-: SJC-12949 Commonwealth v. Cameron Lucci
SJC-12950 Commonwealth v. Seamus Horton,
SJC-12955 Commonwealth v. Scott Smith.
-: Will the attorneys work on each of the cases please
identify themselves with the case
of Commonwealth vs Luci first?
-: First chapter and for the Commonwealth your honor.
-: Patrick Levin for Cameron ludie and in the case of
Commonwealth vs Horton.
-: Similar for the Commonwealth Toronto.
-: Brian Anderson for same resort in your honor. And in the
case of Commonwealth vs. Smith.
-: Hi, Andrea Harrison for the Commonwealth. I'm joined by
Tara Ganguly Okay, she's on the brief and you'll be arguing
for Miss Harrington. Yes.
-: Okay. And for Mr. Smith.
-: Good morning. Your honors Joseph Schneiderman for Scots
-: Okay so good morning all Why don't I go through the
protocol which we have been using since April.
I know the clerk nearly
met with you
virtually yesterday to go over it but let's make sure all
understand. We will hear first from the Commonwealth in each
of these three cases each of you will be given two minutes
to argue without interruption and then following the two
minutes we will invite questions from each of the justices
we generally go by order of seniority, but since this is we
keep thinking this is just as nice last arguments and then
new arguments get added but she has the prerogative to go
first or last just as language you prefer to be asking
questions first or last time.
-: I'd like to do it first.
-: Okay, good. Well, it's your prerogative, these are we're
approaching, sadly your retirement so you get what you want.
We'll go by way of seniority. Justice Michael basking first
golf. He asked me questions last, after I've asked, after
I've asked whatever questions I may have, I will invite
whatever justices who wish to do his follow up questions.
And then we'll proceed with regard to the next arguments.
Now, you have been you've been dividing up 20 minutes per
side, because this is a case involving three separate cases,
albeit with related issues with particular distinctions
among each of the three cases, but
as a result you got
each of you have less time. The protocol Vova is that you
may continue to answer questions as long as there are
questions, but please keep to the two minute limit with
regard to the time for oral argument. If you are not
speaking, please mute your phone so that we don't have any
background noise. If you were not using your cell phone
please silence Your cell phone so that we don't get
interrupted. With respect to that. And with that,
we will
now turn to Mr. Turn in on behalf of the Commonwealth in the
case to come well versus Luigi, you have 10 minutes. Mr.
-: Morning, Your Honor, my since I'm going first, my goal is
to sort of focus on the issues sort of shared by all of the
Commonwealth in this case, as well as particularly the
Bristol County just to sort of set up the background as we
see it. There's two distinct questions here, those that
didn't this court standing orders that have been issued so
far coals because of time
under 58Aand 50 B.
-: And then there's the other question, of course, you know,
the pandemic is still ongoing, what what happens going
forward, and we all take the position of laid out in our
brief that the time that you spent the language of the
standing order, towards the time type of time, using the
mechanism of rule 36, which is, has traditionally been used
as notice as an A to directly as a mechanism for totalistic
DNA calculations and under the same language and 15 B. And I
would note that during this time defendants have not been
without an opportunity for review of their cases. You can
seek review of a 50 a day hearing at any time for change
circumstances for new information that has happened, it has
been happening, it can continue to happen and continue to
change. So there already has been a mechanism for taking
into account the current pandemic. On the issue of going
forward. There's two different issues. There's the issue of
what do we do with tolling in general? And also what are the
due process considerations? Obviously, tolling only
continues as long as it continues to order it. And then
there's the cobbles concern is that whatever happened
provide tools for the combo to continue to have
dangerousness taken into consideration and decide in
determining whether to continue to hold particular people up
until it's warranted. We can resist jury trial. Our biggest
concern is with the time not simply run out under
circumstances where the only recourse is a regular bail
hearing because that cannot take into account dangerousness
that can be taken into account and conditions for things
like TPS are not great tools at the moment we want. We think
it's extremely important that we have a mechanism whatever
it is that continues to take dangerousness into account in
determining
who wants relief.
-: One way to do that is simply to keep the clock running for
the purpose of 50 a day but to create it have a due process
analysis similar to that an ad a with whatever applications
with court might want so that the defendants would have a
could be assessed on their particular case to have a way to
get out. Because of the time they've been held, but without
affecting sort of the bean counting under 58A nd 36. But
insofar as you know, the court has to work within the
language of the 58A58, the statute. So one thing would be
to say that the time is all told, but you get, that doesn't
mean that your due process rights don't have legal relief.
And another way to handle it would be to say that the time
has run out for the good cause exception, enable continuing
detention on those grounds. If the court went that way, I
think it would be good if the court provided guidance, the
lower court judges about what they do with that. I know it
seems to be handled
very differently from county to county.
-: And there should be uniformity on the applicable law.
Well, obviously case specific determinations on how that
applies to the particular cases and the particular sentence
in the particular has a correction to detention
circumstances in particular charges. All of which go into
whether a particular detention is becoming real Double
Bristol was not raised the, the good cause issue. So that's
addressed by my colleagues. But I wanted to throw that in
there at the beginning. And, again that even if you actually
I think that that really covers it and I'll turn it over for
questions.
-: All right, this is like--
-: Okay, good morning. Morning. I am really confused. That's
why I wanted to go for. So let's start with the simple
stuff, which is judge's orders here.
-: I was doing them on my standard abuse of discretion.
-: I bristle frame that explicitly as we just want to know
whether the dancer whether the judge is right or wrong about
whether the standing was the case. The other cases may have
slightly different postures in terms of their but we I
believe our request for relief is simply a resolution of the
law here,
almost like a declaratory judgment,
essentially so we're not looking To get into the weeds of
this particular set of circumstances, and we don't want the
court to decide whatever the rule is going forward, based on
what we did or didn't raise below, we just want we have we
want the question answered. So it can be applied to future
cases. So we went with the first case out of the gate,
essentially.
-: Okay. That's our position.
-: Okay.
-: Now, so it's really weird to be asking how to construe our
order when all of us were there and maybe order and, you
know, what is it that you're trying to get at our intent? Or
what
-: I mean, I think our judges who are both arguing that it's
obvious to see, so that the ruling does or does not hold the
order. And I think that there needs to be uniformity on
that. And it is obviously inherently strange to be asking
this court. You know, in theory, that ought to be a yes, no
question and what this court discovered that was out of
order something but we obviously don't think that's true,
but yes, it's that that we think should be straightforward,
but we need it I don't think it's a reasonable, you know, it
has to mean one or the other. Chinese language is not clear,
right? You can get an ambiguity.
-: I don't think there's no, but you think it means one thing
and somebody else thinks it means other thing.
-: So I think there's a problem, isn't it?
-: Well, yes, there is. But I don't I don't know how you say
I'm sorry.
-: I don't see structure. But on this issue of are you
talking about plain language of the order? I don't really
know how to be looking at orders. Like we look at the
statutes when we try to interpret the statute.
-: I actually I have not found anything on that they're
they're
the
they're defendants who have argued have interpreted the
statute, but I think we
we treated it
as in our brief as essentially a judicial finding of
essentially making the findings under Rule 3062 s in a sort
of global fashion, in which case, I guess it would be a sort
of equivalent to the finding of an individual judge on that
tape. Rather than Then that essentially it's a finding of
facts and a commensurate occlusion of time. There are judges
below who both considered an obvious in opposite directions
that that's the plain language does or does not told. We've
had a decision out of Bristol County, I think both saying
that there's no other way to read
this service.
-: Okay, so let's move on because I was so confused. They
will tell you explain to me sir, what would ordinarily
happen and see on that note, we're not in COVID-19 times,
but let's just pretend that we're not in COVID-19. This is,
this is just before this is the pre pre crisis, okay. And,
and over there, we happen to be at a CHP hold expired before
trial really could begin, what would happen.
-: I think that my understanding is some counties there would
be a question of whether it falls under the good cause
provision of 58. I believe in Bristol County. It simply gets
some Hearing word. Yeah for hearing me. So it's so automatic
seven automatic relief for the person who says via hearing
individualized hearing, right? Yes. And that's not what you
want. Now. We The reason we don't want that now is because
for that you cannot factor in dangerousness for the veiled
tension at the David's actually noted in another case,
Orlando that we took two of them three on after we took this
case up, that essentially he had the only factor in the
defendants flavor is when we thought the defendant was
incredibly dangerous. And, you know, that concerns us that
we need to have the tools. I mean, pursuant to breaking cat
for regular bound actually, pursuant to the 15 day test fail
as a way of holding a dangerous defendant. Yeah, I get that
I can see why it was different now than it was before and
somebody who's dangerous with the time came up there was
done and haven't yet to have a hearing about it wasn't
dangerous to take it into account then
-: I think what changed is that we had the ability to ensure
that you couldn't insure a place, you could insure that
right? I mean, you could always have a crisis in in a in a
place where your child has just backed up. And you could not
do a trial by the time that the citizens the question of
what will happen to the person what happened.
And so continue to do what happened. Ordinarily, they did
nothing. I think in that situation, we'll consider it an
extremely unfortunate result, but we would try very, very
hard to get the time excluded for either I think it's 36
b2b, where the judge makes specific scientific findings or
the another interest of justice finding under 36 be to ask
that we did that we would have essentially in this case, we
consider there to be a global tone. So we didn't take
individual determination from judges. We could do that. If
we again so far. We were on notice that it was necessary. We
could do it on a case by case basis. But we would certainly
happen with a case by case basis. Right? Yeah. Okay. I want
to really know. And, okay, 58, eight people set an upper
limit does some kind of pretrial detention absent good
cause? And exclusives, I guess is it continuous is granted
under 3062. So I'm wondering is even if we agree that
sustainable operates is a continuance, and it's only 62 F,
defined status code expiration of a hold under 58 or 58 D.
In other words, it says the statute requires us to choose
continuation of life that the hole will simply allow him to
do so or do so. I mean, I sort of my reading of it was that
essentially, again, it was a finding of facts under by Judge
under the 36 beats you just sort of made at a global level,s
of the ability of an individual judge to just simply
disagree with that.
-: There are I mean, again, you can I mean, are there any
cases you can find us running these things?
I mean, this is a sort of again, I
know, it's so generous, isn't it?
-: Yeah.
-: That's why we're all sort of here sort of blacking
playing around for standards of review. But I think that I
mean, again, you can you can revisit dangerous, it's all
together for change circumstances and that that has been
happening. I think that i think there have actually been
some debate sort of at the lower level about the exact
parameters of rule 36 Tolan in terms of when it has been
specifically confirmed, but that's not I mean, not in the
situation in sort of in previous time. But in terms of
whether a particular judge recognizes that another
particular judge made the findings with that judgment that
they made, but But again, I think that there there are
parameters.
-: Yeah, for discussing?
-: Yeah.
-: Yeah. That's why we're here.
-: Yeah, I know.
-: I know, I know, the audio that we did with a statistic
child concluded that the risk of holding a child during the
pandemic somehow outweighed not only the defendants
interests, but also the public's interest in a speedy trial.
But since you can hold a bail, hearing by phone, how the
risks associated with the pandemic apply to the pre child,
Danny, I don't really get that.
