WEBVTT
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This is SJAC 12927,
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Glenn Christie v. Commonwealth.
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(background noise drowns out speaker)
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[Chief Justice Gants] On behalf of Mr. Christie,
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you may proceed.
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Thank you very much, Your Honor,
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David Rajkovic for Glenn Christie.
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This morning and afternoon, this court has listened
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to over four hours of argument concerning difficult issues
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of systemic importance, to save as many lives as possible
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across the Commonwealth.
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In that time, over 3,000 people
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in the US have been diagnosed with this virus.
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Over 70 people have died from it.
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The extraordinary nature of this moment is reflected
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in the extraordinary nature of this argument,
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and I represent just one of the lives at stake,
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Mr. Christie, who stands out as an example
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of someone who's been placed in very serious jeopardy
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from this pandemic.
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If this court wants to provide guidance to trial judges,
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I ask that you recognize Mr. Christie
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as the archetype of inmate in need of protection,
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and authorize his immediate release.
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I submit it would send emphatically the wrong message
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to the trial courts to continue to hold this man,
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who is vulnerable to the virus,
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who is near his release date, who is held
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on technical violations of probation,
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and is now in the only facility
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that we know of with a growing and ongoing outbreak.
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To deny release to Mr. Christie
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in these extraordinary circumstances would,
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I fear, be taken as precedent and as license
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by trial judges hearing any of these release motions,
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and would send the signal
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that would thwart any systemic remedy,
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and more people will die,
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and Mr. Christie's life will continue
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to be in very grave danger.
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As ADA Padalano said,
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"Release is the just and humane thing to do."
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Now, Mr. Christie told me, in speaking to him this morning,
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I asked him if there's anything he wanted to me
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to communicate to Your Honors, and he said,
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"Just tell them that I'm genuinely afraid for my life.
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"There are only two medical providers in this facility,"
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he tells me, "and one of them has already tested positive."
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So as we stand here today, this facility is
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on the cusp of an overwhelming outbreak,
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and there's only one medical provider left standing.
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Now, Mr. Christie told me this morning,
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he thought the number of people there diagnosed were 17.
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Mr. Anderson has said the same number, 17,
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so I'm glad those numbers match.
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So I would disagree with counsel in the prior case.
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They are not safer in these facilities.
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We've gone from 10 cases to 17 just over the matter
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of a weekend.
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Now, it's proceeding exponentially,
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and we all know just how quickly this virus spreads.
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When this petition was filed, there were no cases
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in the Department of Corrections.
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Then we proceeded through the Superior Court.
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When the motion to renew was filed,
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there were four, and now there are 17,
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even though we proceeded incredibly quickly in this court.
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And the DOC attorney also represented
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that two cases were sent to local hospitals,
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which is two fewer hospital beds for the community.
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So we know this won't stop, we've seen it.
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It will continue to grow exponentially,
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and the only up or down is the number of people housed
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in this particular facility.
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And I would just urge the court
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to recognize Mr. Christie as a unique
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and exceptional candidate for release.
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He is 11 months in a one to two year sentence
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for technical violations of his probation,
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and I don't say technical to dismiss the violations,
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I say technical to be descriptive.
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I think we all know what that means,
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there's no allegation of new criminal activity.
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With good time credits, he's within six months
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of his release, he's 54 years old.
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He suffers from a number of disorders,
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hypothyroidism, kidney disease, spinal stenosis,
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and he's currently awaiting confirmation
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of whether his past thyroid cancer has returned.
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So he falls into many of the categories
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of people for whom the emergency petition
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and the systemic litigation sought release,
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many separate categories that would entitle him
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to relief under the proposed emergency legislation
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in the general court.
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But a one to two year sentence should not put his life
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in jeopardy, this is not remotely the sentence
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that was imposed.
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Now, on that score, I emphatically agree
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with Mr. Ralph's argument from the prior case.
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Now, like many of us, he's been terrified
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for the past two straight weeks,
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and he is not in a facility, and again, I disagree
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with the counsel for the DOC, he is not in a facility
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where they are practicing social distancing.
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He's in a small six man dorm room.
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When he needs medication, he lines up
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in the dormitory hallway with 50 to 60 other people.
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This is not the sort of physical distancing
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we've all come to practice in our daily life.
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He's in very serious danger right now.
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He suffers from many overlapping conditions
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that place him at high risk for complications and death,
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and the outbreak is spreading in this facility,
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and he can't avoid it, he can't control the risks.
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He can't social distance, the risk is entirely out
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of his control, and he does not deserve
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what will come to him if nothing happens.
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Justice, in this case, will not be done,
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and I would ask you to authorize his release.
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And with that, I would welcome your questions.
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[Chief Justice Gants] And I will note
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that Justice Lenk is also recused on this matter,
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so Justice Gaziano is the senior Justice.
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So Justice Gaziano, you may proceed.
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I have no questions, Chief, thank you.
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[Chief Justice Gants] Justice Lowy?
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Yes, thank you.
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In the opposition,
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we are told that one of the reasons for
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the
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violation
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was missing one third
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of the sex offender treatment meetings.
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Do you agree with that?
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I agree with that, only in the sense of,
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he was not at those meetings, but I have,
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in my motion to reconsider, I did explain a number of those.
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And a number of them just, they honesty,
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they are not anything that could remotely be described
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as willful, so the suspension letter lists 12 missed dates.
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One of those missed dates was actually canceled
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by the program itself, so that's--
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Why don't you tell me the number,
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why don't you tell me what the number is,
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best case scenario for Mr. Christie,
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of how many he missed.
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How many he missed, without any forewarning
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and with no reason, he missed two meetings.
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Okay, but--
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And he was suspended from the program
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for less than a month, and he resolved it so quickly
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that he resolved it prior to the violation hearing.
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And I do want to note that the opposition speaks
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to portray Mr. Christie as someone
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who does not behave consistent with court orders,
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and that is just not consistent
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with the reality of this case.
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He was deemed acceptable by the program every single month
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that he participated in it.
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So he did miss those two meetings,
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but even in the month where he missed those two meetings
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without explanation, the program listed him as exceptional.
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So he had no, what is required by due process,
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he had no notice that this was not only going to lead
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to a suspension from the program,
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but actually a violation of his probation.
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And if the primary purpose of probation is rehabilitation,
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he was never terminated from the program.
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So the woman who ran it never thought
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that these missed meetings were actually,
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made him not amenable to rehabilitation
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and continuing in the program.
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And then the other two bases are missing a meeting
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with his probation officer because he had,
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two days prior, been in the hospital overnight,
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and tried to explain himself in three separate calls.
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Being late for a restrap of his GPS device
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after it broke through no fault of his own
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because of a massive fire that shut down the Blue Line.
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It was the Casket fire in East Boston,
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the Casket Company fire in East Boston.
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So these are just not the sorts of violations
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that would make one think that Mr. Christie would not abide
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by any conditions that this court would set.
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So I would ask the court to take all
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of that into consideration, and I'm not trying
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to relitigate the violation hearing,
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but to the extent Mr. O'Sullivan, in his opposition,
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is trying to portray Mr. Christie as someone
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who does not comply with court orders
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and court set conditions, I do think it's germane
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to look at the dates of the violations
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and see that they're largely not willful.
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And there's only really two missed overall meetings
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from a program that he was just ordered to complete.
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And I, of course, cited the Bino case
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in my reply, where the Appeals Court basically said
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that you have to be discharged to run afoul
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of basic completion conditions.
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So I would urge Your Honor to note that
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when considering this case.
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Okay, thank you.
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[Chief Justice Gants] Justice Budd?
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Yes, Attorney Rajkovic, tell me,
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what would you do with the fact that
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the Superior Court
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and I believe the Appeals Court both found
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that your client presented a danger to the community?
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I mean,
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and that he also is unlikely
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to commit additional criminal acts.
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Just the, and I understand
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the criminal acts part and I understand he's
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in a wheelchair, but what do we do with their findings?
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Do we have to find them clearly erroneous?
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Well, Your Honor, I would ask the court,
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especially since we're here under two 11 three
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and under rather extraordinary circumstances,
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where all of those findings, of course,
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predate this entire pandemic issue.
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I would ask the court to take a look at those findings anew
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and see that the convictions, in this case,
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for conduct 15 years ago, they represent the entirety
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of Mr. Christie's criminal record.
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There's been no allegation of any similar conduct,
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either before that, this 15 year ago episode or since.
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And as you noted, at present,
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Mr. Christie, he cannot even walk,
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as confirmed by a physician's assistant
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at the Boston Medical Center in my appendix
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to my motion to renew on page 57.
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The community itself is now in lockdown,
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so circumstances have changed.
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Any opportunity to commit a crime is considerably narrowed,
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and he's gonna go into lockdown, as well, himself,
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because he'll thankfully be removed
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from this enclosed congregate environment
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in which this virus is spreading,
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but then he'll be in a quarantine.
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So he'll be quarantined, in a wheelchair,
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during a lockdown of the entire community.
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So it's hard to imagine a case
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where the scales could be more tipped more strongly
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in favor of his release, especially
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when you consider just how vulnerable he is to this virus.
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I mean, some of the numbers in the studies out of Wuhan,
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I think, are cited in my motion to renew,
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about just how significant the risk to his life is
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when someone has these comorbid conditions.
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And these are not things that were ever considered
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in those findings in the Superior Court
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that were weighed against this.
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Most especially, Justice Ditkoff's finding,
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which the opposition portrayed that as being only
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about a month ago, but sort of a lot's happened since then,
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as we all know.
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So, and then considering the actual bases
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of his violation, he missed a meeting
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with his probation officer because he was sick.
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He got suspended from a treatment
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and immediately reinstated, and he was delayed
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from fixing his GPS device because of a massive fire
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that shut down the Blue Line.
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He's already served 11 months of the one to two years,
266
00:11:32.720 --> 00:11:34.930
but this is not the sort of conduct
267
00:11:34.930 --> 00:11:38.833
that justifies putting his life in such serious jeopardy.
268
00:11:40.230 --> 00:11:42.820
So I do appreciate those findings,
269
00:11:42.820 --> 00:11:43.690
but I would ask the court,
270
00:11:43.690 --> 00:11:46.245
given the extraordinarily changed circumstances,
271
00:11:46.245 --> 00:11:48.770
to both consider the new circumstances
272
00:11:48.770 --> 00:11:50.610
and reconsider the old ones,
273
00:11:50.610 --> 00:11:53.543
given that no such balancing has been done before.
274
00:11:54.870 --> 00:11:56.463
In terms of his,
275
00:11:57.690 --> 00:11:59.100
the earliest release date,
276
00:11:59.100 --> 00:12:02.959
I think your papers said June or July,
277
00:12:02.959 --> 00:12:07.420
but it wasn't, it didn't correlate with what
278
00:12:10.010 --> 00:12:13.310
the Probation Department had, do you know what it is?
279
00:12:13.310 --> 00:12:15.940
Yeah, I think the Department of Corrections,
280
00:12:15.940 --> 00:12:17.717
in the hearing before Judge Tosca,
281
00:12:17.717 --> 00:12:21.240
represented that with good time credit,
282
00:12:21.240 --> 00:12:24.500
he would be due for release just within six months.
283
00:12:24.500 --> 00:12:26.800
So it would be, I think it was sometime in mid September.
284
00:12:26.800 --> 00:12:28.650
I don't remember the exact date.
285
00:12:28.650 --> 00:12:32.780
And his understanding was that it could be as early
286
00:12:32.780 --> 00:12:36.810
as late July, but he may have been mistaken about that.
287
00:12:36.810 --> 00:12:39.500
I don't think he knew that exactly correctly,
288
00:12:39.500 --> 00:12:41.010
I think would be the most likely thing,
289
00:12:41.010 --> 00:12:43.200
given the DOC's representations
290
00:12:43.200 --> 00:12:45.190
on our prior telephonic hearing.
291
00:12:45.190 --> 00:12:49.470
So I think it's within six months, being late September.
292
00:12:49.470 --> 00:12:51.040
Okay, and
293
00:12:54.150 --> 00:12:55.400
in order to
294
00:12:56.600 --> 00:12:58.820
release him, it would have to be cruel
295
00:12:58.820 --> 00:13:01.020
and unusual punishment, right, I mean, we would have
296
00:13:01.020 --> 00:13:03.470
to find deliberate indifference, is that correct?
297
00:13:04.900 --> 00:13:07.010
Well, I don't think you would necessarily have
298
00:13:07.010 --> 00:13:09.960
to find deliberate indifference, I mean,
299
00:13:09.960 --> 00:13:13.400
I think it could be something, for example,
300
00:13:13.400 --> 00:13:15.930
it could be done under this court's extraordinary power,
301
00:13:15.930 --> 00:13:19.640
under two 11 three, it could be considered the sort
302
00:13:19.640 --> 00:13:21.330
of circumstance that requires revision
303
00:13:21.330 --> 00:13:24.550
of the sentence under a suspended rule 29.
304
00:13:24.550 --> 00:13:27.860
And again, I agree with ADA Ralph's representations
305
00:13:27.860 --> 00:13:30.430
about how this is not the sentence
306
00:13:30.430 --> 00:13:33.000
that was intended at the time it was imposed,
307
00:13:33.000 --> 00:13:36.120
and therefore, is the basis to revise the sentence.
308
00:13:36.120 --> 00:13:38.230
And one point I would just make,
309
00:13:38.230 --> 00:13:40.390
in addition to all the points that ADA Ralph made,
310
00:13:40.390 --> 00:13:45.390
is the Taheda case, which is about a (mumbles) sentence
311
00:13:45.640 --> 00:13:48.600
that comes after the defendant's sentence.
312
00:13:48.600 --> 00:13:51.730
That was deemed something to be important enough
313
00:13:51.730 --> 00:13:54.121
to justify suspending the limitation
314
00:13:54.121 --> 00:13:56.450
on considering new circumstances
315
00:13:56.450 --> 00:13:59.610
and new facts in a motion to revise and revoke.
316
00:13:59.610 --> 00:14:03.370
And I would submit that if that is considered something
317
00:14:03.370 --> 00:14:06.550
that's important enough to consider something new
318
00:14:06.550 --> 00:14:08.890
that's developed after the time of sentencing,
319
00:14:08.890 --> 00:14:10.840
the same should be true when there's this sort
320
00:14:10.840 --> 00:14:13.130
of unprecedented global pandemic,
321
00:14:13.130 --> 00:14:14.997
when, as Justice Lowy wrote there,
322
00:14:14.997 --> 00:14:16.127
"The underlying principles
323
00:14:16.127 --> 00:14:20.150
"that govern rule 29 are fairness and justice."
324
00:14:20.150 --> 00:14:23.230
So I don't think this court necessarily needs
325
00:14:23.230 --> 00:14:26.000
to find that there's necessarily cruel
326
00:14:26.000 --> 00:14:28.850
and unusual punishment, but even if you disagree with me,
327
00:14:31.080 --> 00:14:33.740
I think some of the sheriffs
328
00:14:33.740 --> 00:14:36.930
in the Department of Corrections think
329
00:14:36.930 --> 00:14:41.040
that the petition, at least the systemic petition
330
00:14:41.040 --> 00:14:43.100
to which I was also co-counsel,
331
00:14:43.100 --> 00:14:45.890
was intended to in any way cast aspersions upon them.
332
00:14:45.890 --> 00:14:48.030
And as we clarified in our reply,
333
00:14:48.030 --> 00:14:50.110
that's not what we were intending to do.
334
00:14:50.110 --> 00:14:52.730
We're not trying to cast blame for it,
335
00:14:52.730 --> 00:14:56.290
but these are inherently dangerous environments,
336
00:14:56.290 --> 00:14:59.950
that the risk cannot be mitigated
337
00:14:59.950 --> 00:15:02.689
because of what we've seen in these congregate environments.
338
00:15:02.689 --> 00:15:04.560
We just saw, I think in the papers,
339
00:15:04.560 --> 00:15:06.600
the tragedy of what's happening in Holyoake,
340
00:15:06.600 --> 00:15:08.640
with 13 deaths in the nursing home.
341
00:15:08.640 --> 00:15:10.960
We've seen this happening in Seattle.
342
00:15:10.960 --> 00:15:14.233
So to do nothing in this situation,
343
00:15:15.783 --> 00:15:19.150
I think would not recognize the risk
344
00:15:19.150 --> 00:15:22.750
that is inherent to the correctional environment
345
00:15:22.750 --> 00:15:26.820
in these facilities, and as all the public experts said
346
00:15:26.820 --> 00:15:30.650
in the submissions in the systemic case, it would save lives
347
00:15:30.650 --> 00:15:33.970
to send out and reduce the density of these facilities.
348
00:15:33.970 --> 00:15:36.670
Not just of the incarcerated people within them,
349
00:15:36.670 --> 00:15:39.420
but also the staff and the broader communities
350
00:15:39.420 --> 00:15:41.730
because every person that gets taken out
351
00:15:41.730 --> 00:15:43.760
of one of those facilities and gets put
352
00:15:43.760 --> 00:15:46.670
into a community hospital is one less hospital
353
00:15:46.670 --> 00:15:48.857
for somebody who lives in that community.
354
00:15:50.000 --> 00:15:52.930
So both for the public health reasons
355
00:15:52.930 --> 00:15:55.313
of the people inside and the people outside,
356
00:15:56.630 --> 00:15:58.510
we need to do this on a systemic basis.
357
00:15:58.510 --> 00:16:01.240
But I think Mr. Christie also stands out
358
00:16:01.240 --> 00:16:05.210
as uniquely deserving and uniquely needing
359
00:16:06.452 --> 00:16:07.450
to be released, as well,
360
00:16:07.450 --> 00:16:09.473
given his vulnerability to this virus.
361
00:16:11.130 --> 00:16:12.858
Okay, thank you.
362
00:16:12.858 --> 00:16:13.921
Thank you.
363
00:16:13.921 --> 00:16:15.370
[Chief Justice Gants] Justice Cypher?
364
00:16:15.370 --> 00:16:17.040
Yes, thank you.
