Announcer: SJC-12967, in the matter of an impounded case.
-: Thank you, Miss Black?
-: Thank you, your Honor, good morning.
May it please the court, ADA Johanna Black
for The Commonwealth.
In amending Section 52 of General Laws Chapter 119
by its 2018 Criminal Justice Reform Act,
the legislature believed
that the earlier a child enters the juvenile justice system,
the higher the risk it is for that child to recidivate.
Now, the exclusion that was created in the amendment,
which excludes civil infractions,
violations of municipal ordinances,
violations of town bylaws
and a first offense of a six months or less misdemeanor,
prevented or at least in some children's cases,
delayed their entering into the juvenile justice system.
Now, to the language of Section 52,
as well as the intent behind the amendment to that section,
supports the Commonwealth's position
that six months or less,
a first offense of a six months or less misdemeanor,
that's charged with at least one greater offense,
(clears throat)
should not be dismissed as a first offense
when all those charges are on the same complaint.
And because Wallace W, to create the Wallace W hearing
to establish a first offense,
such hearings would not be applicable
to the juveniles' cases.
-: I'm confused, so if you charge two misdemeanors
and then you get to arraign on both of them?
Miss Black: Yes.
-: You charge two lesser effect,
your misdemeanors of six months or less.
So if that's the case, you get to charge
and arraign on both of those?
Just because you've done two? -: Yes.
-: That makes no sense, does it?
Is that really consistent
with what they wanted to have happen here?
-: I believe that when you're interpreting a statute
you first look to the plain language of the statute,
and this court interpreted that language
a first offense of a six months or less misdemeanor
to mean a single six months or less misdemeanor.
The words that are used in a singular form--
-: Until you have one you have none,
and probable cause doesn't get you anywhere
under the statute, as we explained in Wallace W.
So if you do two misdemeanors,
both of them can end up going away.
The first one could be just dismissed as a bad charge
and the second one, you still have to establish.
So I don't understand why just pleading
two charges gets you anywhere.
-: Well, the statute doesn't say anything about
a proof beyond a reasonable doubt,
and it also, as you said, doesn't specify probable cause.
However, as this court interpreted,
it does apply to one and only one
six months or less misdemeanor
if that offense happens to be the child's first offense.
And as you said, if you're charged with two
and one is not a good charge meaning
the police or the prosecution were incorrect
and inadvertently charged something that
was not supported by sufficient probable cause,
a Humberto H motion to dismiss
would kick that charge out
and then you would be left with only one,
six months or less misdemeanor.
-: What you charge isn't gonna be the determinative factor,
you've got to establish a first offense.
You're charging can't determine things,
it's gotta be what's proven,
and we required an adjudication.
So I don't see your argument.
I understand if there's a felony or a more serious offense,
the Commonwealth can proceed directly on that.
That's separate, that's completely outside
the first offense protection.
But I don't get that The Commonwealth gets to dictate
by its charging mechanism.
It can make the first defense requirements go away.
It just doesn't seem to...
I don't see any basis in the statute
and as the author of Wallace W
that certainly wasn't what we were writing.
-: Well the legislature in not qualifying
the other exclusions,
did qualify a first offense of a six months
or less misdemeanor.
So that alone,
in addition to
its legislative history
supports The Commonwealth's position
that two six months or less misdemeanors
that are supported by probable cause
would not constituted a first offense
of a six month or less misdemeanor.
The Commonwealth disagrees respectfully
with your honor's interpretation
of the word offense in Wallace W.
The word offense should be taken to mean probable cause.
And if you look at that Section 52--
-: Hold it please, hold it.
I just wanna make sure
'cause are you saying we're wrong in Wallace W
that probable cause we should...
I mean, we understand you argued vigorously
for probable cause the first time around,
but we don't do do overs
on issues we've already decided.
And so are you asking us to disclare
our original decision wrong on probable cause?
-: I don't think you have to to rule
that the six month or less misdemeanor
should not be dismissed in this case.
However, the interpretation of offense
in Wallace W is incorrect.
And juvenile two, did raise this issue
in his responsive brief,
that in certain circumstances, in some cases,
if two children recidivate,
one who committed a first offense of a felony
that charge pending when he or she commits
his or her second offense
being a six month or less misdemeanor
might be treated less harshly
than a child who in it, his or her first interaction
with the juvenile justice system
commits a six months or less misdemeanor
as well as a felony charge.
In the first circumstance...
