Announcer: This is SJAC 12927,
Glenn Christie v. Commonwealth.
(background noise drowns out speaker)
-: [Chief Justice Gants] On behalf of Mr. Christie,
you may proceed.
David R.: Thank you very much, Your Honor,
David Rajkovic for Glenn Christie.
This morning and afternoon, this court has listened
to over four hours of argument concerning difficult issues
of systemic importance, to save as many lives as possible
across the Commonwealth.
In that time, over 3,000 people
in the US have been diagnosed with this virus.
Over 70 people have died from it.
The extraordinary nature of this moment is reflected
in the extraordinary nature of this argument,
and I represent just one of the lives at stake,
Mr. Christie, who stands out as an example
of someone who's been placed in very serious jeopardy
from this pandemic.
If this court wants to provide guidance to trial judges,
I ask that you recognize Mr. Christie
as the archetype of inmate in need of protection,
and authorize his immediate release.
I submit it would send emphatically the wrong message
to the trial courts to continue to hold this man,
who is vulnerable to the virus,
who is near his release date, who is held
on technical violations of probation,
and is now in the only facility
that we know of with a growing and ongoing outbreak.
To deny release to Mr. Christie
in these extraordinary circumstances would,
I fear, be taken as precedent and as license
by trial judges hearing any of these release motions,
and would send the signal
that would thwart any systemic remedy,
and more people will die,
and Mr. Christie's life will continue
to be in very grave danger.
As ADA Padalano said,
"Release is the just and humane thing to do."
Now, Mr. Christie told me, in speaking to him this morning,
I asked him if there's anything he wanted to me
to communicate to Your Honors, and he said,
"Just tell them that I'm genuinely afraid for my life.
"There are only two medical providers in this facility,"
he tells me, "and one of them has already tested positive."
So as we stand here today, this facility is
on the cusp of an overwhelming outbreak,
and there's only one medical provider left standing.
Now, Mr. Christie told me this morning,
he thought the number of people there diagnosed were 17.
Mr. Anderson has said the same number, 17,
so I'm glad those numbers match.
So I would disagree with counsel in the prior case.
They are not safer in these facilities.
We've gone from 10 cases to 17 just over the matter
of a weekend.
Now, it's proceeding exponentially,
and we all know just how quickly this virus spreads.
When this petition was filed, there were no cases
in the Department of Corrections.
Then we proceeded through the Superior Court.
When the motion to renew was filed,
there were four, and now there are 17,
even though we proceeded incredibly quickly in this court.
And the DOC attorney also represented
that two cases were sent to local hospitals,
which is two fewer hospital beds for the community.
So we know this won't stop, we've seen it.
It will continue to grow exponentially,
and the only up or down is the number of people housed
in this particular facility.
And I would just urge the court
to recognize Mr. Christie as a unique
and exceptional candidate for release.
He is 11 months in a one to two year sentence
for technical violations of his probation,
and I don't say technical to dismiss the violations,
I say technical to be descriptive.
I think we all know what that means,
there's no allegation of new criminal activity.
With good time credits, he's within six months
of his release, he's 54 years old.
He suffers from a number of disorders,
hypothyroidism, kidney disease, spinal stenosis,
and he's currently awaiting confirmation
of whether his past thyroid cancer has returned.
So he falls into many of the categories
of people for whom the emergency petition
and the systemic litigation sought release,
many separate categories that would entitle him
to relief under the proposed emergency legislation
in the general court.
But a one to two year sentence should not put his life
in jeopardy, this is not remotely the sentence
that was imposed.
Now, on that score, I emphatically agree
with Mr. Ralph's argument from the prior case.
Now, like many of us, he's been terrified
for the past two straight weeks,
and he is not in a facility, and again, I disagree
with the counsel for the DOC, he is not in a facility
where they are practicing social distancing.
He's in a small six man dorm room.
When he needs medication, he lines up
in the dormitory hallway with 50 to 60 other people.
This is not the sort of physical distancing
we've all come to practice in our daily life.
He's in very serious danger right now.
He suffers from many overlapping conditions
that place him at high risk for complications and death,
and the outbreak is spreading in this facility,
and he can't avoid it, he can't control the risks.
He can't social distance, the risk is entirely out
of his control, and he does not deserve
what will come to him if nothing happens.
Justice, in this case, will not be done,
and I would ask you to authorize his release.
And with that, I would welcome your questions.
-: [Chief Justice Gants] And I will note
that Justice Lenk is also recused on this matter,
so Justice Gaziano is the senior Justice.
So Justice Gaziano, you may proceed.
Justice Gaziano: I have no questions, Chief, thank you.
-: [Chief Justice Gants] Justice Lowy?
Justice Lowy: Yes, thank you.
In the opposition,
we are told that one of the reasons for
the
violation
was missing one third
of the sex offender treatment meetings.
Do you agree with that?
David R.: I agree with that, only in the sense of,
he was not at those meetings, but I have,
in my motion to reconsider, I did explain a number of those.
And a number of them just, they honesty,
they are not anything that could remotely be described
as willful, so the suspension letter lists 12 missed dates.
One of those missed dates was actually canceled
by the program itself, so that's--
Justice Lowy: Why don't you tell me the number,
why don't you tell me what the number is,
best case scenario for Mr. Christie,
of how many he missed.
David R.: How many he missed, without any forewarning
and with no reason, he missed two meetings.
Justice Lowy: Okay, but--
David R.: And he was suspended from the program
for less than a month, and he resolved it so quickly
that he resolved it prior to the violation hearing.
And I do want to note that the opposition speaks
to portray Mr. Christie as someone
who does not behave consistent with court orders,
and that is just not consistent
with the reality of this case.
He was deemed acceptable by the program every single month
that he participated in it.
So he did miss those two meetings,
but even in the month where he missed those two meetings
without explanation, the program listed him as exceptional.
So he had no, what is required by due process,
he had no notice that this was not only going to lead
to a suspension from the program,
but actually a violation of his probation.
And if the primary purpose of probation is rehabilitation,
he was never terminated from the program.
So the woman who ran it never thought
that these missed meetings were actually,
made him not amenable to rehabilitation
and continuing in the program.
And then the other two bases are missing a meeting
with his probation officer because he had,
two days prior, been in the hospital overnight,
and tried to explain himself in three separate calls.
Being late for a restrap of his GPS device
after it broke through no fault of his own
because of a massive fire that shut down the Blue Line.
It was the Casket fire in East Boston,
the Casket Company fire in East Boston.
So these are just not the sorts of violations
that would make one think that Mr. Christie would not abide
by any conditions that this court would set.
So I would ask the court to take all
of that into consideration, and I'm not trying
to relitigate the violation hearing,
but to the extent Mr. O'Sullivan, in his opposition,
is trying to portray Mr. Christie as someone
who does not comply with court orders
and court set conditions, I do think it's germane
to look at the dates of the violations
and see that they're largely not willful.
And there's only really two missed overall meetings
from a program that he was just ordered to complete.
And I, of course, cited the Bino case
in my reply, where the Appeals Court basically said
that you have to be discharged to run afoul
of basic completion conditions.
So I would urge Your Honor to note that
when considering this case.
Justice Lowy: Okay, thank you.
-: [Chief Justice Gants] Justice Budd?
Justice Budd: Yes, Attorney Rajkovic, tell me,
what would you do with the fact that
the Superior Court
and I believe the Appeals Court both found
that your client presented a danger to the community?
I mean,
and that he also is unlikely
to commit additional criminal acts.
Just the, and I understand
the criminal acts part and I understand he's
in a wheelchair, but what do we do with their findings?
Do we have to find them clearly erroneous?
David R.: Well, Your Honor, I would ask the court,
especially since we're here under two 11 three
and under rather extraordinary circumstances,
where all of those findings, of course,
predate this entire pandemic issue.
I would ask the court to take a look at those findings anew
and see that the convictions, in this case,
for conduct 15 years ago, they represent the entirety
of Mr. Christie's criminal record.
There's been no allegation of any similar conduct,
either before that, this 15 year ago episode or since.