365
00:16:17.040 --> 00:16:21.050
Counsel, I read the papers, but there's been a lot
366
00:16:21.050 --> 00:16:23.400
that's happened since, can you refresh my memory
367
00:16:23.400 --> 00:16:26.563
of what the crimes are that he was sentenced for?
368
00:16:28.830 --> 00:16:30.070
Yes, Your Honor, certainly.
369
00:16:30.070 --> 00:16:34.123
So he was sentenced for multiple counts of,
370
00:16:35.630 --> 00:16:37.443
let me just, I can just pull it up.
371
00:16:38.340 --> 00:16:40.973
Multiple counts of rape of a child,
372
00:16:42.068 --> 00:16:45.480
and then there was a reversal on appeal,
373
00:16:45.480 --> 00:16:49.010
and then in, I believe it was in June of 2018,
374
00:16:49.010 --> 00:16:52.060
he then pled guilty to those charges
375
00:16:52.060 --> 00:16:57.060
and was placed on probation, so those are the charges.
376
00:16:57.506 --> 00:16:59.390
And then the violation of probation,
377
00:16:59.390 --> 00:17:01.170
did that involve any contact with any
378
00:17:01.170 --> 00:17:02.523
of the previous victims?
379
00:17:04.520 --> 00:17:06.040
No, no, certainly not, no.
380
00:17:06.040 --> 00:17:07.890
I can explain the bases of the violation
381
00:17:07.890 --> 00:17:09.218
of probation, Your Honor--
382
00:17:09.218 --> 00:17:10.450
Okay, so I just want to make sure,
383
00:17:10.450 --> 00:17:13.250
yeah, no, no, it didn't involve contact
384
00:17:13.250 --> 00:17:14.780
or anything like that, that's fine.
385
00:17:14.780 --> 00:17:17.960
No, no, I can't emphasize enough.
386
00:17:17.960 --> 00:17:20.720
It certainly did not, he missed one meeting
387
00:17:20.720 --> 00:17:23.020
with his probation officer because he was,
388
00:17:23.020 --> 00:17:23.930
yeah, because he was--
I understand.
389
00:17:23.930 --> 00:17:25.543
He missed one meeting
390
00:17:25.543 --> 00:17:26.670
with his probation officer because he was sick,
391
00:17:26.670 --> 00:17:28.750
and the other things, I've already described.
392
00:17:28.750 --> 00:17:29.990
So no, it was no allegation of--
393
00:17:29.990 --> 00:17:31.420
I understand.
394
00:17:31.420 --> 00:17:32.560
Yeah.
395
00:17:32.560 --> 00:17:35.398
Okay, no further questions, thank you.
396
00:17:35.398 --> 00:17:36.763
[Chief Justice Gants] Justice Kafker, Justice Kafker?
397
00:17:37.680 --> 00:17:39.270
So I remember, there's an issue
398
00:17:39.270 --> 00:17:43.043
with the friend he says he's going to live with, that,
399
00:17:44.520 --> 00:17:47.370
what do we know about the friend he's going to live with?
400
00:17:49.420 --> 00:17:50.609
Is it--
Yeah, I mean--
401
00:17:50.609 --> 00:17:52.150
(mumbles) at all?
402
00:17:52.150 --> 00:17:54.140
Yeah, so as the Chief Justice said,
403
00:17:54.140 --> 00:17:56.260
I mean, we've done the best we can with,
404
00:17:56.260 --> 00:17:57.340
in the prior case, we've done the best we can
405
00:17:57.340 --> 00:17:59.820
with the release plans under the circumstances.
406
00:17:59.820 --> 00:18:04.710
I did speak, actually, to his friend yesterday evening,
407
00:18:04.710 --> 00:18:07.196
and she's someone who lives in Revere.
408
00:18:07.196 --> 00:18:08.980
I can tell you her name, if you'd like.
409
00:18:08.980 --> 00:18:12.200
She lives in Revere, she has no children who live with her
410
00:18:12.200 --> 00:18:15.950
or visit her, she's indicated that she has grandchildren,
411
00:18:15.950 --> 00:18:19.650
but she's actually estranged from her daughter.
412
00:18:19.650 --> 00:18:22.200
So she doesn't see her, she was sad about it,
413
00:18:22.200 --> 00:18:24.530
she doesn't see her grandchildren anymore.
414
00:18:24.530 --> 00:18:26.140
So no children will be living with her
415
00:18:26.140 --> 00:18:28.800
or visiting her any time in the near future.
416
00:18:28.800 --> 00:18:31.180
She said that she's aware that Mr. Christie happens
417
00:18:31.180 --> 00:18:33.820
to be in the facility with the ongoing
418
00:18:33.820 --> 00:18:36.470
and growing outbreak, and that she would be willing
419
00:18:36.470 --> 00:18:39.090
to have him quarantine himself in her home.
420
00:18:40.040 --> 00:18:43.280
So that's the option there.
421
00:18:43.280 --> 00:18:46.230
Mr. Christie has also told me about a friend
422
00:18:46.230 --> 00:18:48.220
of his in Pittsfield who was referenced
423
00:18:48.220 --> 00:18:51.860
in the probation submission, and I haven't been able
424
00:18:51.860 --> 00:18:54.490
to speak to that friend of his.
425
00:18:54.490 --> 00:18:57.040
But Mr. Christie told me that that friend has also told him
426
00:18:57.040 --> 00:18:59.440
that there would be possibility of staying with him.
427
00:18:59.440 --> 00:19:02.800
But that would take him obviously further away.
428
00:19:02.800 --> 00:19:07.340
But of course, of course as we laid out
429
00:19:07.340 --> 00:19:10.550
in our relief plan, which was updated
430
00:19:10.550 --> 00:19:12.193
with the motion to renew,
431
00:19:13.920 --> 00:19:15.400
anything,
432
00:19:15.400 --> 00:19:17.700
any treatment that he would start,
433
00:19:17.700 --> 00:19:19.900
particularly the mental health providers who,
434
00:19:19.900 --> 00:19:23.240
I think it's important to note, who he was seeing above
435
00:19:23.240 --> 00:19:26.370
and beyond the terms of his probation, including,
436
00:19:26.370 --> 00:19:28.530
Justice Lowy, those two missed meetings
437
00:19:28.530 --> 00:19:30.610
with the court ordered program he was seeing
438
00:19:30.610 --> 00:19:32.390
on a very consistent basis,
439
00:19:32.390 --> 00:19:35.090
two separate mental health counselors,
440
00:19:35.090 --> 00:19:36.700
the one at the Lynn Community Health Center,
441
00:19:36.700 --> 00:19:39.700
the other at a place called Circles of Care.
442
00:19:39.700 --> 00:19:42.070
And they both indicated that they would take,
443
00:19:42.070 --> 00:19:45.670
continue to see him on a kind of similar
444
00:19:45.670 --> 00:19:50.450
to how I'm seeing you all now, on a video conference line
445
00:19:50.450 --> 00:19:54.580
or an audio meeting line, and they would welcome him
446
00:19:54.580 --> 00:19:56.700
with open arms back into treatment.
447
00:19:56.700 --> 00:20:00.410
So he would have, his release plan would be going
448
00:20:00.410 --> 00:20:02.970
to live with this friend who I can tell you,
449
00:20:02.970 --> 00:20:05.410
as an officer of the court, I've spoken with
450
00:20:05.410 --> 00:20:08.500
and is willing to have him quarantine with her,
451
00:20:08.500 --> 00:20:10.100
and has no children living with her.
452
00:20:10.100 --> 00:20:13.970
At that point, he would then restart his health insurance
453
00:20:13.970 --> 00:20:16.250
and try to start planning for the spinal surgery
454
00:20:16.250 --> 00:20:18.400
that he needs to walk again, but he won't be having
455
00:20:18.400 --> 00:20:20.450
that anytime in the next few weeks,
456
00:20:20.450 --> 00:20:22.960
because I think from this facility,
457
00:20:22.960 --> 00:20:24.980
I think the responsible thing for him to do,
458
00:20:24.980 --> 00:20:28.930
and I think he's planning to do, is quarantine himself,
459
00:20:28.930 --> 00:20:31.940
and then thereafter, and then during that two week period
460
00:20:31.940 --> 00:20:34.490
of time, he would take up the mental health treatment
461
00:20:34.490 --> 00:20:37.500
that he was doing, both as the condition of his probation,
462
00:20:37.500 --> 00:20:39.990
and beyond the terms of his probation.
463
00:20:39.990 --> 00:20:42.450
And then he would get the spinal surgery
464
00:20:42.450 --> 00:20:45.430
that he needs thereafter, once the self quarantine lifts,
465
00:20:45.430 --> 00:20:47.880
and if he's able, given everything that's,
466
00:20:47.880 --> 00:20:50.110
there's obviously some inherent uncertainty here
467
00:20:50.110 --> 00:20:51.990
that is beyond his control.
468
00:20:51.990 --> 00:20:55.630
But he would then try to go get the treatment
469
00:20:55.630 --> 00:20:58.210
that he needs in order to be able to fix some
470
00:20:58.210 --> 00:21:01.010
of the cysts on his spine and the spinal stenosis
471
00:21:01.010 --> 00:21:02.620
that is pinching his spinal cord
472
00:21:02.620 --> 00:21:04.910
and making him unable to walk.
473
00:21:04.910 --> 00:21:08.020
So that is the plan that he's got going forward,
474
00:21:08.020 --> 00:21:10.350
and then from there, it would be rehabilitation
475
00:21:10.350 --> 00:21:13.080
and trying to find an independent place to live,
476
00:21:13.080 --> 00:21:15.940
consistent with the letter from the social worker
477
00:21:15.940 --> 00:21:18.430
that we submitted with our original motion.
478
00:21:18.430 --> 00:21:20.840
And I've also been in touch with that same social worker
479
00:21:20.840 --> 00:21:24.550
who's CB is in my submissions to this court,
480
00:21:24.550 --> 00:21:25.853
and she's indicated that she is--
481
00:21:25.853 --> 00:21:26.970
(Justice Gants mumbles)
482
00:21:26.970 --> 00:21:28.320
I'm sorry.
483
00:21:28.320 --> 00:21:29.520
I just wanted to switch subjects
484
00:21:29.520 --> 00:21:31.910
'cause I think we have enough on that.
485
00:21:31.910 --> 00:21:33.840
And Justice Lowy will be more familiar
486
00:21:33.840 --> 00:21:37.100
with Taheda than I will be, but Taheda,
487
00:21:37.100 --> 00:21:39.610
we allowed a motion for a new trial, right?
488
00:21:39.610 --> 00:21:44.130
Because the coventurer got, I can't remember,
489
00:21:44.130 --> 00:21:46.630
got a very short sentence, or a shorter sentence.
490
00:21:46.630 --> 00:21:48.343
Is that what we did, we didn't do a rule 29,
491
00:21:48.343 --> 00:21:49.863
in that case, did we?
492
00:21:51.030 --> 00:21:52.830
No, that was a rule 29.
493
00:21:53.740 --> 00:21:55.400
That was a rule 29 case, okay.
494
00:21:55.400 --> 00:21:57.100
Yeah, that case was a rule 29,
495
00:21:57.100 --> 00:22:01.233
and Justice Lowy's opinion, excuse me, allowed--
496
00:22:01.233 --> 00:22:04.870
(mumbles), it was within 60 days,
497
00:22:04.870 --> 00:22:08.433
or we allowed it, even though it was after 60 days?
498
00:22:13.703 --> 00:22:15.529
That, I'm less sure about, I--
499
00:22:15.529 --> 00:22:17.870
(Justice Kafker mumbles)
500
00:22:17.870 --> 00:22:19.380
We can figure that out, we'll look it up.
501
00:22:19.380 --> 00:22:23.297
But I just was, just wanted to make sure I understood.
502
00:22:23.297 --> 00:22:25.320
I would, and Justice Kafker,
503
00:22:25.320 --> 00:22:28.270
I would assume that it was probably within 60 days
504
00:22:28.270 --> 00:22:31.960
because the case mostly just discusses the exceptions
505
00:22:31.960 --> 00:22:35.140
for new information, so there's no discussion
506
00:22:35.140 --> 00:22:36.493
of lifting the time limit.
507
00:22:37.673 --> 00:22:40.340
So I think that was mainly focused on that,
508
00:22:40.340 --> 00:22:42.490
so I would guess it was within the 60 days.
509
00:22:43.490 --> 00:22:45.413
That's all I have, thank you.
510
00:22:47.048 --> 00:22:51.500
[Chief Justice Gants] I've got a few questions.
511
00:22:51.500 --> 00:22:56.290
With respect to the sentence that he received ultimately
512
00:22:56.290 --> 00:22:59.925
after the reversals, it was a pure probationary sentence?
513
00:22:59.925 --> 00:23:02.040
There was no,
514
00:23:02.040 --> 00:23:03.833
no custodial sentence imposed?
515
00:23:05.030 --> 00:23:07.540
No, well, he served six years at that point.
516
00:23:07.540 --> 00:23:12.113
So as an agreed disposition, he got six years being served,
517
00:23:12.113 --> 00:23:15.144
and then he was placed on 10 years of probation.
518
00:23:15.144 --> 00:23:16.597
[Chief Justice Gants] Let me see, okay.
519
00:23:16.597 --> 00:23:18.490
So it was a 10 year probationary period.
520
00:23:18.490 --> 00:23:19.560
Was it six years deemed served,
521
00:23:19.560 --> 00:23:22.393
or was he sentenced to that on a separate count?
522
00:23:23.710 --> 00:23:25.960
I think it was six years deemed served,
523
00:23:25.960 --> 00:23:28.286
and then he was placed on probation on two counts.
524
00:23:28.286 --> 00:23:30.673
[Chief Justice Gants] I see, okay, so with regard to that.
525
00:23:32.440 --> 00:23:34.553
As I understand it,
526
00:23:36.200 --> 00:23:37.133
Judge,
527
00:23:38.150 --> 00:23:38.983
you had,
528
00:23:40.375 --> 00:23:43.573
the judge who sentenced was Judge Rieger,
529
00:23:45.469 --> 00:23:47.163
and then it went to,
530
00:23:48.730 --> 00:23:52.243
back ultimately to Judge Tosca.
531
00:23:53.960 --> 00:23:56.710
And I believe, what, it was February 14th that Judge,
532
00:23:56.710 --> 00:23:58.080
it was Valentine's Day, I think,
533
00:23:58.080 --> 00:24:02.353
that Judge Rieger denied it, and then it was February,
534
00:24:08.200 --> 00:24:09.140
denied by
535
00:24:13.850 --> 00:24:17.013
February 27th, I believe, or the 26th, correct?
536
00:24:17.013 --> 00:24:19.013
It's 26th, yes, Your Honor.
537
00:24:20.408 --> 00:24:23.120
[Chief Justice Gants] So when it went back to Judge Tosca
538
00:24:23.120 --> 00:24:28.120
after it had gone initially to the single justice,
539
00:24:28.210 --> 00:24:29.370
that was February 27th.
540
00:24:29.370 --> 00:24:32.623
So that was before this thing broke open.
541
00:24:34.690 --> 00:24:37.130
So it was before Judge Tosca,
542
00:24:37.130 --> 00:24:40.270
after the initial decision was denied.
543
00:24:40.270 --> 00:24:41.713
So two weeks ago,
544
00:24:44.823 --> 00:24:47.910
I filed the initial petition before Justice,
545
00:24:47.910 --> 00:24:50.410
in the single justice session.
546
00:24:50.410 --> 00:24:52.190
That was denied,
547
00:24:52.190 --> 00:24:55.480
and so then I effectively renewed the motion
548
00:24:55.480 --> 00:24:58.990
in the Superior Court to exhaust the trial court remedies,
549
00:24:58.990 --> 00:25:03.201
and then it was denied by Judge Tosca the following Monday.
550
00:25:03.201 --> 00:25:04.034
So that was--
Okay.
551
00:25:04.034 --> 00:25:07.888
And he, I believe, denied it because he had understood
552
00:25:07.888 --> 00:25:09.857
that the Appeals Court single justice,
553
00:25:09.857 --> 00:25:12.380
who I believe was Justice Ditkoff,
554
00:25:12.380 --> 00:25:14.530
had already ruled on that, is that correct?
555
00:25:16.070 --> 00:25:19.200
Well, that was certainly part of his analysis.
556
00:25:19.200 --> 00:25:21.610
Part of his analysis was also a belief
557
00:25:21.610 --> 00:25:26.100
that he didn't actually have the authority to rule on that,
558
00:25:26.100 --> 00:25:28.570
and then part of his analysis was,
559
00:25:28.570 --> 00:25:30.033
something else he said in that analysis was
560
00:25:30.033 --> 00:25:31.600
that he didn't actually think
561
00:25:33.260 --> 00:25:38.260
that Mr. Christie's risk of contracting COVID-19 was
562
00:25:38.660 --> 00:25:41.140
actually higher in the facility,
563
00:25:41.140 --> 00:25:44.620
which I think is also quite incorrect.
564
00:25:44.620 --> 00:25:48.190
And then another point that he made is he didn't think,
565
00:25:48.190 --> 00:25:49.750
I mean, I think in terms of his analysis
566
00:25:49.750 --> 00:25:51.890
of the public safety risk, he largely
567
00:25:53.530 --> 00:25:56.780
agreed with the analysis of Justice Ditkoff,
568
00:25:56.780 --> 00:26:00.150
which obviously preceded this entire thing.
569
00:26:00.150 --> 00:26:02.030
But one point that he made was
570
00:26:02.030 --> 00:26:03.867
whether Mr. Christie would be more likely
571
00:26:03.867 --> 00:26:06.260
to contract COVID-19 at the treatment center
572
00:26:06.260 --> 00:26:09.440
if he's not immediately released is pure speculation,
573
00:26:09.440 --> 00:26:10.930
which I think, given that we've gone
574
00:26:10.930 --> 00:26:13.920
from 10 to 17 cases over this past weekend,
575
00:26:13.920 --> 00:26:15.863
I think is quite incorrect.
576
00:26:17.180 --> 00:26:21.290
And by that point, I also, the woman, the friend
577
00:26:21.290 --> 00:26:23.050
of Mr. Christie's works in healthcare.
