-: You may be seated.
-: SJC 13123.
Commonwealth v Leon G. Dufresne.
Judge: Okay, Attorney O'Brien.
-: Yes.
Good morning.
-: Good morning.
-: Thank you, your honor.
Should I begin?
Judge: Yes please.
Thank you.
-: Thank you, Jennifer O'Brien for the defendant,
Leon Dufresne.
-: Talk a little louder?
Could you talk a little louder?
-: Yes, absolutely.
I'd like to just recognize trial counsel,
Lexie Tomasko who made this argument,
preserved it below as well
as all the amicus briefs filed in this case.
I think the question in this case
that the court is interested in
is whether or under what circumstance a defendant
is entitled to the assistance of counsel in connection
with the 209A proceeding and whether that lack of counsel,
when an order issue infringes on his constitutional right
to due process or the right to assistance of counsel.
Now we start with the premise that a 209A
is a civil judicial order that when violated
automatically turns criminal.
The defendant, an indigent defendant rather
is not afforded an attorney at the initial hearing.
And I don't mean the ex parte hearing.
I'm not arguing, just so the court is aware,
that an attorney should be appointed
at the ex parte hearing.
I understand the emergency nature of these 209A's
in certain cases.
And I think it would be unethical for an attorney
to represent a defendant at an ex parte hearing
when he's never met that defendant, obviously.
So I'm talking about the hearing that occurs 10 days
after the initial ex parte hearing hearing.
And in those, in that situation,
the defendant is usually presented
with some sort of underlying criminal conduct.
Not always, but there the plaintiff is alleging that the,
there is an imminent fear of bodily harm.
And in order to allege that it usually arises
from some sort of criminal conduct,
whether that be a threat of violence
or actual physical violence.
The defendant is placed in a position
where he has no right to counsel.
He's not an attorney.
And if he says anything,
obviously he could incriminate himself
in an underlying criminal case,
whether or not there is an underlying criminal case,
it usually involves criminal behavior.
And there are fundamental,
in addition to the criminal side of it,
there are fundamental, critical human rights at stake.
The termination of,
or temporary termination of parental rights or custody,
child contact, the defendant may have
to vacate his residence, he has to turn over firearms.
The court can order the removal of animals
from the defendant's custody,
order him to attend a certified batterer's program.
-: Counsel, can I ask you a quick question on this?
-: Absolutely.
-: When you make this argument,
you talk a lot about the consequences that could happen
from not being afforded the right to counsel.
I'd like to focus more on the proceeding though,
because at the proceeding where the plaintiff who arguably
now has an ex parte order,
is now seeking an extension of that order.
Are you suggesting that the defendant needs the right
to counsel in order to effectively participate
in that hearing?
-: I am arguing that, yes.
The answer to that question is yes,
but if this court rules that an attorney
is not automatically appointed,
then I am arguing that since it is a judicial order,
it should, a civil order, it should be enforced civilly.
That's another option since it is a judicial civil order.
-: Don't we have other civil proceedings
that are enforced through law enforcement?
No trespass orders.
-: Yes, yes, but they're not judicial orders.
I mean, a trespass order can be one party to the other,
just saying, you're no longer welcome in my house.
It can be a sign that's posted outside.
And that turns criminal, absolutely violation of that
is a criminal.
But here, I think it's a unique statute
because it's a judicial civil order.
And normally judicial civil orders are enforced
by the judiciary and they can become criminal absolutely.
And certainly even enforcing a judicial civil order,
incarceration is appropriate
where the judge deems that it is.
-: So if there'd be equivalent of the 209A order
in the probate and family court,
would the right to counsel apply
in the probate and family court as well?
-: It should.
I don't think it would matter where the 209A is issued.
If, I think particularly in cases
where there's child custody
and I understand they're not ordered
in a divorce proceeding,
but the 209A is unique in that if the plaintiff asks
for no contact whatsoever, oftentime it is granted.
