18:49.590 --> 02:18:52.200
that that that might be a ripe area
2479
02:18:52.200 --> 02:18:54.970
to get people out of the jails.
2480
02:18:54.970 --> 02:18:58.260
Can you talk to whether or not there are plans or what the
2481
02:18:58.260 --> 02:19:01.310
statuses of parole hearings being conducted at the houses of
2482
02:19:01.310 --> 02:19:02.800
correction?
2483
02:19:02.800 --> 02:19:03.633
Justice Gaziano.
2484
02:19:03.633 --> 02:19:05.910
I think it'd probably be best that the chair of the parole
2485
02:19:05.910 --> 02:19:08.760
board Global Maroney is is on this call and that would
2486
02:19:10.264 --> 02:19:12.400
suggest question better be would be better answered by her.
2487
02:19:12.400 --> 02:19:14.980
If we can hear from Miss Maroney, thank you.
2488
02:19:16.320 --> 02:19:17.153
Absolutely.
2489
02:19:17.153 --> 02:19:18.620
Good morning Justice Gaziano.
2490
02:19:19.950 --> 02:19:23.600
We've had tremendous developments, actually over the weekend
2491
02:19:23.600 --> 02:19:26.317
since my affidavit was provided.
2492
02:19:26.317 --> 02:19:31.290
I'm pleased to say that over the weekend we were able to
2493
02:19:31.290 --> 02:19:35.700
develop a Webex connection, which allows for hearings to
2494
02:19:35.700 --> 02:19:38.260
take place completely remotely.
2495
02:19:38.260 --> 02:19:39.980
That began yesterday.
2496
02:19:39.980 --> 02:19:44.370
We were able to conduct hearings in both state as well as
2497
02:19:44.370 --> 02:19:47.730
county facilities remotely and they are actually happening
2498
02:19:47.730 --> 02:19:49.490
right now as we speak.
2499
02:19:49.490 --> 02:19:53.400
We had two houses of correction scheduled for today.
2500
02:19:53.400 --> 02:19:57.500
I believe the first one has concluded that would be the
2501
02:19:57.500 --> 02:20:00.200
Middleton House of correction and the second one was
2502
02:20:00.200 --> 02:20:02.860
scheduled to occur as we speak at the dead and
2503
02:20:02.860 --> 02:20:04.520
House of correction.
2504
02:20:04.520 --> 02:20:08.920
As of right now I have heard no issues with connectivity and
2505
02:20:08.920 --> 02:20:12.530
they are being conducted as planned and scheduled.
2506
02:20:12.530 --> 02:20:15.030
And beyond that, is there a plan so that we
2507
02:20:15.030 --> 02:20:18.510
don't run into article 30 issues to fast track the the, the
2508
02:20:18.510 --> 02:20:21.160
the resolution of those hearings?
2509
02:20:24.981 --> 02:20:27.551
Our district courts to get to get decisions out and people
2510
02:20:27.551 --> 02:20:30.170
release if they're going to be released.
2511
02:20:31.590 --> 02:20:33.740
Absolutely, within we certainly
2512
02:20:34.983 --> 02:20:37.270
have the notification requirements as well so if an
2513
02:20:37.270 --> 02:20:42.060
individual receives a positive parole vote today, the
2514
02:20:42.060 --> 02:20:46.550
release date would be on or after a two week date due to the
2515
02:20:46.550 --> 02:20:49.890
need to approve a home plan and also notification to victims
2516
02:20:49.890 --> 02:20:52.100
or any cony, petitioners.
2517
02:20:52.100 --> 02:20:53.570
Thank you, Miss Maroney.
2518
02:20:53.570 --> 02:20:55.280
Thank you.
2519
02:20:55.280 --> 02:20:57.390
Those are the questions I had Chief.
2520
02:20:57.390 --> 02:20:58.720
Justice Lowy?
2521
02:20:58.720 --> 02:21:00.410
Yes, thanks, Chief.
2522
02:21:00.410 --> 02:21:03.765
If I ask Miss Maroney. A question before
2523
02:21:03.765 --> 02:21:06.840
Mr. Anderson.
2524
02:21:06.840 --> 02:21:11.840
Miss Maroney is there any opportunity for me to to host
2525
02:21:11.890 --> 02:21:16.280
correction who may have previously decided that they wanted
2526
02:21:16.280 --> 02:21:20.380
to wrap up the sentence residency parole to be able to
2527
02:21:20.380 --> 02:21:23.100
reconsider their decision?
2528
02:21:25.960 --> 02:21:27.740
Good afternoon, Justice Lowy.
2529
02:21:27.740 --> 02:21:32.130
At any point, and even prior to the pandemic, and certainly
2530
02:21:32.130 --> 02:21:36.513
now if anybody wanted to submit a reconsideration, for a
2531
02:21:36.513 --> 02:21:39.520
hearing that they previously postponed or waive, they
2532
02:21:39.520 --> 02:21:42.510
absolutely can do that and that's absolutely something that
2533
02:21:42.510 --> 02:21:47.510
we can accommodate, especially now due to this due to this
2534
02:21:47.570 --> 02:21:49.610
development with our technology.
2535
02:21:49.610 --> 02:21:51.990
Okay, thank you very much.
2536
02:21:51.990 --> 02:21:55.580
Mr. Anderson, you've made some comments that are consistent
2537
02:21:55.580 --> 02:21:59.610
with a number of the sheriff affidavits.
2538
02:21:59.610 --> 02:22:03.660
Sheriff Carpenter wrote and in his his affidavit that
2539
02:22:03.660 --> 02:22:08.660
released from incarceration, that many inmates frequently
2540
02:22:09.040 --> 02:22:12.277
rely on homeless shelters soup kitchens.
2541
02:22:12.277 --> 02:22:17.277
To meet their daily needs and what not, infectious disease
2542
02:22:19.532 --> 02:22:24.532
doctors, how do we, you know, gauge the increased risk to
2543
02:22:27.760 --> 02:22:32.760
inmates and people who are not in prison?
2544
02:22:35.260 --> 02:22:38.676
What means do we have to be able to do that justice, but
2545
02:22:38.676 --> 02:22:41.990
some questions about testing that might be available, and
2546
02:22:43.350 --> 02:22:46.010
I'm not sure we had a good answer to those questions.
2547
02:22:46.010 --> 02:22:47.060
Any thoughts on that?
2548
02:22:48.090 --> 02:22:51.320
Well, I think these settlement masters report
2549
02:22:51.320 --> 02:22:55.582
does a good job in terms of for for sentence inmates.
2550
02:22:55.582 --> 02:23:00.582
These are individual release petitions so I think that the
2551
02:23:00.760 --> 02:23:05.430
court should have the opportunity even in these expedited
2552
02:23:05.430 --> 02:23:09.300
hearings, I'm sure counsel have some opportunity to provide
2553
02:23:09.300 --> 02:23:11.150
the information to the judge who would
2554
02:23:11.150 --> 02:23:13.261
be making this decision.
2555
02:23:13.261 --> 02:23:14.800
I think that's the way it would.
2556
02:23:14.800 --> 02:23:18.083
I think that's the way it would have to work and as I said
2557
02:23:18.083 --> 02:23:20.820
before, bearing in mind that when re entry planning begins
2558
02:23:20.820 --> 02:23:24.070
in earnest at the one year, mark, I would I would expect at
2559
02:23:24.070 --> 02:23:28.030
that point, you know, department staff would have begun
2560
02:23:28.030 --> 02:23:30.746
those conversations with the inmate to be released to
2561
02:23:30.746 --> 02:23:34.189
determine what type of support services they need, when
2562
02:23:34.189 --> 02:23:37.400
they're out what is their housing gonna look like?
2563
02:23:37.400 --> 02:23:40.220
What is their access to medical care going to look like?
2564
02:23:40.220 --> 02:23:44.040
So I think I think, to some extent, the settlement masters
2565
02:23:44.040 --> 02:23:47.730
report takes care of that concern by having it being an
2566
02:23:47.730 --> 02:23:52.730
individualized assessment for four sentence inmates and I
2567
02:23:53.880 --> 02:23:57.900
think that's probably the best approach to take on that.
2568
02:23:57.900 --> 02:23:59.490
All right, one last question.
2569
02:23:59.490 --> 02:24:03.960
We've read a number of the affidavits that arrested down and
2570
02:24:03.960 --> 02:24:08.960
this recommendation report certainly creates a process
2571
02:24:13.180 --> 02:24:16.270
through which we may see a significant reduction
2572
02:24:16.270 --> 02:24:19.220
in pretrial detainees.
2573
02:24:19.220 --> 02:24:23.900
If that were the case, is there a means with the Department
2574
02:24:23.900 --> 02:24:27.870
of correction can enter into some sort of cooperation
2575
02:24:27.870 --> 02:24:32.183
agreement with the sheriff where appropriate, committed
2576
02:24:32.183 --> 02:24:37.183
Folks who were already sentenced might be able to be both
2577
02:24:39.113 --> 02:24:41.213
if the population is reduced in the jails?
2578
02:24:43.880 --> 02:24:47.940
I'm certain there is the capacity to do that
2579
02:24:47.940 --> 02:24:51.790
the department has existing agreements with the County
2580
02:24:51.790 --> 02:24:56.150
Sheriff's to step down inmates from DLC custody to county
2581
02:24:56.150 --> 02:24:59.130
custody, as they near the end of their sentences and are
2582
02:24:59.130 --> 02:25:00.880
going to be released into the community.
2583
02:25:00.880 --> 02:25:04.950
So you know, depending on what the number of classes and the
2584
02:25:04.950 --> 02:25:09.950
reasons are, I'm certain these agreements can be modified or
2585
02:25:10.980 --> 02:25:14.820
enhanced so as to provide for the scope of services that's
2586
02:25:14.820 --> 02:25:17.890
needed based on based on the cohort we're looking at.
2587
02:25:17.890 --> 02:25:19.640
Okay, thank you very much.
2588
02:25:20.800 --> 02:25:21.950
Justice Budd.
2589
02:25:23.020 --> 02:25:27.950
Hi, I just had a question for attorney Anderson.
2590
02:25:27.950 --> 02:25:31.810
Did you say that right now there are only cases at the
2591
02:25:33.297 --> 02:25:35.370
Massachusetts treatment center?
2592
02:25:35.370 --> 02:25:38.740
That's correct, 17 as of this morning,
2593
02:25:38.740 --> 02:25:42.160
that was 10, Friday with 13, quarantined.
2594
02:25:43.457 --> 02:25:46.610
Now the positive the tested positive numbers 17.
2595
02:25:46.610 --> 02:25:47.860
Okay, thank you.
2596
02:25:49.200 --> 02:25:50.033
Nothing further.
2597
02:25:51.040 --> 02:25:52.290
Justice Cypher.
2598
02:25:53.710 --> 02:25:56.350
Thank you for, Mr. Anderson.
2599
02:25:56.350 --> 02:26:01.350
Can you tell me on page nine of the Masters report, there's
2600
02:26:01.480 --> 02:26:05.440
a section five reporting by prisons and jails and there's a
2601
02:26:07.108 --> 02:26:10.590
an order recommendation that the reports be made
2602
02:26:10.590 --> 02:26:13.740
Tuesday and Friday by, by 5 pm and then there are number of
2603
02:26:13.740 --> 02:26:15.350
things that should be reported on.
2604
02:26:15.350 --> 02:26:17.430
Do you see any problem doing that?
2605
02:26:17.430 --> 02:26:19.820
And is it is there any objection to it?
2606
02:26:21.990 --> 02:26:24.450
I don't see a problem doing that provided
2607
02:26:24.450 --> 02:26:28.811
that I note that the reporting is to be done by each
2608
02:26:28.811 --> 02:26:32.490
facility, I would suggest that most of the information
2609
02:26:32.490 --> 02:26:35.980
provided in this report would need to be provided centrally
2610
02:26:35.980 --> 02:26:37.810
by the Department for each of its facilities.
2611
02:26:37.810 --> 02:26:40.880
So in other words, rather than getting 17 different reports
2612
02:26:40.880 --> 02:26:43.518
from us, you would get one report listing for each facility,
2613
02:26:43.518 --> 02:26:46.710
the information, there's going to probably be some
2614
02:26:46.710 --> 02:26:51.490
difficulty just keeping up with real time I'm thinking in
2615
02:26:51.490 --> 02:26:54.220
terms of the availability of the test kits in the slobs
2616
02:26:54.220 --> 02:26:57.310
thermometers, those numbers are going to fluctuate pretty
2617
02:26:57.310 --> 02:27:01.370
regularly so I think there'll be a real time issue.
2618
02:27:01.370 --> 02:27:04.380
There, overall, it may population should be relatively easy
2619
02:27:04.380 --> 02:27:06.030
to provide.
2620
02:27:06.030 --> 02:27:10.240
And tests may fluctuate, the measures being taken that's
2621
02:27:10.240 --> 02:27:13.030
probably going to remain consistent between the Reports I
2622
02:27:13.030 --> 02:27:15.281
don't anticipate that would change.
2623
02:27:15.281 --> 02:27:18.920
And then the number of inmates released, we should be able
2624
02:27:18.920 --> 02:27:20.843
to provide that.
2625
02:27:20.843 --> 02:27:23.650
Thank you, and no further questions.
2626
02:27:25.820 --> 02:27:28.410
Justice Kafker.
2627
02:27:28.410 --> 02:27:31.060
Mr. Anderson, I found your presentation very
2628
02:27:31.060 --> 02:27:33.379
helpful, I had a couple of questions.
2629
02:27:33.379 --> 02:27:38.273
I can't tell how supportive you are, it sounds like you're
2630
02:27:39.200 --> 02:27:41.420
you're pretty supportive of the Masters Report.
2631
02:27:41.420 --> 02:27:43.550
I'm just trying to get a sentence right.
2632
02:27:43.550 --> 02:27:45.890
Can you do within this Master's report?
2633
02:27:45.890 --> 02:27:49.421
Justice cypher is that particular but besides the
2634
02:27:49.421 --> 02:27:54.421
what happens after 180 days and some other lease protocols.
2635
02:27:57.960 --> 02:28:00.790
Are you comfortable with the way this reads?
2636
02:28:00.790 --> 02:28:03.950
Is the department comfortable with the report?
2637
02:28:03.950 --> 02:28:05.300
Well, I just want to say something
2638
02:28:05.300 --> 02:28:06.133
at the outset.
2639
02:28:06.133 --> 02:28:09.500
The department didn't seek the relief that's been requested
2640
02:28:09.500 --> 02:28:12.070
in the position in the petition and the department's
2641
02:28:12.070 --> 02:28:16.160
position is that we can care for our inmate population.
2642
02:28:16.160 --> 02:28:19.000
It's pretty clear from the affidavit that we're far from
2643
02:28:19.000 --> 02:28:22.660
overcrowded and every facility is operating with vacancies.
2644
02:28:22.660 --> 02:28:25.890
So, you know, it's it's one of those things that that being
2645
02:28:25.890 --> 02:28:30.390
said, reviewing the special masters report pragmatically,
2646
02:28:30.390 --> 02:28:33.972
the Department of correction releases in these from its
2647
02:28:33.972 --> 02:28:34.805
custody every day.
2648
02:28:34.805 --> 02:28:38.530
The concern that I have or the department has is that if
2649
02:28:38.530 --> 02:28:40.840
we're talking about large categories that's going to
2650
02:28:40.840 --> 02:28:43.390
overburden our central bank computation unit and preparing
2651
02:28:43.390 --> 02:28:44.700
their release packets.
2652
02:28:44.700 --> 02:28:47.130
They're required to notify victims, they're required to
2653
02:28:47.130 --> 02:28:50.700
notify external criminal justice agencies, for example,
2654
02:28:50.700 --> 02:28:53.890
if releasing inmate is wanted for a pending criminal charge
2655
02:28:53.890 --> 02:28:58.180
in another state, victims have to be notified for those
2656
02:28:58.180 --> 02:28:59.940
inmates who have ice detainers.
2657
02:28:59.940 --> 02:29:02.010
They need to be notified as well.
2658
02:29:02.960 --> 02:29:07.680
There are I think, if we're talking about individualized
2659
02:29:07.680 --> 02:29:11.260
petitions, by sentence inmates, I hope that that is
2660
02:29:11.260 --> 02:29:15.440
something that we as a department can keep up with.
2661
02:29:15.440 --> 02:29:19.760
If, however, the categories, the large categories of
2662
02:29:19.760 --> 02:29:23.760
pretrial detainees releases is somehow transformed to work
2663
02:29:23.760 --> 02:29:26.320
towards sentence inmates, there's going to be some
2664
02:29:27.721 --> 02:29:28.600
difficulty in keeping up with those categories.
2665
02:29:29.440 --> 02:29:32.610
You know, bearing in mind, we do have experience with sort
2666
02:29:32.610 --> 02:29:35.400
of the large scale beliefs of inmates over time roles
2667
02:29:35.400 --> 02:29:40.320
relating back to, you know, the Hinton and the farakka drug
2668
02:29:40.320 --> 02:29:41.690
lab issues.
2669
02:29:41.690 --> 02:29:45.710
So there have been, and also implementation of the 2012
2670
02:29:46.790 --> 02:29:48.502
criminal justice bill, the department has experience in
2671
02:29:48.502 --> 02:29:52.370
promptly and efficiently processing order releases.
2672
02:29:53.640 --> 02:29:56.736
But it does kind of go to scale at some point so that's
2673
02:29:56.736 --> 02:30:00.160
something to take into consideration.
2674
02:30:01.610 --> 02:30:04.300
And my other question is, so right now, the
2675
02:30:04.300 --> 02:30:07.730
problem seems manageable because it's focused on the
2676
02:30:07.730 --> 02:30:08.640
treatment center.
2677
02:30:09.710 --> 02:30:14.710
You mentioned this sort of epidemic plan you had an epidemic
2678
02:30:16.704 --> 02:30:21.200
control plan, I mean, is it this spreads widely and quickly.
2679
02:30:23.240 --> 02:30:26.910
You know, when we're looking at the record here, you just
2680
02:30:26.910 --> 02:30:31.280
can't maintain spacing in a lot of these facilities, given
2681
02:30:31.280 --> 02:30:33.860
how people are bumped into how they eat.
2682
02:30:35.280 --> 02:30:38.780
I'm just trying to understand is what that that epidemic
2683
02:30:38.780 --> 02:30:40.380
control plan.
2684
02:30:40.380 --> 02:30:44.070
How it works, does it if one of the larger
2685
02:30:46.490 --> 02:30:50.350
jails becomes sort of inundated with this?
2686
02:30:51.310 --> 02:30:52.143
What happened?
2687
02:30:53.970 --> 02:30:56.500
Well, generally speaking, the epidemic
2688
02:30:56.500 --> 02:31:00.941
control plans require each superintendent to develop a
2689
02:31:00.941 --> 02:31:05.680
method of responding to an epidemic specific to their
2690
02:31:05.680 --> 02:31:08.700
facility, its population and its physical plant.
2691
02:31:08.700 --> 02:31:11.380
So these plants have already been developed.
2692
02:31:11.380 --> 02:31:15.741
How it works is that If I mean generally speaking, it works
2693
02:31:15.741 --> 02:31:19.300
to isolate and contain, you know, those inmates who are
2694
02:31:19.300 --> 02:31:23.780
either tested positive for COVID or, or have displayed
2695
02:31:23.780 --> 02:31:27.472
symptoms for each facility has identified units that it
2696
02:31:27.472 --> 02:31:32.472
would use for the quarantine of symptoms symptomatic inmates
2697
02:31:33.590 --> 02:31:36.010
or those who have been diagnosed positive.
2698
02:31:37.120 --> 02:31:41.643
So each facility has the ability to handle even a large
2699
02:31:43.690 --> 02:31:46.220
spread within its own population.
2700
02:31:46.220 --> 02:31:50.570
Bearing in mind that you know, in contrast to the public
2701
02:31:50.570 --> 02:31:55.330
inmates COVID positive inmates can be relatively easily
2702
02:31:55.330 --> 02:31:58.830
isolated in certain units and correctional facilities, they
2703
02:31:58.830 --> 02:32:02.920
can be completely separated from those who are not positive
2704
02:32:02.920 --> 02:32:06.130
and they also have access to health care inside their
2705
02:32:06.130 --> 02:32:11.130
facility so in those two regards, the department is uniquely
2706
02:32:11.820 --> 02:32:16.820
positioned to protect its inmate population, and to prevent
2707
02:32:17.420 --> 02:32:20.685
the transmission that was spread within a correctional
2708
02:32:20.685 --> 02:32:23.350
facility, as well as the steps the department has taken,
2709
02:32:23.350 --> 02:32:26.858
such as not transferring inmates between institutions,
2710
02:32:26.858 --> 02:32:30.190
reducing every facility to a single point of entry and doing
2711
02:32:30.190 --> 02:32:33.620
enhanced screening of anybody who enters a correctional
2712
02:32:33.620 --> 02:32:37.250
facility also minimizes the possibility spread or
2713
02:32:37.250 --> 02:32:41.266
transmitting between is.
2714
02:32:41.266 --> 02:32:43.760
I remember reading maybe it was the one of the
2715
02:32:43.760 --> 02:32:48.760
prisoner Greek, saying that Shattuck has, you know, 25 beds
2716
02:32:49.828 --> 02:32:53.270
and certain 20 of them are already occupied.
2717
02:32:53.270 --> 02:32:56.760
So that's, I'm just trying to get a comfort level.
2718
02:32:57.612 --> 02:33:02.500
You know, you know, reading the newspaper stories about how
2719
02:33:02.500 --> 02:33:05.380
these various homes become sort of
2720
02:33:07.620 --> 02:33:12.620
a cluster of Coronavirus virus cases all immediately but
2721
02:33:12.660 --> 02:33:17.340
you have each one of these facilities has a plan to isolate
2722
02:33:17.340 --> 02:33:22.340
and treat it that type of complication occurs.
2723
02:33:24.178 --> 02:33:25.080
Is that what you're saying?
2724
02:33:25.080 --> 02:33:27.570
That's correct, each individual facility has
2725
02:33:27.570 --> 02:33:32.239
its own plan which is audited and reviewed by the department
2726
02:33:32.239 --> 02:33:35.040
to make sure that the plan is complete.
2727
02:33:35.040 --> 02:33:38.160
You know, I just want to note that there has not been any
2728
02:33:38.160 --> 02:33:42.144
COVID positive inmates transferred to the lemuel Shattuck
2729
02:33:42.144 --> 02:33:45.170
hospital, there have been proven positive inmates who have
2730
02:33:45.170 --> 02:33:48.310
been transported to outside hospitals, which is the approach
2731
02:33:48.310 --> 02:33:51.836
the department would take for those whose medical needs
2732
02:33:51.836 --> 02:33:53.990
can't be provided for in their housing.
2733
02:33:55.072 --> 02:33:56.430
Thank you.
2734
02:33:56.430 --> 02:33:58.460
That's all, that's all I have.
2735
02:33:58.460 --> 02:33:59.390
Thank you.
2736
02:33:59.390 --> 02:34:01.660
All right, this is Chief Justice Gants.
2737
02:34:01.660 --> 02:34:05.522
I thought going back to the 17 participants with the
2738
02:34:05.522 --> 02:34:07.110
treatment center, I thought that there was a positive MCI
2739
02:34:07.110 --> 02:34:08.460
surely is that not correct?
