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<v Announcer>SJC-12967, in the matter of an impounded case.</v>

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<v ->Thank you, Miss Black?</v>

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<v ->Thank you, your Honor, good morning.</v>

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May it please the court, ADA Johanna Black

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for The Commonwealth.

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In amending Section 52 of General Laws Chapter 119

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by its 2018 Criminal Justice Reform Act,

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the legislature believed

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that the earlier a child enters the juvenile justice system,

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the higher the risk it is for that child to recidivate.

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Now, the exclusion that was created in the amendment,

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which excludes civil infractions,

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violations of municipal ordinances,

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violations of town bylaws

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and a first offense of a six months or less misdemeanor,

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prevented or at least in some children's cases,

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delayed their entering into the juvenile justice system.

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Now, to the language of Section 52,

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as well as the intent behind the amendment to that section,

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supports the Commonwealth's position

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that six months or less,

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a first offense of a six months or less misdemeanor,

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that's charged with at least one greater offense,

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(clears throat)

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should not be dismissed as a first offense

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when all those charges are on the same complaint.

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And because Wallace W, to create the Wallace W hearing

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to establish a first offense,

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such hearings would not be applicable

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to the juveniles' cases.

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<v ->I'm confused, so if you charge two misdemeanors</v>

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and then you get to arraign on both of them?

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<v Miss Black>Yes.</v>

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<v ->You charge two lesser effect,</v>

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your misdemeanors of six months or less.

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So if that's the case, you get to charge

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and arraign on both of those?

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Just because you've done two?
<v ->Yes.</v>

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<v ->That makes no sense, does it?</v>

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Is that really consistent

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with what they wanted to have happen here?

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<v ->I believe that when you're interpreting a statute</v>

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you first look to the plain language of the statute,

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and this court interpreted that language

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a first offense of a six months or less misdemeanor

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to mean a single six months or less misdemeanor.

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The words that are used in a singular form--

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<v ->Until you have one you have none,</v>

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and probable cause doesn't get you anywhere

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under the statute, as we explained in Wallace W.

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So if you do two misdemeanors,

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both of them can end up going away.

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The first one could be just dismissed as a bad charge

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and the second one, you still have to establish.

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So I don't understand why just pleading

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two charges gets you anywhere.

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<v ->Well, the statute doesn't say anything about</v>

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a proof beyond a reasonable doubt,

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and it also, as you said, doesn't specify probable cause.

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However, as this court interpreted,

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it does apply to one and only one

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six months or less misdemeanor

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if that offense happens to be the child's first offense.

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And as you said, if you're charged with two

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and one is not a good charge meaning

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the police or the prosecution were incorrect

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and inadvertently charged something that

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was not supported by sufficient probable cause,

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a Humberto H motion to dismiss

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would kick that charge out

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and then you would be left with only one,

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six months or less misdemeanor.

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<v ->What you charge isn't gonna be the determinative factor,</v>

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you've got to establish a first offense.

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You're charging can't determine things,

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it's gotta be what's proven,

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and we required an adjudication.

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So I don't see your argument.

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I understand if there's a felony or a more serious offense,

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the Commonwealth can proceed directly on that.

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That's separate, that's completely outside

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the first offense protection.

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But I don't get that The Commonwealth gets to dictate

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by its charging mechanism.

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It can make the first defense requirements go away.

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It just doesn't seem to...

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I don't see any basis in the statute

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and as the author of Wallace W

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that certainly wasn't what we were writing.

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<v ->Well the legislature in not qualifying</v>

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the other exclusions,

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did qualify a first offense of a six months

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or less misdemeanor.

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So that alone,

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in addition to

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its legislative history

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supports The Commonwealth's position

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that two six months or less misdemeanors

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that are supported by probable cause

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would not constituted a first offense

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of a six month or less misdemeanor.

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The Commonwealth disagrees respectfully

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with your honor's interpretation

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of the word offense in Wallace W.

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The word offense should be taken to mean probable cause.

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And if you look at that Section 52--

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<v ->Hold it please, hold it.</v>

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I just wanna make sure

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'cause are you saying we're wrong in Wallace W

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that probable cause we should...

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I mean, we understand you argued vigorously

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for probable cause the first time around,

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but we don't do do overs

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on issues we've already decided.

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And so are you asking us to disclare

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our original decision wrong on probable cause?

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<v ->I don't think you have to to rule</v>

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that the six month or less misdemeanor

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should not be dismissed in this case.

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However, the interpretation of offense

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in Wallace W is incorrect.

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And juvenile two, did raise this issue

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in his responsive brief,

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that in certain circumstances, in some cases,

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if two children recidivate,

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one who committed a first offense of a felony

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that charge pending when he or she commits

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his or her second offense

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being a six month or less misdemeanor

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might be treated less harshly

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than a child who in it, his or her first interaction

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with the juvenile justice system

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commits a six months or less misdemeanor

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as well as a felony charge.

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In the first circumstance...

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Well, let me put it this way,

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when you view both children at their first interaction

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with the juvenile justice system,

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the latter child, the one that's charged

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with more than just a six month

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or less misdemeanor charge or offense

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has committed more serious misconduct

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because his or her misconduct gave rise

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to a more serious charges.

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I don't think you can assume that children are recidivate.

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So I think the Commonwealth interpretation of Section 52

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not requiring dismissal of six months

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or less misdemeanor charges when they're charged

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in one complaint with greater offenses makes sense.

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But if both children do recidivate,

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then you have the first child

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who is facing a pending felony charge,

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but won't be arraigned on the six months

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or less misdemeanor charge,

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unless The Commonwealth proves a felony charge

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beyond a reasonable doubt under Wallace.

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Whereas you have a child who's charged with a felony

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as well as a six month or less misdemeanor charge

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in the first instance arraigned on both.

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If you follow The Commonwealth's interpretation of offense

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that helps level the playing field in that

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maybe less common possible situation

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that could arise under Wallace W.

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So I don't think we, sorry.

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<v ->Why don't you one?</v>

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One, you're fighting an uphill battle

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to reverse what we did the first time.

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This is hard enough without going backwards.

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Why don't you address defense counsel's argument that

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in a single episode,

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that we shouldn't treat a single episode

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as a first offense?

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Maybe you can address that point.

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<v ->Sure.</v>

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So the way Section 52 reads is

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a child between the ages of 12 and 18

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who commits any offense against a law of The Commonwealth.

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A law of The Commonwealth is singular

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and any offense can be a felony,

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a major misdemeanor or six month or less misdemeanor.

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You then exclude, sorry.

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You then exclude--

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<v ->Let me pause, let me make it narrower for you.</v>

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Okay, we've got a single act.

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We often in, obviously in criminal law have

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if you have different elements

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we can find two different crimes for them.

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So we have this juvenile,

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he engages in a single act

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and you come up with a couple of different misdemeanors

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based on that.

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Again it's a five minute episode in this juveniles life.

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That's still we shouldn't treat that as a first offense,

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we should separate it into as many offenses

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as we legally can.

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And that's what the legislature intended.

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And it's not a rhetorical question

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'cause I think this is really difficult.

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<v ->No, I understand,</v>

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I think these are very complicated issues too.

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And I think in an effort to keep application of the law

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consistent across different people,

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if conduct supports a charge, you charge

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unless in your discretion there are justifications

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for not doing so.

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So I know one of the juveniles raised the argument

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of double jeopardy

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and that you wouldn't be convicted or sentenced on

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for example on that.

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<v ->I'm not focused on double jeopardy,</v>

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I'm focused on the legislative's intent here.

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<v Miss Black>Right.</v>

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<v ->And the idea is they wanna give juveniles a second chance.</v>

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<v ->Right.</v>
<v ->And I'm just wondering</v>

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whether charging decisions

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are going to prevent a second chance for a single episode.

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Is that what the legislature intended?

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And I don't know what they intended

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'cause it's not that clear,

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but it would help if you can address that kind of specific.

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<v ->Sure, so I think if you under that interpretation,</v>

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if you are going to focus on the episode

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to determine whether a child gets a second chance or not,

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then you are running up against a problem where

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although the legislature specified

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a six month or less misdemeanor

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and did not say a major misdemeanor,

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there are charges that I think argument

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that constitute major misdemeanor.

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So that I think arguments could be made

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that the conduct supporting them

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is not that much more egregious or serious

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than a six month conduct supporting a six month

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or less misdemeanor.

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<v ->That's the easy stuff,</v>

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'cause the legislature did not allow

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this type of second chance,

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a more serious offenses.

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It's the lesser offenses

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where they are occurring in a single episode

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that's difficult.

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No one's getting in your way,

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the legislature or Wallace W

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on proceeding on more serious offenses.

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It's these lesser offenses that occur in single episodes

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which are the more difficult questions.

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You're making it harder on yourself

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by trying to Guam the two different things together.

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But go ahead.

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<v ->So a scenario comes to mind.</v>

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The problem with the single episode is

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and this is just coming to mind right now.

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So feel free to pick at it

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if I'm not giving the best example.

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But someone charged with threat to commit a crime

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that's a six month or less misdemeanor charge.

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Threat to commit a crime could be a charge

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that is part of a larger context

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of very serious, scary misconduct.

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However, someone could be charged with a larceny

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for something that is more like a shoplifting,

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and a larceny I believe would be a major misdemeanor.

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<v ->Justice Lowy asked,</v>

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a student pointed out that,

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yes, you may need to prove the lesser one

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is part of the bigger one,

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but I'm not sure anything we're doing is precluding evidence

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00:13:13.100 --> 00:13:14.750
that's related to the lesser one

269
00:13:14.750 --> 00:13:17.020
from going into the greater one.

270
00:13:17.020 --> 00:13:18.340
<v ->No, I'm sorry.</v>

271
00:13:18.340 --> 00:13:19.730
I was answering your question about

272
00:13:19.730 --> 00:13:21.620
why don't we focus on a single episode

273
00:13:21.620 --> 00:13:22.790
versus a single charge

274
00:13:22.790 --> 00:13:24.890
in determining what constitutes a first offense

275
00:13:24.890 --> 00:13:26.640
of a six month or less misdemeanor.