And I know the Commonwealth has argued well,
these are modifiable and they are, certainly,
but the defendant, who is indigent,
who can't afford an attorney at the first instance
is certainly not in a position to either hire an attorney
for an appeal or hire an attorney
to go to the probate court.
A lot of these stay in effect for the entire year
because the defendant, indigent defendant
just doesn't know what to do.
And I would point out that the burden of proof,
initially with these, is the plaintiff must prove
by a preponderance of the evidence.
In order to go back and modify these,
the burden is raised for any defendant.
It has to be by clear and convincing evidence
that there's been a change in circumstance
that no longer warrants the order.
-: For a modification?
I know we set that for a termination of the order.
But for a modification, you're saying that the standard
is clear and convincing evidence?
-: Yes, that's my understanding, yes.
The clear and convincing for a 209A
for the defendant to come and change the 209A.
Yes so where there's two different standards
that the defendant obviously is in an uphill battle
in these.
-: George, are you done or?
-: I am, thank you Justice Kafker.
-: Can I ask you to address the amicus brief?
Doesn't that idea provide you all the necessary protections
and avoids what is, would be almost an astronomical cost
and operational problem with getting counsel
on all these cases.
I assume we're gonna have, the state's gonna have to pay
for all those counsels.
So wouldn't the proposal that appears
in the amicus brief provide you the necessary protection
without that cost.
-: I apologize, which amicus brief are you?
-: The, I think it's the CPCS amicus brief,
which talks about use immunity.
-: Oh yes, yes.
That's another option, which these amicus briefs are great,
because they've all suggested different.
-: Would that option provide you, is there anything
that option wouldn't provide you with
that you're concerned about.
-: Well, that would certainly address the problem
with the fifth amendment and speaking
and incriminating yourself because in order
to defend yourself for the 209A,
you might incriminate yourself on any open
or not yet filed criminal procedure.
But I don't know, proceeding rather,
I don't know that it would address all the other problems
as far as child custody
and second amendment removal of firearms problem.
-: Well, your first argument, if I have it right,
is that it's, as you were just, I think referencing,
the implications of the order are so significant
that there should be a right to counsel
and I think the Women's Bar Association
and the BBA pick up on that as well.
But isn't this different than when we've had
right to counsel before on the civil side where,
the state's not involved as the party
when the judge is deciding whether or not
a 209A order should issue.
It's not like for instance,
the termination of parental rights.
Does that matter?
-: Well, I don't know that the state necessarily has
to be a party.
I think there is state action for certain,
whether or not the state is a party.
-: Well, I should ask it a different way.
Do we have any circumstances where we have ever said
that there is a right to counsel?
The United States Constitution has been interpreted
as a right to counsel in a civil case
where the state's not a party?
-: No, not a sixth amendment right to counsel.
Here, certainly the victim witness advocate
while they do not represent the plaintiffs in these cases,
they are a, you know, they are part of the Commonwealth,
part of the prosecution in this case law
that supports that the part of the prosecution.
-: But they're not,
they're not part of the petitions on the grands.
They're not part of the petitions on a grand scale.
You might have a victim witness advocate participate
if there's a corresponding criminal case
that comes out of the underlying conduct.
But the vast majority of people that come in
to petition for 209A, don't get the assistance
of a victim witness advocate.
-: Well, the state enforces the order.
So I would say that the state is,
becomes the enforcer of any of these orders.
I mean, there is, in my, I believe adoption of Megan,
that was a private adoption, guardianship of BV.
That's a petition to guardian of a minor.
These attorneys were appointed in these cases,
or it was found that attorneys were necessary,
rather in these cases where the state was not a party,
but I would argue that at least the prosecution
participates.
And in, I mean, I practiced
in Lowell district court regularly.
And in every 209A there was a victim witness advocate there
who helps the plaintiff with the paperwork
and was present in court in support of them.
-: When they come in at like 4:20 in the afternoon.
Are they still there then?
-: If they're available?
Yes, it's my understanding that the clerk will call
the victim witness advocate, who will come
and help them fill out the paperwork.
