-: SJC-13098, Commonwealth vs. Hakeem Mushwaalakbar.
Budd: Okay, Attorney Levin.
-: Good morning, may it please the court,
Patrick Levin on behalf of Hakeem Mushwaalakbar.
Mr. Mushwaalakbar has now been held for more than a year
and a half on two district court complaints.
We're here this morning asking this court
for an order for his immediate release
on personal recognizance with conditions.
-: Can you just bring me up to speed
in the Chelsea District Court case,
that there was an agreed to motion to modify
the bail for $2,000?
-: Yes, the bail is now $2,000 in Chelsea District Court,
and the detention without bail
continues out of the Lynn District Court.
-: Okay, so why is the Chelsea case not moot?
-: Because our request is for release on personal, he-
-: But the motion that was brought
before the Chelsea District Court
was with your clients agreement?
Levin: I'm sorry the most recent motion
for reduction? -: Yes.
-: Yeah, so that was a joint motion
for a reduction to $2,000.
-: Okay, is there a trial date in Chelsea?
-: The trial date has been set for June 1st,
in the Central Division of the BMC.
-: Okay, and what about the Lynn case,
what's the status of that?
-: There's a trial readiness conference
scheduled for May 18th,
and I don't know what will happen at that conference.
Wendlant: Okay, thank you.
-: I don't know, my understanding is the trial
is not likely to be held in the Lynn District Court,
so I'm not sure what the scheduling is gonna look like
for the spaces that are available in Essex County.
Gaziano: They're doing trials in Essex County, correct?
-: Yes.
-: Let me ask you,
I've read your brief of course, Mr. Levin,
in the Labrecque case, the New Jersey case,
and there was a case out of the the ninth circuit,
as well, Torres you're probably familiar with.
Those cases all deal with the pandemic,
and this intersection between due process
and continued detention.
You take it a little further
and ask for a beyond the reasonable doubt standard,
that nobody else has done it.
Can you articulate of those series of cases,
which factors were we to look at,
if we were to reopen detention hearings, Mr. Levin,
that are applicable given the constellation
of factors that are found in the Briggs case,
and some of the other cases cited
in those out of state and federal cases?
-: Yes, Your Honor.
So the factors I suggest that are pertinent
are the length, the overall length of detention,
and also as a subset of that factor,
the length that the detention has extended
with the right to speedy trial suspended.
The seriousness of the charges
and the strength of the evidence against the defendant,
the degree of dangerousness,
and the strength of the evidence of the dangerousness,
the possible total length of incarceration-
-: I'll cut you off just for a second,
'cause I want to clarify that point, Mr. Levin
then you can come back
to your list please. -: Yes Your Honor.
-: On the length of detention,
does that borrow from the competency,
what was it 60 now?
I'm blanking on me, you probably know this
off the top of your head,
but our case law on competency
that talks about parole eligibility,
does that take that into account as well?
-: Yes, Your Honor.
So the case, the Abbot A case is the Massachusetts case,
and of course, citing to Jackson versus Indiana.
Those are competency cases, and there's a statute
in the Commonwealth that requires-
-: That's what I was trying to refer to.
-: Right, so the statute requiring dismissal
at one half of the maximum sentence
on the most serious charge.
And what Abbott A says is that the due process
limitation on pretrial detention is different than,
but cannot exceed that limitation.
-: So you want us to graft that case law
into one of your factors?
-: Not exactly, Your Honor.
I don't think that that statute obviously
is directly applicable here, but the-
-: I was talking more about the concept of,
'cause when we're looking at,
if someone is being held
on a dangerousness for a relatively minor offense
and the end result is they're not gonna do
any extra jail time, that's certainly weighs.
I'm just trying to quantify that,
how best to do that.
-: Yes, Your Honor.
And so I'm not asking for a bright-line rule of any kind,
it's just one factor that needs to be considered
in this totality analysis.
And it's not only, so the statute that relates
to incompetent defendants has to do with
sets a bright-line relating to the maximum length
of the sentence -: And I appreciate we can't
get any mathematical rules
and I interrupted you when you were giving me your factors.
So other factors Mr. Levin?
-: Well so the factor, not only the potential
maximum sentence, but what sentence
would likely be imposed upon a conviction,
also of course is relevant and-
-: [Wendlandt And how do we know that?
-: Well, I think judges are able
to make those kinds of judgments
based on their experience, Your Honor.
-: All right, so just based on experience
we figure out what the likely imposed sentence would be?
-: And certainly the existence and nature
of a plea offer also factors into that.
-: Yeah, let me ask you about that,
'cause I read that, and I forget
if it's in Biriggs or the Al Fuso,
or which case I saw that in.