2740
02:34:09.500 --> 02:34:12.770
No, there was not a positive test of didn't
2741
02:34:12.770 --> 02:34:13.850
make him see it early.
2742
02:34:14.804 --> 02:34:16.440
All right and at the treatment center, what was he
2743
02:34:17.368 --> 02:34:18.600
going to get tested positive as of the 24th.
2744
02:34:19.980 --> 02:34:23.700
The 24th I believe it was 708.
2745
02:34:28.966 --> 02:34:31.157
If I'm not mistaken, it was 10 as of the time of the
2746
02:34:31.157 --> 02:34:32.157
affidavit on Friday.
2747
02:34:33.250 --> 02:34:35.920
And there are those who and they were kept with
2748
02:34:37.830 --> 02:34:39.880
individuals who were indicated some symptoms but had not yet
2749
02:34:39.880 --> 02:34:40.750
tested positive.
2750
02:34:41.990 --> 02:34:45.890
Not what those COVID positive testing inmates
2751
02:34:45.890 --> 02:34:50.710
were kept on one single unit see one other inmates who
2752
02:34:50.710 --> 02:34:54.060
displayed symptoms were actually given quarantine code of
2753
02:34:54.060 --> 02:34:57.160
protocols, where they were kept in cell in their cell.
2754
02:34:57.160 --> 02:34:59.620
They weren't permitted to leave the cell and they were
2755
02:34:59.620 --> 02:35:04.410
provided with food in cell and medical care in cell.
2756
02:35:04.410 --> 02:35:08.880
So it's not until somebody actually tested positive that
2757
02:35:08.880 --> 02:35:11.770
they've removed from those quarantine protocols and then and
2758
02:35:11.770 --> 02:35:14.720
then brought to the See one unit so that that was the other
2759
02:35:15.780 --> 02:35:16.613
inmates who tested positive.
2760
02:35:16.613 --> 02:35:19.220
So the concern, of course, is that as you
2761
02:35:19.220 --> 02:35:21.780
mentioned, since these individuals are being treated at
2762
02:35:21.780 --> 02:35:26.780
regular hospitals that if there were to be a cluster
2763
02:35:27.221 --> 02:35:32.221
in a facility, then that would be burdening the emergency
2764
02:35:32.780 --> 02:35:35.719
rooms in the ICU is of public hospitals, correct.
2765
02:35:35.719 --> 02:35:38.040
For Non prison hospitals, correct?
2766
02:35:39.350 --> 02:35:43.260
It depends on the severity of the care needed
2767
02:35:43.260 --> 02:35:45.809
for the number of individual inmates.
2768
02:35:45.809 --> 02:35:50.040
You know, I know out of the 17 inmates tested positive for
2769
02:35:50.040 --> 02:35:53.150
the treatment center, to or an outside hospitals.
2770
02:35:53.150 --> 02:35:57.420
So the vast majority of those who tested positive for COVID
2771
02:35:57.420 --> 02:36:00.220
should be able to be cared for within their correctional
2772
02:36:01.261 --> 02:36:03.370
facility with the health care staff and, and the equipment
2773
02:36:03.370 --> 02:36:05.550
that's at their facility.
2774
02:36:05.550 --> 02:36:08.870
It's only in those circumstances where their conditions are
2775
02:36:08.870 --> 02:36:11.810
sufficiently serious that they can't be adequately treated
2776
02:36:11.810 --> 02:36:14.280
for at at the facility, that they are
2777
02:36:14.280 --> 02:36:16.160
transported outside hospitals.
2778
02:36:17.177 --> 02:36:19.860
We do have those existing arrangements with
2779
02:36:19.860 --> 02:36:22.710
outside hospitals, they're aware that the person being
2780
02:36:22.710 --> 02:36:25.990
transported to them is COVID-19 positive and they received
2781
02:36:25.990 --> 02:36:28.760
the information about what their condition is and the reason
2782
02:36:28.760 --> 02:36:31.560
why their translate needs to be transferred and can't be
2783
02:36:32.530 --> 02:36:34.770
cared for, you know, with their current medical condition.
2784
02:36:34.770 --> 02:36:38.170
Now, the governor's March 23 order prohibits
2785
02:36:39.081 --> 02:36:41.940
gatherings of 10 or more in any confined indoor or outdoor
2786
02:36:41.940 --> 02:36:46.940
space and also urges those businesses and organizations
2787
02:36:49.070 --> 02:36:53.220
providing essential services to allow for social distancing
2788
02:36:53.220 --> 02:36:54.053
protocols.
2789
02:36:57.244 --> 02:37:01.220
Is that order being honored within the DLC?
2790
02:37:02.570 --> 02:37:05.390
Yes, the way that it's being honored is that
2791
02:37:05.390 --> 02:37:09.400
inmates released from their selves on recreation are limited
2792
02:37:09.400 --> 02:37:10.233
in numbers.
2793
02:37:11.850 --> 02:37:15.950
So what happens as the overall period of recreation has been
2794
02:37:15.950 --> 02:37:18.720
extended because fewer inmates are allowed out if they're
2795
02:37:18.720 --> 02:37:19.820
solid in a given time.
2796
02:37:20.690 --> 02:37:24.340
It most facilities now I believe they're being fed on unit
2797
02:37:24.340 --> 02:37:27.240
or in cell, they're not, they're not going to the chow hall
2798
02:37:27.240 --> 02:37:30.620
where they did in the past, outdoor recreation
2799
02:37:30.620 --> 02:37:35.620
and not quite sure I think that's also been limited in terms
2800
02:37:35.720 --> 02:37:39.280
of the numbers permitted to go out and DMA classes as,
2801
02:37:40.686 --> 02:37:44.680
as shown in the exhibit to the affidavit to the commissioner
2802
02:37:44.680 --> 02:37:48.354
has been advised of social distancing protocols.
2803
02:37:48.354 --> 02:37:53.354
And officers are, are instructed to to keep those that that
2804
02:37:54.590 --> 02:37:57.810
the inmates who are released from their cells are keeping
2805
02:37:57.810 --> 02:37:59.130
those protocols.
2806
02:37:59.130 --> 02:38:01.670
Hand sanitizers described in the affidavit is readily
2807
02:38:01.670 --> 02:38:04.210
available, the inmates are being provided.
2808
02:38:04.210 --> 02:38:08.220
So you know, those types of gatherings are just they
2809
02:38:08.220 --> 02:38:11.039
shouldn't I don't think they're happening.
2810
02:38:11.039 --> 02:38:13.190
I don't think I don't think any more than 10 in are being
2811
02:38:13.190 --> 02:38:15.970
released on any pier at any time.
2812
02:38:15.970 --> 02:38:18.230
And how about when they're sleeping?
2813
02:38:19.140 --> 02:38:21.830
well, when they're sleeping i mean it's it's
2814
02:38:21.830 --> 02:38:25.780
by virtue of the physical plant of where they're staying.
2815
02:38:25.780 --> 02:38:28.370
If they're if they're in a single bunk cell, they're in a
2816
02:38:28.370 --> 02:38:31.740
single bunk cell, same with a double bunk cell.
2817
02:38:31.740 --> 02:38:35.710
Right, what share of the persons in DLC are in
2818
02:38:35.710 --> 02:38:36.610
single bunk sales?
2819
02:38:39.160 --> 02:38:41.160
I don't know, I don't know the answer to that
2820
02:38:41.160 --> 02:38:42.696
question.
2821
02:38:42.696 --> 02:38:43.650
Maybe ballpark.
2822
02:38:44.920 --> 02:38:46.910
I, I would ask the
2823
02:38:46.910 --> 02:38:48.930
court that I'd be permitted to file a
2824
02:38:48.930 --> 02:38:51.990
supplemental filing concerning that because I'd rather give
2825
02:38:51.990 --> 02:38:53.770
you the accurate information than something
2826
02:38:53.770 --> 02:38:55.050
I'm just guessing.
2827
02:38:55.050 --> 02:38:58.030
Okay, but you recognize that if they're in non
2828
02:38:58.030 --> 02:39:01.010
single bunk cells, then of course, they're not like they
2829
02:39:01.010 --> 02:39:04.230
can't possibly be maintaining social distancing, at least
2830
02:39:04.230 --> 02:39:06.130
during the nighttime hours?
2831
02:39:06.130 --> 02:39:06.970
That's correct.
2832
02:39:06.970 --> 02:39:11.970
I think that's a problem that probably is very similar to
2833
02:39:12.670 --> 02:39:15.520
non correctional facilities and frankly, some households.
2834
02:39:16.650 --> 02:39:21.650
Okay, so now, is it, let me ask you a rather
2835
02:39:22.250 --> 02:39:27.250
technical question, I see that the the DLC in its quarterly
2836
02:39:28.090 --> 02:39:30.540
report on the status of prison capacity
2837
02:39:32.080 --> 02:39:37.080
measures it measures it's the percentage of capacity by
2838
02:39:42.110 --> 02:39:47.110
design rated capacity and only online rated capacity is that
2839
02:39:47.970 --> 02:39:52.367
the appropriate measure in which to measure the letter the
2840
02:39:53.890 --> 02:39:57.448
word is overcrowding or the crowding or the extent to which
2841
02:39:57.448 --> 02:40:01.110
there is there is there's excess capacity in a prison.
2842
02:40:02.200 --> 02:40:03.470
I'm sorry, Your Honor.
2843
02:40:03.470 --> 02:40:07.870
The department measures it's it's crowded by by operational
2844
02:40:07.870 --> 02:40:10.090
capacity, not design capacity.
2845
02:40:10.090 --> 02:40:12.840
Why does Why does the quarterly report issue but
2846
02:40:12.840 --> 02:40:15.760
permanent corrections only speak of design rated capacity?
2847
02:40:17.496 --> 02:40:19.700
If I'm not mistaken, I believe it's that
2848
02:40:19.700 --> 02:40:23.670
they're required to respond with regard to the design
2849
02:40:23.670 --> 02:40:24.950
capacity.
2850
02:40:24.950 --> 02:40:27.930
You'll note that the exhibits attached to the affidavit, the
2851
02:40:27.930 --> 02:40:30.110
commissioner shows the weekly count sheets from the
2852
02:40:30.110 --> 02:40:33.878
department and all of those are contained the operational
2853
02:40:33.878 --> 02:40:38.420
capacity of the facility, Just departments I'm sorry, good.
2854
02:40:43.090 --> 02:40:46.293
Design rated capacity is the capacity is the
2855
02:40:46.293 --> 02:40:48.980
capacity for what a prison is designed to hold.
2856
02:40:48.980 --> 02:40:53.570
It is meant to reflect the appropriate level of capacity for
2857
02:40:53.570 --> 02:40:54.470
a prison, correct?
2858
02:40:55.570 --> 02:40:58.157
I think it's meant to work.
2859
02:40:58.157 --> 02:40:59.170
Now exiting David Kravitz
2860
02:40:59.170 --> 02:41:00.420
for the Attorney General.
2861
02:41:02.390 --> 02:41:05.090
I think what it's meant to do is to measure
2862
02:41:05.090 --> 02:41:08.900
what the capacity of the facility is, you know, when it's
2863
02:41:08.900 --> 02:41:12.650
architectural II designed and based on what its intended
2864
02:41:12.650 --> 02:41:15.990
purposes, given that so many of the Commonwealth
2865
02:41:15.990 --> 02:41:18.910
correctional facilities have changed their change their
2866
02:41:18.910 --> 02:41:22.340
purposes and their missions as they've been operated, I'm
2867
02:41:22.340 --> 02:41:25.050
not sure that the design capacity is probably the most
2868
02:41:25.050 --> 02:41:28.410
accurate way to reflect, you know, what, how a facility
2869
02:41:28.410 --> 02:41:29.400
should be staffed.
2870
02:41:30.510 --> 02:41:33.360
Or I should say, how it should be measured, you know, for
2871
02:41:34.783 --> 02:41:37.441
example, you know, the department of corrections facility at
2872
02:41:37.441 --> 02:41:39.304
MCI cedar junction before 2009 was a maximum security
2873
02:41:39.304 --> 02:41:41.350
facility prison.
2874
02:41:43.073 --> 02:41:44.110
Since that time, it's been operated to the department's
2875
02:41:44.110 --> 02:41:45.200
reception centers.
2876
02:41:45.200 --> 02:41:49.400
So it's the actual design of the facility is so much
2877
02:41:49.400 --> 02:41:51.620
different than how it's operated.
2878
02:41:51.620 --> 02:41:56.363
I'm not sure of what utility but design capacity is in terms
2879
02:41:56.363 --> 02:41:58.010
of assessing what a facility is now
2880
02:41:58.010 --> 02:41:59.510
and whether it's crowded.
2881
02:41:59.510 --> 02:42:02.277
Okay, so you're telling me that the DLC quarterly
2882
02:42:02.277 --> 02:42:05.077
report which measures capacity by design, rated capacity is
2883
02:42:05.077 --> 02:42:08.420
just wrong, it's foolish to do that?
2884
02:42:09.510 --> 02:42:13.270
I was in the wrong IBM sub sub perplexes this is how deep
2885
02:42:16.390 --> 02:42:18.590
this is how the OSI itself measures its capacity and it uses
2886
02:42:20.171 --> 02:42:21.602
design ready capacity and its quarterly reports.
2887
02:42:21.602 --> 02:42:24.310
And you're telling me that that's just wrong, it should not
2888
02:42:24.310 --> 02:42:25.490
do that?
2889
02:42:25.490 --> 02:42:26.860
I'm not saying it's wrong.
2890
02:42:26.860 --> 02:42:29.600
I'm saying that I believe that that's what's required for us
2891
02:42:29.600 --> 02:42:34.400
to report, I do believe the operational capacity, which is
2892
02:42:34.400 --> 02:42:37.840
reflected in the weekly count sheets is more accurate in
2893
02:42:37.840 --> 02:42:42.360
terms of what how a facility is being used and operated.
2894
02:42:42.360 --> 02:42:46.600
And what is the space available to house inmates in it, I,
2895
02:42:46.600 --> 02:42:50.660
I certainly and I'm sorry, it's a bit beyond my knowledge as
2896
02:42:50.660 --> 02:42:54.610
to why the quarterly reports showed design capacity.
2897
02:42:54.610 --> 02:42:57.950
It may be tried to try to be consistent between department
2898
02:42:57.950 --> 02:43:00.120
facilities and county facilities.
2899
02:43:00.120 --> 02:43:03.530
I don't know, I'm sorry that I don't have the answer to
2900
02:43:03.530 --> 02:43:06.990
that but I do know that you know, the department and its
2901
02:43:06.990 --> 02:43:10.870
weekly count sheets, which have been attached as exhibits to
2902
02:43:10.870 --> 02:43:14.720
the affidavit tries to do the most accurate measurement it
2903
02:43:14.720 --> 02:43:17.280
can with regard to its facility and most use off uses
2904
02:43:17.280 --> 02:43:18.890
operational capacity.
2905
02:43:18.890 --> 02:43:21.010
Because the design rated capacity I believe would
2906
02:43:21.010 --> 02:43:22.210
be 97%.
2907
02:43:22.210 --> 02:43:27.210
Right now for D OC, or I'm sorry, 98.3%, but you say it's
2908
02:43:29.070 --> 02:43:31.520
only 73% of its operational capacity.
2909
02:43:31.520 --> 02:43:36.220
So it gives very different measures of excess capacity,
2910
02:43:36.220 --> 02:43:37.490
correct?
2911
02:43:37.490 --> 02:43:39.550
That's correct, yes, the design capacity and
2912
02:43:39.550 --> 02:43:42.430
the operational capacity will be different, because the
2913
02:43:42.430 --> 02:43:45.210
design capacity is established at the point before the
2914
02:43:45.210 --> 02:43:46.510
facility is actually used.
2915
02:43:47.360 --> 02:43:49.740
Whereas operational capacity, I do believe takes into
2916
02:43:49.740 --> 02:43:52.960
account, you know, changes made to the facility, whether
2917
02:43:52.960 --> 02:43:57.960
it's the addition of modular units, whether it's changes and
2918
02:43:58.350 --> 02:43:59.890
unit operations.
2919
02:43:59.890 --> 02:44:02.138
But I mean, as you stated, it's clear that even under design
2920
02:44:02.138 --> 02:44:04.590
capacity standard, the department is at less than under
2921
02:44:04.590 --> 02:44:08.110
percent capacity.
2922
02:44:08.110 --> 02:44:11.420
Now, is it do you agree that reduction in
2923
02:44:11.420 --> 02:44:16.420
population provides more flexibility and more ability to
2924
02:44:16.794 --> 02:44:21.794
quarantine individuals as may become necessary over the next
2925
02:44:22.420 --> 02:44:25.530
few weeks or months?
2926
02:44:25.530 --> 02:44:27.387
It may on some scale, it really kind of
2927
02:44:27.387 --> 02:44:32.090
depends on where the inmates are being released from, for
2928
02:44:32.090 --> 02:44:36.260
example, if they're being released from NCCI gardener, which
2929
02:44:36.260 --> 02:44:39.610
I believe is currently at 95% of operational capacity,
2930
02:44:39.610 --> 02:44:43.081
that's going to make more of a difference than inmates being
2931
02:44:43.081 --> 02:44:44.540
released from South Middlesex Correctional Center, which is
2932
02:44:44.540 --> 02:44:47.136
now at 35% operational capacity, it really comes down to the
2933
02:44:47.136 --> 02:44:51.674
individual facilities, where they are and
2934
02:44:51.674 --> 02:44:53.240
how they're operated.
2935
02:44:53.240 --> 02:44:56.320
You know, as I stated before, you know, the department's
2936
02:44:56.320 --> 02:45:00.930
position is that it can care for the medical needs for the
2937
02:45:00.930 --> 02:45:03.900
inmates who've been housed, who've been sentenced and are
2938
02:45:03.900 --> 02:45:05.980
housed within its within its presence.
2939
02:45:06.940 --> 02:45:09.380
And as DLC or the parole board doing anything
2940
02:45:09.380 --> 02:45:12.490
differently in terms of accelerating the room.
2941
02:45:13.359 --> 02:45:15.251
The release of prisoners in the wake
2942
02:45:15.251 --> 02:45:16.501
of the COVID-19 pandemic.
2943
02:45:18.220 --> 02:45:20.460
As far as the department goes, I mean, our
2944
02:45:20.460 --> 02:45:23.378
release procedures have remained the same and that
2945
02:45:23.378 --> 02:45:27.060
they're released on the date that they're that their
2946
02:45:27.060 --> 02:45:28.770
sentences have expired.
2947
02:45:28.770 --> 02:45:31.980
And we follow, we follow a protocol which includes the
2948
02:45:31.980 --> 02:45:34.820
notification of external stakeholders, you know, running of
2949
02:45:34.820 --> 02:45:37.840
an active and CIC DLP warrant checks.
2950
02:45:38.790 --> 02:45:41.260
You know, those procedures remain the same and makes use of
2951
02:45:41.260 --> 02:45:45.134
the day that the day to day completes their terms of
2952
02:45:45.134 --> 02:45:46.366
sentences on.
2953
02:45:46.366 --> 02:45:50.310
So there is no increase in rate of furloughs?
2954
02:45:51.800 --> 02:45:53.370
No there wasn't.
2955
02:45:53.370 --> 02:45:55.410
Wasn't there any effort to examine whether
2956
02:45:55.410 --> 02:45:57.410
furlough was appropriate for any and me?
2957
02:45:58.350 --> 02:45:59.183
I don't believe..
2958
02:45:59.183 --> 02:46:00.820
there was a pandemic.
2959
02:46:00.820 --> 02:46:02.940
I don't believe there has been, I believe,
2960
02:46:02.940 --> 02:46:06.950
because furloughs generally are sponsored and they're
2961
02:46:06.950 --> 02:46:10.696
programmed in their time for a certain period of time.
2962
02:46:10.696 --> 02:46:12.460
I think it's about to exclude seven days.
2963
02:46:12.460 --> 02:46:15.470
So I don't believe that department
2964
02:46:15.470 --> 02:46:17.900
can even contemplate under its regulations.
2965
02:46:18.770 --> 02:46:21.350
A furlough that would exceed that period of time and one
2966
02:46:21.350 --> 02:46:25.220
that basically is open ended, I just don't think it's within
2967
02:46:26.456 --> 02:46:27.810
our capacity or ability to do that.
2968
02:46:27.810 --> 02:46:30.900
Okay, with regard this may be a question from for
2969
02:46:30.900 --> 02:46:34.320
Mr. Maroney with regard to those who are granted with parole
2970
02:46:34.320 --> 02:46:36.930
or other other any who have been granted parole who've not
2971
02:46:36.930 --> 02:46:38.130
received parole permits?
2972
02:46:41.050 --> 02:46:45.950
Good afternoon Chief Justice, the individual to
2973
02:46:45.950 --> 02:46:50.920
as of the hitting of the pandemic, if there were individuals
2974
02:46:50.920 --> 02:46:55.120
that were awaiting a positive promo vote from the parole
2975
02:46:55.120 --> 02:46:59.583
board, primarily individuals who are serving life sentences,
2976
02:46:59.583 --> 02:47:04.583
those decisions were accelerated, such that in the event,
2977
02:47:05.173 --> 02:47:08.970
again, if they were awaiting a decision a written decision
2978
02:47:08.970 --> 02:47:11.750
from the board, those were accelerated and have been
2979
02:47:12.995 --> 02:47:14.346
provided.
2980
02:47:14.346 --> 02:47:17.541
To those individuals within the past week, week and a half.
2981
02:47:17.541 --> 02:47:21.530
So those were the individuals that were waiting for a vote
2982
02:47:21.530 --> 02:47:24.060
that are now no longer waiting.
2983
02:47:24.060 --> 02:47:28.145
That was that was done in a way that those individuals
2984
02:47:28.145 --> 02:47:33.145
understood that they were waiving any ability to obtain a
2985
02:47:33.270 --> 02:47:35.170
detailed administrative decision.
2986
02:47:36.733 --> 02:47:41.060
But they did, indeed, accept that and wanted the accelerated
2987
02:47:41.060 --> 02:47:41.893
decision.
2988
02:47:41.893 --> 02:47:43.460
So those have been done.
2989
02:47:43.460 --> 02:47:46.440
And but but my question was, there's a difference
2990
02:47:46.440 --> 02:47:49.110
between a vote to release somebody on parole and the
2991
02:47:49.110 --> 02:47:51.690
issuance of a parole permit are there those who have been
2992
02:47:51.690 --> 02:47:54.930
released on parole, but for whom, real primitive not issued?
2993
02:47:56.750 --> 02:47:57.760
Yes, my apologies.
2994
02:47:57.760 --> 02:48:00.450
There have been I think it was in my affidavit there was as
2995
02:48:00.450 --> 02:48:05.450
a Friday 62 parole premise as a Friday that had been issued.
2996
02:48:08.150 --> 02:48:10.361
And those individuals were indeed released on parole
2997
02:48:10.361 --> 02:48:11.560
supervision.
2998
02:48:12.720 --> 02:48:13.850
My question actually is different.
2999
02:48:13.850 --> 02:48:16.470
How many have been how many has the parole board voted to
3000
02:48:16.470 --> 02:48:20.300
release, if any who have not been issued parole permits?
3001
02:48:22.420 --> 02:48:27.270
I believe, as of right now, let me ask for
3002
02:48:27.270 --> 02:48:31.060
clarification, Chief Justice, are you speaking up in the
3003
02:48:32.020 --> 02:48:36.190
past few weeks or get all total?
