Gaziano: SJC-12932 come up for a Braulio Caliz.
-: May please it the court, my name is Molly Ryan Strehorn
and I represent Braulio Caliz.
Thank you so much for taking interest in this case.
Mr. Caliz comes before this court seeking credit
for 717 days he previously served
on a drug lab conviction that has been vacated.
I'm- -: Miss Strehorn, I've gotta
unfortunately get you back to that hypothetical,
which you tried to forget on your ride to your new office.
-: It was like...
Yeah, give me time to think.
-: Oh, awesome, all right.
So and I think I've had a better chance
to refine my hypothetical
'cause I'm not trying to be cute
I'm just trying to see where we are with him
because the standard in Holmes
of equally compelling circumstances is unclear.
So I just wanna try to flesh that out.
So we have to defendant A
who is convicted of a drug offense.
He serves about a year, he goes to court, appeals it.
And this court says, no, the drugs are suppressed
and his conviction should be vacated.
We have defendant B, your client
who is convicted of a drug offense,
it happens to be a Farak case.
And then this court in Farak says,
all the convictions are vacated.
In the meantime,
he picks up a new case and is serving a sentence.
Under our case law,
defendant A would not have the benefit, correct?
Of jail credit?
-: Correct.
-: All right.
And so what's different about his case
than defendant B or your client's case?
-: So the way it's set up right now with this standard
for equally compelling circumstances,
it asks courts to look at the reason why
the conviction was vacated.
And so in this case,
we have egregious government misconduct.
And though you've had years and years to think about
what that really means,
the government is responsible for this conviction
that had to be vacated based on their conduct.
-: The government's responsible
for the motion to suppress, right?
When the police illegally seize the drugs?
And we say, no,
you needed a warrant to go into the house,
you couldn't just barged in.
There's governmental misconduct in both circumstances.
Though we've never defined equally compelling circumstances,
I guess, which is what we're gonna be called upon to do.
So in Dookhan, we didn't say that.
And I think there's the Appeal's Court case
that says that bond.
So why is Farak different from
a motion of suppress it's allowed
because the police illegally enter a house
or the Dookhan case?
-: Well, interestingly,
with the equally compelling circumstances,
we set up a comparison for why the convictions were vacated.
But in this circumstance,
we also look at when they were vacated.
And as you know,
during the long protracted litigation
that involved all different players
to figure out what happened,
the Attorney General's office withheld information
that would have been valuable to defendants
like Braulio Caliz.
So it's not just an issue of
why the conviction was vacated but when,
and when defendants had access to this type of information
and the difference between the Dookhan defendants
and the Farak defendants in this particular issue
of timing and when is that
when Dookhan happen, we set up the drug lab courts.
Within seven months of Dookhan's resignation,
the number one priority was looking for defendants
who were currently serving time with Dookhan certificates,
nothing like that happened in the Farak cases.
And the alternative people were left with their convictions
to serve out the entirety of them
while the Attorney General's office put up roadblocks
to those defendants having access.
So it's also an issue of timing that's on the onus.
-: That's a very fair observation.
Let me ask you, the equally compelling
has to be equally compelling to actual innocence, right?
That's the equally part of it?
-: Well, that's kind of what Holmes left open as a question.
Gaziano: Okay.
-: And so far, there's just been this search
for defining what that means.
And we come before the court questioning what that is now
and really asking the court to evaluate the standard
and the follow-up.
-: I'm sorry, I just have one more question.
Let me ask you a question
I should probably know the answer to but I don't.
With respect to this jail credit issue
and then the second case
where you seek to apply the credits to,
does it have to be any continuity of jail custody
in between the cases or could there be a two year gap
and they pick up the second case,
and then we applied the jail credits.
If we agree with you to a Farak essentially banking
to a crime that occurs a year,
two years, three years later.
So what's the temporal part of that if you know?
-: Well, interestingly,
when Holmes was in the Appeal's Court,
they discussed this question
and it wasn't necessarily a question of continuous custody,
but a question of when the first conviction was vacated
in relationship to the second conviction.