-: I have one other question and that's related to the,
I understand you're arguing the harm is ultimately
in the fact that he could possibly go to jail
or go to prison for violating the restraining order.
In this particular case, what bills flowed
other than the mere issuance of the order,
not the mere issuance, but what,
did he say something that was used against him later?
What came out in the original proceeding
that caused him a problem later,
other than the issuance of the order.
-: Nothing was introduced as far as, you know,
in evidence that the defendant might have said at a hearing.
So he was present at the hearing.
I didn't represent him at the hearing,
but there was nothing used in his trial against him
if that's your question.
He was ordered automatically to vacate housing unit,
where he was, where he lived.
So he immediately had to leave.
-: Now these provisions that you're referencing
were put in by the legislature, correct?
-: Which provisions?
-: Well, the ones in the 209A law like get out of the house.
Jennifer: Yes.
-: Get rid of your guns, those thing,
-: Yes.
-: The legislature put them in.
-: Did the legislature add any other protections
before that or see, or what did they do to protect,
to protect somebody from having that done irrationally?
-: Not much, your honor.
I think.
-: And why do you think that was?
-: Well, because obviously the state interest
or the Commonwealth's interest is in protecting a plaintiff
who is being abused.
Judge: Right.
-: So, and I recognize that and I understand
that that is a huge interest,
but they essentially say you can come back in 10 days
and fight it.
-: Do you know whether the domestic homicide rate
has gone down in Massachusetts since we've had these orders?
-: I assume it has your honor.
I don't know.
I don't know the answer to that,
but I'm assuming that, they are effective
and I'm not, certainly not arguing
that they're not effective.
They absolutely are.
But in this first instance, I mean it's issued part ex parte
and the police officer will go
and serve this order upon someone.
I had an instance where the defendant was intoxicated,
you know, on a two day bender and they give him the order.
He went back to get his property and he was arrested.
There might be an individual who's incompetent.
And this is in the defendant.
And this is the back to the argument of it being civil,
at least in the first instance,
that the person might not understand that.
And the judge wouldn't recognize that until the person came
before him.
There's obviously,
if the person commits an independent criminal act,
threatening someone, is hitting someone, anything like that,
they're gonna be charged criminally.
So I think that the problem here,
at least from the defendant's perspective
is that it's a civil judgment that turns criminal
automatically without the right to an attorney.
And yes.
-: If I could please.
So when we look at the Mathews versus Eldridge factors
in determining due process,
and we're evaluating the risk of erroneous deprivation,
do we consider that as it relates to the particular hearing
that's taking place,
whether or not the 209A order should be extended
from the ex parte or from the initial,
or are we taking that Mathews factor down the road
to a proceeding that hasn't occurred yet?
-: Well, I think you can look at it.
I mean, obviously you can look at it in both instance
because one informs the other,
but in the initial hearing,
certainly weighing those factors that, I mean,
we understand obviously the Commonwealth's interest,
obviously protecting individuals who are victims of abuse.
But I think if you look at the initial hearing
with the burdens of proof that the defendant really,
it takes a huge risk by saying anything
in defending these orders.
The fact that they're not lawyers,
they're not used to cross examining someone.
I think that it comes on the side of appointing counsel.
And I know obviously, and I don't blame the court,
but that this is obviously,
an issue for the court is the cost, right?
Of litigating or appointing all of these attorneys
for defendants and 209A cases.
But I mean, if you look at it, if there's no attorney
that is appointed in an ex parte case, obviously
because they've never met a defendant,
so they can't begin to represent someone they've never met.
A lot of these plaintiffs, some of them do not come back
after the initial order is entered.
So for those people,
an attorney would not have to be represented.
-: Question, because one thing I noticed when I was
in practice years ago, and we had divorces,
the introduction of attorneys, often drag things out
and make things worse.
Is that, you're saying she doesn't come back
the second time, now if everybody's getting a lawyer,
maybe she will.
I mean, could it not make this worse?
-: Well.