276
00:13:26.640 --> 00:13:28.670
I think if we do that then we run the risk

277
00:13:28.670 --> 00:13:30.830
of treating juveniles differently.

278
00:13:30.830 --> 00:13:34.360
In that some six month or less misdemeanor charges

279
00:13:34.360 --> 00:13:37.770
the conduct supporting them could actually be more serious

280
00:13:37.770 --> 00:13:40.280
than some of the conduct that could support

281
00:13:40.280 --> 00:13:41.980
some major misdemeanors.

282
00:13:41.980 --> 00:13:44.040
And so by looking at a single episode

283
00:13:46.840 --> 00:13:48.270
it runs into problems as well.

284
00:13:48.270 --> 00:13:51.640
And I think where Section 52 already said

285
00:13:53.260 --> 00:13:56.470
they had this general definition of delinquent child meaning

286
00:13:56.470 --> 00:13:58.950
a child who commits any offense against a law,

287
00:13:58.950 --> 00:14:01.400
a singular law of The Commonwealth.

288
00:14:01.400 --> 00:14:04.000
That existed when the legislature amended it.

289
00:14:04.000 --> 00:14:08.430
And they amended it by carving out that category.

290
00:14:08.430 --> 00:14:13.010
And one of the exclusions from that category

291
00:14:13.010 --> 00:14:17.300
was first offense is six months

292
00:14:17.300 --> 00:14:19.050
or less of misdemeanor charge.

293
00:14:19.050 --> 00:14:22.300
So that's carving out from the category of any offense

294
00:14:22.300 --> 00:14:23.880
against a law of The Commonwealth.

295
00:14:23.880 --> 00:14:27.490
A law of The Commonwealth is one crime.

296
00:14:27.490 --> 00:14:28.800
It's one charge.

297
00:14:28.800 --> 00:14:33.000
It's not one episode that could lead to multiple offenses

298
00:14:33.000 --> 00:14:36.160
against multiple laws of The Commonwealth.

299
00:14:36.160 --> 00:14:41.160
So I think that reading of the language

300
00:14:41.560 --> 00:14:44.570
as well as principles of statutory construction show that

301
00:14:44.570 --> 00:14:47.390
it really should be a violation of the law

302
00:14:47.390 --> 00:14:52.390
and not an episode where a child violates multiple laws.

303
00:14:53.600 --> 00:14:55.203
Even if it's just two laws.

304
00:14:58.220 --> 00:15:00.500
And I think it goes back.

305
00:15:00.500 --> 00:15:02.843
What we were getting into a little bit was,

306
00:15:06.150 --> 00:15:08.300
well I won't get into that.

307
00:15:08.300 --> 00:15:13.300
But I do think Section 52 is...

308
00:15:14.480 --> 00:15:16.570
Again, doesn't state probable cause

309
00:15:16.570 --> 00:15:18.610
and doesn't state proof beyond a reasonable doubt,

310
00:15:18.610 --> 00:15:20.650
it defines delinquent child.

311
00:15:20.650 --> 00:15:25.020
And that term is carried throughout the statutory scheme

312
00:15:25.020 --> 00:15:29.560
of chapter 119 Section 52, and the subsequent sections.

313
00:15:29.560 --> 00:15:33.120
And in that you read that a child can be complained of

314
00:15:33.120 --> 00:15:34.010
as a delinquent child,

315
00:15:34.010 --> 00:15:35.100
meaning that they can be charged

316
00:15:35.100 --> 00:15:37.790
or alleged to have committed an offense

317
00:15:37.790 --> 00:15:39.570
against a law of The Commonwealth,

318
00:15:39.570 --> 00:15:42.180
or they can be adjudicated delinquent,

319
00:15:42.180 --> 00:15:45.440
meaning they could be found to have committed it.

320
00:15:45.440 --> 00:15:47.230
Found beyond a reasonable doubt to have committed it

321
00:15:47.230 --> 00:15:49.270
or they could plea out and admit

322
00:15:49.270 --> 00:15:50.750
to having committed an offense

323
00:15:50.750 --> 00:15:52.550
against the law of the Commonwealth.

324
00:15:54.033 --> 00:15:55.659
<v ->Thank you Miss Black, your time's up.</v>

325
00:15:55.659 --> 00:15:56.492
<v Miss Black>Thank you.</v>

326
00:15:56.492 --> 00:15:58.763
Now we turn now to Miss Jellison please.

327
00:16:00.720 --> 00:16:01.960
<v ->Good morning Justices.</v>

328
00:16:01.960 --> 00:16:03.620
And may it please the court,

329
00:16:03.620 --> 00:16:06.320
Eva Jellison on behalf of juvenile two.

330
00:16:06.320 --> 00:16:09.590
I'm gonna be addressing the multi-cam complaint issue.

331
00:16:09.590 --> 00:16:11.040
Attorney Charlie will follow me

332
00:16:11.040 --> 00:16:14.470
and address evidentiary issues at a Wallace W hearing

333
00:16:14.470 --> 00:16:16.090
and Attorney Menkin will go last

334
00:16:16.090 --> 00:16:17.580
and address the issue

335
00:16:17.580 --> 00:16:19.730
regarding the promotion of anarchy statute.

336
00:16:22.110 --> 00:16:24.220
Wallace W didn't resolve this issue

337
00:16:24.220 --> 00:16:26.480
but it did help us a little bit.

338
00:16:26.480 --> 00:16:28.880
It told us that probable cause was not enough.

339
00:16:28.880 --> 00:16:31.570
Simply charging a juvenile with multiple offenses

340
00:16:31.570 --> 00:16:34.390
does not give the juvenile court jurisdiction

341
00:16:34.390 --> 00:16:36.450
over any offense.

342
00:16:36.450 --> 00:16:38.090
It also counseled us

343
00:16:38.090 --> 00:16:41.650
that first offensive misdemeanor is ambiguous.

344
00:16:41.650 --> 00:16:43.760
And because it's ambiguous,

345
00:16:43.760 --> 00:16:45.450
we need to interpret it

346
00:16:45.450 --> 00:16:47.380
in light of the legislature's intent,

347
00:16:47.380 --> 00:16:48.870
the rule of Leonetti

348
00:16:48.870 --> 00:16:53.440
and General Law chapter 119 Section 53.

349
00:16:53.440 --> 00:16:54.900
I'd just like to respond quickly

350
00:16:54.900 --> 00:16:56.460
to a point that The Commonwealth made

351
00:16:56.460 --> 00:16:59.500
that the statute says a law of The Commonwealth.

352
00:16:59.500 --> 00:17:01.710
I'd like to point out that in this case

353
00:17:01.710 --> 00:17:06.000
my client was charged with two offenses or two crimes

354
00:17:06.000 --> 00:17:08.400
that arose from one law of The Commonwealth,

355
00:17:08.400 --> 00:17:10.340
disorderly conduct and disturbing the peace

356
00:17:10.340 --> 00:17:12.250
are both in one statute.

357
00:17:12.250 --> 00:17:14.060
So I don't think that that language helps,

358
00:17:14.060 --> 00:17:18.083
I think it highlights the ambiguity of the statute.

359
00:17:19.700 --> 00:17:21.860
So what we should do here

360
00:17:21.860 --> 00:17:24.090
is interpret first offense of a misdemeanor

361
00:17:24.090 --> 00:17:27.020
to be any minor misdemeanors,

362
00:17:27.020 --> 00:17:29.770
not based on The Commonwealth charging decisions,

363
00:17:29.770 --> 00:17:33.270
and dismiss those misdemeanors without a Wallace W hearing.

364
00:17:33.270 --> 00:17:35.210
And we don't need a Wallace W hearing

365
00:17:35.210 --> 00:17:37.420
because there is no prior offense to prove.

366
00:17:37.420 --> 00:17:40.560
The court was pretty clear in Wallace W

367
00:17:40.560 --> 00:17:43.870
that Wallace W hearings were about proving prior offenses.

368
00:17:43.870 --> 00:17:45.870
There is no prior offense to prove,

369
00:17:45.870 --> 00:17:47.820
the minor misdemeanors should be dismissed

370
00:17:47.820 --> 00:17:49.370
as the child's misdemeanor offense.

371
00:17:49.370 --> 00:17:51.280
<v ->To make sure I understand,</v>

372
00:17:51.280 --> 00:17:52.600
your client is charged...

373
00:17:52.600 --> 00:17:54.100
I got so many juveniles here.

374
00:17:54.100 --> 00:17:55.950
Your client's charged with--
<v ->Absolutely</v>

375
00:17:55.950 --> 00:17:58.540
<v ->Two lesser misdemeanors,</v>

376
00:17:58.540 --> 00:17:59.930
two under six months,

377
00:17:59.930 --> 00:18:02.560
six months or under misdemeanors, is that right?

378
00:18:02.560 --> 00:18:05.370
<v ->My client was charged with</v>

379
00:18:08.490 --> 00:18:12.150
three minor misdemeanors, one more serious misdemeanor,

380
00:18:12.150 --> 00:18:14.190
and the felony which The Commonwealth concedes

381
00:18:14.190 --> 00:18:15.695
must be dismissed.

382
00:18:15.695 --> 00:18:18.360
<v ->I'm again, I'm confused then.</v>

383
00:18:18.360 --> 00:18:21.150
Your client, they could proceed directly

384
00:18:21.150 --> 00:18:23.620
on the more serious misdemeanor, right?

385
00:18:23.620 --> 00:18:24.520
<v ->That's correct.</v>

386
00:18:24.520 --> 00:18:29.520
<v ->And then we've got three minor misdemeanors left, right?</v>

387
00:18:29.860 --> 00:18:30.890
<v ->That's right.</v>

388
00:18:30.890 --> 00:18:33.490
<v ->So for you to have those all dismissed</v>

389
00:18:33.490 --> 00:18:37.470
we have to adopt the Macco interpretation

390
00:18:37.470 --> 00:18:40.080
or one of your interpretations that says

391
00:18:41.140 --> 00:18:46.140
a first offense includes all of the first offenses

392
00:18:46.470 --> 00:18:49.110
charged in a single episode, right?