3004
02:48:36.190 --> 02:48:39.690
But no, I mean, I'm asking for how many
3005
02:48:39.690 --> 02:48:43.000
individuals basically the parole board has said, okay, we,
3006
02:48:43.000 --> 02:48:46.930
you're authorized for release, but has not issued the parole
3007
02:48:46.930 --> 02:48:50.140
permit, which would actually release them.
3008
02:48:50.140 --> 02:48:51.420
There are currently .
3009
02:48:51.420 --> 02:48:53.090
As of right now.
3010
02:48:53.090 --> 02:48:57.800
There are currently I believe it's 300
3011
02:48:57.800 --> 02:49:01.740
individuals who have received a positive parole vote that
3012
02:49:01.740 --> 02:49:06.030
have received that boat but the boat included a reserve
3013
02:49:06.030 --> 02:49:10.200
date, which would include the timeframe to approve the home
3014
02:49:10.200 --> 02:49:15.080
plan and to notify anybody According petitioners, that's
3015
02:49:15.080 --> 02:49:17.170
typically about a two week timeframe.
3016
02:49:19.040 --> 02:49:22.920
So there are 300 individuals who, for whom parole
3017
02:49:22.920 --> 02:49:25.450
has been granted but they've not yet been released, is there
3018
02:49:25.450 --> 02:49:29.650
any effort to accelerate that and to expedite that so as to
3019
02:49:29.650 --> 02:49:32.540
get those 300 individuals released and therefore reduce
3020
02:49:32.540 --> 02:49:34.750
their numbers in the prison population?
3021
02:49:35.710 --> 02:49:39.080
We've made every effort to ensure that home
3022
02:49:39.080 --> 02:49:42.090
plans are being reviewed and approved as soon as possible
3023
02:49:42.090 --> 02:49:46.080
those within the ability of the board and certainly making
3024
02:49:46.080 --> 02:49:47.400
the notification.
3025
02:49:47.400 --> 02:49:52.290
There are some individuals in there as well who perhaps need
3026
02:49:52.290 --> 02:49:55.200
assistance with home plans that we're certainly working with
3027
02:49:55.200 --> 02:49:59.922
them on there are also individuals who within that group,
3028
02:49:59.922 --> 02:50:04.922
received parole two from an after sentences that haven't
3029
02:50:05.170 --> 02:50:09.790
been effectuated yet so that that number includes many
3030
02:50:09.790 --> 02:50:12.930
different factions but where we can assess we technically
3031
02:50:12.930 --> 02:50:13.763
happened well.
3032
02:50:15.210 --> 02:50:17.980
And as with any acceleration is just this guy's
3033
02:50:19.851 --> 02:50:21.060
gonna make reference to any acceleration of parole hearings.
3034
02:50:23.046 --> 02:50:24.399
That is, we're going to hold parole hearings at a greater
3035
02:50:24.399 --> 02:50:25.930
volume than we have before in order to see whether
3036
02:50:25.930 --> 02:50:29.310
individuals are appropriate for parole and
3037
02:50:29.310 --> 02:50:30.570
appropriate for release.
3038
02:50:32.780 --> 02:50:37.520
Not not outside of conducting hearings within
3039
02:50:37.520 --> 02:50:38.920
the parole eligibility.
3040
02:50:40.620 --> 02:50:43.470
So that's I can tell from what you've answered.
3041
02:50:44.760 --> 02:50:48.100
All the parole has done is to attempt where there have been
3042
02:50:49.070 --> 02:50:52.130
parole arguments and parole hearings, you've attempted to
3043
02:50:52.130 --> 02:50:53.270
expedite decisions.
3044
02:50:54.120 --> 02:50:57.160
But you haven't attempted to increase the number of parole
3045
02:50:58.193 --> 02:51:02.423
hearings nor changed the expedition of the issuance of the
3046
02:51:03.511 --> 02:51:05.711
parole permits in the wake of this pandemic.
3047
02:51:06.833 --> 02:51:08.780
Is that is that correct?
3048
02:51:08.780 --> 02:51:11.100
I would say the parole has made a drastic effort
3049
02:51:11.100 --> 02:51:15.690
to continue to Maintain the operations of the agency and
3050
02:51:15.690 --> 02:51:19.720
work within the confines of our statutory provisions.
3051
02:51:19.720 --> 02:51:20.890
Okay, but that's not my question.
3052
02:51:20.890 --> 02:51:23.440
My question that whether you're seeking to maintain I'm sure
3053
02:51:25.033 --> 02:51:26.010
you're sure you're attempting to maintain as best you can.
3054
02:51:26.010 --> 02:51:30.100
My question, is there any attempt to to accelerate or
3055
02:51:30.100 --> 02:51:33.250
expedite either parole hearings or the issuance of parole
3056
02:51:33.250 --> 02:51:37.032
permits in order to move these individuals more quickly?
3057
02:51:37.032 --> 02:51:41.560
Who are appropriate for parole release but who have not yet
3058
02:51:41.560 --> 02:51:42.393
been released?
3059
02:51:43.820 --> 02:51:46.710
No OSI, some creating the option for video
3060
02:51:46.710 --> 02:51:48.860
conferencing which we had never had before.
3061
02:51:50.830 --> 02:51:55.500
No, not outside of the confines of statutory authority.
3062
02:51:57.690 --> 02:52:01.023
Okay, I have no further questions.
3063
02:52:01.023 --> 02:52:02.420
I'll turn it back to Justice Gaziano.
3064
02:52:02.420 --> 02:52:04.810
No further questions chief thank you.
3065
02:52:04.810 --> 02:52:06.000
Justice Lowy.
3066
02:52:06.000 --> 02:52:07.990
No further questions chief thank you.
3067
02:52:07.990 --> 02:52:09.220
Justice Budd.
3068
02:52:09.220 --> 02:52:11.370
Am all set thank you.
3069
02:52:11.370 --> 02:52:13.650
Justice Cypher.
3070
02:52:14.960 --> 02:52:16.170
No thank you,
3071
02:52:16.170 --> 02:52:17.870
And Justice Kafker.
3072
02:52:17.870 --> 02:52:19.680
No further questions.
3073
02:52:19.680 --> 02:52:21.130
All right.
3074
02:52:21.130 --> 02:52:24.320
Thank you, Mr. Anderson and thank you, Miss Maroney.
3075
02:52:24.320 --> 02:52:27.460
We'll turn it now to Elizabeth Riley on behalf of the
3076
02:52:27.460 --> 02:52:28.740
Suffolk DHS office.
3077
02:52:32.080 --> 02:52:33.890
Afternoon, Your Honor, Chief Justice.
3078
02:52:33.890 --> 02:52:36.770
This is Donna Adelanto General Counsel for district attorney
3079
02:52:36.770 --> 02:52:40.280
Rollins start off argument and handle the legal pieces.
3080
02:52:41.460 --> 02:52:45.010
Deputy Chief Liz Riley is on the ground in the district
3081
02:52:45.010 --> 02:52:47.600
court and the Superior Court and will have answers to
3082
02:52:47.600 --> 02:52:49.620
factual questions that you have.
3083
02:52:49.620 --> 02:52:52.880
I'd like to start by saying that district attorney Rawlins
3084
02:52:52.880 --> 02:52:55.930
who is on the line acknowledges the report is a special
3085
02:52:55.930 --> 02:52:59.470
master and thanks all of those who chose collaboration,
3086
02:52:59.470 --> 02:53:02.420
looking for a negotiated resolution in the midst of this
3087
02:53:02.420 --> 02:53:03.900
frightening pandemic.
3088
02:53:03.900 --> 02:53:06.390
We recognize the urgency here.
3089
02:53:06.390 --> 02:53:10.620
If we looked at Rikers, the correctional facility in Rikers
3090
02:53:10.620 --> 02:53:12.640
there was a report just this morning.
3091
02:53:12.640 --> 02:53:17.110
That has seven times a higher rate of infection inside that
3092
02:53:17.110 --> 02:53:20.630
Correctional Facility than exists in the New York City area
3093
02:53:20.630 --> 02:53:25.470
itself, which is the the heart of the pandemic right now.
3094
02:53:25.470 --> 02:53:29.680
So certainly these are not ordinary times decarceration in
3095
02:53:29.680 --> 02:53:33.310
certain instances, like these exceptional circumstances, is
3096
02:53:33.310 --> 02:53:38.310
the just inhumane way to protect the vulnerable by allowing
3097
02:53:38.360 --> 02:53:41.943
social distancing that can't possibly happen to stay where
3098
02:53:41.943 --> 02:53:44.350
they are now.
3099
02:53:44.350 --> 02:53:47.980
We can and must, though do this without losing sight of the
3100
02:53:47.980 --> 02:53:52.167
needs of survivors and victims pursuant to our obligations
3101
02:53:52.167 --> 02:53:57.155
under Chapter 258 B and our obligation to treat them with
3102
02:53:57.155 --> 02:53:59.470
dignity and respect.
3103
02:53:59.470 --> 02:54:02.980
Decarceration I'd like to know also protects those who work
3104
02:54:02.980 --> 02:54:04.700
behind the wall.
3105
02:54:04.700 --> 02:54:08.170
There has been some discussion this morning about inmates
3106
02:54:08.170 --> 02:54:12.830
who have been diagnosed with COVID-19 but are left of the
3107
02:54:12.830 --> 02:54:16.750
conversation is the correctional officer in Shirley who's
3108
02:54:16.750 --> 02:54:19.550
also been diagnosed with COVID-19.
3109
02:54:19.550 --> 02:54:24.550
We understand, and so the the moves were making here to
3110
02:54:25.220 --> 02:54:30.050
decarceration certainly protect both inmates and people who
3111
02:54:30.050 --> 02:54:32.510
are working behind the walls.
3112
02:54:32.510 --> 02:54:35.710
In Suffolk, I'd like to say we're not just ready to go.
3113
02:54:35.710 --> 02:54:39.230
We're rounding the first bench here, thanks to the mass bail
3114
02:54:39.230 --> 02:54:43.400
fund who provided us and CPCs and the Suffolk lawyers for
3115
02:54:43.400 --> 02:54:46.660
justice with lifts of those who are in the jail.
3116
02:54:46.660 --> 02:54:50.140
We are in the process of expedited hearing.
3117
02:54:50.140 --> 02:54:54.040
And one of the reasons why we are excited to be at the table
3118
02:54:54.040 --> 02:54:58.030
with the special master trying to negotiate a resolution.
3119
02:54:58.030 --> 02:55:02.500
We recognize the burden that we entry puts on the Department
3120
02:55:03.482 --> 02:55:05.090
of correction and this traffic sheriff.
3121
02:55:05.090 --> 02:55:08.020
But this is no longer the time for the status quo.
3122
02:55:08.020 --> 02:55:10.830
There is no comfort level to what's going on here.
3123
02:55:10.830 --> 02:55:14.930
There is just an urgency we'll note that just within the
3124
02:55:14.930 --> 02:55:18.760
last hour a federal district court judge in Pennsylvania,
3125
02:55:18.760 --> 02:55:21.570
john Jones ordered the immediate release of all ice
3126
02:55:23.220 --> 02:55:25.250
detainees of all ice detainees.
3127
02:55:25.250 --> 02:55:28.740
So again, this is is not the time for the status quo.
3128
02:55:28.740 --> 02:55:33.740
We do ask, though, that this court order, put take a
3129
02:55:37.150 --> 02:55:40.290
leadership role with the order so that there's some
3130
02:55:40.290 --> 02:55:42.470
consistency across the Commonwealth.
3131
02:55:42.470 --> 02:55:46.040
And we asked to that the agreements between district
3132
02:55:46.040 --> 02:55:49.700
attorneys and the defense part go directly to the
3133
02:55:49.700 --> 02:55:51.120
single justice.
3134
02:55:51.120 --> 02:55:55.296
In fact, we've had some experience in Suffolk County,
3135
02:55:55.296 --> 02:55:59.698
with greed, two motions in the last two weeks being denied
3136
02:55:59.698 --> 02:56:04.200
in court in Suffolk County and the court has evidence of
3137
02:56:04.200 --> 02:56:08.210
this and the affidavit by attorney Kiley in paragraph seven.
3138
02:56:08.210 --> 02:56:10.650
So I have to respectfully disagree with my brother from the
3139
02:56:10.650 --> 02:56:12.310
attorney general's office.
3140
02:56:12.310 --> 02:56:14.890
There are agreed to motions that are being denied.
3141
02:56:14.890 --> 02:56:18.590
And that is why it is important that at least for those
3142
02:56:18.590 --> 02:56:21.040
agreements, we go directly to the single justice.
3143
02:56:22.640 --> 02:56:26.390
I'd also like to say that we are strong supporters of the
3144
02:56:26.390 --> 02:56:28.580
report reporting requirements.
3145
02:56:28.580 --> 02:56:31.930
It's critical that we have that reporting requirements so
3146
02:56:31.930 --> 02:56:33.430
that we can be nimble.
3147
02:56:33.430 --> 02:56:35.900
And we asked that that include tracking of racial
3148
02:56:35.900 --> 02:56:40.900
compensation, compensation, compensation, racial composition
3149
02:56:42.140 --> 02:56:45.130
of the people who are released, this Court has already
3150
02:56:45.130 --> 02:56:49.900
recognized that there are disparate impacts on people of
3151
02:56:49.900 --> 02:56:53.350
color, especially black and brown members of our community.
3152
02:56:53.350 --> 02:56:58.350
And it's we need to be nimble when we see that whatever
3153
02:56:59.870 --> 02:57:04.067
agreement is put in place presents a problem that adds to
3154
02:57:08.350 --> 02:57:09.770
those disparities.
3155
02:57:09.770 --> 02:57:13.760
It is part of the reason why in our country we did talk
3156
02:57:13.760 --> 02:57:18.455
about the failure of data sharing under Chapter six day,
3157
02:57:18.455 --> 02:57:23.290
section 1810, three quarters, and what, why we've had to
3158
02:57:23.290 --> 02:57:28.060
rely on outside partners to get some information.
3159
02:57:28.060 --> 02:57:31.246
Although I do want to also recognize that this topic,
3160
02:57:31.246 --> 02:57:34.019
sheriff's office and DC just in particular, have been
3161
02:57:34.019 --> 02:57:38.000
extremely good in the last two weeks, and really back to
3162
02:57:38.000 --> 02:57:42.190
January to share some of the data but we do need more in
3163
02:57:42.190 --> 02:57:43.790
these exceptional circumstances.
3164
02:57:45.350 --> 02:57:49.630
I'm going to open it up now for questions and again, Deputy
3165
02:57:49.630 --> 02:57:53.841
Chief Liz Riley is here who has been handling most of what's
3166
02:57:53.841 --> 02:57:55.070
going on in the ground.
3167
02:57:55.070 --> 02:57:56.420
Thank you Justice Gaziano.
3168
02:57:56.420 --> 02:57:58.830
I have no questions, Chief, thank you.
3169
02:57:58.830 --> 02:58:00.641
Justice Lowy.
3170
02:58:00.641 --> 02:58:02.120
I have no question chief, thank you.
3171
02:58:02.120 --> 02:58:03.230
Justice Budd.
3172
02:58:04.230 --> 02:58:06.080
Am all set thank you.
3173
02:58:06.080 --> 02:58:07.980
justice Cypher.
3174
02:58:07.980 --> 02:58:09.460
No, thank you.
3175
02:58:09.460 --> 02:58:11.420
And justice Kafker.
3176
02:58:11.420 --> 02:58:15.210
I was planning to say In the voice support the
3177
02:58:15.210 --> 02:58:17.180
special special masters report then?
3178
02:58:19.880 --> 02:58:23.120
No I, Your Honor, we are some issues that we
3179
02:58:23.120 --> 02:58:25.370
have with the special report.
3180
02:58:25.370 --> 02:58:29.210
I general we are in support of the resolution.
3181
02:58:31.651 --> 02:58:34.501
But we do believe, again that the racial composition, the
3182
02:58:35.728 --> 02:58:37.420
compensation, compensation should be put in there.
3183
02:58:37.420 --> 02:58:41.590
I apologize, I keep tripping over that word, and there is if
3184
02:58:42.590 --> 02:58:47.590
some of the exemptions are removed that were asked of by the
3185
02:58:48.060 --> 02:58:51.200
petitioners, we would say that at least an exemption should
3186
02:58:51.200 --> 02:58:54.700
be put in place for murder for first degree murder.
3187
02:58:55.772 --> 02:58:57.540
Am confused.
3188
02:58:57.540 --> 02:59:00.200
Do you want first to reverse the what?
3189
02:59:02.380 --> 02:59:05.210
So that it would be one of the exceptions
3190
02:59:05.210 --> 02:59:06.820
provided in the agenda.
3191
02:59:08.235 --> 02:59:12.020
Are you disagreeing with the gist of the
3192
02:59:12.020 --> 02:59:16.470
exception or are you in agreement with the
3193
02:59:16.470 --> 02:59:18.440
gist of the exceptions?
3194
02:59:18.440 --> 02:59:21.730
I would say that our general response has been
3195
02:59:21.730 --> 02:59:24.890
that we do have concerns, as has been expressed by the
3196
02:59:24.890 --> 02:59:28.690
petitioners, that the exceptions will swallow the rule.
3197
02:59:28.690 --> 02:59:32.470
The most important message that we would like to come in the
3198
02:59:32.470 --> 02:59:35.920
order about the exceptions is that this is just the floor,
3199
02:59:35.920 --> 02:59:40.920
that it provides an opportunity for counties to just use
3200
02:59:41.460 --> 02:59:44.130
this as a floor and it is not the ceiling that it doesn't
3201
02:59:44.130 --> 02:59:47.860
preclude agreements between parties to be put forward to the
3202
02:59:47.860 --> 02:59:52.860
single justice when it's appropriate and responsive to both
3203
02:59:53.405 --> 02:59:56.990
the safety of victims and witnesses and community safety.
3204
02:59:58.700 --> 03:00:00.250
I have no further questions.
3205
03:00:01.100 --> 03:00:01.933
I got one question.
3206
03:00:01.933 --> 03:00:04.020
You made some reference to racial composition, what what
3207
03:00:04.020 --> 03:00:08.140
would you be suggesting that be done with regard to matters
3208
03:00:08.140 --> 03:00:10.140
of racial composition of those released?
3209
03:00:11.200 --> 03:00:13.850
Well, I concern Your honor and trust that we
3210
03:00:13.850 --> 03:00:16.868
have the data and the information in order to be nimble.
3211
03:00:16.868 --> 03:00:21.680
If we find that in, you know, by the end of the week or by
3212
03:00:21.680 --> 03:00:24.270
the end of five days, let's say or the first reporting
3213
03:00:24.270 --> 03:00:27.240
requirement on Tuesday, that the only people who are being
3214
03:00:27.240 --> 03:00:32.110
released are those who are approved.
3215
03:00:32.110 --> 03:00:35.640
Or, you know, to give you an example, we just got some data
3216
03:00:35.640 --> 03:00:40.330
from the house of correction in South Bay and in there we
3217
03:00:40.330 --> 03:00:43.780
have 62 people who were released Over the last two weeks
3218
03:00:43.780 --> 03:00:48.391
from March 16 to march 30 of the 62 released all were women
3219
03:00:48.391 --> 03:00:50.330
and 72%, were white.
3220
03:00:51.390 --> 03:00:56.390
That is that is, is challenging, I think and we would need
3221
03:00:56.820 --> 03:01:00.500
to really understand why that's happening and some of those
3222
03:01:00.500 --> 03:01:02.150
were sentences that were wrapped.
3223
03:01:03.086 --> 03:01:04.126
They weren't based on requests.
3224
03:01:04.126 --> 03:01:06.670
So I'm not saying that, you know, any of it was done in an
3225
03:01:06.670 --> 03:01:07.880
intentional matter.
3226
03:01:07.880 --> 03:01:12.550
But certainly we need to understand that we have equity in
3227
03:01:12.550 --> 03:01:17.200
the way that release is being provided to into detainees
3228
03:01:17.200 --> 03:01:18.033
and inmates.
3229
03:01:19.470 --> 03:01:21.227
And I guess you made a reference.
3230
03:01:21.227 --> 03:01:23.060
The MCI surely confusion?
3231
03:01:23.060 --> 03:01:26.083
You were telling me that it's a prison guard who's tested
3232
03:01:26.083 --> 03:01:27.440
positive not an inmate?
3233
03:01:27.440 --> 03:01:28.550
Yes, your honor.
3234
03:01:28.550 --> 03:01:30.980
I think so, that's that's where I'd heard about
3235
03:01:30.980 --> 03:01:32.760
MCI having somebody who was positive but
3236
03:01:32.760 --> 03:01:34.458
to not be a prisoner.
3237
03:01:34.458 --> 03:01:35.291
I have no further questions.
3238
03:01:35.291 --> 03:01:36.890
Anybody else have any questions, Justice Gaziano?
3239
03:01:36.890 --> 03:01:39.380
I have a follow up question to a response to
3240
03:01:39.380 --> 03:01:40.770
Jessica Misawa.
3241
03:01:40.770 --> 03:01:43.950
I'm a bit confused, with respect to the exemptions,
3242
03:01:43.950 --> 03:01:47.639
and you mentioned a crime of murder, is it the DEA position
3243
03:01:47.639 --> 03:01:51.260
that that murder is should be released and that this
3244
03:01:51.260 --> 03:01:52.093
program?
3245
03:01:52.930 --> 03:01:55.215
No, in fact should be an exemption.
3246
03:01:55.215 --> 03:02:00.215
Okay, that they should be ineligible
3247
03:02:00.570 --> 03:02:01.460
to be released?
3248
03:02:02.590 --> 03:02:04.242
That they would not receive the presumption
3249
03:02:04.242 --> 03:02:05.680
of relief.
3250
03:02:05.680 --> 03:02:09.170
And again, in our eyes, the presumption is merely the making
3251
03:02:09.170 --> 03:02:12.200
of a list right, we're just putting the list together
3252
03:02:12.200 --> 03:02:15.173
so that we can very quickly and efficiently go through as we
3253
03:02:15.173 --> 03:02:18.240
have been on the ground here in Suffolk County.
3254
03:02:18.240 --> 03:02:21.150
Since this happened and district attorney Rollins has been
3255
03:02:21.150 --> 03:02:25.524
a leader on that front and has responded in a very
3256
03:02:25.524 --> 03:02:27.310
quick and expedited way.
3257
03:02:28.168 --> 03:02:30.250
You mentioned murder case so you want the
3258
03:02:30.250 --> 03:02:33.060
flexibility to be able to move to have murder
3259
03:02:33.060 --> 03:02:35.650
defendants released if you want to?
3260
03:02:37.710 --> 03:02:42.710
No we want that to be that that put into the
3261
03:02:42.760 --> 03:02:45.490
exemptions, they excluded offensive.
3262
03:02:46.890 --> 03:02:50.010
It doesn't mean, your honor that above and beyond
3263
03:02:50.010 --> 03:02:55.010
disagreement that we wouldn't necessarily find a particular
3264
03:02:55.216 --> 03:02:59.570
person who's been convicted of murder.
3265
03:02:59.570 --> 03:03:02.090
I think one example that I gave to the special masters
3266
03:03:02.090 --> 03:03:05.470
if we had, for example, an 84 year old boy,
3267
03:03:05.470 --> 03:03:07.680
As far as I look back, I get you know,
3268
03:03:07.680 --> 03:03:08.922
I was misunderstanding you.