-: I mean, I think that
you mean, just from the defendants end as opposed to the
public? So, I mean, how is it I mean, how you know, yeah, I
mean, you're holding a child. The reason is, you know, you
said tell us the trial thing, it seems to me implied is
because we recognize the danger of even trying to have the
trial. Thank you, too. jurors judges into the public defense
defenses. Everybody thinks he is different somehow with
respect to pretrial to 10 million views a hearing you need
to do by telephone. Right. So our concern is that, you know,
their defense, first of all, defendants being held as
dangerous a priority for trial in their particular sentence
that we think are extra dangerous that we would do
absolutely everything we possibly could to make them the
first trial available, but we can't do that. So our concern
is we're really worried that some of these people will do
very, very dangerous things that they get out. And we have
essentially we have no mechanism to hold them that takes
into account the dangers but again, you can some people are
our flight risks and also dangerous but you can imagine
somebody who's, you know, tells the victim when I get out, I
will kill you. I will go to the police department. I will
turn myself in i will i certainly Oh, that's true. I I just
wonder if there's some sort of a mechanism that could The
device much to hearing could take account of dangerousness.
That would be fine. That's our big concern. Yeah, no, it is.
We just want something that would do that. Yeah. Where
essentially we can live with anything that does that
include individualized hearings that do that.
-: Yeah, we would be happy with individualized. Okay.
Well, my confusion goes over this, but I think my time is
up. But again,
this is just this goes on.
Oh, boy.
-: So can you have two questions? Can you distinguish the gf
case where it to some extent shares, which were due process
cases, which kind of dealt with defendants who are in limbo,
and in both those instances, the court went Be around a
statute in granted relief of those defendants. One was the
you know, the 16 f statute. The other one was no bail and
SDP case statutes, we found a due process right. To review.
Can you talk about those two cases, please?
My recollection with
Sara says that there was specifically, you know, this
defendant was not going to be able to do anything. I think
it was the defendant was essentially pretty thoroughly
incapacitated. Right. So that I think that would be a
crucial factor if we had anything resembling that. And I
certainly that would, I mean, I think that that sort of
defendant under say, you know, under a CPCs vs. Trial Court
analysis might have already gotten relief. As was GS, I'm
afraid I'm not recalling that familiar with the case. But
the problem with the gf was a person who had I've gone
through three SDP trials and found it had three missed
trials. And then then the statute says you're not eligible
for bail. But we said, well, you are. Because you're
basically in limbo. And there's a due process to review. Is
that similar to this case?
-: I think so. I mean,
-: I agree that there is a point at which you need me, you
can't just be in the abstract and limbo. That's why we
essentially volunteered that there should be a further due
process analysis on them on any continuous attention, that
there has to be consideration for other factors. And
particularly, I mean, again, there's always a spectrum of
degrees of dangerousness even I mean, amongst dependents
where one or more judges found the no conditions like
that. And that's as a matter of due process.
That that was our perspective on it.
-: Okay, so keep that in you hit the nail on the head on my
second question, and that is what does this thing look like
this is the second hearing in an individualized
determination. So if I'm a trial judge, and I have someone
who is, as I found initially deservedly held as a danger,
domestic violence case, child rape, whatever. Now,
the Federation preserve motion for individualized
determination.
-: What am I looking at?
-: So as I proposed in our briefs,
and I don't know whether you think different offices might
have different ideas here, but that way, I think we all sort
of focus significantly on the abbot a, sort of balancing of
the interest procedure. Obviously, it's not directly on
point because it's not, that has a lot to do with the
whether the defendant will become more competent. In this
case, the defendant finds the justice system that has to
throw to get itself together. Obviously that is being worked
with physiologically
how quickly it can give me factors and give me fat
So, um, I mean, the severity of the offense.
-: The
the, what did I basically whether you're a super 50 a day?
I mean, essentially, I mean, like, you know, somebody
we had we already had cases like
that. I think we've had several cases that went up under CPS
versus trial court about the the single justice about the
dangerousness where there appeared to be a line drawing, you
know, the defendant on July 3, versus the defendant who has
direct physical risks. So, you know, somebody in particular
the, I think it would also probably take into account the
conditions at the particular detention facility, you know,
they're not equal the Senate House are not equal. And the
particulars of the case, unfair prejudice to the Senate, the
length of the time, that the defendant is taking, you know,
a dangerous defending could be built facing a district court
sentence where the detention period becomes disproportionate
as you get closer to the length of the sentence. So and how
long the defense 30 been held? I think with all the factors
that would have to be balanced. I know that that counsel
from Mr. Lucci has proposed that we should be required to
demonstrate the under reasonable doubt that we have evidence
to proceed to trial, we would take the position that that,
you know, holding an actual evidentiary hearing on that sort
of would would be fairly burdensome on the court is already
trying to get things done. But we would be happy to, you
know, submit in detail in writing what we expect to prove at
trial, and that we have the basis to expect that we would go
forward with this. I mean, I would hope that that's already
been shown. But so it too. I mean, I would, I would assume
that if it's a domestic violence case, for instance, in in
the victim is a certain assessment or privilege or whatever
the case of game you're not going to immunize the person
that your office will be duty bound to say You know, we're
not gonna go fluid. Yeah, those types of situations,
correct? Yeah. So I mean, we we would think it wouldn't come
to that in the first place, but we'd be happy to reassure
the judge in the Senate that on the basis of our belief on
that in some detail, not just you know, take our word for
it.
-: Okay. Thank you start. questions I had to
write just slowly.
-: Yes. Mr. Good morning. I want to get into the details for
a moment here of 36. The standing order we want 44. So
obviously, the position of the athletes here is that we're
not dealing with as far as excludable delay under Rule 36
for the purposes of 5883. We're not dealing with a specific
finding of a judge as it relates to a particular case and
way, for the purposes, the end of justice with the best
interest of the public and the defendant. So that's the
deposition. what what what's your response to that? As far
as our saying
that
we have this excludable delay under Rule 36, but not
specifically referencing 50 a day.
-: So I think that I made it as a
as a matter of previous normal time law, tolling rule 36
being told 50 a day again, I cannot even have the day. I
mean, the rule 36 BPF doesn't specify whether it needs to be
I think, the judge in front when the case is in front of or
in the case of a circumstance that affects the whole state.
Somebody believes that it could not be in this court.
Certainly that is how the Commonwealth read. The order was
the Emperor. I think we've been following them for a while
asserting that we saw that the pacifically, the court
seeking to invoke 36 B to F, which then, as a matter of
normal operation law would would feed into the 58A
calculation, I think my perspective has been, that it's not
so much the 58. A. I mean, I think tenants have argued that,
you know, 58A nd corporate rule 36, because, obviously, you
shouldn't you don't want the trial to get a piece with them
with this data, though, of course, for reasons that the
control parties, and that that's true here, too, but also, I
always at least read on
any, any statute
that incorporates rule 36 tolling is sort of using that for
a shorthand of you know, we think the same factors matter
here and we don't want to say it again, that rule 30 b two
is a good sort of compendium of things that we think are
reasonable ways. I understand and appreciate that. I do want
to sort of ask you though, when When you look right at the
text of 36. It does say that the judge shall set forth in
the record of the case. Does that suggest in that language a
specific case, as opposed to a general concept that any time
under Rule 36 is excludable time from 120 to 180 days or the
90 days, whatever the circumstance might be? But I think
that well, first of all, I mean, I think that that issue
would pertain equally to whether the standard was a total of
36. Under those circumstances, but in my opinion, my reading
of it had been that certainly, you know, rule 36 was
written, it was assuming in general that you would be in
front of a particular judge because that is generally true,
but that it wasn't intended to be prescriptive, essentially
in that language.
-: Again, I did this course taking to trigger that.
And let me let me talk a little bit
about,
about good cause. And let's let's let's just assume that no
matter how will 36 is reconciled with our order, that there
comes a day that it really doesn't matter because we're
dealing with, with due process. And let's say that good
cause is how we infuse it. That due process into, into
whatever the judge is supposed to do. And I I guess I want
to ask you, like Justice gaziano did, what's it look like?
Now some of the athletes have reference to beyond reasonable
doubt, bind over hearings, Proper Clause hearings. Back in
the day we we had with some frequency Y and it's a tough
issue. Once we get To the due process,
what what?
evidential is not evidentiary with the issue as it relates
to the lot of evidence, but
why wouldn't at least be
in the light most favorable to the Commonwealth, that the
evidence available still would would satisfy proof beyond a
reasonable doubt? In other words, sort of apply a probable
cause bind over hearing standard, and then figure out
whether or not what the evidence would have to look like at
that hearing, but at least a standard What do you think of
that? I mean, I think we could work with that. Again, as I
said earlier, my colleagues are more familiar with the the
good cause issue though I don't think you're sort of probing
me on the law there.
I think that any,
I mean, I think we are--
-: And again, we're open to anything that allows us to make
shoutings to preserve good practice. Right? Because at some
point, at some point, it doesn't really. I mean, obviously,
it matters for the purpose of immediacy. How this 36 rule 36
issue relates to 58Athree. And I'm not saying that's not
an incredibly put issue, but at some point, at some point,
we're going to be dealing with could cause either way. And
so we do sort of have to understand what what that showing
would look like and what that hearing would look like. And I
and I guess your position as well, as you've stated to,
like, well, you, you want to know what you need to do.
But let me one last question.
-: I don't know if you had a chance to look at jack COVID
decision out of the Quincy District Court, it's a different
attachment to one the Apple is brief. As you know, he's a
very, an excellent and thoughtful judge. And he's he raises
the question of whether
any order the court
can take priority, overrule whatever where you want to use a
Liberty interest that really created by statute and liberty
interest here would be gone all about the United States
versus Salerno that to satisfy substantive and procedural
due process, there has to be a time limit. And we have to
recognize that that's what the statute was trying to
accomplish and limiting the whole time. Any thoughts on on
his his view that clipping interest created by statute
-: Don't really
be surprised by a by a court order based on superintendents
or whatever it might be. And unfortunately, I'm not familiar
enough with this decision to address it on the terms which
should be I would say that I agree that the court can't
simply say, you know, we are by Fiesta, spending 50 a day
even though let's say 50 a day just says 120 days, and then
we're done. The court doesn't have any power, I would say to
do anything with that. I think that it's the it's the it's
the fact that it incorporates court rules and courtroom
tolling periods, and good cause exceptions that give the
tool for the court to do anything with it at all. But it
already contemplates a variety of reasons why you might not
be able to bring defendants to trial as quickly as you would
want to, for reasons having to do with one or the other or
neither party. And I think that that aspect of the statute
is crucial, but it involves a ultimately a fixed date, but
very much involved. acknowledgment that things happen that
up to a point, justifiably cause delay that needs to be
factored in.
-: Okay. Thank you very much. No further questions.
-: Hi, good morning.
My first question is about
our order. And
I understand you to be saying that you think the plain
language of our order does apply to
people held under 58. But
isn't that a fair reading to say we just overlooked this. I
missed that my reading was influenced by the previous law
essentially. That that I'm accustomed to view any 36 b two
colon period as automatically fading into 50 a day under the
language explicit language of 50 a day So I just I just
think if followed, we took them in our I'm not at this issue
has been litigated a lot. And it started, we took, I think
the combo hookups, essentially the first set of adverse
decisions. So there were a variety of courts that did take
that view of it for about six weeks. Obviously, there's not
unanimity. And obviously that doesn't affect what the court
meant. But that I think that we're not nearly alone in
taking the perspective that we thought it was clear that
that was what it meant. And I'm
I'm struggling with the due process issue, because it
sounds like that is what we're coming down to.
I agree, and I'm
good. So I'm curious to know what you
what the Commonwealth
position is on where those due process limits are. At what
point do you say this just isn't? This isn't right. Well,
again, we sort of we argued in tracking with, with Abbott a,
that essentially it has to be somewhat fat specific, but
that there's I mean, of course that an avenue, there's a
point where the comic will be required to show dangers and
reasonable doubt. And in order to justify a preventive
detention, when you hit those points is inherently very hard
to stay, unfortunately, by the nature of due process
analysis.