393
00:18:49.110 --> 00:18:51.320
That's the only way you get dismissed

394
00:18:51.320 --> 00:18:52.433
'cause if we don't,

395
00:18:53.300 --> 00:18:55.333
they could prove one of them.

396
00:18:56.210 --> 00:18:58.330
If we don't adopt that interpretation

397
00:18:58.330 --> 00:19:02.540
there are potentially three first three offenses here,

398
00:19:02.540 --> 00:19:07.100
and two of those could be arraigned and adjudicated

399
00:19:07.100 --> 00:19:10.363
unless we adopt the single episode approach, right?

400
00:19:11.510 --> 00:19:13.260
<v ->Yes, if you don't adopt the approach</v>

401
00:19:13.260 --> 00:19:14.960
that first offense of a misdemeanor

402
00:19:14.960 --> 00:19:17.500
means any misdemeanor charged

403
00:19:17.500 --> 00:19:19.480
as a first episode of conduct

404
00:19:19.480 --> 00:19:21.560
within a first episode of conduct,

405
00:19:21.560 --> 00:19:23.530
then yes, you could come up with different results.

406
00:19:23.530 --> 00:19:25.960
You could say that you have to prove the greater offense

407
00:19:25.960 --> 00:19:30.030
in a Wallace W hearing and misdemeanors could go forward.

408
00:19:30.030 --> 00:19:32.910
You could say a number of things.

409
00:19:32.910 --> 00:19:35.980
But I don't think that's the right interpretation.

410
00:19:35.980 --> 00:19:38.070
If you look at the ambiguity in the statute

411
00:19:38.070 --> 00:19:40.180
and you interpreted in light of the rule of Leonetti

412
00:19:40.180 --> 00:19:41.420
in Section 53.

413
00:19:41.420 --> 00:19:43.340
And I think I'd like to go straight..

414
00:19:43.340 --> 00:19:44.594
Yes Justice Kafker.

415
00:19:44.594 --> 00:19:45.427
<v ->Yeah, I just wanna make sure,</v>

416
00:19:45.427 --> 00:19:47.010
'cause I need help here.

417
00:19:47.010 --> 00:19:51.440
So we're careful about not treating...

418
00:19:52.300 --> 00:19:55.010
You can be convicted of multiple crimes

419
00:19:55.010 --> 00:19:56.560
as long as they have different elements,

420
00:19:56.560 --> 00:19:58.480
so I'm just trying to make sure

421
00:19:58.480 --> 00:20:01.050
how do we adopt your interpretation

422
00:20:01.050 --> 00:20:06.050
without running into a lot of our other law out there

423
00:20:08.210 --> 00:20:11.210
that treats separate.

424
00:20:11.210 --> 00:20:12.530
Where there different elements,

425
00:20:12.530 --> 00:20:14.630
we've got different offenses in different crimes.

426
00:20:14.630 --> 00:20:15.790
Just to help us out here,

427
00:20:15.790 --> 00:20:17.890
is it because of the legislative history?

428
00:20:17.890 --> 00:20:19.300
What is it?

429
00:20:19.300 --> 00:20:22.320
What's it that does that?

430
00:20:22.320 --> 00:20:25.830
<v ->Yeah, so I believe it comes from the legislative intent</v>

431
00:20:25.830 --> 00:20:26.663
to begin with.

432
00:20:26.663 --> 00:20:30.940
So were first events of a misdemeanor is ambiguous.

433
00:20:30.940 --> 00:20:33.770
The legislature's intent was to benefit children

434
00:20:33.770 --> 00:20:37.080
by and specifically the court said this in Wallace W,

435
00:20:37.080 --> 00:20:38.210
it said it in Lazlo L,

436
00:20:38.210 --> 00:20:40.470
this is about giving children a second chance.

437
00:20:40.470 --> 00:20:43.780
This is about targeting repeat criminal conduct.

438
00:20:43.780 --> 00:20:45.870
This is about minimizing contact

439
00:20:45.870 --> 00:20:47.420
with the juvenile legal system.

440
00:20:48.750 --> 00:20:50.003
<v ->May I ask you a question?</v>

441
00:20:50.003 --> 00:20:50.836
Miss Jellison, may I ask you a question?

442
00:20:50.836 --> 00:20:52.624
<v Miss Jellison>Sorry Justice Lenk, you're saying?</v>

443
00:20:52.624 --> 00:20:55.090
<v ->It sound like you focus on just the category.</v>

444
00:20:55.090 --> 00:20:57.220
I think it's trying to do this too.

445
00:20:57.220 --> 00:20:58.053
I don't understand what it is

446
00:20:58.053 --> 00:20:59.210
that the legislature was trying to do.

447
00:20:59.210 --> 00:21:02.320
And when you say second chances second chances at what?

448
00:21:02.320 --> 00:21:04.110
Second chances at not having any involvement

449
00:21:04.110 --> 00:21:05.070
with the juvenile justice system?

450
00:21:05.070 --> 00:21:06.440
Because if that's the case,

451
00:21:06.440 --> 00:21:09.063
how do we deal with the other the major offense?

452
00:21:10.100 --> 00:21:12.050
<v ->So I have to say I don't know precisely</v>

453
00:21:12.050 --> 00:21:13.150
what they meant by second offense.

454
00:21:13.150 --> 00:21:14.340
I think it's pretty clear

455
00:21:14.340 --> 00:21:16.830
that if you have only minor misdemeanors

456
00:21:16.830 --> 00:21:17.740
those should be dismissed.

457
00:21:17.740 --> 00:21:19.460
You should really get a second chance

458
00:21:19.460 --> 00:21:22.163
at entering the juvenile legal system.

459
00:21:23.150 --> 00:21:24.640
<v ->That's right.</v>
<v ->But where you have...</v>

460
00:21:24.640 --> 00:21:26.590
Sorry Justice Lenk, I can't hear you.

461
00:21:26.590 --> 00:21:29.050
<v ->I'm sorry, you're in the justice system anyway, right?</v>

462
00:21:29.050 --> 00:21:31.290
Because it clearly has jurisdiction

463
00:21:31.290 --> 00:21:33.140
over the major misdemeanor

464
00:21:33.140 --> 00:21:34.520
or what everyone call.

465
00:21:34.520 --> 00:21:36.930
Yes, major misdemeanor, the other ones.

466
00:21:36.930 --> 00:21:37.763
<v ->Absolutely so.</v>

467
00:21:40.610 --> 00:21:42.780
<v ->Doing that doesn't fulfill any legislative function,</v>

468
00:21:42.780 --> 00:21:43.613
does it?

469
00:21:43.613 --> 00:21:44.910
<v ->I believe that it does.</v>

470
00:21:44.910 --> 00:21:46.280
I believe that where the legislature

471
00:21:46.280 --> 00:21:48.130
wanted to give children a second chance

472
00:21:48.130 --> 00:21:50.960
and they didn't define that second chance particularly.

473
00:21:50.960 --> 00:21:53.910
That you can look at the benefit to the juvenile

474
00:21:53.910 --> 00:21:55.750
of having these minor misdemeanors dismissed.

475
00:21:55.750 --> 00:21:57.040
And I addressed this in my brief,

476
00:21:57.040 --> 00:21:59.150
and I think that there are a couple ways

477
00:21:59.150 --> 00:22:01.510
that this still provides a child with a second chance

478
00:22:01.510 --> 00:22:04.560
and it still satisfies the legislative intent.

479
00:22:04.560 --> 00:22:06.550
And one is that children

480
00:22:06.550 --> 00:22:09.010
are particularly sensitive to fairness.

481
00:22:09.010 --> 00:22:11.700
When they're treated fairly by the juvenile legal system,

482
00:22:11.700 --> 00:22:13.900
they're more likely to be legally socialized,

483
00:22:13.900 --> 00:22:15.640
they're less likely to recidivate.

484
00:22:15.640 --> 00:22:19.100
Recidivism was a focus of this legislation.

485
00:22:19.100 --> 00:22:23.660
A second part is that multiple entries on a carry

486
00:22:23.660 --> 00:22:25.020
are harmful to children.

487
00:22:25.020 --> 00:22:27.680
It doesn't matter how those entries actually end up,

488
00:22:27.680 --> 00:22:30.260
and this court recognized that in Preston P.

489
00:22:30.260 --> 00:22:33.040
I have a number of case citations in my brief

490
00:22:33.040 --> 00:22:35.170
about how police make charging decisions

491
00:22:35.170 --> 00:22:37.250
based upon the number of carry entries.

492
00:22:37.250 --> 00:22:39.310
Judges make decisions on the number of carry entries.

493
00:22:39.310 --> 00:22:40.890
Probation officers make decisions

494
00:22:40.890 --> 00:22:43.930
on the number of carry entries as to their recommendations.

495
00:22:43.930 --> 00:22:47.020
So this would provide the child

496
00:22:47.020 --> 00:22:48.810
with a version of a second chance

497
00:22:48.810 --> 00:22:53.050
and I think that where the legislature sort to

498
00:22:53.050 --> 00:22:56.710
not even give our system really the chance over...

499
00:22:56.710 --> 00:22:59.470
This was a jurisdictional modification

500
00:22:59.470 --> 00:23:01.700
and they sought to substantially contract

501
00:23:01.700 --> 00:23:03.803
the jurisdiction of the juvenile court.

502
00:23:03.803 --> 00:23:05.376
<v ->Miss Jellison could I give you</v>

503
00:23:05.376 --> 00:23:06.910
an example.
<v ->Yes Justice Lowy.</v>

504
00:23:06.910 --> 00:23:08.800
<v ->That might make your point</v>

505
00:23:08.800 --> 00:23:10.750
and see if I understand it.
<v ->I guess.</v>

506
00:23:10.750 --> 00:23:13.310
<v ->Because your overall point is</v>

507
00:23:13.310 --> 00:23:15.990
if you have one interaction

508
00:23:15.990 --> 00:23:18.910
that brings you in touch with the criminal justice system.