Judge: In terms of the litigation?
-: I understand and it depends on the attorney
as far as dragging things out.
I completely agree with you.
If the defendant is appointed an attorney, I'm just,
I'm talking about the cost analysis.
I don't think affording the defendant an attorney
would make it more or less likely for the plaintiff
to come back.
But if the plaintiff was afforded an attorney, yes,
it might make them more likely to come back,
which if they need the order, I think that's a good thing
obviously.
A lot of these.
-: In a better world, we'd have a lawyer in housing,
in divorce.
We have huge numbers of important legal proceedings
that are now being done pro se.
-: I, yes, I understand that a lot...
-: Is this, is 209A different from the fact
that you can lose your house or your marriage can end
without us requiring representation.
I mean, you're,
this is that, you're crossing that big civil criminal divide
we have here.
-: Well, I understand that, but this, the 209A
doesn't just deal with housing.
It deals with so many rights.
It deals with constitutional rights.
It deals with, you know, surrendering firearms,
second amendment rights.
It deals with, you know, custody and contact
with your children.
One day without being able to speak to your children.
It's a big deal to people.
A lot of these cases,
they arise because there is an underlying criminal case.
So the defendant is charged with say assault and battery,
and the victim is there and getting a 209A
at the same time.
And essentially what is happening in the courts
is that the judge will essentially tell
a court appointed attorney, okay, step back,
step aside for the 209A.
Tell the defendant, you don't have a right to an attorney.
You have a right to an attorney.
This attorney is not representing you.
Do you want to speak?
And then the court appointed attorneys steps back in
for the arraignment.
So a lot of these cases, you wouldn't necessarily need
an additional court appointed attorney.
It really doesn't make sense for this attorney
to have to step back for the 209A
and then come back in for the underlying arraignment.
But that's essentially what happens,
I think is 209A.
-: Counsel, I'm sorry.
It appears your time has expired.
So if there are no other questions.
-: I have one other question.
And that is what are other jurisdictions
and the federal government doing in this area?
-: I think the,
one of the amicus briefs address that I think New York City,
I'm sorry, New York State is the only state
that allows representation, court-appointed indigents
by right.
I think.
-: For their initial request.
-: There's another state with.
I'm sorry.
-: For the initial request, for the order,
for the emergency order.
-: Yes.
Well, obviously I don't believe
it's added in ex parte stage.
-: Okay but so then for the second one, I mean.
-: Yes, exactly.
And there's another jurisdiction who allows them
for juveniles and again.
-: And they could appoint them.
Jennifer: Yes.
-: And do they have a procedure to determine indigence?
-: I don't know that.
I'm assuming it's the same procedure that courts use
in whatever states.
-: Okay, thank you.
Jennifer: Thank you.
-: Thank you, thank you chief.
-: Okay, Attorney Tretyakov.
-: Good morning. Madam Chief Justice, may it please.
The court Konstantin Tretyakov, Assistant District
Attorney for the Middlesex County District Attorney's office
representing the Commonwealth.
There are three issues on this appeal.
Two of them concern the trial judge's rulings
on the defendant's motion for a mistrial
and limiting the scope of the victim's testimony.
The third issue concerns the propriety of the motion judges
ruling who also was the trial judge
on the defendant's pretrial motion to dismiss
on constitutional grounds.
With the permission of the court.
I will focus on the third issue.
And then if the court has any questions,
or if there is time left,
I address the remaining two.
With respect to the right to counsel at 209A hearings,
it could conceivably stem from three grounds.
One is the statutory grounds that the defendant mentions
in his brief, the statute about sex offenders,
the statute about involuntary civil commitment.
That is not available to the defendant.
None of those statutes would apply by analogy
to the defendant's situation.
So that reliance is misplaced.
The second basis is the sixth amendment.
That also in this case avails the defendant of nothing
because this court has repeatedly declared
that the sixth amendment rights are only available
at the critical stages of prosecution.
