Speaker 1: SJC-13083, Keith Herring v. Commonwealth.
-: [Chief Justice Budd] Okay, Attorney Jeruchim.
-: [Attorney Jeruchim] Thank you.
May it please the court.
My name is Aviva Jeruchim and I represent
the appellant, Keith Herring.
The court should reverse the order of the single justice
for three reasons.
There were no novel, systemic, or case determinative issues
presented that merited a substantive review
of the merits of the petition.
Per Fontanez, the single justice
should have denied this petition out of the gate.
Second, the abuse of discretion standard
should have been applied instead of de novo
where a lengthy record had been developed by the court below
the carefully considered imbalanced, competing interests
in a bail decision.
Otherwise, loosening those standards
will open the floodgates of requests for de novo review
in the single justice.
If a tr...
Third, if a triable case, stringent conditions of release,
and a plain risk of death are not enough
to create a rebuttable presumption for release
in a first-degree murder case as envisioned by Vasquez,
then what is?
Justice Gaziano: Ms... Ms. Jeruchim, good morning.
-: [Attorney Jeruchim] Good morning, Your Honor.
Justice Gaziano: I was wondering who Vivian was.
Ah. but anyway, so let me ask you about issue number two,
in a procedural question.
-: [Attorney Jeruchim] Yes.
Justice Gaziano: Did the judge...
single justice have a right to have an evidentiary hearing?
So the first decision that single justice has to make
is do I decide it on the papers,
or do I have an evidentiary hearing?
Did he have the authority, and there was no...
you have no issue with him having an evidentiary hearing?
-: [Attorney Jeruchim] That's an excellent question,
Your Honor.
Certainly if the court accepts, and it should,
that a petitioner can have a...
has a right to a de novo hearing,
then arguably, certainly in a de Novo hearing
then witnesses could be considered in a hearing.
The, the...
the appellant's position is that, in this case, and-
Justice Gaziano: You hit the nail right on the head
and that's, that's...
that's the meat of my question is, as you anticipate,
so once the judge had a hearing,
I can't see how the judge can then say,
"It's an abuse of discretion," because the judge
is hearing new facts, and then it becomes a de novo.
So are you saying it was error for the judge,
out of the gate, to say, "I'm going to have a hearing"?
-: [Attorney Jeruchim] Yes, it's exactly what...
what, I'm saying.
Justice Gaziano: Right.
Where are you getting this?
-: [Attorney Jeruchim] Well?
Justice Gaziano: And then I don't see that Comiso,
but where are you getting this?
-: [Attorney Jeruchim] So, frankly,
there isn't any firm case law one way or the other,
which is why I think the single justice
considered the issue de novo.
Justice Gaziano: So I'm sitting as a single justice.
I get up... we get bail reviews all the time.
And I say, "Geez, this one's complicated
because government's saying that they didn't have a right.
"They didn't get the final word
and they didn't have an evidentiary hearing.
"The judge kinda did something, some backfill in here.
"I'm going to have a hearing to see what's what,
and hear these witnesses for myself."
If I decide to have that here,
and you're telling me that's error.
-: [Attorney Jeruchim] Well, I would suggest to the court
that it is error in a case where there has been
a very lengthy and developed record below.
The court has two choices.
As it exists today,
the court can consider an abuse of discretion standard,
or the court can consider a de novo standard.
Justice Gaziano: So we... so we say
that the superior court judge did a wonderful job.
We can't touch it, basically.
-: [Attorney Jeruchim] Well in... and again,
I would suggest if the court reviewed the Amicus brief.
And I think that Amicus got it right
in this particular instance,
that when it comes to a bail decision
and the presumption is for release,
the presumption is not to be held with bail,
I would suggest that the case law Comiso,
everything that follows the bail statute,
doesn't support a do-over, if you will, by the Commonwealth.
And that's exactly what happened in this instance,
where there was a very lengthy record from below.
Justice Gaziano: And let me ask.