578
00:26:23.050 --> 00:26:23.960
She told me yesterday
579
00:26:23.960 --> 00:26:26.140
she's been working double shifts every day.
580
00:26:26.140 --> 00:26:28.643
She called me in her 15 minute gap between shifts,
581
00:26:29.560 --> 00:26:32.310
and she basically said that, she told me everything
582
00:26:32.310 --> 00:26:33.580
I just reported to Your Honors,
583
00:26:33.580 --> 00:26:36.030
and I didn't have any of that information
584
00:26:36.030 --> 00:26:39.510
when I was before Justice Tosca last week.
585
00:26:39.510 --> 00:26:40.810
So that's another thing that's changed,
586
00:26:40.810 --> 00:26:42.840
is I think we have a little more clarity
587
00:26:42.840 --> 00:26:44.680
because Judge Tosca also said,
588
00:26:44.680 --> 00:26:47.160
it's not clear that he would quarantine himself.
589
00:26:47.160 --> 00:26:49.120
And now I can represent to Your Honors
590
00:26:49.120 --> 00:26:51.370
that I've spoken to someone who's willing to take him in
591
00:26:51.370 --> 00:26:53.350
and have him quarantine himself.
592
00:26:53.350 --> 00:26:57.060
So he doesn't present the danger to public health
593
00:26:57.060 --> 00:27:00.040
that I think Judge Tosca feared at the time
594
00:27:00.040 --> 00:27:02.589
because we didn't have some of that detail.
595
00:27:02.589 --> 00:27:03.550
[Chief Justice Gants] Do we have, by the way,
596
00:27:03.550 --> 00:27:05.800
his ruling in the record, I couldn't find it.
597
00:27:08.260 --> 00:27:10.210
I believe it is appended
598
00:27:10.210 --> 00:27:14.190
to an amended opposition filed by Mr. O'Sullivan,
599
00:27:14.190 --> 00:27:15.950
I think would be the place to find it,
600
00:27:15.950 --> 00:27:19.110
because he didn't, Judge Tosca did not issue
601
00:27:19.110 --> 00:27:23.920
that written ruling until after his oral denials
602
00:27:23.920 --> 00:27:27.890
of the motion, which was just during the telephonic hearing.
603
00:27:27.890 --> 00:27:29.500
So it came after the hearing,
604
00:27:29.500 --> 00:27:33.930
and I think it was emailed to the parties the same day
605
00:27:33.930 --> 00:27:36.300
that Mr. O'Sullivan's opposition was due.
606
00:27:36.300 --> 00:27:38.090
And because he got it that same day,
607
00:27:38.090 --> 00:27:39.030
all I can speak to this,
608
00:27:39.030 --> 00:27:42.708
but that's why he amended his opposition, added it there.
609
00:27:42.708 --> 00:27:43.750
[Chief Justice Gants] I see, okay.
610
00:27:43.750 --> 00:27:44.943
So is it,
611
00:27:46.177 --> 00:27:47.760
and certainly, of course, you would want us
612
00:27:47.760 --> 00:27:50.633
to simply order his release, I understand that.
613
00:27:51.522 --> 00:27:54.400
Is it also your argument that the matter,
614
00:27:54.400 --> 00:27:57.360
that the matter should properly go back to Judge Tosca,
615
00:27:57.360 --> 00:27:59.610
because he's not bound either by the ruling
616
00:27:59.610 --> 00:28:02.910
of Justice Ditkoff, or by his own ruling
617
00:28:02.910 --> 00:28:04.913
because of the change in circumstances?
618
00:28:06.120 --> 00:28:08.080
Well, Mr. Chief Justice,
619
00:28:08.080 --> 00:28:12.320
I would ask this court to authorize his immediate release,
620
00:28:12.320 --> 00:28:16.520
primarily being, when I filed this petition,
621
00:28:16.520 --> 00:28:19.850
there were no cases in any DOC facility.
622
00:28:19.850 --> 00:28:23.263
Now we have 17 in Mr. Christie's very facility.
623
00:28:24.523 --> 00:28:26.189
Given this process,
624
00:28:26.189 --> 00:28:30.510
as extraordinarily vast as it's happened,
625
00:28:30.510 --> 00:28:35.510
we can't out race this virus, it's growing every day.
626
00:28:35.610 --> 00:28:40.410
One of his roommates has already been taken out of his room,
627
00:28:40.410 --> 00:28:43.980
of his six man room, and a couple days later,
628
00:28:43.980 --> 00:28:45.340
correctional staff came in
629
00:28:45.340 --> 00:28:47.370
with personal protective equipment
630
00:28:47.370 --> 00:28:49.610
and took out all the man's possessions
631
00:28:49.610 --> 00:28:51.450
and all of his clothing.
632
00:28:51.450 --> 00:28:54.540
So Mr. Christie is
633
00:28:54.540 --> 00:28:58.990
terrified that any further delay will lead him
634
00:28:58.990 --> 00:29:00.210
to contract this virus
635
00:29:00.210 --> 00:29:04.370
and put his life into very serious jeopardy.
636
00:29:04.370 --> 00:29:06.530
So I think that's something, of course,
637
00:29:06.530 --> 00:29:09.190
Mr. Chief Justice, that this court could do.
638
00:29:09.190 --> 00:29:12.640
But I think given the extraordinary circumstances,
639
00:29:12.640 --> 00:29:15.340
that it justifies the extraordinary action
640
00:29:15.340 --> 00:29:17.360
of this court, not only doing this
641
00:29:17.360 --> 00:29:21.110
to save Mr. Christie's life, but I think a lot
642
00:29:21.110 --> 00:29:24.367
of trial judges, as this court works on a systemic remedy,
643
00:29:24.367 --> 00:29:27.930
are gonna take their cues from what this court does
644
00:29:27.930 --> 00:29:32.230
in this case with someone who falls into so many overlapping
645
00:29:32.230 --> 00:29:35.010
and dovetailing categories entitling him to release,
646
00:29:35.010 --> 00:29:38.340
under actions that have been taken in other jurisdictions,
647
00:29:38.340 --> 00:29:40.730
and even in proposals in Massachusetts.
648
00:29:40.730 --> 00:29:43.480
So I would urge this court
649
00:29:43.480 --> 00:29:46.252
to authorize his immediate release.
650
00:29:46.252 --> 00:29:47.085
[Chief Justice Gants] All right,
651
00:29:47.085 --> 00:29:47.918
let me ask one more thing.
652
00:29:47.918 --> 00:29:49.170
With regard to the issue
653
00:29:51.310 --> 00:29:55.930
of a stay pending appeal, there are two problems,
654
00:29:55.930 --> 00:29:59.670
of course, one is whether it's worthy of presentation
655
00:29:59.670 --> 00:30:02.370
to an appellate court, and your argument,
656
00:30:02.370 --> 00:30:04.150
I'm sure, is that of course it is,
657
00:30:04.150 --> 00:30:06.040
based on that they're being technical violations,
658
00:30:06.040 --> 00:30:11.040
and there's some question as to whether those were willful.
659
00:30:12.640 --> 00:30:15.080
The other issue is one of security,
660
00:30:15.080 --> 00:30:18.260
and generally, it's, of course, not only the risk of flight,
661
00:30:18.260 --> 00:30:20.790
but the potential danger to any other person
662
00:30:20.790 --> 00:30:22.230
or to the community.
663
00:30:22.230 --> 00:30:25.410
Is it your argument that, in view of the pandemic,
664
00:30:25.410 --> 00:30:29.640
we need to consider security in a way we never have before,
665
00:30:29.640 --> 00:30:32.340
which is to consider the possible danger
666
00:30:32.340 --> 00:30:37.340
to the inmate himself arising from the denial of the stay?
667
00:30:39.840 --> 00:30:42.100
Well, I think that it's both the danger
668
00:30:42.100 --> 00:30:44.087
to the inmate himself, I do agree with that,
669
00:30:44.087 --> 00:30:47.533
but I also think it's something that,
670
00:30:48.826 --> 00:30:52.800
that is echoed in Dr. Sivashankar's affidavit,
671
00:30:52.800 --> 00:30:55.449
appended to our reply in the systemic litigation,
672
00:30:55.449 --> 00:30:59.390
that we're all interdependent in this pandemic.
673
00:30:59.390 --> 00:31:03.140
And any risk to the safety and health
674
00:31:03.140 --> 00:31:06.600
of inmates inside of these facilities will cascade
675
00:31:06.600 --> 00:31:09.020
into the broader community and will affect everyone.
676
00:31:09.020 --> 00:31:12.550
So I think it's just a simple recognition
677
00:31:12.550 --> 00:31:16.250
that public safety has to include public health,
678
00:31:16.250 --> 00:31:19.470
and it includes the health not only of incarcerated people,
679
00:31:19.470 --> 00:31:21.410
but also correctional staff, their families,
680
00:31:21.410 --> 00:31:23.590
and their broader community.
681
00:31:23.590 --> 00:31:25.580
So we know that every inmate who comes out
682
00:31:25.580 --> 00:31:28.130
of that facility who needs a bed is one less bed
683
00:31:28.130 --> 00:31:29.573
for anybody in the community.
684
00:31:29.573 --> 00:31:33.610
So I do think it's something that should be recognized
685
00:31:33.610 --> 00:31:37.070
in any assessment of any sort of public safety risk
686
00:31:37.070 --> 00:31:38.690
that this would cause.
687
00:31:38.690 --> 00:31:41.340
And of course, Mr. Christie's just one person,
688
00:31:41.340 --> 00:31:44.530
but this is a systemic remedy that we're seeking,
689
00:31:44.530 --> 00:31:46.680
and every individual person is one less person
690
00:31:46.680 --> 00:31:50.210
to transmit the virus and one less person to take up a bed.
691
00:31:50.210 --> 00:31:51.260
So I do think that's something
692
00:31:51.260 --> 00:31:52.540
that should weigh significantly
693
00:31:52.540 --> 00:31:55.377
in that prong two calculus, I agree.
694
00:31:55.377 --> 00:31:56.420
[Chief Justice Gants] Okay, I have no further questions.
695
00:31:56.420 --> 00:31:59.073
Justice Gaziano, any questions to follow up?
696
00:32:00.440 --> 00:32:01.612
No, thank you.
697
00:32:01.612 --> 00:32:02.720
[Chief Justice Gants] Justice Lowy?
698
00:32:02.720 --> 00:32:04.960
Yes, could you tell me,
699
00:32:04.960 --> 00:32:08.590
what do you think our standard review here is,
700
00:32:08.590 --> 00:32:12.810
as it relates to the security danger issue posed,
701
00:32:12.810 --> 00:32:17.810
considering the determination by Judge Tosca and Ditkoff?
702
00:32:20.500 --> 00:32:21.470
I would submit, Your Honor,
703
00:32:21.470 --> 00:32:25.053
that it should be considered de novo, given how,
704
00:32:26.280 --> 00:32:29.320
A, how difficult it is to really weigh these factors,
705
00:32:29.320 --> 00:32:31.920
given how much has even changed,
706
00:32:31.920 --> 00:32:36.230
just since Judge Tosca issued his ruling last week,
707
00:32:36.230 --> 00:32:39.623
and how many more cases there are in the treatment center.
708
00:32:40.510 --> 00:32:45.110
And also, I mean, I think under any standard of review,
709
00:32:45.110 --> 00:32:48.290
to, for example, Justice
710
00:32:49.292 --> 00:32:50.483
Ditkoff's ruling,
711
00:32:52.130 --> 00:32:56.210
he says, just by way of one example,
712
00:32:56.210 --> 00:32:58.410
that even if,
713
00:32:58.410 --> 00:33:02.150
even if Mr. Christie is successful in his argument
714
00:33:02.150 --> 00:33:04.480
about the willfulness of his violation,
715
00:33:04.480 --> 00:33:07.570
he still doesn't comply with court order.
716
00:33:07.570 --> 00:33:10.810
But that doesn't really hold water, right?
717
00:33:10.810 --> 00:33:13.370
Because if his violations are not willful,
718
00:33:13.370 --> 00:33:16.060
then he does comply with court orders.
719
00:33:16.060 --> 00:33:20.730
So I think actually the prong one sort of analysis,
720
00:33:20.730 --> 00:33:22.790
the reasonable possibility of success,
721
00:33:22.790 --> 00:33:27.030
just how, in my view, just how clearly not willful,
722
00:33:27.030 --> 00:33:30.430
at least to, and I would submit that the third violation,
723
00:33:30.430 --> 00:33:33.090
as well, of these violations are,
724
00:33:33.090 --> 00:33:34.960
should weigh in the balance, as well,
725
00:33:34.960 --> 00:33:37.570
and be something that, by any standard of review,
726
00:33:37.570 --> 00:33:41.770
is not on title to be accepted by this court on appeal.
727
00:33:41.770 --> 00:33:43.280
So that would be my submission,
728
00:33:43.280 --> 00:33:46.050
that I think because of how much is constantly changing,
729
00:33:46.050 --> 00:33:49.740
de novo review is appropriate, but by any standard,
730
00:33:49.740 --> 00:33:50.640
that sort of
731
00:33:52.090 --> 00:33:54.330
view of these facts is not supported
732
00:33:54.330 --> 00:33:55.840
by the evidence, as well.
733
00:33:55.840 --> 00:33:58.530
What about what we know
734
00:33:58.530 --> 00:34:02.240
about this family friend,
735
00:34:02.240 --> 00:34:04.280
that he would stay with,
736
00:34:04.280 --> 00:34:07.450
is only that she's a healthcare worker
737
00:34:07.450 --> 00:34:10.130
who'll be doing double shifts, so presumably,
738
00:34:10.130 --> 00:34:13.223
he'd be home alone most of the time.
739
00:34:14.868 --> 00:34:15.701
And that's all we know--
740
00:34:15.701 --> 00:34:18.120
Yeah, yeah, I think,
741
00:34:18.120 --> 00:34:22.410
I mean, I wish I'd had more time to get an affidavit
742
00:34:22.410 --> 00:34:26.380
from her, or to have a long conversation with her.
743
00:34:26.380 --> 00:34:29.090
She did mention having a significant other,
744
00:34:29.090 --> 00:34:31.400
who is a gentlemen who she lived with.
745
00:34:31.400 --> 00:34:35.280
So I don't know if Mr. Christie would be entirely alone
746
00:34:35.280 --> 00:34:37.860
in her place, but her primary things
747
00:34:37.860 --> 00:34:40.550
that she mentioned to me are that she'd be willing
748
00:34:40.550 --> 00:34:43.590
to have him quarantine there, she has a separate bed
749
00:34:43.590 --> 00:34:44.723
and room for him,
750
00:34:46.170 --> 00:34:48.680
and she has no children who not only don't live with her,
751
00:34:48.680 --> 00:34:50.380
but they don't visit her.
752
00:34:50.380 --> 00:34:53.036
So he would have no access to children.
753
00:34:53.036 --> 00:34:56.460
And she works in healthcare, and she's been working a lot
754
00:34:56.460 --> 00:34:58.500
of double shifts recently.
755
00:34:58.500 --> 00:35:01.340
So that's primarily the extent
756
00:35:01.340 --> 00:35:03.286
of the representation she made to me.
757
00:35:03.286 --> 00:35:04.714
Thank you very much.
758
00:35:04.714 --> 00:35:05.711
Thank you.
759
00:35:05.711 --> 00:35:06.930
[Chief Justice Gants] Justice Budd, anything else?
760
00:35:06.930 --> 00:35:08.439
No, thank you.
761
00:35:08.439 --> 00:35:10.010
[Chief Justice Gants] All right, Justice Cypher?
762
00:35:10.010 --> 00:35:11.283
No, thank you.
763
00:35:11.283 --> 00:35:13.570
[Chief Justice Gants] And Justice Kafker?
764
00:35:13.570 --> 00:35:14.560
Two things.
765
00:35:14.560 --> 00:35:19.560
One, this case is not like the harder ones we're dealing
766
00:35:19.710 --> 00:35:22.380
with in the other case, right, because we don't have
767
00:35:22.380 --> 00:35:24.000
to find a constitutional violation,
768
00:35:24.000 --> 00:35:28.900
we just have to find that there's an erroneous violation
769
00:35:28.900 --> 00:35:30.690
of probation, right?
770
00:35:30.690 --> 00:35:34.820
This doesn't raise the stakes that we're dealing with
771
00:35:34.820 --> 00:35:36.370
in the bigger case, where we're dealing
772
00:35:36.370 --> 00:35:40.610
with people who were properly violated at the time.
773
00:35:40.610 --> 00:35:43.080
You're questioning the propriety
774
00:35:43.080 --> 00:35:44.883
of the violation itself, right?
775
00:35:46.170 --> 00:35:48.280
Yes, and I do think that's something
776
00:35:48.280 --> 00:35:51.580
that should weigh substantially in the balance,
777
00:35:51.580 --> 00:35:55.848
when you consider the strength of the prong one showing.
778
00:35:55.848 --> 00:36:00.848
When I argued, for example, the Alvarez case to this court,
779
00:36:01.350 --> 00:36:03.680
Justice Cypher, the Chief Justice,
780
00:36:03.680 --> 00:36:07.370
asked me questions about particularly strong showings
781
00:36:07.370 --> 00:36:12.370
on prong one could affect the analysis of prong two,
782
00:36:12.480 --> 00:36:15.380
because if you have such a strong argument
783
00:36:15.380 --> 00:36:18.840
on prong one, someone should be out
784
00:36:18.840 --> 00:36:21.130
if they're gonna win their appeal, for example.
785
00:36:21.130 --> 00:36:23.573
And I do think that's exactly right.
786
00:36:24.420 --> 00:36:25.253
So,
787
00:36:27.162 --> 00:36:28.730
and my answer to you, Justice Kafker,
788
00:36:28.730 --> 00:36:30.380
by saying, yes, I agree with you.
789
00:36:31.430 --> 00:36:33.180
The second thing is,
790
00:36:33.180 --> 00:36:36.920
he's living with a healthcare worker,
791
00:36:36.920 --> 00:36:38.730
I take it she's on the front lines
792
00:36:38.730 --> 00:36:42.483
of the coronavirus crisis.