And as this court also explained,
prosecution is a term of art and it only refers to events
or actions after arraignment or after indictment.
It is axiomatic that the 209A hearing, it is a civil
proceeding between two private parties.
There has been no indictment.
There has been no arraignment
for a violation of a restraining order at that stage
because the restraining order is just being issued
or may be issued at that hearing,
which does not always happen.
So the sixth amendment right would not be applicable
to the defendant as well.
And then finally, the due process.
The guarantees of due process can command that the defendant
be afforded the right to counsel
and under the due process guarantees,
this court has sometimes found the defendants,
the right to counsel for the defendants in civil proceedings
between two private parties.
And sometimes it hasn't.
For example, in the Birch Hill case from 2009,
this court unanimously ruled that
in the civil contempt proceeding,
the defendant as a measure of due process
can hire his own private counsel, but he can,
but there is no right to counsel
at the expense of the Commonwealth.
In other context, for example,
in the termination of parental rights,
this court has found the right to counsel
for the defendants but I think, for the parents, excuse me,
for who are facing the termination of parental rights.
But I think it is important to keep in mind
and to recognize the context
in which that pronouncement was made
and those termination of parental rights
in adoption proceedings.
Because my understanding of the Massachusetts law
is that once the statute,
once the consent of a biological parent,
that requirement has been dispensed upon,
the parental rights are terminated,
and the child finds a new family that becomes irreversible.
There is no way to restore parental rights once they have
been terminated in Massachusetts,
that is the end of the line, so to speak.
And in that context,
this court recognized the terrible loss,
that the possibility of the loss,
the magnitude of the loss
that a biological parent is facing.
And they recognize that.
-: The issue is the intersection with criminal,
the intersection of the civil and criminal proceedings here,
that they're, one leads to the,
one can lead to the other.
And even the actual, factual allegations can result
in both, you know, civil, the 209A order and the, you know,
assault and battery or the various criminal actions.
And I think the point is that if the defendant's
up there talking, he may be, you know, creating problems
for his criminal case.
So how do you address that?
-: Yes, your honor.
I think it is important to keep in mind that the,
I understand the interest in the court
and the global implications of this matter.
But if the court looks at this case itself, the order,
actually, there was no issue of the custody of the children.
There was no issue of termination of,
or there was no issue of visitation.
There were no none of this issues.
-: And the defendant didn't testify.
Did the defendant in the 209A proceeding,
he represented himself.
Did he put on evidence?
I mean, how did that go?
-: I do not know, your honor.
I even do not know.
There is no record whether the defendant even asked
for the assistance of counsel during the 209A hearing.
-: I understand he didn't ask for it,
but he may not understand the,
that's why he may need counsel.
Konstantin: Pardon, pardon me.
-: I apologize, the mask again.
The issue, I think raised particularly by the amicus,
the interesting issue is
are you subverting your criminal case
in the 209A proceeding?
We may not have to deal with that based on,
I think what opposing counsel just said,
which is there wasn't anything in the record, is that right?
That there's no issue that he said anything
in the 209A proceeding that could hurt him
in the criminal proceeding,
or we just don't know what he did.
-: I believe that none of that was ever used
at trial if there was anything,
but the record is completely silent.
There is simply no record to conclude one way or the other.
We do not have the transcript of the 209A proceeding.
There is no indication that the defendant actually
asked the court for the assistance of counsel during the.
-: But counsel, considering the fact that the person
on the other end of this is like,
has a chance that they could violate something
they don't understand, in a way they don't understand,
almost accidentally even, what's, and could end up in jail.
What is the harm in giving an attorney?
-: Your honor, I would respectfully frame that you should ask
to not what is the harm of giving an attorney,
but whether the defendant is constitutionally entitled
to the right to counsel,
and that of course requires the application
of the Turner, Lassiter, and Eldridge line of cases.
-: Right, but we, didn't we just do something similar,
well, never, we didn't.
Nevermind, go ahead.
-: My apologies, your honor.
Thank you.
Judge: Oh no, you're good, I was wrong.