-: You know,
and I wouldn't argue for any particular date, including, you
know, either sooner or later. I recognize that sort of
dumping it on the court, but I don't know that I have
anything useful to offer in terms of exactly when you hit
that trigger. Okay. But earlier, I think he said that there
were factors that judges might look to other than
dangerousness. I thought I've heard you
say that. Yeah, it might be
you know, depends Aren't
specific
whether they're incapacitated? Obviously, that's
dangerous, but the specificity of the risk, how long they've
been held, what kind of
what their conditions are of
the facility, they're being held in the type of thing. So
are you saying that
the judge who's
holding the hearing should be looking to factors outside of
dangerousness are now given the fact that they're there
because of the dangers. I think that once a due process
analysis kicks in, you will consider all of those factors.
You don't necessarily reach proof beyond a reasonable doubt.
Initially, again, as with every day, you start with sort of
weighing the factors. As often as I know that now I'm
opposing my opposing counsel. So just a
review every 30 days.
-: I think our position would be that the sentence and title
that's reveal every certain circumstances and that that
might be more useful than having like, sort of tightly timed
attendance automatic reviews, but that's, um, that's
ultimately a practical matter. But that essentially again
as, as was habit a, you would start with some First of all,
you know, you you accommodate these requirements of things
that are told under 3062. They didn't simply consider that
to be optional, and add that I am but then due process has
its own requirements, absolutely independent rule 36 and 58
A where tension becomes too long, then you weigh those
factors and then if it goes on long enough, you might be
required to go to the under reasonable doubt. I would also
say that in terms of factoring and essentially the
competency of the court, the in this case, it is possible
that the different courts will end up being able to reopen
and restart again jury trials. Nobody knows at this point. I
don't think but I know that we started running the grand
jury again, on a limited basis. I know other counties have
not been able to. So there may well be ultimately factors,
that specific determinations about how quickly particularly
in particular parts of the state are likely to be able to go
to trial, and what role either the defendant or the
Commonwealth has been playing and encouraging or delaying
that.
-: Okay, thank you.
Just a safer.
-: Thank you. Good morning.
-: And one question. This question might not really be within
maybe should be directed to different councils. But do you?
Do you think the rule should end up being or the results
should end up being the same under 50 a day and 58 b? Or are
they just totally different? I don't have any reason to
think they should be different. I think Berkshire may be
able to possess some reasons they should be different. But I
think that insofar as our focus is on interpreting the
language I mean, in terms of due process that may well be
raising blight issues. difference that I wouldn't
necessarily be qualified to answer. But in terms of, you
know, the question of what has happened so far? I think
they're similar. All right. And then my other question is,
if we
assume for
the sake of argument that there's no end in sight to the
situation we're in with the COVID-19
pandemic.
And if we assume that
you're in a position where
certain people are going to be held under 50 a day because
of dangerousness, and ultimately you may reach the moment
where due process requires you to prove dangerousness beyond
a reasonable doubt. At that point, I'm wondering, is there a
mechanism or do you see it to be possible to petition
for us, perhaps, to
order an exception to the no trial order?
You mean to try that particular defendant?
Yes.
I mean, I think that's an indictment of the Standing Orders
already provide at least for a bench trial to hold an
experimental trial. I don't know what would be involved in
holding an exceptional jury trial, just given the the
logistics is that I suspect it would vary from quarter to
quarter. I don't think we,
if there's any factual
basis that would permit doing it, basically, I would have
no, I would be on board with Satish being able to petition
to do it safely, in cases of by whatever process,
we are, we're
live we're ready for trial cases.
But you as I put my assumption is that
if you have to, if you can reach the stage of
proving beyond dangerousness, beyond a reasonable doubt,
you're pretty close, close to prove your case, I would
assume
most in most circumstances anyway.
Right. And then this is just a
more broad historical question that really may not be an
answer to given the nature What we're dealing with,
is there
any kind of situation that we can turn to historically, to
compare how trials were handled in in situations like that
disaster or
civil war? Anything?
-: I don't immediately know that I could look into it. The
constitutional provisions, the practical application of the
Constitution changed so significantly in the past 60 years
that I've read, there would be differences and how it was
handled, though. I don't know that that would be
dispositive. You know, and so technology just changes
everything and everybody communicate and and this moving so
fast because of international global travel that I can't
imagine who said anything similar?
-: I just wondered.
-: Thank you. And I mean, further. Justice can't be your
honor. My questions relate, it looks like you. You're
comfortable with the beyond once the time limit is expired.
You're comfortable with the beyond a reasonable doubt
standard correct. For proof of dangerousness.
It was certainly
your colleagues have not conceded that from what I gather so
far. What else? What else do you have to prove? I'm just
trying, you know, to imagine a situation maybe we have a
resurgence of COVID just keeps going. What else do you have?
You know, and we're now well beyond the time limits, you
know, 180 days beyond the time limits. What else you have to
prove anything else beyond dangerous beyond a reasonable
doubt you have to get into the substance of your case and
satisfied burdens of proof on that. I I would argue in
favor. I think I said it earlier. We We would have no
problem making paper showings on that in some detail. We we
would be reluctant to volunteer ourselves, obviously what's
necessary, it's necessary for full evidentiary hearings, at
which point essentially you're holding a two tiered system
bench trial before a jury trial. And that's just right. A
lot going on when we're trying to move in. But but I assume
it would be theoretically possible to acquired would
certainly be be open to making the shift again,
demonstrating that we are in full good faith prepared and
able and expect to be able to bring the defendant to trial
on specified evidence.
-: So
in the beyond a reasonable doubt standard on dangerousness.
I take it you're relying on habit, right. That is what is
that but get that. I mean, is that just pulled out of where
does that come from? Because we're it's pretty it's a
significant departure right? From, I just don't know where
it comes from, from my reading of avid is that Abbott gets
it by analogy with other predictive detention, which is
largely Sep and possibly also civil commitment as the I
don't know, he rose on the stuff to get. Okay.
-: All right. Thank you.
Thank you.
All right.
-: All right. Since I wrote that this
comes from the civil commitment, obligation to prove beyond
a reasonable doubt what happened says at some point, you may
need to seek a civil commitment, where the standard is
proved beyond a reasonable doubt. Isn't that whatever it
says,
as my understanding,
okay, if it was in the context of doing a civil proceeding
as an alternative that is not set up as a separate criminal
hearing, it was said, If you at some point, you may need to
civilly commit the person as opposed to holding that person
awaiting a criminal trial and definitely correct obviously
Your understanding governs I thought it was potentially
instructive on the issue of what is the efficient process? I
look back to it. There's a comma. I understand that whether
the commons used to be a separate, as opposed to being part
of parcel of a civil commitment hearing. So I do understand
that it could have been read that way. But it wasn't how I
wrote it. But Alright, one core one question. We've been
burdened with many questions. So let's play this out. We
have said that we are going to be hoping perhaps to be
beginning jury trials in September and may be able to be
jury of six initially. But at some point, we do expect to
once again have jury trials and then the SJC order
continuing old jury trials will end. Is it fair to say that
at that time, once the SJC order, and then any further
continuances would have to be governed By the individual
judge with regard to 36. Two? I think so I think that I
mean, obviously, we want to make sure there is not a
situation where 58Afor everybody runs out, but we can only
try some subset of people immediately and we can try other
people immediately plus one, that there has to be some way
for taking into consideration the need to do that. But yes,
that ultimately, I think the the regular proceedings of
trial by one way or another would govern. So it appears in
terms of the issue of the due process issue applies only as
long as there is no speedy trial exclusion.
-: Correct.
Me if there's a speech machine, you're I'm sorry, I'm gonna
be the good cause kicks in only when there's no longer any
speedy trial exclusion. with the caveat that I'm not the
authority and good cause among the litigants. I agree. So
the issue really comes what happens if the delay arising
from Suitable periods under 36 are so long that those
periods themselves trigger a potential due process issue.
-: Is that your understanding?
-: I think so I think it's sort of an either or that either
we have Colin from this court finding of justifiable delay,
and that that is just on its own or the time on that, and we
did a good cause analysis. And now looking at the due
process, due process analysis, and then guess what is one
concern I have, and I don't know how you would evaluate it.
I've always heard about situations in which a defendant in a
case in which the person is not likely to get a substantial
sentence is faced with the dilemma of saying you can walk
out today with a time served or and insist upon your right
to trial because after all, you might be innocent, but that
will substantially delay that will prolong your detention
situation in which a due process concern
kick in.
-: You mean as time goes on, or immediately, you know that
happened today? Well, I mean, I'm talking about cases,
mostly district court case, post a superior court cases in
which a judge can say, really the sentence I would enclose
for this case, even if you'll be found guilty is going to be
no more than what you've already served. So if you were to
plead out, I would accept the time served. That didn't
generated due process concern for prolonging the period of
detention. I think that would certainly be amazing. One of
the things I would think most likely to be a clear factor
and then a due process analysis, which again, we foresee
being necessary going forward. That that was, you know, the
question of what sentence would have been that conducted?
You know, it's not analogous to incompetency, where you have
you can't hold somebody for more than half the time they
would have served The doubt principle the equitable
principle underneath it, I think would certainly hold true
and that would be a major factor protected to consider.
Okay, I have no further questions. Any other questions many
of the justices and hearing none will turn to this demo. In
the case of Commonwealth vs. Horton in assemble, you have
two minutes to introduce your arguments and five minutes in
theory in total or until questions and which may be less
than the 45 minutes that we have for questioning from Mr. So
you may proceed Miss assemble, if I may please the Court
Catherine summer for the Commonwealth. I joined in the
arguments advanced by my colleagues here in in fine Norfolk
in their Amicus letter, but I'd like to focus a little bit
on the good cause issue. That the exception for good cause
contained in 58. A and B is is not defined, but it's been
commonly understood and used in context of excuse me delay
circumstances that are beyond the control of the parties or
notwithstanding their diligent efforts. And this covert
crisis, which has closed our courts to non emergency
business, and frankly paralyzed our country and affected all
pretrial detainees in a similar manner, it is a clear
example of this. In CPT is one, the court found change
circumstances for pretrial detainees as a matter of law due
to the COVID crisis. And the Commonwealth urges the court to
make a similar finding with regard to good cause for the
across the board trials delays that have been occasioned. It
also bears repeating that a specific avenue for relief for
pretrial detainees was established by the court and CPCs one
in Essex alone. More than 270 petitions for relief under
CPCs. One had been hurt in the juvenile and district courts.
72 of those were allowed instead See those who were denied
were then heard on 211 three review, but a very hard working
single justice. Importantly, that process under CPCs
includes considerations of public safety and defendants
dangerousness, which has been already noted. A bail hearing
specifically does not. And I would just note, a particular
concern raised by the defendant, in my case, who's been
indicted as youthful offender. There's there's no question
we will all agree that the juvenile justice system is
designed not to punish, but to treat and rehabilitate. But
the defense allusion to good time and that system is a
misnomer. Even if it's the wise commitment results,
consideration of time spent custody, pretrial and treatment
and progress during that time is considered in the
classification process. And while I'm I'm not an expert in
that point, I would refer the court to a priest that was
just filed in this court by the Department of Youth Services
Karma versus Lopez and try out 129515 and one six, which
specifically discusses the concept of dead time and refused
it. And I would suggest that nothing in the analysis in this
case as to the tolling issue or the good cause issues under
58, A and D should defer for juveniles or youthful
offenders. But I would be happy to entertain any questions
this Court has. All right.