Well, let me put it this way,
when you view both children at their first interaction
with the juvenile justice system,
the latter child, the one that's charged
with more than just a six month
or less misdemeanor charge or offense
has committed more serious misconduct
because his or her misconduct gave rise
to a more serious charges.
I don't think you can assume that children are recidivate.
So I think the Commonwealth interpretation of Section 52
not requiring dismissal of six months
or less misdemeanor charges when they're charged
in one complaint with greater offenses makes sense.
But if both children do recidivate,
then you have the first child
who is facing a pending felony charge,
but won't be arraigned on the six months
or less misdemeanor charge,
unless The Commonwealth proves a felony charge
beyond a reasonable doubt under Wallace.
Whereas you have a child who's charged with a felony
as well as a six month or less misdemeanor charge
in the first instance arraigned on both.
If you follow The Commonwealth's interpretation of offense
that helps level the playing field in that
maybe less common possible situation
that could arise under Wallace W.
So I don't think we, sorry.
-: Why don't you one?
One, you're fighting an uphill battle
to reverse what we did the first time.
This is hard enough without going backwards.
Why don't you address defense counsel's argument that
in a single episode,
that we shouldn't treat a single episode
as a first offense?
Maybe you can address that point.
-: Sure.
So the way Section 52 reads is
a child between the ages of 12 and 18
who commits any offense against a law of The Commonwealth.
A law of The Commonwealth is singular
and any offense can be a felony,
a major misdemeanor or six month or less misdemeanor.
You then exclude, sorry.
You then exclude--
-: Let me pause, let me make it narrower for you.
Okay, we've got a single act.
We often in, obviously in criminal law have
if you have different elements
we can find two different crimes for them.
So we have this juvenile,
he engages in a single act
and you come up with a couple of different misdemeanors
based on that.
Again it's a five minute episode in this juveniles life.
That's still we shouldn't treat that as a first offense,
we should separate it into as many offenses
as we legally can.
And that's what the legislature intended.
And it's not a rhetorical question
'cause I think this is really difficult.
-: No, I understand,
I think these are very complicated issues too.
And I think in an effort to keep application of the law
consistent across different people,
if conduct supports a charge, you charge
unless in your discretion there are justifications
for not doing so.
So I know one of the juveniles raised the argument
of double jeopardy
and that you wouldn't be convicted or sentenced on
for example on that.
-: I'm not focused on double jeopardy,
I'm focused on the legislative's intent here.
Miss Black: Right.
-: And the idea is they wanna give juveniles a second chance.
-: Right. -: And I'm just wondering
whether charging decisions
are going to prevent a second chance for a single episode.
Is that what the legislature intended?
And I don't know what they intended
'cause it's not that clear,
but it would help if you can address that kind of specific.
-: Sure, so I think if you under that interpretation,
if you are going to focus on the episode
to determine whether a child gets a second chance or not,
then you are running up against a problem where
although the legislature specified
a six month or less misdemeanor
and did not say a major misdemeanor,
there are charges that I think argument
that constitute major misdemeanor.
So that I think arguments could be made
that the conduct supporting them
is not that much more egregious or serious
than a six month conduct supporting a six month
or less misdemeanor.
-: That's the easy stuff,
'cause the legislature did not allow
this type of second chance,
a more serious offenses.
It's the lesser offenses
where they are occurring in a single episode
that's difficult.
No one's getting in your way,
the legislature or Wallace W
on proceeding on more serious offenses.
It's these lesser offenses that occur in single episodes
which are the more difficult questions.
You're making it harder on yourself
by trying to Guam the two different things together.
But go ahead.
-: So a scenario comes to mind.
The problem with the single episode is
and this is just coming to mind right now.
So feel free to pick at it
if I'm not giving the best example.
But someone charged with threat to commit a crime
that's a six month or less misdemeanor charge.
Threat to commit a crime could be a charge
that is part of a larger context
of very serious, scary misconduct.
However, someone could be charged with a larceny
for something that is more like a shoplifting,
and a larceny I believe would be a major misdemeanor.
-: Justice Lowy asked,
a student pointed out that,
yes, you may need to prove the lesser one
is part of the bigger one,
but I'm not sure anything we're doing is precluding evidence
that's related to the lesser one
from going into the greater one.
-: No, I'm sorry.
I was answering your question about
why don't we focus on a single episode
versus a single charge
in determining what constitutes a first offense
of a six month or less misdemeanor.