-: So, and the three factors that these cases all command
to consider as this court has recently acknowledged
and acknowledged in the Grullon case
is the nature of the affected private interests,
the comparative risk of erroneous deprivation
of those interests with alternative
or substitute procedural safeguards
and the countervailing interests at stake and here.
-: Going back to the question I asked Ms. O'Brien,
as it relates to the second factor,
the risk of erroneous deprivation of that interest,
and what substitute proceedings might provide
for safeguards.
Has that provision of Mathews versus Eldridge,
ever been interpreted to analyze
not the actual proceeding in question,
but the implications of that proceeding
for another proceeding?
-: Not that I'm aware of, no, your honor.
I think the,
my reading of the Turner case
and my reading of the Grullon case
that applied the Turner framework was
that both the Supreme Court of the United States
and this court were focused on the procedure at hand.
And here, I think there are ample procedural safeguards
that ensure that both plaintiffs and the defendants
have equal access to the abuse prevention order proceedings,
and that, in response to Justice Cypher's question,
they understand the results of those orders.
For example,
there is the requirement of the notice to the defendant.
The defendant has the opportunity to respond.
There must be an explicit finding of the fact
that there is a likelihood there is abuse
or substantial likelihood of abuse for an order to issue.
So, in all these factors,
the court sided approvingly in Commonwealth against Grullon
but the statute and the applicable guidelines
for the judicial practice
and abuse prevention order proceedings that were cited
by this court approvingly, multiple times,
they also provide additional procedural safeguards
for the defendants, the burden of proof relies solely
with the victim.
The defendant doesn't have to prove a thing.
That burden of proof is the preponderance of the evidence.
After the, if the order is issued, after the hearing.
-: Why don't we decide counsel whether these procedures
are enough to satisfy due process.
I understand there are procedures.
Konstantin: Yes, your honor.
-: Is it enough?
-: Yes, your honor.
I believe so because.
-: No, but what's the measure, of course you believe so.
That's what side you're arguing.
What is the metric that I should use
from a legal perspective to figure out
whether or not the procedural safeguards are enough
to guarantee due process?
-: Yes, your honor.
I think there are two helpful considerations here.
One is this court recognized most recently,
I believe in the Caruso case,
the overarching purpose of the 209A chapter
and all these proceedings is the safety of the plaintiff.
That is, I think the fundamental concern
through the lens of which all the defendant's arguments
and all the Commonwealth's arguments about due process
need to be evaluated.
And second of all.
Judge: That can't be right.
Judge: Oh yeah, that can't be right.
-: That can't be right
'cause you've got the defendant's interests
of being wrongfully accused and losing, you know, all the,
including the constitutional rights
we were just talking about.
So it's, I mean, it's the Matthews vs. Eldridge
balancing test but it's both sides.
It's not just the plaintiff.
-: Your honor, I would then in response
to Justice Wendlandt's question, again, I would,
it is admittedly hard to pinpoint the precise measure
as if there was a scale.
But I do think that this court's jurisprudence,
especially the Grullon case, where the court cited,
approvingly certain procedural safeguards put in place
in a child support proceedings,
all of which again are present in the abuse prevention
order proceedings and the additional procedural safeguards
that the guidelines have.
They all, I think, counsel towards the conclusion
that those additional procedural safeguards,
along with the two other factors
under the Turner line of cases,
they all support the conclusion
that there is no due process right
for the assistance of counsel.
Take the nature of the affected interest, for example.
In this case, what were the interests
that were actually affected by the order?
-: Right, I know in this case, maybe it's not such a,
you know, you'll say the interests were not that large,
but in other cases, there is the custody,
the not the termination of parental rights,
but certainly custody determinations.
There's of course the second amendment rights.
And what if those were implicated.
-: Your honor, with respect to the second amendment rights,
my understanding is that at least
at the federal jurisprudence level, if there is a specific,
constitutional provision available to the defendant
that specifically protects those interests,
he or she can not rely on the general generalized notion
of due process.