You've answered my first question...
my question, but let me ask you about
your issue number one, and that is why are we here?
Is it your position that bail reviews
by the Commonwealth do not merit 2-11-3 review?
-: [Attorney Jeruchim] They don't merit.
No.
Well, I would...
If the court will go that far then, on-
Justice Gaziano: But what's the... what's the standard?
'Cause we look for extraordinary.
So what's this... what standards should we...
should we look to see whether or not
something's extraordinary for 2-11-3
when it's a government appeal?
-: Right. That that's, that's exactly right.
I, it...
What is extraordinary for the government
of the Commonwealth about a bail petition?
Certainly, if we consider the...
our constitutional history of presumption of bail,
presumption of release,
then there's nothing that would militate towards
the Commonwealth-
Justice Cypher: Let's stop with that answer
for a minute.
Excuse me, Justice Gaziano.
Justice Gaziano: I'm actually...
I'm done.
Justice Cypher: But, Commonwealth vs Baker.
I don't think it's cited for sure in your materials.
It's from 1961, and it goes deeply into the bail history
in Massachusetts,
and it points out that there is no bail.
There was no bail in the older cases for capital crimes.
And now we know that murder is a capital crime.
So the presumption actually goes back very far
in our history, not the presumption,
but the fact that it is a discretionary issue.
People are not entitled to bail.
There's no right to bail on a first-degree murder case.
It's a discretionary call, and that's ancient history here.
-: [Attorney Jeruchim] Yes, it is.
However, of course the legislator had...
The legislature..
the legislators have the opportunity
to rewrite the bail statute and to say,
"There is no presumption for bail."
Justice Cypher: They haven't done that
with regard to first-degree murder.
-: [Attorney Jeruchim] No, no, it hasn't been done.
So again, and that's why this esteemed court
in Vasquez said, "Yes, we can consider circumstances
for... for a release."
And that's exactly right.
And so, if the court has the opportunity
to consider circumstances of release,
then essentially it should have in this case.
It did, and then, essentially, as I've...
I used that word "do-over", the Commonwealth,
essentially, got to do-over to reconsider that-
Justice Cypher: Well, but let's go back to that
for a minute.
Why, if it's discretion...
if it's a discretionary issue,
it's not something the defendant has a right to,
why does... is the Commonwealth precluded
from using the 2-11-3 avenue to seek what it sees
as an... as an error?
-: [Attorney Jeruchim] And that's a great question.
And I'll turn it around.
We have set standards.
The court has set standards for what merits consideration
in the county court,
which is essentially it's case determinative.
A bail review is not case determinative.
It's a novel issue.
This is a novel issue.
There's nothing here that...
It's not systemic, none of those issues.
Justice Gaziano: I'm confused.
I thought we had some case law that says
that the Commonwealth does have a right
to a single justice review of bill.
-: [Attorney Jeruchim] Yeah.
Justice Gaziano: And, you have a great point
about what's extraordinary and what's not,
and I'd love to...
we're going to ask the Commonwealth what makes...
where the line is.
But we do have case law that says the Commonwealth
has a right to single justice review in bail, correct?
-: [Attorney Jeruchim] Yeah, it...
The single justice in its discretion has the right
to review anything.
Bail, otherwise.
That's not the case.
The case here is, number one,
we have a standard for review for the single justice.
Does that standard become denuded?
Justice Gaziano: Is it ever extraordinary
in your opinion, on a bail decision?
-: [Attorney Jeruchim] No.
Justice Gaziano: Because you got into,
you know, whether it's substantive,
whether you lose all the evidence, et cetera.
Your opinion is, "No, can't be."
-: [Attorney Jeruchim] No, I would...
I would...
If the court would adopt that role,
I would suggest no, it shouldn't be
because, if it is, then essentially every time a litigant,
whether it's the defendant or the Commonwealth
is aggrieved by a lower courts decision,
then it has the chance to reconsider that decision,
and especially in this case.