I think if we do that then we run the risk
of treating juveniles differently.
In that some six month or less misdemeanor charges
the conduct supporting them could actually be more serious
than some of the conduct that could support
some major misdemeanors.
And so by looking at a single episode
it runs into problems as well.
And I think where Section 52 already said
they had this general definition of delinquent child meaning
a child who commits any offense against a law,
a singular law of The Commonwealth.
That existed when the legislature amended it.
And they amended it by carving out that category.
And one of the exclusions from that category
was first offense is six months
or less of misdemeanor charge.
So that's carving out from the category of any offense
against a law of The Commonwealth.
A law of The Commonwealth is one crime.
It's one charge.
It's not one episode that could lead to multiple offenses
against multiple laws of The Commonwealth.
So I think that reading of the language
as well as principles of statutory construction show that
it really should be a violation of the law
and not an episode where a child violates multiple laws.
Even if it's just two laws.
And I think it goes back.
What we were getting into a little bit was,
well I won't get into that.
But I do think Section 52 is...
Again, doesn't state probable cause
and doesn't state proof beyond a reasonable doubt,
it defines delinquent child.
And that term is carried throughout the statutory scheme
of chapter 119 Section 52, and the subsequent sections.
And in that you read that a child can be complained of
as a delinquent child,
meaning that they can be charged
or alleged to have committed an offense
against a law of The Commonwealth,
or they can be adjudicated delinquent,
meaning they could be found to have committed it.
Found beyond a reasonable doubt to have committed it
or they could plea out and admit
to having committed an offense
against the law of the Commonwealth.
-: Thank you Miss Black, your time's up.
Miss Black: Thank you.
Now we turn now to Miss Jellison please.
-: Good morning Justices.
And may it please the court,
Eva Jellison on behalf of juvenile two.
I'm gonna be addressing the multi-cam complaint issue.
Attorney Charlie will follow me
and address evidentiary issues at a Wallace W hearing
and Attorney Menkin will go last
and address the issue
regarding the promotion of anarchy statute.
Wallace W didn't resolve this issue
but it did help us a little bit.
It told us that probable cause was not enough.
Simply charging a juvenile with multiple offenses
does not give the juvenile court jurisdiction
over any offense.
It also counseled us
that first offensive misdemeanor is ambiguous.
And because it's ambiguous,
we need to interpret it
in light of the legislature's intent,
the rule of Leonetti
and General Law chapter 119 Section 53.
I'd just like to respond quickly
to a point that The Commonwealth made
that the statute says a law of The Commonwealth.
I'd like to point out that in this case
my client was charged with two offenses or two crimes
that arose from one law of The Commonwealth,
disorderly conduct and disturbing the peace
are both in one statute.
So I don't think that that language helps,
I think it highlights the ambiguity of the statute.
So what we should do here
is interpret first offense of a misdemeanor
to be any minor misdemeanors,
not based on The Commonwealth charging decisions,
and dismiss those misdemeanors without a Wallace W hearing.
And we don't need a Wallace W hearing
because there is no prior offense to prove.
The court was pretty clear in Wallace W
that Wallace W hearings were about proving prior offenses.
There is no prior offense to prove,
the minor misdemeanors should be dismissed
as the child's misdemeanor offense.
-: To make sure I understand,
your client is charged...
I got so many juveniles here.
Your client's charged with-- -: Absolutely
-: Two lesser misdemeanors,
two under six months,
six months or under misdemeanors, is that right?
-: My client was charged with
three minor misdemeanors, one more serious misdemeanor,
and the felony which The Commonwealth concedes
must be dismissed.
-: I'm again, I'm confused then.
Your client, they could proceed directly
on the more serious misdemeanor, right?
-: That's correct.
-: And then we've got three minor misdemeanors left, right?
-: That's right.
-: So for you to have those all dismissed
we have to adopt the Macco interpretation
or one of your interpretations that says
a first offense includes all of the first offenses
charged in a single episode, right?
That's the only way you get dismissed
'cause if we don't,
they could prove one of them.
If we don't adopt that interpretation
there are potentially three first three offenses here,
and two of those could be arraigned and adjudicated
unless we adopt the single episode approach, right?
-: Yes, if you don't adopt the approach
that first offense of a misdemeanor
means any misdemeanor charged
as a first episode of conduct
within a first episode of conduct,
then yes, you could come up with different results.
You could say that you have to prove the greater offense
in a Wallace W hearing and misdemeanors could go forward.
