Court Reporter: SJC-12986
in the matter of an impounded case.
-: Mr. Schneiderman.
-: Good morning, Your Honors.
May it please the Court, I am Joseph Schneiderman,
I represent the juvenile.
Your Honors, two wrongs do not make a right.
The judge's punitive decision to commit
a 16-year-old dark-skinned girl
to the Department of Youth Services for 90 days
in response to the child's emotional outburst
at the fear of losing her liberty
was fundamentally incompatible
with a juvenile justice system
that fosters aid, encouragement and guidance.
Three principles justify this.
First...
Your Honor?
(crosstalk drowns out speakers)
-: Thank you. (indistinct)
Thank you.
Let me ask you some questions, please.
(indistinct)
In your brief you concede, I think appropriately,
that contempt is plausible and you cite
Chief Justice Ireland's book for that proposition,
as well there's Rule one, the scope of the criminal rules.
Correct?
So it's possible, correct?
-: Yes Your Honor.
More to Your Honor's question,
contempt is inherent in the powers of all courts.
-: Okay, so great.
So then we get that and then you also cite
heavily in your brief and you just open with
the provisions of 119 section 53
of the rehabilitative provisions.
-: Mm-hmm.
-: Now the rubber meets the road in this case is,
where do those conflict,
and that's how you open, is there's a conflict
between those two provisions, control in the courtroom
and the rehabilitation of 53, where do you draw the lines?
'Cause the conduct of this juvenile was certainly,
as you say, wrong and not appropriate for courtroom.
So what was the judge to do in your view?
Your Honor, I'm glad you asked me that
because what should have happened in this case was,
the whole situation should have been deescalated.
The judge should have come off the bench,
called a 10 or a 15 minute recess, however long it was,
sent my client off with her trial counsel to cool off.
Everything just should have been deescalated.
I actually would like to go back
a little bit in Your Honor's question.
I think that section 53 and the court's inherent powers here
can very much be harmonized in recognizing
that yes, the juvenile's conduct was inappropriate,
but both in the decision to hold the juvenile
in summary contempt and in fashioning a disposition,
the court has to consider the juvenile as a juvenile
and make juvenile-specific findings.
-: Right, I'm gonna get to that,
but I still want to get to, it's plausible
for juvenile to be held in contempt,
and it's got to be conduct
which is so beyond the pale that a judge can do that.
And I get your point about deescalation
and having been a trial judge, there have been days
where I probably should have taken that advice
but I didn't given the spur of the moment.
Where do we draw the line between what was said in there,
'cause this is gonna be guidance for every juvenile judge.
And we have some outrageous accusations
leveled by the juvenile against the judge.
So where do we tell the juvenile judges,
"This is where you don't hold them in contempt
"and this is where you do?"
How do we fashion this opinion to say where that line is?
-: I think Your Honor, the line has to be beyond words.
I realize words were inappropriate here,
words require a response,
but the conduct must be something more.
Assaulting a court officer,
flinging an object into the wall,
something that might otherwise be criminal
or does not have the hallmarks-
-: What about hate speech directed at a judge?
-: Such as the juvenile's invect, Your Honor,
I'm not sure I follow?
-: Right, no.
You said beyond words, what if it's hate speech
directed at a judge?
-: Your Honor, I think the context of the speech
has to be critical.
And indeed that's backed up by this court's jurisprudence
on threats, for example, and others.
So I think it should be something along the lines
of a true threat rather than hate speech.
I hope that answers Your Honor's question.
-: No, it don't, I appreciate you tried.
'Cause it's a difficult theory
and you've raised a very important issues
as well as the amici in this case.
Let me just ask you probably maybe a final question from me.
This has to do with the procedural infirmities in this case.
Here, would you agree that what the judge did that was wrong
was conflate Rule 43 and Rule 44?
As I understand it, a criminal complaint
is a device of Rule 44 as opposed to a summary process
of Rule 43.
And if it is a complaint, the judge can't hear it.
So is that the issue here was a merging?
And then I get these rules are very tricky,
and you have a judge who is not having a very good day
because of this behavior deservingly
and the judge has a right, obviously to be upset.
And this is something where most judges I think,
'cause this is not something you do every day
would have to have the rule book in front of them
so they don't mess up these procedures.
But here, was it a conflation between two rules
that was the problem?
-: Yes, Your Honor, there was a conflation
between summary and non summary contempt.