Justice Gaziano: Do the charges, in this case,
the murder charges, make it extraordinary?
-: [Attorney Jeruchim] No, no.
It doesn't make it extraordinary.
And I will point out why.
So in...
Today, yes, there's...
It's a life felony and so, murder...
First-degree murder would be considered
one of the most serious, if not THE most serious of crimes.
However, as a practical matter today,
we have so many enhanced sentencing ramifications,
whether it's a armed career criminal, level three,
or habitual offender that, essentially,
we have the practical effect of creating
a life sentence for a defendant in any circumstance.
So, whether it's life without parole, or a habitual offender
on a life felony, which could be effectively life parole...
Basically, a life-without-parole sentence
or a sentence that essentially renders a defendant
incarcerated for his or her natural life,
it's the same practical matter.
And so, I would suggest that, in this case...
Otherwise, why...
Every litigant would come into the county court,
the single justice session and expect a new hearing
and would have a right to.
Justice Gaziano: That was your issue, number one.
You've talked about issue number two.
Let me get to your issue number three,
that the merits of the decision-
-: [Attorney Jeruchim] Certainly.
Justice Gaziano: The judge had a hearing.
He considered all the evidence and he made findings
in balance that...
How is it an abuse of discretion for him to look at
the risk to the defendant and the COVID risk
and determine that he shouldn't be bailed?
-: [Attorney Jeruchim] So the problem with the hearing,
as it took place with a single justice,
is, essentially, it excised a lengthy history of abuses
by the Department Of Corrections,
which the trial judge, in this case,
an experienced judge considered, and not lightly.
The trial judge, in this particular case,
actually weighed in favor for most... the majority
of the time in favor of the Commonwealth,
but, at a certain point, hearing over and over again-
Justice Gaziano: You get an adverse decision and,
all of a sudden, the single judge is excising
all the good stuff for you, and abusing the discretion
because they don't agree with the...
You see how that sounds?
That the single justice is supposed to defer, in your view,
to the lower court judge?
-: [Attorney Jeruchim] Well, we have
an abuse of discretion standard.
Justice Gaziano: Oh, again, we're back
to de novo.
This judge decided to have a hearing
because, you can presume, he didn't like the record below,
given that the motion judge below, at the very end,
just decided after... based upon submissions,
one-sided submissions.
So the single justice decides to have a hearing,
but your view is that's all error
because he should've just deferred
to what the motion judge did?
-: [Attorney Jeruchim] In this particular case, yes.
So, typically with bail reviews, as the court is well aware,
it's a fairly brief process.
There'll be perhaps a district court judge will hear the-
Justice Gaziano: That's exactly my point.
It's a fairly brief process,
usually with the single justice too.
Right?
So...
-: [Attorney Jeruchim] Right.
Justice Gaziano: And, I don't think I've had, you know,
in a hearing on a bail review...
I've decided them on the papers,
but this judge took the extraordinary effort
to have an evidentiary hearing.
That's what I don't get your argument,
where he somehow commits legal error when he just t...
he decides to turn over the rocks,
and see it from himself, what's going on.
-: [Attorney Jeruchim] But we...
But this... the single justice, the county court
has available to itself the abuse of discretion standard.
And when you have a record from below,
that is as well developed, unusually, I would say,
as it is in this case,
I would suggest to the court that it was error
for the single justice to, essentially, as the court put it,
turn over the rock and say,
"Hmm, I don't like that decision.
"Let me come up with a new one," and in-
-: [Justice Wendlandt] Well, that makes it sound so casual.
-: [Attorney Jeruchim] No, of course not.
I'm merely, you know, I'm just repeating the court's words.
And, I think that they were appropriate.
That's exactly what took place here.
No disrespect whatsoever, but when you have
weeks, months of a history, in a particular case,
especially in this case where the lower court
took pains to consider and reconsider
not only the defendant's motion for reconsideration,
but the Commonwealth's motions for reconsideration,
the judge in the lower court didn't come to the decision
lightly, not by any means.