So as in Mr. Caliz's circumstances,
he was already serving time on the second conviction.
-: Right. -: When he found out
that the first one was vacant.
-: And that's why it's more compelled 'cause it's continuous?
There's not that huge gap where they bank in your case?
But that's not a requirement in any of you.
-: No, your honor, no.
And as you can see in the Amicus brief
that MACDL added to this discussion of whether or not
banked time is actually a legal fiction.
As you can see, there's no evidence
that it adds to people's behavior
to think that they're gonna go out and encourage criminality
based on this fallacy of having time in the bank.
-: Well that's where we haven't experimented with that,
have we?
-: This is gonna be a bigger chance for that, right?
Justice Gaziano may know how many defendants
got the benefit of our Farak's decision,
but it's in the tens of thousands, correct?
-: Correct, yeah.
-: Under your view, we're gonna have
tens of thousands of people
who were not released until our decision came out
with significant amount of bank time, right?
So essentially,
this huge group of people who were accused of drug crimes
are gonna have a giant amount of bank time
if we adopt your view, right?
-: Well, my view relating just to Mr. Caliz.
-: Well, we can't look at just Mr. Caliz.
And actually Mr. Caliz has less bank time
because he actually was serving concurrent time
for another totally unrelated drug offense.
So we do a pretty significant subtraction
for Mr. Caliz, don't we?
-: The 717 days takes away the 545 days
that he had concurrent time.
-: Yeah, can I push you on a couple of other points then?
-: Okay. -: So our decision
was more generous to Farak defendants
than Dookhan defendants, right?
Because of that more egregious conduct
you pointed out, right?
We gave the benefit, not just to people who Farak tested,
but all the people in the lab, right?
-: Yes, I think part of your decision was based on
what would have looked like
if the Attorney General's office had conducted
an investigation.
-: No, I get it.
But we gave that sort of plus benefit
in the Farak cases.
-: Well, you recognize that the misconduct
extended beyond Sonja Farak name on a certificate.
She was tampering with other lab workers.
-: But also didn't we take into account the fact that
the AG did not respond appropriately
in terms of the breadth of the remedy too
or am I misremembering?
-: No, I think it's a combination
of the misconduct of the Attorney General's office
in putting up roadblocks, committing a fraud upon the court,
being disingenuous on the evidence that they had
and not fully investigating the misconduct of Sonja Farak.
So I believe the way your decision was crafted in CPCS
versus the Attorney General's office
was to take into account what it would have looked like
if the Attorney General's office
had actually done the investigation
and also penalize them for their misconduct
and failed to do them. -: Right.
That's my point is that you're saying that
we should give credit in addition to all of these things
because Farak is worse?
Because the AG's behavior is worse
and led to longer time.
But we did take that into account
in terms of extending the type of offenses covered.
And now you're asking us to extend it
to a whole another category,
which are totally unrelated convictions
where giving credits in totally unrelated convictions.
Let me give you another analogy.
So 258D where we allow compensation,
we still require
something approximating proof of innocence there, don't we?
-: You do, and also had a decision where
insufficient evidence could lead to an actual innocence,
but when we're talking about monetary compensation,
I think we have to differentiate that
as a way to make someone whole
versus having their lives have meaning and credit
for time that they were incarcerated
on a conviction that has been vacated--
-: So we should...
Why wouldn't we be doing this?
I mean we have a higher level of proof there,
that's something that is closer to
the standard ruling.
There the standard is 258D is
on grounds resting upon facts and circumstances
probative of the proposition
that the claimant did not commit the crime.
Is that a better standard for us to...
If we're gonna give credit,
should we be looking at something like that for credit too?
-: Well, I think it goes back to
the standard of actual innocence
and what is an equally compelling circumstance
to actual innocence?
I think we also have to differentiate
between making someone whole
by giving them monetary compensation
and making someone whole by recognizing that
you can't just change your docket
when these have been actual days
that people have been incarcerated
and separated from their families.
-: But counsel, we can't give those days back now.
They're gone days, no matter what.
Even if you give somebody credit, it's still gone.