3269
03:03:08.922 --> 03:03:10.660
Okay, I get you enough.
3270
03:03:10.660 --> 03:03:12.178
All right.
3271
03:03:12.178 --> 03:03:13.360
Thank you.
3272
03:03:13.360 --> 03:03:14.193
Yeah, I just did.
3273
03:03:14.193 --> 03:03:15.080
Justice Lowy.
3274
03:03:15.080 --> 03:03:16.340
Am okay thank you.
3275
03:03:16.340 --> 03:03:17.750
Justice Budd.
3276
03:03:17.750 --> 03:03:20.940
Just just just in terms of the question about
3277
03:03:20.940 --> 03:03:25.940
exemptions are there others aside from first degree murder
3278
03:03:26.210 --> 03:03:30.280
that you that you would say should be
3279
03:03:30.280 --> 03:03:33.270
ineligible for consideration?
3280
03:03:35.190 --> 03:03:36.290
No, Your Honor.
3281
03:03:38.520 --> 03:03:41.460
Okay again, our concern, our concern is really that
3282
03:03:41.460 --> 03:03:45.300
there are so many exceptions that it will swallow the rule.
3283
03:03:45.300 --> 03:03:48.590
And that we want to be sure that this is just before.
3284
03:03:48.590 --> 03:03:51.768
And it allows us to come to agreements with the defense bar
3285
03:03:51.768 --> 03:03:56.300
on other individuals on a case by case basis, taking the
3286
03:03:56.300 --> 03:03:58.859
careful review that we've already been doing
3287
03:03:58.859 --> 03:04:00.310
in Suffolk County.
3288
03:04:00.310 --> 03:04:01.210
Thank you.
3289
03:04:02.290 --> 03:04:03.879
Justice Cypher.
3290
03:04:03.879 --> 03:04:06.220
Nothing, thank you.
3291
03:04:06.220 --> 03:04:07.640
Justice Kafker.
3292
03:04:07.640 --> 03:04:08.880
Also.
3293
03:04:08.880 --> 03:04:10.110
And I've got no further questions.
3294
03:04:10.110 --> 03:04:12.180
Thank you, Miss pentimento and thank you Miss Riley
3295
03:04:12.180 --> 03:04:13.180
for being available.
3296
03:04:14.370 --> 03:04:15.934
Thank you, Your Honor.
3297
03:04:15.934 --> 03:04:18.280
If I could just say one other thing. We've said many times,
3298
03:04:18.280 --> 03:04:21.810
but rule 29 we do believe should be
3299
03:04:21.810 --> 03:04:24.275
in the in the form of stay.
3300
03:04:24.275 --> 03:04:28.190
I agree with a comment that was made earlier from bench that
3301
03:04:28.190 --> 03:04:32.720
it's in an article and doesn't really fit well.
3302
03:04:32.720 --> 03:04:36.950
But it's the best that we see outside of using just here
3303
03:04:36.950 --> 03:04:38.900
authority under common law the Charles.
3304
03:04:40.600 --> 03:04:44.540
I'm sorry, it would be Would it's a better vehicle
3305
03:04:44.540 --> 03:04:47.840
than to use the authority to stay under Charles or, you.
3306
03:04:48.836 --> 03:04:50.403
(cross Talk)
3307
03:04:50.403 --> 03:04:53.240
I apologize, Your Honor, we believe Charles
3308
03:04:53.240 --> 03:04:58.240
should be the first step and is the most flexible,
3309
03:04:58.281 --> 03:05:01.960
and wait for the court to place the order.
3310
03:05:01.960 --> 03:05:05.094
And then if it is under Rule 29, that it would have to be
3311
03:05:05.094 --> 03:05:08.650
formed in a stay in order to avoid
3312
03:05:08.650 --> 03:05:10.100
separation of powers concern.
3313
03:05:11.200 --> 03:05:14.140
Your preferred course of action would be for us to
3314
03:05:14.140 --> 03:05:18.340
do it as they stay of execution of sentence and not as a
3315
03:05:18.340 --> 03:05:21.650
revision of the sentence.
3316
03:05:21.650 --> 03:05:22.483
Yes, Your Honor.
3317
03:05:22.483 --> 03:05:26.230
And and it, you know, I think there'll be further litigation
3318
03:05:26.230 --> 03:05:31.230
about whether or not we would be able to do a agree to plea
3319
03:05:31.250 --> 03:05:36.130
at the end of this day, you know, to, again, to be flexible
3320
03:05:36.130 --> 03:05:39.590
and nimble in the face of this global pandemic.
3321
03:05:40.780 --> 03:05:43.190
One other further question, actually you made
3322
03:05:43.190 --> 03:05:46.860
reference to, so you will agree you'll have cases in which
3323
03:05:46.860 --> 03:05:49.310
you have agreed that somebody should be released.
3324
03:05:51.452 --> 03:05:56.090
Is there any view that or no promise on your part is can be
3325
03:05:56.090 --> 03:05:57.312
changed?
3326
03:05:57.312 --> 03:05:59.220
I mean, is there any is there any capacity to do a no
3327
03:05:59.220 --> 03:06:01.750
process during the pandemic with the view that you could
3328
03:06:01.750 --> 03:06:02.800
prosecute afterwards?
3329
03:06:04.290 --> 03:06:06.900
Yeah that considering that I think there's
3330
03:06:06.900 --> 03:06:11.260
some diktat in cases in the 1920s that essentially says our
3331
03:06:11.260 --> 03:06:15.680
power to no process and with sentencing, I'm not sure if the
3332
03:06:15.680 --> 03:06:20.110
extraordinary circumstances that we are facing now would be
3333
03:06:20.110 --> 03:06:23.270
the right way to move forward with a null cross
3334
03:06:23.270 --> 03:06:25.330
and litigate that ability.
3335
03:06:25.330 --> 03:06:27.380
But that's something that we've been considering,
3336
03:06:27.380 --> 03:06:30.620
especially, you know, for those who are post conviction,
3337
03:06:30.620 --> 03:06:32.620
who have been sentenced.
3338
03:06:32.620 --> 03:06:34.970
You've been asking for us to address that issue
3339
03:06:34.970 --> 03:06:36.320
and a decision potentially.
3340
03:06:38.080 --> 03:06:41.100
There is some potential yes, Your Honor.
3341
03:06:41.100 --> 03:06:44.874
The case has not yet teed off, but there is some potential
3342
03:06:44.874 --> 03:06:46.610
that will come your way and certainly with the district
3343
03:06:46.610 --> 03:06:49.820
court and superior court pre trial cases, you know, using a
3344
03:06:49.820 --> 03:06:52.280
nonprofit is something that we were considering.
3345
03:06:52.280 --> 03:06:55.360
But again, we need to take these on case by case basis.
3346
03:06:55.360 --> 03:06:59.320
And considering this the incident that charges the victim
3347
03:06:59.320 --> 03:07:00.940
witnesses and community safety.
3348
03:07:03.040 --> 03:07:05.870
Thank you, thank you Miss Riley.
3349
03:07:05.870 --> 03:07:10.460
We'll turn now to Mr. Ralph on behalf of Berkshires Middle
3350
03:07:11.510 --> 03:07:12.343
District in the Northwest.
3351
03:07:13.470 --> 03:07:15.910
Good afternoon and may it please the court.
3352
03:07:15.910 --> 03:07:17.500
Northwestern Berkshire are proud to
3353
03:07:17.500 --> 03:07:19.470
stand together on this effort.
3354
03:07:19.470 --> 03:07:22.450
Well, the Middlesex brings to this the experience of already
3355
03:07:22.450 --> 03:07:26.130
having collaborated with Sheriff tuition to handle motions
3356
03:07:26.130 --> 03:07:30.640
that today have resulted in the release of 63 inmates.
3357
03:07:30.640 --> 03:07:34.110
Our opportunity Sheriff is have also already prepared a list
3358
03:07:34.110 --> 03:07:37.550
of eligible prisoners and are ready to proceed immediately
3359
03:07:37.550 --> 03:07:40.760
with the consent judgment.
3360
03:07:40.760 --> 03:07:43.660
I think it's really certain non violent offenders in order
3361
03:07:44.760 --> 03:07:48.310
to reduce the risk of contagion find the approach in other
3362
03:07:48.310 --> 03:07:50.240
jurisdictions and our country have already taken.
3363
03:07:50.240 --> 03:07:53.725
Other nations around the world have also recognized the
3364
03:07:53.725 --> 03:07:57.071
enormous threat that Corona virus causes to people who are
3365
03:07:57.071 --> 03:07:59.940
incarcerated and have taken the same sort of action that we
3366
03:07:59.940 --> 03:08:00.790
are urging today.
3367
03:08:01.631 --> 03:08:04.540
The United Nations Commissioner for Human Rights is urged
3368
03:08:04.540 --> 03:08:07.190
all countries to immediately take steps to release
3369
03:08:07.190 --> 03:08:09.760
vulnerable and low risk prisoners.
3370
03:08:09.760 --> 03:08:13.430
Canada and Germany, two other comparable democracies are
3371
03:08:13.430 --> 03:08:16.770
releasing thousands of non violent offenders held pre trial
3372
03:08:16.770 --> 03:08:20.610
are nearing the end of this agreement also ensures that
3373
03:08:20.610 --> 03:08:23.790
justice will not be denied to victims, their families and
3374
03:08:23.790 --> 03:08:25.960
the communities that we serve.
3375
03:08:25.960 --> 03:08:29.230
Once the epidemic is founded, we'll proceed with the pending
3376
03:08:29.230 --> 03:08:31.930
cases and convicted defendants with time remaining on their
3377
03:08:31.930 --> 03:08:35.170
sentences will still ultimately serve their major adult
3378
03:08:36.340 --> 03:08:39.934
sentences and only going to be challenging to take the type
3379
03:08:39.934 --> 03:08:41.840
of decisive action that's required to prescribe both public
3380
03:08:41.840 --> 03:08:45.080
health Public Safety in this unprecedented time.
3381
03:08:45.080 --> 03:08:47.770
Yet it's precisely those difficult decisions that will
3382
03:08:47.770 --> 03:08:49.850
define us and we come today.
3383
03:08:49.850 --> 03:08:52.760
As ministers of justice, we have a moral duty to protect
3384
03:08:52.760 --> 03:08:55.600
both the public and those who cannot social defense or
3385
03:08:55.600 --> 03:08:57.750
otherwise protect themselves.
3386
03:08:57.750 --> 03:09:01.060
Science, statistics and justice all require that we
3387
03:09:01.060 --> 03:09:03.890
implement the sort of solution proposed here.
3388
03:09:03.890 --> 03:09:07.312
We respectfully request that the court accept the special
3389
03:09:07.312 --> 03:09:11.110
masters report and recommendation before opening up to
3390
03:09:11.110 --> 03:09:12.600
additional questions.
3391
03:09:12.600 --> 03:09:15.740
I want to address a question that I believe justice Budd
3392
03:09:16.816 --> 03:09:19.510
asked Sr Attorney General Pascoe what seems like a long
3393
03:09:19.510 --> 03:09:21.563
time ago, she asked about the
3394
03:09:21.563 --> 03:09:25.390
feasibility of pre release testing.
3395
03:09:25.390 --> 03:09:29.200
Our office has already consulted with retained infectious
3396
03:09:29.200 --> 03:09:32.450
disease doctor to assist us in our evaluation.
3397
03:09:32.450 --> 03:09:37.450
And based on our discussion with that doctor, this is
3398
03:09:37.790 --> 03:09:42.790
apparently a conundrum that even Hospitals are are
3399
03:09:43.457 --> 03:09:46.590
struggling with on a daily basis.
3400
03:09:46.590 --> 03:09:51.590
For instance, surgeons who presumably should not be COVID-19
3401
03:09:52.390 --> 03:09:57.350
positive, sometimes urge to take a test
3402
03:09:57.350 --> 03:09:59.920
before they do surgery.
3403
03:09:59.920 --> 03:10:03.930
The problem is, is that the results of those tests can take
3404
03:10:03.930 --> 03:10:08.930
days to actually return and during the time that the tests
3405
03:10:09.940 --> 03:10:13.360
are pending, of course, the doctor is going to be, you know,
3406
03:10:13.360 --> 03:10:16.700
circulating but other potentially infected people.
3407
03:10:16.700 --> 03:10:19.870
It's the same problem that you would have in any of the
3408
03:10:19.870 --> 03:10:22.040
presence of houses of correction.
3409
03:10:22.040 --> 03:10:24.910
You can test an inmate before they're going to be released
3410
03:10:24.910 --> 03:10:27.620
to collect them while those test results are pending, you
3411
03:10:27.620 --> 03:10:32.300
would potentially be returning them to the same infected
3412
03:10:32.300 --> 03:10:34.640
environment that they came from.
3413
03:10:34.640 --> 03:10:39.380
So that is a conundrum that even infectious disease doctors
3414
03:10:39.380 --> 03:10:42.330
do not have a ready solution.
3415
03:10:42.330 --> 03:10:46.456
For now, therefore, the proposal that is really agreement at
3416
03:10:46.456 --> 03:10:50.220
this point may be the best solution that we can craft.
3417
03:10:51.330 --> 03:10:55.760
And I just want to clarify one point that was raised in the
3418
03:10:55.760 --> 03:10:58.390
last argument with respect to murder.
3419
03:10:58.390 --> 03:11:03.390
The very first excluded utterance and Appendix A are crimes
3420
03:11:05.030 --> 03:11:06.630
of violence.
3421
03:11:06.630 --> 03:11:09.770
There's no serious question that murder is a crime of
3422
03:11:09.770 --> 03:11:12.710
violence so I don't think that there's any legitimate
3423
03:11:12.710 --> 03:11:15.410
dispute that someone who committed murder would be
3424
03:11:15.410 --> 03:11:16.990
categorically excluded.
3425
03:11:18.434 --> 03:11:22.040
At this point, I'd open up to any questions
3426
03:11:22.040 --> 03:11:23.620
that the court might have.
3427
03:11:23.620 --> 03:11:25.150
Thank you Justice Gaziano.
3428
03:11:25.150 --> 03:11:28.070
In fact, actually, that's why I asked the
3429
03:11:28.070 --> 03:11:30.070
question about murder because I had assumed it was a crime
3430
03:11:30.070 --> 03:11:33.130
of violence but so you you buy into the entirety of the
3431
03:11:33.130 --> 03:11:33.970
Masters report?
3432
03:11:36.329 --> 03:11:40.060
Yes, Masters report to be honest with a negotiated
3433
03:11:40.060 --> 03:11:44.000
document and times that you enjoy negotiation to you.
3434
03:11:45.530 --> 03:11:49.020
Like some things and something to accept on balance.
3435
03:11:49.020 --> 03:11:53.690
We believe that the Masters report is carefully crafted and
3436
03:11:53.690 --> 03:11:58.690
and balances the interest in the community and safety along
3437
03:11:58.920 --> 03:12:03.330
with the interest in presidents and officials at the houses
3438
03:12:03.330 --> 03:12:08.330
of correction, and presidents, and also their safety from
3439
03:12:09.070 --> 03:12:11.130
infection from this epidemic.
3440
03:12:11.130 --> 03:12:14.430
Look, then let me ask you particularly about the
3441
03:12:14.430 --> 03:12:19.100
article 30 concerns that have been raised about altering
3442
03:12:19.100 --> 03:12:23.670
rule 29, what's your what's your position on that?
3443
03:12:23.670 --> 03:12:27.467
My thought is that everyone said, you know, there
3444
03:12:27.467 --> 03:12:28.300
is no great set.
3445
03:12:28.300 --> 03:12:31.470
This is an unprecedented circumstance, but I don't think
3446
03:12:31.470 --> 03:12:34.500
it's the case sometimes was a great
3447
03:12:34.500 --> 03:12:36.300
fit not to violate the constitution?
3448
03:12:37.200 --> 03:12:38.770
I don't think that this does violate the
3449
03:12:38.770 --> 03:12:39.603
constitution.
3450
03:12:39.603 --> 03:12:42.840
I don't think that the final rule 29 would violate the
3451
03:12:42.840 --> 03:12:44.154
constitution.
3452
03:12:44.154 --> 03:12:46.620
I think that the reason why it doesn't violate the
3453
03:12:46.620 --> 03:12:51.260
constitution is essentially what the court would be doing
3454
03:12:51.260 --> 03:12:55.360
would be considering this matter, almost nunc pro tunc.
3455
03:12:56.420 --> 03:13:00.800
And the final that would be to effectuate the original
3456
03:13:00.800 --> 03:13:05.070
sentence that the judge initially intended to impose.
3457
03:13:05.070 --> 03:13:08.120
At the time of the sentence, the judge presumably thought
3458
03:13:08.120 --> 03:13:12.340
that he was sentencing or she was sentencing the defendant
3459
03:13:12.340 --> 03:13:16.550
to present as that is commonly understood, unbeknownst to
3460
03:13:16.550 --> 03:13:19.900
anyone, particularly the judge at that time prison, as it is
3461
03:13:21.026 --> 03:13:24.040
commonly understood, would not exist.
3462
03:13:24.040 --> 03:13:28.360
Therefore, in order for the court to effectuate the intent
3463
03:13:28.360 --> 03:13:32.350
of the judge at the initial sentencing, the best way to do
3464
03:13:32.350 --> 03:13:35.240
that would be to bring it back to the trial court and let
3465
03:13:35.240 --> 03:13:40.170
the judge consider what is the appropriate sentence and
3466
03:13:40.170 --> 03:13:45.170
light of the The epidemic that we are now faced with.
3467
03:13:46.810 --> 03:13:50.330
And that also holds true if a person and you
3468
03:13:50.330 --> 03:13:53.890
know, this could be wildly off, it could be accurate.
3469
03:13:53.890 --> 03:13:58.170
I have no idea, nobody knows if that person was released
3470
03:13:58.170 --> 03:14:01.340
from serving a sentence in the facility that they already
3471
03:14:02.523 --> 03:14:06.603
never miraculously get a single case of COVID-19.
3472
03:14:09.210 --> 03:14:11.660
That's right the state but it's not about getting a
3473
03:14:11.660 --> 03:14:15.350
single case is about whether the judge a trial judge
3474
03:14:15.350 --> 03:14:20.350
intended to expose an inmate to this drastically enhanced
3475
03:14:21.520 --> 03:14:23.880
risk of infection in depth.
3476
03:14:25.470 --> 03:14:28.980
I think that the the that is different from the situation
3477
03:14:28.980 --> 03:14:32.730
was a separation of powers issue because this isn't a result
3478
03:14:32.730 --> 03:14:34.990
of anything that the defendant may have done
3479
03:14:34.990 --> 03:14:35.930
after the sentence.
3480
03:14:35.930 --> 03:14:38.030
This is a result of something that would be
3481
03:14:38.030 --> 03:14:39.880
supervised by parole.
3482
03:14:39.880 --> 03:14:43.845
This really is effectuating what What have been the judges
3483
03:14:43.845 --> 03:14:48.845
intent, had the judge been aware of circumstances that would
3484
03:14:49.020 --> 03:14:52.460
drastically impact the effect of the sentence that
3485
03:14:52.460 --> 03:14:54.000
the judge sought to impose.
3486
03:14:55.800 --> 03:14:58.040
I have no further questions.
3487
03:14:58.040 --> 03:14:59.490
Justice Lowy.
3488
03:14:59.490 --> 03:15:01.150
Yes, thank you.
3489
03:15:04.181 --> 03:15:06.030
So you mentioned Germany and some other states.
3490
03:15:06.030 --> 03:15:09.940
Are you aware of how that prison reduction took place?
3491
03:15:09.940 --> 03:15:12.030
Was it the executive branch?
3492
03:15:12.030 --> 03:15:14.300
Was the judicial branch involved?
3493
03:15:14.300 --> 03:15:17.100
And if the judicial branch was involved, to what extent?
3494
03:15:18.970 --> 03:15:22.630
Your honor, we've actually done a worldwide survey
3495
03:15:22.630 --> 03:15:26.730
of various countries ,I have to say that I can't talk about
3496
03:15:26.730 --> 03:15:29.490
the inner workings of all the different countries but I can
3497
03:15:29.490 --> 03:15:33.020
tell you that you know, there's obviously different legal
3498
03:15:33.020 --> 03:15:35.060
frameworks, different mechanisms.
3499
03:15:35.060 --> 03:15:40.060
There are, you know, it's it is the legal system
3500
03:15:40.350 --> 03:15:45.350
are our so different that I can't comment on the specific
3501
03:15:46.730 --> 03:15:51.730
mechanisms but what I can say is that comparable, developed
3502
03:15:51.780 --> 03:15:55.670
democracies around the world are considering and
3503
03:15:55.670 --> 03:15:58.490
implementing exactly the type of approach that we are
3504
03:15:58.490 --> 03:16:03.490
suggesting, that would be appropriate here in Massachusetts.
3505
03:16:03.560 --> 03:16:06.857
All right, you are the executive branch.
3506
03:16:06.857 --> 03:16:11.857
And I appreciate that you and the other parties in good
3507
03:16:12.270 --> 03:16:14.450
faith worked with the master.
3508
03:16:14.450 --> 03:16:19.450
I also expected those DHS offices it didn't also get it did
3509
03:16:20.580 --> 03:16:24.850
not in good faith based on their view, but there's nothing
3510
03:16:26.020 --> 03:16:31.020
at all that precludes an elected DA from agreeing to a
3511
03:16:32.380 --> 03:16:37.380
reduced bail, but no bail, agreeing to emotion, neutral
3512
03:16:38.030 --> 03:16:42.985
trial and then the time of play or Now prof or green,
3513
03:16:42.985 --> 03:16:47.985
if it's within 60 days to revise and revoke.
3514
03:16:48.221 --> 03:16:49.320
Isn't that right?
3515
03:16:50.570 --> 03:16:54.470
That is right, and your RSI started with my
3516
03:16:54.470 --> 03:16:57.530
introduction, we have already done that resulting in the
3517
03:16:57.530 --> 03:17:00.520
release of 63 inmates.
3518
03:17:00.520 --> 03:17:03.920
We have a list right now and we attempt to proceed on on
3519
03:17:03.920 --> 03:17:08.550
that with as much deliberate haste as possible.
3520
03:17:08.550 --> 03:17:13.550
But our authority is circumscribed by rule 29 at this point,
3521
03:17:14.428 --> 03:17:19.330
and that is essentially why it is that were coming to the
3522
03:17:19.330 --> 03:17:23.640
court also, it's important that we have the ability to
3523
03:17:23.640 --> 03:17:28.640
obtain information and have some of the other procedural
3524
03:17:28.720 --> 03:17:32.120
safeguards that are are contained in the agreement.
3525
03:17:32.990 --> 03:17:36.140
And the best that we can but we can't, we can't do
3526
03:17:36.140 --> 03:17:37.360
everything that we could do.
3527
03:17:37.360 --> 03:17:39.500
The court was to adopt this agreement.
3528
03:17:40.830 --> 03:17:41.663
Thank you.
3529
03:17:41.663 --> 03:17:42.496
One last question.
3530
03:17:43.422 --> 03:17:46.012
Not going back to the minor questions
3531
03:17:46.012 --> 03:17:48.350
from justice Gaziano and the revised and revoke.