How does that come into play, the plea,
is that a good thing or a bad thing?
-: So the case that discusses that specifically
is the New Jersey case, matter of release
of certain pretrial detainees.
And so there are a couple of different
considerations there, but I think in the case
before you it's particularly pertinent
that the Commonwealth has made a prosecutorial judgment
that the amount of time that would be consonant
with justice upon a conviction,
is less than half of the committed time he's already served.
-: So the plea offer relates in essence
to sentence likely to be imposed?
-: It relates to that, it also represents
a prosecutorial judgment that Mr. Mushwaalakbar
could safely be released on conditions right now.
-: This is the Suffolk case?
-: In the Suffolk case, yes, Your Honor.
-: Suffolk, not ours.
-: That's right, but just to say that both
the Suffolk Superior Court
and the Suffolk County District Attorney
have concluded that the conditions
that are imposed currently on the Chelsea case
suffice to protect the victim and the public.
-: Any other factors, Mr. Levin?
-: Yes, Your Honor.
Any specific unfair prejudice to the defendant,
and in this case I would suggest that relates
particularly to his knee injury and his inability
to obtain physical therapy in jail.
And the Christy, Nash pandemic factors,
and then the typical bail and 58A factors
also will factor into the analysis.
-: The 9th circuit case discusses the fault
of the prosecution in this,
and then I think the Briggs case discusses
the fault of the government as an entity.
I certainly know your answer to this one.
Um but with respect to the pandemic
and the public safety aspects of 58A,
how is the Commonwealth, i.e. the prosecution
at fault at all?
-: Your honor, I'm not contending
that the Commonwealth is at fault for the pandemic,
just that it is their constitutional responsibility
to bring defendants to trial.
And so the fact that the pandemic has prevented them
from doing so is certainly an extenuating factor
in the analysis, obviously.
Otherwise, almost everyone who's been held
this whole time would be entitled to release.
-: And I know you analogize to chapter 123,
section seven and eight
for the beyond reasonable doubt standard.
No other cases have done that,
why is it that we can't ask judges,
if we were to adopt your reopening potential,
Why is it that we should impose
a beyond a reasonable doubt standard on the government?
-: So Your Honor, you say no other cases-
-: Well, let me just say,
so let me just preface by saying that in all these cases,
length of detention alone is never dispositive.
Levin: That's right.
-: And We have lots of cases that well exceed two years,
that are found to satisfy due process, okay.
So why should beyond a reasonable doubt be used?
-: So a couple things on that.
First, in-terms of the prior case law
about the permissibility of extended detention,
I do wanna just note that those cases
involve serious felonies and the case
in front of you obviously also involves a serious felony,
but it's being prosecuted in the district court.
-: And I appreciate that, and I think what you've asked for,
and you haven't asked for any global remedy,
you're asking for an individual case by case assessment.
-: Yes Your Honor. -: I appreciate that.
-: And just to magnify on the point a little bit,
which is to say that the federal cases
in the bail context that uphold length detentions
against due process challenges
are organized crime cases,
high level drug trafficking cases and terrorism cases.
So these are really, really serious
and complicated crimes to prosecute.
Back to the beyond a reasonable doubt standard,
my grounding for that request
is in the declaration of rights,
and the more emphatic guarantees of substance
of liberty rights are present in articles 110 and 12.
And so the fact that the courts in other jurisdictions
don't require such a finding doesn't really speak
to the argument that I'm making
about the declaration of rights.
And the cases requiring proof beyond a reasonable doubt
in the mental health context in this Commonwealth,
also depart from the law of other jurisdictions,
which requires only clear and convincing evidence
in that context.
-: When we reset the 58 and 57 standards
in the CPCS case, the first pandemic case,
we didn't change the burden of proof in that,
we said that this is a new condition,
or changed circumstances writ large.
And you can re-argue.
But in those cases, we didn't reset
a standard of proof, correct?
-: No, that's right, Your Honor.
Gaziano: Those are all the questions I had,
thank you, Mr. Levin.
-: Thank you.
I guess I will just, to go back to where we started out,
which is to say that Mr. Mushwaalakbar
does have a trial date at the beginning of June,
on the Chelsea case, and hopefully that will go forward.
But that doesn't mitigate the constitutional harm
that we're here to address.
Our contention of course is that the length of his detention
already has exceeded due process standards,
and so each additional day compounds and magnifies
the violation of his fundamental rights.
Hopefully the Chelsea case will go forward in June,
and hopefully we'll get a trial date soon on the Lynn case.
But that's not certain, just this week,
addressing a defendant who wished to delay
his evidentiary suppression hearing
until it was safe to hold it in person.