What I'm struggling with is where we draw the line,
and if, say, for example,
your client gets two years for hypothetically bank time,
and then five years from now commits a rape,
is that credit going to apply there?
-: Well, the question is the difference between mandatory
and discretionary credit.
And where in this case, I'm seeking mandatory credit
on his sentence right now.
As you can see in the MACDL brief,
they suggest another alternative,
which is to give judges discretion
to take that into account in future sentencing.
And so if that was happening during sentencing
and this court allowed that type of discretion,
then the trial judge or the sentencing judge
would be able to take that into account.
Cypher: Hmm.
-: Well, we'll still have to give them standards argument.
And your standard is
whenever there's a Farak type of misbehavior,
there should be credit.
So those 20,000 defendants we're talking about
if one of them goes out and rape somebody,
wouldn't they be entitled to that credit under your view?
-: Well, at this juncture in time,
they would be aware of the time
that they had a vacated conviction,
which is different than Mr. Caliz.
So Mr. Caliz entered the sentence and began the sentence
before the conviction was vacated.
So in that situation,
I mean, unless you adopt a judicial discretion model
then the timing wouldn't be a factor
to allow for jail credit.
-: Would it just be governmental misconduct
on the scale of Farak that we're talking about
on your equally compelling circumstance?
-: Well, I'm really hoping that
this was very unique situation
that we don't have to replicate in the future.
But if we're imagining another world
where there's egregious government misconduct--
-: That's what we thought after Dookhan.
-: Yeah.
I think this court over the last eight years
has crafted some extraordinary remedies
to allow people to have access to justice
in cases like this.
And I believe the court will continue
to fashion such remedies.
Well, hopefully this is a situation
that we won't face again,
but it not only is warranted for people
who have suffered this type of harm
that they shouldn't be the people who are penalized.
And secondly, maybe it will be another disincentive
for the type of conduct that we have here.
If there are these very significant types of consequences.
-: You've rebounded very well Miss Strehorn.
(laughs) -: Well you have to.
-: Okay, thank you very much.
Miss Strehorn: Thanks for your interest.
-: Attorney Wendel.
-: Yes, good morning.
And may it please the court,
Assistant District Attorney John Wendell
for the Commonwealth.
I would like to, if I may point out
one thing about Holmes and that
there is no rule in Holmes about
equally compelling circumstances allowing jail credit.
That's an open question in Holmes.
And I would submit to this court that
there is actually a very good policy justification
for saying no, there is no basis in which
we would ever give jail credit
where the sentence has been completed
and then new charges committed after
the individual is released from incarceration.
Fundamentally granting jail credit
in this type of circumstance
it undermines the basis of incarceration.
The basis of incarceration there are
if I recall correctly,
there are generally four factors involved
in sentencing ideas,
punitive, rehabilitative, public safety and deterrent.
If we grant this kind of relief,
any time after the fact,
we're not properly punishing the individual
for the act that they committed
because we're saying, Oh, you did this.
You're served this time prior,
we'll count that as if it was punishment.
It's very clearly not punishment.
It also undermines the deterrent factor,
totally undermines the public safety factor
that the plea judge concluded that the defendant
based upon his conduct needed to be locked away
for a period not less than and not more than seven years
to get him out of the public,
to get him away from law abiding citizens.
So I would suggest there are justifications to
answer to the open question of Holmes with a no.
Simply say, we do not allow this even for actual innocence,
even for circumstances equally compelling
to actual innocence,
because the policy justifications just aren't there.
But more specifically to this case,
we don't actually fix a problem in this case.
-: I'd like to test that a little bit, Mr. Wendell.
So, you've got somebody who's actually innocent
and I'm not suggesting there's any evidence
that this defendant's actually innocent.
But you have somebody who's actually innocent
who's served time that he shouldn't have just the tone.
And the prosecution knows they got the wrong guy
and they sat around and did nothing about it.
And while that's going on,
he does commit a different offense,
we shouldn't lower his current situate sentence by...
I mean he's in jail, so we're getting the deterrent basis
that you're worried about.