509
00:23:18.910 --> 00:23:21.990
Let's say you're 15 years old,

510
00:23:21.990 --> 00:23:25.220
you're driving a car without a license,

511
00:23:25.220 --> 00:23:28.620
then your friends have some alcohol in the car

512
00:23:28.620 --> 00:23:30.880
and when you get pulled over,

513
00:23:30.880 --> 00:23:35.087
your behavior is enough to lead to a disturbing the peace

514
00:23:35.087 --> 00:23:37.440
and to a disorderly conduct.

515
00:23:37.440 --> 00:23:40.520
And so it all happened in 10 minutes,

516
00:23:40.520 --> 00:23:44.100
it was one touch of the juvenile

517
00:23:44.100 --> 00:23:46.410
with the criminal justice system.

518
00:23:46.410 --> 00:23:51.410
And the goal of the legislation is to give that juvenile

519
00:23:52.640 --> 00:23:55.190
an opportunity without getting involved

520
00:23:55.190 --> 00:23:59.910
in the criminal justice system to rehabilitate

521
00:23:59.910 --> 00:24:02.170
and hopefully that'll be it.

522
00:24:02.170 --> 00:24:07.170
But if you could just have only one of those dismissed

523
00:24:07.227 --> 00:24:09.560
and the other three adhere,

524
00:24:09.560 --> 00:24:12.350
the intent to the legislature is lost.

525
00:24:12.350 --> 00:24:13.200
<v ->That's correct.</v>

526
00:24:14.980 --> 00:24:16.750
<v ->Can I ask you a question Miss Jellison?</v>

527
00:24:16.750 --> 00:24:17.830
<v Miss Jellison>Absolutely.</v>

528
00:24:17.830 --> 00:24:20.773
<v ->Would your interpretation promote overcharging?</v>

529
00:24:21.740 --> 00:24:24.500
<v ->So I don't believe that my interpretation</v>

530
00:24:24.500 --> 00:24:26.660
specifically promotes overcharging

531
00:24:26.660 --> 00:24:30.770
more than overcharging is already a problem.

532
00:24:30.770 --> 00:24:33.890
So to the extent that the legislature modified this

533
00:24:33.890 --> 00:24:35.150
and we're here because

534
00:24:35.150 --> 00:24:39.220
The Commonwealth has doggedly pursued minor misdemeanors

535
00:24:40.340 --> 00:24:43.170
that were charged as part of this first episode

536
00:24:43.170 --> 00:24:44.330
of misconduct.

537
00:24:44.330 --> 00:24:46.340
Honestly, I really think it's incumbent

538
00:24:46.340 --> 00:24:49.973
upon The Commonwealth not to overcharge children.

539
00:24:50.880 --> 00:24:54.780
I think that this prevents The Commonwealth overcharging

540
00:24:54.780 --> 00:24:59.120
from affecting the juvenile in a more negative way.

541
00:24:59.120 --> 00:25:01.260
So if The Commonwealth overcharges

542
00:25:01.260 --> 00:25:02.590
by charging two misdemeanors,

543
00:25:02.590 --> 00:25:05.760
charging disorderly conduct and disturbing the peace,

544
00:25:05.760 --> 00:25:06.617
both of those are dismissed,

545
00:25:06.617 --> 00:25:08.140
and The Commonwealth overcharging

546
00:25:08.140 --> 00:25:10.060
does not harm the juvenile.

547
00:25:10.060 --> 00:25:13.040
Where they're charged with these lesser misdemeanors

548
00:25:13.040 --> 00:25:14.980
and a more significant offense

549
00:25:14.980 --> 00:25:17.680
still helps the juvenile in the way that I explained

550
00:25:17.680 --> 00:25:19.860
by having fewer carry entries.

551
00:25:19.860 --> 00:25:23.030
If the Commonwealth chooses to charge a bunch of felonies

552
00:25:23.030 --> 00:25:25.020
because they can't accept that the legislature

553
00:25:25.020 --> 00:25:26.640
wanted to help children,

554
00:25:26.640 --> 00:25:30.000
we don't really have the tools under this particular statute

555
00:25:30.000 --> 00:25:32.260
to stop that, but I would hope that The Commonwealth

556
00:25:32.260 --> 00:25:33.093
wouldn't do that.

557
00:25:33.093 --> 00:25:34.180
I think that's all I could say

558
00:25:34.180 --> 00:25:36.650
to that overcharging question.

559
00:25:36.650 --> 00:25:37.483
<v ->Thank you.</v>
<v ->Thank you.</v>

560
00:25:37.483 --> 00:25:40.023
<v ->Let me ask Miss Jellison another question.</v>

561
00:25:41.410 --> 00:25:46.290
I'm looking for statutory support for your approach.

562
00:25:46.290 --> 00:25:50.030
'Cause we're uncomfortable enough here

563
00:25:50.030 --> 00:25:52.520
without much legislative guidance.

564
00:25:52.520 --> 00:25:56.360
So I was looking at sort of the armed career criminal

565
00:25:56.360 --> 00:25:58.833
Justice Berg decision in Garvey.

566
00:26:01.290 --> 00:26:06.210
So do we have a similar type of statutory structure

567
00:26:06.210 --> 00:26:07.813
or language in the statute

568
00:26:07.813 --> 00:26:11.810
that would support this one episode approach

569
00:26:11.810 --> 00:26:13.770
for these minor juveniles?

570
00:26:13.770 --> 00:26:17.440
Where do we turn for statutory support for this

571
00:26:17.440 --> 00:26:22.233
as opposed to just the second chance intent here.

572
00:26:23.330 --> 00:26:24.250
<v ->I'll have to say,</v>

573
00:26:24.250 --> 00:26:27.900
I think I would have to read a 22C letter

574
00:26:27.900 --> 00:26:29.910
on the specific habitual offender statute

575
00:26:29.910 --> 00:26:31.990
or specific or armed career criminal statute

576
00:26:31.990 --> 00:26:34.590
if your honor would prefer.

577
00:26:34.590 --> 00:26:38.210
But I can say that I believe that this is

578
00:26:38.210 --> 00:26:41.400
a term of art that we haven't seen before.

579
00:26:41.400 --> 00:26:44.400
If you wanna look towards kind of the intent

580
00:26:44.400 --> 00:26:45.640
of those instead of a statute,

581
00:26:45.640 --> 00:26:47.700
I know that habitual offender,

582
00:26:47.700 --> 00:26:49.270
the habitual offender law is applied

583
00:26:49.270 --> 00:26:50.840
to episodes of misconduct,

584
00:26:50.840 --> 00:26:53.490
so this would be a similar approach as that.

585
00:26:53.490 --> 00:26:54.840
The armed career criminal statute.

586
00:26:54.840 --> 00:26:56.210
I know the armed career criminal statute

587
00:26:56.210 --> 00:26:57.150
has a different language,

588
00:26:57.150 --> 00:27:00.340
I just can't point to exactly what that is in this moment.

589
00:27:00.340 --> 00:27:03.130
<v ->One of the two of them uses the word incidences</v>

590
00:27:03.130 --> 00:27:06.700
and then we use the incident,

591
00:27:06.700 --> 00:27:10.400
the incidences language to move through one incident.

592
00:27:10.400 --> 00:27:12.660
It needs to be separated incidence.

593
00:27:12.660 --> 00:27:15.000
<v ->Yeah, I believe that was habitual offender.</v>

594
00:27:15.000 --> 00:27:16.770
That would track with the habitual offender

595
00:27:16.770 --> 00:27:18.800
statute decision in Garvey.

596
00:27:18.800 --> 00:27:21.180
<v ->So I don't see that as being as helpful.</v>

597
00:27:21.180 --> 00:27:22.650
But then the habitual offender

598
00:27:22.650 --> 00:27:24.453
also has the word habitual in it,

599
00:27:25.410 --> 00:27:30.310
which also gives some indication about habit.

600
00:27:30.310 --> 00:27:32.800
<v ->I mean, I guess focusing on that,</v>

601
00:27:32.800 --> 00:27:36.160
it reminds me, this is all a...

602
00:27:36.160 --> 00:27:38.900
I think we can see in the statutory language

603
00:27:38.900 --> 00:27:41.730
that there is a huge temporal component to this.

604
00:27:41.730 --> 00:27:44.830
And I think that that's why the court said

605
00:27:44.830 --> 00:27:45.663
that the legislature,

606
00:27:45.663 --> 00:27:46.660
I mean, the legislature said it,

607
00:27:46.660 --> 00:27:48.973
but the court also recognized

608
00:27:48.973 --> 00:27:50.610
that the legislative intent

609
00:27:50.610 --> 00:27:53.310
was about punishing repeat offenders.

610
00:27:53.310 --> 00:27:56.393
Because when it's a first offense, whatever that means,

611
00:27:57.360 --> 00:28:00.230
if the child is having their first contact

612
00:28:00.230 --> 00:28:01.240
with the juvenile justice system

613
00:28:01.240 --> 00:28:02.390
and that's what happened here.

614
00:28:02.390 --> 00:28:06.590
And I think the legislature intended and wrote first offense

615
00:28:06.590 --> 00:28:09.430
with this temporal element to focus us on that.

616
00:28:09.430 --> 00:28:11.900
Was this the first instance of misconduct

617
00:28:11.900 --> 00:28:14.150
that violated a law of The Commonwealth

618
00:28:14.150 --> 00:28:15.590
or laws of The Commonwealth

619
00:28:15.590 --> 00:28:17.640
or was this a repeat offender

620
00:28:17.640 --> 00:28:19.170
committing successive offenses

621
00:28:19.170 --> 00:28:22.590
where we know that it's not simply avoiding

622
00:28:22.590 --> 00:28:24.480
the jurisdiction of the juvenile court

623
00:28:24.480 --> 00:28:27.210
that would be helpful, but guidance from the juvenile court.