-: Yes, good morning.
Is I'd like to pick up where you left off, why shouldn't it
be different for juveniles? I think that the dead the
tolling issues and the good cause issues strike the same
across adults and juveniles. I do think that if this court
were to reach the point of creating a process analysis, and
recognizing that at some point Despite the permissible
detentions under the law, that due process considerations
have been implicated, then certainly at that point, the
juvenile status is is is a valid consideration in the
totality of the circumstances. But otherwise, I would
disagree that there's any good cause for, for treating them
differently when when reviewing whether or not the detention
and the delays occasioned by the COVID crisis are valid.
What tools would be available to defend dissolve challenge
continued attention this descending order language upon the
juveniles have and can provide file motions for presumptive
or non presumptive relief which are being heard, you know,
across the Commonwealth.
juveniles can,
like other individuals can petition for exceptions to the no
trials being the general no trial rule right now to have
their cases heard. But really the the idea that juveniles
might be tempted to to plead a case. It's really less
applicable when we're talking about juvenile commitment
because juvenile commitment is to a certain age rather than
a determinant period of time. So there's no clear benefit to
push a juvenile towards trial or plea. Even more so than
then for an adult individual. And certainly, the purpose of
the DBS commitment is to rehabilitate it to provide
schooling is to provide x access to care counseling, and
it's not a punishment. And and I think that's an important
consideration
for juveniles.
For someone who you think is the you think we should do?
-: Well, I
we're certainly would love the court to clarify its position
with regard to 50 a day in the standing order. And it's our
belief. But of course, we're in the funny position of
telling the court what we believe the court isn't. Hmm. It's
our belief that that that is a logical conclusion of the
court standing order, whether, as with all drafters whether
the court had it specifically in mind or not, we would ask
the court to clarify that that is, in fact the effect as as
many lower court judges have found but certainly like the
court to Find that the COVID delays constitute good cause
for delays of the trial, they strike across the board with
all defendants, and it would be helpful for this court to
make a pronouncement in that regard as it did for pretrial
detainees with regard to change circumstances. And I think
our office in conjunction with the other offices who are
arguing here today recognize that because there is no clear
end in sight, even though we seem to be moving in a good
direction, that it would be appropriate for the court to
recognize that at some point, a due process violation claim
might be brought by by an individual who is incarcerated,
and that at that point, there should be a totality of the
circumstances analysis to assess whether the detention is so
severe that due process violations have occurred. But I do
think it is important to note, as I think you noted, just
dislike that. What typically happens, I mean, it is not a
typical for the 120 or 180 days to be exceeded for any
number of reasons, for excludable delays by the defense for
a good cause related to matters of evidence in witnesses. So
this is not a unique circumstance in the forest. The idea is
that trials does not happen within the city within the time
period specified. And, but I think is appropriate for the
court to recognize that, that at some point that delays may
be so extended because of closures or the log jams created
by closures, that a due process claim could be heard by the
court and advanced by a particular detainee.
Okay, well
Getting simple for myself.
-: Now, if they were to be in the ordinary
times, priests priests all the time, so it's talking about
ordinary times usual, what normally happens in a 58ACPAP
situation in which the hole described before the trial could
be, what kind of hearing would be held in use and you would
not include dangerous this will disappear. One regarding
bill
is that that's a key distinction.
-: Well, in in in this case, for instance, in the Horton
case, what happened was that the defendant was held on
dangerousness grounds for 120 days. On the 100 and 20th day
The case was scheduled for hearing. At that time, the
parties argued whether or not a bail hearing should occur.
The Commonwealth argued that the tolling provisions of 58A
applied so that from the time of March 17, until this day of
the hearing on May 4, the time and 50 a day with essentially
excluded She also argues a defendant hadn't objected to
delays. The Commonwealth can argue for excluded time at that
point. And so at that point, the court would the judge would
typically make a determination whether or not the time has
really expired when you take into account excludable delays.
Okay.
Is that okay?
No, no, no, of course it would, as it did in this case
having a bail hearing for the defendant
to bail him does not take into account dangerousness
correct. which is which is
a factor is another reason.
-: I'm sorry, I'm sorry. That's the number that the system is
just this is a this is this is just as well what your
argument is, it is always No please take into account any
dangerousness it is it is the impetus. Certainly for for our
belief that 50 a day should continue to apply. Yes, no.
Okay. Let me ask you a question but an individualized caring
right Yes, you're on. Okay. Yes. The final question, which
is one that I asked before of Mr. Hughes, basically looking
for declaratory judgment that was really, really looking for
you looking for? Yeah, really glad to hear it. And in
particular, and in the sense that, I mean, it's a time off
is asking for a legal interpretation of the standing order
and clarification and become is asking for a determination
of good cause, which can be applied by the lower courts. So
if that is a declaratory judgment, which Sam I'm not sure
it's better
to come off as asking for that.
Okay. All right. Thanks. I'm done
to Cisco's IANA.
Thank you.
-: So, I think
Western that you know, we're all used to excludable delay
the DNA tests going on, etc. And we use excludable delay
applying rule 36. But here, I think you'll agree with Miss
stern that at some point there reaches a due process overlay
correct? Correct. Yes, again, and nom and certainly, if ever
there was excludable delay, the culvert crisis would be it.
So now when we get to the due process over way, and you
discuss the totality of circumstances test, can you give me
some instances of some factors a judge would have to look at
in that totality of circumstances. Certainly, and you're
going to find them somewhat repetitive. I have a feeling but
I think they would include the length of the pretrial
detention, the the degree of dangerousness the seriousness
of the offense that has been charged. Any unfair prejudice
to the defendant may also take into account the strength of
the Commonwealth case, although I would say not with any
inflated standard of proof, which is suggested by the
defense, but just as one factor that the court may consider
and really take, you know, there, there is no set time for a
set of individual can be held. And there's no set
circumstances, but I think those are typical circumstances
the court might consider. Okay, thank you. And then just a
final question, mechanically speaking, all these cases would
occur at the end of the time period, right. So what when is
this triggered?
This due process overlay this this review?
And I have a short i don't
i don't think that I really think it depends. On the
individual case, and I think that once the if the court
establishes parameters, then an individual may bring a claim
of due process violation. Just as a defendant, a detainee
can bring a claim for presumptive relief, once again, for
relief as a pre trial detainee once because you'd you'd
assume it would be malpractice for any difference during not
to bring the chart a due process where you claim the day
after the time and right. Well, I,
-: I wouldn't because and
because the circumstances of the case when when when you're
arguing I'm one day beyond 120 or I'm you know, a month
beyond 120. I mean, the the enormity of this, of these
detentions that are disgusting and in cases that the court
mentioned such as Ngf I believe the defendant was held for
seven years suggests that it's just not a due process
violation. Individual should be held everyday commonly are
for short period following. So I guess that's where the
rubber meets the road as far as, you know, what are the
factors? And then what is the trigger? Should we set a time
limit limit on when it's triggered? I mean, that the court
could certainly set a time limit for it after, after a
tolling for after the tolling period is completed, but I'm
concerned I would send the wrong.
No, I mean, I think you suggested it's not
the day after, but like,
should we set a time limit? 30 days, 60 days?
-: Well, well, certainly. I mean, the the outer limit would
seem to be, you know, the speedy trial right to be brought
to trial within a year.
So
yes, so it's a court settled limit, you know, such as 60
days or 90 days beyond. The towing period, it could
certainly do that in a way to provide some guidance and not
have, you know, just a flood of motions brought, as he
certainly seen, you know, in with presumptive release
motions and if I hadn't considered it, but I do think that
that, that if the court set a minimum threshold that that
might be helpful.
-: Thank you. So questions I have,
just slowly.
-: Thank you. Good morning, Miss.
-: Let me just make sure I understand your your field for a
good cause in statute under 58Athree. So we are we've read
a lot in the briefs and we've asked questions about the
relationship between
our order and
36 B to F. But I think your position is that with a statute
says but in the absence of good cause the person We shall be
detained. That you are saying that good cause is for those
circumstances,
when is
a reason to continue to hold somebody, but the excludable
delay under Rule 36 no longer assisted in, in keeping the
person held, whether it be 120 days, 180 days or 90 days, is
that right?
-: Correct. Okay. And then
you agree that,
again, we're all struggling but there comes a point in time
where
we have a potential due process issue and you've answered
just disguised as question about the totality of the
circumstances. Really difficult one issue as to
When when it is,
but let's assume for the purpose of my question we're at the
whim. And the question is what what the healing look like
What does
due process
require under the United States Constitution under United
States versus Lando and under Mendoza What does due process
look like when we reach that point was the hearing look
like? I don't think the hearing itself is is so very
different from you know, a 50 a day hearing from a bail
hearing
where the parties submit information,
become most and submit you know information
about the offence
to show the strength of his case. Opponents roughly but a 58
eight hearing looks a lot different than a bail hearing.
Yes, yes. Well, I think that a due process hearing can can
be conducted under on the papers for the most part. With You
know, it, it primarily would seem concerns information, you
know, factual information. How long has the person been
detained? What's the nature of the offense? What? What is,
you know, what is the nature of the Commonwealth proof? Did
somebody sell drugs to an undercover officer? Or is it a
much more difficult case to prove? All of these factors can
be introduced, and I don't think that it probably needs to
be evidentiary. I think that it could be done based on the
assertions of counsel. Okay, and lastly, as far as abot a
goes doesn't seem That the points are very important, but
doesn't seem that alidade really works as a doctrinal
framework. Do you agree with that? I mean, the principle is
important, but trying to chisel in progress being made and
reasonable period, all of that into COVID-19. From an issue
of competencies. It's a lot of chiseling to fit that in as a
doctor, do you agree or disagree? I agree that some parts of
it don't fit as well as others. But I do think that the
basic basic components of a due process claim that I
mentioned are mentioned similarly, similarly, and abigai.
And I think there's just general due process considerations
with regard to detention. So, so yes, I agree that it
doesn't fit perfectly, but but it's some helpful guidance.
can be extracted from it. For sure.
Justice but
-: Good morning. I was wondering if you see the juvenile
court standing order,
as speaking at all to the tolling
of the time
juveniles been
detained under 15.
-: I, I don't think I do now. And I believe the defendant in
our case talked about the possibility of holding bail
hearings, which, you know, is certainly true invalid. But
I'm not sure how anything in the standing order I not aware
of anything that specifically affects this, this issue. What
would you say that the court can hold bail hearing? But
you're saying not until the excludable. time has expired is
happening? Correct, correct? I I think that I was I was
confused by it by by an argument made in the defense for
you, which seems to focus on the fact that bail hearings can
be held, which was to come up doesn't doesn't contest the
capability of holding hearing on any on any of these points,
but just the propriety of it. Okay.
-: Okay. Thank you.
It's just safer.
I have no questions. Thank you,
-: Justice character. And so, you're calling. Miss stern
suggests that we should incorporate the beyond a reasonable
doubt standard for dangerousness. In the due process, part
of the analysis Do you agree with that? I don't think it's
necessary. I think that the typical showing with
dangerousness is is appropriate, particularly when you're
taking into account all of the other considerations that
that surround it. And I think in general, that is more
helpful for the court to provide a list of factors the court
can, the lower courts can consider and should consider, in
assessing this issue then to set up any inflated or
standards of proof for any one party. Whether it's, you
know, proof beyond a reasonable doubt, of dangerousness or
facts of the case, I think that the due process analysis is
is satisfied by nearly taking some count all of these
factors
under I'm just confused. So,
if we've got someone you know, we're well past, you know,
we've gone through the excludable delays. Well Over the 180
days, we're holding someone
don't come back, don't we now exit in
the guard.