793
00:36:43.880 --> 00:36:48.363
So isn't he endangering, isn't he in more danger there?
794
00:36:49.460 --> 00:36:53.103
I'm confused by why that's a safe places for him.
795
00:36:54.570 --> 00:36:55.990
Well, I don't think he'll be
796
00:36:55.990 --> 00:36:57.710
in more danger there because, one,
797
00:36:57.710 --> 00:37:00.540
I don't necessarily know if she is
798
00:37:00.540 --> 00:37:01.890
on the front lines of the crisis.
799
00:37:01.890 --> 00:37:04.490
I don't know if she works, I don't know exactly
800
00:37:04.490 --> 00:37:07.860
what her job is, she told me she works in healthcare,
801
00:37:07.860 --> 00:37:09.710
and so she's been working a lot of double shifts.
802
00:37:09.710 --> 00:37:12.880
I don't know if she works on the administrative side,
803
00:37:12.880 --> 00:37:15.110
or if she's actually a direct provider.
804
00:37:15.110 --> 00:37:17.127
And even if she's a provider, if she's someone
805
00:37:17.127 --> 00:37:20.260
who's actually would be seeing COVID patients.
806
00:37:20.260 --> 00:37:23.650
But I think also, I mean, I think the bigger danger,
807
00:37:23.650 --> 00:37:26.340
and the thing that I really wanted to verify with her,
808
00:37:26.340 --> 00:37:28.180
is that she wouldn't be concerned
809
00:37:28.180 --> 00:37:30.470
about the danger he would pose to her.
810
00:37:30.470 --> 00:37:32.360
Which is why I really, when I talked to her,
811
00:37:32.360 --> 00:37:35.827
the thrust of my conversation was, "Are you sure
812
00:37:35.827 --> 00:37:38.587
"that he can stay with you, because you know he's
813
00:37:38.587 --> 00:37:41.400
"in a facility that has 10 and probably more,"
814
00:37:41.400 --> 00:37:42.580
when, I think when I talked to her,
815
00:37:42.580 --> 00:37:45.003
I think it was 10 or 13 at that point,
816
00:37:46.997 --> 00:37:51.997
"people who have this virus, are you sure you'll be safe?"
817
00:37:52.330 --> 00:37:54.987
And she said, "He's a good friend of mine.
818
00:37:54.987 --> 00:37:58.740
"We have an open room, I'll quarantine myself from him."
819
00:37:58.740 --> 00:38:00.040
So I was more concerned
820
00:38:00.040 --> 00:38:02.190
about making sure there was protection
821
00:38:02.190 --> 00:38:04.690
in the opposite direction, and she was able
822
00:38:04.690 --> 00:38:07.329
to assure me that she felt comfortable with that.
823
00:38:07.329 --> 00:38:08.360
(background noise drowns out speaker)
824
00:38:08.360 --> 00:38:10.762
Okay, that's all I have, thank you.
825
00:38:10.762 --> 00:38:12.080
[Chief Justice Gants] And I have no further questions.
826
00:38:12.080 --> 00:38:14.880
Thank you, Mr. Rajkovic, for O'Sullivan--
827
00:38:14.880 --> 00:38:16.030
Thank you.
828
00:38:21.050 --> 00:38:21.990
Your Honor, if I may.
829
00:38:21.990 --> 00:38:25.730
Mr. O'Sullivan and discussed, and we were thinking
830
00:38:25.730 --> 00:38:27.683
that perhaps Probation could go first?
831
00:38:28.624 --> 00:38:32.090
[Chief Justice Gants] Okay, we'll let Probation go first.
832
00:38:32.090 --> 00:38:33.560
Thank you, Your Honor.
833
00:38:33.560 --> 00:38:36.100
Mr. Chief Justice and members of the court, Sarah Joss,
834
00:38:36.100 --> 00:38:38.900
on behalf of Massachusetts Probation Service.
835
00:38:38.900 --> 00:38:41.040
Probation has not taken a position
836
00:38:41.040 --> 00:38:43.710
on whether or not Mr. Christie should be released,
837
00:38:43.710 --> 00:38:46.340
but has raised a number of concerns
838
00:38:46.340 --> 00:38:47.950
that I think echo the concerns
839
00:38:47.950 --> 00:38:51.050
that were raised in the systemic litigation
840
00:38:51.050 --> 00:38:55.450
from this morning, mainly issues around release planning,
841
00:38:55.450 --> 00:38:59.950
and concerns around access to treatment and GPS.
842
00:38:59.950 --> 00:39:03.230
We've obviously now had some more detail from Mr. Christie,
843
00:39:03.230 --> 00:39:06.500
in terms of what his release plan would look like.
844
00:39:06.500 --> 00:39:08.860
In ordinary circumstances, that would be the kind of thing
845
00:39:08.860 --> 00:39:11.190
that Probation would do checks on,
846
00:39:11.190 --> 00:39:15.120
to ensure the no access to children,
847
00:39:15.120 --> 00:39:17.420
that even if there are no children living
848
00:39:17.420 --> 00:39:19.573
in the house itself, is it part
849
00:39:19.573 --> 00:39:21.110
of a bigger apartment building,
850
00:39:21.110 --> 00:39:22.910
are there children in the building,
851
00:39:22.910 --> 00:39:25.720
are there schools nearby, those kinds of things.
852
00:39:25.720 --> 00:39:28.230
But because of the moment we find ourselves in,
853
00:39:28.230 --> 00:39:29.800
Probation does not have the ability
854
00:39:29.800 --> 00:39:31.500
to do that kind of check.
855
00:39:31.500 --> 00:39:33.633
So I think that highlights a number of the concerns
856
00:39:33.633 --> 00:39:35.760
that were raised in the argument this morning,
857
00:39:35.760 --> 00:39:38.600
about the need to have very clear detail
858
00:39:38.600 --> 00:39:40.770
in front of a court when it is weighing these public health
859
00:39:40.770 --> 00:39:42.780
and public safety considerations.
860
00:39:42.780 --> 00:39:45.660
To Justice Kafker's most recent set of questions,
861
00:39:45.660 --> 00:39:47.730
it's really tough to weigh out
862
00:39:47.730 --> 00:39:49.550
what those public health concerns are
863
00:39:49.550 --> 00:39:51.900
if there is not sufficient detail
864
00:39:51.900 --> 00:39:54.200
about someone who's potentially being released,
865
00:39:54.200 --> 00:39:56.260
about the plans that they have for where they're going
866
00:39:56.260 --> 00:39:58.860
to live, how they're going to self quarantine,
867
00:39:58.860 --> 00:40:01.550
and who they're gonna be in contact with.
868
00:40:01.550 --> 00:40:03.250
Who are those people in contact with?
869
00:40:03.250 --> 00:40:06.620
Those are very tricky and detailed questions,
870
00:40:06.620 --> 00:40:10.570
that it's not easy to answer in a categorical way.
871
00:40:10.570 --> 00:40:12.547
So obviously, the fact that Mr. Christie
872
00:40:12.547 --> 00:40:14.610
has now provided some more information is helpful,
873
00:40:14.610 --> 00:40:17.600
but without further detail, it still raises concerns
874
00:40:17.600 --> 00:40:21.580
about the ability to verify this and to ensure
875
00:40:21.580 --> 00:40:25.150
that it is not creating additional risk factors.
876
00:40:25.150 --> 00:40:26.960
Secondly, I know Mr. Christie,
877
00:40:26.960 --> 00:40:30.210
part of his initial motion talked about the need
878
00:40:30.210 --> 00:40:32.580
to access additional treatment on the outside,
879
00:40:32.580 --> 00:40:34.900
including for surgery and things like that.
880
00:40:34.900 --> 00:40:36.980
Obviously, in the moment that we're in,
881
00:40:36.980 --> 00:40:40.370
the availability of that kind of treatment is ever changing.
882
00:40:40.370 --> 00:40:43.020
So I think that that is probably not something
883
00:40:43.020 --> 00:40:44.930
that factors in, in terms of the ability
884
00:40:44.930 --> 00:40:48.110
of him to access treatment for his underlying conditions,
885
00:40:48.110 --> 00:40:50.650
because I don't think anybody can guarantee at this point
886
00:40:50.650 --> 00:40:52.889
that that, even if he had surgery scheduled
887
00:40:52.889 --> 00:40:54.510
when he initially filed the motion,
888
00:40:54.510 --> 00:40:55.600
I don't think there's any guarantee
889
00:40:55.600 --> 00:40:57.443
that anybody could look forward, to say at this point
890
00:40:57.443 --> 00:41:00.100
that that's gonna happen anytime in the next few weeks.
891
00:41:00.100 --> 00:41:02.820
Certainly not, obviously, as Kafker said,
892
00:41:02.820 --> 00:41:05.000
before the end of a self quarantine period.
893
00:41:05.000 --> 00:41:08.460
And the third thing that Probation raised below,
894
00:41:08.460 --> 00:41:10.113
and that Judge Tosca considered,
895
00:41:10.960 --> 00:41:12.600
and that remains a concern here,
896
00:41:12.600 --> 00:41:17.130
is that Mr. Christie, as part of his probation condition,
897
00:41:17.130 --> 00:41:19.550
has a GPS condition.
898
00:41:19.550 --> 00:41:22.860
Probation had asked below, in the Superior Court,
899
00:41:22.860 --> 00:41:25.970
that if the court were inclined to release Mr. Christie,
900
00:41:25.970 --> 00:41:28.410
that it stay in a GPS installation
901
00:41:28.410 --> 00:41:29.630
for the period of self quarantine,
902
00:41:29.630 --> 00:41:31.270
whereas Mr. Christie develops a--
903
00:41:31.270 --> 00:41:32.590
Now exiting.
904
00:41:32.590 --> 00:41:34.597
Scott Kafker.
905
00:41:34.597 --> 00:41:36.002
(phone beeps)
906
00:41:36.002 --> 00:41:38.221
Frank Gaziano.
907
00:41:38.221 --> 00:41:40.596
(phone beeps)
908
00:41:40.596 --> 00:41:42.065
[Chief Justice Gants] Hang on, have we lost--
909
00:41:42.065 --> 00:41:43.517
Yep.
910
00:41:43.517 --> 00:41:44.860
[Chief Justice Gants] Have we lost Justice Kafker
911
00:41:44.860 --> 00:41:45.810
or Justice Gaziano?
912
00:41:48.397 --> 00:41:49.997
I believe so.
913
00:41:59.097 --> 00:42:01.800
[Chief Justice Gants] Let me get them back.
914
00:42:01.800 --> 00:42:03.000
Is someone texting them?
915
00:42:04.830 --> 00:42:05.663
I might--
916
00:42:05.663 --> 00:42:06.680
I'll do that.
917
00:42:06.680 --> 00:42:09.763
I'll call Justice Kafker on his cell.
918
00:42:48.523 --> 00:42:49.356
(overlapping chattering)
919
00:42:49.356 --> 00:42:50.593
Now joining.
920
00:42:51.867 --> 00:42:53.000
(phone beeps)
921
00:42:53.000 --> 00:42:54.210
Now exiting.
922
00:42:56.179 --> 00:42:57.470
(phone beeps)
923
00:42:57.470 --> 00:42:58.742
Now joining.
924
00:42:58.742 --> 00:42:59.940
Frank Gaziano.
925
00:42:59.940 --> 00:43:04.060
I apologize, I apologize, I was bounced out of the call.
926
00:43:04.060 --> 00:43:05.530
Justice Kafker says he's trying
927
00:43:05.530 --> 00:43:06.733
to call in right now.
928
00:43:08.770 --> 00:43:10.118
Was Kafker bounced?
929
00:43:10.118 --> 00:43:11.868
Yes.
930
00:44:03.953 --> 00:44:08.203
- [Chief Justice Gants] No Justice Kafker yet?
931
00:44:23.870 --> 00:44:25.153
Now joining.
932
00:44:25.153 --> 00:44:26.497
Scott Kafker.
933
00:44:26.497 --> 00:44:28.309
(phone beeps)
934
00:44:28.309 --> 00:44:29.460
[Chief Justice Gants] Do we have Justice Kafker
935
00:44:29.460 --> 00:44:30.293
and Justice Gaziano?
936
00:44:30.293 --> 00:44:32.610
Hey, (mumbles).
937
00:44:32.610 --> 00:44:34.655
Yeah, I'm here, as well, Chief.
938
00:44:34.655 --> 00:44:36.530
[Chief Justice Gants] Okay, I don't know what happened.
939
00:44:36.530 --> 00:44:38.653
Fortunately, it didn't happen earlier, so.
940
00:44:41.250 --> 00:44:43.863
You were speaking, Ms. Joss, about GPS.
941
00:44:44.770 --> 00:44:46.180
Yes, Your Honor, thank you.
942
00:44:46.180 --> 00:44:49.650
So Probation raised below, in the Superior Court,
943
00:44:49.650 --> 00:44:51.990
and would raise the same concern here,
944
00:44:51.990 --> 00:44:54.940
that where Mr. Christie is coming out of a facility
945
00:44:54.940 --> 00:44:59.010
and is planning to, if he is released, self quarantine,
946
00:44:59.010 --> 00:45:02.070
Probation would ask that any GPS condition,
947
00:45:02.070 --> 00:45:05.410
that Mr. Christie were coming out to, be stayed
948
00:45:05.410 --> 00:45:07.230
for the period of self quarantine.
949
00:45:07.230 --> 00:45:08.980
And obviously, if Mr. Christie were
950
00:45:08.980 --> 00:45:11.433
to show symptoms during any period of recovery,
951
00:45:12.330 --> 00:45:15.490
obviously that cuts down on the disease factor,
952
00:45:15.490 --> 00:45:17.530
that both Mr. Christie could be
953
00:45:17.530 --> 00:45:19.190
to the probation officer, and to the extent
954
00:45:19.190 --> 00:45:21.973
that the probation officer was exposed to anything,
955
00:45:23.030 --> 00:45:25.400
for the probation officer to expose Mr. Christie.
956
00:45:25.400 --> 00:45:27.150
As I'm sure the court is aware,
957
00:45:27.150 --> 00:45:30.830
the installation of GPS requires close physical contact
958
00:45:30.830 --> 00:45:33.410
between the person doing the installing
959
00:45:33.410 --> 00:45:36.710
and the person who the bracelet is being installed on.
960
00:45:36.710 --> 00:45:40.020
On a good day, the process takes about half an hour,
961
00:45:40.020 --> 00:45:42.520
and that's, if everything is going well
962
00:45:42.520 --> 00:45:44.080
and according to plan.
963
00:45:44.080 --> 00:45:47.150
Obviously, no guarantee that that would be the case.
964
00:45:47.150 --> 00:45:50.190
And in addition to the actual physical installation
965
00:45:50.190 --> 00:45:52.110
of the bracelet, the probation officer has
966
00:45:52.110 --> 00:45:55.110
to have a lengthy conversation with the person who is going
967
00:45:55.110 --> 00:45:57.060
on with the bracelet, to get all of the information
968
00:45:57.060 --> 00:45:59.120
about how to contact them, where they're staying,
969
00:45:59.120 --> 00:46:00.656
and all of those things.
970
00:46:00.656 --> 00:46:01.626
So that's,
(dog barking)
971
00:46:01.626 --> 00:46:03.938
I apologize for the dog in the back.
972
00:46:03.938 --> 00:46:07.970
So obviously, that raises significant concerns,
973
00:46:07.970 --> 00:46:11.170
if there's any period of self quarantine or symptoms.
974
00:46:11.170 --> 00:46:13.840
So where Probation would ask for,
975
00:46:13.840 --> 00:46:17.140
if Mr. Christie were released, a stay of that condition.
976
00:46:17.140 --> 00:46:19.007
Judge Tosca factored that in as part
977
00:46:19.007 --> 00:46:21.490
of the public safety considerations,
978
00:46:21.490 --> 00:46:25.500
that particularly given the history, GPS is something
979
00:46:25.500 --> 00:46:29.627
that the court relied on in increased monitoring
980
00:46:29.627 --> 00:46:32.190
of Mr. Christie, and the unavailability
981
00:46:32.190 --> 00:46:34.570
of that (mumbles) because Judge Tosca said
982
00:46:34.570 --> 00:46:37.250
that he would not have required Probation to put it on,
983
00:46:37.250 --> 00:46:38.083
were he inclined to release,
984
00:46:38.083 --> 00:46:40.220
would have stayed the condition, obviously,
985
00:46:40.220 --> 00:46:43.217
that raises some additional public safety concerns.
986
00:46:43.217 --> 00:46:46.570
I think the overall issues that Probation wants
987
00:46:46.570 --> 00:46:49.620
to raise here are the either incredibly fast,
988
00:46:49.620 --> 00:46:52.690
intensive cases, both from a public health
989
00:46:52.690 --> 00:46:54.240
and a public safety perspective,
990
00:46:54.240 --> 00:46:57.370
and that every single case requires a balancing,
991
00:46:57.370 --> 00:47:00.530
that needs sufficient actual fleshing out
992
00:47:00.530 --> 00:47:04.470
of release plans and quarantine and all of that.
993
00:47:04.470 --> 00:47:08.440
And so when we go back to the issue
994
00:47:08.440 --> 00:47:09.690
for Mr. Christie himself,
995
00:47:09.690 --> 00:47:12.280
I think those are the main concerns that Probation has.
996
00:47:12.280 --> 00:47:14.860
And I would factor into that, also,
997
00:47:14.860 --> 00:47:18.040
that when someone is released on conditions at this point,
998
00:47:18.040 --> 00:47:21.610
generally speaking, the ability to monitor and enforce any
999
00:47:21.610 --> 00:47:23.830
of those conditions is going to be incredibly limited.
1000
00:47:23.830 --> 00:47:27.280
There is no in-person contact between probation officers
1001
00:47:27.280 --> 00:47:29.600
and probationers right now, so to the extent
1002
00:47:29.600 --> 00:47:31.660
that the court is considering release,
1003
00:47:31.660 --> 00:47:35.033
I would request that it keep in mind the limited ability
1004
00:47:35.033 --> 00:47:37.360
that Probation has to actually monitor
1005
00:47:37.360 --> 00:47:38.880
and enforce conditions.