624
00:28:27.210 --> 00:28:31.610
So I think first is a really important word in this statute

625
00:28:31.610 --> 00:28:32.800
but I do think it's ambiguous,

626
00:28:32.800 --> 00:28:34.520
and I think that this court--

627
00:28:34.520 --> 00:28:37.770
<v ->Meaning first is different from single?</v>

628
00:28:37.770 --> 00:28:39.800
<v ->First is different from single, absolutely.</v>

629
00:28:39.800 --> 00:28:40.800
I think it's temporal

630
00:28:40.800 --> 00:28:43.280
rather than referring to a single incident

631
00:28:44.210 --> 00:28:45.250
or a single crime.

632
00:28:45.250 --> 00:28:48.250
I guess it is a single incident but it's not a single crime.

633
00:28:51.500 --> 00:28:52.700
<v ->Any further questions?</v>

634
00:28:54.130 --> 00:28:56.640
Thank you Miss Jellison.
<v ->Thank you very much.</v>

635
00:28:56.640 --> 00:28:57.653
<v ->Miss Celli please.</v>

636
00:28:59.030 --> 00:29:01.260
<v ->Good morning, may it please the court, Melissa Celli</v>

637
00:29:01.260 --> 00:29:03.110
for juvenile four.

638
00:29:03.110 --> 00:29:05.960
I will be discussing the appropriate evidentiary standards

639
00:29:05.960 --> 00:29:08.260
for a Wallace W hearing.

640
00:29:08.260 --> 00:29:09.250
And at the outset,

641
00:29:09.250 --> 00:29:12.510
I wanted to address Attorney Hahn's argument

642
00:29:12.510 --> 00:29:14.890
in the earlier case.

643
00:29:14.890 --> 00:29:16.840
I agree with Attorney Hahn

644
00:29:16.840 --> 00:29:20.670
that in setting the standard at beyond a reasonable doubt

645
00:29:20.670 --> 00:29:24.010
the Wallace W code explicitly stated

646
00:29:24.010 --> 00:29:26.320
that the Wallace W hearing was intended

647
00:29:26.320 --> 00:29:29.220
to adjudicate a prior offense.

648
00:29:29.220 --> 00:29:33.860
And, in doing that, they recognize the seriousness

649
00:29:33.860 --> 00:29:36.300
of a beyond the reasonable doubt standard.

650
00:29:36.300 --> 00:29:39.100
Beyond a reasonable doubt calls for proof

651
00:29:39.100 --> 00:29:42.100
to the highest degree of certainty possible

652
00:29:42.100 --> 00:29:44.530
in matters relating to human affairs.

653
00:29:44.530 --> 00:29:46.580
It just seems to me unlikely

654
00:29:46.580 --> 00:29:50.123
that one could meet that burden using hearsay evidence.

655
00:29:51.060 --> 00:29:56.060
However, I disagree with Attorney Hahn in saying that

656
00:29:56.440 --> 00:30:00.680
the Matthews V Eldridge analysis does not apply.

657
00:30:00.680 --> 00:30:02.960
I think that the Matthews V Eldridge analysis

658
00:30:02.960 --> 00:30:04.050
does apply here,

659
00:30:04.050 --> 00:30:05.940
and in fact, I think that

660
00:30:08.230 --> 00:30:11.840
it's holding in Wallace W the code.

661
00:30:11.840 --> 00:30:14.520
Of course, the underpinnings for all of those

662
00:30:14.520 --> 00:30:16.540
for all of the prior decisions

663
00:30:16.540 --> 00:30:21.523
is at their foundation fundamental procedural due process.

664
00:30:22.370 --> 00:30:23.528
And in this case--

665
00:30:23.528 --> 00:30:24.980
<v ->Miss Celli,</v>

666
00:30:24.980 --> 00:30:27.870
I understood you listened to the prior argument.

667
00:30:27.870 --> 00:30:30.110
So what do you make of The Commonwealth's point

668
00:30:30.110 --> 00:30:33.410
that we have in at least one context,

669
00:30:33.410 --> 00:30:35.510
which requires beyond a reasonable doubt

670
00:30:35.510 --> 00:30:38.070
allowed hearsay to be used?

671
00:30:38.070 --> 00:30:42.293
<v ->So, as one of the juveniles mentioned in their brief,</v>

672
00:30:43.460 --> 00:30:44.720
there's a presumption

673
00:30:48.440 --> 00:30:52.500
that the rules of evidence will apply in all cases.

674
00:30:52.500 --> 00:30:55.920
And that presumption needs to be overcome

675
00:30:55.920 --> 00:30:57.793
with some amount of specificity.

676
00:30:58.854 --> 00:31:02.930
In the situation that The Commonwealth was discussing there

677
00:31:02.930 --> 00:31:04.740
which I believe was

678
00:31:06.571 --> 00:31:09.650
commitments under chapter 123 Section 8,

679
00:31:09.650 --> 00:31:12.560
there is a specific statutory exemption.

680
00:31:12.560 --> 00:31:17.220
And that's a little bit different than this case

681
00:31:17.220 --> 00:31:20.003
where there is no specific statutory exemption.

682
00:31:21.230 --> 00:31:22.063
In this--

683
00:31:22.063 --> 00:31:26.640
<v ->Let me go to the second concern which is</v>

684
00:31:26.640 --> 00:31:30.080
we're going to be for something that has

685
00:31:31.200 --> 00:31:32.290
different types of concepts,

686
00:31:32.290 --> 00:31:35.610
it's not like revocation or probation or dangerousness.

687
00:31:35.610 --> 00:31:39.170
We're going to be requiring, for example,

688
00:31:39.170 --> 00:31:42.290
in one of these cases, the victim to testify twice

689
00:31:42.290 --> 00:31:44.723
and go through the trauma of this twice.

690
00:31:48.080 --> 00:31:52.143
So that's a bit of a concern.

691
00:31:54.120 --> 00:31:57.830
So how do we deal with that fact that we're going to be

692
00:31:57.830 --> 00:32:00.180
and we're gonna be taking police officers

693
00:32:00.180 --> 00:32:05.180
off the streets again in every case then

694
00:32:05.660 --> 00:32:06.980
if we're not gonna allow hearsay.

695
00:32:06.980 --> 00:32:08.430
'Cause either we've got the victim

696
00:32:08.430 --> 00:32:10.990
or the police in most of these cases, correct?

697
00:32:10.990 --> 00:32:13.370
And often we have child victims.

698
00:32:13.370 --> 00:32:16.150
So I'm just trying to get a sense of the value

699
00:32:16.150 --> 00:32:18.380
of bringing them in each time.

700
00:32:18.380 --> 00:32:20.750
<v ->Well, at the outset, I would note that</v>

701
00:32:20.750 --> 00:32:25.120
in Wallace W this court addressed this very issue

702
00:32:25.120 --> 00:32:27.873
in one of the footnotes, I believe it was footnote 10.

703
00:32:30.081 --> 00:32:31.340
The court said

704
00:32:33.030 --> 00:32:34.700
that they were recognizing

705
00:32:34.700 --> 00:32:36.260
that this may create a problem

706
00:32:36.260 --> 00:32:40.220
whereby The Commonwealth will need to bring in witnesses.

707
00:32:40.220 --> 00:32:42.980
They will need to bring in police officers,

708
00:32:42.980 --> 00:32:46.400
possibly from other jurisdictions in order to meet this.

709
00:32:46.400 --> 00:32:50.500
Now, I think that the reason that this is so important

710
00:32:50.500 --> 00:32:54.720
is because of the underlying due process concerns here.

711
00:32:54.720 --> 00:32:58.310
The Commonwealth, and in some of the questioning earlier,

712
00:32:58.310 --> 00:33:03.310
the justices have seemingly focused pretty narrowly

713
00:33:03.846 --> 00:33:07.990
on incarceration or detention

714
00:33:07.990 --> 00:33:11.150
as being the only liberty interest at stake.

715
00:33:11.150 --> 00:33:14.743
But that's an overly narrow focus.

716
00:33:16.750 --> 00:33:19.550
In fact, both of the parties here,

717
00:33:19.550 --> 00:33:22.910
the juvenile and the Commonwealth

718
00:33:24.520 --> 00:33:28.190
have a substantial interest in accurately determining

719
00:33:28.190 --> 00:33:31.950
whether the prosecution of the juvenile should proceed.

720
00:33:31.950 --> 00:33:36.710
And the purpose of the Wallace W hearing is to determine

721
00:33:36.710 --> 00:33:39.933
whether the child actually committed a prior offense.

722
00:33:41.120 --> 00:33:43.700
The juvenile clearly has this interest

723
00:33:43.700 --> 00:33:47.580
because there's an interest in not having

724
00:33:47.580 --> 00:33:50.400
the state unduly intrude into their life,

725
00:33:50.400 --> 00:33:53.010
but The Commonwealth also has an interest

726
00:33:53.980 --> 00:33:57.273
in keeping the juvenile out of the juvenile justice system.

727
00:33:58.260 --> 00:34:00.630
As the legislature has recognized,

728
00:34:00.630 --> 00:34:03.050
keeping juveniles out of the system

729
00:34:07.006 --> 00:34:09.760
where the only alleged criminal activity

730
00:34:09.760 --> 00:34:11.770
was a minor misdemeanor,

731
00:34:11.770 --> 00:34:15.710
that actually promotes juvenile development

732
00:34:15.710 --> 00:34:18.150
and promotes the safety of society.

733
00:34:18.150 --> 00:34:22.950
So both of the parties here should be aligned

734
00:34:22.950 --> 00:34:26.260
in wanting to keep children out of the system

735
00:34:27.250 --> 00:34:31.763
when it's low level offenses that we're talking about.

736
00:34:32.730 --> 00:34:35.920
And moreover, the juvenile has clearly an interest

737
00:34:35.920 --> 00:34:39.290
in avoiding incarceration.