And as you noted, at present,
Mr. Christie, he cannot even walk,
as confirmed by a physician's assistant
at the Boston Medical Center in my appendix
to my motion to renew on page 57.
The community itself is now in lockdown,
so circumstances have changed.
Any opportunity to commit a crime is considerably narrowed,
and he's gonna go into lockdown, as well, himself,
because he'll thankfully be removed
from this enclosed congregate environment
in which this virus is spreading,
but then he'll be in a quarantine.
So he'll be quarantined, in a wheelchair,
during a lockdown of the entire community.
So it's hard to imagine a case
where the scales could be more tipped more strongly
in favor of his release, especially
when you consider just how vulnerable he is to this virus.
I mean, some of the numbers in the studies out of Wuhan,
I think, are cited in my motion to renew,
about just how significant the risk to his life is
when someone has these comorbid conditions.
And these are not things that were ever considered
in those findings in the Superior Court
that were weighed against this.
Most especially, Justice Ditkoff's finding,
which the opposition portrayed that as being only
about a month ago, but sort of a lot's happened since then,
as we all know.
So, and then considering the actual bases
of his violation, he missed a meeting
with his probation officer because he was sick.
He got suspended from a treatment
and immediately reinstated, and he was delayed
from fixing his GPS device because of a massive fire
that shut down the Blue Line.
He's already served 11 months of the one to two years,
but this is not the sort of conduct
that justifies putting his life in such serious jeopardy.
So I do appreciate those findings,
but I would ask the court,
given the extraordinarily changed circumstances,
to both consider the new circumstances
and reconsider the old ones,
given that no such balancing has been done before.
Justice Budd: In terms of his,
the earliest release date,
I think your papers said June or July,
but it wasn't, it didn't correlate with what
the Probation Department had, do you know what it is?
David R.: Yeah, I think the Department of Corrections,
in the hearing before Judge Tosca,
represented that with good time credit,
he would be due for release just within six months.
So it would be, I think it was sometime in mid September.
I don't remember the exact date.
And his understanding was that it could be as early
as late July, but he may have been mistaken about that.
I don't think he knew that exactly correctly,
I think would be the most likely thing,
given the DOC's representations
on our prior telephonic hearing.
So I think it's within six months, being late September.
Justice Budd: Okay, and
in order to
release him, it would have to be cruel
and unusual punishment, right, I mean, we would have
to find deliberate indifference, is that correct?
David R.: Well, I don't think you would necessarily have
to find deliberate indifference, I mean,
I think it could be something, for example,
it could be done under this court's extraordinary power,
under two 11 three, it could be considered the sort
of circumstance that requires revision
of the sentence under a suspended rule 29.
And again, I agree with ADA Ralph's representations
about how this is not the sentence
that was intended at the time it was imposed,
and therefore, is the basis to revise the sentence.
And one point I would just make,
in addition to all the points that ADA Ralph made,
is the Taheda case, which is about a (mumbles) sentence
that comes after the defendant's sentence.
That was deemed something to be important enough
to justify suspending the limitation
on considering new circumstances
and new facts in a motion to revise and revoke.
And I would submit that if that is considered something
that's important enough to consider something new
that's developed after the time of sentencing,
the same should be true when there's this sort
of unprecedented global pandemic,
when, as Justice Lowy wrote there,
"The underlying principles
"that govern rule 29 are fairness and justice."
So I don't think this court necessarily needs
to find that there's necessarily cruel
and unusual punishment, but even if you disagree with me,
I think some of the sheriffs
in the Department of Corrections think
that the petition, at least the systemic petition
to which I was also co-counsel,
was intended to in any way cast aspersions upon them.
And as we clarified in our reply,
that's not what we were intending to do.
We're not trying to cast blame for it,
but these are inherently dangerous environments,
that the risk cannot be mitigated
because of what we've seen in these congregate environments.
We just saw, I think in the papers,
the tragedy of what's happening in Holyoake,
with 13 deaths in the nursing home.
We've seen this happening in Seattle.
So to do nothing in this situation,
I think would not recognize the risk
that is inherent to the correctional environment
in these facilities, and as all the public experts said
in the submissions in the systemic case, it would save lives
to send out and reduce the density of these facilities.
Not just of the incarcerated people within them,
but also the staff and the broader communities
because every person that gets taken out
of one of those facilities and gets put
into a community hospital is one less hospital
for somebody who lives in that community.
So both for the public health reasons
of the people inside and the people outside,
we need to do this on a systemic basis.
But I think Mr. Christie also stands out
as uniquely deserving and uniquely needing
to be released, as well,
given his vulnerability to this virus.
Justice Budd: Okay, thank you.
David R.: Thank you.
-: [Chief Justice Gants] Justice Cypher?
Justice Cypher: Yes, thank you.
Counsel, I read the papers, but there's been a lot
that's happened since, can you refresh my memory
of what the crimes are that he was sentenced for?
David R.: Yes, Your Honor, certainly.
So he was sentenced for multiple counts of,
let me just, I can just pull it up.
Multiple counts of rape of a child,
and then there was a reversal on appeal,
and then in, I believe it was in June of 2018,
he then pled guilty to those charges
and was placed on probation, so those are the charges.
Justice Cypher: And then the violation of probation,
did that involve any contact with any
of the previous victims?
David R.: No, no, certainly not, no.
I can explain the bases of the violation
of probation, Your Honor--
Justice Cypher: Okay, so I just want to make sure,
yeah, no, no, it didn't involve contact
or anything like that, that's fine.
David R.: No, no, I can't emphasize enough.
It certainly did not, he missed one meeting
with his probation officer because he was,
yeah, because he was-- -: I understand.
David R.: He missed one meeting
with his probation officer because he was sick,
and the other things, I've already described.
So no, it was no allegation of--
Justice Cypher: I understand.
David R.: Yeah.
Justice Cypher: Okay, no further questions, thank you.
-: [Chief Justice Gants] Justice Kafker, Justice Kafker?
Justice Kafker: So I remember, there's an issue
with the friend he says he's going to live with, that,
what do we know about the friend he's going to live with?
Is it-- -: Yeah, I mean--
Justice Kafker: (mumbles) at all?
David R.: Yeah, so as the Chief Justice said,
I mean, we've done the best we can with,
in the prior case, we've done the best we can
with the release plans under the circumstances.
I did speak, actually, to his friend yesterday evening,
and she's someone who lives in Revere.
I can tell you her name, if you'd like.
She lives in Revere, she has no children who live with her
or visit her, she's indicated that she has grandchildren,
but she's actually estranged from her daughter.
So she doesn't see her, she was sad about it,
she doesn't see her grandchildren anymore.
So no children will be living with her
or visiting her any time in the near future.
She said that she's aware that Mr. Christie happens
to be in the facility with the ongoing
and growing outbreak, and that she would be willing
to have him quarantine himself in her home.
So that's the option there.
Mr. Christie has also told me about a friend
of his in Pittsfield who was referenced
in the probation submission, and I haven't been able
to speak to that friend of his.
But Mr. Christie told me that that friend has also told him
that there would be possibility of staying with him.
But that would take him obviously further away.
But of course, of course as we laid out
in our relief plan, which was updated
with the motion to renew,
anything,
any treatment that he would start,
particularly the mental health providers who,
I think it's important to note, who he was seeing above
and beyond the terms of his probation, including,
Justice Lowy, those two missed meetings
with the court ordered program he was seeing
on a very consistent basis,
two separate mental health counselors,
the one at the Lynn Community Health Center,
the other at a place called Circles of Care.
And they both indicated that they would take,
continue to see him on a kind of similar
to how I'm seeing you all now, on a video conference line
or an audio meeting line, and they would welcome him
with open arms back into treatment.
So he would have, his release plan would be going
to live with this friend who I can tell you,
as an officer of the court, I've spoken with
and is willing to have him quarantine with her,
and has no children living with her.
At that point, he would then restart his health insurance
and try to start planning for the spinal surgery
that he needs to walk again, but he won't be having
that anytime in the next few weeks,
because I think from this facility,
I think the responsible thing for him to do,
and I think he's planning to do, is quarantine himself,
and then thereafter, and then during that two week period
of time, he would take up the mental health treatment
that he was doing, both as the condition of his probation,
and beyond the terms of his probation.
