-: SJC-13107 in the matter of an impounded case.
-: Okay, Attorney Hemley.
-: My name is Taylor Hemley
and I represent the appellant child.
Justice Gaziano: Can you talk a little louder? Sorry.
-: Sure, my apologies.
To what end?
That was the question the juvenile court judge
used to himself during the child's hearing
and his expungement petitions.
"What was the point,"
the judge asked himself,
"of saddling this incompetent child
with lifelong carry entries
for cases he could neither understand nor challenge?"
The answer is that there was no point.
And in denying the expungement petitions
as the amicus points out,
the judge twice failed this child.
-: Can I ask you just a simple question?
Did the judge have the discretion to arraign?
-: Yes, the judge did have the discretion to arraign.
However, here the judge, it's my position,
didn't think that he had the discretion to arraign.
Looking at the transcript and what the judge said is,
"I'm not going to arraign.
I'm not going to postpone the arraignment
over the commonwealth's objection."
And so the error here is that the judge didn't think
that he had discretion to arraign.
-: Is that what that means?
Or does it just mean-
I'm sorry, right here.
Is that what that means
or does it just mean he didn't wanna continue it?
-: I would say that was what that means,
because the judge didn't think he had the authority to-
-: But where did he say,
"I don't have the authority to continue it"?
-: I would take that as the latter phrase
that over the commonwealth's objection-
-: Just because it was over the commonwealth's objection,
you think that means he thought
he didn't know he could do it?
Attorney Hemley: Yes, that and-
-: He had to go along with the commonwealth?
-: Well, that and he didn't do the Abbot A. balancing test
that's required here.
So, he didn't consider-
-: [Justice Wendlandt] Wait a second.
So what is-
The statute requires a demonstrable error, right?
Attorney Hemley: Yes.
-: Okay, so what is the error that you're alleging occurred?
The failure to continue in order to have the evaluation?
Or what is the exact error?
Attorney Hemley: Yes, that is the error.
-: So a failure-
so in that, we assess by an abusive discretion.
So you're saying the judge abused his discretion
by failing to continue to have an evaluation?
Attorney Hemley: Yes, that is correct.
-: Okay, and what is the evidence of that?
What are you relying on
for saying that there was an abuse of discretion?
Because as I read the transcript,
there was a discussion back and forth,
not only with the supervisor for DCF,
but also with the child himself.
Attorney Hemley: Yes, two cases in particular,
Abbott, A. and Torres-
-: Yeah but, even in Abbott, A. and Torres,
there was an arraignment, right?
In Abbott. A, the child, had already been determined
to be incompetent and there was an arraignment.
And that was not-
did not present a problem for the court at all.
The question was only the transfer hearing.
-: Yeah, so I would say
that the court in Abbott, A. and in Torres
didn't hold that there was a per se rule
that you can always arraign a child who's incompetent,
rather that judges should perform a balancing test.
And this is a due-process balancing test
because arraignment does implicate due process concerns
and that balancing test-
-: Yeah, but before you get
to the due process balancing test,
don't you have to show evidence
that there was reason to believe the child was incompetent?
That is that the section 15 hearing had to be conducted.
-: So, I don't think that that would have been possible here
because this was the child's first time at arraignment.
So there couldn't have been.
We were asking for time to have him evaluated
for a competency hearing,
but he hadn't had a competency hearing already
because this was his first time coming into court.
And so instead, what was presented to the judge-
and I was the trial attorney, so I presented it,
were concerns about my interactions with the child
and his not understanding the arraignment,
my conversations with the staff from his DCF program
who also raised concerns related to competency,
the police report itself,
the second police report has a description
of the program that my client was at
as a place for children
in the custody of the Department of Children and Families-
-: But then, the judge engaged in this Q&A with your client,
where he says, you know,
"how old are you?", "I'm 13."
"Where's your family?" "In Virginia, Roanoke."
"Have you ever been there?" "Yes, I have."
"Where do you live when you're in Massachusetts?" "Lynn."
"What do you like in school?" "I like math and science."
"What are you doing in math?" "Just division."