The court recognized that the continuance
that he was asking for was potentially indefinite,
and acknowledged that for many defendants,
the duration of the COVID-19 pandemic
may extend far too long to wait for an in-person hearing.
Now relatively, we all hope that the vaccine rollout
represents the beginning of the end for this pandemic.
But for the backlog of cases in our trial courts,
at best it represents the end of the beginning.
New cases are still being added
faster than we're able to take the old cases
off the dockets through jury trials.
And we're gonna be stretching constitutional
speedy trial and due process rights to their limits,
I fear for several years to come.
-: But Mr. Levin, two things,
the first one is, well I'll just ask one of the questions,
when it's a 58A, I'm still not sure
of why you gave the answer to Justice Redland
about why the supplications hadn't moved.
But just referring to the 58A,
you get to cut the line when you have a 58A,
as far as the jury trial.
-: Yes, that's true, Your Honor.
In fact, all defendants who are detained
should be at the front of the line.
-: Right but the 58A cuts even that,
because you have a right to request a trial,
that's the whole reason for the Rule 36 incorporation
into the 58A.
-: Well yes. -: I'm not saying that
that that's dispositive, I'm just saying
that you get to cut the line.
-: Your honor, truthfully,
I'm not sure what the pertinence of that is, in-terms-
-: Well it's because one of the factors
that I think you might have mentioned,
and one of the factors in New Jersey
is the projected length of on-going detention,
it's actually in factor number one.
So that's why it's a...
It's not a dispositive question, it's just a factor.
-: Well, you're honor, I don't want to repeat myself,
but we don't know when any of these people
are going to be tried,
their detention remains indefinite at this juncture.
And the idea that we may be seeing a light
at the end of the tunnel here
doesn't remedy a violation which is currently
on-going as to my client.
-: That's all accurate and important,
I'm just saying one of the factors
is the projected length of continued detention.
-: Yes, Your Honor.
And I would suggest this court recognized
in Vázquez Díaz that the projected length
of a wait for an in-person hearing,
remains at this juncture indefinite and unknowable.
And this is why it's so important for this court
just to clarify, at what point this due process
analysis kicks in.
Because in Lugee, the court just said,
"We're not there yet."
We need to know when each defendant
is entitled to a hearing,
and what that hearing entails.
Gaziano: That's what the court said in Tores,
a few weeks ago though, right?
-: Well the holding in Tores was,
so the thing about the Tores case-
-: This struck me, it had the Lougee language,
it basically said, don't do it, who knows,
at some point there's gonna be a due process violation.
-: So Your Honor, I don't agree.
The thing about Mr. Tores is he received
an individualized determination by the trial court,
rather than what happened here at this court-
-: I get you, pandemic related.
-: Right, so his individual trial judge
did that balancing on the federal version
of Rule 36B2F, and weighed the individual interests
of that defendant.
It wasn't a systemic decision that all trials
are suspended and all pretrial detentions
are also indefinitely extended,
which is the holding of Lougee.
So the individualized determination is-
-: Well that could help or hurt, right?
If it's individualized,
'cause Lougee- -: Well, Your Honor,
my suggestion is it must be individualized
to comport with due process.
Gaziano: I understand your argument.
-: If there are no more questions,
I just wanna reiterate my request in the reply here-
-: I'm sorry, we don't, well we got it,
'cause you said it the first time.
Levin: It's just one sentence,
Your Honor -: Is it something different?
-: No, it's -: It's not
something different?
-: I just want on my request for relief,
I did wanna ask the court to consider issuing,
if it's inclined to agree with me,
as to my client, issuing it's order immediately,
with the opinion to follow.
-: Very good, thank you.
-: Thank you very much.
-: Okay, Attorney Moriarty.
-: Good morning, may it please the court,
Marina Moriarty, on behalf of the Commonwealth.
With the court's permission,
I will divide my time with ADA Benjamin Shorey,
representing Suffolk County.
I will argue for 10 minutes, and he will argue for five.
The continued tolling of the statutory time limits
for detention, set forth under 276, section 58A,
does not violate due process where the time exclusion
remains reasonable in the totality of the circumstances.
-: Well, that's actually the question, right?
Isn't that the question?
Tell me why it's reasonable at this point,
in light of the sentence potentially faced
by this particular defendant.
-: With respect to this particular defendant, Your Honor,
the Commonwealth position is that Lougee reasoning holds
with respect to the entirety of the pandemic,
and that the analysis with respect to the totality
of the circumstances still applies,
in that it is not violative of due process
at this point for any defendant, but with respect to-
-: Yeah but why, I guess.