And then he would get the spinal surgery
that he needs thereafter, once the self quarantine lifts,
and if he's able, given everything that's,
there's obviously some inherent uncertainty here
that is beyond his control.
But he would then try to go get the treatment
that he needs in order to be able to fix some
of the cysts on his spine and the spinal stenosis
that is pinching his spinal cord
and making him unable to walk.
So that is the plan that he's got going forward,
and then from there, it would be rehabilitation
and trying to find an independent place to live,
consistent with the letter from the social worker
that we submitted with our original motion.
And I've also been in touch with that same social worker
who's CB is in my submissions to this court,
and she's indicated that she is--
(Justice Gants mumbles)
I'm sorry.
Justice Kafker: I just wanted to switch subjects
'cause I think we have enough on that.
And Justice Lowy will be more familiar
with Taheda than I will be, but Taheda,
we allowed a motion for a new trial, right?
Because the coventurer got, I can't remember,
got a very short sentence, or a shorter sentence.
Is that what we did, we didn't do a rule 29,
in that case, did we?
David R.: No, that was a rule 29.
Justice Kafker: That was a rule 29 case, okay.
David R.: Yeah, that case was a rule 29,
and Justice Lowy's opinion, excuse me, allowed--
Justice Kafker: (mumbles), it was within 60 days,
or we allowed it, even though it was after 60 days?
David R.: That, I'm less sure about, I--
(Justice Kafker mumbles)
Justice Kafker: We can figure that out, we'll look it up.
But I just was, just wanted to make sure I understood.
David R.: I would, and Justice Kafker,
I would assume that it was probably within 60 days
because the case mostly just discusses the exceptions
for new information, so there's no discussion
of lifting the time limit.
So I think that was mainly focused on that,
so I would guess it was within the 60 days.
Justice Kafker: That's all I have, thank you.
-: [Chief Justice Gants] I've got a few questions.
With respect to the sentence that he received ultimately
after the reversals, it was a pure probationary sentence?
There was no,
no custodial sentence imposed?
David R.: No, well, he served six years at that point.
So as an agreed disposition, he got six years being served,
and then he was placed on 10 years of probation.
-: [Chief Justice Gants] Let me see, okay.
So it was a 10 year probationary period.
Was it six years deemed served,
or was he sentenced to that on a separate count?
David R.: I think it was six years deemed served,
and then he was placed on probation on two counts.
-: [Chief Justice Gants] I see, okay, so with regard to that.
As I understand it,
Judge,
you had,
the judge who sentenced was Judge Rieger,
and then it went to,
back ultimately to Judge Tosca.
And I believe, what, it was February 14th that Judge,
it was Valentine's Day, I think,
that Judge Rieger denied it, and then it was February,
denied by
February 27th, I believe, or the 26th, correct?
David R.: It's 26th, yes, Your Honor.
-: [Chief Justice Gants] So when it went back to Judge Tosca
after it had gone initially to the single justice,
that was February 27th.
So that was before this thing broke open.
David R.: So it was before Judge Tosca,
after the initial decision was denied.
So two weeks ago,
I filed the initial petition before Justice,
in the single justice session.
That was denied,
and so then I effectively renewed the motion
in the Superior Court to exhaust the trial court remedies,
and then it was denied by Judge Tosca the following Monday.
So that was-- -: Okay.
And he, I believe, denied it because he had understood
that the Appeals Court single justice,
who I believe was Justice Ditkoff,
had already ruled on that, is that correct?
David R.: Well, that was certainly part of his analysis.
Part of his analysis was also a belief
that he didn't actually have the authority to rule on that,
and then part of his analysis was,
something else he said in that analysis was
that he didn't actually think
that Mr. Christie's risk of contracting COVID-19 was
actually higher in the facility,
which I think is also quite incorrect.
And then another point that he made is he didn't think,
I mean, I think in terms of his analysis
of the public safety risk, he largely
agreed with the analysis of Justice Ditkoff,
which obviously preceded this entire thing.
But one point that he made was
whether Mr. Christie would be more likely
to contract COVID-19 at the treatment center
if he's not immediately released is pure speculation,
which I think, given that we've gone
from 10 to 17 cases over this past weekend,
I think is quite incorrect.
And by that point, I also, the woman, the friend
of Mr. Christie's works in healthcare.
She told me yesterday
she's been working double shifts every day.
She called me in her 15 minute gap between shifts,
and she basically said that, she told me everything
I just reported to Your Honors,
and I didn't have any of that information
when I was before Justice Tosca last week.
So that's another thing that's changed,
is I think we have a little more clarity
because Judge Tosca also said,
it's not clear that he would quarantine himself.
And now I can represent to Your Honors
that I've spoken to someone who's willing to take him in
and have him quarantine himself.
So he doesn't present the danger to public health
that I think Judge Tosca feared at the time
because we didn't have some of that detail.
-: [Chief Justice Gants] Do we have, by the way,
his ruling in the record, I couldn't find it.
David R.: I believe it is appended
to an amended opposition filed by Mr. O'Sullivan,
I think would be the place to find it,
because he didn't, Judge Tosca did not issue
that written ruling until after his oral denials
of the motion, which was just during the telephonic hearing.
So it came after the hearing,
and I think it was emailed to the parties the same day
that Mr. O'Sullivan's opposition was due.
And because he got it that same day,
all I can speak to this,
but that's why he amended his opposition, added it there.
-: [Chief Justice Gants] I see, okay.
So is it,
and certainly, of course, you would want us
to simply order his release, I understand that.
Is it also your argument that the matter,
that the matter should properly go back to Judge Tosca,
because he's not bound either by the ruling
of Justice Ditkoff, or by his own ruling
because of the change in circumstances?
David R.: Well, Mr. Chief Justice,
I would ask this court to authorize his immediate release,
primarily being, when I filed this petition,
there were no cases in any DOC facility.
Now we have 17 in Mr. Christie's very facility.
Given this process,
as extraordinarily vast as it's happened,
we can't out race this virus, it's growing every day.
One of his roommates has already been taken out of his room,
of his six man room, and a couple days later,
correctional staff came in
with personal protective equipment
and took out all the man's possessions
and all of his clothing.
So Mr. Christie is
terrified that any further delay will lead him
to contract this virus
and put his life into very serious jeopardy.
So I think that's something, of course,
Mr. Chief Justice, that this court could do.
But I think given the extraordinary circumstances,
that it justifies the extraordinary action
of this court, not only doing this
to save Mr. Christie's life, but I think a lot
of trial judges, as this court works on a systemic remedy,
are gonna take their cues from what this court does
in this case with someone who falls into so many overlapping
and dovetailing categories entitling him to release,
under actions that have been taken in other jurisdictions,
and even in proposals in Massachusetts.
So I would urge this court
to authorize his immediate release.
-: [Chief Justice Gants] All right,
let me ask one more thing.
With regard to the issue
of a stay pending appeal, there are two problems,
of course, one is whether it's worthy of presentation
to an appellate court, and your argument,
I'm sure, is that of course it is,
based on that they're being technical violations,
and there's some question as to whether those were willful.
The other issue is one of security,
and generally, it's, of course, not only the risk of flight,
but the potential danger to any other person
or to the community.
Is it your argument that, in view of the pandemic,
we need to consider security in a way we never have before,
which is to consider the possible danger
to the inmate himself arising from the denial of the stay?
David R.: Well, I think that it's both the danger
to the inmate himself, I do agree with that,
but I also think it's something that,
that is echoed in Dr. Sivashankar's affidavit,
appended to our reply in the systemic litigation,
that we're all interdependent in this pandemic.
And any risk to the safety and health
of inmates inside of these facilities will cascade
into the broader community and will affect everyone.
So I think it's just a simple recognition
that public safety has to include public health,
and it includes the health not only of incarcerated people,
but also correctional staff, their families,
and their broader community.
So we know that every inmate who comes out
of that facility who needs a bed is one less bed
for anybody in the community.