In volume one of the transcript,
I believe it's page five or six,
the judge orders the clerk to draw up a fresh complaint.
The complaint that's listed in the record appendix reads,
"Summary Contempt Pursuant to Rule 43".
If a judge is to just draw up a complaint,
the judge commits to proceeding under Rule 44.
And I appreciate Your Honor's concern
that the rules are arcane, the rules are tricky,
the differences can be confusing.
So yes, to Your Honor's question,
the judge committed to proceeding in the usual course
by ordering the drawing up of a complaint
and because the conjunct of requirements of Rule 43
just weren't met.
-: And in that instance,
the judge is no longer the complainants,
it's referred to the DA essentially under Rule 44, correct?
-: That's correct, Your Honor.
A complaint for contempt under rule 44 is referred.
And that actually is a further infirmity
to Your Honor's question, the complaint
and the docket sheets in this case,
lists the presiding judge as a complainant.
Because the judge, under Rule 43, if they actually
wanna give you more than 90 days, they go to Rule 44.
-: Yes Your Honor.
Both rules read "Shall".
Shall was a mandatory command
when it comes to Liberty interests.
-: Thank you, Mr. Schneiderman,
those were all the questions I have.
-: Okay, I have two questions.
First, Mr. Schneiderman, I enjoyed reading your brief.
I thought it was very good.
-: [Mr. Schneiderman] Thank you.
-: Can you explain a little bit more, just briefly,
about how this sentence constituted dead time.
-: Your Honor, I'm very glad Your Honor asked me that
because the sentence was dead time
because the juvenile initially was committed
as though she had been adjudicated
after a full-blown delinquency trial
counsel for the Department of Youth Services
to her infinite credit flagged the minimus when she saw it,
and thereafter went back to court about a month
after the juvenile said what she said
and asked that it be converted
to a stipulation without bail, because DYS
just does not recognize a determinative timeframe...
determinante, I'm sorry, that's a tongue twister,
a determinante timeframe of 90 days.
Time at DYS is indeterminate, it's X number of months
with a top and a bottom.
Like how in the Superior Court a state prison sentence
has a minimum term of years and a maximum term of years.
More to Your Honor's question,
I apologize if I'm dancing around this,
the juvenile had no access to treatment.
Because she was treated as a pre-trial detainee,
the presumption of innocence kicks in here
and she had no access to treatment, indeed at volume three,
the judge asks my client what's going on at DYS.
She's going into class, she sometimes sees the clinician,
but that's it.
It is effectively literal and figurative dead time.
And that actually leads into one of my points which is,
if a finding is of summary contempt is indeed appropriate
to Justice Gaziano's questions,
a secure commitment must be the absolute last resort
only when there is an express finding
that there is no other adequate means
to both vindicate the integrity of the court and to foster
aid, encouragement and guidance for the juvenile.
-: The other problem with this that I see
that I think you brought out is that this stipulation,
there was really nothing stipulated to it,
it seemed somewhat proforma,
there was nothing that the juvenile, no colloquy,
none of the things that Justice Smith would have wanted
in a stipulated trial of any sort or hearing.
So I guess my question is,
and then that leads into the bail issue.
So we end up in this situation where there's a dollar bail.
How often does the DCF...
How often does the Commonwealth look for a dollar bail?
I mean, how big of a problem is this for juveniles-
-: Your Honor...
I'm sorry Your Honor, I didn't meant to interrupt.
Hon. Cypher: No, I'm done.
-: Thank you, Your Honor.
Your Honor, working backwards to Your Honor's question.
Dollar bail was effectively a detention order
for a juvenile.
I'm not certain how often the Commonwealth
actually seeks $1 bail, but certainly when this issue
was before this court in may of 2018,
that was a serious problem then.
The Commonwealth would seek $1 bail
on the $1 would effectively operate as a detention order.
As the (indistinct) pointed out, anyone can post bail,
but a juvenile was not suited to do that.
And the bail order here was a release to DCF only,
which is why it's a de facto detention order.
And which is why this juvenile's response I think,
is understandable because she is frightened as she-
-: Okay, in fairness to the judge,
she had run away twice and cut off her GPS, right?
-: Yes, Your Honor, that's correct.
Hon Gaziano: And she was therefore had escaped.
-: That's correct.
-: So I don't think...
I mean we're being a little hard on the judge,
let's be fair to the judge in this respect.
-: No, Your Honor, I agree.