I mean, instead of saying it, why don't you explain why?
-: Sure, at this point we are approximately
12 months into detention, or 13 months into detention
for reasons of COVID, which is far short
than the maximum sentence that would be imposed
for any of the misdemeanors that are encompassed
under Section 58A, and surely well under
the maximum for the felonies that are encompassed under 58A.
-: So, the legal standard says when the regulatory
deterrent is excessive, in relation to the underlying goal,
that being public safety,
and it assumes a punitive character,
there's a due process violation, right?
What's wrong with having an individualized assessment?
Lougee says there's no due process
violation now, but let's see.
And what council suggests is that defendants
have the ability to go before a judge,
and make an individualized case,
laying out those factors as to why continued
detention may be warranted.
If someone certainly is accused
of incredibly violent offenses,
and I'm not diminishing the offenses here.
But there are are dangerousness cases,
and dangerous as you certainly know,
where a judge is saying, "No way in the world
am I gonna let this person out."
But there are others that are more on the margins.
What's wrong with giving judges the ability,
consistent with due process,
of having an individualized assessment
based on these changed circumstances?
-: Consistent with procedural due process, Your Honor,
the defendants already have the opportunity to file
motions to reconsider under the statutory language,
provided under 58A, section four.
And that is something this defendant
took advantage of several times; filed numerous motions
to reconsider based on the factors of dangerousness.
I-
-: But I mean they filed those,
but what is suggested is that based on
the continued detention, that some of these other factors,
'cause in fairness to the trial judges,
they don't have any guidance from us,
as to what they should be looking at
on these changed circumstances during the pandemic.
-: Well, I do think that this court has offered
significant guidance with respect to what constitutes
changed circumstances, Lougee specifically said
that the length of the detention
may be considered under a change in circumstance,
the diminution in the Commonwealth's evidence
may be considered a change in circumstance.
So I think that without every single defendant
going before a district court or a superior court judge
and asking for this due process analysis,
which may lead to-
-: But don't we have a responsibility to issue Lougee two?
Moriarty: Yes.
-: All right, so in Lougee one we said,
there's no due process violation at this point,
but let's see.
Aren't we at the let's see point?
-: I don't think so, Your Honor.
We're in a significantly different position
with respect to jury trials than we were a year ago.
Jury trials have resumed, Superior Court
jury trials of 12 will resume.
-: Do you have any information for us
as to what's happened and when,
and what's going to happen with this defendant
when he has his pretrial hearing?
-: I am informed, Your Honor,
that Lynn District Court trials will be held
in the Salem District Court.
I am told that jurors will be summonsed
to Salem District Court three days a week,
starting either in May or June,
and that Salem District Court, Lynn District Court
and Peabody District Court will alternate trials
in the Salem District Courthouse.
I understand that there's currently
a trial readiness list,
which essentially is a conference between
the prosecutor and the defense attorney,
and there's a number of cases on the list.
I don't have a particular number for Your Honor.
-: I was gonna ask you whether or not
you have any information on how many 58A
defendants are involved in these proceedings.
-: I don't, Your Honor.
I am told that the majority of the cases
that are on this trial readiness list
are either gun cases or OUIs,
where there is a mandatory minimum sentence involved.
I am also told by the District for ADAs,
in this particular case that there has been
no plea offer or plea negotiation, and that-
-: I just wanna point out one thing
that you said that might leave a misimpression though.
When you're talking about the potential length of sentence,
obviously 13 months doesn't approach the maximum
house of corrections sentence,
although you're getting there
with the parole eligibility.
But you said, you implied that felonies
require a different analysis.
Well the felony has a maximum
two and a half house of correction sentence too,
if it's not indited.
And there's no suggestion that this case
is going to be presented to the grand jury.
So as far as the potential length of sentence goes,
the felony analysis is no different
than the misdemeanor, right?
-: That's exactly correct, Your Honor.
The only distinction is that in district court,
it's 120 days versus Superior Court's 180 days
detention, pursuant to the statute.
-: But that doesn't help either,
because it's 120 days, because it's in the district court.
-: Yes.
-: I'm just going at the length of the sentence.
-: I understand, Your Honor, I'm sorry for any confusion.
I would just say that with respect to these,
whether every defendant is entitled
to an individualized hearing on due process analysis,
it's simply unnecessary at this juncture,
and the court could, based on where we are today,
in the pandemic, issue a Lougee two,
and say we are still not there yet,
we may be closer, but given the factors
of the resumption of jury trials,
the lack of blame to the Commonwealth,
the lack of any demonstrative unfair prejudice
with respect to particular defendants,
that the tolling continues to be reasonable
in the circumstances, and if there is,
and that again, motions to reconsider should be
freely considered and-
-: What do we do with the fact that in this case
it was just summarily denied,
seemingly suggesting that the judge felt
like Lougee One was dispositive?