And then we need to we need to raise that standard somehow
because otherwise, it's just the same. I mean, there's no
consequences of this going on and definitely Well, I think
that the question is, is really is the defendant being held
too long? And, and in that seems to me the crux and the
difference when you're viewing it months and months down the
road, or however far down the road. Is this too long?
Under the circumstances and and
dangerousness is a factor and all of these other things are
factors but but I'm not sure that upping the ante Have one
particular factor is serving the purpose? Because it seems
to me the crux will always be like, Is this just too long?
In this tality of the circumstances? And and I think that
that's what changes and that's what can create a due process
issue. My other question is what, you know that we treat
juveniles differently. How do we, when we write this
opinion, is the juvenile due process discussion, the exact
same as the adult to proper discussion? Were their
difference here that you're recommending? I think that the
only difference is that, you know, the court would, of
course, take into account the fact that he is a juvenile.
The fact you know, any circumstances he might want to raise
about his detention would be valid considerations, I'm sure.
But I don't I think the process is different. And I think
there are things that if you explain that a little more,
because I mean, a juvenile is less vulnerable to COVID than
an adult usually. So, um, is that cutting against the
juvenile? I'm just trying to understand what is juvenile?
How does how do we take into account juvenile status? I, I
the the science on COVID is evolving and changing so rapidly
that I would not make any pronouncements about whether
juveniles are less susceptible to COVID.
-: I've washed my ground join
tree Shasta.
-: So I you know, and I think certainly there's been a
resurgence of juvenile cases, particularly in New York for
COVID. So I would not rely on it. But again, I just don't
get I'm just trying to, you've got a juvenile case. Our
juvenile justice system is very different. But I'm just
trying to understand it. It basically, I'm not sure it's
helpful just to say that he's a juvenile and next the
difference I'm trying to understand, what do we do with that
difference?
I am,
I would, I would just say that I don't think any of the
circumstances pointed out in the defendants brief, are valid
reasons for treating juveniles differently. So and I and I
can't say that I have any of my own, except, you know, for
the general considerations we have,
you know, in in determining whether
it is
it is compatible with our the goals of our courts to treat
and rehabilitate us. And if, for some reason, we feel like
that's not being achieved in the juvenile setting. In a in
a, in a committed setting. Then I think there can be
considerations about that. And I really, I don't know how to
quantify the difference except to say that we do often take
into account the age of offenders, the circumstances of
their detention, and and if to any extent they are different
to the juveniles. And I think those are factors that he
could he could raise.
-: Thank you. That's all.
-: I have. I think the only one question we have had, over
the course of time many cases in which the there's been
excludable delay under Rule 36 that's gone well beyond the
120 or 180 days we've had. We've had with Nicky witnesses
who have been ill we've had counsel who've been ill we've
had motion to suppress which have been complicated and taken
a long time to resolve. Have we ever if we ever But there is
you can move for a due process hearing, when there has been
excludable delay that is with it that has extended to 120 or
20 days. I'm not aware now in that circumstance now I'm not.
I'm not aware of any such case. So what what makes this form
of delay, which is depending on what happens in September in
the ballpark of six months, what makes this period of delay
so unique as opposed to other forms of delay, that are
excluded under Rule 36, whether it be because of illness or
the inability to locate a witness or because of the
resolution of a complex set of pretrial motions. It might be
in this case, the the indefinite ness of it, now that the
court's orders are not indefinite by any means, but we all
understand as the The orders have been reissued and reissued
and that that it is unclear exactly when it will end. And
for that reason, I think the Commonwealth understands that
at some point, which, as we advocate in our brief, we don't
think we're at by any means. There may be due process
concerns. Even though even though we're bats because of just
the complete inability of the Commonwealth, to bring a
defendant to trial, and while that satisfies the statute, I
believe the statutes and the court rules it's possible that
a defendant could bring a claim in a particular case that it
is unreasonable and violates due process and and we
recognize that possibility. And and for that reason, we
understand that the court may also want to recognize and
provide parameters for the courts. As the lower court, or it
may find that it's premature to do so. But it's certainly
something that we I'm sure we're all thinking about, just
due to the indefinite nature of the current crisis. I have
no further questions. Are there any further any further
questions of the justices? Hearing gun, the district
attorney Harrington in the case of Commonwealth vs. Scott
Vs. Smith, I'm sorry, Scott.
may please the Court district attorney Andrea Harrington for
the Commonwealth. I am here today asking the court for a
process for trial judges to follow because the inflexible
application of the pre trial detention time on it, as
applied in this particular case, will result in a pretrial
release of individuals who pose significant risks to my
community. For example, there is an individual who is
currently held pursuant to 58Acharged with assault and
battery with intent to murder arising from his attack on his
wife with a hammer. The victim tragically died from her
injuries many weeks after the initial attack. And so the
Commonwealth is waiting for the Emmys record in order to
seek a murdering diamond. Based on the logic used in the
Smith case, the trial court would release this individual
one says 180 day to pension period is up just because the
clock had expired. This inflexible approach in the Scott
Smith case is in keeping with local core practice here in
Berkshire County. And it's inconsistent with the legislative
intent of the detention statutes, pre or post public. And I
also want to make clear that I do not in any way support
indefinite detention. What I do argue is that the combined
language and language of the statute, rule 36 in this court
standing order results in excluded time. Up to this point
and allow for excludable time based on good cause and Abbot.
I also would like to point out to the court that a more
flexible approach incentivizes individuals who are currently
detained to agree to healthful conditions of release. In the
event that, you know, the Commonwealth can come up with
those kinds of agreements in lieu of proceeding forward to
push for their further detention. I would also like to
address some of the other questions that have arisen and
some of the points that were made
in the defendants brief.
-: We are really asking for a process here. And the process
to me would preferably be a process where you know the
Commonwealth bears the burden of proof. The burden of proof
is a clear and convincing evidence standard. Do not believe
that we will Be able to meet the burden of beyond reasonable
doubt when we're trying to argue that there are no
conditions of release that would protect the public. Because
it would be requiring us to predict future behavior based on
past instances, that would be similar to an SDP case, which
requires an expert opinion. I think that that is an
impossible standard to me in these circumstances. And I also
would like to say that I believe that requiring an
evidentiary hearing to determine the cause under 58Awould
create a strain on the already burden trial courts. And I
don't think that it's feasible, nor is it consistent with
the statutes and currently written. And so with that, I will
take any questions that may have
to disappoint. Well,
are you asking for something different than your colleagues?
-: Well, to the extent that we really would prefer To have
the burden beyond a reasonable doubt. I don't think that we
can meet that. And otherwise. We I believe that the word
order indicates that you intended to
decouple
the clock stopping on hearing from speedy trial. I think
that the language at paragraph 13 in your order has
indicated that I think speedy trial is a very different
combinations and how long people can be held to trial. So I
think he'll work we would be comfortable with the court
saying that the clock stop as a discipline or whatever date
that you choose, and flash forward on sometimes. Considered.
-: Okay. All right. Anything else? You
got it just just one one question and you've got a defendant
who's accused of domestic violence and very serious case who
has compelling
dangerousness issues.
-: But where's that tipping point where we go beyond excludab
e delay? And we start looking at due process consideration
. What do we say in our opinion, when that is reached? Wel
, and I think that the dance alluded to this when you ha
e defendants that are being held pretrial, and they a
e approaching, maybe half of the time that they would have
o serve were they to be found guilty
or further than than,
you know, I saw that point as well.
-: That's 16 this section 16 nap. What we do in competen
y cases, right. You want us to borrow fr
I mean, to me, I looked
at that as potentially as a guide.
Right. No further questions. Thank you.
-: This is Lily, here. Thank you for coming on. Come on. Wh
t about the argument that that some of the council made he
e about in our order reference to t
deadline?
You know, we were 44. What what are your thoughts on that?
-: So, in the initial order that the court put out, you kno
, to me, I took that to mean that you were - trying to crea
e a castle provision that would maybe contemplate a lo
of different circumstances and it was my understanding
and other judges that Hogan in a superior court case, has
ame to the same conclusion that that paragraph, I believe,
it's paragraph 12.
To be particular deadlines
that we're talking about here. That's
how I read it. That's what I
know exiting
Joshua Warner.
-: And I think the athletes position is that that that use
deadline in Section 12 prefers only to procedural deadline.
What do you think that might not be? Right
Well, I think that
this court does have more latitude and interpreting his own
rules of court than it would in a statute. There's also a
footnote 11 from Commonwealth v. Perkins, that I think is
relevant to the issues raised here are significant to the
operation of the criminal justice system with a crime to
apply a strict waiver rule in this instance and we consider
the merits of the Commonwealth argument. So I think that
that could potentially be instructive. All right, one last
now joining Joshua Werner more one last area. So we're sort
of struggling with rule 36. And when's the point? At which
we're dealing with a constitutional issue and a due process
issue? Are we looking at the wrong place when we're talking
about rule 36, to try and figure out what this point is?
Aren't we really talking about an issue that's, that's
approaching the concern of constant constitutional right to
a speedy trial? And perhaps the factors that the court might
consider under Obamacare versus going go as far as trying to
understand when that point is, as opposed to a presumptive
particular date?
-: Well, Your Honor I wou
-: I would definitely argue
that there is a strong distinction
between PPD trials, people are not detained for trial
and people who are being detained for file. And other than
that I think that perhaps I would agree with you on that
-: Okay. Thank you very much.
-: Hi, good morning. My question
for you is assuming that
the standing order does apply to
retention due to dangerous
if we look at 36 B to F,
it requires specific
findings in a particular case
by to qualify as a period of excludable delay and So I'm
wondering if
our standing order
meets the requirements of 36 B to F, where were we just sort
of blanketly say that
at the time
that this
it should be
excluded for the entire project.
justified I, I believe that because of your supervisory
powers over the core, that is you have the authority to
change.
deadlines are 3060 to add
on with your standing order. Thank you.
Have no no questions thank you
no further questions. Thank you.
-: Are there any questions? So if counsel I'm sorry, a
y question
attorney hearing
and hearing
and I haven't heard from each of the
three prosecutors will
now turn to the defense side
11. You are first up in the case of the Commonwealth vs.
O'Connor and Lucci. Thank you, Mr. Chief Justice. may it
please the Court Patrick Levin on behalf of Cameron Luigi. I
will address issues common to the three cases. Attorney
Anderson from Mr. Horton will focus mainly on issues
specific to the juvenile court. And then attorney
Schneiderman for Mr. Smith will talk about the specific
issues that arise in the context of bail revocations
where there hasn't been a
finding of dangerousness at the outset of the case.
-: The Commonwealth has presented
this case as a choice between
imprisoning everyone now, Brian Anderson bail until the
pandemic is over or letting them all out to roam the streets
at will. But as Mr. Lucci himself demonstrates that
the false choice
The reason why is simple.
-: People don't just walk out of jail when they're 58
a detention expires. Instead, they get a bail hearing. Bail
s our Commonwealth time honored method
of dealing with people
accused of crime. And our bail statutes give judges
discretion and flexibility, including the ability to impose
conditions of release and even where appropriate, defacto
orders of detention as occurred in Mr. Lu G's case. Section
58A is a rare exception to a usually unflagging principle.
People who have been convicted of no crime may not
e imprisoned by the state. This court upheld that exception
5 years ago, only because the length
of detention was strictly
limited to 90 days. But the statute now permi
s presumptively innocent people To be imprisoned for
potentially up to 300 days before they can seek admission
to bail. Assuming that longer duration remains permissable
under the Declaration of Rights it,
is not recorded.