You could say a number of things.
But I don't think that's the right interpretation.
If you look at the ambiguity in the statute
and you interpreted in light of the rule of Leonetti
in Section 53.
And I think I'd like to go straight..
Yes Justice Kafker.
-: Yeah, I just wanna make sure,
'cause I need help here.
So we're careful about not treating...
You can be convicted of multiple crimes
as long as they have different elements,
so I'm just trying to make sure
how do we adopt your interpretation
without running into a lot of our other law out there
that treats separate.
Where there different elements,
we've got different offenses in different crimes.
Just to help us out here,
is it because of the legislative history?
What is it?
What's it that does that?
-: Yeah, so I believe it comes from the legislative intent
to begin with.
So were first events of a misdemeanor is ambiguous.
The legislature's intent was to benefit children
by and specifically the court said this in Wallace W,
it said it in Lazlo L,
this is about giving children a second chance.
This is about targeting repeat criminal conduct.
This is about minimizing contact
with the juvenile legal system.
-: May I ask you a question?
Miss Jellison, may I ask you a question?
Miss Jellison: Sorry Justice Lenk, you're saying?
-: It sound like you focus on just the category.
I think it's trying to do this too.
I don't understand what it is
that the legislature was trying to do.
And when you say second chances second chances at what?
Second chances at not having any involvement
with the juvenile justice system?
Because if that's the case,
how do we deal with the other the major offense?
-: So I have to say I don't know precisely
what they meant by second offense.
I think it's pretty clear
that if you have only minor misdemeanors
those should be dismissed.
You should really get a second chance
at entering the juvenile legal system.
-: That's right. -: But where you have...
Sorry Justice Lenk, I can't hear you.
-: I'm sorry, you're in the justice system anyway, right?
Because it clearly has jurisdiction
over the major misdemeanor
or what everyone call.
Yes, major misdemeanor, the other ones.
-: Absolutely so.
-: Doing that doesn't fulfill any legislative function,
does it?
-: I believe that it does.
I believe that where the legislature
wanted to give children a second chance
and they didn't define that second chance particularly.
That you can look at the benefit to the juvenile
of having these minor misdemeanors dismissed.
And I addressed this in my brief,
and I think that there are a couple ways
that this still provides a child with a second chance
and it still satisfies the legislative intent.
And one is that children
are particularly sensitive to fairness.
When they're treated fairly by the juvenile legal system,
they're more likely to be legally socialized,
they're less likely to recidivate.
Recidivism was a focus of this legislation.
A second part is that multiple entries on a carry
are harmful to children.
It doesn't matter how those entries actually end up,
and this court recognized that in Preston P.
I have a number of case citations in my brief
about how police make charging decisions
based upon the number of carry entries.
Judges make decisions on the number of carry entries.
Probation officers make decisions
on the number of carry entries as to their recommendations.
So this would provide the child
with a version of a second chance
and I think that where the legislature sort to
not even give our system really the chance over...
This was a jurisdictional modification
and they sought to substantially contract
the jurisdiction of the juvenile court.
-: Miss Jellison could I give you
an example. -: Yes Justice Lowy.
-: That might make your point
and see if I understand it. -: I guess.
-: Because your overall point is
if you have one interaction
that brings you in touch with the criminal justice system.
Let's say you're 15 years old,
you're driving a car without a license,
then your friends have some alcohol in the car
and when you get pulled over,
your behavior is enough to lead to a disturbing the peace
and to a disorderly conduct.
And so it all happened in 10 minutes,
it was one touch of the juvenile
with the criminal justice system.
And the goal of the legislation is to give that juvenile
an opportunity without getting involved
in the criminal justice system to rehabilitate
and hopefully that'll be it.
But if you could just have only one of those dismissed
and the other three adhere,
the intent to the legislature is lost.
-: That's correct.
-: Can I ask you a question Miss Jellison?
Miss Jellison: Absolutely.
-: Would your interpretation promote overcharging?
-: So I don't believe that my interpretation
specifically promotes overcharging
more than overcharging is already a problem.
So to the extent that the legislature modified this
and we're here because
The Commonwealth has doggedly pursued minor misdemeanors
that were charged as part of this first episode
of misconduct.
Honestly, I really think it's incumbent
upon The Commonwealth not to overcharge children.
I think that this prevents The Commonwealth overcharging
from affecting the juvenile in a more negative way.