So I do think it's something that should be recognized
in any assessment of any sort of public safety risk
that this would cause.
And of course, Mr. Christie's just one person,
but this is a systemic remedy that we're seeking,
and every individual person is one less person
to transmit the virus and one less person to take up a bed.
So I do think that's something
that should weigh significantly
in that prong two calculus, I agree.
-: [Chief Justice Gants] Okay, I have no further questions.
Justice Gaziano, any questions to follow up?
Justice Gaziano: No, thank you.
-: [Chief Justice Gants] Justice Lowy?
Justice Lowy: Yes, could you tell me,
what do you think our standard review here is,
as it relates to the security danger issue posed,
considering the determination by Judge Tosca and Ditkoff?
David R.: I would submit, Your Honor,
that it should be considered de novo, given how,
A, how difficult it is to really weigh these factors,
given how much has even changed,
just since Judge Tosca issued his ruling last week,
and how many more cases there are in the treatment center.
And also, I mean, I think under any standard of review,
to, for example, Justice
Ditkoff's ruling,
he says, just by way of one example,
that even if,
even if Mr. Christie is successful in his argument
about the willfulness of his violation,
he still doesn't comply with court order.
But that doesn't really hold water, right?
Because if his violations are not willful,
then he does comply with court orders.
So I think actually the prong one sort of analysis,
the reasonable possibility of success,
just how, in my view, just how clearly not willful,
at least to, and I would submit that the third violation,
as well, of these violations are,
should weigh in the balance, as well,
and be something that, by any standard of review,
is not on title to be accepted by this court on appeal.
So that would be my submission,
that I think because of how much is constantly changing,
de novo review is appropriate, but by any standard,
that sort of
view of these facts is not supported
by the evidence, as well.
Justice Lowy: What about what we know
about this family friend,
that he would stay with,
is only that she's a healthcare worker
who'll be doing double shifts, so presumably,
he'd be home alone most of the time.
And that's all we know--
David R.: Yeah, yeah, I think,
I mean, I wish I'd had more time to get an affidavit
from her, or to have a long conversation with her.
She did mention having a significant other,
who is a gentlemen who she lived with.
So I don't know if Mr. Christie would be entirely alone
in her place, but her primary things
that she mentioned to me are that she'd be willing
to have him quarantine there, she has a separate bed
and room for him,
and she has no children who not only don't live with her,
but they don't visit her.
So he would have no access to children.
And she works in healthcare, and she's been working a lot
of double shifts recently.
So that's primarily the extent
of the representation she made to me.
Justice Lowy: Thank you very much.
David R.: Thank you.
-: [Chief Justice Gants] Justice Budd, anything else?
Justice Budd: No, thank you.
-: [Chief Justice Gants] All right, Justice Cypher?
Justice Cypher: No, thank you.
-: [Chief Justice Gants] And Justice Kafker?
Justice Kafker: Two things.
One, this case is not like the harder ones we're dealing
with in the other case, right, because we don't have
to find a constitutional violation,
we just have to find that there's an erroneous violation
of probation, right?
This doesn't raise the stakes that we're dealing with
in the bigger case, where we're dealing
with people who were properly violated at the time.
You're questioning the propriety
of the violation itself, right?
David R.: Yes, and I do think that's something
that should weigh substantially in the balance,
when you consider the strength of the prong one showing.
When I argued, for example, the Alvarez case to this court,
Justice Cypher, the Chief Justice,
asked me questions about particularly strong showings
on prong one could affect the analysis of prong two,
because if you have such a strong argument
on prong one, someone should be out
if they're gonna win their appeal, for example.
And I do think that's exactly right.
So,
and my answer to you, Justice Kafker,
by saying, yes, I agree with you.
Justice Kafker: The second thing is,
he's living with a healthcare worker,
I take it she's on the front lines
of the coronavirus crisis.
So isn't he endangering, isn't he in more danger there?
I'm confused by why that's a safe places for him.
David R.: Well, I don't think he'll be
in more danger there because, one,
I don't necessarily know if she is
on the front lines of the crisis.
I don't know if she works, I don't know exactly
what her job is, she told me she works in healthcare,
and so she's been working a lot of double shifts.
I don't know if she works on the administrative side,
or if she's actually a direct provider.
And even if she's a provider, if she's someone
who's actually would be seeing COVID patients.
But I think also, I mean, I think the bigger danger,
and the thing that I really wanted to verify with her,
is that she wouldn't be concerned
about the danger he would pose to her.
Which is why I really, when I talked to her,
the thrust of my conversation was, "Are you sure
"that he can stay with you, because you know he's
"in a facility that has 10 and probably more,"
when, I think when I talked to her,
I think it was 10 or 13 at that point,
"people who have this virus, are you sure you'll be safe?"
And she said, "He's a good friend of mine.
"We have an open room, I'll quarantine myself from him."
So I was more concerned
about making sure there was protection
in the opposite direction, and she was able
to assure me that she felt comfortable with that.
(background noise drowns out speaker)
Justice Kafker: Okay, that's all I have, thank you.
-: [Chief Justice Gants] And I have no further questions.
Thank you, Mr. Rajkovic, for O'Sullivan--
David R.: Thank you.
Sarah: Your Honor, if I may.
Mr. O'Sullivan and discussed, and we were thinking
that perhaps Probation could go first?
-: [Chief Justice Gants] Okay, we'll let Probation go first.
Sarah: Thank you, Your Honor.
Mr. Chief Justice and members of the court, Sarah Joss,
on behalf of Massachusetts Probation Service.
Probation has not taken a position
on whether or not Mr. Christie should be released,
but has raised a number of concerns
that I think echo the concerns
that were raised in the systemic litigation
from this morning, mainly issues around release planning,
and concerns around access to treatment and GPS.
We've obviously now had some more detail from Mr. Christie,
in terms of what his release plan would look like.
In ordinary circumstances, that would be the kind of thing
that Probation would do checks on,
to ensure the no access to children,
that even if there are no children living
in the house itself, is it part
of a bigger apartment building,
are there children in the building,
are there schools nearby, those kinds of things.
But because of the moment we find ourselves in,
Probation does not have the ability
to do that kind of check.
So I think that highlights a number of the concerns
that were raised in the argument this morning,
about the need to have very clear detail
in front of a court when it is weighing these public health
and public safety considerations.
To Justice Kafker's most recent set of questions,
it's really tough to weigh out
what those public health concerns are
if there is not sufficient detail
about someone who's potentially being released,
about the plans that they have for where they're going
to live, how they're going to self quarantine,
and who they're gonna be in contact with.
Who are those people in contact with?
Those are very tricky and detailed questions,
that it's not easy to answer in a categorical way.
So obviously, the fact that Mr. Christie
has now provided some more information is helpful,
but without further detail, it still raises concerns
about the ability to verify this and to ensure
that it is not creating additional risk factors.
Secondly, I know Mr. Christie,
part of his initial motion talked about the need
to access additional treatment on the outside,
including for surgery and things like that.
Obviously, in the moment that we're in,
the availability of that kind of treatment is ever changing.
So I think that that is probably not something
that factors in, in terms of the ability
of him to access treatment for his underlying conditions,
because I don't think anybody can guarantee at this point
that that, even if he had surgery scheduled
when he initially filed the motion,
I don't think there's any guarantee
that anybody could look forward, to say at this point
that that's gonna happen anytime in the next few weeks.
Certainly not, obviously, as Kafker said,
before the end of a self quarantine period.
And the third thing that Probation raised below,
and that Judge Tosca considered,
and that remains a concern here,
is that Mr. Christie, as part of his probation condition,
has a GPS condition.
Probation had asked below, in the Superior Court,
that if the court were inclined to release Mr. Christie,
that it stay in a GPS installation
for the period of self quarantine,
whereas Mr. Christie develops a--
Announcer: Now exiting.
Justice Kafker: Scott Kafker.
(phone beeps)
Justice Gaziano: Frank Gaziano.
(phone beeps)
-: [Chief Justice Gants] Hang on, have we lost--
Justice Budd: Yep.
-: [Chief Justice Gants] Have we lost Justice Kafker
or Justice Gaziano?