-: It surely approaches the outer bounds of acceptable
incarceration for presumptively innocent people. And locking
those people in congregate settings where they can't defend
themselves from the pandemic presents a serios
constitutional question of its own. argument today
is simple.
This court should respect the legislature's judgment
about the point at which present prevented
detention generally becomes unreasonable. Once that point
is reached, a bail hearing should be conducted unless
the Commonwealth moves to extend the length of detention
for good cause. Any other construction of the statute would
deprive pretrial detainees of liberty without due process
in violation of the 14th amendment and article 12 and of the
unalienable rights to defend their lives, seek their safety
and be protected by society. Under articles one and 1.
Finally, if the Commonwealth does move for an extension,
and evidentiary hearing should be held to determine whether
a good cause exists to deny that defendant an opportunity
to see fail.
And in light of the constitutional concerns raised
by incarceration during a pandemic without any prospect for
a speedy trial, due process requires a judge to subject the
Commonwealth case to meaningful scrutiny before extending
preventive detention beyond the duration contemplated by the
legislature
Specifically,
good cause for indefinite detention during a pandemic only
exists if the Commonwealth is able to demonstrate beyond a
reasonable doubt that no conditions of release could suffice
to protect the public and that they possess sufficient
admissible evidence to get the case to a jury when trials
resume. I thank the corporate attention and open to
question,
Justice Mike.
Just as like you will need to unmute
-: Right, I did. I'm saying Good afternoon. Good morning.
I wanted to talk about the hearing the good cause hearing
you're talking about, I take it at that time which
dangerousness could be considered. Yes, that's exactly
right. dangerousness would be certainly a relevant factor
as a good cause hearing
and it just needs to be proved beyond
a reasonable doubt.
-: Why it really could be unreasonable doubt
from I mean, that's that's fine? The statute is it kind
f ugly that was that was that was upstairs.
It did come which
me the first time around and proving dangerousness is it.
-: That's correct. And the only reason that a lower standard
was acceptable under the Declaration of Rights, according
od Commonwealth vs. mendonsa was a strictly limited duration
of the potential incarceration, where the Commonwealth
is seeking to extend the incarceration indefinitely during
a pandemic a higher standard of proof is required under
principles of procedural due proces
Hearing Because bail hearing
if the judge were to
determine that good cause does not exist to extend detention
without bail. At that point, the judge would make the bail
determination.
Okay, I don't have anything else. Thank you.
Justice getting
the minus 11. Good morning. Yes. You questions. So, the due
process hearing in same question they asked the prostitute
is one is is triggered one day after the time period runs 30
days, 60 days. What's your view?
Your Honor,
in terms of when due process considerations kick in? The
answer is right now. There are serious due process concerns
about keeping defendants who haven't been convicted of a
crime locked up during the pandemic, even if the time period
hasn't run right now. Well, Your Honor in terms of someone
else's since the beginning of the pandemic, they Still under
the original clock, you think that's a due process crisis? I
think there is a serious due process question presented by
the conditions of confinement in the county jails. Obviously
this case is doesn't squarely present that issue. But the
yesterday the court held that the foster plaintiffs were
unlikely to prove that this environment of correction is is
committing an Eighth Amendment violation. But it did note
that the conditions in the DRC are sufficiently
dire to meet the
objective prong of that Eighth Amendment analysis and the
object of crime is the only prong that that issue for a
pretrial detainees who is not constitutionally permitted to
be punished at all. So obviously, the the constitutional
that particular constitutional issue is not squarely before
the court. But it's uh, can you it's not, Your Honor. Court
has to construe section 58A , in a manner that's consistent
with the Constitution. And with a period it's 50 a day has
an excludable. Delay provision, correct? Is that right, Your
Honor, isn't the inability of combo to proceed to trial
excludable delay on steroids?
Well, Your Honor, under this Court's
standing order, that delay certainly is excluded from the
speedy trial calculation under Rule 36. And as a result, no
defendants case will be dismissed with prejudice based on
the pandemic delay, but the statutory language of Section 58
A does not incorporate all periods of delay that are
excluded from the trial calculations.
There are two
distinct types of exclusions under Rule 36. One is the
exclusions that are specifically defined in that rule. And
the other is exclusions under the Common Law in general
principles of fairness. And this the 58 statute specifically
incorporates only the exclusions that are specifically
defined to arguing that the Cova crisis is not excluded with
delay on how your analysis
the cause of crisis
is not in place.
Yes, Your Honor, the answer to the question is no. The code
of crisis is not excludable delay under Section 50. A It is
only acceptable delay under Rule 3060 trial analysis. And
that is based on the plain language of the statute and the
principles of lenity and constitutional avoidance. And so if
we go to intent if it was our intent, knowing that there
were people held under 50 a day to exclude the time in our
order, that the end of the inquiry.
Well, Your Honor, no.
I think if it had been this Court's in I think that the
court would have said so much that really quickly, but we'll
save that for later. And then you also argue that this
Don't worry,
if we have a domestic abuser, someone who's really, really
dangerous. There's always bail. But isn't that what you told
us not to do? And Brandon, because if the Commonwealth if
we're using the bail statutes the way they're intended to
do, and we're only holding dangerous people under
dangerousness as opposed to just giving them a gazillion
dollar bill, which used to happen, you want us to revert
back to the bad old days and say, well, don't worry, just
give them they could get bail.
Is that what you really mean?
Your Honor, it's clear that judges cannot consider
dangerousness when setting the amount of bail, but they can
in particularly in domestic violence cases. There. Are
conditions of release that are available.
But in addition, I think that
a very dangerous domestic violence defendant might be a
prime candidate for a finding of good cause to continue to
detention. It's just that there would have to be an
evidentiary hearing to prove that that good cause existed.
And you think everybody basically, who's held on 50 a day in
the Commonwealth gets one of those hearings right now. I
think everyone gets one of those hearings, when the the
legislative timeline has expired, which is 20 days. It's not
what you said before I asked you who gets those heroes? You
said everybody, because I asked you specifically, if it's
people that when the time line hasn't run, and you said yes.
So this is your
Your Honor, I apologize for that confusion.
I
thought that your honors question incorporated an assumption
that the delay from the pandemic was excludable from that
time,
but the
Assuming that the court were to construe 50 A in such a way
as to avoid that, then the if someone has only been
attenuate you, would you, you would save as to save us lunch
the one day after.
Yes, exactly. Okay. Thank you. That's all I have.
Justice slowly.
More misled.
-: I want to start with the ethics position on what could cau
e means. There's been some suggestion in some of the briefs
n our argument that cause good cause is sort of the condu
t through which we infuse a a process analysis but the cam
s position, recognizing that there is some point where
a person is held so long, that there is a due process conce
n me we know something only weeks Long for a trial, even und
r a constitutional free trial and, and Abbott as well, but t
e ssps position, recognizing there is at some point a d
e process concern has a different view as to a good cau
e meet, they look at 15 a three and say that the individu
l being held shall be brought to trial as soon as reasonab
y reasonably possible. But in the absence of good cause, t
e person shunt shall not be maintained any longer than
And that deposition is so
good cause means circumstances, not constitutional
circumstances with as good cause to allow somebody to be
held beyond 120 days, 80 days or 90 days, and that's not the
court that the legislature
Why is that wrong?
Your Honor, I'm I'm not sure that that is wrong. Exactly.
The question is just what does good cause me at that point?
And so the it's really, I mean, this whole case, from my
perspective is purely a statutory construction case. And the
constitutional principles are pertinent to the construction
of the statute under the rule of law entity and the
principle of constitutional avoidance. And so the court
should construe the statutory term good cause in such a way
as to minimize the risk of an erroneous deprivation of
liberty. Yeah, so I agree with the point
that
one of the reasons under cilantro and Mendoza That
preventive detention is constitutional, has to do with a
limited time period. And we see the ame versus Commonwealth
was reversed because of the lack of procedural due process.
Due Process issues. I understand that by getting to just
discussing on this point about day 121 a day 181.
What I'm
saying is that if we're dealing with statutory construction
here, so we're taking into account that concern that Salerno
concern, the police procedural due process concern where we
procedural due process is necessary to have this offender
detention situation but that does statute provides that it's
not 180 days or 90 days, he also has, as a matter of statute
before you touch anything constitutional. This good cause
and and then the position is COVID-19 equals Good God. Now,
if that's right, that doesn't mean that there's not still a
due process issue at some point in time. But the Chief
Justice referred to, you know, the normal circumstances of
how long somebody sells, and you look at 36
b b to an exclusively
and in a COVID-19 world, you're not having delayed because
of pre trial motion so something's under advisement or
witnesses and unavailable or a judge is making the the The
findings necessary as it relates to the interest of justice.
So what you have is you have individuals, maybe they were
they've been held for 120 days. The motions are moving
along. And now there's a request for a hearing based on a
constitutional violation. And this individual has been held
much shorter period
than
circumstances where there's not even a defense request to
challenge the constitutionality of how long somebody held
under preventive detention. One way around to say, if good
cause statutory interpretation means COVID-19.
Then,
what we're really dealing with is, at what point in time are
we talking about a Due Process violation for how long
somebody has been held, recognizing that in a COVID-19
world, many of these people will be held much, much longer,
much, much shorter period of time, then then an issue ever
would have been raised under the statute or the
Constitution.
And
-: I'm not sure I 100% followed all of that. But let me let
e say it much simpler. You got people held a lot less ti
e than you do in the normal course. You've got good cause
s part of the statutory interpretation as it relates to t
e concern about constitutional procedural due process. A
d yet, we're talking about 121 days. Being the trigger for d
e process, and I just am having trouble getting my he
d wrapped around that. I see, Your Honor. So I guess the fir
t thing I would say is that the cou
cannot
ignore
the overlay of
what COVID-19 means for people who are locked up. And so in
terms of when the due process concern kicks in,
and the fact that
a case based on factors that are particular to that
individual case, and you know that a defendant is navigating
the justice system in the normal world
may
stretch out for a long time. That certainly is true. But
under those normal circumstances, defendants are not locked
up in these facilities where they are not able to protect
themselves from a dangerous pandemic. And where potentially
they're subject to harsher conditions of confinement as the
sheriff's attempt to control the pendant. So, so the hundred
and 20 days during the pandemic is not the same as 120 days
before the pandemic started.
Okay, it but but that's sort of
that's obviously true. And and there's a recognition that we
have changed circumstances with COVID-19. From from some
people here to Chief Justice. So that's obviously true. But
isn't that sort of
baked into the cake of
the
reconsideration that a defendant is allowed in a post
COVID-19 world
rather than be positive as to whether or not as a due
process violation while you're I think it's pertinent to
this Court's understanding of what the legislative term good
cause means. And I think that just kovan
was quite right to say
that the legislative language contemplates a decision that
is based on factors particular to an individual defendants
case, rather than systemic factors that affect everyone in
the Commonwealth. Yeah, I mean, just makes a very good point
there. But if good cause, if COVID-19 has good cause as it
relates to more than 120 or more than 180 180 days, the
specific interpretation of 36 b two as it relates to 144 is
not really as important as one might think. And what really
is important is when we dealing with due process, and when
we are dealing with it,
what does it look like?
-: So I think I agree with you that the the good cause aspec
s of this case is the more important one. And the questi
n really is, what does good cause mean? And how do we figu
e out whether there is good cause in a particular case? And
I would just say that I don't, I think that the statute shou
d be construed in in such a way that the pandemic on its o
n does not constitute good caus
-: And that goods the good cause determination has to be ma
e as to each defendant individually, based on h
s dangerousness and the strength of the Commonwealth cas
Okay. Thank you very much.