We still should lower that person's,
give that person a credit either?
Even though he served time for something he never did
and then he commits a new crime.
Let's even say, it's the same crime,
we shouldn't lower that one?
So even act of innocence
doesn't get you any time off?
-: I'm not sure I understand your hypothetical, your honor,
is the defendant still incarcerated at the time that he--
-: The defendant commits the first crime,
he's totally innocent of.
He goes and does his time for that.
He spends two years in jail,
gets out, commits a new crime,
gets four years in jail
and he still has three years left on that sentence.
Didn't give him any credit for the time that he was in jail
for no reason whatsoever.
-: I would submit we should not.
It is a tragedy, but this is not the fix.
We do not fix the problem by saying,
Oh, well, we'll consider that time prior.
All we do is put him into jail the second time
for an improperly short amount of time.
-: So 258D is the solution?
You get compensated for that wrongful conviction,
that's the solution.
And we should wipe out this whole concept of.
-: Yes.
Kafker: Okay.
-: That would be my position.
But even if you allow that there might be credit
in that kind of circumstance,
even if you allow there might be credit
in circumstances equally compelling to actual innocence,
this is still not one of those circumstances.
This is still not equally compelling.
And there is no basis
in the nature of the Farak situation itself
to grant a special Farak exception.
-: It seems like we've decided we can compensate you
for that time in jail,
which really isn't the approximation of a time in jail,
but credit actually is the approximation
of a time in jail.
So in certain ways, it seems like
you could actually acquaint what you lost much better
but you don't like that,
instead you'd rather
the Commonwealth pay out millions of dollars
and things like that.
And that's your preference.
-: Well that's also this court's preference as per Holmes
that we can not allow the banking of time.
And this situation though,
it does not directly implicate that,
it comes too close to implicating that.
Simply, it does not work to allow the banking of time
to ever be done because of the potential problems
down the road.
And so that is a rule that this court has said,
I leave this court's language in Holmes
as to why that's a terrible policy idea
as my defense of why we should not allow this
as a general rule.
As for whether we should have an exception,
I would suggest that the Farak situation
is not one which warrants an exception.
On the subject of what precisely happened
as a result of the assistant Attorney General's misconduct
in this case,
the answer is the defendant obtained a dismissal
where he probably would not have otherwise had one.
I'm reading now from CPCS versus AG,
noting that Dookhan's misconduct
was not accompanied by misconduct by a prosecutor
or an investigator.
We ultimately determined that the stronger deterrent
of dismissal with prejudice was not required.
Accordingly, we established the Bridgman II protocol
to allow efficient case-by-case adjudication
of the remaining cases affected by Dookhan's misconduct.
That's page 725.
Essentially had there been no misconduct by the AAG,
we would not have dismissed these cases.
And under the Bridgman II protocol,
the defendant would have lost this 12th case, the 2012 case.
And assuming there had been no misconduct
by the assistant Attorney's General,
the defendant probably could not have obtained relief.
He certainly could not have obtained relief
via Ferrara Scott motion in 2012, 2013, 2014.
It's simply not possible
based upon the requirements of Ferrara Scott.
Because Farak's misconduct is not attributable
to the government in a case where she is not the chemist.
In this case, the chemist was Rebecca Ponds
that information it's in the appendix.
I might call out some in the appendix.
-: We already went further than that though.
We've wiped out Ponds type convictions
to punish the extent of governmental misconduct here, right?
We've already gone further than you just said.
-: Yes, your honor, you absolutely have.
My point is the reason that the defendant
wishes this court to come up with an exception
to the Holmes rule is because
the government interfered with the defendant's ability
to seek relief from his incarceration in 2012, 2013, 2014.
And that is simply untrue
because the only method of seeking relief in 2012 to 2014
would have been via Ferrara Scott type of motion.
In fact, such motion would not have existed
until this court adopted it in 2014 with Scott itself.
And it's simply not possible to meet the first prong
of the Ferrara Scott test in the defendant circumstances,
because there is no misconduct
which predated the defendant's plea
and is attributable to the government.