738
00:34:39.290 --> 00:34:41.940
But this court has also recognized

739
00:34:41.940 --> 00:34:45.070
significant other liberty interests at stake

740
00:34:45.070 --> 00:34:47.640
in particular, when we're talking about a child

741
00:34:47.640 --> 00:34:52.203
who has not yet gone to the arraignment phase.

742
00:34:53.530 --> 00:34:56.890
The court in Humberto H and Preston P

743
00:34:56.890 --> 00:34:59.840
has recognized the difference in pre-arraignment

744
00:34:59.840 --> 00:35:02.660
and post-arraignment interests.

745
00:35:02.660 --> 00:35:06.200
Pre-arraignment of the juvenile has an interest

746
00:35:06.200 --> 00:35:09.180
in having less intrusion onto their life.

747
00:35:09.180 --> 00:35:13.440
They have less chance of missing school

748
00:35:13.440 --> 00:35:16.002
and work to attend court.

749
00:35:16.002 --> 00:35:21.002
And maintaining, limiting their interaction

750
00:35:21.520 --> 00:35:23.490
with the juvenile justice system means

751
00:35:23.490 --> 00:35:26.330
less of a possibility of having pretrial terms of release

752
00:35:26.330 --> 00:35:30.310
which leads to a lesser possibility of minor violations

753
00:35:30.310 --> 00:35:33.330
of pretrial release, which leads to a lesser possibility

754
00:35:33.330 --> 00:35:37.450
of harsh punishments, all stemming from this early incident.

755
00:35:37.450 --> 00:35:40.303
Avoiding creation of a carry.

756
00:35:42.040 --> 00:35:44.793
Carry leads to a whole host of other problems,

757
00:35:45.650 --> 00:35:48.100
as Attorney Jellison described.

758
00:35:48.100 --> 00:35:50.110
It can lead to increased sentencing.

759
00:35:50.110 --> 00:35:54.010
It can lead to increased charging decisions.

760
00:35:54.010 --> 00:35:55.620
It can even impact things like

761
00:35:55.620 --> 00:35:58.030
a child's future college prospects

762
00:35:58.030 --> 00:35:59.390
or employment prospects

763
00:35:59.390 --> 00:36:02.410
or access to housing or military enlistments.

764
00:36:02.410 --> 00:36:05.170
These are permanent deprivations

765
00:36:05.170 --> 00:36:08.780
unlike the pre-trial probation revocation

766
00:36:10.020 --> 00:36:12.200
or a post adjudication revocation

767
00:36:12.200 --> 00:36:13.890
or dangerousness hearings,

768
00:36:13.890 --> 00:36:17.240
which are just for a limited amount of time.

769
00:36:17.240 --> 00:36:18.890
And for a variety of reasons

770
00:36:22.250 --> 00:36:24.680
those pre-arraignment hearings or pre-E

771
00:36:24.680 --> 00:36:27.220
or even post arraignment hearings

772
00:36:27.220 --> 00:36:30.843
have significantly smaller liberty interests at stake.

773
00:36:30.843 --> 00:36:35.200
<v ->Well people can serve tremendous sentences on a probation.</v>

774
00:36:35.200 --> 00:36:37.530
Someone's on probation for armed robbery

775
00:36:37.530 --> 00:36:41.730
and they violate probation,

776
00:36:41.730 --> 00:36:45.250
they can get a significant jail sentence, correct?

777
00:36:45.250 --> 00:36:47.060
<v ->That is absolutely true.</v>

778
00:36:47.060 --> 00:36:48.970
That is absolutely true.

779
00:36:48.970 --> 00:36:51.910
However, in a probation revocation,

780
00:36:51.910 --> 00:36:54.570
if we're talking about a post adjudication

781
00:36:54.570 --> 00:36:56.400
probation revocation.

782
00:36:56.400 --> 00:37:00.090
At that point, the individual has already had

783
00:37:00.090 --> 00:37:02.320
all of these due process protections

784
00:37:02.320 --> 00:37:04.660
when they initially got sentenced.

785
00:37:04.660 --> 00:37:07.800
Probation was therefore given as a matter of grace

786
00:37:07.800 --> 00:37:09.000
by the court.

787
00:37:09.000 --> 00:37:11.640
Here we're really in a different stead.

788
00:37:11.640 --> 00:37:14.070
So you can imagine in a probation,

789
00:37:14.070 --> 00:37:17.113
whether it's pre-trial or post adjudication,

790
00:37:18.530 --> 00:37:21.250
the individuals start at one level--

791
00:37:21.250 --> 00:37:22.083
<v ->You have a great point.</v>

792
00:37:22.083 --> 00:37:23.690
I was just talking about the liberty interest

793
00:37:23.690 --> 00:37:25.710
and I was just thinking of people that

794
00:37:25.710 --> 00:37:28.200
have been given 15 year jail sentences

795
00:37:29.840 --> 00:37:32.670
and they kind of have a huge liberty interest.

796
00:37:32.670 --> 00:37:33.670
<v ->Absolutely.</v>

797
00:37:33.670 --> 00:37:34.670
Absolutely, they do.

798
00:37:34.670 --> 00:37:38.462
But they've also had substantial protections prior to that.

799
00:37:38.462 --> 00:37:40.980
<v ->I agree with your argument, right.</v>

800
00:37:40.980 --> 00:37:41.813
<v ->Thank your honor.</v>

801
00:37:41.813 --> 00:37:43.110
And I see that I'm out of time.

802
00:37:43.110 --> 00:37:44.100
<v ->Well let me just see</v>

803
00:37:44.100 --> 00:37:46.700
if there are further questions for Miss Celli.

804
00:37:46.700 --> 00:37:47.560
All right, no further questions.

805
00:37:47.560 --> 00:37:48.530
Thank you, Miss Celli.

806
00:37:48.530 --> 00:37:49.830
<v ->Thank you your honor.</v>

807
00:37:49.830 --> 00:37:52.140
<v ->And lastly we'll have Miss Menken</v>

808
00:37:52.140 --> 00:37:54.441
who's gonna tell us about riots, I think.

809
00:37:54.441 --> 00:37:56.220
(laughs)

810
00:37:56.220 --> 00:37:58.040
<v ->Good morning and may it please the court,</v>

811
00:37:58.040 --> 00:38:00.440
Michelle Menken on behalf of juvenile one.

812
00:38:00.440 --> 00:38:04.460
And the third question that was posed in this court's

813
00:38:04.460 --> 00:38:07.970
Amicus solicitation was whether the juvenile court erred

814
00:38:07.970 --> 00:38:11.490
in dismissing the felony riot charge

815
00:38:11.490 --> 00:38:15.450
on the ground that the statute chapter 264S Section 11

816
00:38:15.450 --> 00:38:17.140
lacked vitality.

817
00:38:17.140 --> 00:38:20.840
And the clear answer is no, there was no error.

818
00:38:20.840 --> 00:38:23.420
Not only did the statute lack vitality,

819
00:38:23.420 --> 00:38:26.450
but it's over-broad in violation of the first time.

820
00:38:26.450 --> 00:38:27.760
<v ->Do we have to resit</v>

821
00:38:27.760 --> 00:38:32.140
if we find the facts don't support it?

822
00:38:34.684 --> 00:38:36.147
<v ->I think we don't.</v>
<v ->I mean it might be docketed</v>

823
00:38:36.147 --> 00:38:38.520
but isn't that the easiest way to do it?

824
00:38:38.520 --> 00:38:39.840
<v ->I know the court has a preference</v>

825
00:38:39.840 --> 00:38:42.120
not to reach constitutional issues

826
00:38:42.120 --> 00:38:44.170
like the over breadth of the statute,

827
00:38:44.170 --> 00:38:46.390
and yes, I think technically.

828
00:38:46.390 --> 00:38:48.430
And damn I think we say something in the brief

829
00:38:48.430 --> 00:38:50.570
that if you find that there was no probable cause

830
00:38:50.570 --> 00:38:52.860
even assuming the validity of the statute,

831
00:38:52.860 --> 00:38:53.840
you don't have to reach it.

832
00:38:53.840 --> 00:38:54.673
There was no error in the decision

833
00:38:54.673 --> 00:38:56.420
and below can be affirmed.

834
00:38:56.420 --> 00:38:59.450
However, I do urge the court

835
00:38:59.450 --> 00:39:03.860
to comment on the unconstitutionality of the statute,

836
00:39:03.860 --> 00:39:06.800
because it is so plainly unconstitutional.

837
00:39:06.800 --> 00:39:07.820
<v ->Just before you get to that,</v>

838
00:39:07.820 --> 00:39:09.530
on the probable cause determination,

839
00:39:09.530 --> 00:39:11.820
the juvenile says to the police officer

840
00:39:11.820 --> 00:39:13.170
something like let's go.

841
00:39:13.170 --> 00:39:15.100
So it's a me and you.

842
00:39:15.100 --> 00:39:17.213
I know it's a tense situation.

843
00:39:18.520 --> 00:39:19.810
And I think as you point out,

844
00:39:19.810 --> 00:39:21.293
how is that inciting a riot?

845
00:39:22.420 --> 00:39:24.773
<v ->I think that that's right, your honor.</v>

846
00:39:26.010 --> 00:39:28.240
I think that the statute is clear that

847
00:39:28.240 --> 00:39:33.240
this targets promotion or advocacy of very specifically

848
00:39:33.900 --> 00:39:36.250
defined conduct by others.

849
00:39:36.250 --> 00:39:40.800
And here we have a juvenile who was pushed physically

850
00:39:40.800 --> 00:39:42.130
by a police officer,

851
00:39:42.130 --> 00:39:45.200
and whose response was okay, you wanna go?

852
00:39:45.200 --> 00:39:47.600
And this is not...

853
00:39:48.520 --> 00:39:51.630
Whether it had the effect of inciting anybody,

854
00:39:51.630 --> 00:39:53.123
which is another issue.