Justice Cypher: I believe so.
-: [Chief Justice Gants] Let me get them back.
Is someone texting them?
Justice Lowy: I might--
Justice Budd: I'll do that.
Justice Lowy: I'll call Justice Kafker on his cell.
(overlapping chattering)
Announcer: Now joining.
(phone beeps)
Now exiting.
(phone beeps)
Now joining.
Justice Gaziano: Frank Gaziano.
I apologize, I apologize, I was bounced out of the call.
Justice Lowy: Justice Kafker says he's trying
to call in right now.
Justice Gaziano: Was Kafker bounced?
Justice Lowy: Yes.
-: - [Chief Justice Gants] No Justice Kafker yet?
Announcer: Now joining.
Justice Kafker: Scott Kafker.
(phone beeps)
-: [Chief Justice Gants] Do we have Justice Kafker
and Justice Gaziano?
Justice Kafker: Hey, (mumbles).
Justice Gaziano: Yeah, I'm here, as well, Chief.
-: [Chief Justice Gants] Okay, I don't know what happened.
Fortunately, it didn't happen earlier, so.
You were speaking, Ms. Joss, about GPS.
Sarah: Yes, Your Honor, thank you.
So Probation raised below, in the Superior Court,
and would raise the same concern here,
that where Mr. Christie is coming out of a facility
and is planning to, if he is released, self quarantine,
Probation would ask that any GPS condition,
that Mr. Christie were coming out to, be stayed
for the period of self quarantine.
And obviously, if Mr. Christie were
to show symptoms during any period of recovery,
obviously that cuts down on the disease factor,
that both Mr. Christie could be
to the probation officer, and to the extent
that the probation officer was exposed to anything,
for the probation officer to expose Mr. Christie.
As I'm sure the court is aware,
the installation of GPS requires close physical contact
between the person doing the installing
and the person who the bracelet is being installed on.
On a good day, the process takes about half an hour,
and that's, if everything is going well
and according to plan.
Obviously, no guarantee that that would be the case.
And in addition to the actual physical installation
of the bracelet, the probation officer has
to have a lengthy conversation with the person who is going
on with the bracelet, to get all of the information
about how to contact them, where they're staying,
and all of those things.
So that's, (dog barking)
I apologize for the dog in the back.
So obviously, that raises significant concerns,
if there's any period of self quarantine or symptoms.
So where Probation would ask for,
if Mr. Christie were released, a stay of that condition.
Judge Tosca factored that in as part
of the public safety considerations,
that particularly given the history, GPS is something
that the court relied on in increased monitoring
of Mr. Christie, and the unavailability
of that (mumbles) because Judge Tosca said
that he would not have required Probation to put it on,
were he inclined to release,
would have stayed the condition, obviously,
that raises some additional public safety concerns.
I think the overall issues that Probation wants
to raise here are the either incredibly fast,
intensive cases, both from a public health
and a public safety perspective,
and that every single case requires a balancing,
that needs sufficient actual fleshing out
of release plans and quarantine and all of that.
And so when we go back to the issue
for Mr. Christie himself,
I think those are the main concerns that Probation has.
And I would factor into that, also,
that when someone is released on conditions at this point,
generally speaking, the ability to monitor and enforce any
of those conditions is going to be incredibly limited.
There is no in-person contact between probation officers
and probationers right now, so to the extent
that the court is considering release,
I would request that it keep in mind the limited ability
that Probation has to actually monitor
and enforce conditions.
-: [Chief Justice Gants] Gaziano?
Justice Gaziano: No further questions,
and no questions for others, Chief.
-: [Chief Justice Gants] Justice Lowy?
Justice Lowy: No questions, please.
-: [Chief Justice Gants] All right, Justice Budd?
Justice Budd: Just, I'm wondering
whether there are other conditions
that Mr. Christie was on before that you're concerned
that he's not going to be able to comply with.
I understand the GPS issue.
Sarah: Certainly, Your Honor.
And I certainly, all credit to Mr. Christie's team
about reaching out
to the Counseling and Psychotherapy Center,
which provides the majority of sex offender treatment
in the Commonwealth, and I believe it's
in the appendix attached to Mr. Christie's petition
in the single justice session, that talks about,
CPC talking about the availability of treatment online.
I think we are in a continue, and while
that may have been accurate at the time,
I think we are in a continually fluctuating environment,
in terms of treatment.
So the CPC does not have an unlimited number of providers,
and if any of them were to get sick,
I think we continue to face a challenge
with the availability of treatment.
Treatment will continue to diminish in the community,
and so I think that that's something that,
while it may be available now,
I don't think there's necessarily any guarantee
that that will continue to be the case.
And obviously, given the history here,
I know Mr. Christie has a different view
on this than Probation, about the probation violations
and whether or not they were willful.
But I would simply note that both a,
on the reconsideration motion,
we were right in front of the sentencing judge,
Judge Rieger, and also in front of a single justice petition
with Justice Gaziano, the request
to reconsider that was denied.
And Mr. Christie put forward in both
of those circumstances all of the evidence
about why he contended that his violations were not willful.
So I think coupling the failure
to comply with treatment condition previously,
with the tenuousness of continuing
with treatment in the community,
I think this raises some concerns, as well.
Justice Budd: Okay, but just to be clear,
I mean, we're here because of the COVID-19 virus.
I mean, that's the change, that's what has changed
between that submission and now.
And I guess my question to you is,
you sort of laid out the
difficulties that you will have, in terms of monitoring him,
but that's the case for anybody
on probation at this point, right?
Sarah: I think that's true.
There are some, I think it's going to continue to be true,
and it's going to continue to be ever adjusting.
So just to Your Honor's question about,
are there other conditions that we're concerned
about be able to monitor and enforce,
I think that's true for everybody.
I think given the history with Mr. Christie
and sex offender treatment,
that raised a particular concern here.
Justice Budd: Okay, thank you.
-: [Chief Justice Gants] Justice Cypher?
Justice Cypher: Nothing, thank you.
-: [Chief Justice Gants] Justice Kafker?
Justice Kafker: No, nothing further.
-: [Chief Justice Gants] I've got a few questions.
Was he on GPS before?
Sarah: He was, Your Honor.
-: [Chief Justice Gants] He was, and--
Sarah: Yes, and--
-: [Chief Justice Gants] And was there an exclusion zone?
Sarah: There were not exclusion zones.
-: [Chief Justice Gants] So as I understand it,
we're not even permitting GPS without exclusion zones, so--
Justice Gaziano: Does he have named victims?
Sarah: He does, Your Honor.
The only thing I would say here to Justice Gants is,
the OE 144 about
the
new orders for GPS, I'm not sure
that this would be a new order,
since it's part of his previously ordered conditions
of probation, and he, when the Superior Court sentenced him
under the OP, the court sentenced him,
revoked on one count, committed him for one to two,
and reprobated on the other.
So technically, he would be coming out
to a preexisting order.
-: [Chief Justice Gants] Okay, but it would still have
to be affixed by a probation officer.
Sarah: Yes, yes.
-: [Chief Justice Gants] All right, so--
Sarah: But just in terms of exclusion zones--
-: [Chief Justice Gants] Is there any particular,
I gathered there was no request
for an exclusion zone for the victim before.
Do we even, is there any particular concern
of re victimization of that victim?
Sarah: Not that I'm aware of, Your Honor.
I know there were also additional allegations
of unsupervised contact with minors
that were denied in the Superior Court,
because there wasn't a timeframe that was attached to them.
But I don't know that there are any concerns
about this particular, the victim in the underlying case.
-: [Chief Justice Gants] So if he were to be released,
there would need to be, arguably,
a house arrest would have to be,
with detention, he'd be under house arrest.
Basically he would be, I guess he'd be quarantined anyway
for at least 14 days, so he should be under some type
of provision to enforce the quarantine, correct?
Sarah: I would,
certainly, I think that would make sense,
Your Honor, and I know that that's been
on some bail reviews, what we've been hearing coming out
of some courts, is where GPS would not need,
the conditions set out in OE 144,
courts have been ordering home confinement without GPS.