In fact, the judge in the lower court
took an affidavit from one of the witnesses
who ultimately testified at the single justice.
-: [Justice Wendlandt] So many motions to reconsider,
in your estimation, would require the single justice
to use the abuse of discretion standard,
as opposed to having a de novo.
-: [Attorney Jeruchim] That's a great question.
And I don't have an answer for that.
-: [Justice Wendlandt] Well, I mean, you're asking us
to decide that this particular single justice
abused discretion by choosing to have the de novo hearing,
and you're pointing to the number of motions
for reconsideration.
I'm wondering, as a legal proposition,
when is a single justice bound by that?
-: [Attorney Jeruchim] In this, again...
In this particular instance, and I know the court
obviously has all the pleadings in the record appendix.
-: [Justice Wendlandt] So, three times?
-: [Attorney Jeruchim] I would say that,
if there's a reconsideration three times,
then that would have indicated to a single justice
that the record had been amply-
-: [Justice Wendlandt] And, what is your legal authority
for the three-time limit?
-: [Attorney Jeruchim] There's no legal authority,
which is why, when you asked me that question,
I don't think it is the number of times
that the court considered or reconsidered the issue.
I think that it's the depth of consideration,
it's the quality of consideration
that probably should move the needle
towards an abuse of discretion
rather than a de novo standard.
In this particular case,
the court had considered or reconsidered,
at least three times the issue,
but not only did it reconsider the issue,
it had considered affidavits,
it had considered two live witnesses,
including the defendant,
and the Special Sheriff of Middlesex County.
It had a substantive record from below
and, in that particular case... in this particular case,
if nothing else, the single justice should have never
touched this, out of the gate.
And there was no reason for the single justice to do so.
And I would suggest that it was an abuse of discretion
for the single justice to even consider
the merits for all of the reasons that I've described.
-: [Chief Justice Budd] Okay.
Thank you very much.
Attorney Charles.
-: [Attorney Jeruchim] Thank you.
-: [Assistant DA Charles] Thank you, Madam Chief Justice.
May it please the court.
Assistant District Attorney Jamie Michael Charles
from Middlesex, on behalf of the Commonwealth.
My sister just referred to the depth and quality
or the purported depth and quality
of the lower court judge's decision-making in this case.
But the reason the Commonwealth went to the single justice
in the first instance, here,
is because approximately 24 hours
after the defendant filed a completely self-serving motion,
not even supported by his own self-serving affidavit
when he initially filed it,
an affidavit that was filed after business hours
the night before the judge made the decision,
this judge, without giving the Commonwealth an opportunity
to reasonably respond, without holding a hearing,
as CPCS envisions for these sorts of motions,
allowed a murder defendant who committed that murder
while out on GPS
for another attempted murder/ kidnapping indictment
to be released from custody.
Justice Lowy: Mr Charles, that sort of begs
a very important question.
You're laying out that perhaps there was an error of law
or abuse of discretion, and we need to talk about that,
but there's an initial issue to be addressed
that wasn't addressed by the defendant.
It is addressed in the Amicus and it's important.
In Comiso vs. the Commonwealth,
and in a footnote in Vasquez, we leave open in Vasquez
and don't address in Comiso whether or not
a defendant should have to face another de novo review
when a petition is denied, meaning they're going to have to
win twice before two different judges.
Why is it that we are a judge, or maybe two judges,
maybe the district court judge,
and then a bail review in superior court,
the superior court judge, they deny...
excuse me, they allow bail.
There's an allowed bail.
-: [Assistant DA Charles] Mm-hmm.
Justice Lowy: Why should the judge,
then sitting as a single justice, review that again de novo?
You gotta win three times, as opposed to...
as an abuse of discretion in Comiso,
where it's the defendant who lost
since coming to single justice.
-: [Assistant DA Charles] Mm-hmm.