So if The Commonwealth overcharges
by charging two misdemeanors,
charging disorderly conduct and disturbing the peace,
both of those are dismissed,
and The Commonwealth overcharging
does not harm the juvenile.
Where they're charged with these lesser misdemeanors
and a more significant offense
still helps the juvenile in the way that I explained
by having fewer carry entries.
If the Commonwealth chooses to charge a bunch of felonies
because they can't accept that the legislature
wanted to help children,
we don't really have the tools under this particular statute
to stop that, but I would hope that The Commonwealth
wouldn't do that.
I think that's all I could say
to that overcharging question.
-: Thank you. -: Thank you.
-: Let me ask Miss Jellison another question.
I'm looking for statutory support for your approach.
'Cause we're uncomfortable enough here
without much legislative guidance.
So I was looking at sort of the armed career criminal
Justice Berg decision in Garvey.
So do we have a similar type of statutory structure
or language in the statute
that would support this one episode approach
for these minor juveniles?
Where do we turn for statutory support for this
as opposed to just the second chance intent here.
-: I'll have to say,
I think I would have to read a 22C letter
on the specific habitual offender statute
or specific or armed career criminal statute
if your honor would prefer.
But I can say that I believe that this is
a term of art that we haven't seen before.
If you wanna look towards kind of the intent
of those instead of a statute,
I know that habitual offender,
the habitual offender law is applied
to episodes of misconduct,
so this would be a similar approach as that.
The armed career criminal statute.
I know the armed career criminal statute
has a different language,
I just can't point to exactly what that is in this moment.
-: One of the two of them uses the word incidences
and then we use the incident,
the incidences language to move through one incident.
It needs to be separated incidence.
-: Yeah, I believe that was habitual offender.
That would track with the habitual offender
statute decision in Garvey.
-: So I don't see that as being as helpful.
But then the habitual offender
also has the word habitual in it,
which also gives some indication about habit.
-: I mean, I guess focusing on that,
it reminds me, this is all a...
I think we can see in the statutory language
that there is a huge temporal component to this.
And I think that that's why the court said
that the legislature,
I mean, the legislature said it,
but the court also recognized
that the legislative intent
was about punishing repeat offenders.
Because when it's a first offense, whatever that means,
if the child is having their first contact
with the juvenile justice system
and that's what happened here.
And I think the legislature intended and wrote first offense
with this temporal element to focus us on that.
Was this the first instance of misconduct
that violated a law of The Commonwealth
or laws of The Commonwealth
or was this a repeat offender
committing successive offenses
where we know that it's not simply avoiding
the jurisdiction of the juvenile court
that would be helpful, but guidance from the juvenile court.
So I think first is a really important word in this statute
but I do think it's ambiguous,
and I think that this court--
-: Meaning first is different from single?
-: First is different from single, absolutely.
I think it's temporal
rather than referring to a single incident
or a single crime.
I guess it is a single incident but it's not a single crime.
-: Any further questions?
Thank you Miss Jellison. -: Thank you very much.
-: Miss Celli please.
-: Good morning, may it please the court, Melissa Celli
for juvenile four.
I will be discussing the appropriate evidentiary standards
for a Wallace W hearing.
And at the outset,
I wanted to address Attorney Hahn's argument
in the earlier case.
I agree with Attorney Hahn
that in setting the standard at beyond a reasonable doubt
the Wallace W code explicitly stated
that the Wallace W hearing was intended
to adjudicate a prior offense.
And, in doing that, they recognize the seriousness
of a beyond the reasonable doubt standard.
Beyond a reasonable doubt calls for proof
to the highest degree of certainty possible
in matters relating to human affairs.
It just seems to me unlikely
that one could meet that burden using hearsay evidence.
However, I disagree with Attorney Hahn in saying that
the Matthews V Eldridge analysis does not apply.
I think that the Matthews V Eldridge analysis
does apply here,
and in fact, I think that
it's holding in Wallace W the code.
Of course, the underpinnings for all of those
for all of the prior decisions
is at their foundation fundamental procedural due process.
And in this case--
-: Miss Celli,
I understood you listened to the prior argument.
So what do you make of The Commonwealth's point
that we have in at least one context,
which requires beyond a reasonable doubt
allowed hearsay to be used?
-: So, as one of the juveniles mentioned in their brief,
there's a presumption
that the rules of evidence will apply in all cases.
And that presumption needs to be overcome
with some amount of specificity.