So I think it would be something
that would be in line with what courts are already doing.
-: [Chief Justice Gants] Okay, I have no further questions.
Anybody else have any questions?
Justice Gaziano: No, thank you, Chief.
-: [Chief Justice Gants] Mr. Lowy>
Justice Lowy: No, thank you.
-: [Chief Justice Gants] Justice Budd?
Justice Budd: No, thank you.
-: [Chief Justice Gants] Justice Cypher?
Justice Cypher: No, thank you.
-: [Chief Justice Gants] Justice Kafker?
Justice Kafker: Nope, no.
-: [Chief Justice Gants] Okay, now, Mr. O'Sullivan,
on behalf of the Commonwealth.
David O.: Good afternoon, Your Honor,
and David O'Sullivan for the Commonwealth.
May it please the court, I will be briefed,
the lower court did not abuse its discretion
in denying release, largely because the court,
at that point, lacked sufficient information
to make key determinations as
to whether release was consistent with first,
public safety, second, public health,
and third, the defendant's own health and safety.
I'll note, at the beginning, that this is the first,
obviously, we're hearing,
of the defendant's actual release plans,
insofar as we've just now learned with whom he will stay.
We don't have the name or the address,
and obviously, these are things that Probation would need
to verify, in order to assure that conditions
of probation, especially including the condition
of no contact with children, could be
meaningfully enforced, or we would have some sense
that that condition was being met in a verifiable way.
And that, obviously, the case arises
in a context, and the context is,
obviously serious crimes against a 12-year-old boy,
which I take my brother's point,
that he has no prior criminal record
or post record.
These were indicted together and resulted
in one group of convictions, but they occurred over a period
of months, during a summer in 2005.
So it does not appropriately characterize
as a one-time lapse in judgment, insofar as
that was the implication, but rather,
was a pattern of gravely serious criminal conduct
against a child.
And in that context, a condition of no contact
with children was essential to the mission
of probation, to ensure against recidivism.
And in the context, in the current context,
and I don't suggest this is
necessarily the petitioner's fault,
there would be no meaningful way to enforce that condition.
We would really be just accepting his word,
that those were the conditions of his home,
of the home where he would be released to.
There would be no GPS,
there would be no confirmatory home visit.
So that is one point, with respect to public safety.
The other would be that this immediate release
would override the normal process
that is intended to release of potential STPs,
and the court is aware the defendant's convictions
and the fact that he's incarcerated
at the present time qualifies him
for potential evaluation as a sexually dangerous person.
And this office is entitled, six months prior
to his release, to notification
by the custodial authority about his impending release.
We have not even received that notice yet
from the MTC about his upcoming release,
which I concur with my brother,
that we believe it would be in mid September,
I believe, the actual date is September 15th.
That would be with maximum good time credit,
that would be his potential release date.
So it would override entirely that process,
and essentially prevent us from engaging
in that the review that's supposed
to occur under the statute.
And it's not merely a notice, the notice is supposed
to be accompanied by information
from the custodial authority about those who,
the custodial authority believes have a
particularly high likelihood of being the criteria
for a sexually dangerous person.
Obviously, as set forth in the presentations of the DOC
and the sheriff, it's very clear
that they have information from daily contact
with the defendant that we lack.
And our offices rely on information like that
in making SDP determinations.
Now, with respect to the nature of the probation violations,
I recognize that they are technical,
in the sense that they don't allege new criminal offenses.
But I would
refer back to what Judge Rieger found, which was,
and I quote, "A dismal pattern of non compliance
"with probationary conditions."
So that is another piece of necessary context here.
What we have is not only the failure
to attend the probation meetings,
failure to attend the restrap,
but there's essentially the pattern
of non attendance to the sex offender treatment visits.
And I appreciate that my brother has explanations
that he has proffered, but those were proffered
in front of the judge who violated
and ultimately sentenced him to one to two years, and those,
to me, sound a lot like credibility determinations
of a judge who is making them
with the information that is before her.
So it's not clear that
the argument about willfulness will ultimately prevail.
But even if we were to grant that,
in the context of a stay, he could make that first prong,
now Justice Ditkoff and, in another
sort of dimension, Justice Tosca had ruled
that his release would not be consistent with public safety.
Of course, Justice Ditkoff was focused
on the possibility of recidivism.
And Justice Tosca, I think,
appropriately considered something
that is really not the defendant's fault,
but is, nonetheless, a valid consideration as
to public safety when he's released.
And this gets to that second piece,
which is public health.
Obviously,
as put by one of my brothers,
the Assistant Attorney General, we must be pretty sure
that release would do more good than harm.
Here, we have someone who'd be leaving an institution
which has the clearest outbreak, unfortunately,
of all of them, and what is clear
from all the public health experts that have weighed in,
and I would direct the court's attention particularly
to the affidavit of Daniel Tsai,
who is Secretary,
Deputy Secretary of Health and Human Services,
that what would be appropriate upon his release
from this institution, at the very least,
is a screening, if not an outright test.
And I appreciate the practical considerations raised
in the Middlesex presentation regarding the lag time
between any test and the results of it.
But at the very minimum, a screening,
and then if he is found to be symptomatic,
he should be held until he's confirmed.
And then even further,
that person has been, will need to make adequate provision
for quarantine, and again, we're hearing
for the first time what the plans are.
And we appreciate that counsel has found someone,
or the defendant has someone that would house him,
and that's found appropriate.
But there are sort of two competing considerations here,
and that is, as Justice Kafker put it,
healthcare workers are on the front lines
of this epidemic, and we know that they are,
unfortunately, testing positive in the highest numbers
of all professions.
And so whether Mr. Christie would be more safe
in that environment is unclear,
without some verification of what my brother is saying
through, as far as he has been able to confirm things.
So,
and then finally, the defendant's own health and safety.
It's certainly true that
the advocates and my brother have done yeoman's work
in attempting to arrange for the availability
of support, both medical and psychological,
on the outside, were Mr. Christie to be released.
And we can all agree on one thing,
is that Mr. Christie is medically involved
and he is psychologically involved,
and he needs significant support.
And they have done yeoman's work
in attempting to arrange for those supports.
But in the current environment,
through the fault of no one, these can remain mere hopes
and beliefs and expectations at this point.
And the fact is that this situation changes by the hour,
and there could be no guarantees
about the actual availability of the necessities,
necessary support on the outside.
And I would note that with respect to the back surgery
that I hope Mr. Christie gets sooner than later,
the appointment was made and kept by the DOC on March 11th.
So at least we know, while he's in the DOC,
he is getting to his appointments,
he is making his appointments.
By all accounts, it appears
that that surgery is now postponed.
But
at least we know he has some level of care
in that facility.
And obviously, as set forth by the Parole Board
and I think the DOC in the last six months,
there is a
release procedure, whereby we secure people health insurance
and we put those supports together.
And I'm not convinced that the judge was wrong
in determining that it's not clear
that this would benefit him more than potentially hurt him
at this stage, given all we know.
So with that, I will open it up to questions.
-: [Chief Justice Gants] Justice Gaziano?
Justice Gaziano: Yes, it seems just
a bit odd to say that
if all things being equal, and someone were eligible
to be released, we would not release him
if he was in the treatment center
because that's the center.
So we're gonna have to basically make that an island.
I mean, I assume that you didn't mean it
to come off that way.
David O.: No, well, I--
Justice Gaziano: That once you're
in the treatment center, that you're gonna stay there
because that's where the infected people are.
And the other part, the other side of that coin was
that we're to presume that the state knows more
about this person's health
and what's best for him than the person does.
David O.: Yeah, I don't
necessarily presume that, I just know what we know
with regard to the care he's receiving right now,
and I don't mean to suggest that anyone who's
in the MTC must necessarily stay there.
But I mean to suggest that someone as medically involved
as him needs a very solid release plan
and very solid supports,
particularly for someone who's wheelchair bound.
And also significant supports for public safety
that would ensure against his,
the potential for recidivism.
And of course, his last
SORB classification was level three.
I don't know if that would change upon his release,
but at least that was the last assessment
of his likelihood of recidivism.