And the judge says after that,
"You know what, I'm not gonna postpone this arraignment"
after having gone back and forth
and talk to the staff and the child.
-: Well, I think the judge asked a few more questions.
If I remember the transcript correctly,
he asks things like,
"Do you know who I am?"
"Do you know what a judge does?"
"Do you know what this is?", pointing to his robe.
And the child says, no to all of those questions.
-: [Justice Wendlandt] But does that make him incompetent?
-: Right, and didn't you just say
that this is the child's first appearance,
so it wouldn't be necessarily uncommon
that a child of that age wouldn't have any idea
what the role of the Judge was,
and so that wouldn't really be indicative of anything
and certainly of competency.
-: So, I'd answer that in two ways.
And the first is that generally,
you know, as a trial attorney,
I explained to my clients
what's going to happen at arraignment.
And so there would be some familiarity,
even if the person had never had an arraignment before
of, you know, the person who sits
in the middle of the courtroom is gonna be the judge.
-: Right, and your client actually says that, right?
So the client, you know, assuming that you told your client
that the person in the middle is the judge,
he says the judge asked him,
"Have you ever heard of a judge?"
"Yeah, I have."
-: Yes, exactly, but I do a little more
than just tell them that the judge is in the middle,
I will tell them what the judge is going to do
and things like that.
But to answer your question, Justice Georges,
a little bit further,
I think that the key thing here is that we're not asking
for a whole evidentiary hearing before arraignment.
We're not asking for a ton of process here.
It's just that the judge do an Abbott, A. balancing test
if competency is raised.
-: Well, counsel, let me follow up on this
because this is one thing I'd love your answer on,
is this discreet to the juvenile court?
And I'm asking you that
because competency is always from time to time,
it's gonna be raised on the adult docket as well.
And to the extent that an arraigning judge
disagrees with counsel that there's an issue of competency
and then the matter's arraigned,
and at some point later on downstream,
there's a finding of incompetence,
and then the case is dismissed on that basis.
Are we gonna always now be faced with motions to expunge?
Saying, "Hey, judge, you should've had
a competency hearing pre-arraignment and you didn't.
And now the case is gone because of competency.
So now that raises a demonstrable error
under the expungement statute,
so here we are with our motion."
So is this-
are you saying that this is discreet
because of that balancing test
or would this apply even on the adult docket?
-: I do think that this is unique to juvenile court
because in juvenile court,
continuances of arraignments are pretty common
for things like Humberto H. motions to dismiss,
Wallace W. Hearings, judicials diversion,
and that those things are not permitted generally,
in district and superior courts.
To answer your other question,
I think it's a floodgates question, essentially.
I think it would depend on whether the judge
appropriately considered the Abbot A. factors.
If competency is raised,
then the judge has to perform an Abbott A. balancing test.
-: I guess, yeah, I guess that's my question
is you're saying, if competency is raised,
you go to Abbott A.
As I read Abbott A. and Torres,
the question is, can you have these pre-trial events
for somebody who's incompetent?
Attorney Hemley: Yes.
-: It's not-
So you have to establish that somebody is incompetent.
In fact, I think that's why in your briefing,
you're saying, your client was manifestly incompetent.
-: So then I would say that, you know,
the remedy for that is to have a continuance
and have the evaluation done-
-: [Justice Wendlandt] Anytime competency is raised?
-: Yes, assuming that the Abbott A. balancing tests-
-: So there really isn't a discretion,
at least in juvenile court,
when counsel says,
"I think my client may be incompetent"
At that point, the court, the juvenile court judge,
must go and have the client evaluated?
-: No, I think that they must do the balancing test.
And so, I don't think that the balancing test
will always tip in favor of the child,
as I argue it did here.
For example, in Abbott A. and in Torres,
the charges were much more serious.
There were concerns about dangerousness.
There were concerns about flights,
but in this case, there were no concerns about any of those.
The judge didn't impose a bail,
the commonwealth didn't request a bail
and the commonwealth didn't move for dangerousness,
and any conditions could have been imposed pre-arraignment.