Justice Lowy: In Vasquez,
the defendant loses, comes to the single justice.
But, when the defendant wins,
why do they have to win again
or even win twice, three times?
-: [Assistant DA Charles] Well, a couple of things.
First, again, there was no district court evaluation
in this case-
Justice Lowy: I understand.
Justice Gaziano: It's Judge Wilkins on it.
-: [Assistant DA Charles] And I also want to make clear
that we do think, and we did argue
that this wasn't abuse of discretion,
given the manner of the proceedings-
Justice Lowy: I know.
I know you're not done with it,
and I have questions about that, but there's a...
This is an important issue.
Amicus just brings up the issue and we've left it open.
-: [Assistant DA Charles] Mm-hmm.
So, first of all, my sister Amichai cite Fontanez
but they only cite...
They keep citing this, you know...
I believe the language is novel systemic
or case determinative,
but if you read this for the rest of the sentence,
I think essentially it says,
or under extraordinary circumstances.
Justice Lowy: Assume it's extraordinary circumstances.
You're there.
You argue abuse of discretion or error of law.
Assume that it's extraordinary circumstances.
Assume that you absolutely fit within Fontanez.
-: [Assistant DA Charles] Mm-hmm.
Justice Lowy: If the bail was allowed,
why is the single justice reviewing it de novo,
as opposed to for an error of law?
Maybe the judge should have the option of doing both,
but we've never squarely addressed that issue.
-: [Assistant DA Charles] I would certainly agree
that all of the cases that have spoken of the authority
to consider it de novo have done so in the context
of defendants appealing.
Justice Lowy: Right.
-: [Assistant DA Charles] I don't think the fact
that you've only weighed that issue
doesn't mean that it suggests the contrary
for purposes of what is permissible.
Justice Lowy: Sure, maybe.
Give me the why.
-: [Assistant DA Charles] So for a couple of reasons.
First, I don't think we need to get global, in this case.
We're talking about a murder defendant
who does not have a right to bail,
who is not within the realm of everyone else
in the criminal justice system, who is charged with a crime.
We have a decision of the lower court
that really didn't give an...
as to the motion that the Commonwealth appealed up,
not the whole record, not motions to consider the defendant
when he was still held at a different detention facility,
which is, for all intents and purposes,
irrelevant for the present purposes that there's no...
There was no record, underlying the decision below.
There was a motion filed by the defendant
making self-serving representation and a ruling
Justice Lowy: I don't know the answer to your question.
I don't know the answer to your point,
but I understand your point,
that it was an abuse of discretion or an error of law.
I... and I respect that, and we need to talk about it,
but my question is way before that,
because this was de novo.
It's an open issue.
-: [Assistant DA Charles] So I guess I would analogize to,
and I know it's not a clean analogy
because there are rules that deal with it,
but in the state context, for example,
in the state context, the Commonwealth is permitted
to appeal to the single justice under de novo review.
And that's the closest scenario,
recognizing that there are differences,
that the Commonwealth can recognize.
I believe my sister Amichai cite to Hodge
in their submissions for the suggestion
that, when there's a reason judgment below,
you shouldn't be allowed to get de novo review
before the single justice.
And I would just point out that in the Hodge case,
I think the court said that the trial judge, in that case,
was making his stay decision.
I quote, "On the basis of firsthand and complete information
concerning the conduct of the trial," and this...
the Commonwealth's allegation here...
Again, I realize I keep coming back to it
is there wasn't a complete record and information
before the lower court judge.
So this judge was faced with a situation
where he needed to create that record.
And I don't think there's any case law that says he can't.
I think there's ample evidence in other contexts,
for example, in bar disciplinary proceedings,
the Commonwealth found a case where the single justice
took evidence on a request for injunctive
or declarative... declaratory relief in an election dispute.
That's 360-2-Mass-708.
A matter of Mc... McInerney.
I apologize if I'm badgering that.