Justice Gaziano: Okay, and no further questions, Chief.
-: [Chief Justice Gants] All right, Justice Lowy?
Justice Lowy: Mr. O'Sullivan,
you mentioned the standard review
of abuse of discretion, so your view is,
as it relates to the security danger prong,
that as it relates to Judge Tosca,
it would be an abuse of discretion.
And then as to Judge Ditkoff, of course,
they analyze different parts of danger and security.
David O.: Yeah, I think that's correct, Your Honor.
I think we would look at Judge Tosca's effective denial
of a stay motion.
Of course, the petitioners sought two kinds
of release below, and on the one hand,
he sought to have his sentence,
the incarcerative portion of his sentence deemed served,
and for him to be immediately released,
and of course, Judge Tosca questioned
whether he had legal authority to do that.
Of course, this being well outside rule 29 territory,
and given the absence of any statute or other rule
or case law that would permit any such thing to happen,
he also considered it effectively as a stay,
but referred back to Judge Ditkoff's denial of the stay,
and essentially, at least implicitly,
adopted the reasoning of that.
So I think the best way to read his decision is
he viewed himself as having legal authority
to act on a stay motion, but he just declined
to issue a stay, and essentially,
at least implicitly adopted the reasoning
of Justice Ditkoff, which, again, concerned public safety.
Justice Lowy: Is it something
that we should be considering,
that he would be moving in with somebody
in healthcare area, and that if he is, in fact,
has COVID-19, that she would be working double shifts
and bringing that to the healthcare facility with her?
If that's not necessarily the case,
we don't know anything about her work,
other than she's a healthcare worker doing double shifts.
But is that something we should really, at least, know?
David O.: I think it is definitely in the mix,
Your Honor, again, what my brother has represented,
but we're hearing this for the first time is
that she would provide for adequate quarantine sort
of situation there.
If that is true, and in any sort of normal living situation,
that is very difficult when you're not living alone,
when you're sharing a home with somebody.
I don't think that is the sort
of medically adequate quarantine that is contemplated
by the health experts that had weighed in here.
And I don't, if it's locking him in his room,
he's still gonna be using the same facilities,
whether it be the kitchen and or the bathroom.
I didn't hear that there's a separate apartment
in which he could stay that would, for 14 days,
really seal him off from everybody,
which seems like the best public health course
to take at this point.
But whether he may bring that in and infect her,
and in that context, whether he may bring
in COVID-19, infect her,
and thereby endanger her patients is a valid consideration.
And I think this is all in the mix.
And the need, and it highlights the need
for really detailed release plans
for someone in this particular circumstance.
Justice Lowy: That's all I have, Chief, thank you.
-: [Chief Justice Gants] All right, Justice Budd?
Justice Budd: Yeah.
So just with regard to the abuse of discretion standard
of review, if that's what we're to use,
where, if at all, does the change in circumstances just,
how quickly things have changed since the time
that those decisions were made,
how does that impact the analysis, if at all?
David O.: Well, I think that
to talk about additional positive tests,
is that what Your Honor was referring to?
Justice Budd: Yeah, I think the first time he,
I can't remember exactly the,
whether there were any, I don't know
that there were any cases when he first moved,
and then it just steadily began to rise,
and it just seems like it will continue to,
because that's what goes on.
So yeah, that's what I'm talking about.
David O.: Yeah, well, I would just note
at the outset that obviously any new test is concerning,
and here,
in the particular case on March 24th,
when he filed his emergency petition
to renew the two 11 three in front of Your Honor,
there were four positive cases.
And two days later,
when you reserved and reported the decision,
Justice Budd, there were 11 positive cases.
So that's an increase of seven over two days.
The current, and I got an email this morning
and it's now been confirmed in the hearing
by the DOC,
is that
between
that day, which is March 26th and today,
March 31st, five or six more days,
five more days, there's 17 positive inmates,
so that's six more over five days.
So that is, of course, we don't like any new tests.
But that represents a rate of increase
that is lessening, and so that is potentially a hopeful sign
in that respect, but of course, any new test is concerning.
It was also somewhat encouraging to hear
that those who have the new test, that have tested positive,
that is six more since March 26th,
were people who were already quarantined,
and presumably, they were in the cohort of people who were
in contact with the first positive tests.
So those people were already set aside.
So this is some indication that the extraordinary measures
that the DOC is taking
are hopefully helping to curb
what could conceivably be a terrible situation in there.
So that is something to note, at the outset.
But obviously, the situation on the ground,
at the particular institution where they are,
is something that the judge should be able to consider
in exercising discretion, and that could change
from minute to minute.
But
is it possible for him to renew this motion
before Judge Tosca or another judge in the Superior Court?
Yes, with more information, they may make another case.
And frankly, allow the judge to evaluate any release plans,
and whether it comports with the, I would suggest,
are not insignificant public safety concerns here
and public health concerns, and concerns
for the defendant's own health and safety.
Justice Budd: Has there been any discussion
between the parties
about whether this was potentially possible, or
was it the DOC's position that, no,
that's not gonna happen here?
David O.: I'm sorry, Your Honor, that what, his release?
Justice Budd: Yeah, I mean, did you ever have,
did you guys ever have any conversation about
whether this was a possibility, or was your position always
that this would not be a good idea?
David O.: Well, we didn't have the information
that we have just received, which is,
that was key information that we lacked
that was clear in all the pleadings from our office
and all the pleadings from the probation service
from the outset, which is
that we don't have perhaps the key piece
of information you need to evaluate the safety
of a release plan, which is, where are you gonna stay?
So
in answer to your question, whether we've had conversations
with counsel or the DOC, we've communicated somewhat
through our pleadings about our concerns
about the release plan--
Justice Budd: Right, I know, I understand, I guess
my point is, now you have more information.
And is it now a possibility that if some
of these details were nailed down
and Probation was comfortable with the living situation,
is it something that the parties could come together
in some sort of agreement about?
David O.: That is possible, if, again,
but conditions of probation with no meaningful means
of enforcement amount to no conditions.
And that would essentially flout the order
that the sentencing judge gave.
So with that in mind, of course,
if we are presented with, we don't want to put Mr. Christie
at unnecessary risk, if there's a parole plan,
and, rather, a release plan that makes sense,
it's certainly possible.
And we have, in other cases, agreed to release.
So yes, in answer to your question, in short, yes.
Justice Budd: Okay, yeah, the only,
and I ask, because, again, we genuinely want
to have a sense of whether there's some bend here.
But also, you keep saying that
he'll have no conditions, well, but that's the case
for every probationer out there right now.
I mean, the problem is we've got, we're only here,
we're only talking here,
we're only having this hearing telephonically
because of the pandemic.
And so I'm just thinking, there are,
these are extraordinary times,
and we're just all here trying
to figure out how to handle them.
And so
I understand that it's important to
be able to monitor people,
and in the regular course, that's absolutely
what I know is done and done very well.
But I'm just trying to figure out what we do
in this particular, given these set of circumstances.
And so that's why I asked about that.
I've got one more question.
Is there anything that
the treatment center has considered doing
for Mr. Christie, given his particular
needs and
vulnerabilities?
David O.: I am not aware of particular things,
beyond, obviously, making medical appointments for him,
ensuring he gets medications, and providing him access
to any needed medical care--
Justice Budd: I mean, sort of keeping him away from,
keeping him isolated from
possible exposure and that type of thing.
You're not aware of that?
David O.: Well, I'm not aware,
and I'm not aware of whether he's availed himself
of any sort of internal complaint process
whereby he might seek something like that.
I don't know that there, for example,
in his six man room, whether there aren't people
who would share medical conditions
that might make them more vulnerable, too.
For example, where,
I just don't know how many people there would be
in a similar boat, with respect to a medical condition,
that they could, say, it makes them more vulnerable.
I think what, the goal of the SAC, or the DOC,
as made clear in today's hearing,
was to secure the safety of all their inmates.
And obviously, there are a lot of people there
who are medically involved.
Justice Budd: Okay.
All right.
Thank you.
-: [Chief Justice Gants] Justice Cypher?
Justice Cypher: Yes, just one point of clarification.