3532
03:17:49.190 --> 03:17:53.650
Do you think if if we were to adopt your interpretation of
3533
03:17:54.859 --> 03:17:59.807
this circumstance and consider post sentencing
3534
03:17:59.807 --> 03:18:04.807
circumstances, that that would be a deviation from our case
3535
03:18:04.950 --> 03:18:07.010
law, with revising, revoke?
3536
03:18:08.880 --> 03:18:11.090
I think that it would be consistent with notions of
3537
03:18:11.090 --> 03:18:14.170
separation of powers, it would certainly be a different
3538
03:18:14.170 --> 03:18:17.898
application and will 29 has ever been applied to before.
3539
03:18:17.898 --> 03:18:21.280
But obviously, this is a unique circumstance.
3540
03:18:21.280 --> 03:18:25.750
This is the first epidemics that we have encountered.
3541
03:18:25.750 --> 03:18:28.520
So it's a unique factual circumstance, but I don't think
3542
03:18:28.520 --> 03:18:31.370
that simply because it's a unique factual circumstance.
3543
03:18:32.760 --> 03:18:35.790
The underlying legal framework necessarily provides any
3544
03:18:35.790 --> 03:18:39.817
barrier to it it's just applying a different set of flags to
3545
03:18:39.817 --> 03:18:42.507
well, that was separation of powers concepts.
3546
03:18:42.507 --> 03:18:47.507
In this context, the separation of powers concern is with
3547
03:18:48.140 --> 03:18:52.990
the court continuing to exercise supervision over
3548
03:18:52.990 --> 03:18:57.410
defendants, defendants after they have been convicted in
3549
03:18:57.410 --> 03:19:02.410
Sundance after a period of time, and thereby exercising the
3550
03:19:04.160 --> 03:19:09.160
authority of the parole board and the executive branch in
3551
03:19:10.453 --> 03:19:13.840
this case, really what it is, is a reconsideration of the
3552
03:19:13.840 --> 03:19:17.993
initial sentence in light of these extraordinary new
3553
03:19:18.860 --> 03:19:23.570
circumstances that fundamentally alter the calculus that the
3554
03:19:23.570 --> 03:19:26.420
sentencing judge would have applied
3555
03:19:26.420 --> 03:19:27.900
at the time of sentencing.
3556
03:19:27.900 --> 03:19:32.640
Has the sentencing judge been aware of a standing epidemic
3557
03:19:32.640 --> 03:19:37.640
or possibility of greatly enhanced rescue to detainees.
3558
03:19:40.360 --> 03:19:41.820
Thank you.
3559
03:19:41.820 --> 03:19:43.580
Justice Budd.
3560
03:19:43.580 --> 03:19:45.750
I have no questions, thank you.
3561
03:19:45.750 --> 03:19:47.000
Justice Cypher.
3562
03:19:48.210 --> 03:19:49.874
Yes, thank you.
3563
03:19:49.874 --> 03:19:53.970
Attorney Ralph, can you can you explain to me why a
3564
03:19:53.970 --> 03:19:57.830
stay is not a better idea than rule 29?
3565
03:19:57.830 --> 03:20:02.260
Bearing in mind that if we chose to we could amend the rule
3566
03:20:02.260 --> 03:20:06.260
a bit to permit something like a pandemic to be considered.
3567
03:20:07.930 --> 03:20:11.520
That is what turns a paragraph four of the
3568
03:20:12.721 --> 03:20:15.240
agreement that's essentially what it is that we are
3569
03:20:15.240 --> 03:20:19.130
recommending on page a paragraph four.
3570
03:20:24.994 --> 03:20:27.360
So it is not a rule 29
3571
03:20:29.000 --> 03:20:30.630
I'm sorry.
3572
03:20:30.630 --> 03:20:32.780
So so you would not we would not have
3573
03:20:32.780 --> 03:20:34.560
to rely on rule 29?
3574
03:20:35.780 --> 03:20:40.670
Revising is a proposed legal mechanism but as other
3575
03:20:42.160 --> 03:20:45.240
But against the mentioned it wouldn't necessarily have to be
3576
03:20:46.128 --> 03:20:47.137
under Rule 29.
3577
03:20:47.137 --> 03:20:49.840
It's the most convenient, well established protocol for
3578
03:20:49.840 --> 03:20:52.190
doing it and I think that it does avoid some
3579
03:20:52.190 --> 03:20:53.990
separation of powers concerns.
3580
03:20:54.880 --> 03:20:57.580
But I guess that's what I don't understand.
3581
03:20:58.867 --> 03:21:02.084
I don't I don't understand why rule 29 avoids separation of
3582
03:21:02.084 --> 03:21:05.860
power will concern that rule six and a stay wouldn't,
3583
03:21:05.860 --> 03:21:10.860
wouldn't would, why, why, why Israel 29 violated more than
3584
03:21:11.360 --> 03:21:13.410
a state ?
3585
03:21:13.410 --> 03:21:15.710
Under Rule 29, It's clearly within the province of
3586
03:21:15.710 --> 03:21:18.410
the judge to do certain things.
3587
03:21:18.410 --> 03:21:21.470
Once you get outside of rule 29 then you're relying on
3588
03:21:21.470 --> 03:21:24.600
extraordinary powers of superintendents of the court.
3589
03:21:24.600 --> 03:21:29.600
And I think that you then kind of step on to less firm
3590
03:21:30.700 --> 03:21:33.660
ground, although I think that it would it is certainly it
3591
03:21:33.660 --> 03:21:36.430
would be appropriate for the court to do it that way.
3592
03:21:36.430 --> 03:21:41.130
Rule 29 is clearly established authority of the court to
3593
03:21:41.130 --> 03:21:43.590
impose intent reconsider sentences.
3594
03:21:45.550 --> 03:21:47.460
Okay, thank you nothing further.
3595
03:21:48.330 --> 03:21:51.260
Justice Kafker.
3596
03:21:51.260 --> 03:21:55.133
Don't we have some cases we've stayed execution
3597
03:21:56.590 --> 03:22:01.397
of sentence even close appeal.
3598
03:22:03.310 --> 03:22:06.010
You have camo versus Charles
3599
03:22:06.010 --> 03:22:09.160
and excite Commonwealth vs. McLaughlin.
3600
03:22:09.160 --> 03:22:11.490
Those were both in like Duke in context.
3601
03:22:12.690 --> 03:22:14.580
So why are those closer
3602
03:22:15.420 --> 03:22:20.420
to what we're dealing with here than rule 29?
3603
03:22:23.450 --> 03:22:27.250
While they're both involved stage one is just the
3604
03:22:28.185 --> 03:22:30.030
specific method of implementation.
3605
03:22:30.030 --> 03:22:35.030
It is a different task to bring that back to the trial judge
3606
03:22:35.370 --> 03:22:37.160
of the sentencing judge to consider it.
3607
03:22:37.160 --> 03:22:39.820
The result is the same that it's a state.
3608
03:22:39.820 --> 03:22:41.970
It's just the legal tool that you're using.
3609
03:22:42.973 --> 03:22:45.790
As I was suggesting rule 29 is, you know, clearly
3610
03:22:45.790 --> 03:22:49.294
established within the bounds of the court and within the
3611
03:22:49.294 --> 03:22:52.720
bounds of the SJC to modify the rules of criminal procedure.
3612
03:22:52.720 --> 03:22:56.890
So I think that, that rule 29 has the advantage of not
3613
03:22:56.890 --> 03:23:01.890
requiring the court to use its extraordinary superintendents
3614
03:23:02.480 --> 03:23:06.770
authority over an inmate, which is potentially problematic.
3615
03:23:07.672 --> 03:23:10.600
I don't think that it is ultimately, legally prohibited.
3616
03:23:11.643 --> 03:23:14.940
But if you're on shaky ground, we believe that if he
3617
03:23:14.940 --> 03:23:16.630
proceeded under rule 29.
3618
03:23:17.990 --> 03:23:22.620
We would, forget about Germany and Sweden, New
3619
03:23:22.620 --> 03:23:27.620
Jersey, New York, California, are these all been done
3620
03:23:29.319 --> 03:23:32.130
through agreement, all of these reliefs and if not,
3621
03:23:33.045 --> 03:23:38.000
these other courts are smart too, what are they relying on
3622
03:23:38.000 --> 03:23:42.930
to justify their do are they providing any right are they
3623
03:23:42.930 --> 03:23:44.780
just doing it because it's agreed to?
3624
03:23:45.740 --> 03:23:46.880
Or are they just ignoring?
3625
03:23:46.880 --> 03:23:48.810
not putting in reasoning in on
3626
03:23:48.810 --> 03:23:52.900
the constitutional separation of powers issue?
3627
03:23:52.900 --> 03:23:55.650
Your Honor, I have to confess that we've we've
3628
03:23:56.584 --> 03:23:59.534
canvassed the entire world and we've collected thousands of
3629
03:24:00.968 --> 03:24:05.968
reports of courts releasing departments, we have not done an
3630
03:24:08.640 --> 03:24:12.890
in depth review of the legal procedures that all the
3631
03:24:12.890 --> 03:24:16.030
different differently situated courts have used.
3632
03:24:16.030 --> 03:24:19.920
I'd be more than happy to provide the to me
3633
03:24:19.920 --> 03:24:21.630
research to the court.
3634
03:24:21.630 --> 03:24:25.150
Do any of them provide a read?
3635
03:24:25.150 --> 03:24:28.110
I mean, do any of them have the equivalent of room 29
3636
03:24:28.110 --> 03:24:31.180
or rule sex or anything else that we could look at?
3637
03:24:34.150 --> 03:24:39.150
I have not done the research relating to the
3638
03:24:39.210 --> 03:24:44.210
specific mechanisms that are different jurisdictions abuse.
3639
03:24:44.525 --> 03:24:49.525
I'd be happy to find attorneys to research that and provide
3640
03:24:50.110 --> 03:24:51.220
detailed information.
3641
03:24:51.220 --> 03:24:55.578
All I can report to the court is that throughout the world,
3642
03:24:55.578 --> 03:24:57.870
this is part of the cheat.
3643
03:24:57.870 --> 03:24:59.770
But it would be very useful to me.
3644
03:24:59.770 --> 03:25:02.838
I'm not really interested in the international ones, but I,
3645
03:25:02.838 --> 03:25:07.440
if other state courts can provide or federal courts have
3646
03:25:09.147 --> 03:25:12.290
provided a rationale that could provide guidance to us,
3647
03:25:12.290 --> 03:25:15.734
I would find that very useful to have in
3648
03:25:15.734 --> 03:25:18.410
this particular context, yeah.
3649
03:25:19.480 --> 03:25:23.140
We've had like a 16 hour letter in your honor.
3650
03:25:25.060 --> 03:25:26.500
That's all I have.
3651
03:25:26.500 --> 03:25:28.790
Justice Kafker, I assume you're referring to
3652
03:25:28.790 --> 03:25:31.120
only post conviction, correct?
3653
03:25:31.120 --> 03:25:33.280
Yes I'm only interested in
3654
03:25:33.280 --> 03:25:37.260
I I'm interested in the post conviction rationality provided
3655
03:25:37.260 --> 03:25:39.850
by other states or federal courts.
3656
03:25:39.850 --> 03:25:43.204
And I We will look at it, we will get to that.
3657
03:25:43.204 --> 03:25:45.601
And we'll look into that in and submit something
3658
03:25:45.601 --> 03:25:50.601
to the court as quickly as possible, Your Honor.
3659
03:25:53.880 --> 03:25:56.740
I think you'll be focused on post sentencing where
3660
03:25:56.740 --> 03:26:00.390
they appeal because we certainly have authority already in
3661
03:26:00.390 --> 03:26:03.310
the rules with regard to a stay pending appeal.
3662
03:26:03.310 --> 03:26:04.530
So right.
3663
03:26:04.530 --> 03:26:07.430
Okay and I would invite them in. Mr. Ralph, you're welcome
3664
03:26:08.340 --> 03:26:09.960
to do that tonight, invite anybody else, including
3665
03:26:11.048 --> 03:26:13.480
petitioners who wish to weigh in on that issue?
3666
03:26:13.480 --> 03:26:16.592
I have no further, Justice Gaziano ?
3667
03:26:16.592 --> 03:26:18.016
Just one follow up.
3668
03:26:18.016 --> 03:26:21.660
So you know, looking back at mcglothlin and Charles, both of
3669
03:26:21.660 --> 03:26:26.640
those cases involve egregious errors at trial, right?
3670
03:26:26.640 --> 03:26:29.850
I agree, is there is that trial, right?
3671
03:26:29.850 --> 03:26:32.600
Right, because Charles was at Duke in case.
3672
03:26:34.020 --> 03:26:37.099
And the court said, well, there was a trial error.
3673
03:26:37.099 --> 03:26:37.960
So we're going to give you a stay.
3674
03:26:39.757 --> 03:26:41.117
This is correct.
3675
03:26:41.117 --> 03:26:42.330
All right, I've got no further questions.
3676
03:26:43.690 --> 03:26:45.850
Justice Lowy.
3677
03:26:45.850 --> 03:26:46.940
Nothing, thank you.
3678
03:26:46.940 --> 03:26:47.910
Justice Budd.
3679
03:26:47.910 --> 03:26:49.060
No thank you.
3680
03:26:49.060 --> 03:26:50.620
Justice Cypherr.
3681
03:26:50.620 --> 03:26:53.370
Now exiting Matthew Segal from eco.
3682
03:26:54.430 --> 03:26:56.040
Justice Kafker.
3683
03:26:56.040 --> 03:26:57.500
Nothing.
3684
03:26:57.500 --> 03:26:59.446
And I and I've got nothing.
3685
03:26:59.446 --> 03:27:00.279
Thank you Mr. Ralp.
3686
03:27:00.279 --> 03:27:01.112
Thank you.
3687
03:27:02.180 --> 03:27:04.430
Miss Sullivan on behalf of Bristol
3688
03:27:04.430 --> 03:27:06.660
in the six other DA's offices.
3689
03:27:08.550 --> 03:27:11.500
Yes, good afternoon Chief Justice, thank you.
3690
03:27:11.500 --> 03:27:16.500
This is 78 rabbits tenuously opposed the petition is to
3691
03:27:16.950 --> 03:27:21.050
click into the unconditional category, category categorical
3692
03:27:21.050 --> 03:27:26.050
release of both pretrial detainees held on to lawful process
3693
03:27:27.630 --> 03:27:32.200
and those who are convicted and sentenced lawfully.
3694
03:27:33.180 --> 03:27:36.770
We did suggest that what's proposed by the special master
3695
03:27:36.770 --> 03:27:41.570
and imposes a layer of administrative bureaucracy that votes
3696
03:27:41.570 --> 03:27:44.420
over include there's for some groups aren't inclusive to
3697
03:27:46.012 --> 03:27:48.060
others, and put the duty army executive branch that being
3698
03:27:48.060 --> 03:27:51.870
the district attorney's office, to come to ferret out
3699
03:27:51.870 --> 03:27:55.600
information and compile lists information that we do not
3700
03:27:55.600 --> 03:27:58.860
necessarily have or we do not have access to.
3701
03:27:58.860 --> 03:28:02.359
Most importantly, this is all this is generated by concerned
3702
03:28:02.359 --> 03:28:07.359
for the health of the inmates in the spread of a virus,
3703
03:28:08.350 --> 03:28:11.880
then medical information relevant to that determination
3704
03:28:11.880 --> 03:28:15.720
and relevant to the merits of whether a person is released
3705
03:28:15.720 --> 03:28:20.720
and not needs to the access, and it says, Commonwealth or
3706
03:28:20.990 --> 03:28:23.940
the defendant, district attorney position that certainly in
3707
03:28:24.871 --> 03:28:27.230
the case of pretrial detainees, all of that information is
3708
03:28:28.382 --> 03:28:32.370
solely neatly within the knowledge of the defendants and
3709
03:28:32.370 --> 03:28:33.203
their counsel.
3710
03:28:33.203 --> 03:28:37.830
It's clear that in the pre pre trial detainees situation,
3711
03:28:37.830 --> 03:28:40.630
that detainees would have counsel counsel would be array
3712
03:28:41.795 --> 03:28:43.760
would be appointed add a reason.
3713
03:28:43.760 --> 03:28:46.820
There would be bail hearings and then that became news
3714
03:28:46.820 --> 03:28:49.770
worthy to be released on personal recognizance or whatever
3715
03:28:50.726 --> 03:28:52.623
or held on some sort of bail.
3716
03:28:52.623 --> 03:28:57.080
The defense attorneys also disagree and believe it's
3717
03:28:57.080 --> 03:28:58.570
Now joining
3718
03:29:02.379 --> 03:29:03.680
Productive accountants counterproductive and
3719
03:29:05.332 --> 03:29:07.800
cause a waste of more time by having this presumption that
3720
03:29:07.800 --> 03:29:09.580
is essentially meaningless.
3721
03:29:09.580 --> 03:29:13.537
If all if some categories of clients can fall into
3722
03:29:14.487 --> 03:29:18.450
the presumption and other different other detainees and they
3723
03:29:18.450 --> 03:29:21.040
can raise the issues anyway.
3724
03:29:21.040 --> 03:29:25.140
We are on the side of pulling align ourselves with the trial
3725
03:29:25.140 --> 03:29:28.520
court, where they where they indicate that it's necessary
3726
03:29:28.520 --> 03:29:32.740
to have case by case individualized determination of any
3727
03:29:32.740 --> 03:29:35.710
motions to release those motions to the pre trial to be
3728
03:29:35.710 --> 03:29:37.980
brought in the trial court.
3729
03:29:39.195 --> 03:29:41.982
The Trial Court has acted expeditiously.
3730
03:29:41.982 --> 03:29:46.982
I suggest admirably in arranging the procedures and
3731
03:29:48.150 --> 03:29:52.090
facilities for expediting and hearing these kind of motions
3732
03:29:52.090 --> 03:29:55.510
and the district attorney's has managed the courthouses.
3733
03:29:55.510 --> 03:29:58.430
In order to do that we've reached out to our local
3734
03:29:58.430 --> 03:30:01.150
CPCs attorneys.
3735
03:30:01.150 --> 03:30:04.500
We have indicated I believe, all of us, it's all in the
3736
03:30:04.500 --> 03:30:07.970
affidavits provided by different offices, that in
3737
03:30:07.970 --> 03:30:11.930
appropriate cases, we are certainly willing to consider
3738
03:30:11.930 --> 03:30:16.930
agreeing to leases and that can and is happening.
3739
03:30:17.070 --> 03:30:21.060
But we do not believe that we need in any way to attract the
3740
03:30:21.060 --> 03:30:26.060
type of overlay that the special masters trying to impose.
3741
03:30:26.510 --> 03:30:30.570
And we think that it raises obvious, it certainly has to be
3742
03:30:32.470 --> 03:30:36.950
convicted defense in the serving of serving a lot of new
3743
03:30:36.950 --> 03:30:41.950
posts and that raises serious concerns about the separation.
3744
03:30:43.417 --> 03:30:46.820
The powers and any change to the sentence would violate
3745
03:30:46.820 --> 03:30:51.820
article 20 and 30 solely the execution of the sentence is
3746
03:30:51.840 --> 03:30:56.210
solely within the power of the executive.
3747
03:30:56.210 --> 03:31:00.100
As you can't use rule 29, that's not a motion to revise and
3748
03:31:00.100 --> 03:31:03.890
revoke, it ends up being, you know, most actors spend a
3749
03:31:04.797 --> 03:31:08.110
certain emotion to commute, all of which all of those
3750
03:31:08.110 --> 03:31:11.720
procedures fall within the purview of the executive
3751
03:31:11.720 --> 03:31:13.020
departments, the governor.
3752
03:31:14.020 --> 03:31:16.530
And, and that's in one of the other issues.
3753
03:31:16.530 --> 03:31:20.260
One of the other points that diseases like to make is that
3754
03:31:20.260 --> 03:31:24.120
once a person is sentenced, under the separation of powers,
3755
03:31:24.120 --> 03:31:28.210
the legislature makes the law makes the laws and the
3756
03:31:29.276 --> 03:31:31.820
criminal laws and the penalties except those judiciary
3757
03:31:31.820 --> 03:31:35.460
adjudicate those impose a sentence, one sentence is imposed
3758
03:31:35.460 --> 03:31:37.610
with jurisdiction and the authority is
3759
03:31:37.610 --> 03:31:39.880
transferred to the executive.
3760
03:31:39.880 --> 03:31:42.170
And in these particular circumstances was not like this
3761
03:31:42.170 --> 03:31:44.120
wasn't contemplated in the past.
3762
03:31:44.120 --> 03:31:45.450
There is a civil defense,
3763
03:31:45.450 --> 03:31:48.390
which we started in a supplemental brief, a civil defense
3764
03:31:49.651 --> 03:31:52.620
statute that in touch, the governor of the state was
3765
03:31:52.620 --> 03:31:55.440
declared when confronted with emergency situations like what
3766
03:31:55.440 --> 03:31:59.403
we have, what he has declared we have here right now has the
3767
03:31:59.403 --> 03:32:03.020
authority over the government for the for the health and
3768
03:32:03.020 --> 03:32:04.841
welfare of the inmates.
3769
03:32:04.841 --> 03:32:09.841
So if anything is going to be done with convicted inmates to
3770
03:32:10.711 --> 03:32:13.350
a serving a lawful sentence, it is for the executive branch,
3771
03:32:13.350 --> 03:32:16.420
that that being particularly the governor.
3772
03:32:16.420 --> 03:32:20.250
And I would also like to point out that I think that it's
3773
03:32:20.250 --> 03:32:23.990
important for the court to stick to what the actual facts
3774
03:32:23.990 --> 03:32:28.990
are as able to come up during this whole process, as the
3775
03:32:29.000 --> 03:32:32.910
petition was filed a petition without having gone to the
3776
03:32:32.910 --> 03:32:36.930
lower court to present everything there was no evidentiary
3777
03:32:36.930 --> 03:32:38.840
hearing about anything.
3778
03:32:38.840 --> 03:32:43.840
The petition was filed against only one party apparently
3779
03:32:44.070 --> 03:32:46.846
left out the other important parties.
3780
03:32:46.846 --> 03:32:50.583
And we proceeded from there the goalposts at the
3781
03:32:52.754 --> 03:32:55.885
at the masters and masters reporters in various various
3782
03:32:55.885 --> 03:32:57.120
iterations.
3783
03:32:57.120 --> 03:33:00.970
They all seem to be moving but initially in the petition,
3784
03:33:00.970 --> 03:33:04.190
as you know, it was the first categorical court gorko
3785
03:33:04.190 --> 03:33:07.720
really, of all types of detainees.
3786
03:33:07.720 --> 03:33:11.330
And, and that is what the the young district attorneys
3787
03:33:11.330 --> 03:33:15.650
strenuously oppose, they be in the process does not take
3788
03:33:15.650 --> 03:33:19.230
into account appropriately a public safety concerns they've
3789
03:33:20.406 --> 03:33:24.300
been articulated by the Department of Corrections, and which
3790
03:33:25.240 --> 03:33:28.190
appears that we have to we just have to focus on what the
3791
03:33:28.190 --> 03:33:30.900
facts but the facts are, yes to the crisis.
3792
03:33:30.900 --> 03:33:34.390
But what is the extent of the crisis within our prison
3793
03:33:34.390 --> 03:33:38.287
system, and I would suggest that was before you so that is
3794
03:33:38.287 --> 03:33:41.080
not at a crisis level at all.