Because Farak's misconduct,
and so far as she tampered with other chemists samples
is not attributable to the government
because she's not an agent of the prosecution team
in those cases.
So the defendant could not have obtained a new trial
under Ferrara Scott in 2013, 2014, it's simply not possible.
So by the time this misconduct became an issue,
the assistant Attorney General's misconduct became an issue
which could have entitled the defendant to relief,
he had already been released.
By the time it became a live issue,
he was at liberty.
His sentence on the 2012 case had been entirely served.
So we're fundamentally dealing with a situation where
it's no different than Dookhan.
And the defendant does not ask the court to overrule bond.
So we're left with bond,
which says that egregious misconduct
or rather the presumption of egregious misconduct
because there is no proof one way or the other.
But egregious misconduct by a government official
is not a compelling circumstance equal to actual innocence.
And therefore the Holmes exception,
if there is one doesn't apply.
So, and I will note there's no particular reason
to make a special Farak related exception to this.
A year ago, I was before this court on another matter
and Justice Gaziano asked me,
how do you undo the damage?
Forget the specific language, how do you undo the damage?
The answer here is we can't undo the damage
for multiple thousands of people,
unless we just deem this a
everyone who had a conviction with incarceration
based upon one of these cases,
gets that credit against any future offense,
and that for the reasons articulated in Holmes
is a terrible idea.
And as was noted in Holmes,
it only benefits the recidivists,
those who commit new offenses after the fact.
There are still going to be, I would suggest
thousands if not tens of thousands of people
who have committed no offenses
since the original Farak case
for which they were incarcerated.
And none of them will get the relief
of credit for their dead time
despite the fact that every single one of them has it.
-: I can pursuit 258D.
-: Precisely.
-: They can do it, but these guys who are in there
this may provide another option.
The recidivist point
that Justice Granger is troubled by.
You could give a recidivous instead of treating them better
or you treat them sort of equally
in the sense they'd have another option.
-: But fundamentally, your honor,
that doesn't treat them equally.
Because if the reason why we do this
despite the policy reasons against
is because it's not possible to properly compensate
for time that has been spent if it's dead time,
then no amount of compensation
given to those non recidivists will ever equal
the granting of credit for the dead time
as it would be given to this defendant
and the others in his very particular situation.
So we're left fundamentally with recidivists
being treated better.
They get the actual equivalent,
as opposed to the monetary not quite equivalent
that the non recidivists get.
So the only people who benefit from this kind of exception
are the recidivists,
and it's not actually a proper equal alternative.
If I may, I would like briefly
to address the Amicus brief.
The Amicus brief,
well, largely the Amicus brief should be ignored.
It makes arguments that have been made
by neither party asking that Holmes be overruled.
But even though that should be ignored
as per Finch versus Health Insurance Connect,
that's 459 Mass 655
and Commonwealth versus Dustin
that's 476 Mass 1003,
the Amicus points out an interesting fact about Holmes.
Holmes is actually an exception and is not the general rule.
The general rule is discretion
where there are circumstances.
All of the cases cited in the Amicus is pretty fluid.
Shalla Fu, Brown, Grant, Gardner, Manning,
they all allow the continue exercise of judicial discretion
in granting the credit for dead time
in appropriate circumstances.
Holmes and Milton with it simply say that
where the sentence is completed,
the defendant is at a liberty for a period of time
and then the defendant commits a new offense,
it is not appropriate
regardless of when the defendant learns
that he has dead time,
it is not appropriate to give him dead time
for that completely unrelated situation.
So the argument by the Amicus that Holmes in some way
undercuts judicial discretion, it doesn't,
except to state that there are public policy reasons
why we do not do this one very particular thing.
And so I would suggest that
the Amicus simply misunderstands Holmes
in asking for it's being overruled.
But as I say, as neither party suggested that
that argument should be rejected.
Anyway, I see my time is up.
If there are no further questions, I'd rest down my brief.
-: Thank you very much.
Okay, thanks everyone.
Strehorn: Thank you.
-: Thank you, your honor.