1006
00:47:41.068 --> 00:47:42.372
[Chief Justice Gants] Gaziano?
1007
00:47:42.372 --> 00:47:43.261
No further questions,
1008
00:47:43.261 --> 00:47:44.625
and no questions for others, Chief.
1009
00:47:44.625 --> 00:47:45.458
[Chief Justice Gants] Justice Lowy?
1010
00:47:45.458 --> 00:47:46.906
No questions, please.
1011
00:47:46.906 --> 00:47:48.193
[Chief Justice Gants] All right, Justice Budd?
1012
00:47:49.150 --> 00:47:50.520
Just, I'm wondering
1013
00:47:50.520 --> 00:47:53.250
whether there are other conditions
1014
00:47:53.250 --> 00:47:57.930
that Mr. Christie was on before that you're concerned
1015
00:47:57.930 --> 00:48:00.507
that he's not going to be able to comply with.
1016
00:48:00.507 --> 00:48:02.713
I understand the GPS issue.
1017
00:48:04.280 --> 00:48:05.113
Certainly, Your Honor.
1018
00:48:05.113 --> 00:48:08.120
And I certainly, all credit to Mr. Christie's team
1019
00:48:08.120 --> 00:48:09.140
about reaching out
1020
00:48:09.140 --> 00:48:11.560
to the Counseling and Psychotherapy Center,
1021
00:48:11.560 --> 00:48:14.240
which provides the majority of sex offender treatment
1022
00:48:14.240 --> 00:48:16.270
in the Commonwealth, and I believe it's
1023
00:48:16.270 --> 00:48:20.120
in the appendix attached to Mr. Christie's petition
1024
00:48:20.120 --> 00:48:23.360
in the single justice session, that talks about,
1025
00:48:23.360 --> 00:48:26.400
CPC talking about the availability of treatment online.
1026
00:48:26.400 --> 00:48:28.480
I think we are in a continue, and while
1027
00:48:28.480 --> 00:48:30.000
that may have been accurate at the time,
1028
00:48:30.000 --> 00:48:32.470
I think we are in a continually fluctuating environment,
1029
00:48:32.470 --> 00:48:33.980
in terms of treatment.
1030
00:48:33.980 --> 00:48:38.240
So the CPC does not have an unlimited number of providers,
1031
00:48:38.240 --> 00:48:40.740
and if any of them were to get sick,
1032
00:48:40.740 --> 00:48:43.500
I think we continue to face a challenge
1033
00:48:43.500 --> 00:48:45.130
with the availability of treatment.
1034
00:48:45.130 --> 00:48:48.290
Treatment will continue to diminish in the community,
1035
00:48:48.290 --> 00:48:49.980
and so I think that that's something that,
1036
00:48:49.980 --> 00:48:51.540
while it may be available now,
1037
00:48:51.540 --> 00:48:53.433
I don't think there's necessarily any guarantee
1038
00:48:53.433 --> 00:48:54.840
that that will continue to be the case.
1039
00:48:54.840 --> 00:48:56.770
And obviously, given the history here,
1040
00:48:56.770 --> 00:48:59.260
I know Mr. Christie has a different view
1041
00:48:59.260 --> 00:49:02.380
on this than Probation, about the probation violations
1042
00:49:02.380 --> 00:49:03.530
and whether or not they were willful.
1043
00:49:03.530 --> 00:49:05.910
But I would simply note that both a,
1044
00:49:05.910 --> 00:49:07.643
on the reconsideration motion,
1045
00:49:07.643 --> 00:49:09.220
we were right in front of the sentencing judge,
1046
00:49:09.220 --> 00:49:12.000
Judge Rieger, and also in front of a single justice petition
1047
00:49:12.000 --> 00:49:14.360
with Justice Gaziano, the request
1048
00:49:14.360 --> 00:49:16.100
to reconsider that was denied.
1049
00:49:16.100 --> 00:49:18.470
And Mr. Christie put forward in both
1050
00:49:18.470 --> 00:49:20.370
of those circumstances all of the evidence
1051
00:49:20.370 --> 00:49:23.460
about why he contended that his violations were not willful.
1052
00:49:23.460 --> 00:49:26.610
So I think coupling the failure
1053
00:49:26.610 --> 00:49:29.160
to comply with treatment condition previously,
1054
00:49:29.160 --> 00:49:32.010
with the tenuousness of continuing
1055
00:49:32.010 --> 00:49:33.526
with treatment in the community,
1056
00:49:33.526 --> 00:49:36.230
I think this raises some concerns, as well.
1057
00:49:36.230 --> 00:49:37.550
Okay, but just to be clear,
1058
00:49:37.550 --> 00:49:42.214
I mean, we're here because of the COVID-19 virus.
1059
00:49:42.214 --> 00:49:45.860
I mean, that's the change, that's what has changed
1060
00:49:45.860 --> 00:49:49.823
between that submission and now.
1061
00:49:51.010 --> 00:49:53.700
And I guess my question to you is,
1062
00:49:53.700 --> 00:49:57.920
you sort of laid out the
1063
00:49:58.990 --> 00:50:03.320
difficulties that you will have, in terms of monitoring him,
1064
00:50:03.320 --> 00:50:05.610
but that's the case for anybody
1065
00:50:05.610 --> 00:50:07.310
on probation at this point, right?
1066
00:50:08.200 --> 00:50:09.330
I think that's true.
1067
00:50:09.330 --> 00:50:12.240
There are some, I think it's going to continue to be true,
1068
00:50:12.240 --> 00:50:14.370
and it's going to continue to be ever adjusting.
1069
00:50:14.370 --> 00:50:16.270
So just to Your Honor's question about,
1070
00:50:16.270 --> 00:50:18.370
are there other conditions that we're concerned
1071
00:50:18.370 --> 00:50:20.060
about be able to monitor and enforce,
1072
00:50:20.060 --> 00:50:21.600
I think that's true for everybody.
1073
00:50:21.600 --> 00:50:23.570
I think given the history with Mr. Christie
1074
00:50:23.570 --> 00:50:24.600
and sex offender treatment,
1075
00:50:24.600 --> 00:50:26.760
that raised a particular concern here.
1076
00:50:26.760 --> 00:50:28.410
Okay, thank you.
1077
00:50:30.647 --> 00:50:32.660
[Chief Justice Gants] Justice Cypher?
1078
00:50:32.660 --> 00:50:34.111
Nothing, thank you.
1079
00:50:34.111 --> 00:50:36.330
[Chief Justice Gants] Justice Kafker?
1080
00:50:36.330 --> 00:50:37.955
No, nothing further.
1081
00:50:37.955 --> 00:50:38.788
[Chief Justice Gants] I've got a few questions.
1082
00:50:38.788 --> 00:50:40.277
Was he on GPS before?
1083
00:50:41.144 --> 00:50:42.424
He was, Your Honor.
1084
00:50:42.424 --> 00:50:43.799
[Chief Justice Gants] He was, and--
1085
00:50:43.799 --> 00:50:44.987
Yes, and--
1086
00:50:44.987 --> 00:50:47.440
[Chief Justice Gants] And was there an exclusion zone?
1087
00:50:47.440 --> 00:50:50.551
There were not exclusion zones.
1088
00:50:50.551 --> 00:50:52.990
[Chief Justice Gants] So as I understand it,
1089
00:50:52.990 --> 00:50:57.990
we're not even permitting GPS without exclusion zones, so--
1090
00:50:58.130 --> 00:50:59.993
Does he have named victims?
1091
00:51:00.860 --> 00:51:02.620
He does, Your Honor.
1092
00:51:02.620 --> 00:51:05.810
The only thing I would say here to Justice Gants is,
1093
00:51:05.810 --> 00:51:08.520
the OE 144 about
1094
00:51:09.500 --> 00:51:10.530
the
1095
00:51:10.530 --> 00:51:12.760
new orders for GPS, I'm not sure
1096
00:51:12.760 --> 00:51:13.930
that this would be a new order,
1097
00:51:13.930 --> 00:51:15.940
since it's part of his previously ordered conditions
1098
00:51:15.940 --> 00:51:19.940
of probation, and he, when the Superior Court sentenced him
1099
00:51:19.940 --> 00:51:22.330
under the OP, the court sentenced him,
1100
00:51:22.330 --> 00:51:24.230
revoked on one count, committed him for one to two,
1101
00:51:24.230 --> 00:51:25.430
and reprobated on the other.
1102
00:51:25.430 --> 00:51:26.700
So technically, he would be coming out
1103
00:51:26.700 --> 00:51:28.133
to a preexisting order.
1104
00:51:29.795 --> 00:51:31.403
[Chief Justice Gants] Okay, but it would still have
1105
00:51:31.403 --> 00:51:34.196
to be affixed by a probation officer.
1106
00:51:34.196 --> 00:51:35.029
Yes, yes.
1107
00:51:35.029 --> 00:51:35.862
[Chief Justice Gants] All right, so--
1108
00:51:35.862 --> 00:51:37.085
But just in terms of exclusion zones--
1109
00:51:37.085 --> 00:51:38.760
[Chief Justice Gants] Is there any particular,
1110
00:51:38.760 --> 00:51:40.250
I gathered there was no request
1111
00:51:40.250 --> 00:51:43.080
for an exclusion zone for the victim before.
1112
00:51:43.080 --> 00:51:46.820
Do we even, is there any particular concern
1113
00:51:46.820 --> 00:51:49.253
of re victimization of that victim?
1114
00:51:50.840 --> 00:51:53.230
Not that I'm aware of, Your Honor.
1115
00:51:53.230 --> 00:51:56.429
I know there were also additional allegations
1116
00:51:56.429 --> 00:51:59.240
of unsupervised contact with minors
1117
00:51:59.240 --> 00:52:02.220
that were denied in the Superior Court,
1118
00:52:02.220 --> 00:52:04.730
because there wasn't a timeframe that was attached to them.
1119
00:52:04.730 --> 00:52:06.300
But I don't know that there are any concerns
1120
00:52:06.300 --> 00:52:09.150
about this particular, the victim in the underlying case.
1121
00:52:10.201 --> 00:52:11.710
[Chief Justice Gants] So if he were to be released,
1122
00:52:11.710 --> 00:52:14.103
there would need to be, arguably,
1123
00:52:16.268 --> 00:52:18.453
a house arrest would have to be,
1124
00:52:20.260 --> 00:52:21.930
with detention, he'd be under house arrest.
1125
00:52:21.930 --> 00:52:24.300
Basically he would be, I guess he'd be quarantined anyway
1126
00:52:24.300 --> 00:52:26.730
for at least 14 days, so he should be under some type
1127
00:52:26.730 --> 00:52:31.420
of provision to enforce the quarantine, correct?
1128
00:52:31.420 --> 00:52:33.110
I would,
1129
00:52:33.110 --> 00:52:34.240
certainly, I think that would make sense,
1130
00:52:34.240 --> 00:52:35.890
Your Honor, and I know that that's been
1131
00:52:35.890 --> 00:52:37.870
on some bail reviews, what we've been hearing coming out
1132
00:52:37.870 --> 00:52:41.600
of some courts, is where GPS would not need,
1133
00:52:41.600 --> 00:52:43.650
the conditions set out in OE 144,
1134
00:52:43.650 --> 00:52:46.410
courts have been ordering home confinement without GPS.
1135
00:52:46.410 --> 00:52:47.570
So I think it would be something
1136
00:52:47.570 --> 00:52:50.417
that would be in line with what courts are already doing.
1137
00:52:50.417 --> 00:52:52.170
[Chief Justice Gants] Okay, I have no further questions.
1138
00:52:52.170 --> 00:52:53.960
Anybody else have any questions?
1139
00:52:53.960 --> 00:52:55.636
No, thank you, Chief.
1140
00:52:55.636 --> 00:52:56.890
[Chief Justice Gants] Mr. Lowy>
1141
00:52:56.890 --> 00:52:57.723
No, thank you.
1142
00:52:57.723 --> 00:52:58.782
[Chief Justice Gants] Justice Budd?
1143
00:52:58.782 --> 00:52:59.945
No, thank you.
1144
00:52:59.945 --> 00:53:01.690
[Chief Justice Gants] Justice Cypher?
1145
00:53:01.690 --> 00:53:02.834
No, thank you.
1146
00:53:02.834 --> 00:53:04.040
[Chief Justice Gants] Justice Kafker?
1147
00:53:04.040 --> 00:53:04.991
Nope, no.
1148
00:53:04.991 --> 00:53:06.760
[Chief Justice Gants] Okay, now, Mr. O'Sullivan,
1149
00:53:06.760 --> 00:53:08.260
on behalf of the Commonwealth.
1150
00:53:09.800 --> 00:53:11.220
Good afternoon, Your Honor,
1151
00:53:11.220 --> 00:53:13.790
and David O'Sullivan for the Commonwealth.
1152
00:53:13.790 --> 00:53:16.483
May it please the court, I will be briefed,
1153
00:53:17.400 --> 00:53:19.600
the lower court did not abuse its discretion
1154
00:53:19.600 --> 00:53:22.530
in denying release, largely because the court,
1155
00:53:22.530 --> 00:53:24.450
at that point, lacked sufficient information
1156
00:53:24.450 --> 00:53:26.340
to make key determinations as
1157
00:53:26.340 --> 00:53:28.220
to whether release was consistent with first,
1158
00:53:28.220 --> 00:53:30.980
public safety, second, public health,
1159
00:53:30.980 --> 00:53:34.290
and third, the defendant's own health and safety.
1160
00:53:34.290 --> 00:53:37.490
I'll note, at the beginning, that this is the first,
1161
00:53:37.490 --> 00:53:38.620
obviously, we're hearing,
1162
00:53:38.620 --> 00:53:41.740
of the defendant's actual release plans,
1163
00:53:41.740 --> 00:53:46.740
insofar as we've just now learned with whom he will stay.
1164
00:53:47.210 --> 00:53:49.320
We don't have the name or the address,
1165
00:53:49.320 --> 00:53:53.560
and obviously, these are things that Probation would need
1166
00:53:53.560 --> 00:53:57.160
to verify, in order to assure that conditions
1167
00:53:57.160 --> 00:54:00.260
of probation, especially including the condition
1168
00:54:00.260 --> 00:54:03.720
of no contact with children, could be
1169
00:54:05.380 --> 00:54:08.650
meaningfully enforced, or we would have some sense
1170
00:54:08.650 --> 00:54:13.500
that that condition was being met in a verifiable way.
1171
00:54:13.500 --> 00:54:16.450
And that, obviously, the case arises
1172
00:54:16.450 --> 00:54:20.060
in a context, and the context is,
1173
00:54:20.060 --> 00:54:23.750
obviously serious crimes against a 12-year-old boy,
1174
00:54:23.750 --> 00:54:25.900
which I take my brother's point,
1175
00:54:25.900 --> 00:54:29.403
that he has no prior criminal record
1176
00:54:30.550 --> 00:54:32.750
or post record.
1177
00:54:32.750 --> 00:54:34.730
These were indicted together and resulted
1178
00:54:34.730 --> 00:54:37.770
in one group of convictions, but they occurred over a period
1179
00:54:37.770 --> 00:54:41.200
of months, during a summer in 2005.
1180
00:54:41.200 --> 00:54:43.410
So it does not appropriately characterize
1181
00:54:43.410 --> 00:54:46.310
as a one-time lapse in judgment, insofar as
1182
00:54:47.250 --> 00:54:50.640
that was the implication, but rather,
1183
00:54:50.640 --> 00:54:53.280
was a pattern of gravely serious criminal conduct
1184
00:54:53.280 --> 00:54:54.520
against a child.
1185
00:54:54.520 --> 00:54:58.170
And in that context, a condition of no contact
1186
00:54:58.170 --> 00:55:01.820
with children was essential to the mission
1187
00:55:01.820 --> 00:55:05.490
of probation, to ensure against recidivism.
1188
00:55:05.490 --> 00:55:08.230
And in the context, in the current context,
1189
00:55:08.230 --> 00:55:09.440
and I don't suggest this is
1190
00:55:09.440 --> 00:55:11.760
necessarily the petitioner's fault,
1191
00:55:11.760 --> 00:55:15.460
there would be no meaningful way to enforce that condition.
1192
00:55:15.460 --> 00:55:18.590
We would really be just accepting his word,
1193
00:55:18.590 --> 00:55:23.080
that those were the conditions of his home,
1194
00:55:23.080 --> 00:55:25.513
of the home where he would be released to.
1195
00:55:27.280 --> 00:55:28.370
There would be no GPS,
1196
00:55:28.370 --> 00:55:30.513
there would be no confirmatory home visit.
1197
00:55:31.360 --> 00:55:36.050
So that is one point, with respect to public safety.
1198
00:55:36.050 --> 00:55:39.270
The other would be that this immediate release
1199
00:55:39.270 --> 00:55:41.090
would override the normal process
1200
00:55:41.090 --> 00:55:45.430
that is intended to release of potential STPs,
1201
00:55:45.430 --> 00:55:50.430
and the court is aware the defendant's convictions
1202
00:55:50.460 --> 00:55:53.250
and the fact that he's incarcerated
1203
00:55:53.250 --> 00:55:56.580
at the present time qualifies him
1204
00:55:56.580 --> 00:55:59.400
for potential evaluation as a sexually dangerous person.
1205
00:55:59.400 --> 00:56:02.020
And this office is entitled, six months prior
1206
00:56:02.020 --> 00:56:04.300
to his release, to notification
1207
00:56:04.300 --> 00:56:08.420
by the custodial authority about his impending release.
1208
00:56:08.420 --> 00:56:11.410
We have not even received that notice yet
1209
00:56:11.410 --> 00:56:14.610
from the MTC about his upcoming release,
1210
00:56:14.610 --> 00:56:16.270
which I concur with my brother,
1211
00:56:16.270 --> 00:56:19.110
that we believe it would be in mid September,
1212
00:56:19.110 --> 00:56:22.933
I believe, the actual date is September 15th.