In the attorney disciplinary context, 389-Mass-508.
So, there's clearly a track record of single justices
being able to take record, to take evidence.
There's no case law that says
that they can't consider the matter de novo.
We're talking about somebody who is not presumed
eligible for bail because he's charged
with a capital offense.
And we have a record below that was insufficient
on the present motion.
Again, I'm not saying there wasn't adequate evidence
taken in other instances previously, but the last,
and I think this is important to note,
the last motion that this judge heard
before the defendant's seventh motion for release
was the Commonwealth's motion for reconsideration
of his January motion, allowing the defendant
to be... initially allowing the defendant
to be released from custody.
The Commonwealth demonstrated itself capable,
in that context, given a week or two,
to put a witness on the stand,
to submit sworn affidavits in favor of its position.
After the Commonwealth put the special sheriff on the stand
at the January 19th, this judge,
Justice Wilkins, issued a decision saying,
"The conditions at Billerica are much better
than at South Bay.
"The defendant is in a better position now
than it appears he was in the fall
when I denied both of his motions."
So we get that ruling.
Two and a half weeks later, with no prior notice,
the defendant just files another motion,
completely self-serving,
no time for the Commonwealth to respond,
no evidentiary hearing, no, not evidentiary hearing.
And the judge says, "Now I believe everything
the defendant's saying.
"This is an abject failure by the Commonwealth.
"This man must be released."
I mean, I can't imagine a bigger abuse of discretion-
Justice Lowy: Not to put words in your mouth,
but you would say...
I think what you're saying is
that this is an error of law or abuse of discretion,
and the open issue in Comiso doesn't have to be reached
in this case.
-: [Assistant DA Charles] I don't think you have to reach it.
I mean, certainly the j...
Justice Lowy: Because-
-: [Assistant DA Charles] It's awkward
because the judge did conduct a review,
and his ruling is a ruling based on de novo review.
But the Commonwealth has always maintained,
both before the single justice, and in its brief
before this court, that alternatively,
you can easily find that this was an abuse of discretion
or error of law.
And, you know, even if this court feels like
the appropriate course of action was to remand this
to the trial judge to hold a hearing,
the evidence would have still come in the same way.
And another thing I think is important to note,
Justice George gave the defendant
every opportunity to call his own witnesses.
He indicated that he would hold a hear...
We scheduled the hearing for one week
from the initial February 5th preliminary hearing.
He told the defendant that he would take evidence
and the Commonwealth said it would make itself available
to take evidence from the defendant's witnesses,
any of his medical providers,
on any day of the following week
to accommodate their schedules.
The defendant indicated at that preliminary hearing
that she wanted them to be heard
because the Commonwealth's position had consistently been,
"We're not saying this doctor isn't qualified,
but these are just unsworn letters,
taking everything the defendant says at face value,
without any opportunity for the Commonwealth to test it."
He still didn't call anybody.
So all the single justice was left with
was the Commonwealth's witnesses who amply established,
not only that they're caring for the defendant
properly and sufficiently,
but that all MGH had to do was pick up the phone
and call the facility and say,
"Anytime this guy complains of an A-fib episode,
take him to MGH."
And they said, "That would be very awkward for us to do,
but we would do it if MGH told us to do it,
but they've never called us.
They've never dictated that that's the level of care
this defendant needs."
So I think it's... it really exacerbates the unfairness
to the Commonwealth that, instead of working with
the house of correction and working with the individuals
in the specialized medical unit
that are willing to alter his care to the degree necessary
to ensure that he is not facing a severe risk of harm,
his medical professionals elect not to do that,
and instead to just repeatedly petition the court
to release him from custody.
Justice Gaziano: Mr Charles, let me ask you,
are you done with Justice Lowy's answer?
Are you done answering his question?
-: [Assistant DA Charles] Yes.
Judge Gaziano: Thank you.
Let me ask you about the first issue Ms Jeruchim raised,
that is whether the Commonwealth has a right to 2-11-3
in every bail denial.