So, you know, in this case,
what we would say is, the error would be
that the judge didn't do this balancing test.
And the balancing test might not always favor the child,
as I mentioned, which at least Justice Georges,
your floodgates question,
if this is a child, for example,
he's for this court a number of times,
or has very serious charges,
or there are concerns that require a detention,
then the Abbott A. balancing test would probably tilt
in the direction of the commonwealth
because the Commonwealth's interest would be higher.
That wasn't the case here.
And so the judge should have done that balancing test
and I argue it would have been in favor
of just continuing the arraignment.
And I do also wanna add
before I move into expungement here,
that this is not that different
than the ordinary course of proceedings
in terms of competency evaluations in juvenile court.
Generally, competency is raised,
whether it's by the judge, the DCF,
folks who were present with the child,
the parent, the guardian, the attorney,
then a competency evaluation is conducted
whether by the court clinic or by an independent evaluator
-: Counsel, can I stop you again?
So I'm just gonna read to you from Abbott A.
It says, "In deciding whether due process
permits a pretrial hearing to proceed
where the defendant or juvenile is incompetent.."
And then it goes on to describe the three prong tests.
Attorney Hemley: Yes.
-: Your reading of that is that
in deciding whether due process permits a pretrial hearing,
if there is questions raised
as to the juvenile's competency,
then you do the balancing.
So you're reading an if into that language.
-: Not necessarily, I just think that we didn't know,
you can't really know for sure if the child is competent.
-: Right, so whenever it's raised,
assuming that there's no dangerousness
asserted by the commonwealth,
you must do the three prong balancing test.
Attorney Hemley: Yes. -: Okay.
-: I do wanna to move into expungement briefly here.
Expungement is a permanent erasure of a record.
It leads to no access by states,
no state agency or law enforcement agency.
And this is, as you all know I'm sure,
a new created statute
and our position is that the category
for which my client sought expungement
under 100KA5 for demonstrable error by a court employee,
applies to the error here,
which was legal error by a judge.
-: But the standard for that is clear
and convincing evidence.
And are you saying that again,
with all of the things that were just raised
about perhaps, maybe your interpretation
of Abbott A. versus perhaps,
the judge's understanding of it,
that this rises to the level
of clear and convincing evidence?
-: Yes, because the judge merely
had to do the balancing test.
The judge should have weighed the factors
of the harm to the child of arraigning
and you know, which there's a multitude of consequences
coming from arraignment here,
including housing issues, DCF, custody issues,
and employment issues, school issues,
should have weighed that against the commonwealth interests,
which I would argue here, is quite low,
given that the commonwealth is asking
for nothing but conditions that should have been ordered
prior to arraignment.
So yes, I would argue that that is a demonstrable error
by court employee, by clear and convincing evidence.
-: Can I just ask before you go back
to expungement for just a second.
Does it matter to your analysis
that the commonwealth agreed with you
that the arraignment should be postponed?
Is that part of your argument
that both of you,
everyone thought that the arraignment should be postponed
except the judge?
Attorney Hemley: No, the commonwealth objected
-: Oh, I'm sorry.
I thought you said over the commonwealth's objection,
I'm going to go ahead with the arraignment.
-: Oh, no, I apologize if I misspoke.
The judge said, "I'm not going to postpone the arraignment
over the commonwealth's objection."
The commonwealth objected and the judge said,
"I'm not going to postpone the arraignment
because the commonwealth objected."
-: [Chief Justice Budd] Got it, got it, got it.
-: At least that's my understanding of court transcripts.
I do want to address best interests as well in this case,
although the judge didn't reach it,
looking at the expungement petition,
the judge denied based on 100KA essentially,
saying that my client didn't meet the criteria,
because I think it's important to consider at this point.
This was a 13-year-old child
in the custody of the Department of Children and Families
facing severe neglect and abuse by caregivers,
has a lengthy DCF history,
has fetal alcohol syndrome
and has poor-responding developmental
and mental health issues as a result of that.
Looking at the charges here,
they were, you know, based on conduct at a program
that was aimed at treating, essentially,
these exact behavioral concerns.