So I'm not sure how that would interplay,
but even putting that issue aside,
I think it is important to underscore
that all these abridgments,
all these limitations on the defendant's rights
are temporary because by virtue of its
-: So you have a child and temporarily for a year,
you don't get to see, touch, hear, interact with that child.
Konstantin: Your honor.
-: You're saying that's not a due process violation
without counsel.
-: Your honor, I do not, I'm, well, again,
this is certainly not the case here, but.
-: I'm asking about a different case.
The next case, the hypothetical,
where I have a child and I have a 209A issued against me
because I don't have counsel.
And I said some things, and you're saying that the,
these other safeguards are enough.
And I'm wondering, how do you measure that?
-: Your honor, in that hypothetical case,
the defendant can petition the court that issued the order
at any time.
And if that defendant presents the proof
by either preponderance of the evidence
or clear and convincing evidence standard,
that order can be amended, or it can be terminated
by the court.
-: Right and I guess the question for me is, yeah,
I understand that there's these burdens of proof,
and I am understand that you can modify the order either
by clear and convincing or preponderance,
once you figure out which one it is,
why don't I get counsel for that?
I want my kid back.
-: Your honor, again, in a similar, well,
it's not a perfect analogy, but in the Birch Hill case,
this court, and that can,
that case involved civil contempt for which the defendant
actually was incarcerated for his failure to pay a debt.
And this court, in that case,
unanimously ruled that as a matter of due process,
in that case,
the defendant should be advised
that he can hire his private attorney.
And, but there was no indication of the right
to the assistance of counsel
at the expense of the Commonwealth in that respect.
And I also think that the question that,
the factor that your question, your honor, focuses on now,
the first factor,
I think it should not be taken in isolation.
It should be taken together with other relevant factors,
including, like I said,
the additional and alternative procedural safeguards,
which I would submit amply ensure that the defendants
have access to those proceedings equal with the victims.
And they understand what the order says.
-: Counsel, may I ask you one question in terms of looking
at legislation overall,
why do you think the legislature did not include a provision
for an attorney at this stage?
-: Because your honor,
that goes to the third factor in the Turner line of cases,
the countervailing interests at stake, the providing of,
for the attorney,
and this is what I believe Justice Gants was concerned about
in his concurrent opinion of the Grullon case,
will create an immense assymetry of representation.
Because if that is done, then the alleged victim
who bears all the burden of truth is not represented
by anyone during the hearing.
-: But isn't the solution to that
is that they both get counsel as the WBA contends?
-: Your honor, I would believe that that would incur
significant expenses on behalf of.
-: Aside from expense and wouldn't would,
is there another issue here with regard
to how long this process could end up taking?
Is there an expediency issue that's involved?
-: Yes, your honor.
And this is also another concern that the Turner court
expressed when they said that the introducing counsel
into those proceedings can create delay
and introduce a necessary degree of formality
that the proceeding,
that will make the proceeding less fair overall,
especially for the victims in this case.
That said, your honor, if this court finds,
which to be honest, I believe it should not,
that there is the right to counsel for the defendant
then to avoid that assymetry of representation.
I think it would be fair also to afford the same right
to counsel to the plaintiffs
in the abuse prevention order proceedings.
I see that my time is up,
unless the court has any further questions,
I shall rest in my brief.
-: Okay.
You didn't get a chance to respond to the question
about the amicus brief that suggests that maybe another way
to look, to deal with this is, is use immunity.
-: Yes, your honor.
I'm happy to do that now.
Although I would, at this point, ask the court
for the relief under rule 17B, Madam Chief Justice.
If the court is amenable to that,
if we could submit something in writing to the court,
and if the court grants that relief,
I would concede that it should be reciprocal
for the defendant and the Commonwealth, of course.
-: Okay, why don't you do that?
Why don't we have you submit something
and of course the defendant can respond.
Konstantin: I appreciate that your honor.
-: Okay.
Konstantin: Thank you very much.
-: Thank you.