In the situation that The Commonwealth was discussing there
which I believe was
commitments under chapter 123 Section 8,
there is a specific statutory exemption.
And that's a little bit different than this case
where there is no specific statutory exemption.
In this--
-: Let me go to the second concern which is
we're going to be for something that has
different types of concepts,
it's not like revocation or probation or dangerousness.
We're going to be requiring, for example,
in one of these cases, the victim to testify twice
and go through the trauma of this twice.
So that's a bit of a concern.
So how do we deal with that fact that we're going to be
and we're gonna be taking police officers
off the streets again in every case then
if we're not gonna allow hearsay.
'Cause either we've got the victim
or the police in most of these cases, correct?
And often we have child victims.
So I'm just trying to get a sense of the value
of bringing them in each time.
-: Well, at the outset, I would note that
in Wallace W this court addressed this very issue
in one of the footnotes, I believe it was footnote 10.
The court said
that they were recognizing
that this may create a problem
whereby The Commonwealth will need to bring in witnesses.
They will need to bring in police officers,
possibly from other jurisdictions in order to meet this.
Now, I think that the reason that this is so important
is because of the underlying due process concerns here.
The Commonwealth, and in some of the questioning earlier,
the justices have seemingly focused pretty narrowly
on incarceration or detention
as being the only liberty interest at stake.
But that's an overly narrow focus.
In fact, both of the parties here,
the juvenile and the Commonwealth
have a substantial interest in accurately determining
whether the prosecution of the juvenile should proceed.
And the purpose of the Wallace W hearing is to determine
whether the child actually committed a prior offense.
The juvenile clearly has this interest
because there's an interest in not having
the state unduly intrude into their life,
but The Commonwealth also has an interest
in keeping the juvenile out of the juvenile justice system.
As the legislature has recognized,
keeping juveniles out of the system
where the only alleged criminal activity
was a minor misdemeanor,
that actually promotes juvenile development
and promotes the safety of society.
So both of the parties here should be aligned
in wanting to keep children out of the system
when it's low level offenses that we're talking about.
And moreover, the juvenile has clearly an interest
in avoiding incarceration.
But this court has also recognized
significant other liberty interests at stake
in particular, when we're talking about a child
who has not yet gone to the arraignment phase.
The court in Humberto H and Preston P
has recognized the difference in pre-arraignment
and post-arraignment interests.
Pre-arraignment of the juvenile has an interest
in having less intrusion onto their life.
They have less chance of missing school
and work to attend court.
And maintaining, limiting their interaction
with the juvenile justice system means
less of a possibility of having pretrial terms of release
which leads to a lesser possibility of minor violations
of pretrial release, which leads to a lesser possibility
of harsh punishments, all stemming from this early incident.
Avoiding creation of a carry.
Carry leads to a whole host of other problems,
as Attorney Jellison described.
It can lead to increased sentencing.
It can lead to increased charging decisions.
It can even impact things like
a child's future college prospects
or employment prospects
or access to housing or military enlistments.
These are permanent deprivations
unlike the pre-trial probation revocation
or a post adjudication revocation
or dangerousness hearings,
which are just for a limited amount of time.
And for a variety of reasons
those pre-arraignment hearings or pre-E
or even post arraignment hearings
have significantly smaller liberty interests at stake.
-: Well people can serve tremendous sentences on a probation.
Someone's on probation for armed robbery
and they violate probation,
they can get a significant jail sentence, correct?
-: That is absolutely true.
That is absolutely true.
However, in a probation revocation,
if we're talking about a post adjudication
probation revocation.
At that point, the individual has already had
all of these due process protections
when they initially got sentenced.
Probation was therefore given as a matter of grace
by the court.
Here we're really in a different stead.
So you can imagine in a probation,
whether it's pre-trial or post adjudication,
the individuals start at one level--
-: You have a great point.
I was just talking about the liberty interest
and I was just thinking of people that
have been given 15 year jail sentences
and they kind of have a huge liberty interest.
-: Absolutely.
Absolutely, they do.
But they've also had substantial protections prior to that.
-: I agree with your argument, right.
-: Thank your honor.
And I see that I'm out of time.
-: Well let me just see
if there are further questions for Miss Celli.
All right, no further questions.
Thank you, Miss Celli.
-: Thank you your honor.
-: And lastly we'll have Miss Menken
who's gonna tell us about riots, I think.
(laughs)
-: Good morning and may it please the court,
Michelle Menken on behalf of juvenile one.