The nature of the charges,
one of the set of charges
involved spraying a fire extinguisher
at his program, for example.
And the fact that this is
going to affect the child's DCF placements
and long-term goals for the rest of his life
if it's not expunged,
for a case that he could not challenge
and for a proceeding that he did not understand,
and in fact told the judge,
he didn't understand.
Expungement wasn't the best interest of justice.
-: Can I ask you one question counsel,
do you think that the statute allows the judge,
even if he or she does not find
one of the triggering elements of section A,
you know, let's say, I don't find a demonstrable error
by a court employee, nonetheless, under section B,
it says in the best interest of justice
to go ahead and expunge this.
-: No, I don't believe so.
My reading of the statute is that you need to fit
one of the 100KA categories first.
If there are no further questions,
I see that I am out of time.
I will rest on my brief, thank you.
-: Okay, Attorney Heron.
-: Good morning, yeah it's still morning. (chuckles)
My name is Donna Heron,
assistant attorney representing the commonwealth.
The motion judge here, Judge Marotta,
properly exercised his discretion.
And I do say he exercised his discretion
in denying the defendant's petition
for motion for expungement for arraignment
in arraigning the juvenile
where the juvenile failed to establish
by clear and convincing evidence
of a demonstrable error by a court employee,
and resealing of his record
under the legislative statues is the appropriate remedy.
I do disagree with my sister.
It was clear that judge Marotta during arraignment,
exercised his discretion in arraigning the juvenile.
He engaged in a colloquy between the staff
at the group home he was at,
and ensuring that the defense-
sorry, that the juvenile was getting services,
individual therapy and group sessions.
He then engaged the juvenile in a colloquy,
and after observing the juvenile,
hearing his answers, looking at his demeanor,
he made the decision to arraign the juvenile
and that was within his discretion.
And I suggest there was no abuse of discretion.
So therefore, under the expungement statute,
which I first would argue that a judge's decision,
it doesn't fall under a demonstrable error
by a court employee,
but even if it did,
I would suggest the juvenile failed to show
by clear and convincing evidence
that the judge did commit a demonstrable error
by arraigning a juvenile
who was later determined to be incompetent
-: Counsel, let's see your first point.
Can you tell me, what's your support for that,
that a judge is excepted
from the conduct of a court employee?
-: As I'm sure you're well aware,
there is no case law on this exact statute.
So I looked to other cases from this court, other statues,
just to show that they've always distinguished
between judges and court employees.
And so based upon that,
the commonwealth would suggest
a clear, reasonable interpretation of the statue
would be that judges' decisions don't qualify under that.
And looking at the statute,
the categories of the statute as a whole,
it was clear that the statute was made
to address the cases that came down,
like Beau and Moe, where the wrong person was arrested,
or the wrong person was arraigned,
or and of Aviles, I believe the clerk made an error
in putting the wrong date of birth of the defendant.
And I believe the statute was created to address the issues.
And as you, Justice Gaziano, in the Webber decision said,
the point of this is,
"Does the record accurately reflect the charging decision
made by the police and the prosecution?"
And I would suggest that is-
the statute is to address when the charging-
where the record does not accurately reflect
the charging decision by the prosecutor
and the police either by police-
a mistake by the police, a mistake by a witness,
a mistake by a clerk or a lawyer.
So I would suggest that this court,
we have appeals court to address errors by judges
and that's the proper way to go.
So I would suggest a reasonable interpretation
of the statute would be
that judges' decisions do not qualify
under a demonstrable error by court employees.
-: Can you compare other expungement statutes?
'Cause you acknowledged
the court employee issue is unaddressed,
but I'm wondering if other expungement statutes
use language like error of law or, you know,
'cause you don't normally refer to a judge's errors as,
you know, an error of a court employee,
but you know, sort of
erroneous legal interpretation or something.
Did you compare other expungement statutes
and whether they have that kind of language in it?
-: I don't think they have that kind of language in it.