Where do we draw the line?
What's the legal standard?
-: [Assistant DA Charles] So again, I think, as I said,
as I indicated to Justice Lowy before,
I don't think this needs to be sort of a global case.
I think-
Justice Gaziano: I get that.
Answer my question.
Where do we draw the line?
What's the legal standard?
Because we can't keep doing this, right?
-: [Assistant DA Charles] You s... you s...
Just to clarify.
Justice Gaziano: So then, the next case will come up,
and we'll say, "Well, we don't have to reach it
and we have no standards."
So give me a standard.
-: [Assistant DA Charles] So. I'm not sure...
First, I just want to say,
I'm not sure the court needs a limiting standard
because I think Ray and Lugi among other cases,
which the Commonwealth cite in its brief
demonstrate that the Commonwealth has a right
to appeal adverse bail decisions, at a minimum,
when there's an error of law.
And here again, the Commonwealth claims
that that's the case, but still,
I don't think there's a limiting principle necessary
because in... while my sister makes
"the sky is falling" argument,
in most cases, the presumption in favor of bail will apply.
And I think, given the fact that this court
is not inundated with appeals
where the single justice reverses a bail decision
in favor of the defendant,
I think that's sort of indicative of the fact
that, even when they do make their way up
to the single justice,
they're largely getting rejected
because there is a presumption in favor of bail.
And, normally, they're just resolved
on an abuse of discretion standard.
I think this case is very specific to its facts
and I don't really see any reason for the court
to go any further with it, but I stand by the fact
that there is clear authority that authorizes
the Commonwealth to take bail reviews
to this court's single justice,
or to the county court's single justice.
And there's no contrary case law saying it can't.
So... and I see no reason to trail...
blaze a new trail here where we clearly have a record
that supports the Commonwealth's position,
whether you want to consider it under de novo
or abuse of discretion.
And you know, the other thing I would just like to note
is that my sister suggests,
I think alternatively in her brief,
that this might be a situation where the defendant
has just been held so long
that there's due process implications,
but I just want to make the record clear.
The reason this defendant hasn't been tried yet
lays entirely at his feet.
This defendant filed, I want to say eight motions
to suppress, he's filed a McCarthy motion to dismiss,
an Odell motion to dismiss, he has a pending motion
to reconsider a previously denied motion to suppress.
The Commonwealth has been ready for trial
and discovery has been complete for a very long time.
This defendant filed three motions to continue, pre-COVID,
in the months leading up to it,
on September 25th, 2019, on December 10th, 2019,
and then again, post-COVID on August 5th of this year
to move his trial, the defendant's motions.
The Commonwealth has been ready and willing
to try this case.
The co-defendant's motions have exhausted themselves.
So I don't want to belittle anything,
and I understand the COVID creates a changed circumstance,
but I think that has to be considered too.
The Commonwealth was ready pre-COVID to try this case.
The reason this case has dragged on,
and the reason the defendant's facing
all of these impediments is because HE'S not ready
to try the case.
So I don't think it's fair to hold that
against the Commonwealth.
And, if there are no further questions.
Justice Lowy: Thank you.
I do have one last question.
If there is 2-11-3 petition,
and there is an abuse of discretion by the trial judge,
but the single justice reviews the matter de novo,
you're not aware of anything that precludes the full court
from reviewing the determination of the superior court judge
for error of law or abuse of discretion, are you?
-: [Assistant DA Charles] That's an interesting question.
Off the top of my head, I'm not, Your Honor.
I apologize.
I'll certainly be happy to search for that case,
if it exists and submit it in a post-argument letter,
if I find it.
But, if there are no further questions,
the Commonwealth would ask that you either
affirm the single justice's ruling
either under the de novo standard
or find that there was an error of law
or abuse of discretion by the superior court judge,
and that this defendant should not be released.
Thank you.
-: [Chief Justice Budd] Okay, thank you.