Justice Bercy. Hi.
-: I think he said that as a part of that good cau
e determination. It's your position that the Commonweal
h would have to prove dangerousness beyond a reasonable doub
. Yeah, right. Okay, how would they go? How would t
e Commonwealth go about proving that the factors that would
e relevant to that determination are the same factors that a
e set forth in Section 58Afive it's just that the jud
e would have to be convinced to a higher level of certain
y that conditions of release would not suffice to protect t
e public and I think our trial judges understand the
e gradations and the standard of proo
Okay, but thank you.
Just the safer.
This is a free no need to unmute.
I know the
security device that it makes me put on the phone the show
tell So
my question goes to I think there's two questions. One is a
more philosophic, philosophical general question. And that
is,
in balancing all the interest here,
what
if any way do you give to the interests of the public and
public safety? I think that is an interest that is entitled
to wait in this analysis. But I just want to point out that
our system does err on the side of individual liberty, and
there are only enumerated constitutional rights on one side
of this balance. Well enumerated but also philosophically,
the whole purpose of setting up the government allegedly is
to protect us from each other.
-: So that that has to be a factor in this doesn't. Yes, Yo
Honor. I agree that it has to be a factor and that's why I
am contending that it should be open for the Commonwealth to
prove that good cause exists to continue the detention of an
individual. All right.
That leads me to my next question.
How far Should we go
to facilitate that? If you have a hearing for good cause? Do
you have a hearing? I assume you have a hearing? Yes.
And sometimes witnesses.
Yeah. To the extent that it is
possible to safely do so. Yes.
Well, that's my question, I suppose.
To what extent is the defendant or your defendant or any
defendant likely to be willing to waive certain things such
as
a confrontation right,
to in order to facilitate that good cause hearing
in the circuit court?
-: Your Honor, I think the answer to that is that the the, y
u know, obviously, that will have to be worked out on
n individual base
case by case.
But if it's not
possible to safely conduct an in person evidentiary hearing,
then obviously it's not possible. And so the court should
provide the maximum degree of procedural protection that is
possible at the time the hearing his health. And so if all
that we can do is a remote hearing with a chance to cross
examine witnesses remotely, then that is going to have to be
good enough that that's all that we can manage at the time
that the hearing is held. Okay, we're in let me just get it
we're in these circumstances, we think the best place for
defense counsel is with the witness in the courtroom or with
the defendant
or everybody's
or is everybody remote, how would you communicate with your
client?
-: So I, ideally the defendant, if possible, the defenda
t should have behaved in if that is not possible, then y
u know, courts are We're sort of figuring out how to do the
e remote hearings on the fly. And I think different cour
s maybe have done slightly different things. But if, you kno
, obviously, the I think some courts have sort of remo
e digital side rooms that a defendant and defense counsel c
n communicate just with each other, they need to take a pau
e and go into that side, the side chat, and so that that so
t of thing could be worked out, I think
-: Okay, thank you. I have no further questio
Well, thank you, Justice caster.
-: Um, so my questions relate to the good cause. So in t
e ordinary circumstances before these due - pro
ess considerations kick in, we have the normal standard
of proof right under 58Asection five improve all th
se. That's right, ri
Yes, and,
and those standards are What does remind me
-: So the standard of proof at the initial detention hearing
s probable cause to arrest and clear and convincing eviden
e that no conditions of release will protect the public or
n effect. So then you say that, then at a certain point
n time, we have a due process overlay to this good cau
e analysis, is that what we're doing? I'm just trying to ma
e sure I understand it, doctrinally and logically. So you'
e saying yes, the standards approved or kick are pushed up
y the constitutional requirements, right. That's righ
. Because it Yeah, it's a it's a, it's a constitution
l analysis, looking at the same factors that we're looking
t for good cause. Righ
-: Yeah, it's basically if you take
your starting point, my hundred and 20 days are up and
that's the time that the legislature said was presumptive,
reasonable. And now the question is, is there good cause to
continue holding me during the pandemic until it's safe to
bring me to trial. At that point, you have to conduct that
that Matthews versus Eldridge due process balancing and
figure out what procedural protections are necessary to
lower the risk of erroneous deprivation of liberty. So so
it's it's so then we're really looking to Matthews versus
Eldridge to provide the constitutional justification for
increasing the burdens of proof on the Commonwealth is that
where your is that will we will surely be applying Matthews
versus Eldridge or Abba de What should we be applying? We do
so I think the most pertinent cases are ame Mendoza and add
an egg. But and particularly Mendoza, which has the really
detailed discussion of exactly What the interests are that
are at stake and the constitutional balancing that's
required in order for the risk of erroneous deprivation of
liberty to be to be acceptable. And so what I'm saying is
that the private interests of the defendant and not being
incarcerated at a time when there's a pandemic, and when he
can't get a speedy trial is much higher than it was when the
court conducted that balancing and Mendoza. And so the
procedural protections are concomitantly need to be greater.
And it and that may be the case I'm just trying to
understand because in the cut, the Commonwealth is saying,
look, there's certain people who are dangerous, truly
dangerous, and we need to be able to
keep them in jail in the
free trial
and not misuse the bail statutes do it so 58 days the
logical spot for that and your view is a great
-: We can do this properl
and we can separate out the truly dangerous from not truly
dangerous by using this. Mendoza Matthews versus Eldridge
type approach. We think it's gonna, this is a workable
solution, and one that will work and given our, our
constraints right now, which is that we can't bring the
defendant into the courtroom and we can't bring witnesses in
the courtroom easily either. We think we can do all of that.
-: Yeah, Your Honor. I think so. I thi
I think that the the, obviously, hopefully, we're going to
continue to be able to conduct more and more, you know,
procedurally protective hearings as time goes on. And it
could cause
initially is found
on the basis of Grand Jury minutes. Then maybe that's the
thing. If that is truly all that's possible when the hearing
is conducted, but as soon as it does become possible to
safely conduct an evidentiary hearing, then that should be
required in order for the detention to continue
indefinitely.
Okay, I have no further questions, thank you,
says Chief Justice can
note that this is a statutory argument. So, this is your
turn to 58A58. A, as I understand it says is 120 or 180
days, excluding any period of delay as defined in rule 3632.
So those those the length of those deadlines or the
deadline, that guess is a loaded word, the length of those
periods of time are extended, if any of the excludable delay
categories under 3062, kick in,
correct?
-: Yes, Your Honor. Is that your view that that
s unconstitutional that anything beyond 100 When you're in
n any days is uncut. any delays unconstitutional and wo
k would require there to be a due process or a good clo
e finding? Your Honor, I think that there is a serio
s question as to the length of detention that's authorized
y the present version of Section 58. A, given how much long
r it is then the version that was considered a Mendoza. B
t I'm not here arguing that that provision is n
t constitutiona
so far as it is
limited, properly limited to delays that are specifically
defined in rule 3062, which in my view, only include delays
that that are occasioned by factors particular to an
individual's case. Well, that's my next question. So
generally, of course, that's what happens in in a trial the
judge would consider request for a continuance and would
decide whether or not to allow Allow it and would then make
the findings under
36.
f as to whether or not the ends of justice are served.
But here,
the court, the SEC said, we're going to continue all cases
of biggest the Coppa crisis.
-: Yes, sir.
-: Is it your view that we should have basically had each
judge make findings that says I can't try the damn case
because the SJC said I can't.
And therefore require individualized
findings by each individual judge, as opposed to having the
SJC. Make those findings for them? Your Honor, I think it
as well within this Court's superintendents
power to continue
all the cases and to announce that those continuances won't
count against the the speedy tri
deadline. But
whether that's whether this Court's findings as to a
systemic problem, our findings in the record of the case, as
is specifically required by rule 36, B to F, is a different
question. And and
my contention is that they they clearly aren't.
And I've pointed the court to come off versus Davis, which
is the appeals courts decision from a few years ago, which
held that delays that are caused by a systemic issue. In
that case, it was court congestion, are not excludable under
Rule 3062 in the absence of findings that are specific to a
particular defendant. But the general theme is, we want
these cases to be tried as soon as possible. And we're not
going to use certain excuses such as
the fact that we have plenty of cases
to do it, but here we're not drying any cases. Right now.
But what the trial court judge do if he or she had to make
that fight? Your Honor, I don't I don't know the answer to
that. But the findings that would be
made by each individual trial court judge
would consider the defendants detention as one of the
relevant factors. But I understand that although the
problem, of course, is that the continuance was not ordered
by the judge, the continuance was ordered by us. Yes.
So, since I'm also trying to figure out then maybe, justice,
going back to Justice gaziano his question we don't, as you
know, well, we have a lot of cases before the pandemic hit,
which were over the 120 hertz, 90 days for all the reasons
would you understand.
-: We've not
said you get a due process hearing when Those happen is it
is it only because of the particular the fact that being in
custody is more dangerous than it was before that we should
say that you should do it now or are you sort of
anticipating that the the the length of the SJC ordered
continuance of all trials will continue into
2021 or 2022?
-: Your Honor, it's both. The danger of being incarcerated
is very significant.
And the length of the delay
is not knowable. And I hope that trials will resume in the
fall, but obviously that is dependent on a lot of other
things. And it's far from clear that they actually will
and in light of the,
the indefinite nature of the detention and and the
conditions of confinement, more is required, than
in order to keep holding someone
But if the cases are to continue beyond right beyond
September 8, scheduled
for June order
is going to be us who's going to do it? Yes.
So isn't it? Wouldn't it be our obligation then to consider
issues of due process with respect to the length of any
extension and the consequences of any extension? If we were
to extend it beyond September 8, then potentially on us?
Certainly, I'm sure that this court would do so. But the
conduct the due process considerations of an individual
defendant, who has not been convicted of any crime being
held without trial
are individualized
to each case. And in in some of these cases, these guys are
going to be acquitted and they will have been subject to a
wrongful deprivation of liberty Or at least an erroneous
deprivation of liberty. And I think that it's incumbent on
the courts to attempt to minimize those cases insofar as
it's possible. And the way to do that is to
subject the Commonwealth case to meaningful testing
before the tension is to continue.
I have no further questions, any questions of any of the
other justices Mr. Bevin, and hearing none, other than Thank
you,
and we'll turn to thank you very much,
-: Mr. Anderson on behalf of Seamus, for I think you're right
may please the Court Brian Anderson for Seamus Horton.
Attorney Andrew zipper is also with me. On January 9, Seam
s Horan was ordered held without bail for 120 days pursuant
to 58A. He was then given two hearing dates a pre trial
conference every week a couple weeks later on January 21.
A bail hearing on May 4 at the expert of the 120 day period
of detention
On May 4, the Salem juvenile court correctly conducted a
bail hearing instead bail that ultimately resulted in
hortense. Release. Who was the correct decision? Because it
was it was an appropriate interpretation of this court's
order. Oh, we went 44.
-: But also juvenile court orders 62
Only 144 close towards to the public that delegated the
authority to each court departments create its own orders to
determine emergency matters and other operations. juvenile
court order 620 puts a juvenile specific focus on the
parameters set by only 144. If you want a court order
specifically designate any hearing required for CPA as an
emergency matter to be constructed virtual. A bail hearing
at the expiration of the 120 day period of detention is
one of those required hearings.
-: This is consistent with a rehabilitative purpose of juveni
e court is a daunting, prolonged detention. It's harmful
o juvenile, there is a 15 day Turn roll in juvenile court.