The other statutes talk about different offenses
which are available for expungement,
and then in the judge's discretion,
would they be allowed to expunge the record
versus other the judge couldn't go under
or the juvenile couldn't go under regular expungement
because he was charged with an offense
which is specifically excluded from expungement,
which was assault and battery with a dangerous weapon.
I would suggest that a reasonable interpretation
of the statute would be that-
to answer your question,
no, I don't see that in any of the other statutes
where, and I say traditionally,
a judge's decision is not, isn't-
judges do not qualify as court employees
as for the reason stated in the brief
in the examples I set forth in my brief.
And I, again, I would suggest
even if this court were to interpret,
given that there's no direct point case on point
that they do qualify that Judge Marotta's decision
to not expunge a record was not an error.
He did not abuse his discretion.
-: Can I ask you another question?
Your sister argues essentially,
commonwealth has no interest in the arraignment
of this employee when there is sort of an open question
of his competency.
Do you wanna articulate what that interest is?
-: Yes, your honor.
The commonwealth does have a great interest
in looking at the cases and especially in this court,
in a matter of a juvenile, went through the history
of when incompetency is raised
and the different procedures that can occur,
different pre-trial hearings that can occur.
And if this court said in a matter of juvenile,
the commonwealth has an interest
in assuring the juvenile's appearance at trial.
And I think that's particularly relevant
where there's victims involved in the charges,
which there were three victims involved
in the case involving this particular juvenile,
and also from protecting the public from the juvenile.
I also think even though the commonwealth-
-: Can you tease that out a little bit?
So by arraigning the child,
again, this is a child in DCF custody.
Attorney Heron: Yes.
-: You're increasing the child's likelihood
of showing up in court?
I'm just trying to get a sense of why that is.
-: Well, each case is different.
Each case is particularized.
This particular child was in DCF custody,
but I can imagine there are numerous juveniles
who are not in DCF custody that are in homes
that may be not the best suitable homes,
that are in neglectful homes,
that are in not the best situations,
that don't have the supervision.
As seen by the colloquy,
this juvenile was given individual therapy,
was in a group home,
where he's receiving a lot of supervision.
I can imagine if you have a blanket rule across the board,
that my sister is proposing,
that you can never arraign a juvenile
when there's a question of competency,
you're gonna have certain juveniles
that don't have these-
-: Although to be fair,
she did clarify that when these issues
of danger to the public
or his physical presence are not at issue,
you know, it's not a blanket rule that she's proposing.
It's just, you know, in this situation
where there's no danger,
no question that he will come to whatever's next,
that you should, as a matter of discretion,
issue the continuance.
So I guess, to answer Justice Kafker's question,
I'd like you to answer Justice Kafker's question
in light of the facts of this case,
because as you know,
due process is a fact specific inquiry.
-: In the facts of this case,
the commonwealth had an interest,
given that they were victims involved in this case
to have the juvenile arraigned
so that there is an accurate record of what is occurring
so that the juvenile can then get services
he may not otherwise be able to get
through the court services,
such as a court appointed evaluation.
Here, it was a private evaluation
that was done on the juvenile,
but they could've had a court appointed psychologist
that did the competency evaluation
and other services that occur there.
And, but that is the commonwealth's interest
and bringing the juvenile to trial
when there's victims involved in the case,
and when the juvenile would get arraigned,
the additional services that the court can impose
to help that juvenile, such as a court appointed evaluation
and getting an accurate record
of what has transpired in the case.
And I think those are the interests the government has
that are legitimate interests,
compared to when you do the balancing test
as the court has elaborated, particularly,
and as I said, a matter of a juvenile from this court
in Abbott A. and Torres,
that when you're talking about arraignment
and bail hearings, the competing interests,
or the risk of erroneous deprivation is low,
given that the need for the juvenile
to communicate effectively when setting bail is low,
given that the-
I'm sorry,
the factual and strategic errors
as this court has recognized,
are relatively low at that time,
where they're the greatest at trial.
-: But isn't a key strategy, whether, you know,
what your pleas is gonna be,
isn't that the whole point of the arraignment?
-: Quite frankly, around that arraignment,
everyone pleads not guilty.