1213
00:56:23.970 --> 00:56:26.880
That would be with maximum good time credit,
1214
00:56:26.880 --> 00:56:29.623
that would be his potential release date.
1215
00:56:31.080 --> 00:56:33.660
So it would override entirely that process,
1216
00:56:33.660 --> 00:56:37.160
and essentially prevent us from engaging
1217
00:56:37.160 --> 00:56:38.780
in that the review that's supposed
1218
00:56:38.780 --> 00:56:40.860
to occur under the statute.
1219
00:56:40.860 --> 00:56:45.330
And it's not merely a notice, the notice is supposed
1220
00:56:45.330 --> 00:56:47.530
to be accompanied by information
1221
00:56:47.530 --> 00:56:51.030
from the custodial authority about those who,
1222
00:56:51.030 --> 00:56:53.570
the custodial authority believes have a
1223
00:56:53.570 --> 00:56:56.280
particularly high likelihood of being the criteria
1224
00:56:56.280 --> 00:56:57.650
for a sexually dangerous person.
1225
00:56:57.650 --> 00:57:01.890
Obviously, as set forth in the presentations of the DOC
1226
00:57:01.890 --> 00:57:04.640
and the sheriff, it's very clear
1227
00:57:04.640 --> 00:57:08.250
that they have information from daily contact
1228
00:57:08.250 --> 00:57:11.330
with the defendant that we lack.
1229
00:57:11.330 --> 00:57:15.330
And our offices rely on information like that
1230
00:57:15.330 --> 00:57:17.363
in making SDP determinations.
1231
00:57:18.610 --> 00:57:23.610
Now, with respect to the nature of the probation violations,
1232
00:57:24.340 --> 00:57:26.050
I recognize that they are technical,
1233
00:57:26.050 --> 00:57:30.110
in the sense that they don't allege new criminal offenses.
1234
00:57:30.110 --> 00:57:30.970
But I would
1235
00:57:32.100 --> 00:57:35.550
refer back to what Judge Rieger found, which was,
1236
00:57:35.550 --> 00:57:38.687
and I quote, "A dismal pattern of non compliance
1237
00:57:38.687 --> 00:57:41.110
"with probationary conditions."
1238
00:57:41.110 --> 00:57:45.280
So that is another piece of necessary context here.
1239
00:57:45.280 --> 00:57:47.470
What we have is not only the failure
1240
00:57:47.470 --> 00:57:49.180
to attend the probation meetings,
1241
00:57:49.180 --> 00:57:51.180
failure to attend the restrap,
1242
00:57:52.150 --> 00:57:54.640
but there's essentially the pattern
1243
00:57:54.640 --> 00:57:58.550
of non attendance to the sex offender treatment visits.
1244
00:57:58.550 --> 00:58:02.202
And I appreciate that my brother has explanations
1245
00:58:02.202 --> 00:58:04.860
that he has proffered, but those were proffered
1246
00:58:04.860 --> 00:58:06.970
in front of the judge who violated
1247
00:58:06.970 --> 00:58:10.880
and ultimately sentenced him to one to two years, and those,
1248
00:58:10.880 --> 00:58:13.970
to me, sound a lot like credibility determinations
1249
00:58:13.970 --> 00:58:17.360
of a judge who is making them
1250
00:58:18.240 --> 00:58:20.800
with the information that is before her.
1251
00:58:20.800 --> 00:58:24.150
So it's not clear that
1252
00:58:24.150 --> 00:58:27.800
the argument about willfulness will ultimately prevail.
1253
00:58:27.800 --> 00:58:30.410
But even if we were to grant that,
1254
00:58:30.410 --> 00:58:33.373
in the context of a stay, he could make that first prong,
1255
00:58:34.522 --> 00:58:38.970
now Justice Ditkoff and, in another
1256
00:58:38.970 --> 00:58:42.530
sort of dimension, Justice Tosca had ruled
1257
00:58:42.530 --> 00:58:46.240
that his release would not be consistent with public safety.
1258
00:58:46.240 --> 00:58:49.360
Of course, Justice Ditkoff was focused
1259
00:58:49.360 --> 00:58:52.810
on the possibility of recidivism.
1260
00:58:52.810 --> 00:58:55.970
And Justice Tosca, I think,
1261
00:58:55.970 --> 00:58:58.940
appropriately considered something
1262
00:58:58.940 --> 00:59:01.560
that is really not the defendant's fault,
1263
00:59:01.560 --> 00:59:03.910
but is, nonetheless, a valid consideration as
1264
00:59:03.910 --> 00:59:06.060
to public safety when he's released.
1265
00:59:06.060 --> 00:59:07.850
And this gets to that second piece,
1266
00:59:07.850 --> 00:59:09.043
which is public health.
1267
00:59:10.010 --> 00:59:10.873
Obviously,
1268
00:59:12.118 --> 00:59:14.600
as put by one of my brothers,
1269
00:59:14.600 --> 00:59:18.770
the Assistant Attorney General, we must be pretty sure
1270
00:59:18.770 --> 00:59:22.650
that release would do more good than harm.
1271
00:59:22.650 --> 00:59:24.950
Here, we have someone who'd be leaving an institution
1272
00:59:24.950 --> 00:59:28.330
which has the clearest outbreak, unfortunately,
1273
00:59:28.330 --> 00:59:31.060
of all of them, and what is clear
1274
00:59:31.060 --> 00:59:33.340
from all the public health experts that have weighed in,
1275
00:59:33.340 --> 00:59:35.550
and I would direct the court's attention particularly
1276
00:59:35.550 --> 00:59:39.440
to the affidavit of Daniel Tsai,
1277
00:59:39.440 --> 00:59:42.183
who is Secretary,
1278
00:59:43.178 --> 00:59:46.150
Deputy Secretary of Health and Human Services,
1279
00:59:46.150 --> 00:59:48.320
that what would be appropriate upon his release
1280
00:59:48.320 --> 00:59:50.180
from this institution, at the very least,
1281
00:59:50.180 --> 00:59:53.180
is a screening, if not an outright test.
1282
00:59:53.180 --> 00:59:56.040
And I appreciate the practical considerations raised
1283
00:59:56.040 --> 01:00:00.130
in the Middlesex presentation regarding the lag time
1284
01:00:00.130 --> 01:00:02.780
between any test and the results of it.
1285
01:00:02.780 --> 01:00:04.910
But at the very minimum, a screening,
1286
01:00:04.910 --> 01:00:09.000
and then if he is found to be symptomatic,
1287
01:00:09.000 --> 01:00:13.100
he should be held until he's confirmed.
1288
01:00:13.100 --> 01:00:15.173
And then even further,
1289
01:00:19.210 --> 01:00:24.070
that person has been, will need to make adequate provision
1290
01:00:24.070 --> 01:00:26.240
for quarantine, and again, we're hearing
1291
01:00:26.240 --> 01:00:28.097
for the first time what the plans are.
1292
01:00:28.097 --> 01:00:32.900
And we appreciate that counsel has found someone,
1293
01:00:32.900 --> 01:00:35.203
or the defendant has someone that would house him,
1294
01:00:35.203 --> 01:00:38.270
and that's found appropriate.
1295
01:00:38.270 --> 01:00:41.720
But there are sort of two competing considerations here,
1296
01:00:41.720 --> 01:00:44.275
and that is, as Justice Kafker put it,
1297
01:00:44.275 --> 01:00:47.220
healthcare workers are on the front lines
1298
01:00:48.713 --> 01:00:51.920
of this epidemic, and we know that they are,
1299
01:00:51.920 --> 01:00:54.810
unfortunately, testing positive in the highest numbers
1300
01:00:54.810 --> 01:00:56.610
of all professions.
1301
01:00:56.610 --> 01:00:59.290
And so whether Mr. Christie would be more safe
1302
01:00:59.290 --> 01:01:02.030
in that environment is unclear,
1303
01:01:02.030 --> 01:01:07.030
without some verification of what my brother is saying
1304
01:01:07.100 --> 01:01:12.100
through, as far as he has been able to confirm things.
1305
01:01:13.320 --> 01:01:14.480
So,
1306
01:01:14.480 --> 01:01:18.810
and then finally, the defendant's own health and safety.
1307
01:01:18.810 --> 01:01:20.140
It's certainly true that
1308
01:01:23.830 --> 01:01:27.450
the advocates and my brother have done yeoman's work
1309
01:01:27.450 --> 01:01:29.440
in attempting to arrange for the availability
1310
01:01:29.440 --> 01:01:32.290
of support, both medical and psychological,
1311
01:01:32.290 --> 01:01:35.260
on the outside, were Mr. Christie to be released.
1312
01:01:35.260 --> 01:01:36.850
And we can all agree on one thing,
1313
01:01:36.850 --> 01:01:39.900
is that Mr. Christie is medically involved
1314
01:01:39.900 --> 01:01:41.800
and he is psychologically involved,
1315
01:01:41.800 --> 01:01:43.800
and he needs significant support.
1316
01:01:43.800 --> 01:01:45.600
And they have done yeoman's work
1317
01:01:45.600 --> 01:01:48.100
in attempting to arrange for those supports.
1318
01:01:48.100 --> 01:01:50.470
But in the current environment,
1319
01:01:50.470 --> 01:01:54.440
through the fault of no one, these can remain mere hopes
1320
01:01:54.440 --> 01:01:57.559
and beliefs and expectations at this point.
1321
01:01:57.559 --> 01:02:00.920
And the fact is that this situation changes by the hour,
1322
01:02:00.920 --> 01:02:02.190
and there could be no guarantees
1323
01:02:02.190 --> 01:02:04.640
about the actual availability of the necessities,
1324
01:02:05.560 --> 01:02:07.960
necessary support on the outside.
1325
01:02:07.960 --> 01:02:11.940
And I would note that with respect to the back surgery
1326
01:02:11.940 --> 01:02:15.440
that I hope Mr. Christie gets sooner than later,
1327
01:02:15.440 --> 01:02:20.440
the appointment was made and kept by the DOC on March 11th.
1328
01:02:20.910 --> 01:02:23.160
So at least we know, while he's in the DOC,
1329
01:02:23.160 --> 01:02:25.990
he is getting to his appointments,
1330
01:02:25.990 --> 01:02:27.683
he is making his appointments.
1331
01:02:29.780 --> 01:02:31.100
By all accounts, it appears
1332
01:02:31.100 --> 01:02:33.413
that that surgery is now postponed.
1333
01:02:34.460 --> 01:02:35.293
But
1334
01:02:37.070 --> 01:02:39.940
at least we know he has some level of care
1335
01:02:42.012 --> 01:02:43.950
in that facility.
1336
01:02:43.950 --> 01:02:48.120
And obviously, as set forth by the Parole Board
1337
01:02:48.120 --> 01:02:50.550
and I think the DOC in the last six months,
1338
01:02:50.550 --> 01:02:53.670
there is a
1339
01:02:53.670 --> 01:02:57.950
release procedure, whereby we secure people health insurance
1340
01:02:57.950 --> 01:03:01.990
and we put those supports together.
1341
01:03:01.990 --> 01:03:05.230
And I'm not convinced that the judge was wrong
1342
01:03:05.230 --> 01:03:07.740
in determining that it's not clear
1343
01:03:07.740 --> 01:03:12.740
that this would benefit him more than potentially hurt him
1344
01:03:13.550 --> 01:03:17.250
at this stage, given all we know.
1345
01:03:17.250 --> 01:03:19.573
So with that, I will open it up to questions.
1346
01:03:21.404 --> 01:03:23.110
[Chief Justice Gants] Justice Gaziano?
1347
01:03:23.110 --> 01:03:25.170
Yes, it seems just
1348
01:03:26.630 --> 01:03:29.340
a bit odd to say that
1349
01:03:29.340 --> 01:03:32.360
if all things being equal, and someone were eligible
1350
01:03:32.360 --> 01:03:36.100
to be released, we would not release him
1351
01:03:36.100 --> 01:03:37.770
if he was in the treatment center
1352
01:03:37.770 --> 01:03:39.070
because that's the center.
1353
01:03:39.070 --> 01:03:42.610
So we're gonna have to basically make that an island.
1354
01:03:42.610 --> 01:03:44.470
I mean, I assume that you didn't mean it
1355
01:03:44.470 --> 01:03:45.823
to come off that way.
1356
01:03:46.900 --> 01:03:47.733
No, well, I--
1357
01:03:47.733 --> 01:03:48.566
That once you're
1358
01:03:48.566 --> 01:03:51.650
in the treatment center, that you're gonna stay there
1359
01:03:51.650 --> 01:03:54.043
because that's where the infected people are.
1360
01:03:55.687 --> 01:03:58.210
And the other part, the other side of that coin was
1361
01:03:58.210 --> 01:04:01.870
that we're to presume that the state knows more
1362
01:04:02.840 --> 01:04:04.350
about this person's health
1363
01:04:05.438 --> 01:04:09.273
and what's best for him than the person does.
1364
01:04:11.140 --> 01:04:12.550
Yeah, I don't
1365
01:04:13.510 --> 01:04:17.650
necessarily presume that, I just know what we know
1366
01:04:17.650 --> 01:04:19.910
with regard to the care he's receiving right now,
1367
01:04:19.910 --> 01:04:22.110
and I don't mean to suggest that anyone who's
1368
01:04:22.110 --> 01:04:25.030
in the MTC must necessarily stay there.
1369
01:04:25.030 --> 01:04:28.500
But I mean to suggest that someone as medically involved
1370
01:04:28.500 --> 01:04:31.890
as him needs a very solid release plan
1371
01:04:31.890 --> 01:04:33.543
and very solid supports,
1372
01:04:34.920 --> 01:04:37.710
particularly for someone who's wheelchair bound.
1373
01:04:37.710 --> 01:04:40.760
And also significant supports for public safety
1374
01:04:40.760 --> 01:04:43.063
that would ensure against his,
1375
01:04:44.040 --> 01:04:45.700
the potential for recidivism.
1376
01:04:45.700 --> 01:04:46.850
And of course, his last
1377
01:04:49.532 --> 01:04:52.340
SORB classification was level three.
1378
01:04:52.340 --> 01:04:55.910
I don't know if that would change upon his release,
1379
01:04:55.910 --> 01:04:58.190
but at least that was the last assessment
1380
01:04:58.190 --> 01:05:00.813
of his likelihood of recidivism.
1381
01:05:01.960 --> 01:05:04.555
Okay, and no further questions, Chief.
1382
01:05:04.555 --> 01:05:06.320
[Chief Justice Gants] All right, Justice Lowy?
1383
01:05:06.320 --> 01:05:08.440
Mr. O'Sullivan,
1384
01:05:08.440 --> 01:05:10.760
you mentioned the standard review
1385
01:05:10.760 --> 01:05:14.070
of abuse of discretion, so your view is,
1386
01:05:14.070 --> 01:05:17.723
as it relates to the security danger prong,
1387
01:05:18.910 --> 01:05:22.693
that as it relates to Judge Tosca,
1388
01:05:24.280 --> 01:05:26.280
it would be an abuse of discretion.
1389
01:05:26.280 --> 01:05:30.330
And then as to Judge Ditkoff, of course,
1390
01:05:30.330 --> 01:05:34.203
they analyze different parts of danger and security.
1391
01:05:37.140 --> 01:05:39.870
Yeah, I think that's correct, Your Honor.
1392
01:05:39.870 --> 01:05:44.870
I think we would look at Judge Tosca's effective denial
1393
01:05:45.220 --> 01:05:46.370
of a stay motion.
1394
01:05:46.370 --> 01:05:49.650
Of course, the petitioners sought two kinds
1395
01:05:49.650 --> 01:05:51.360
of release below, and on the one hand,
1396
01:05:51.360 --> 01:05:54.573
he sought to have his sentence,
1397
01:05:55.570 --> 01:05:58.830
the incarcerative portion of his sentence deemed served,
1398
01:05:58.830 --> 01:06:00.870
and for him to be immediately released,
1399
01:06:00.870 --> 01:06:03.360
and of course, Judge Tosca questioned
1400
01:06:03.360 --> 01:06:05.760
whether he had legal authority to do that.
1401
01:06:05.760 --> 01:06:09.523
Of course, this being well outside rule 29 territory,
1402
01:06:09.523 --> 01:06:13.670
and given the absence of any statute or other rule
1403
01:06:13.670 --> 01:06:17.763
or case law that would permit any such thing to happen,
1404
01:06:19.337 --> 01:06:23.740
he also considered it effectively as a stay,
1405
01:06:23.740 --> 01:06:28.220
but referred back to Judge Ditkoff's denial of the stay,
1406
01:06:28.220 --> 01:06:30.060
and essentially, at least implicitly,
1407
01:06:30.060 --> 01:06:31.773
adopted the reasoning of that.
1408
01:06:32.890 --> 01:06:36.410
So I think the best way to read his decision is
1409
01:06:36.410 --> 01:06:38.980
he viewed himself as having legal authority
1410
01:06:38.980 --> 01:06:41.900
to act on a stay motion, but he just declined
1411
01:06:41.900 --> 01:06:45.210
to issue a stay, and essentially,
1412
01:06:45.210 --> 01:06:47.760
at least implicitly adopted the reasoning
1413
01:06:47.760 --> 01:06:51.563
of Justice Ditkoff, which, again, concerned public safety.
1414
01:06:52.720 --> 01:06:54.030
Is it something
1415
01:06:54.030 --> 01:06:56.390
that we should be considering,
1416
01:06:56.390 --> 01:07:00.350
that he would be moving in with somebody
1417
01:07:00.350 --> 01:07:05.260
in healthcare area, and that if he is, in fact,
1418
01:07:07.637 --> 01:07:12.637
has COVID-19, that she would be working double shifts
1419
01:07:12.730 --> 01:07:16.480
and bringing that to the healthcare facility with her?
1420
01:07:16.480 --> 01:07:18.570
If that's not necessarily the case,
1421
01:07:18.570 --> 01:07:21.590
we don't know anything about her work,
1422
01:07:21.590 --> 01:07:25.670
other than she's a healthcare worker doing double shifts.