On the
friend who's going to, who said
that she would take Mr. Christie in for quarantine,
and he would be quarantined, is that a 14 day quarantine,
contemplated, to somebody who's exposed,
or is that a longterm quarantine situation,
such as we're all under?
David O.: I believe it is a medical quarantine
that is more sort of strict than what we are all doing,
and sort of society, I believe.
And I'd refer to the Daniel Tsai affidavit.
He may either set that forth himself,
or refer to CDC or DPH authority that may lay that out.
But I think more than what we're going through,
is he really needs to be isolated,
to the extent possible, so that
there's some assurance that he is not a carrier.
Justice Cypher: Okay, so in other words,
it'd be a more intense, but shorter medical quarantine,
and then he'd be in the same position everyone else is in?
David O.: I believe so, Your Honor.
Justice Cypher: So in that case,
my question is, is she still available as a place
to stay after that more strict medical quarantine?
David O.: That is unclear to the Commonwealth,
and I don't remember
whether my brother said whether
that would be a longterm placement, or what.
I know in his filings with the court,
his plan was to get his back surgery,
I believe convalesce at the home of a friend.
And again, we're hearing for the first time that,
who that is, and then after that, to secure a
place in, I believe in a boarding house,
but I'm not entirely sure about that.
Justice Cypher: Okay, thank you, no more questions.
-: [Chief Justice Gants] Okay, thank you, Justice Kafker?
Justice Kafker: I have none.
-: [Chief Justice Gants] Okay, I've got a few.
Mr. O'Sullivan, you said that Judge Tosca agreed
with Justice Ditkoff, if you have the opinion
in front of you, I'm turning to page eight.
As I read it, he basically says,
"The court," on the top, "the court declined
"to treat the motion as a motion for reconsideration."
He goes, essentially, Judge Gruger would have to do that,
and she declined to do that, so the motion
to reconsideration, he says, "is not for me to decide."
Then all it says as to Justice Ditkoff is,
"As to Christie's alternative request
"that this court stay the execution of the sentence,
"the Appeals Court single Justice Ditkoff (mumbles)
"already denied this request February 26th."
Is there anything, as best I can read, he basically thought
that Justice Ditkoff's denial foreclosed him
from considering whether or not there should be a stay
on the execution of a sentence pending appeal.
Is that correct, am I right?
David O.: I wish that were clearer.
That is a possible reading of that sentence, but I--
-: [Chief Justice Gants] But what's the alternative reading?
How-- -: Well--
-: [Chief Justice Gants] Where do we find your reading,
where he basically says, "I agree with Judge Ditkoff,
"I actually reached the merits of this
"and I come to the same finding"?
David O.: Right, well,
he goes onto consider the only changed circumstance,
which is COVID-19.
In the next sentence, he says,
"The issue, then, is whether this court may unilaterally,"
oh, actually, I'm sorry, if you skip down a few paragraphs,
or, rather, the last paragraph,
he goes onto consider the only changed circumstance
that's at issue, which are
the additional
positive tests there.
And he says there's an issue as
to whether his immediate release would pose a danger
to the public, simply in terms of spreading COVID-19.
He would likely have to be quarantined
for a certain period of time, prior to or after release,
and then possibly tested for COVID-19.
So I would submit that it's not entirely clear,
and I agree with Your Honor, but a fair reading is
that since he did consider the
only other changed circumstance,
that he said, "I would deny the stay,
"given that additional potential danger to the public."
-: [Chief Justice Gants] He never said that, though.
David O.: He never explicitly says that--
-: [Chief Justice Gants] Well, I mean,
he says, "There is an issue as to whether,"
and he recognizes that once released,
it's unclear as to whether he would engage
in practices, it's unclear, and he said,
"This presents further dangers to the public."
So yes, of course, there is a danger
if he would be released.
But I don't understand how you say
that he made his own independent determination as
of the date of the decision, which is March 26th,
as to whether or not to deny the stay.
I guess you're resting just on that last paragraph,
the finally part of page nine?
David O.: Yeah, and insofar as it needs remand
for clarification, that would be fine.
But
my reading of it, and I agree, it's not entirely clear,
is that he would deny the stay, as well,
on the ground of COVID-19.
-: [Chief Justice Gants] And it's your view
that it's appropriate to deny release
to an individual who is at risk of getting COVID-19
because of the fact that they may pose a risk
to the public, that this would be
essentially treated as a civil commitment?
David O.: Well, no, I mean, what we know, unfortunately,
about the disease and about those who have been exposed
to persons within and contract it is
that they are asymptomatic for some period of time before,
and they can transfer it during periods of no symptoms.
So yeah, I mean, is that a legitimate public health concern,
even absent a positive test that would justify quarantine?
Well, that is the judgment of the public health experts
that have weighed in here--
-: [Chief Justice Gants] But your argument,
and let me understand, your argument says
that those most at risk of getting COVID-19
in prison are the ones who should not be released
because they may potentially pose a risk
to the public, that a reason to hold somebody in prison is
because they have a substantial risk
of getting COVID-19, is that your position?
David O.: Well, but Judge Tosca, her--
-: [Chief Justice Gants] I'm asking about,
I'm asking about your position, is that,
I mean, that's the argument that's analogous
to what Justice Gaziano had.
Is it your position that,
does your office say that it is a reason
to not release somebody because they may pose a risk
to the public if they are released from jail or prison,
and therefore, they must therefore stay in jail or prison?
David O.: Well, if we take a benchmark
of reasonableness, the special master's proposed order,
I believe if someone does test positive,
they must be held in quarantine
for at least that period of time.
So with respect to, yeah,
people who potentially present a risk
to those on the outside, yeah,
obviously there is a difficulty in saying,
precisely the people who are
at risk are the people who we should keep in
because they're at risk.
But to the extent they've been exposed
and we have good information that they were exposed,
and Mr. Christie seems to think he was directly exposed,
although I don't, thank God,
understand him to be reporting symptoms,
it's definitely a relevant public health consideration
that he may be positive for it.
And relevant in that regard is the fact that at least
at the prison, he would have immediate provision
for quarantine and treatment.
And I appreciate that our whole medical system,
including that at the DOC and that outside is over burdened,
but I would submit that Judge Tosca wasn't wrong.
And it is a relevant consideration,
and the position of our office
that he could potentially infect other people
on the outside.
But I definitely appreciate Your Honor's question,
and the point that animates it.
-: [Chief Justice Gants] Okay, and I guess finally,
if we were to read Justice Tosca's decision as saying
that I can't consider the motion to stay
because Justice Ditkoff had denied it on February 26th,
that would be error, would it not?
David O.: Yeah, that would be error, yeah.
And any reading of it that he believes himself incapable
of considering a motion to stay,
based on a changed circumstance,
yeah, that could be error, although I would suggest
that there isn't exact guidance
on this particular issue out there.
But I would submit that that would be error,
that the judge would have engaged,
and if he hadn't considered that.
But again, I think he (mumbles) he had.
-: [Chief Justice Gants] February 26th, I think,
just from our world, it was before our March sitting,
which we had as a routine sitting.
And by March 26th, we were in a world
in which we were dealing with only emergency matters.
So the world changed fundamentally between February 26th
and March 26th, don't you agree?
David O.: That is fair.
-: [Chief Justice Gants] That's all that I have.
Anybody else, Justice Gaziano, any further questions?
Justice Gaziano: No, thank you, Chief.
-: [Chief Justice Gants] Justice Lowy?
Justice Lowy: Also, Chief.
-: [Chief Justice Gants] Justice Budd?
Justice Bud: No, thank you.
-: [Chief Justice Gants] Justice Cypher?
Justice Cypher: No, thank you.
-: [Chief Justice Gants] Justice Kafker?
Justice Kafker: All set, thank you.
-: [Chief Justice Gants] All right, we thank you all.
This concludes our hearing on March 31st.
Thanks to Kurt Kenelly for all of your work.
And I will confer by email with the justices as
to our timing for estoppel, thank you.
David R.: Thank you, Chief.
Sarah: Thank you, Your Honor.
David O.: Thank you.