3795
03:33:41.080 --> 03:33:42.440
That would be awesome.
3796
03:33:44.565 --> 03:33:47.992
The management of autism systems has made it to prevent the
3797
03:33:47.992 --> 03:33:52.992
introduction of for the most part or the introduction of the
3798
03:33:53.240 --> 03:33:56.220
virus to the prison system, and certainly to containment.
3799
03:33:56.220 --> 03:33:58.610
They have procedures in place.
3800
03:33:58.610 --> 03:34:02.380
They have dealt with a place like this before, as there's a
3801
03:34:02.380 --> 03:34:07.000
footnote in one of the affidavits about SARS, HIV, and they
3802
03:34:07.000 --> 03:34:11.310
successfully navigated through all those types of things.
3803
03:34:11.310 --> 03:34:14.750
So I suggest that as far as the convicted dependence that's
3804
03:34:15.681 --> 03:34:18.540
solely within the purview of the executive departments, the
3805
03:34:18.540 --> 03:34:22.875
governor and and then he has many other agencies, executive
3806
03:34:22.875 --> 03:34:26.430
agencies at his disposal, Department of Public Health
3807
03:34:27.515 --> 03:34:31.530
Department public safety, that can only be done with the
3808
03:34:32.690 --> 03:34:36.650
remains to ensure that their health is protected.
3809
03:34:36.650 --> 03:34:40.770
And as far as the free trial because it's the experience of
3810
03:34:41.740 --> 03:34:46.540
the district terms with their assistance on the grounds that
3811
03:34:46.540 --> 03:34:50.099
the procedures that have been put in place by the trial
3812
03:34:50.099 --> 03:34:52.458
court are in fact working and working very well.
3813
03:34:52.458 --> 03:34:57.458
If motions are filed the heard expeditiously I believe there
3814
03:34:58.240 --> 03:35:01.590
was some within 48 hours.
3815
03:35:01.590 --> 03:35:05.140
The court report that there's been no problem with the
3816
03:35:05.140 --> 03:35:07.810
volume that they're able to meet it.
3817
03:35:07.810 --> 03:35:12.440
We are doing everything in our power to even with reduced
3818
03:35:12.440 --> 03:35:16.590
staff and but we are doing everything possible to meet the
3819
03:35:16.590 --> 03:35:21.530
requirements to and we have, we have a court staff to
3820
03:35:22.760 --> 03:35:26.110
address these matters and they are being added and we are
3821
03:35:26.110 --> 03:35:31.110
talking with our with the the sheriff is, if there is
3822
03:35:33.640 --> 03:35:36.630
something that we can do that we're open to that,
3823
03:35:36.630 --> 03:35:41.190
but it has to be in court on a case by case basis with
3824
03:35:41.190 --> 03:35:44.671
individualized becoming victims of the victim crime,
3825
03:35:44.671 --> 03:35:47.366
they have a right to be there, they have a right to be
3826
03:35:47.366 --> 03:35:50.890
available, they have a right to be heard,
3827
03:35:50.890 --> 03:35:52.010
they cannot be ignored.
3828
03:35:52.010 --> 03:35:54.680
And that is something that the Masters report just
3829
03:35:54.680 --> 03:35:59.680
completely disregard and another point that I would like to
3830
03:35:59.970 --> 03:36:03.468
make about the separation of powers within the Masters
3831
03:36:03.468 --> 03:36:05.990
report, if I haven't already, but it does direct at the
3832
03:36:05.990 --> 03:36:10.170
district attorney's office executive plans, perform certain
3833
03:36:10.170 --> 03:36:12.170
functions for the judiciary.
3834
03:36:12.170 --> 03:36:17.170
And I would suggest that that's beyond that that is beyond
3835
03:36:17.290 --> 03:36:21.210
the powers of the court to do and it's not that we do not
3836
03:36:21.210 --> 03:36:26.210
daily work diligently and hand in hand with the trial court.
3837
03:36:27.740 --> 03:36:32.170
We try to facilitate what we can, but we cannot and should
3838
03:36:32.170 --> 03:36:35.800
not be ordered to do something that we are not in a position
3839
03:36:35.800 --> 03:36:37.130
to do.
3840
03:36:37.130 --> 03:36:38.400
Question questions.
3841
03:36:39.960 --> 03:36:41.706
Justice Gaziano.
3842
03:36:41.706 --> 03:36:42.830
No, I have no questions, thank you Chief.
3843
03:36:44.740 --> 03:36:45.573
Justice Lowy.
3844
03:36:45.573 --> 03:36:47.410
I have no questions thanks, Chief.
3845
03:36:48.330 --> 03:36:49.460
Justice Budd.
3846
03:36:50.460 --> 03:36:52.160
Yes, I've got a question.
3847
03:36:53.544 --> 03:36:55.900
You said that you're aligned with the trial court's
3848
03:36:55.900 --> 03:37:00.900
position and I just want to hear from the point of view
3849
03:37:01.130 --> 03:37:06.130
of the district attorney's, the opposition or the problem
3850
03:37:07.200 --> 03:37:12.200
that you have with having a presumption that certain
3851
03:37:14.100 --> 03:37:19.100
categories of inmates should not be considered necessarily
3852
03:37:21.930 --> 03:37:26.930
a good candidate for for release, based on the COVID-19
3853
03:37:30.060 --> 03:37:30.893
virus?
3854
03:37:32.300 --> 03:37:36.542
But I think I vote, I thought, I think that
3855
03:37:36.542 --> 03:37:39.500
they create presumptions of those who would be presumptively
3856
03:37:39.500 --> 03:37:43.090
really, but then there's the cat dog It says that we're not
3857
03:37:43.090 --> 03:37:46.100
preventing anybody who doesn't fall within this presumption
3858
03:37:46.100 --> 03:37:47.470
to bring emotion.
3859
03:37:47.470 --> 03:37:52.470
So it's opposition that what's the point of the presumption
3860
03:37:52.700 --> 03:37:56.340
is everybody is at the bottom line is that everyone can
3861
03:37:56.340 --> 03:37:58.650
bring the motion.
3862
03:37:58.650 --> 03:38:02.080
And I think even the other district attorneys all have come
3863
03:38:02.080 --> 03:38:06.120
down to saying that there needs to be a case by case review
3864
03:38:06.120 --> 03:38:08.491
and an individualized determination.
3865
03:38:08.491 --> 03:38:11.310
Everybody expects it should go before childhood.
3866
03:38:11.310 --> 03:38:16.310
So I we're just not quite understanding the need for the
3867
03:38:17.060 --> 03:38:20.040
bureaucratic overview.
3868
03:38:20.040 --> 03:38:22.330
An additional one is I mean, I think if he thinks is going
3869
03:38:22.330 --> 03:38:27.330
to be done expeditiously, you know, the word committee is an
3870
03:38:28.810 --> 03:38:30.220
N synonymous with delay.
3871
03:38:30.220 --> 03:38:35.220
So fornells funneling the committee's assembling it just
3872
03:38:35.230 --> 03:38:40.230
seems as if it's from our position and from reports from
3873
03:38:41.260 --> 03:38:42.110
what's happening.
3874
03:38:42.110 --> 03:38:47.110
Repeat the process and the procedure as a class now is
3875
03:38:48.185 --> 03:38:52.135
working the courts have been no complaints.
3876
03:38:52.135 --> 03:38:57.135
And we're ready willing and able to assist in any way that
3877
03:38:57.450 --> 03:39:00.990
we can but we have obligations, we have public safety
3878
03:39:00.990 --> 03:39:05.860
obligations that we are not going to give up.
3879
03:39:07.220 --> 03:39:10.510
Can you give me a sense of how many inmates have
3880
03:39:10.510 --> 03:39:15.510
been released from each of the county, DA, DA offices a to
3881
03:39:17.910 --> 03:39:18.743
represent?
3882
03:39:20.270 --> 03:39:23.630
I'm leaving my present in that I believe it's
3883
03:39:23.630 --> 03:39:28.630
attached to one of the Chief Justice's affidavit, there's a
3884
03:39:29.013 --> 03:39:34.013
talk of motions that were brought and what the results were
3885
03:39:35.190 --> 03:39:38.190
and I don't have it at my fingertips, but it isn't, It isn't
3886
03:39:39.257 --> 03:39:42.560
in the it's not in our submissions, but it is in the
3887
03:39:42.560 --> 03:39:45.720
documents that were presented to the court, it might be best
3888
03:39:45.720 --> 03:39:46.965
to separate him.
3889
03:39:46.965 --> 03:39:50.380
I'll take a look to compare.
3890
03:39:50.380 --> 03:39:52.400
Okay, Yeah, I apologize, Your Honor.
3891
03:39:52.400 --> 03:39:55.370
But yeah, but I know I would ask the court to carefully
3892
03:39:55.370 --> 03:40:00.370
review the affidavits of the trial court chief justices that
3893
03:40:00.600 --> 03:40:04.373
was submitted, because I was, I would hope that the court
3894
03:40:04.373 --> 03:40:07.490
would commend the trial courts for really stepping out
3895
03:40:07.490 --> 03:40:10.950
taking charge of the crisis and doing what they can, that
3896
03:40:10.950 --> 03:40:14.490
the inmates are not forgotten.
3897
03:40:14.490 --> 03:40:17.610
In this process, they are the people who are getting access
3898
03:40:17.610 --> 03:40:22.300
to the courts on an emergency basis, for the most part.
3899
03:40:22.300 --> 03:40:24.450
That's what the directors have all done.
3900
03:40:24.450 --> 03:40:26.780
That's what the focus has been.
3901
03:40:26.780 --> 03:40:29.580
Do you happen to know whether there were any cases?
3902
03:40:30.437 --> 03:40:34.090
How many if any cases were the the government,
3903
03:40:36.190 --> 03:40:38.050
for the counties that you represent?
3904
03:40:40.130 --> 03:40:43.500
We're in agreement that that someone should be The image
3905
03:40:43.500 --> 03:40:44.450
should be released?
3906
03:40:46.260 --> 03:40:48.430
Yes, I don't have the actual numbers, but what
3907
03:40:48.430 --> 03:40:51.420
are you talking about three types of pretrial detainees.
3908
03:40:52.590 --> 03:40:56.310
I believe in Worcester County, we have you've had, you have
3909
03:40:56.310 --> 03:40:57.925
one.
3910
03:40:57.925 --> 03:41:00.870
You've had some that have been released have
3911
03:41:02.794 --> 03:41:04.500
discussing what we have plans to make agreements, you know,
3912
03:41:06.023 --> 03:41:07.875
to have agreements with defense counsel to release people in
3913
03:41:07.875 --> 03:41:09.150
appropriate circumstances.
3914
03:41:09.150 --> 03:41:12.190
I don't have the numbers, you know, or the cases on what has
3915
03:41:12.190 --> 03:41:13.023
been done.
3916
03:41:13.972 --> 03:41:15.650
You know what it is, I could probably get that too, if you
3917
03:41:15.650 --> 03:41:20.650
would like, but we are open, certainly to disgusting and
3918
03:41:20.780 --> 03:41:25.690
inappropriate case we are open to an agreement, you know,
3919
03:41:25.690 --> 03:41:26.880
for for relief.
3920
03:41:26.880 --> 03:41:30.180
We're not precluding that at all, we're just saying that the
3921
03:41:30.180 --> 03:41:33.270
process has to be one that takes into account all the
3922
03:41:33.270 --> 03:41:35.844
factors and you know, it should be done in
3923
03:41:35.844 --> 03:41:38.680
open on the record.
3924
03:41:38.680 --> 03:41:42.679
It should not be done, you know, in somebody's office.
3925
03:41:42.679 --> 03:41:46.890
Either this is the criminal justice system and the public
3926
03:41:46.890 --> 03:41:50.190
has a right to know what is going on.
3927
03:41:50.190 --> 03:41:53.490
I mean, I think there's somewhere in that in the
3928
03:41:53.490 --> 03:41:58.074
math special masters recommendation where it says that
3929
03:41:58.074 --> 03:42:01.160
there's not going to be a hearing, I might have missed it.
3930
03:42:01.160 --> 03:42:04.126
Well, no, but I was just thinking I could use
3931
03:42:04.126 --> 03:42:07.100
as far as how the process of assemble is with the committee
3932
03:42:07.100 --> 03:42:11.020
work, how the committee works, assembling the, the list, and
3933
03:42:12.216 --> 03:42:14.570
then presenting them and say, Oh, we agree to all this.
3934
03:42:16.100 --> 03:42:19.000
But, but and what's particularly concerning is it well, we
3935
03:42:19.849 --> 03:42:21.550
can't do it fast enough and you can't get in you can't get
3936
03:42:21.550 --> 03:42:23.881
ahold of the victim fast enough.
3937
03:42:23.881 --> 03:42:26.470
Well, we're still going forward and that's the way it is.
3938
03:42:28.186 --> 03:42:30.520
That's a dereliction I think of everyone's duty does the
3939
03:42:30.520 --> 03:42:33.600
victims right Act applies not just to the district attorney,
3940
03:42:33.600 --> 03:42:37.930
but it applies to the courts there specific directive to
3941
03:42:37.930 --> 03:42:41.140
counties and other people but the bottom line is that the
3942
03:42:41.140 --> 03:42:45.220
victim should not Be just dismissed as part of the process
3943
03:42:45.220 --> 03:42:46.880
down there very important.
3944
03:42:46.880 --> 03:42:51.880
And as part of, you know, any decision to release somebody
3945
03:42:52.080 --> 03:42:55.510
who has been held on bail and you know, for change
3946
03:42:55.510 --> 03:43:00.510
circumstances, you have to consider where they're going.
3947
03:43:00.580 --> 03:43:04.140
what they're going to do is in a domestic violence situation
3948
03:43:04.140 --> 03:43:08.630
as is the only home back to whatever violence occurred.
3949
03:43:10.383 --> 03:43:11.750
There are facts that have to be fleshed out.
3950
03:43:11.750 --> 03:43:14.020
And I think there's an exception for that,
3951
03:43:14.020 --> 03:43:19.020
but that's fine and then your your position is that no one
3952
03:43:19.920 --> 03:43:22.970
who's been convicted should be considered for relief,
3953
03:43:22.970 --> 03:43:25.887
even if it's non violent offense or for?
3954
03:43:27.436 --> 03:43:32.436
What were the feuding is the authority of the
3955
03:43:33.160 --> 03:43:38.160
judiciary to insert into effect essentially set the power of
3956
03:43:39.140 --> 03:43:40.330
the executive that way.
3957
03:43:40.330 --> 03:43:44.470
Look, certainly They're within the 60 day window of a rule
3958
03:43:44.470 --> 03:43:48.334
29 is that time anything else once that sentence becomes
3959
03:43:48.334 --> 03:43:51.642
final, you're asking to come to suspend.
3960
03:43:51.642 --> 03:43:56.642
And you violated the separation of powers, a stay of
3961
03:43:58.830 --> 03:44:01.430
execution pending sentence that's appropriate.
3962
03:44:01.430 --> 03:44:06.360
I stay of execution when there's a validly filed, move 30 or
3963
03:44:06.360 --> 03:44:11.360
rule 30 A motion that would be appropriate or subscribe
3964
03:44:12.820 --> 03:44:16.010
apart from that there are remedies and I think in
3965
03:44:16.010 --> 03:44:19.070
particular, in circumstances like here, where we are facing
3966
03:44:19.922 --> 03:44:22.650
a crisis, a health crisis, as directed by the governor,
3967
03:44:22.650 --> 03:44:27.650
the governor has the authority to do what may or may be
3968
03:44:28.399 --> 03:44:31.790
needed under the circumstances no one has even you know,
3969
03:44:31.790 --> 03:44:35.990
attempted to go through the governor or even to suggest that
3970
03:44:35.990 --> 03:44:39.670
but I suggest that that's, that's the authority that that
3971
03:44:39.670 --> 03:44:43.100
executive body is what is how you will Be able to
3972
03:44:43.100 --> 03:44:45.800
effectively be the governor is in charge of school,
3973
03:44:45.800 --> 03:44:50.270
the governor is in charge of public safety, public health.
3974
03:44:51.550 --> 03:44:54.100
And to the extent that things like that could be had and
3975
03:44:54.100 --> 03:44:57.420
he's been tagged to the complications in the party, and if
3976
03:44:57.420 --> 03:45:00.020
that's what needs to be done, and that's for the best for
3977
03:45:00.020 --> 03:45:02.190
the governor to be presented with
3978
03:45:02.190 --> 03:45:04.420
and to make that determination.
3979
03:45:04.420 --> 03:45:05.670
Okay, thank you.
3980
03:45:07.340 --> 03:45:08.590
Justice Cypher.
3981
03:45:09.580 --> 03:45:11.300
Nothing thank you.
3982
03:45:11.300 --> 03:45:13.150
Justice Kafkar.
3983
03:45:13.150 --> 03:45:15.480
Just want to make sure I understand the position.
3984
03:45:15.480 --> 03:45:20.480
So it sounds like you're thrilled with the way the trial
3985
03:45:21.367 --> 03:45:24.270
courts are handling this and have and you're completely
3986
03:45:24.270 --> 03:45:27.060
comfortable with the procedures in places that right?
3987
03:45:28.367 --> 03:45:31.650
Well, I've been having nothing as advice or
3988
03:45:31.650 --> 03:45:34.750
testing that the procedures aren't working as they should be
3989
03:45:34.750 --> 03:45:37.760
working that people have included something in motion, that
3990
03:45:37.760 --> 03:45:41.055
people are delayed and bring emotions that someone suffering
3991
03:45:41.055 --> 03:45:46.055
As a result of anything, and we are open to whatever.
3992
03:45:46.360 --> 03:45:49.060
You're comfortable with the hearings as they're
3993
03:45:49.060 --> 03:45:51.520
being conducted, which is by video conference or
3994
03:45:51.520 --> 03:45:52.600
teleconference,
3995
03:45:53.780 --> 03:45:56.390
so you're comfortable with that as well, right?
3996
03:45:56.390 --> 03:45:58.430
Yeah, yes, I certainly it's not ideal, but
3997
03:45:58.430 --> 03:46:00.527
under the circumstances, that's what has to be
3998
03:46:00.527 --> 03:46:02.365
done and done.
3999
03:46:02.365 --> 03:46:05.710
Right and then the other.
4000
03:46:05.710 --> 03:46:10.450
So you're also, you recognize we do have a health crisis out
4001
03:46:10.450 --> 03:46:14.830
there, but you think it's under control in the prison
4002
03:46:14.830 --> 03:46:19.830
systems and, and what is the DA office are they doing
4003
03:46:21.838 --> 03:46:26.290
anything differently in response to this than they were
4004
03:46:26.290 --> 03:46:27.123
doing before?
4005
03:46:27.123 --> 03:46:29.620
I'm just trying to make sure I understand what the DEA
4006
03:46:29.620 --> 03:46:34.160
considers this group of DEA considers the appropriate
4007
03:46:34.160 --> 03:46:37.130
response to them to this crisis.
4008
03:46:38.560 --> 03:46:40.910
But we'll get what we have is I mean, we have
4009
03:46:40.910 --> 03:46:45.030
had ongoing discussions With the local defense bar, about
4010
03:46:45.030 --> 03:46:49.800
the needs of people, as a result of concerns of the violent,
4011
03:46:49.800 --> 03:46:52.740
violent concerns within the prison.
4012
03:46:54.456 --> 03:46:57.310
And just trying to know what you're doing and
4013
03:46:57.310 --> 03:47:00.180
what you think is acceptable for you to do, because I don't
4014
03:47:00.180 --> 03:47:03.410
want to, I'd like to understand what it is that you're
4015
03:47:03.410 --> 03:47:07.180
doing because if we order you to do just what you like to
4016
03:47:07.180 --> 03:47:09.940
do, I take there's no problem, but I'm trying to understand
4017
03:47:09.940 --> 03:47:13.010
what it is you're doing differently in response
4018
03:47:13.010 --> 03:47:13.843
to the crisis?
4019
03:47:15.690 --> 03:47:19.970
Yeah, but we're celebrating expedited review of
4020
03:47:19.970 --> 03:47:23.570
these motions, and we are as motions are coming in, and if
4021
03:47:23.570 --> 03:47:26.330
there's something that we can agree to, we will do it.
4022
03:47:26.330 --> 03:47:28.930
I don't know that it's necessarily that much different but
4023
03:47:28.930 --> 03:47:31.620
there's a much more probably more volume and it's a more
4024
03:47:31.620 --> 03:47:34.260
conscious, whatever more specific motion.
4025
03:47:37.513 --> 03:47:41.140
But it's following a similar practice to the regular bail,
4026
03:47:41.140 --> 03:47:45.519
we practice Like it's being addressed daily, and
4027
03:47:45.519 --> 03:47:49.810
immediately, it doesn't really concern is immediately.
4028
03:47:49.810 --> 03:47:52.860
And I my only question is not that we not to be don't
4029
03:47:52.860 --> 03:47:55.687
recognize that there's a potential for a big problem in the
4030
03:47:55.687 --> 03:47:58.820
corrections facility.
4031
03:47:58.820 --> 03:48:03.720
But right now on the record that before this court, whatever
4032
03:48:03.720 --> 03:48:07.290
the problem is, it seems to be under control within the
4033
03:48:07.290 --> 03:48:10.860
prison system more so certainly, than it is outside the
4034
03:48:10.860 --> 03:48:12.290
prison system.
4035
03:48:12.290 --> 03:48:14.940
So whatever they're doing, which was, as far as you know,
4036
03:48:14.940 --> 03:48:19.100
controlling people are coming in to hygiene, it seems, at
4037
03:48:19.100 --> 03:48:21.680
least from what we know, now seems to be working that
4038
03:48:21.680 --> 03:48:24.590
container, and that's where we have our civil defense.
4039
03:48:25.840 --> 03:48:28.280
Right so you want us to stay on this because it's
4040
03:48:28.280 --> 03:48:30.400
doing it's it's fine where it is?
4041
03:48:31.250 --> 03:48:33.330
I think this is one.
4042
03:48:33.330 --> 03:48:35.795
(cross talk)
4043
03:48:35.795 --> 03:48:38.310
I just want to make sure I'm encapsulating your
4044
03:48:38.310 --> 03:48:42.480
views which is that you don't want us to do anything right
4045
03:48:42.480 --> 03:48:44.170
now, right?
4046
03:48:44.170 --> 03:48:47.470
Your honor I, I believe that's the that's,
4047
03:48:47.470 --> 03:48:51.720
that's our opinion that right now as things stand, and as
4048
03:48:51.720 --> 03:48:55.262
your trial courts have reported to you interested, the
4049
03:48:55.262 --> 03:49:00.262
system is working, it's addressing the issues that have been
4050
03:49:00.800 --> 03:49:03.620
raised in a timely manner, and it is working.
4051
03:49:03.620 --> 03:49:06.390
Now at some point, there may be something but there are
4052
03:49:06.390 --> 03:49:11.390
limits, I suggest to what the judiciary can in fact do.
4053
03:49:11.490 --> 03:49:15.072
And this is not a one branch of government problem that we
4054
03:49:15.072 --> 03:49:19.640
can order people to, you know, be out of their lane and do
4055
03:49:19.640 --> 03:49:23.623
certain things to fix this into an emergency that affects
4056
03:49:23.623 --> 03:49:25.340
the entire state.