1423
01:07:25.670 --> 01:07:29.343
But is that something we should really, at least, know?
1424
01:07:31.280 --> 01:07:34.660
I think it is definitely in the mix,
1425
01:07:34.660 --> 01:07:38.020
Your Honor, again, what my brother has represented,
1426
01:07:38.020 --> 01:07:40.160
but we're hearing this for the first time is
1427
01:07:40.160 --> 01:07:44.820
that she would provide for adequate quarantine sort
1428
01:07:44.820 --> 01:07:48.256
of situation there.
1429
01:07:48.256 --> 01:07:52.560
If that is true, and in any sort of normal living situation,
1430
01:07:52.560 --> 01:07:55.200
that is very difficult when you're not living alone,
1431
01:07:55.200 --> 01:07:57.230
when you're sharing a home with somebody.
1432
01:07:57.230 --> 01:07:58.880
I don't think that is the sort
1433
01:07:58.880 --> 01:08:03.880
of medically adequate quarantine that is contemplated
1434
01:08:04.140 --> 01:08:07.190
by the health experts that had weighed in here.
1435
01:08:07.190 --> 01:08:11.220
And I don't, if it's locking him in his room,
1436
01:08:11.220 --> 01:08:13.820
he's still gonna be using the same facilities,
1437
01:08:13.820 --> 01:08:17.350
whether it be the kitchen and or the bathroom.
1438
01:08:17.350 --> 01:08:19.569
I didn't hear that there's a separate apartment
1439
01:08:19.569 --> 01:08:23.110
in which he could stay that would, for 14 days,
1440
01:08:23.110 --> 01:08:25.250
really seal him off from everybody,
1441
01:08:25.250 --> 01:08:28.850
which seems like the best public health course
1442
01:08:28.850 --> 01:08:30.050
to take at this point.
1443
01:08:30.050 --> 01:08:34.467
But whether he may bring that in and infect her,
1444
01:08:34.467 --> 01:08:37.250
and in that context, whether he may bring
1445
01:08:37.250 --> 01:08:39.640
in COVID-19, infect her,
1446
01:08:39.640 --> 01:08:44.040
and thereby endanger her patients is a valid consideration.
1447
01:08:44.040 --> 01:08:46.223
And I think this is all in the mix.
1448
01:08:46.223 --> 01:08:47.940
And the need, and it highlights the need
1449
01:08:47.940 --> 01:08:50.540
for really detailed release plans
1450
01:08:51.610 --> 01:08:54.563
for someone in this particular circumstance.
1451
01:08:55.400 --> 01:08:57.192
That's all I have, Chief, thank you.
1452
01:08:57.192 --> 01:08:58.912
[Chief Justice Gants] All right, Justice Budd?
1453
01:08:58.912 --> 01:09:01.180
Yeah.
1454
01:09:01.180 --> 01:09:05.830
So just with regard to the abuse of discretion standard
1455
01:09:05.830 --> 01:09:08.023
of review, if that's what we're to use,
1456
01:09:08.930 --> 01:09:13.780
where, if at all, does the change in circumstances just,
1457
01:09:13.780 --> 01:09:18.000
how quickly things have changed since the time
1458
01:09:18.000 --> 01:09:19.850
that those decisions were made,
1459
01:09:19.850 --> 01:09:23.043
how does that impact the analysis, if at all?
1460
01:09:26.400 --> 01:09:28.890
Well, I think that
1461
01:09:30.910 --> 01:09:34.319
to talk about additional positive tests,
1462
01:09:34.319 --> 01:09:37.390
is that what Your Honor was referring to?
1463
01:09:37.390 --> 01:09:40.593
Yeah, I think the first time he,
1464
01:09:42.250 --> 01:09:44.610
I can't remember exactly the,
1465
01:09:44.610 --> 01:09:46.430
whether there were any, I don't know
1466
01:09:46.430 --> 01:09:51.290
that there were any cases when he first moved,
1467
01:09:51.290 --> 01:09:55.150
and then it just steadily began to rise,
1468
01:09:55.150 --> 01:09:58.030
and it just seems like it will continue to,
1469
01:09:58.030 --> 01:10:00.613
because that's what goes on.
1470
01:10:01.560 --> 01:10:04.900
So yeah, that's what I'm talking about.
1471
01:10:04.900 --> 01:10:07.080
Yeah, well, I would just note
1472
01:10:07.080 --> 01:10:12.080
at the outset that obviously any new test is concerning,
1473
01:10:13.010 --> 01:10:14.313
and here,
1474
01:10:15.780 --> 01:10:19.483
in the particular case on March 24th,
1475
01:10:19.483 --> 01:10:21.550
when he filed his emergency petition
1476
01:10:21.550 --> 01:10:25.410
to renew the two 11 three in front of Your Honor,
1477
01:10:25.410 --> 01:10:27.783
there were four positive cases.
1478
01:10:29.170 --> 01:10:32.510
And two days later,
1479
01:10:32.510 --> 01:10:35.970
when you reserved and reported the decision,
1480
01:10:35.970 --> 01:10:39.150
Justice Budd, there were 11 positive cases.
1481
01:10:39.150 --> 01:10:42.653
So that's an increase of seven over two days.
1482
01:10:43.510 --> 01:10:45.770
The current, and I got an email this morning
1483
01:10:45.770 --> 01:10:47.870
and it's now been confirmed in the hearing
1484
01:10:49.450 --> 01:10:51.440
by the DOC,
1485
01:10:51.440 --> 01:10:53.100
is that
1486
01:10:53.100 --> 01:10:53.933
between
1487
01:10:55.371 --> 01:10:59.140
that day, which is March 26th and today,
1488
01:10:59.140 --> 01:11:02.423
March 31st, five or six more days,
1489
01:11:03.310 --> 01:11:07.630
five more days, there's 17 positive inmates,
1490
01:11:07.630 --> 01:11:10.210
so that's six more over five days.
1491
01:11:10.210 --> 01:11:14.520
So that is, of course, we don't like any new tests.
1492
01:11:14.520 --> 01:11:18.120
But that represents a rate of increase
1493
01:11:18.120 --> 01:11:23.120
that is lessening, and so that is potentially a hopeful sign
1494
01:11:23.330 --> 01:11:28.330
in that respect, but of course, any new test is concerning.
1495
01:11:29.920 --> 01:11:32.620
It was also somewhat encouraging to hear
1496
01:11:32.620 --> 01:11:36.050
that those who have the new test, that have tested positive,
1497
01:11:36.050 --> 01:11:41.050
that is six more since March 26th,
1498
01:11:41.170 --> 01:11:43.380
were people who were already quarantined,
1499
01:11:43.380 --> 01:11:46.000
and presumably, they were in the cohort of people who were
1500
01:11:46.000 --> 01:11:48.960
in contact with the first positive tests.
1501
01:11:48.960 --> 01:11:51.590
So those people were already set aside.
1502
01:11:51.590 --> 01:11:55.322
So this is some indication that the extraordinary measures
1503
01:11:55.322 --> 01:11:58.220
that the DOC is taking
1504
01:11:58.220 --> 01:12:00.870
are hopefully helping to curb
1505
01:12:00.870 --> 01:12:05.870
what could conceivably be a terrible situation in there.
1506
01:12:06.100 --> 01:12:10.550
So that is something to note, at the outset.
1507
01:12:10.550 --> 01:12:14.510
But obviously, the situation on the ground,
1508
01:12:14.510 --> 01:12:16.540
at the particular institution where they are,
1509
01:12:16.540 --> 01:12:19.670
is something that the judge should be able to consider
1510
01:12:19.670 --> 01:12:23.160
in exercising discretion, and that could change
1511
01:12:24.060 --> 01:12:25.900
from minute to minute.
1512
01:12:25.900 --> 01:12:26.733
But
1513
01:12:27.670 --> 01:12:30.660
is it possible for him to renew this motion
1514
01:12:30.660 --> 01:12:34.350
before Judge Tosca or another judge in the Superior Court?
1515
01:12:34.350 --> 01:12:39.150
Yes, with more information, they may make another case.
1516
01:12:39.150 --> 01:12:43.393
And frankly, allow the judge to evaluate any release plans,
1517
01:12:44.670 --> 01:12:49.000
and whether it comports with the, I would suggest,
1518
01:12:49.000 --> 01:12:52.640
are not insignificant public safety concerns here
1519
01:12:52.640 --> 01:12:55.670
and public health concerns, and concerns
1520
01:12:55.670 --> 01:12:57.770
for the defendant's own health and safety.
1521
01:12:58.650 --> 01:13:00.230
Has there been any discussion
1522
01:13:00.230 --> 01:13:01.860
between the parties
1523
01:13:01.860 --> 01:13:06.430
about whether this was potentially possible, or
1524
01:13:08.381 --> 01:13:11.003
was it the DOC's position that, no,
1525
01:13:11.003 --> 01:13:13.313
that's not gonna happen here?
1526
01:13:17.630 --> 01:13:20.390
I'm sorry, Your Honor, that what, his release?
1527
01:13:20.390 --> 01:13:22.220
Yeah, I mean, did you ever have,
1528
01:13:22.220 --> 01:13:24.560
did you guys ever have any conversation about
1529
01:13:24.560 --> 01:13:29.560
whether this was a possibility, or was your position always
1530
01:13:29.710 --> 01:13:33.123
that this would not be a good idea?
1531
01:13:34.300 --> 01:13:36.810
Well, we didn't have the information
1532
01:13:36.810 --> 01:13:40.301
that we have just received, which is,
1533
01:13:40.301 --> 01:13:42.680
that was key information that we lacked
1534
01:13:42.680 --> 01:13:45.760
that was clear in all the pleadings from our office
1535
01:13:45.760 --> 01:13:48.730
and all the pleadings from the probation service
1536
01:13:48.730 --> 01:13:49.730
from the outset, which is
1537
01:13:49.730 --> 01:13:52.600
that we don't have perhaps the key piece
1538
01:13:52.600 --> 01:13:55.900
of information you need to evaluate the safety
1539
01:13:55.900 --> 01:13:59.120
of a release plan, which is, where are you gonna stay?
1540
01:13:59.120 --> 01:13:59.953
So
1541
01:14:01.580 --> 01:14:04.760
in answer to your question, whether we've had conversations
1542
01:14:04.760 --> 01:14:08.570
with counsel or the DOC, we've communicated somewhat
1543
01:14:08.570 --> 01:14:10.160
through our pleadings about our concerns
1544
01:14:10.160 --> 01:14:11.013
about the release plan--
1545
01:14:11.013 --> 01:14:14.640
Right, I know, I understand, I guess
1546
01:14:14.640 --> 01:14:18.340
my point is, now you have more information.
1547
01:14:18.340 --> 01:14:22.780
And is it now a possibility that if some
1548
01:14:22.780 --> 01:14:24.760
of these details were nailed down
1549
01:14:24.760 --> 01:14:29.760
and Probation was comfortable with the living situation,
1550
01:14:30.170 --> 01:14:32.673
is it something that the parties could come together
1551
01:14:32.673 --> 01:14:34.633
in some sort of agreement about?
1552
01:14:36.820 --> 01:14:39.850
That is possible, if, again,
1553
01:14:39.850 --> 01:14:44.130
but conditions of probation with no meaningful means
1554
01:14:44.130 --> 01:14:46.960
of enforcement amount to no conditions.
1555
01:14:46.960 --> 01:14:49.810
And that would essentially flout the order
1556
01:14:49.810 --> 01:14:52.760
that the sentencing judge gave.
1557
01:14:52.760 --> 01:14:55.563
So with that in mind, of course,
1558
01:14:55.563 --> 01:15:00.540
if we are presented with, we don't want to put Mr. Christie
1559
01:15:00.540 --> 01:15:05.150
at unnecessary risk, if there's a parole plan,
1560
01:15:05.150 --> 01:15:08.103
and, rather, a release plan that makes sense,
1561
01:15:09.220 --> 01:15:10.930
it's certainly possible.
1562
01:15:10.930 --> 01:15:15.220
And we have, in other cases, agreed to release.
1563
01:15:15.220 --> 01:15:19.730
So yes, in answer to your question, in short, yes.
1564
01:15:19.730 --> 01:15:21.180
Okay, yeah, the only,
1565
01:15:21.180 --> 01:15:25.030
and I ask, because, again, we genuinely want
1566
01:15:25.030 --> 01:15:28.080
to have a sense of whether there's some bend here.
1567
01:15:28.080 --> 01:15:30.490
But also, you keep saying that
1568
01:15:32.040 --> 01:15:34.410
he'll have no conditions, well, but that's the case
1569
01:15:34.410 --> 01:15:36.230
for every probationer out there right now.
1570
01:15:36.230 --> 01:15:39.140
I mean, the problem is we've got, we're only here,
1571
01:15:39.140 --> 01:15:40.540
we're only talking here,
1572
01:15:40.540 --> 01:15:43.550
we're only having this hearing telephonically
1573
01:15:43.550 --> 01:15:46.540
because of the pandemic.
1574
01:15:46.540 --> 01:15:49.500
And so I'm just thinking, there are,
1575
01:15:49.500 --> 01:15:51.400
these are extraordinary times,
1576
01:15:51.400 --> 01:15:54.220
and we're just all here trying
1577
01:15:54.220 --> 01:15:56.840
to figure out how to handle them.
1578
01:15:56.840 --> 01:15:58.490
And so
1579
01:15:58.490 --> 01:16:00.660
I understand that it's important to
1580
01:16:01.763 --> 01:16:04.003
be able to monitor people,
1581
01:16:05.600 --> 01:16:08.652
and in the regular course, that's absolutely
1582
01:16:08.652 --> 01:16:12.060
what I know is done and done very well.
1583
01:16:12.060 --> 01:16:13.860
But I'm just trying to figure out what we do
1584
01:16:13.860 --> 01:16:18.120
in this particular, given these set of circumstances.
1585
01:16:18.120 --> 01:16:21.350
And so that's why I asked about that.
1586
01:16:21.350 --> 01:16:23.023
I've got one more question.
1587
01:16:24.280 --> 01:16:26.080
Is there anything that
1588
01:16:27.390 --> 01:16:31.120
the treatment center has considered doing
1589
01:16:31.120 --> 01:16:34.110
for Mr. Christie, given his particular
1590
01:16:35.700 --> 01:16:36.710
needs and
1591
01:16:37.950 --> 01:16:38.963
vulnerabilities?
1592
01:16:41.960 --> 01:16:46.210
I am not aware of particular things,
1593
01:16:46.210 --> 01:16:49.410
beyond, obviously, making medical appointments for him,
1594
01:16:49.410 --> 01:16:53.200
ensuring he gets medications, and providing him access
1595
01:16:53.200 --> 01:16:55.467
to any needed medical care--
1596
01:16:55.467 --> 01:16:58.440
I mean, sort of keeping him away from,
1597
01:16:58.440 --> 01:17:01.330
keeping him isolated from
1598
01:17:02.530 --> 01:17:04.253
possible exposure and that type of thing.
1599
01:17:04.253 --> 01:17:06.467
You're not aware of that?
1600
01:17:06.467 --> 01:17:08.030
Well, I'm not aware,
1601
01:17:08.030 --> 01:17:10.114
and I'm not aware of whether he's availed himself
1602
01:17:10.114 --> 01:17:13.200
of any sort of internal complaint process
1603
01:17:13.200 --> 01:17:15.260
whereby he might seek something like that.
1604
01:17:15.260 --> 01:17:18.470
I don't know that there, for example,
1605
01:17:18.470 --> 01:17:21.620
in his six man room, whether there aren't people
1606
01:17:21.620 --> 01:17:24.630
who would share medical conditions
1607
01:17:24.630 --> 01:17:27.330
that might make them more vulnerable, too.
1608
01:17:27.330 --> 01:17:28.220
For example, where,
1609
01:17:28.220 --> 01:17:31.710
I just don't know how many people there would be
1610
01:17:31.710 --> 01:17:35.150
in a similar boat, with respect to a medical condition,
1611
01:17:35.150 --> 01:17:38.360
that they could, say, it makes them more vulnerable.
1612
01:17:38.360 --> 01:17:43.010
I think what, the goal of the SAC, or the DOC,
1613
01:17:43.010 --> 01:17:44.910
as made clear in today's hearing,
1614
01:17:44.910 --> 01:17:48.003
was to secure the safety of all their inmates.
1615
01:17:49.470 --> 01:17:52.550
And obviously, there are a lot of people there
1616
01:17:52.550 --> 01:17:54.003
who are medically involved.
1617
01:17:55.860 --> 01:17:56.923
Okay.
1618
01:17:58.590 --> 01:17:59.423
All right.
1619
01:18:01.070 --> 01:18:01.903
Thank you.
1620
01:18:02.904 --> 01:18:04.660
[Chief Justice Gants] Justice Cypher?
1621
01:18:04.660 --> 01:18:07.513
Yes, just one point of clarification.
1622
01:18:08.550 --> 01:18:10.090
On the
1623
01:18:10.090 --> 01:18:12.060
friend who's going to, who said
1624
01:18:12.060 --> 01:18:15.453
that she would take Mr. Christie in for quarantine,
1625
01:18:16.310 --> 01:18:19.940
and he would be quarantined, is that a 14 day quarantine,
1626
01:18:19.940 --> 01:18:23.010
contemplated, to somebody who's exposed,
1627
01:18:23.010 --> 01:18:26.120
or is that a longterm quarantine situation,
1628
01:18:26.120 --> 01:18:27.563
such as we're all under?
1629
01:18:29.010 --> 01:18:31.930
I believe it is a medical quarantine
1630
01:18:31.930 --> 01:18:36.880
that is more sort of strict than what we are all doing,
1631
01:18:36.880 --> 01:18:40.040
and sort of society, I believe.
1632
01:18:40.040 --> 01:18:43.390
And I'd refer to the Daniel Tsai affidavit.
1633
01:18:43.390 --> 01:18:46.950
He may either set that forth himself,
1634
01:18:46.950 --> 01:18:51.950
or refer to CDC or DPH authority that may lay that out.