855
00:39:56.150 --> 00:39:59.290
It was not in any way counseling anybody else

856
00:39:59.290 --> 00:40:02.450
or advocating anybody else to engage in assault,

857
00:40:02.450 --> 00:40:05.530
except for the police officer to assault himself

858
00:40:05.530 --> 00:40:07.540
which as I've said is pretty much the opposite

859
00:40:07.540 --> 00:40:09.203
of what the statute prescribes.

860
00:40:10.280 --> 00:40:12.960
And also, to the point about

861
00:40:12.960 --> 00:40:16.283
whether this actually had the effect of inciting anybody,

862
00:40:17.740 --> 00:40:21.010
we don't have any allegation that it did.

863
00:40:21.010 --> 00:40:23.760
There's no connection drawn.

864
00:40:23.760 --> 00:40:25.780
Even the barest allegation

865
00:40:25.780 --> 00:40:28.350
between juvenile one's conduct

866
00:40:28.350 --> 00:40:30.860
and the conduct of anybody else.

867
00:40:30.860 --> 00:40:32.317
<v ->I think I might agree with you on this</v>

868
00:40:32.317 --> 00:40:34.917
but I know you wanna reach the constitutional issue.

869
00:40:36.859 --> 00:40:39.580
<v ->Oh, segue I mean, the incitement.</v>

870
00:40:39.580 --> 00:40:43.153
So as far as the statute is written currently,

871
00:40:44.220 --> 00:40:46.420
if there were an allegation

872
00:40:46.420 --> 00:40:49.560
that juvenile one's conduct had had the effect

873
00:40:49.560 --> 00:40:53.930
of emboldening somebody else to also take on the police,

874
00:40:53.930 --> 00:40:56.520
there would be strict liability imposed for that.

875
00:40:56.520 --> 00:41:00.250
Whether that was this juveniles intention

876
00:41:00.250 --> 00:41:02.640
in challenging the police officer or not,

877
00:41:02.640 --> 00:41:05.740
and that is quite clearly unconstitutional.

878
00:41:05.740 --> 00:41:08.090
I mean, we have a Supreme Court,

879
00:41:08.090 --> 00:41:12.600
United States Supreme Court case law directly on point.

880
00:41:12.600 --> 00:41:16.700
Because this is a statute that regulates

881
00:41:16.700 --> 00:41:21.390
the content of speech, which is presumed to be invalid and--

882
00:41:21.390 --> 00:41:24.250
<v ->Miss Menken can I ask a question on that?</v>

883
00:41:24.250 --> 00:41:25.380
I'm confused a little bit,

884
00:41:25.380 --> 00:41:27.390
and again I'm not a former prosecutor

885
00:41:27.390 --> 00:41:28.910
like a number of my colleagues.

886
00:41:28.910 --> 00:41:32.970
But so if I'm changing the facts a little bit,

887
00:41:32.970 --> 00:41:36.690
if one of these juveniles got up and said,

888
00:41:36.690 --> 00:41:38.363
let's attack the police.

889
00:41:40.169 --> 00:41:43.893
You grab the paving stones

890
00:41:45.205 --> 00:41:49.030
and let's have an armed assault

891
00:41:49.030 --> 00:41:50.443
against the police, right?

892
00:41:53.030 --> 00:41:56.330
There's nothing you can charge those juveniles with?

893
00:41:56.330 --> 00:41:58.350
Or change the facts,

894
00:41:58.350 --> 00:42:02.060
you've got a bunch of angry people

895
00:42:02.060 --> 00:42:05.833
and they say, let's attack the State House.

896
00:42:08.609 --> 00:42:10.480
Let's take the paving stones

897
00:42:11.790 --> 00:42:13.340
and I, you know--

898
00:42:13.340 --> 00:42:17.350
<v ->Let's take our AK-47s and go into the State House</v>

899
00:42:17.350 --> 00:42:19.212
without masks.

900
00:42:19.212 --> 00:42:21.872
And rebel against the governor's order saying

901
00:42:21.872 --> 00:42:26.872
that we need to wear mask.

902
00:42:27.080 --> 00:42:28.800
<v ->That's not criminal behavior</v>

903
00:42:28.800 --> 00:42:32.080
if it's not just, let's bring our protest signs

904
00:42:32.080 --> 00:42:34.793
and speak up, but let's attack.

905
00:42:36.599 --> 00:42:39.770
<v ->So there's a few answers to that question.</v>

906
00:42:39.770 --> 00:42:43.160
First of all, yes, it is criminal behavior

907
00:42:43.160 --> 00:42:47.260
and there are many statutes that punish such things.

908
00:42:47.260 --> 00:42:49.900
And I'll point out that in particular,

909
00:42:49.900 --> 00:42:51.540
besides assaults

910
00:42:51.540 --> 00:42:55.800
and common criminal statutes that you can think of

911
00:42:55.800 --> 00:42:58.283
that would apply to conduct such as that,

912
00:42:59.330 --> 00:43:00.570
one of the Amici

913
00:43:02.180 --> 00:43:04.630
drew attention to a statute

914
00:43:04.630 --> 00:43:06.680
that gives the government great power

915
00:43:06.680 --> 00:43:09.030
to address such riotous behavior,

916
00:43:09.030 --> 00:43:12.750
and that's in chapter 269, Sections one through eight.

917
00:43:12.750 --> 00:43:14.240
Which have really been kept current,

918
00:43:14.240 --> 00:43:17.140
they're in use, they've been amended repeatedly.

919
00:43:17.140 --> 00:43:18.580
<v ->But I guess my question is,</v>

920
00:43:18.580 --> 00:43:21.830
does this statute potentially to apply

921
00:43:21.830 --> 00:43:26.410
to these types of hypotheticals I've just posed where...

922
00:43:29.210 --> 00:43:31.550
<v ->So it does potentially apply.</v>

923
00:43:31.550 --> 00:43:35.303
The problem is that it also sweeps in a lot of other conduct

924
00:43:35.303 --> 00:43:38.550
that the government is not entitled to regulate.

925
00:43:38.550 --> 00:43:41.373
So in order for this statute to be workable,

926
00:43:42.910 --> 00:43:45.313
it would have to require an intent,

927
00:43:46.500 --> 00:43:47.810
an intent to cause

928
00:43:47.810 --> 00:43:52.390
and a likelihood to cause imminent lawlessness.

929
00:43:52.390 --> 00:43:55.160
So in the factual scenario that you described

930
00:43:55.160 --> 00:43:58.290
you know, at least the first one, they have the rocks,

931
00:43:58.290 --> 00:43:59.650
they have the means,

932
00:43:59.650 --> 00:44:01.623
the confrontation is nigh,

933
00:44:02.470 --> 00:44:05.820
that the government has an interest in

934
00:44:05.820 --> 00:44:09.720
and a right to address that kind of behavior.

935
00:44:09.720 --> 00:44:12.760
But this particular, and there are statutes on the books

936
00:44:12.760 --> 00:44:15.870
that the government could presently use

937
00:44:15.870 --> 00:44:18.530
to quell such riotous behavior.

938
00:44:18.530 --> 00:44:22.560
<v ->But does that suggest we should adopt Justice Gaziano's</v>

939
00:44:22.560 --> 00:44:24.580
more cautionary approach

940
00:44:24.580 --> 00:44:26.400
and just deal with the facts here

941
00:44:26.400 --> 00:44:28.700
and not try to wipe out this whole statute,

942
00:44:28.700 --> 00:44:31.280
because there may actually be things

943
00:44:31.280 --> 00:44:33.710
besides a communist insurrection

944
00:44:35.630 --> 00:44:37.140
that it applies to.

945
00:44:37.140 --> 00:44:38.910
<v ->Well, what I would say to that is,</v>

946
00:44:38.910 --> 00:44:42.150
as I'm saying we have other statutes

947
00:44:42.150 --> 00:44:44.170
that work to curb such behavior.

948
00:44:44.170 --> 00:44:46.310
And the problem with this statute

949
00:44:46.310 --> 00:44:47.650
is that it's unconstitutional,

950
00:44:47.650 --> 00:44:50.800
it could be misapplied as it was in this case.

951
00:44:50.800 --> 00:44:55.000
And at this particular moment, it's quite timely.

952
00:44:55.000 --> 00:45:00.000
And you can really readily imagine a situation where

953
00:45:00.690 --> 00:45:03.310
this statute was used improperly

954
00:45:03.310 --> 00:45:08.110
to curb constitutionally protected, peaceful demonstrations.

955
00:45:08.110 --> 00:45:10.230
And so that is why I urge the court

956
00:45:10.230 --> 00:45:12.210
to take on the constitutional issue.

957
00:45:12.210 --> 00:45:13.470
It's not difficult.

958
00:45:13.470 --> 00:45:16.380
We have Supreme Court case law directly on point

959
00:45:16.380 --> 00:45:17.970
that says, here's the requirements

960
00:45:17.970 --> 00:45:22.970
if you want to curb anti-governmental behavior.

961
00:45:24.900 --> 00:45:27.020
There has to be an intent to

962
00:45:27.020 --> 00:45:31.020
and a likelihood of causing imminent harm.

963
00:45:31.020 --> 00:45:34.540
So this statute has to be revisited

964
00:45:34.540 --> 00:45:36.750
before it could possibly be used.

965
00:45:36.750 --> 00:45:39.560
And I think it's incumbent upon this court at this time

966
00:45:39.560 --> 00:45:42.500
to comment on the unconstitutionality

967
00:45:42.500 --> 00:45:44.880
and an enforceability of this statute,

968
00:45:44.880 --> 00:45:47.440
which has laid dormant for over 60 years

969
00:45:47.440 --> 00:45:50.460
without amendment, construction, clarification.

970
00:45:50.460 --> 00:45:52.280
We have no reason to believe

971
00:45:52.280 --> 00:45:55.300
that this is the continuing will of the legislature

972
00:45:55.300 --> 00:45:57.283
to have this statute on the books.

973
00:45:59.640 --> 00:46:02.150
So if there are no further questions on,

974
00:46:02.150 --> 00:46:05.880
I think we've covered the lack of probable cause,

975
00:46:05.880 --> 00:46:07.350
the unconstitutionality

976
00:46:07.350 --> 00:46:11.250
and the sort of desuetude of the statute.