4057
03:49:25.340 --> 03:49:29.700
And if the governor I suggest that controls now the.
4058
03:49:30.760 --> 03:49:35.550
Governor's the pre trial, free trial, issues are
4059
03:49:35.550 --> 03:49:38.980
really more our responsibility that hits our thing.
4060
03:49:38.980 --> 03:49:42.230
I mean, I I totally agree with that day.
4061
03:49:42.230 --> 03:49:45.060
But, but I would just suggest that they are being handled
4062
03:49:45.060 --> 03:49:46.307
very well.
4063
03:49:46.307 --> 03:49:49.290
There is a process in place, you know, you can always move,
4064
03:49:49.290 --> 03:49:53.209
at least in our experience for a review, avail based on
4065
03:49:53.209 --> 03:49:58.010
change of conditions, most of the time at UBC that was
4066
03:49:58.010 --> 03:50:02.902
imposed or whatever, without prejudice mean that people can
4067
03:50:02.902 --> 03:50:04.750
come back at any time.
4068
03:50:04.750 --> 03:50:09.670
That is, that's the routine, even apart from this, but I
4069
03:50:09.670 --> 03:50:14.132
think what's changed is how it's conducted and how we have
4070
03:50:14.132 --> 03:50:16.220
to open up the courts to a certain extent, or at least make
4071
03:50:16.220 --> 03:50:18.990
the judges available so that these emergency motions can be
4072
03:50:18.990 --> 03:50:22.420
heard and in our students, they are being heard and they're
4073
03:50:22.420 --> 03:50:23.253
not aware.
4074
03:50:23.253 --> 03:50:26.180
I don't know if there's that I don't I'm not aware of any
4075
03:50:26.180 --> 03:50:30.180
complaints presented that they had like the trial judges
4076
03:50:30.180 --> 03:50:33.950
have said that there's been a complaint about inability to
4077
03:50:33.950 --> 03:50:37.270
access the court in order to present a motion for relief.
4078
03:50:38.650 --> 03:50:39.980
That's all I have.
4079
03:50:41.807 --> 03:50:44.165
I've got a few questions rolling on Justice
4080
03:50:44.165 --> 03:50:49.165
Kafkers questions you accept I gather at least your your DA
4081
03:50:51.910 --> 03:50:54.700
is except that the pandemic constitutes a change in
4082
03:50:55.603 --> 03:50:57.390
circumstances which is appropriately considered in terms of
4083
03:50:57.390 --> 03:51:00.962
revisiting bail, why?
4084
03:51:00.962 --> 03:51:03.470
(cross talk)
4085
03:51:03.470 --> 03:51:08.360
Okay and what do you consider to be the the practical
4086
03:51:08.360 --> 03:51:11.060
consequences of the change in circumstances with regard to
4087
03:51:11.060 --> 03:51:15.940
the revisiting of the of the issue of bail?
4088
03:51:15.940 --> 03:51:19.800
Well, if the whole that is an individual, I
4089
03:51:19.800 --> 03:51:21.910
think it's got to be an individualized increase.
4090
03:51:21.910 --> 03:51:24.700
It's all about that my health is in danger, I think we need
4091
03:51:24.700 --> 03:51:27.680
to be presented with some sort of evidence or what the facts
4092
03:51:27.680 --> 03:51:30.550
are about your health, what the particular danger is.
4093
03:51:30.550 --> 03:51:34.294
I think it's been very helpful from the department to get
4094
03:51:34.294 --> 03:51:37.080
the information from the Department of corrections as to
4095
03:51:37.080 --> 03:51:42.080
what's being done with in there to prevent control.
4096
03:51:42.850 --> 03:51:45.850
The spread of the virus I think that's important to anybody.
4097
03:51:47.250 --> 03:51:50.680
Yes and what the sheriff's are also doing department of
4098
03:51:50.680 --> 03:51:52.660
corrections in the sheriff's.
4099
03:51:52.660 --> 03:51:55.990
You're following everything that CDC says to say whatever
4100
03:51:55.990 --> 03:51:59.280
the proper protocol is, seems to be working.
4101
03:51:59.280 --> 03:52:04.280
That kind of information is relevant to anyone to the judge,
4102
03:52:04.310 --> 03:52:07.320
the judge who's making a bail determination is considering
4103
03:52:07.320 --> 03:52:10.160
whether or not to lead the person to be just like, where
4104
03:52:10.160 --> 03:52:12.360
would the person be released to?
4105
03:52:12.360 --> 03:52:13.770
That's important.
4106
03:52:13.770 --> 03:52:17.856
So there are factors that have to be considered and if
4107
03:52:17.856 --> 03:52:21.534
someone can be safe if a pretrial detainees can be safely
4108
03:52:21.534 --> 03:52:25.857
released into the into the community in appropriate cases
4109
03:52:25.857 --> 03:52:29.700
that the district attorney's would agree to that,
4110
03:52:29.700 --> 03:52:32.410
I think is your view that.
4111
03:52:32.410 --> 03:52:35.395
There's a change in circumstances only when
4112
03:52:35.395 --> 03:52:36.930
somebody tests positive within a jail and there's a concern
4113
03:52:36.930 --> 03:52:39.060
that the jail is going to become the cluster?
4114
03:52:41.845 --> 03:52:46.230
I'd not necessarily, Your Honor, but I think
4115
03:52:46.230 --> 03:52:50.380
there has to be some sort of correlation between the reason
4116
03:52:50.380 --> 03:52:54.290
that the request for relief and what's going on in the jail,
4117
03:52:55.130 --> 03:53:00.130
if there's in how, you know, the relief will actually
4118
03:53:00.460 --> 03:53:01.310
alleviate that.
4119
03:53:04.662 --> 03:53:07.462
And I guess my last question focuses on the or
4120
03:53:09.960 --> 03:53:14.043
your DA as opposed to a process in which they identify a
4121
03:53:16.720 --> 03:53:20.230
number of individuals who the defense wishes to consider and
4122
03:53:20.230 --> 03:53:22.970
you confer with defense counsel and with probation and the
4123
03:53:22.970 --> 03:53:26.760
sheriff's and attempt to identify which cases you can agree
4124
03:53:26.760 --> 03:53:31.350
upon, are appropriate for release in which you're going to
4125
03:53:31.350 --> 03:53:35.301
be adverse with respect to?
4126
03:53:35.301 --> 03:53:40.301
I think what our main objections is except we
4127
03:53:40.870 --> 03:53:44.530
the DHS office, are going to be ordered to compile that way.
4128
03:53:45.450 --> 03:53:48.340
As Exactly as I suggest that is an owner.
4129
03:53:48.340 --> 03:53:51.082
I, we don't have that information at our fingertips.
4130
03:53:51.082 --> 03:53:56.082
Right, and it's like if a list is prepared for us it was
4131
03:53:56.560 --> 03:53:59.600
presented to us, we would certainly do whatever we could to
4132
03:53:59.600 --> 03:54:04.600
profiles, review that review those files and make any input
4133
03:54:05.210 --> 03:54:08.090
input that we could as quickly as we possibly could.
4134
03:54:08.090 --> 03:54:12.150
But it's more, the question is, how are we going to do this
4135
03:54:13.700 --> 03:54:17.578
and get the information from either the bail or the the is
4136
03:54:17.578 --> 03:54:22.578
personal to a particular defendant, I would suggest in these
4137
03:54:22.640 --> 03:54:25.610
particular circumstances, and particularly whereas the
4138
03:54:25.610 --> 03:54:28.690
defendant or the inmate or the pretrial detainees would be
4139
03:54:28.690 --> 03:54:29.950
represented by counsel.
4140
03:54:29.950 --> 03:54:33.090
It just seems much more efficient, and makes much more
4141
03:54:33.090 --> 03:54:36.870
common sense if the defendants do their counsel or even not
4142
03:54:36.870 --> 03:54:39.720
be a council file a motion I mean, there might be some
4143
03:54:39.720 --> 03:54:42.360
things you can do to put in the jails.
4144
03:54:42.360 --> 03:54:46.440
In the house of corrections, what to do to file a motion
4145
03:54:46.440 --> 03:54:50.810
like was, I believe was suggested by the representative of
4146
03:54:50.810 --> 03:54:53.530
the trial court to some sort of form motion.
4147
03:54:53.530 --> 03:54:56.650
It doesn't have to be a treatment.
4148
03:54:56.650 --> 03:55:00.240
I mean, it's just we just need to raise the issue.
4149
03:55:00.240 --> 03:55:03.837
Yeah, it doesn't make sense to put the audience on a
4150
03:55:03.837 --> 03:55:06.360
difficult thing to compile that information whet their
4151
03:55:06.360 --> 03:55:07.890
appetite is.
4152
03:55:07.890 --> 03:55:09.840
Is your concern the gathering of information?
4153
03:55:09.840 --> 03:55:12.960
Or is your concern and obligation to be conferring and
4154
03:55:12.960 --> 03:55:15.810
attempting to identify in terms of triage in these
4155
03:55:15.810 --> 03:55:17.400
individuals?
4156
03:55:17.400 --> 03:55:21.260
which individuals you agree are appropriate for release and
4157
03:55:21.260 --> 03:55:23.400
which are not?
4158
03:55:23.400 --> 03:55:26.522
I'm trying to figure out what your position is on that.
4159
03:55:26.522 --> 03:55:30.660
Are you opposed to a process to attempt to to work with
4160
03:55:30.660 --> 03:55:33.450
defense counsel and attempt to identify those individuals
4161
03:55:33.450 --> 03:55:35.100
who should be triage for release?
4162
03:55:36.630 --> 03:55:39.250
No, no, I'm not opposed to a process but I
4163
03:55:39.250 --> 03:55:44.250
think it would be nice if the council brought emotion
4164
03:55:44.610 --> 03:55:47.459
brought brought whatever needs to be brought to our
4165
03:55:47.459 --> 03:55:49.175
attention to our attention.
4166
03:55:49.175 --> 03:55:52.474
So we could act on it, I think the process of having us
4167
03:55:52.474 --> 03:55:56.530
devote staff and we are at galaxy staff maybe going to
4168
03:55:56.530 --> 03:55:59.783
courthouses or try to go into courthouses that are close.
4169
03:55:59.783 --> 03:56:01.510
And in that case problems for our staff to and it was
4170
03:56:01.510 --> 03:56:03.140
created delay.
4171
03:56:03.140 --> 03:56:06.353
So if whatever party has access to the information that's
4172
03:56:06.353 --> 03:56:09.831
essential to bring the motion to bring in if they can do
4173
03:56:09.831 --> 03:56:14.046
that, find that mission, just to bring the look.
4174
03:56:14.046 --> 03:56:15.621
Have got no for the questions for you.
4175
03:56:15.621 --> 03:56:18.038
(Cross talk)
4176
03:56:19.500 --> 03:56:20.740
Justice Lowy.
4177
03:56:20.740 --> 03:56:23.400
I just want to make sure thank you, Chief that I
4178
03:56:23.400 --> 03:56:27.155
understand, one thing Miss Sullivan says.
4179
03:56:27.155 --> 03:56:32.155
Do you agree that even if somebody hasn't tested positive,
4180
03:56:35.540 --> 03:56:39.390
even if there hasn't been an outbreak yet, in a particular
4181
03:56:39.390 --> 03:56:44.390
facility, that the COVID-19 endemic, can be considered as
4182
03:56:45.720 --> 03:56:50.720
it relates to a reconsideration of bail because of reasons
4183
03:56:53.255 --> 03:56:57.490
of social distancing and possible, contagion.
4184
03:57:00.701 --> 03:57:02.720
Sure individualized basis.
4185
03:57:03.977 --> 03:57:05.370
Okay, I have nothing further.
4186
03:57:06.690 --> 03:57:08.270
Justice Budd
4187
03:57:08.270 --> 03:57:09.790
I have nothing thank you.
4188
03:57:09.790 --> 03:57:11.040
Justice Cypher.
4189
03:57:11.940 --> 03:57:13.120
Nothing thank you.
4190
03:57:13.120 --> 03:57:14.650
And Justice Kafker.
4191
03:57:14.650 --> 03:57:17.730
As one follow up, you raised the concern about
4192
03:57:17.730 --> 03:57:19.790
your staff going into the offices.
4193
03:57:19.790 --> 03:57:24.790
So in order to in order to do this process, your view is if
4194
03:57:26.400 --> 03:57:30.110
we did with the special master recommended, we're going to
4195
03:57:30.110 --> 03:57:34.720
be bringing in large numbers of your people into the office
4196
03:57:34.720 --> 03:57:37.813
who are now working remotely, is that correct?
4197
03:57:37.813 --> 03:57:41.160
Yes, yes, we have many, many people that are
4198
03:57:41.160 --> 03:57:42.260
trying to work remote.
4199
03:57:43.350 --> 03:57:45.880
I mean, we do have a skeleton staff in our offices, but some
4200
03:57:45.880 --> 03:57:48.630
of the staff in our courthouses has been precluded from
4201
03:57:49.491 --> 03:57:51.760
going into there because they have been closed.
4202
03:57:51.760 --> 03:57:55.853
So yes, and instead of stuck in other days offices to have
4203
03:57:55.853 --> 03:58:00.853
found that problem, and yes, I think it would take body
4204
03:58:02.267 --> 03:58:04.780
trying to crack down on information.
4205
03:58:06.600 --> 03:58:08.882
Thank you that's all I have.
4206
03:58:08.882 --> 03:58:09.715
And I have no further question.
4207
03:58:09.715 --> 03:58:11.120
Thank you Miss Sullivan.
4208
03:58:11.120 --> 03:58:12.682
Thank you.
4209
03:58:12.682 --> 03:58:16.460
And Mr. Hernandez, you are the last person to know
4210
03:58:18.147 --> 03:58:19.526
or the judge.
4211
03:58:19.526 --> 03:58:21.910
Good afternoon, Mr. Hanna's, you may proceed.
4212
03:58:21.910 --> 03:58:24.680
With it please the court My name is Robin Hanna's,
4213
03:58:24.680 --> 03:58:27.410
and I'm here representing the 14 elected Sheriff so the
4214
03:58:27.410 --> 03:58:28.640
Commonwealth of Massachusetts.
4215
03:58:28.640 --> 03:58:32.107
These electric shares have a constitutional statutory
4216
03:58:32.107 --> 03:58:34.850
obligation for the Karen crashy well being of inmates as
4217
03:58:34.850 --> 03:58:37.650
well as a responsibility of public safety.
4218
03:58:37.650 --> 03:58:42.650
They serve, in this request, petitioner ledger visuals is a
4219
03:58:42.890 --> 03:58:45.750
violation of the Eighth Amendment right and could be
4220
03:58:45.750 --> 03:58:47.750
considered cruel and unusual treatments.
4221
03:58:48.770 --> 03:58:52.206
But also it could be good some deliberate indifference on
4222
03:58:52.206 --> 03:58:53.680
behalf of the sheriff's.
4223
03:58:53.680 --> 03:58:57.230
This quote is heard no evidence of such petitioner prior to
4224
03:58:57.230 --> 03:58:59.980
file this petition has failed to look at the actions the
4225
03:58:59.980 --> 03:59:02.480
work, the procedure and the policies.
4226
03:59:02.480 --> 03:59:04.720
The sheriff's have put forward so that the facility
4227
03:59:04.720 --> 03:59:08.760
facilities can safely house the individuals in question.
4228
03:59:08.760 --> 03:59:11.720
This is demonstrated to the affidavit submitted by each
4229
03:59:12.676 --> 03:59:13.509
sheriff.
4230
03:59:13.509 --> 03:59:15.580
These actions by the sheriff's were in place prior
4231
03:59:15.580 --> 03:59:18.590
to the CDC spending, sending out the guidelines for
4232
03:59:18.590 --> 03:59:20.020
correctional facilities.
4233
03:59:20.020 --> 03:59:23.250
In fact, guidelines were sent out just seven days ago and
4234
03:59:23.250 --> 03:59:28.250
these these policies were put in by the sheriff by all
4235
03:59:28.350 --> 03:59:30.860
the sheriff's I say in the beginning of March.
4236
03:59:30.860 --> 03:59:33.410
The sheriff's have already contacted and are constantly
4237
03:59:33.410 --> 03:59:35.390
in communication with the CDC Department
4238
03:59:35.390 --> 03:59:37.320
of Public Health in Mima.
4239
03:59:37.320 --> 03:59:41.020
The sheriff's have taken and will continue to take action to
4240
03:59:41.903 --> 03:59:44.350
safeguard the safety of remnants of the importance, the
4241
03:59:44.350 --> 03:59:47.602
state that it's a violation an individual's Eighth Amendment
4242
03:59:47.602 --> 03:59:51.010
rights in cruel and unusual use equivalent to saying the
4243
03:59:51.912 --> 03:59:54.240
show has shown shown deliberate indifference, which is the
4244
03:59:54.240 --> 03:59:56.080
farthest from the truth.
4245
03:59:56.080 --> 03:59:59.320
The sheriff's are one of the first person to make sure their
4246
03:59:59.320 --> 04:00:00.153
employees and their mates were safe.
4247
04:00:00.153 --> 04:00:03.560
They did this and continually do this on a daily basis in a
4248
04:00:03.560 --> 04:00:06.624
number of ways, including but not limited to.
4249
04:00:06.624 --> 04:00:10.450
They have stopped on all non attorney visits and afforded
4250
04:00:10.450 --> 04:00:13.190
more time on phones for family contact.
4251
04:00:13.190 --> 04:00:16.216
They have developed an enhanced screening procedure and a
4252
04:00:16.216 --> 04:00:19.010
help screen for symptoms of COVID-19 for any new ma coming
4253
04:00:19.010 --> 04:00:20.860
into the facility.
4254
04:00:20.860 --> 04:00:23.790
They did this by having a screening while employees also
4255
04:00:23.790 --> 04:00:25.460
coming into the facility.
4256
04:00:25.460 --> 04:00:27.850
They did this by making sure the inside of the facility
4257
04:00:27.850 --> 04:00:30.710
continuously sterilized and clean opposite of what the
4258
04:00:30.710 --> 04:00:33.920
position is search that it's a petri dish.
4259
04:00:33.920 --> 04:00:36.150
They did this by making sure that all individuals are
4260
04:00:36.150 --> 04:00:39.191
providing hygiene products which include soap and sanitizer,
4261
04:00:39.191 --> 04:00:41.590
despite the dishes allegation.
4262
04:00:41.590 --> 04:00:45.200
That's an article so, they do this by educating and
4263
04:00:45.200 --> 04:00:47.970
constantly educating both inmates and employees of the need
4264
04:00:47.970 --> 04:00:51.280
to keep washing their hands and hygiene issues.
4265
04:00:51.280 --> 04:00:54.890
There was a continued education of COVID-19 for both inmates
4266
04:00:54.890 --> 04:00:56.250
and employees.
4267
04:00:56.250 --> 04:00:58.880
If there was an inmate they may test positive they arranged
4268
04:00:58.880 --> 04:01:01.830
for the inmates to be isolated and contained in a way for
4269
04:01:01.830 --> 04:01:03.960
the other inmates in many different ways.
4270
04:01:03.960 --> 04:01:07.600
Some jails have set up the per unit specifically for this.
4271
04:01:07.600 --> 04:01:10.221
It should be noted that COVID-19 is no the shadows
4272
04:01:10.221 --> 04:01:13.370
throughout history have had to deal with issues of the past
4273
04:01:13.370 --> 04:01:16.288
some example being sighs, Ebola Mars.
4274
04:01:16.288 --> 04:01:18.720
In a deal with these examples, they were able to buy the
4275
04:01:18.720 --> 04:01:20.420
safe facility for the individuals.
4276
04:01:21.420 --> 04:01:25.570
Further, petitioners request for relief, as categorized,
4277
04:01:26.470 --> 04:01:28.170
I believe is reckless.
4278
04:01:28.170 --> 04:01:30.430
It will cause more harm to individuals that they are
4279
04:01:30.430 --> 04:01:33.890
literally that they allegedly wants to help show us have the
4280
04:01:34.848 --> 04:01:35.950
task and have worked hard with a
4281
04:01:35.950 --> 04:01:38.240
responsive commitment to reintegration.
4282
04:01:38.240 --> 04:01:40.540
They've worked hard based on the show's commitments of
4283
04:01:40.540 --> 04:01:43.940
safety for the community and damage Individual, you have to
4284
04:01:43.940 --> 04:01:46.504
look at these inmates are these people in jail right now?
4285
04:01:46.504 --> 04:01:50.100
The timely majority really suffer from medical,
4286
04:01:50.100 --> 04:01:52.670
psychological substance abuse disorder.
4287
04:01:52.670 --> 04:01:55.400
They In fact, are the vulnerable ones that maybe for the
4288
04:01:55.400 --> 04:02:00.180
first time, they receiving treatment, very for the first
4289
04:02:00.180 --> 04:02:03.523
time, they wish he was counseling, maybe for the first time
4290
04:02:03.523 --> 04:02:08.030
they deal with a substance abuse disorder,
4291
04:02:08.030 --> 04:02:09.460
that's going to be taken away.
4292
04:02:09.460 --> 04:02:11.340
That's a hard stop.
4293
04:02:11.340 --> 04:02:14.690
We're asking for individuals to be released, as the
4294
04:02:14.690 --> 04:02:18.209
petitioner wants you to category category that endangers
4295
04:02:18.209 --> 04:02:21.420
them a category that doesn't address individual issues each
4296
04:02:21.420 --> 04:02:26.420
person has, if the court allows this, this, this action and
4297
04:02:28.210 --> 04:02:33.210
categorizes inmates by age, by how much time they have
4298
04:02:33.948 --> 04:02:36.821
served, you're not taking into consideration each individual
4299
04:02:36.821 --> 04:02:38.800
person has their needs.
4300
04:02:39.710 --> 04:02:42.510
When the petitioner argues that they're all they they're
4301
04:02:43.739 --> 04:02:46.060
going to be vulnerable outside, they are vulnerable before
4302
04:02:46.060 --> 04:02:46.893
they go to jail.
4303
04:02:46.893 --> 04:02:50.070
Some of them for the very first time, I received medical
4304
04:02:50.070 --> 04:02:53.150
treatment, someone for the very first time of being able to
4305
04:02:53.150 --> 04:02:56.140
address the opiate addiction, you're taking that away from
4306
04:02:56.140 --> 04:02:58.120
it by doing a hard stop.
4307
04:02:58.120 --> 04:02:59.330
Also the homeless issue.
4308
04:03:00.810 --> 04:03:04.060
We have been in contact with a number of shelters, they are
4309
04:03:04.060 --> 04:03:05.200
overloaded.
4310
04:03:05.200 --> 04:03:09.390
They have they don't have places and as people as a medical
4311
04:03:09.390 --> 04:03:13.810
field will tell you, shelters themselves that the petitioner
4312
04:03:13.810 --> 04:03:18.090
wants to help put them in right now have COVID-19 issues.
4313
04:03:18.090 --> 04:03:21.360
These individuals are safer there than they
4314
04:03:21.360 --> 04:03:23.770
would be in in a shelter.
4315
04:03:23.770 --> 04:03:27.930
These individuals are being taken care of in a much cleaner,
4316
04:03:27.930 --> 04:03:32.510
safer place than what the patient wants for the court to
4317
04:03:32.510 --> 04:03:37.510
rule that there is a violation you the court saying that the
4318
04:03:38.040 --> 04:03:40.880
sheriff's have now a deliberative difference and I would
4319
04:03:40.880 --> 04:03:43.100
submit to you if accordance any order?