-: Your honor, it was a margin endorsement,
I think that you can infer that Judge Brennan
just simply agreed with the prior judge's determination
on the list of the reasons why this particular
defendant in this particular very serious
domestic violence case should continue to be held.
And that his alleged-
-: Right, but that didn't include,
the prior analysis didn't include
the length of the detention of this particular defendant.
And in the absence of any writing or any explanation,
how do we know that the judge
actually took that into consideration?
-: Judges are presumed to know the law, Your Honor, I-
-: Right but the law right now is Lougee One.
-: I agree it was thoroughly fleshed out
in the defendant's motion,
so obviously it was before the judge.
I think you can infer that he considered the issue.
And despite...
And I also think with respect to the sentencing
is that the local judges are in the best position
to understand whether these sentences are,
whether the defendant has been held
for longer than would be anticipated,
were he to be found guilty at trial.
-: So you agree that an individual analysis,
under a flexible due process situation,
where let's say the matter is before
the district court judge on March 1st,
for trial assignment,
and the trial assignment date is given,
the trial is given for June 2nd.
And the defendant's going to wrap-up,
what would be the equivalent of a wrap-up date on June 1st.
Well at that moment, the due process analysis
means that the person has to be released.
-: Yes Your Honor.
-: And can I ask you, I know we're approaching
the end of your time.
The tolling of these time periods
is something that we did, correct?
And they're our orders.
How does the fact that we continue to toll
relate to whether or not we give relief,
in that if we were to say tomorrow
the tolling is over and the clock starts again,
that's one thing, while we continue to toll,
do you think that we have a responsibility
to give this further guidance?
-: I do, I think this court guidance
would promote consistency on a fundamental
constitutional issue.
I think where this court continues to toll,
and has said that it's for a good cause,
and that at this juncture, at least today,
we haven't reached the outer bounds of due process.
I think that that would be very helpful
for the lower courts.
And I think Judge Hanlyn certainly indicated that in her-
-: We should have to say that the order relative
to excludable delay does not mean
that there's not a constitutional analysis
that has to take place.
-: That's true, I think a defendant
is always entitled to a constitutional analysis
if it's raised.
Budd: Okay, thank you very much.
-: Thank Your Honors.
-: Okay, Attorney Shorey.
-: Good morning, and may it please the court,
Benjamin Shorey on behalf of the Commonwealth,
representing the Suffolk County District Attorney.
I will briefly just address the mootness issue,
I do think the bail question out of Suffolk County is moot,
and I do think the defendant has failed to show
a breadth of this issue that would require
the court to address it further.
I do think, specifically as it relates to,
well since the briefs were filed in this case,
the new order out of this court,
and in fact the defendant's trial has been scheduled
for just a few weeks from now,
also weigh in favor of the court finding it moot.
I think that finding is appropriate too,
because the court has recently and clearly
addressed the issue really,
and that goes to, there's been some back and forth
about the individual analysis under Lougee and Brangan,
and the potential to separate due process
individualize analysis.
But I think it's important to note
that Brangan lays out a due process requirement
that the judges evaluate the length of detention
in relation to the likely sentence.
And then Lougee cites directly to Brangan.
So I think that- So how do we know
here that the judge actually engaged in that?
-: Well, so I think the record unfortunately
is not sufficient to maybe address that issue
because the judge's initial finding
of dangerousness isn't before this court,
there's no transcript of that hearing.
And I can't tell you that in that hearing
the judge did specifically address the issue of Brangan,
specifically addressed the fact
that a high bail was required,
even though based on the defendant's representations,
he couldn't post it.
But again, unfortunately that hearing
isn't formally before this court.
Gaziano: There was an agreement on bail in this case.
-: In this case, correct, after-
-: Assume that the defendant agreed to a bail,
is a bail the offender could reach.
-: Oh in-terms of yes,
the defendant has represented that he could post
that $2,000 bail, and that was on the record
before the single justice, and then since then-
-: So I don't think we have a Brangan violation, do we?
-: No we don't Your Honor, but my suggestion
is that third requirement is laid out as a due process,
that weighing of factors is laid out
as a due process requirement in Brangan,
and then that's reiterated in Lougee
in a slightly different context.
My point is only that I think that individualized
analysis is a due process requirement
that the lower court justices are required to apply,
it's not simply a material change in circumstances,
independent of due process.
If the court doesn't have any particular questions,
I would rest on my brief.
-: Okay thank you. -: Thank you.