977
00:46:11.250 --> 00:46:14.480
I'll turn briefly to the question of

978
00:46:14.480 --> 00:46:17.530
whether a Wallace W hearing was required in this case.

979
00:46:17.530 --> 00:46:20.470
And I just like to note what that juvenile one's position

980
00:46:20.470 --> 00:46:23.030
on this issue is slightly divergent

981
00:46:23.030 --> 00:46:25.603
from the other juvenile's positions.

982
00:46:26.530 --> 00:46:29.650
The other positions have a couple of problems

983
00:46:29.650 --> 00:46:31.510
that I'd like to draw the court's attention to,

984
00:46:31.510 --> 00:46:32.463
number one,

985
00:46:34.660 --> 00:46:37.840
those approaches ignore language of Wallace W

986
00:46:37.840 --> 00:46:39.850
that seems to plainly state that

987
00:46:39.850 --> 00:46:43.720
in a case where a juvenile is charged

988
00:46:43.720 --> 00:46:44.920
with multiple offenses,

989
00:46:44.920 --> 00:46:47.370
there needs to be a Wallace W hearing.

990
00:46:47.370 --> 00:46:50.300
This is one of those difficult to analyze situations

991
00:46:50.300 --> 00:46:51.810
that the court addresses,

992
00:46:51.810 --> 00:46:53.640
and then the court follows up saying

993
00:46:53.640 --> 00:46:56.790
in these circumstances a hearing is required.

994
00:46:56.790 --> 00:46:59.270
Now to be sure that hearing may look a little bit different

995
00:46:59.270 --> 00:47:00.377
from a hearing of--

996
00:47:01.410 --> 00:47:02.460
<v ->Your client...</v>

997
00:47:02.460 --> 00:47:04.280
I can't remember yours is Andy?

998
00:47:04.280 --> 00:47:07.623
He has an assault and battery charge, right?

999
00:47:07.623 --> 00:47:09.530
He has--

1000
00:47:09.530 --> 00:47:13.410
<v ->He has lesser misdemeanors, more serious misdemeanors,</v>

1001
00:47:13.410 --> 00:47:14.630
and then there was this felony

1002
00:47:14.630 --> 00:47:16.853
which was properly dismissed, but yes.

1003
00:47:18.034 --> 00:47:22.890
So the big problem with the other approach is--

1004
00:47:22.890 --> 00:47:26.220
<v ->I just don't understand why they can arraign him.</v>

1005
00:47:26.220 --> 00:47:28.980
Wallace W says that you can proceed directly

1006
00:47:28.980 --> 00:47:30.963
on the more significant charge.

1007
00:47:32.000 --> 00:47:34.340
I'm not saying that they can do anything

1008
00:47:34.340 --> 00:47:35.790
with the misdemeanors,

1009
00:47:35.790 --> 00:47:37.540
but are you arguing they can't proceed

1010
00:47:37.540 --> 00:47:40.400
on the more serious charge as well?

1011
00:47:40.400 --> 00:47:42.287
<v ->I am, and I'll tell you why,</v>

1012
00:47:42.287 --> 00:47:44.400
and I know that that's controversial.

1013
00:47:44.400 --> 00:47:45.233
But in the end,

1014
00:47:45.233 --> 00:47:48.320
and your honor a point at your honor's commented earlier

1015
00:47:48.320 --> 00:47:50.410
that there's nothing that should stop The Commonwealth

1016
00:47:50.410 --> 00:47:53.310
from just charging a felony and just proceeding on a felony,

1017
00:47:53.310 --> 00:47:55.830
and if that's the child's first offense, so be it.

1018
00:47:55.830 --> 00:47:57.960
But here's the problem.

1019
00:47:57.960 --> 00:47:58.813
First of all,

1020
00:48:01.120 --> 00:48:04.480
the problem is that with that kind of interpretation

1021
00:48:04.480 --> 00:48:07.340
kids end up being worse off than they were before

1022
00:48:07.340 --> 00:48:09.120
this statute was amended,

1023
00:48:09.120 --> 00:48:12.010
because these lesser offenses

1024
00:48:12.010 --> 00:48:13.790
are sort of out the window.

1025
00:48:13.790 --> 00:48:17.200
We now have prosecutorial discretion being exercised

1026
00:48:17.200 --> 00:48:20.120
in a manner that contemplates Wallace W,

1027
00:48:20.120 --> 00:48:22.620
so there is nothing stopping The Commonwealth

1028
00:48:22.620 --> 00:48:27.170
from choosing to charge a minor misdemeanor offense

1029
00:48:27.170 --> 00:48:31.350
as a felony offense to avoid this.

1030
00:48:31.350 --> 00:48:34.320
Now you may say well, the prosecution has the right to do so

1031
00:48:34.320 --> 00:48:39.320
if they determine that a juvenile's particular case

1032
00:48:39.770 --> 00:48:42.480
ought to be brought through the courts,

1033
00:48:42.480 --> 00:48:44.070
why don't they have the discretion

1034
00:48:44.070 --> 00:48:45.400
to go ahead and do that?

1035
00:48:45.400 --> 00:48:46.930
And the problem is that,

1036
00:48:46.930 --> 00:48:50.000
the question arises whether before the amendment

1037
00:48:51.080 --> 00:48:55.190
that would have been the prosecutor's decision.

1038
00:48:55.190 --> 00:48:57.980
And you'd now end up with kids in court

1039
00:48:57.980 --> 00:49:01.080
who let's say, let's take a case like ours.

1040
00:49:01.080 --> 00:49:04.120
Let's say that you just dropped the minor misdemeanors

1041
00:49:04.120 --> 00:49:07.760
and the more serious matters proceed.

1042
00:49:07.760 --> 00:49:11.000
You now can't bargain the case down

1043
00:49:11.000 --> 00:49:13.150
to something lesser.

1044
00:49:13.150 --> 00:49:15.870
Also what happens if you go to trial

1045
00:49:15.870 --> 00:49:20.280
and the jury doesn't, from The Commonwealth's perspective

1046
00:49:20.280 --> 00:49:21.730
it's a potential disadvantage

1047
00:49:21.730 --> 00:49:25.260
if the jury finds that this charge is too serious,

1048
00:49:25.260 --> 00:49:26.790
but doesn't have the option

1049
00:49:26.790 --> 00:49:29.390
to hook the kid on something lesser,

1050
00:49:29.390 --> 00:49:31.830
there's a greater likelihood of acquittal.

1051
00:49:31.830 --> 00:49:34.220
And let's say that there's a lesser included offense

1052
00:49:34.220 --> 00:49:36.740
on the table, and the jury decides to convict

1053
00:49:36.740 --> 00:49:38.100
of a lesser included offense,

1054
00:49:38.100 --> 00:49:40.150
which is a lesser misdemeanor.

1055
00:49:40.150 --> 00:49:41.500
Then at the end of the day,

1056
00:49:41.500 --> 00:49:42.550
you've gone through trial,

1057
00:49:42.550 --> 00:49:44.240
you've gone through the entire proceedings

1058
00:49:44.240 --> 00:49:46.740
and you now have a matter that has to be dismissed

1059
00:49:46.740 --> 00:49:48.100
and tucked away.

1060
00:49:48.100 --> 00:49:52.180
So in terms of judicial economy, it may make sense

1061
00:49:52.180 --> 00:49:53.770
when you have a juvenile offender

1062
00:49:53.770 --> 00:49:56.470
who is before the court with no prior record,

1063
00:49:56.470 --> 00:49:59.280
no prior interaction with police whatsoever

1064
00:49:59.280 --> 00:50:03.590
to take a close look at the nature of the conduct

1065
00:50:03.590 --> 00:50:07.520
and what offenses can actually be supported

1066
00:50:07.520 --> 00:50:09.393
by proof beyond reasonable doubt.

1067
00:50:11.210 --> 00:50:14.393
And there was one more thing I wanted to say on that.

1068
00:50:16.270 --> 00:50:18.830
Oh, there may be instances,

1069
00:50:18.830 --> 00:50:20.480
certain allegations obviously

1070
00:50:20.480 --> 00:50:23.133
if there is bodily harm involved.

1071
00:50:23.990 --> 00:50:25.770
It'd claimed that there's no way

1072
00:50:25.770 --> 00:50:28.000
that that is a lesser misdemeanor,

1073
00:50:28.000 --> 00:50:31.340
if there's been injury or death for example.

1074
00:50:31.340 --> 00:50:33.230
I think that those kinds of offenses

1075
00:50:33.230 --> 00:50:36.770
could be categorically excluded.

1076
00:50:36.770 --> 00:50:38.270
But where you have something

1077
00:50:38.270 --> 00:50:40.710
that is just minor in nature,

1078
00:50:40.710 --> 00:50:44.850
that's being for example, filming the police

1079
00:50:44.850 --> 00:50:48.540
at an incident like ours that's before the court

1080
00:50:48.540 --> 00:50:52.070
and having that charged as inciting a riot,

1081
00:50:52.070 --> 00:50:54.740
I think it would be appropriate,

1082
00:50:54.740 --> 00:50:57.740
and it would affect the legislative intent

1083
00:50:57.740 --> 00:51:00.580
to have some sort of a robust inquiry

1084
00:51:00.580 --> 00:51:03.100
into the evidence supporting that charge

1085
00:51:03.100 --> 00:51:06.405
before the entire case could proceed.

1086
00:51:06.405 --> 00:51:07.771
<v ->Okay, thank you Miss Menken.</v>

1087
00:51:07.771 --> 00:51:10.630
Let me see if there's further questions of perspective.

1088
00:51:10.630 --> 00:51:11.639
<v ->Thank you.</v>
<v ->No, thank you.</v>

1089
00:51:11.639 --> 00:51:12.509
Thank you council.

1090
00:51:12.509 --> 00:51:13.759
<v ->Thank you.</v>
<v ->Good job.</v>