4320
04:03:44.981 --> 04:03:46.360
I would respect any question, you want to indicate that this
4321
04:03:46.360 --> 04:03:49.550
was not a result of deliberate, deliberate and difference on
4322
04:03:50.753 --> 04:03:51.750
behalf of the sheriff's.
4323
04:03:51.750 --> 04:03:53.330
I'm available for any questions.
4324
04:03:53.330 --> 04:03:55.650
Okay before before we ask, I just want to, before
4325
04:03:55.650 --> 04:03:58.500
we go with we don't need to go.
4326
04:03:58.500 --> 04:04:02.690
Referring to page 19 of the petitioners reply brief.
4327
04:04:03.920 --> 04:04:08.920
And I read paragraph one, both the opposing DHS and the
4328
04:04:09.410 --> 04:04:12.140
sheriff seek to refute constitutional claims in effect
4329
04:04:12.140 --> 04:04:14.790
petitioners have not yet brought.
4330
04:04:14.790 --> 04:04:17.580
Petitioners have contended that the risk posed by COVID-19
4331
04:04:17.580 --> 04:04:21.040
to incarcerated persons implicate constitutional guarantees
4332
04:04:21.040 --> 04:04:23.580
for substantive due process and against cruel and unusual
4333
04:04:23.580 --> 04:04:24.850
punishment.
4334
04:04:24.850 --> 04:04:27.905
But as the trial court the Department of correction and
4335
04:04:27.905 --> 04:04:30.633
other respondents point out, petitioners offered that
4336
04:04:30.633 --> 04:04:33.880
contention merely to establish that COVID-19 outbreaks carry
4337
04:04:33.880 --> 04:04:36.950
both potential constitutional ramifications, not because we
4338
04:04:36.950 --> 04:04:40.030
seek a ruling on these issues at this time.
4339
04:04:40.030 --> 04:04:45.030
So to my knowledge, the petitioners are not raising a
4340
04:04:46.690 --> 04:04:49.340
constitutional claim.
4341
04:04:49.340 --> 04:04:52.090
And if that is incorrect, I would invite one of the
4342
04:04:53.066 --> 04:04:55.258
petitioners who are on the telephone quote to correct that,
4343
04:04:55.258 --> 04:04:56.690
but to my knowledge, they're not bringing constitutional
4344
04:04:56.690 --> 04:05:00.670
claims and not having heard any refutation of that.
4345
04:05:01.941 --> 04:05:03.580
I'll then turn to Justice Gaziano.
4346
04:05:04.510 --> 04:05:08.684
Right it's just one question for me.
4347
04:05:08.684 --> 04:05:13.684
As far as the compiling of these lists in the like, Can you
4348
04:05:15.470 --> 04:05:19.330
give me some idea of what it takes to do this and how easy
4349
04:05:19.330 --> 04:05:23.360
or hard it is to go through your, your I guess it was called
4350
04:05:23.360 --> 04:05:26.310
census and one of the briefs as far as who's in your
4351
04:05:26.310 --> 04:05:30.793
facility and who's being detained, pre trial and bail that
4352
04:05:30.793 --> 04:05:31.693
they can't afford?
4353
04:05:32.970 --> 04:05:35.860
Well, we'll share with you have a daily reporting
4354
04:05:35.860 --> 04:05:39.430
of who's being held who's sentencing who is the house held
4355
04:05:39.430 --> 04:05:42.420
on bail, that can be that could be true anyway.
4356
04:05:45.390 --> 04:05:48.100
I will say on that note that since March 10,
4357
04:05:49.230 --> 04:05:53.360
the other shares combined have released 1441 inmates.
4358
04:05:55.690 --> 04:05:57.710
Can you give me that figure again?
4359
04:05:57.710 --> 04:05:59.680
1441 inmates.
4360
04:06:03.205 --> 04:06:07.570
They said, is that an unusually high number?
4361
04:06:07.570 --> 04:06:09.140
How does that relate to?
4362
04:06:10.370 --> 04:06:12.030
The sherifs have been working with the most of the
4363
04:06:12.030 --> 04:06:15.020
district attorneys as far as helping them provide them the
4364
04:06:15.020 --> 04:06:18.950
information as to what the conditions are the inmates as far
4365
04:06:18.950 --> 04:06:22.420
as health wise, being able to go to a home having a place to
4366
04:06:22.420 --> 04:06:25.100
go to whether there are medical medical treatments.
4367
04:06:25.100 --> 04:06:27.150
There are some inmates right now as we speak, that are
4368
04:06:27.150 --> 04:06:30.650
receiving diabetes, daily diabetic medicine, which they
4369
04:06:30.650 --> 04:06:32.220
weren't receiving before.
4370
04:06:32.220 --> 04:06:34.410
There was some receiving chemotherapy, which they weren't
4371
04:06:34.410 --> 04:06:35.260
receiving before.
4372
04:06:36.450 --> 04:06:37.900
That's a constraining factor.
4373
04:06:39.094 --> 04:06:40.350
The Shadow sounds in Mr. Hernandez as far as the
4374
04:06:41.842 --> 04:06:43.680
ability to manipulate the data as far as given reports,
4375
04:06:43.680 --> 04:06:48.410
how hard or difficult is it to give a list, if it was often
4376
04:06:48.410 --> 04:06:52.955
specific, we had to take out charges put in charges to able
4377
04:06:52.955 --> 04:06:54.900
to spit those reports out?
4378
04:06:54.900 --> 04:06:57.882
That that that would take that would take a little
4379
04:06:57.882 --> 04:06:59.950
amount of work we have we break down the numbers as to pre
4380
04:06:59.950 --> 04:07:03.470
trial in normally draw.
4381
04:07:03.470 --> 04:07:05.540
Okay thank you, sir.
4382
04:07:05.540 --> 04:07:06.950
There's no further questions.
4383
04:07:08.350 --> 04:07:09.670
Justice lowy.
4384
04:07:09.670 --> 04:07:11.170
Am all set thank you.
4385
04:07:12.020 --> 04:07:14.550
Justice Cypher.
4386
04:07:14.550 --> 04:07:16.944
Good afternoon attorney harnendez
4387
04:07:16.944 --> 04:07:17.777
I've got a quick question
4388
04:07:17.777 --> 04:07:18.610
for you, right.
4389
04:07:19.747 --> 04:07:23.010
I understand that your point is that the sheriff's are
4390
04:07:23.010 --> 04:07:25.430
taking good care of the inmates.
4391
04:07:27.250 --> 04:07:29.570
But do they have?
4392
04:07:29.570 --> 04:07:34.337
Are they opposed to the release of low risk, you know,
4393
04:07:36.630 --> 04:07:41.040
nonviolent pretrial detainees who can't make bail,
4394
04:07:41.040 --> 04:07:41.873
for example.
4395
04:07:43.440 --> 04:07:46.865
I wouldn't say their post that anything with
4396
04:07:46.865 --> 04:07:49.280
regards to make sure that there is a balancing test of
4397
04:07:49.280 --> 04:07:52.880
safety for the inmate as well as the community is there.
4398
04:07:52.880 --> 04:07:55.850
So if there was, I'm gonna say low hanging fruit where
4399
04:07:55.850 --> 04:07:58.620
you're saying this person can be released.
4400
04:07:58.620 --> 04:07:59.453
That's fine.
4401
04:07:59.453 --> 04:08:02.710
But if the person right now is in the match program for on
4402
04:08:02.710 --> 04:08:06.050
Suboxone for the opiate addiction, well let them loose
4403
04:08:07.031 --> 04:08:08.810
without any guidelines without any counsel without going
4404
04:08:08.810 --> 04:08:11.241
through the reintegration process reentry process is
4405
04:08:11.241 --> 04:08:14.730
probably going to have to pick up and then he's probably we
4406
04:08:14.730 --> 04:08:16.510
just had a case just out of Asheville.
4407
04:08:16.510 --> 04:08:19.600
The person was released a week ago under this premise and
4408
04:08:19.600 --> 04:08:20.460
he's already been arrested.
4409
04:08:20.460 --> 04:08:22.530
He's been arraigned today.
4410
04:08:22.530 --> 04:08:27.530
If the purpose is to help these individuals, the sheriff the
4411
04:08:27.650 --> 04:08:30.210
sheriff's all in unison, they want to do that.
4412
04:08:31.601 --> 04:08:33.063
They just want it done responsibly so that we don't
4413
04:08:33.063 --> 04:08:35.850
categorize by age.
4414
04:08:35.850 --> 04:08:39.340
One jail as a 16 year old individual that right now is being
4415
04:08:39.340 --> 04:08:42.957
treated as a mechanic under the cap.
4416
04:08:42.957 --> 04:08:45.890
About 60 years old, that person should be released.
4417
04:08:45.890 --> 04:08:47.260
Where's he going to come to treatment?
4418
04:08:47.260 --> 04:08:50.640
He can't even contact MassHealth now, so we'll let them go
4419
04:08:50.640 --> 04:08:54.330
without insurance without some support systems around them.
4420
04:08:54.330 --> 04:08:57.130
We have to consider that for the safety the individuals.
4421
04:08:58.824 --> 04:08:59.890
Thank you,
4422
04:09:02.507 --> 04:09:04.620
Justice Cypher.
4423
04:09:08.760 --> 04:09:09.750
Thank you, Chief.
4424
04:09:09.750 --> 04:09:11.400
I have no questions, thank you.
4425
04:09:12.810 --> 04:09:14.490
Justice Kafker
4426
04:09:14.490 --> 04:09:17.220
No, my only comment, Mr. Hernandez, I agree.
4427
04:09:17.220 --> 04:09:19.930
I saw no signs of deliberate indifference.
4428
04:09:19.930 --> 04:09:23.956
I think that because it's not crystal clear exactly how
4429
04:09:23.956 --> 04:09:28.956
we're going to be dealing with incarcerated people if there
4430
04:09:30.800 --> 04:09:33.130
isn't the constitutional violation.
4431
04:09:33.130 --> 04:09:36.680
So I'm not sure how we would do so.
4432
04:09:36.680 --> 04:09:39.750
Is that also your view that unless there's a constitutional
4433
04:09:39.750 --> 04:09:44.750
violation, we lack authority to deal with the in car the
4434
04:09:45.840 --> 04:09:49.220
incarcerated as opposed to the pretrial detainees?
4435
04:09:50.690 --> 04:09:53.937
The next day, the sheriff's have I believe that's
4436
04:09:53.937 --> 04:09:56.670
the only mechanism to get in there and I was mainly
4437
04:09:56.670 --> 04:09:58.790
concerned that in order to get it may have, you're gonna
4438
04:09:58.790 --> 04:10:01.306
have to find that a little bit of difference.
4439
04:10:01.306 --> 04:10:02.710
We'll be on the sherrifs.
4440
04:10:02.710 --> 04:10:05.070
Thank you, I have no further questions.
4441
04:10:05.070 --> 04:10:07.430
Okay, just to be clear, you're not contending that
4442
04:10:07.430 --> 04:10:09.540
we need to find delivered in different stack with regards to
4443
04:10:09.540 --> 04:10:11.610
those who are being held pretrial, correct?
4444
04:10:12.460 --> 04:10:14.028
No.
4445
04:10:14.028 --> 04:10:16.860
Okay, do you are there any positives in any of the
4446
04:10:16.860 --> 04:10:21.860
jails right now in any printing any details, or coordinates
4447
04:10:25.395 --> 04:10:27.690
or prison personnel who've been I mean, a jail personnel who
4448
04:10:27.690 --> 04:10:30.450
tested positive I thought I heard something about Middlesex?
4449
04:10:30.450 --> 04:10:34.086
Yes, presently, there were two images one employee
4450
04:10:34.086 --> 04:10:35.420
and another facility.
4451
04:10:36.610 --> 04:10:39.880
So middleware makes one employee another facility, both in
4452
04:10:39.880 --> 04:10:44.880
both cases, the employee has been, is at home right now
4453
04:10:45.060 --> 04:10:48.610
being treated in in the, in the two inmates they are being
4454
04:10:48.610 --> 04:10:53.610
held safeguards to their health and as also as well as the
4455
04:10:54.155 --> 04:10:56.330
inmates around them.
4456
04:10:56.330 --> 04:10:59.120
Okay, so I understand that you're appropriately
4457
04:10:59.120 --> 04:11:02.840
concerned for the health of humans amazing, of course, have
4458
04:11:03.813 --> 04:11:04.710
your staff well as the public.
4459
04:11:05.560 --> 04:11:08.510
What would you but but but recognize that we're going to be
4460
04:11:10.250 --> 04:11:12.660
getting a substantial number of these motions.
4461
04:11:13.880 --> 04:11:18.570
And I think you'll also recognize that the sheriff's have
4462
04:11:18.570 --> 04:11:22.350
information which may be relevant to that you've described,
4463
04:11:22.350 --> 04:11:25.737
circumstances in which there would be information which a
4464
04:11:25.737 --> 04:11:27.620
judge perhaps should know, as to what you know, whether the
4465
04:11:27.620 --> 04:11:31.330
person is on MIT or other types of circumstances, what would
4466
04:11:31.330 --> 04:11:34.640
you suggest to be a process which would allow us most
4467
04:11:34.640 --> 04:11:37.730
expeditiously to be able to resolve a substantial number of
4468
04:11:37.730 --> 04:11:41.660
motions in a very short time under very challenging
4469
04:11:41.660 --> 04:11:43.157
circumstance?
4470
04:11:43.157 --> 04:11:45.450
Is where it's being done virtually as opposed to in person?
4471
04:11:46.440 --> 04:11:48.820
Judge, I have a couple of concerns with that.
4472
04:11:48.820 --> 04:11:52.430
I think lump sum bump does lump them all in would be
4473
04:11:52.430 --> 04:11:53.263
difficult.
4474
04:11:53.263 --> 04:11:58.000
Also, I am concerned about going down the road of saying
4475
04:11:58.000 --> 04:12:00.720
because someone has a medical condition, we shouldn't
4476
04:12:00.720 --> 04:12:03.470
consider them for release because they've been treated.
4477
04:12:03.470 --> 04:12:05.300
I worry about going down that road.
4478
04:12:06.283 --> 04:12:11.150
I worry that at one point, somebody misses the match
4479
04:12:11.150 --> 04:12:11.983
program.
4480
04:12:11.983 --> 04:12:15.260
They won't have the school system we hold because of their
4481
04:12:15.260 --> 04:12:16.360
match program.
4482
04:12:16.360 --> 04:12:18.340
We should for their own benefit.
4483
04:12:18.340 --> 04:12:20.570
And we should use it's the right thing to do.
4484
04:12:20.570 --> 04:12:23.988
But I wonder about people making that argument in court how
4485
04:12:23.988 --> 04:12:26.441
it's going to impact decisions down the road.
4486
04:12:26.441 --> 04:12:30.940
I know the show some more than happy to work with as long as
4487
04:12:30.940 --> 04:12:34.250
it's individualized and we look at each individual is
4488
04:12:34.250 --> 04:12:35.083
concerned.
4489
04:12:35.083 --> 04:12:38.573
The petitioner should be with us on that because they have
4490
04:12:38.573 --> 04:12:42.510
indicated their concern are these individuals that it's not
4491
04:12:42.510 --> 04:12:45.230
just a matter of getting them out of jail, to make sure that
4492
04:12:45.230 --> 04:12:47.390
they're out there and living their lives.
4493
04:12:47.390 --> 04:12:50.010
They are human beings, and we're concerned about them and
4494
04:12:50.010 --> 04:12:52.930
we have to make sure they get all the supports as they need.
4495
04:12:52.930 --> 04:12:55.700
It is a bad time right now to cut people loose and say,
4496
04:12:55.700 --> 04:12:59.450
Hey, the goal, by the way, nobody's really coming out to
4497
04:12:59.450 --> 04:13:01.600
help you right now because everybody's everybody
4498
04:13:01.600 --> 04:13:02.950
needs a bunker down.
4499
04:13:02.950 --> 04:13:05.380
It's a very dangerous thing, very dangerous road, we're
4500
04:13:05.380 --> 04:13:06.213
going down.
4501
04:13:07.240 --> 04:13:09.590
So again, I'm just understanding if the sheriff's
4502
04:13:09.590 --> 04:13:14.370
position that the pandemic is is not a change circumstances
4503
04:13:14.370 --> 04:13:18.450
which would warrant revisiting a person's bail,
4504
04:13:18.450 --> 04:13:22.130
or is it that there's a right way to do it the wrong way?
4505
04:13:22.130 --> 04:13:24.800
It's a little bit of both the historically have
4506
04:13:24.800 --> 04:13:28.790
dealt with not this type of situation, but other situations
4507
04:13:28.790 --> 04:13:33.180
like my son says, may I'm sure I may have shot sighs they've
4508
04:13:33.180 --> 04:13:38.180
dealt with contagious issues out there within a facility and
4509
04:13:38.570 --> 04:13:40.310
they kept the facility safe.
4510
04:13:40.310 --> 04:13:44.040
Then on the other argument, it will go into do it the right
4511
04:13:44.040 --> 04:13:46.390
way, let's do individual let's look at what the person
4512
04:13:46.390 --> 04:13:50.090
needs, help them and also the community around them.
4513
04:13:50.090 --> 04:13:52.240
Okay, and help me to understand what the sherrifs
4514
04:13:52.240 --> 04:13:55.570
would contend would be the right way recognizing that the
4515
04:13:55.570 --> 04:13:59.350
sheriff's do have information about people in their
4516
04:13:59.350 --> 04:14:03.760
facility, which may be, which may be a benefit to the DEA
4517
04:14:03.760 --> 04:14:06.610
or to the defense counsel or certainly to the judge,
4518
04:14:06.610 --> 04:14:08.670
what is the right way to do it?
4519
04:14:08.670 --> 04:14:11.859
I think the sheriff's been at the table to be able
4520
04:14:11.859 --> 04:14:14.097
to be able to provide the information of what sort of
4521
04:14:14.097 --> 04:14:16.570
treatment where the individuals are with regard to their to
4522
04:14:16.570 --> 04:14:21.060
the medical issues, to this substance disorder issues.
4523
04:14:21.060 --> 04:14:24.330
And as to the psychological issues, I think we need to be at
4524
04:14:24.330 --> 04:14:25.680
the table.
4525
04:14:25.680 --> 04:14:28.140
These sheriffs live with these inmates 24 hours a day.
4526
04:14:28.140 --> 04:14:30.549
We probably know them more than their own attorneys know
4527
04:14:30.549 --> 04:14:31.930
them.
4528
04:14:31.930 --> 04:14:34.360
And what process would you put in place given how
4529
04:14:34.360 --> 04:14:37.890
difficult it is to get everybody to the table these days?
4530
04:14:37.890 --> 04:14:42.418
What process would you put in place to allow that to happen?
4531
04:14:42.418 --> 04:14:44.960
They I can only say information share, and I don't
4532
04:14:44.960 --> 04:14:48.060
have a mechanism My mind is how to get it done.
4533
04:14:48.060 --> 04:14:51.110
But I just know the tools that we need to make sure that it
4534
04:14:51.110 --> 04:14:51.960
gets done.
4535
04:14:51.960 --> 04:14:55.340
I don't know what the mechanism is that we should all have
4536
04:14:56.179 --> 04:14:58.400
an input in this for these individuals themselves.
4537
04:14:58.400 --> 04:15:01.130
And in response to a question Gaziano because you
4538
04:15:01.130 --> 04:15:03.970
know as to what information is readily available to the, to
4539
04:15:03.970 --> 04:15:08.760
the sheriff's I gather, with regard to an imaginary john
4540
04:15:08.760 --> 04:15:11.470
smith, you wouldn't know what programs john smith is
4541
04:15:11.470 --> 04:15:13.949
in and you know, that person medical risks and what's, what
4542
04:15:13.949 --> 04:15:18.949
that person is facing, but you also know what he's incharge
4543
04:15:19.741 --> 04:15:23.640
with and kind of get a sense as to what information.
4544
04:15:23.640 --> 04:15:26.240
we would know what he's charged with to
4545
04:15:26.240 --> 04:15:29.240
individual, we will, we will know he's in match treatment.
4546
04:15:29.240 --> 04:15:32.230
Taking Suboxone, we would know he's any medical conditions.
4547
04:15:32.230 --> 04:15:35.010
We have people with diabetes and other medical conditions,
4548
04:15:35.010 --> 04:15:39.070
we could update and keep them informed the quarter that we
4549
04:15:39.070 --> 04:15:42.370
could also know you know, tell you about explaining with the
4550
04:15:42.370 --> 04:15:46.030
Psychologically wise, we will provide them information.
4551
04:15:46.030 --> 04:15:48.384
And I think every Sheriff will tell you they're
4552
04:15:48.384 --> 04:15:50.620
more than happy to.
4553
04:15:50.620 --> 04:15:51.950
I have no further question.
4554
04:15:51.950 --> 04:15:54.200
Justice Gaziano any further questions you may have?
4555
04:15:54.200 --> 04:15:55.840
No thank you chief.
4556
04:15:55.840 --> 04:15:56.690
Justice Lowy.
4557
04:15:56.690 --> 04:15:57.680
NO thank you.
4558
04:15:58.652 --> 04:15:59.485
And Justice Budd.
4559
04:15:59.485 --> 04:16:00.570
No thank you.
4560
04:16:00.570 --> 04:16:02.175
Justice Cypher.
4561
04:16:02.175 --> 04:16:03.375
No thank you.
4562
04:16:04.280 --> 04:16:05.820
Justice Kafker.
4563
04:16:05.820 --> 04:16:07.020
No thank you.
4564
04:16:08.100 --> 04:16:10.540
All right, I have no further questions.
4565
04:16:10.540 --> 04:16:15.540
So after an yeah 4 hours and 30 minutes.
4566
04:16:19.020 --> 04:16:23.750
We have concluded this hearing, I am well aware that we have
4567
04:16:23.750 --> 04:16:27.950
the case of Commonwealth vs. Christie that we have here but
4568
04:16:27.950 --> 04:16:32.950
if you will be our what I will suggest is that we take a
4569
04:16:33.200 --> 04:16:34.190
half hour break.
4570
04:16:37.552 --> 04:16:39.670
And I think it makes sense for people to hang up and I will
4571
04:16:39.670 --> 04:16:41.950
commence a conference call.
4572
04:16:41.950 --> 04:16:44.140
I think a much smaller number.
4573
04:16:44.140 --> 04:16:45.740
Now exiting.
4574
04:16:47.715 --> 04:16:49.740
So at at 2:50.
4575
04:16:49.740 --> 04:16:52.400
We'll plan to reconvene at that time.
4576
04:16:52.400 --> 04:16:56.240
We'll hear from will hear with regard to the attorneys in
4577
04:16:56.240 --> 04:16:58.790
the case of Christie versus Commonwealth.
4578
04:16:59.810 --> 04:17:02.820
I think well for your arguments I thank you all for your
4579
04:17:02.820 --> 04:17:04.440
forbearance.
4580
04:17:04.440 --> 04:17:06.770
We of course will take better under advisement
4581
04:17:06.770 --> 04:17:09.070
and we shall be back to here the case of
4582
04:17:09.910 --> 04:17:12.360
Commonwealth vs. Christie at 2:50, thank you all.