I've never quite frankly seen a defendant-
-: I guess, yeah, that's my question.
Do we look at this from, you know,
what really happens in arraignment?
Or from the significance of tendering a plea?
-: I think you look at-
I mean, this court has said that at a bail hearing,
the strategic risk is low
and that was in a matter of a juvenile from this court.
So I would suggest arraignment,
which is essentially you're arraigning a juvenile,
then a bail hearing would be the same thing.
The strategic risk is low
'cause there's not much input
that the juvenile has to go into
because the juvenile is gonna plead not guilty.
A bail hearing will be held or a determination of what-
-: It sounds like the interest is keep it in his record,
but we've also written a lot about how we're trying
to avoid records for juveniles, right?
-: We've seen in our cases,
in cases involving-
yes, the 2018, the impetus of that bill
was to try to eliminate for low crimes
for misdemeanor crimes,
that a juvenile is not put into the system unnecessarily
where there can be diversion in that.
This juvenile was charged with three counts
of assault and battery with a dangerous weapon.
-: So is that the interest then?
That we want- I mean, again,
I'm trying to tease out
what the commonwealth's actual interest is,
which is, it sounds like creating a record
of a serious charge, even if the child is incompetent-
[Attorney Heron] Yes.
-: Can I just finish the question?
Attorney Heron: Oh, sorry Justice Kafker.
-: Is that what the interest is?
And are you also saying the judge here,
did not abuse his discretion
because that's what we can discern he was thinking?
-: I agree that the commonwealth's interest,
again, with the case with a victim,
is bringing a juvenile on a serious assault
and battery with a dangerous weapon case,
is yes, creating an accurate record,
bringing the juvenile to trial
and particularly where there's victims involved.
And I suggest that Justice Marotta
did not abuse his discretion when he arraigned the juvenile,
particularly given that there was probable cause.
And I ask you to look at the Nubin N. case from this court,
where there was, in that case,
it was clear that juvenile had great mental,
psychological issues.
Just looking at the very facts of the case,
he clearly was having some sort of psychological breakdown
during the commission of these crimes.
And in that case,
the judge on the juvenile's motion,
dismissed the charges prior to arraignment,
saying that she didn't see
how the commonwealth could establish
the juvenile had the mental state to commit the crimes
and that he was clearly in a quote,
"deranged mental state",
and this court reversed saying,
so long as the commonwealth moves for arraignment,
and there's probable cause to issue the complaint,
the juvenile should be arraigned.
And I would suggest that's exactly what Justice Marotta did.
And I mean, Judge, sorry, Marotta did in this case,
where the commonwealth moved for arraignment
and where there was clearly
and not otherwise,
sufficient probable cause to issue the complaint.
And therefore, Judge Marotta properly exercised
his discretion after engaging in a colloquy
with both the juvenile and the people from the-
and the workers from the group home,
in arraigning the juvenile.
And then that suggests Judge Marotta
further, properly exercise his discretion
in denying the defendant's petition for expungement
when the juvenile failed to established
by clear and convincing evidence
that there was demonstrable error by a court employee.
-: Can I ask, if we agree with you
that expungement is off the table,
does the juvenile have an option to seal the record?
-: In three years, your Honor, the juvenile under-
and I forget the statute, exact statute,
but can move to seal the record.
And I would suggest this court in Galvin G. and Oates,
that was a 2002 case,
but has said that there is a limited number of people
that can view juvenile records
and it's law enforcement, any law enforcement,
any court appointing authority,
and the juvenile in that case was arguing
there needs to be more protections,
and this court ruled that there was adequate protections,
and if there needs to be more protections,
that was for the legislator to decide
and not this court to decide.
So I would suggest under that case,
that there's clear enough protections for this juvenile
so that he won't face any adverse consequences
in the future if he can seal his record,
which is as the legislator intended in cases
such as this juvenile's,
and being a juvenile case in itself,
there's a bunch of protections in place
to protect the juvenile that the legislature has enacted.
If there's no further questions,
the commonwealth will rest on it's brief.
-: Okay, thank you.
Attorney Heron: Thank you.