And the third question that was posed in this court's
Amicus solicitation was whether the juvenile court erred
in dismissing the felony riot charge
on the ground that the statute chapter 264S Section 11
lacked vitality.
And the clear answer is no, there was no error.
Not only did the statute lack vitality,
but it's over-broad in violation of the first time.
-: Do we have to resit
if we find the facts don't support it?
-: I think we don't. -: I mean it might be docketed
but isn't that the easiest way to do it?
-: I know the court has a preference
not to reach constitutional issues
like the over breadth of the statute,
and yes, I think technically.
And damn I think we say something in the brief
that if you find that there was no probable cause
even assuming the validity of the statute,
you don't have to reach it.
There was no error in the decision
and below can be affirmed.
However, I do urge the court
to comment on the unconstitutionality of the statute,
because it is so plainly unconstitutional.
-: Just before you get to that,
on the probable cause determination,
the juvenile says to the police officer
something like let's go.
So it's a me and you.
I know it's a tense situation.
And I think as you point out,
how is that inciting a riot?
-: I think that that's right, your honor.
I think that the statute is clear that
this targets promotion or advocacy of very specifically
defined conduct by others.
And here we have a juvenile who was pushed physically
by a police officer,
and whose response was okay, you wanna go?
And this is not...
Whether it had the effect of inciting anybody,
which is another issue.
It was not in any way counseling anybody else
or advocating anybody else to engage in assault,
except for the police officer to assault himself
which as I've said is pretty much the opposite
of what the statute prescribes.
And also, to the point about
whether this actually had the effect of inciting anybody,
we don't have any allegation that it did.
There's no connection drawn.
Even the barest allegation
between juvenile one's conduct
and the conduct of anybody else.
-: I think I might agree with you on this
but I know you wanna reach the constitutional issue.
-: Oh, segue I mean, the incitement.
So as far as the statute is written currently,
if there were an allegation
that juvenile one's conduct had had the effect
of emboldening somebody else to also take on the police,
there would be strict liability imposed for that.
Whether that was this juveniles intention
in challenging the police officer or not,
and that is quite clearly unconstitutional.
I mean, we have a Supreme Court,
United States Supreme Court case law directly on point.
Because this is a statute that regulates
the content of speech, which is presumed to be invalid and--
-: Miss Menken can I ask a question on that?
I'm confused a little bit,
and again I'm not a former prosecutor
like a number of my colleagues.
But so if I'm changing the facts a little bit,
if one of these juveniles got up and said,
let's attack the police.
You grab the paving stones
and let's have an armed assault
against the police, right?
There's nothing you can charge those juveniles with?
Or change the facts,
you've got a bunch of angry people
and they say, let's attack the State House.
Let's take the paving stones
and I, you know--
-: Let's take our AK-47s and go into the State House
without masks.
And rebel against the governor's order saying
that we need to wear mask.
-: That's not criminal behavior
if it's not just, let's bring our protest signs
and speak up, but let's attack.
-: So there's a few answers to that question.
First of all, yes, it is criminal behavior
and there are many statutes that punish such things.
And I'll point out that in particular,
besides assaults
and common criminal statutes that you can think of
that would apply to conduct such as that,
one of the Amici
drew attention to a statute
that gives the government great power
to address such riotous behavior,
and that's in chapter 269, Sections one through eight.
Which have really been kept current,
they're in use, they've been amended repeatedly.
-: But I guess my question is,
does this statute potentially to apply
to these types of hypotheticals I've just posed where...
-: So it does potentially apply.
The problem is that it also sweeps in a lot of other conduct
that the government is not entitled to regulate.
So in order for this statute to be workable,
it would have to require an intent,
an intent to cause
and a likelihood to cause imminent lawlessness.
So in the factual scenario that you described
you know, at least the first one, they have the rocks,
they have the means,
the confrontation is nigh,
that the government has an interest in
and a right to address that kind of behavior.
But this particular, and there are statutes on the books
that the government could presently use
to quell such riotous behavior.
-: But does that suggest we should adopt Justice Gaziano's
more cautionary approach
and just deal with the facts here
and not try to wipe out this whole statute,
because there may actually be things
besides a communist insurrection
that it applies to.
-: Well, what I would say to that is,
as I'm saying we have other statutes
that work to curb such behavior.
And the problem with this statute
is that it's unconstitutional,
it could be misapplied as it was in this case.
And at this particular moment, it's quite timely.