1635
01:18:52.870 --> 01:18:55.890
But I think more than what we're going through,
1636
01:18:55.890 --> 01:18:58.213
is he really needs to be isolated,
1637
01:18:59.080 --> 01:19:01.320
to the extent possible, so that
1638
01:19:03.150 --> 01:19:06.790
there's some assurance that he is not a carrier.
1639
01:19:06.790 --> 01:19:08.550
Okay, so in other words,
1640
01:19:08.550 --> 01:19:13.360
it'd be a more intense, but shorter medical quarantine,
1641
01:19:13.360 --> 01:19:16.260
and then he'd be in the same position everyone else is in?
1642
01:19:17.480 --> 01:19:19.210
I believe so, Your Honor.
1643
01:19:19.210 --> 01:19:20.270
So in that case,
1644
01:19:20.270 --> 01:19:24.690
my question is, is she still available as a place
1645
01:19:24.690 --> 01:19:28.583
to stay after that more strict medical quarantine?
1646
01:19:29.990 --> 01:19:33.838
That is unclear to the Commonwealth,
1647
01:19:33.838 --> 01:19:35.630
and I don't remember
1648
01:19:36.700 --> 01:19:39.010
whether my brother said whether
1649
01:19:39.010 --> 01:19:42.080
that would be a longterm placement, or what.
1650
01:19:42.080 --> 01:19:45.200
I know in his filings with the court,
1651
01:19:45.200 --> 01:19:47.710
his plan was to get his back surgery,
1652
01:19:47.710 --> 01:19:50.510
I believe convalesce at the home of a friend.
1653
01:19:50.510 --> 01:19:52.940
And again, we're hearing for the first time that,
1654
01:19:52.940 --> 01:19:56.420
who that is, and then after that, to secure a
1655
01:19:58.720 --> 01:20:01.430
place in, I believe in a boarding house,
1656
01:20:01.430 --> 01:20:04.090
but I'm not entirely sure about that.
1657
01:20:04.090 --> 01:20:06.626
Okay, thank you, no more questions.
1658
01:20:06.626 --> 01:20:08.850
[Chief Justice Gants] Okay, thank you, Justice Kafker?
1659
01:20:08.850 --> 01:20:10.503
I have none.
1660
01:20:10.503 --> 01:20:11.540
[Chief Justice Gants] Okay, I've got a few.
1661
01:20:11.540 --> 01:20:16.290
Mr. O'Sullivan, you said that Judge Tosca agreed
1662
01:20:16.290 --> 01:20:20.410
with Justice Ditkoff, if you have the opinion
1663
01:20:20.410 --> 01:20:22.473
in front of you, I'm turning to page eight.
1664
01:20:24.740 --> 01:20:27.483
As I read it, he basically says,
1665
01:20:28.637 --> 01:20:30.747
"The court," on the top, "the court declined
1666
01:20:30.747 --> 01:20:33.637
"to treat the motion as a motion for reconsideration."
1667
01:20:35.630 --> 01:20:39.120
He goes, essentially, Judge Gruger would have to do that,
1668
01:20:39.120 --> 01:20:41.070
and she declined to do that, so the motion
1669
01:20:41.070 --> 01:20:44.877
to reconsideration, he says, "is not for me to decide."
1670
01:20:45.950 --> 01:20:48.057
Then all it says as to Justice Ditkoff is,
1671
01:20:48.057 --> 01:20:49.757
"As to Christie's alternative request
1672
01:20:49.757 --> 01:20:52.727
"that this court stay the execution of the sentence,
1673
01:20:52.727 --> 01:20:54.857
"the Appeals Court single Justice Ditkoff (mumbles)
1674
01:20:54.857 --> 01:20:58.140
"already denied this request February 26th."
1675
01:20:58.140 --> 01:21:01.280
Is there anything, as best I can read, he basically thought
1676
01:21:01.280 --> 01:21:05.500
that Justice Ditkoff's denial foreclosed him
1677
01:21:05.500 --> 01:21:09.720
from considering whether or not there should be a stay
1678
01:21:09.720 --> 01:21:11.840
on the execution of a sentence pending appeal.
1679
01:21:11.840 --> 01:21:13.563
Is that correct, am I right?
1680
01:21:14.400 --> 01:21:18.400
I wish that were clearer.
1681
01:21:18.400 --> 01:21:22.272
That is a possible reading of that sentence, but I--
1682
01:21:22.272 --> 01:21:24.420
[Chief Justice Gants] But what's the alternative reading?
1683
01:21:24.420 --> 01:21:25.418
How--
Well--
1684
01:21:25.418 --> 01:21:26.920
[Chief Justice Gants] Where do we find your reading,
1685
01:21:26.920 --> 01:21:29.967
where he basically says, "I agree with Judge Ditkoff,
1686
01:21:29.967 --> 01:21:32.207
"I actually reached the merits of this
1687
01:21:32.207 --> 01:21:33.917
"and I come to the same finding"?
1688
01:21:35.020 --> 01:21:35.910
Right, well,
1689
01:21:35.910 --> 01:21:39.640
he goes onto consider the only changed circumstance,
1690
01:21:39.640 --> 01:21:41.663
which is COVID-19.
1691
01:21:43.904 --> 01:21:46.017
In the next sentence, he says,
1692
01:21:46.017 --> 01:21:48.960
"The issue, then, is whether this court may unilaterally,"
1693
01:21:48.960 --> 01:21:53.863
oh, actually, I'm sorry, if you skip down a few paragraphs,
1694
01:21:56.130 --> 01:21:57.920
or, rather, the last paragraph,
1695
01:21:57.920 --> 01:21:59.997
he goes onto consider the only changed circumstance
1696
01:21:59.997 --> 01:22:02.510
that's at issue, which are
1697
01:22:04.800 --> 01:22:05.820
the additional
1698
01:22:06.970 --> 01:22:08.433
positive tests there.
1699
01:22:10.280 --> 01:22:12.220
And he says there's an issue as
1700
01:22:12.220 --> 01:22:14.530
to whether his immediate release would pose a danger
1701
01:22:14.530 --> 01:22:17.920
to the public, simply in terms of spreading COVID-19.
1702
01:22:17.920 --> 01:22:19.390
He would likely have to be quarantined
1703
01:22:19.390 --> 01:22:22.000
for a certain period of time, prior to or after release,
1704
01:22:22.000 --> 01:22:24.660
and then possibly tested for COVID-19.
1705
01:22:24.660 --> 01:22:28.030
So I would submit that it's not entirely clear,
1706
01:22:28.030 --> 01:22:31.990
and I agree with Your Honor, but a fair reading is
1707
01:22:31.990 --> 01:22:34.410
that since he did consider the
1708
01:22:34.410 --> 01:22:36.510
only other changed circumstance,
1709
01:22:36.510 --> 01:22:40.957
that he said, "I would deny the stay,
1710
01:22:40.957 --> 01:22:44.941
"given that additional potential danger to the public."
1711
01:22:44.941 --> 01:22:46.970
[Chief Justice Gants] He never said that, though.
1712
01:22:46.970 --> 01:22:48.691
He never explicitly says that--
1713
01:22:48.691 --> 01:22:49.524
[Chief Justice Gants] Well, I mean,
1714
01:22:49.524 --> 01:22:51.540
he says, "There is an issue as to whether,"
1715
01:22:51.540 --> 01:22:53.800
and he recognizes that once released,
1716
01:22:53.800 --> 01:22:55.410
it's unclear as to whether he would engage
1717
01:22:55.410 --> 01:22:58.127
in practices, it's unclear, and he said,
1718
01:22:58.127 --> 01:23:00.080
"This presents further dangers to the public."
1719
01:23:00.080 --> 01:23:02.060
So yes, of course, there is a danger
1720
01:23:02.060 --> 01:23:03.653
if he would be released.
1721
01:23:05.500 --> 01:23:07.600
But I don't understand how you say
1722
01:23:07.600 --> 01:23:11.670
that he made his own independent determination as
1723
01:23:11.670 --> 01:23:16.020
of the date of the decision, which is March 26th,
1724
01:23:16.020 --> 01:23:20.080
as to whether or not to deny the stay.
1725
01:23:20.080 --> 01:23:22.250
I guess you're resting just on that last paragraph,
1726
01:23:22.250 --> 01:23:24.553
the finally part of page nine?
1727
01:23:25.460 --> 01:23:28.630
Yeah, and insofar as it needs remand
1728
01:23:28.630 --> 01:23:32.270
for clarification, that would be fine.
1729
01:23:32.270 --> 01:23:33.103
But
1730
01:23:34.240 --> 01:23:37.550
my reading of it, and I agree, it's not entirely clear,
1731
01:23:37.550 --> 01:23:40.370
is that he would deny the stay, as well,
1732
01:23:40.370 --> 01:23:41.953
on the ground of COVID-19.
1733
01:23:44.787 --> 01:23:45.620
[Chief Justice Gants] And it's your view
1734
01:23:45.620 --> 01:23:48.960
that it's appropriate to deny release
1735
01:23:48.960 --> 01:23:52.250
to an individual who is at risk of getting COVID-19
1736
01:23:52.250 --> 01:23:55.920
because of the fact that they may pose a risk
1737
01:23:56.787 --> 01:23:58.190
to the public, that this would be
1738
01:23:58.190 --> 01:24:00.843
essentially treated as a civil commitment?
1739
01:24:02.870 --> 01:24:07.260
Well, no, I mean, what we know, unfortunately,
1740
01:24:07.260 --> 01:24:11.550
about the disease and about those who have been exposed
1741
01:24:11.550 --> 01:24:15.500
to persons within and contract it is
1742
01:24:15.500 --> 01:24:18.850
that they are asymptomatic for some period of time before,
1743
01:24:18.850 --> 01:24:23.850
and they can transfer it during periods of no symptoms.
1744
01:24:24.490 --> 01:24:29.490
So yeah, I mean, is that a legitimate public health concern,
1745
01:24:30.270 --> 01:24:33.590
even absent a positive test that would justify quarantine?
1746
01:24:33.590 --> 01:24:37.010
Well, that is the judgment of the public health experts
1747
01:24:37.010 --> 01:24:38.196
that have weighed in here--
1748
01:24:38.196 --> 01:24:39.590
[Chief Justice Gants] But your argument,
1749
01:24:39.590 --> 01:24:40.423
and let me understand, your argument says
1750
01:24:40.423 --> 01:24:43.830
that those most at risk of getting COVID-19
1751
01:24:43.830 --> 01:24:48.830
in prison are the ones who should not be released
1752
01:24:48.926 --> 01:24:51.220
because they may potentially pose a risk
1753
01:24:51.220 --> 01:24:54.880
to the public, that a reason to hold somebody in prison is
1754
01:24:54.880 --> 01:24:57.170
because they have a substantial risk
1755
01:24:57.170 --> 01:24:59.363
of getting COVID-19, is that your position?
1756
01:25:00.270 --> 01:25:02.767
Well, but Judge Tosca, her--
1757
01:25:04.393 --> 01:25:05.226
[Chief Justice Gants] I'm asking about,
1758
01:25:05.226 --> 01:25:06.920
I'm asking about your position, is that,
1759
01:25:06.920 --> 01:25:08.579
I mean, that's the argument that's analogous
1760
01:25:08.579 --> 01:25:10.000
to what Justice Gaziano had.
1761
01:25:10.000 --> 01:25:13.340
Is it your position that,
1762
01:25:13.340 --> 01:25:15.750
does your office say that it is a reason
1763
01:25:15.750 --> 01:25:19.330
to not release somebody because they may pose a risk
1764
01:25:19.330 --> 01:25:21.720
to the public if they are released from jail or prison,
1765
01:25:21.720 --> 01:25:24.783
and therefore, they must therefore stay in jail or prison?
1766
01:25:25.830 --> 01:25:29.590
Well, if we take a benchmark
1767
01:25:29.590 --> 01:25:34.080
of reasonableness, the special master's proposed order,
1768
01:25:34.080 --> 01:25:36.913
I believe if someone does test positive,
1769
01:25:37.980 --> 01:25:41.070
they must be held in quarantine
1770
01:25:41.070 --> 01:25:43.323
for at least that period of time.
1771
01:25:45.939 --> 01:25:48.960
So with respect to, yeah,
1772
01:25:48.960 --> 01:25:51.760
people who potentially present a risk
1773
01:25:51.760 --> 01:25:53.830
to those on the outside, yeah,
1774
01:25:53.830 --> 01:25:57.920
obviously there is a difficulty in saying,
1775
01:25:57.920 --> 01:26:00.480
precisely the people who are
1776
01:26:02.310 --> 01:26:06.860
at risk are the people who we should keep in
1777
01:26:06.860 --> 01:26:08.960
because they're at risk.
1778
01:26:08.960 --> 01:26:11.250
But to the extent they've been exposed
1779
01:26:11.250 --> 01:26:13.950
and we have good information that they were exposed,
1780
01:26:13.950 --> 01:26:17.910
and Mr. Christie seems to think he was directly exposed,
1781
01:26:17.910 --> 01:26:20.830
although I don't, thank God,
1782
01:26:20.830 --> 01:26:23.620
understand him to be reporting symptoms,
1783
01:26:23.620 --> 01:26:28.580
it's definitely a relevant public health consideration
1784
01:26:28.580 --> 01:26:31.600
that he may be positive for it.
1785
01:26:31.600 --> 01:26:35.460
And relevant in that regard is the fact that at least
1786
01:26:35.460 --> 01:26:39.140
at the prison, he would have immediate provision
1787
01:26:39.140 --> 01:26:41.520
for quarantine and treatment.
1788
01:26:41.520 --> 01:26:44.090
And I appreciate that our whole medical system,
1789
01:26:44.090 --> 01:26:48.363
including that at the DOC and that outside is over burdened,
1790
01:26:49.390 --> 01:26:52.730
but I would submit that Judge Tosca wasn't wrong.
1791
01:26:52.730 --> 01:26:54.410
And it is a relevant consideration,
1792
01:26:54.410 --> 01:26:55.940
and the position of our office
1793
01:26:55.940 --> 01:26:57.890
that he could potentially infect other people
1794
01:26:57.890 --> 01:26:58.723
on the outside.
1795
01:26:58.723 --> 01:27:01.480
But I definitely appreciate Your Honor's question,
1796
01:27:01.480 --> 01:27:04.481
and the point that animates it.
1797
01:27:04.481 --> 01:27:06.100
[Chief Justice Gants] Okay, and I guess finally,
1798
01:27:06.100 --> 01:27:09.390
if we were to read Justice Tosca's decision as saying
1799
01:27:09.390 --> 01:27:13.040
that I can't consider the motion to stay
1800
01:27:13.040 --> 01:27:17.330
because Justice Ditkoff had denied it on February 26th,
1801
01:27:17.330 --> 01:27:19.473
that would be error, would it not?
1802
01:27:21.510 --> 01:27:24.060
Yeah, that would be error, yeah.
1803
01:27:24.060 --> 01:27:29.060
And any reading of it that he believes himself incapable
1804
01:27:30.060 --> 01:27:32.330
of considering a motion to stay,
1805
01:27:32.330 --> 01:27:34.640
based on a changed circumstance,
1806
01:27:34.640 --> 01:27:38.170
yeah, that could be error, although I would suggest
1807
01:27:38.170 --> 01:27:40.940
that there isn't exact guidance
1808
01:27:40.940 --> 01:27:43.570
on this particular issue out there.
1809
01:27:43.570 --> 01:27:47.153
But I would submit that that would be error,
1810
01:27:48.270 --> 01:27:51.290
that the judge would have engaged,
1811
01:27:51.290 --> 01:27:52.670
and if he hadn't considered that.
1812
01:27:52.670 --> 01:27:55.327
But again, I think he (mumbles) he had.
1813
01:27:56.457 --> 01:27:57.760
[Chief Justice Gants] February 26th, I think,
1814
01:27:57.760 --> 01:28:00.050
just from our world, it was before our March sitting,
1815
01:28:00.050 --> 01:28:02.220
which we had as a routine sitting.
1816
01:28:02.220 --> 01:28:06.330
And by March 26th, we were in a world
1817
01:28:06.330 --> 01:28:08.870
in which we were dealing with only emergency matters.
1818
01:28:08.870 --> 01:28:12.350
So the world changed fundamentally between February 26th
1819
01:28:12.350 --> 01:28:14.730
and March 26th, don't you agree?
1820
01:28:14.730 --> 01:28:16.030
That is fair.
1821
01:28:16.989 --> 01:28:18.030
[Chief Justice Gants] That's all that I have.
1822
01:28:18.030 --> 01:28:20.440
Anybody else, Justice Gaziano, any further questions?
1823
01:28:20.440 --> 01:28:21.645
No, thank you, Chief.
1824
01:28:21.645 --> 01:28:22.560
[Chief Justice Gants] Justice Lowy?
1825
01:28:22.560 --> 01:28:23.833
Also, Chief.
1826
01:28:23.833 --> 01:28:24.666
[Chief Justice Gants] Justice Budd?
1827
01:28:24.666 --> 01:28:25.541
No, thank you.
1828
01:28:25.541 --> 01:28:27.300
[Chief Justice Gants] Justice Cypher?
1829
01:28:27.300 --> 01:28:28.523
No, thank you.
1830
01:28:28.523 --> 01:28:30.170
[Chief Justice Gants] Justice Kafker?
1831
01:28:30.170 --> 01:28:31.368
All set, thank you.
1832
01:28:31.368 --> 01:28:32.930
[Chief Justice Gants] All right, we thank you all.
1833
01:28:32.930 --> 01:28:37.610
This concludes our hearing on March 31st.
1834
01:28:37.610 --> 01:28:42.310
Thanks to Kurt Kenelly for all of your work.
1835
01:28:42.310 --> 01:28:45.610
And I will confer by email with the justices as
1836
01:28:45.610 --> 01:28:48.119
to our timing for estoppel, thank you.
1837
01:28:48.119 --> 01:28:48.952
Thank you, Chief.
1838
01:28:48.952 --> 01:28:49.785
Thank you, Your Honor.
1839
01:28:49.785 --> 01:28:50.935
Thank you.