The judge would have been within her rights
to consider conditions, certainly as this court
is articulated in (indistinct) conditions are there,
Your Honor is absolutely correct that this was an escape,
this was a serious charge, my client had run, I agree.
The judge probably should have done something here
to ensure my client's return to court.
The problem as I was discussing with Justice Cypher is,
it is effectively a detention order.
The juvenile was frightened.
The juvenile even pleads and says, "please don't lock me up,
"I want to go back to my program."
Going back to Justice Cypher's question
about the stipulation here, there was nothing in the record.
There's nothing in the court file.
The juvenile apologizes a few times,
but even if the apology operates, as an admission to facts,
nothing followed it.
The judge here,
and with full solicitude to Justice Gaziano's point,
let's not bash the judge further.
The judge here just read too much
into the juvenile's apology,
and I think it is too much to call it a stipulation.
-: Well, one final...
-: I'm sorry. -: Go ahead.
No, you go ahead. -: No, Justice Cypher, please.
-: My final question, and then I'll turn it over
to Justice George is that, can the mandates of section 53,
if we agree that what happened here was wrong,
would we say the judge abused her discretion?
Would we say the judge violated Section Three?
What would we say
-: Your Honor, I think it's both.
The judge committed an error of law
and abused her discretion in that she operated
far beyond the bounds of reasonable alternatives
in not just holding the juvenile in contempt,
but not considering the juvenile as a juvenile
and fashioning a dispossession.
So I think it's both, Your Honor.
Hon. Cypher: Thank you
-: Your Honor.
-: Counsel, thank you.
I have one thing that troubled me about your brief.
You throw into your brief as a bit of a throw away
this issue of young black females being treated
or just generally as in the perception as being adults.
And that you seem to suggest or infer
that that was what was working in the the judge's decision
as part of this contempt finding.
Is that what you were suggesting?
And if you were,
what do you base that on?
-: Your Honor, I was suggesting that there was a grave risk
of implicit bias here in light of
my client's race and background.
-: I hear what you're saying, but I guess
that's an incredibly important grenade to be throwing.
And other than just kind of throwing that out,
that it might have been working here
as opposed to some of the pretty egregious conduct
that I think you can see was done.
Because the reason why I'm mentioning that to you is,
Justice Gaziano asked you, "Where do we draw the line?"
In initially answering that question,
you seem to draw a line between words and deeds.
Again, in giving some guidance
to just juvenile court judges or any judges,
are we supposed to say now that in this case,
that was a factor that was at play?
-: Chief Justice Budd, may I answer that, please?
Hon. Budd: Yes, please.
-: Thank you.
Your Honor, I agree that there should be a distinction
between words and deeds.
I think to Your Honor's question about guidance,
as I suggested to Justice Gaziano, context is critical
and the judge has to consider and should not...
A judge must be solicitous
of who is before the court and why.
And I think the who is before the court is my client.
She is there because she has allegedly violated
the conditions of release,
it is a uniquely stressful scenario,
and presence in court matters, context matters.
Indeed, this court...
Or the jurisprudence of the Commonwealth has long recognized
that context is critical to a contempt,
such as the case of the applicant
for an abuse prevention order who smelled of alcohol
and who allegedly gave the finger.
I think the court has to consider that
and operate on a juvenile-specific mode
when it comes to a child.
-: Okay, I'm not really sure you're answering my question.
-: [Mr. Schneiderman] I'm sorry, Your Honor.
-: Is what what bases do you have to say
that the juvenile court judge
was treating your client as an adult
in the aperture which she was viewing what your client did.
That's what I'm getting at,
is because that's an incredibly charged allegation to make,
and you do it in your brief as kind of a throwaway.
And I'm concerned about that
because to get Justice Gaziano's point,
if there's a basis to say that the judge
either abused her discretion or misapplied the law,
that's one thing.
But to say that you are now jumping into the judge's mind,
and that you're looking out of her eyes and saying
she's looking at your clients
because she's black as an adult.
I just wanna know, where do you get that?
-: Your Honor, I apologize if I sounded like I was having
Delphic perception to the judge's mind, certainly not.
I don't know what was in the judge's mind that day.
I don't think we can know what was in the judge's mind.
I think a careful review though of the transcripts
and of the judge's response suggests adultification,
which was,
the judge said, "I find your conduct
"of calling me a dumb white bitch to be contemptuous."
Which I think was highly inappropriate here.
The words, not the-
-: Okay.