And you can really readily imagine a situation where
this statute was used improperly
to curb constitutionally protected, peaceful demonstrations.
And so that is why I urge the court
to take on the constitutional issue.
It's not difficult.
We have Supreme Court case law directly on point
that says, here's the requirements
if you want to curb anti-governmental behavior.
There has to be an intent to
and a likelihood of causing imminent harm.
So this statute has to be revisited
before it could possibly be used.
And I think it's incumbent upon this court at this time
to comment on the unconstitutionality
and an enforceability of this statute,
which has laid dormant for over 60 years
without amendment, construction, clarification.
We have no reason to believe
that this is the continuing will of the legislature
to have this statute on the books.
So if there are no further questions on,
I think we've covered the lack of probable cause,
the unconstitutionality
and the sort of desuetude of the statute.
I'll turn briefly to the question of
whether a Wallace W hearing was required in this case.
And I just like to note what that juvenile one's position
on this issue is slightly divergent
from the other juvenile's positions.
The other positions have a couple of problems
that I'd like to draw the court's attention to,
number one,
those approaches ignore language of Wallace W
that seems to plainly state that
in a case where a juvenile is charged
with multiple offenses,
there needs to be a Wallace W hearing.
This is one of those difficult to analyze situations
that the court addresses,
and then the court follows up saying
in these circumstances a hearing is required.
Now to be sure that hearing may look a little bit different
from a hearing of--
-: Your client...
I can't remember yours is Andy?
He has an assault and battery charge, right?
He has--
-: He has lesser misdemeanors, more serious misdemeanors,
and then there was this felony
which was properly dismissed, but yes.
So the big problem with the other approach is--
-: I just don't understand why they can arraign him.
Wallace W says that you can proceed directly
on the more significant charge.
I'm not saying that they can do anything
with the misdemeanors,
but are you arguing they can't proceed
on the more serious charge as well?
-: I am, and I'll tell you why,
and I know that that's controversial.
But in the end,
and your honor a point at your honor's commented earlier
that there's nothing that should stop The Commonwealth
from just charging a felony and just proceeding on a felony,
and if that's the child's first offense, so be it.
But here's the problem.
First of all,
the problem is that with that kind of interpretation
kids end up being worse off than they were before
this statute was amended,
because these lesser offenses
are sort of out the window.
We now have prosecutorial discretion being exercised
in a manner that contemplates Wallace W,
so there is nothing stopping The Commonwealth
from choosing to charge a minor misdemeanor offense
as a felony offense to avoid this.
Now you may say well, the prosecution has the right to do so
if they determine that a juvenile's particular case
ought to be brought through the courts,
why don't they have the discretion
to go ahead and do that?
And the problem is that,
the question arises whether before the amendment
that would have been the prosecutor's decision.
And you'd now end up with kids in court
who let's say, let's take a case like ours.
Let's say that you just dropped the minor misdemeanors
and the more serious matters proceed.
You now can't bargain the case down
to something lesser.
Also what happens if you go to trial
and the jury doesn't, from The Commonwealth's perspective
it's a potential disadvantage
if the jury finds that this charge is too serious,
but doesn't have the option
to hook the kid on something lesser,
there's a greater likelihood of acquittal.
And let's say that there's a lesser included offense
on the table, and the jury decides to convict
of a lesser included offense,
which is a lesser misdemeanor.
Then at the end of the day,
you've gone through trial,
you've gone through the entire proceedings
and you now have a matter that has to be dismissed
and tucked away.
So in terms of judicial economy, it may make sense
when you have a juvenile offender
who is before the court with no prior record,
no prior interaction with police whatsoever
to take a close look at the nature of the conduct
and what offenses can actually be supported
by proof beyond reasonable doubt.
And there was one more thing I wanted to say on that.
Oh, there may be instances,
certain allegations obviously
if there is bodily harm involved.
It'd claimed that there's no way
that that is a lesser misdemeanor,
if there's been injury or death for example.
I think that those kinds of offenses
could be categorically excluded.
But where you have something
that is just minor in nature,
that's being for example, filming the police
at an incident like ours that's before the court
and having that charged as inciting a riot,
I think it would be appropriate,
and it would affect the legislative intent
to have some sort of a robust inquiry
into the evidence supporting that charge
before the entire case could proceed.
-: Okay, thank you Miss Menken.
Let me see if there's further questions of perspective.
-: Thank you. -: No, thank you.
Thank you council.
-: Thank you. -: Good job.