This emphasizes the urgency of custody cases to move them
through the process towards resolution to limit detention,
but also acknowledges that time spent in the way out devi
e is dead time. And I recognize that this court will addre
s that in in a currently pending case later this year. But
o be clear, is is no one is under no obligation to hon
r pretrial detention. They can consider it there is
a regulation 109 CMR 4.03. That says the history of complian
e while pretrial detention can be considered in t
e classification process. But that is much different than t
e jail credit award and in reality, he doesn't have a
y obligation to acknowledge credit and the fact that they we
e posing I the the juvenile court judges decision in that ca
e acknowledges that that they don't think they believe th
y don't believe they have to acknowledge jail credit. A
d again, my focus here is on the juvenile order and t
e juvenile specific issues. This is the function of how As t
e oral argument for these crazy cases has been structured, t
e constitutional arguments raised in just talked about
y attorney doesn't apply equally to juveniles. But for the
e reasons to stay in juvenile court correctly conducted a ba
l hearing and set bail at the expiration of the juveniles 1
0 day period of detention in analogous question, okay. It
s just li
I don't have anything. Thank you.
No questions.
I have no questions.
I'm upset.
This decipher.
Nothing. Thank you, Mrs. caster.
-: I have one question. So say we don't agree with you. And
e believe th
the COVID time is excluded
and we get into
the due process of analysis about how long you can do
changes in the standards that Mr. Levin and I talked about a
little bit. How does juvenile, how is juvenile analyzed
differently? You just said that, you know, the
constitutional arguments apply equally. Does that mean our
juvenile analysis exactly the same as our adult analysis on
the constitutional standards and questions? Let's take a
look at the question. It's certainly not a juvenile. It
certainly did not have any look fewer protections than the
adult standard. And I think that, you know, the 50 day
return rule for one provides one different example where
juveniles are expected to return to court with much more
frequency than it adult out for the same, you know, in the
same circumstances. I think any juvenile court decision will
factor in you know, anything Court judge will consider
juvenile specific circumstances. And I think this court in
the Supreme Court has, you know, started to acknowledge in
the past 10 years that, you know, the brain science behind
behind adolescent development on to recognize that that
could make, you know, kids should be treated differently
than adults. So it's no, no black triangle under that. I'm
trying to understand how that plays out in the dangerous
now, because I understand when we do the chenko juveniles
improve over time, but juveniles may be more dangerous,
because they don't appreciate the consequences. So I'm just
trying to understand again, well, if you lose on your
argument,
that
the Cova delay is excluded, and we get into this
constitutional analysis. Is there something you can tell me
about how we should adjust This that discussion for
juveniles? I'm just trying to make sure I understand it. And
if you could even give me a couple of good examples of why
it would be more favorable than juveniles and On what
grounds? So I think that I think that the 58, a statute
provides some some framework for that. And we're section
five talks about, you know, the factors to be considered.
And I think that one, you know, one specific example could
be with regard to school. So a kid held in via AI is getting
in theory going to school, but they're getting very
generalized services. If a kid needs specific services,
because they're on an Individualized Education Plan, it is
next to impossible for us to accommodate that. So I think
that that, you know, specific circumstance is something that
could be raised at a subsequent hearing after the initial 58
a determination
that
It's brought to the attention of the juvenile court judge
that
you've made this dangerous and fighting. But
now there's a specific circumstance that that you will have,
he cannot get the educational services he needs and he has
to be laid out so that he can go to a specialized school to
get specialized instruction. And in my experience, that's
something that happens, you know, you know, very, very
common. Okay, and, okay, I think that's helpful. Thank you
very much. And I have no further questions. Are there any
questions of the justices?
response to justice,
characters questions, and hearing none, thank you, Mr.
Anderson. And we'll turn now to Mr. Schneiderman. On behalf
of Mr. Smith. Good morning. may it please the Court I'm
Joseph Schneiderman, I represent Scott Smith. The
Commonwealth has asked for a process for what happens at the
end is avail replication but for three broad reasons, their
proposed process is not found. First, section 58 b cannot be
rewritten to embody any equitable tolling, which the
Commonwealth forfeited by not raising at any time to judge
time or to the single justice, assuming this court decides
that the Commonwealth has overlooked or has overcome
forfeiture. Section 50 ad sets an exception to the rule of
bail and indeed places the onus on the defendant to overcome
a rebuttable presumption that no set of conditions will
secure safety of the public. And there is no reopening of a
bail revocation except for a manifest injustice. The
Commonwealth has not addressed the Commonwealth is asserting
that someone's past danger which there is no question the
record that Mr. Smith as an extremely troubling record
suffices in and of itself to obtain that promise can't be
correct that premise potentially places section 58 d into
constitutional doubt second, Cause truly requires proof of
extraordinary circumstances and must be narrowly tailored to
respect a defendant's Liberty interest, concretely, could
cause should be evidence
that the defendant will
work the prosecution by intimidating a witness or destroying
evidence or something along those lines. That standard is
not only narrowly tailored, but it is harmonious with how
bill revocations may not be reopened, except for manifests
in justice. And it avoids some of the concerns which the
chief justice and justice lowly articulated in the district
court, which is that a defendant may be held for effectively
all of his time that he otherwise might have served in
these. This is not in the brief, but the district court
cannot send someone to state prison. So any sentence is
going to have to be a house of correction, and how to
correction sentences are regulated by law. Finally, the
Commonwealth proposal Relying on abigai is not narrowly
tailored, because there are no definite backstops
preliminarily. ABA is completely distinguishable because
competency would operate as a tool, whether one's bail is
revoked under Section 58 B or whether one is held as
dangerous under Section 58. A that is what this Court said
in evidence at page 37 of the decisions the judge was
required to hold someone competency also implicates a right
not to be tried. And that is why there are those backstop
but to a 16 ounce dismissal in the interest of justice, or
17 been hearing to present evidence. The fluid framework
places that into constitutional doubt, as my esteemed
brothers had mentioned before. The court has to err on the
side of liberty, particularly where there was a rebuttable
presumption that the defendants offense which I note here
the defendant is charged with a comparatively minor drug
offense that No conditions of release, assure the safety of
the public the couple that there will be forced releases. I
think that is an overstatement. The common the defendant,
right is to seek relief on day 91 or day 121 or day 181. And
indeed, Paragon makes clear that the defendant has a right
to a bail hearing. We urge that this
court adopt a more
specific framework with concrete deadlines, such as a right
to review every 30 days. I welcome questions,
just like--
-: Yes. Good morning.
Now, I want to get back to what it is that you mean by go
d cause, you seem to make it very narrow, very now meani
g typically cause the the what would come up must prove
s somehow different than what was proven today dangerous.
s that not so? Your Honor. I apologize if I was suggesti
g that could cause has to be narrowed. I was offering
a concrete definition of what good cause is, but could cau
e in the bigger picture should be narrowly tailored to respe
t the defendants Liberty interest, and that's why I suggest
d stances that are unique bookstor
So all you have to just it's a different, it's different.
-: I beg your pardon, Your Honor. I'm sorr
I'm sorry. I said your answers yes to you because it's
different than what the needs to be in the first instance.
In terms of patient centered schooling.
-: Yes, Your Honor.
Yes, as I understand your honors question as to is there a
difference between the calculus at an initial detention as
opposed to continued attention, right, I'm not talking about
the difference in standard in terms of clear and convincing
evidence, or beyond reasonable doubt a segment the content
where it is that they come with us to
-: I think it is different, Your Honor, because t
e Commonwealth has already had an opportunity to show th
t someone is dangerous. And in the context of 58 D, t
e defendant is the one who has to show that there a
e conditions that will assure the safety of the public becau
e of the broad rebuttable presumption in 5
Okay, I don't have anything else. Thank you.
Thank you, Your Honor. This just goes on. And
I have no questions like, just this slowly.
Thank you.
-: Mr. Chairman. I want to ask you some of the same questions
I asked Mr. Levin, in response to your comments about go
d cause. So 58 days like 58. A, provides a period somebody c
n be held and they can exceed 90 days from the revocation
n the absence of good cause. That's that's the statute. No
, I'm not sure. I'm not sure that I re
that
in any of our cases or in the plain meaning of the statute
that could cause me unique or extraordinary circumstances.
But it seems to me that COVID-19 is unique and
extraordinary.
So
I have no doubt. I don't know how one could that there isn't
a point in time where somebody is being held, and there's a
due process violation that COVID-19 hopefully this is never
going to happen. It's going to go on and on. And there's a
point in time where there's a constitutional violation
because someone's been held and there's no prospect of the
trial. Thank goodness, we're not there. I hope we never get
there. But there's no
doubt there's a due process.
But what I
when you say day 91 or you say or 121 or 180 One I want to
make the same point I made to this level is we have people
all the time held
way more than that.
-: And the difference is that in 3062 in a normal cours
there are
this excludable delay as as the case proceeds through the
process. Now, I want to take it as a given that the COVID-19
and the circumstances that the defendant is imprisoned in is
a factor in this due process to talk totality of the
circumstances. But what I'm having trouble understanding is,
is
in a normal course,
someone held way beyond 91 days on a revocation
or a
or on a 58. A, and you're arguing if a due process violation
on On day 91, and I want my due process. I don't have time.
Your Honor, if I follow your question, I agree with your
honor. So it is an inherently an extraordinary circumstance.
What I am suggesting, and I apologize if this was not clear
is day 91 day 121 or day 181.
-: The initial
point, and I think on a practical level, a district court
judge should be solicitous of the fact that the timeline has
expired under the statute, and indeed it is this Court
recognized we've gone beyond the question. That's the
question. Hold on. That's the question. Has it expired under
the statute, when the statute doesn't say 90 days, 120 days
or 100 days, it says in the absence of good cause, a person
so held shall not be detained for a period exceeding those
particular days. So it's not on its face violet of, of the
statute.
Nor is it,
nor is this person being held anywhere near as long. If
they've really been arraigned in the COVID-19 world, then in
the normal course, and again, I recognize that when you're
in jail or in prison, in a in a COVID-19 world, that that's
a lot different. And I say that goes into the due process
analysis that
-: I understand. A
if there's no prospect of the trial soon, I understand but
I'm telling you a hard time understanding how it's day 91
you know, in last year, someone was held for a year. Half
before that trial, there was not even a motion for a due
process violation. And here, the argument is on day 121 or
181, we have when the statute doesn't even provide for that
the statute provides in the absence of good cause, and I'm
having a hard time understanding right COVID-19 isn't
critical. It's not dispositive, but it's
dense. So my question.
-: I believe so, Your Honor, and if at any point in my answe
, I'm not answering, please, redirect me. I agree with yo
r honor, that the violation is not right on day 91 if I foll
w and understand your honors point
but
the calculus or relying on that fact alone, which I think
you're on And I agree on is not the only fact that justifies
further detention is problematic, particularly where there
is there is no play between the defendants interest and the
Commonwealth interest. Put another way and put perhaps just
simply COVID in and of itself maybe could cause but COVID
would be overburdened in the analysis. If that's all the
Commonwealth is asserting, which is why I suggested more
concrete evidence of what to look at.
Okay, thank thank you. Thank you very much.
Justice, but here
I have no question.
Just to say
-: I have no question. Just a
your questions.
-: And I have no question.
So are there any other questions of Mr Schneiderman?
And hearing none, I thank you, Mr. Chairman.
-: I thank all the attorneys both here on her advocacy as
well as for their written briefs.
And this will conclude our hearing.
For the justices we shall commence or sambal at 1230 on the
separate line,
which each of you have.
Thanks so much.