-: The articulation, no, no, no,
the words, "I find your conduct to be contumacious,"
not offering the child any opportunity
to present evidence as to her background.
Indeed counsel at the follow-up hearing
on September 29th said she is subject to
a psych evaluation in the other case.
We're not allowing him to get more into that.
And the judge thereafter saying, "I am giving you 90 days,"
which only two other adults in the Commonwealth
have received, indeed an adult
who was an experienced defense attorney
who sought to disrupt a murder trial.
I think the lack of solicitude,
combined with the judge's response
of jumping to a 90-day sentence which is the maximum allowed
under the rules, is adultifying.
-: Mr. Schneiderman, you talk about the disparity
in sentencing, and you did the best you could in your brief
and try to track sentences.
And I think what you did was to track
reported decisions, correct?
-: I did Your Honor, yes.
-: Right, there are tons of contempt proceedings
that don't go on appeal.
I mean, I can think of cases in Superior Court
where a defendant slugged a juror, found to the jury room,
that wasn't reported, I can guarantee you he got 90 days.
So you didn't look at reports from the trial court
as to sentences for violations of Rule 43 or 44.
You looked at reported decisions.
That's why I thought your analysis on article 26
and the Eighth Amendment, although well done,
wasn't rich enough for us
because it was only reported decisions.
So I don't think you can say, "Well this was 90 days
"and nobody's ever got 90 days.
'Cause that, in my experience, it's just not true.
-: Your Honor, I appreciate
that that may have been an overstatement.
And I think I'm hampered by...
Obviously juvenile proceedings are impounded.
I am anecdotally aware from speaking
to other trial attorneys though that this judge's response
was extreme to other juveniles
who were held in summary contempt elsewhere.
-: I'm not disagreeing you that she gave her the max.
It was relatively harsh.
-: Can I follow up on that?
'Cause to me this seems like a classic Rule 43 case.
There may have been some errors,
but the contempt is obvious,
it's right in front of the judge, it's tape recorded.
Whether the stipulation was sort of murky or not,
this is a permissible Rule 43 contempt,
except for the length.
I mean, if she had given her one day, we wouldn't be here.
If she'd given her two days, a week, I just...
how do we decide that that's an abuse of discretion
or unconstitutional?
'Cause all the other stuff to me seems to be sort of,
from Justice Gaziano's terms yesterday,
that chair's on the Titanic.
This is really the issue, right?
It's the length.
It is a perfectly appropriate case
to hold someone in contempt under Rule 43.
It's just how long.
-: Your Honor, it's the length.
It is also, as I suggested to Justice George a moment ago,
it is the judge's decision to hold the juvenile in contempt
without looking at her through a juvenile-specific lens.
I agree with you-
-: But even a juvenile-specific lens,
teaching the child a lesson,
this is just not the way to talk to an adult, any adult.
I feel like that can be part of the education process
for the child too,
but it's just to me, this is all about length
and I just don't know how to deal with that.
-: Your Honor, I agree that there should be some element
for the child to understand the need for decorum in court.
I think though, incarceration or detention,
indeed in a security YS facility
that has all the hallmarks or echoes of a jail is,
it goes back to where I started,
two wrongs do not make a right.
-: Even if, counsel, it was for a day?
-: Your Honor, I think a day is certainly different than 90.
But we have entrusted juvenile court judges
from time immemorial to fashion individualized dispositions.
I think a day would be appropriate
if the judge actually made an express finding
that, "I am doing this to foster
"your aid, encouragement and guidance.
"and I find there is no other way to do that."
I think that has to overlay the decision
both to hold in contempt and indeed,
the decision of whether to incarcerate at all.
And if there are- -: So we're...
Oh, go ahead.
You're urging us to find a different standard
for juvenile court contempt proceedings in a sense.
You want an overlay of,
to bring the contempt proceeding
within the rehabilitation component
of the juvenile statutes.
Is that right?
-: Yes, I do, Your Honor, that is precisely it.
The rehabilitative...
The command of aid, encouragement and guidance
should and must apply per force to a child
who commits a contempt.
Hon. Cypher: Okay.
-: I see I am long past my time, I would just end with this.
We have all been frightened teenagers at one point
and hoped an adult would show us understanding .
My client did not receive understanding.
Please Your Honors, don't let this scenario recur.
I ask for a reversal, and I thank you kindly for your time.
Hon. Cypher: Thank you.
-: Thank you, counsel.
-: [Mr. Schneiderman] Thank you.