Bailiff: SJC-13206,
Malikai Nicholas-Taylor v. Commonwealth.
-: Okay, Attorney Celli.
-: Good morning, Your Honors.
May it please the court, Melissa Allen Celli
on behalf of the juvenile defendant,
Malachi Nicholas-Taylor.
Also with me on the live stream
are attorneys Jason Benziken and Maura Barry.
This case, simply put,
is about a superior court judge's discretion
in matters of pretrial detention.
It is not about the jurisdiction of a juvenile court,
nor is it about the jurisdiction of a superior court.
A superior court judge is in the best position to determine
whether a juvenile defendant should remain in the custody
of the Department of Youth Services after his 18th birthday,
or whether that juvenile defendant should be transferred
to the custody of the sheriff's department.
And where the juvenile defendant,
like Mr. Nicholas-Taylor, in this case,
is charged with both murder and non-murder offense,
no statute, nor any of the cases
interpreting the juvenile code
precludes the superior court from doing just that.
The applicable statute here
is General Law Chapter 119, Section 68,
and Section 68 contains two paragraphs that are really,
they can't be reconciled with one another.
The first paragraph, in a situation like this,
where a juvenile is charged
with both murder and a non-murder charge,
under the first paragraph of Section 68,
on the non-murder charge, the statute reads
that the court shall commit the child to DYS,
but under the last paragraph on the murder charge,
the statute reads that the court
shall commit the child to the sheriff's department.
And we know that the language in the last paragraph,
a person charged with murder in the first or second degree,
does not mean every single juvenile charged
with murder in the first or second degree
is automatically held by the sheriff pretrial.
For instance, right now, we have a situation where,
if a child has a pending delinquency charge
or a youthful offender charge in the juvenile court,
the juvenile is frequently held for the duration
of the pending juvenile court case in DYS custody,
while released on recognizance in the murder charge
in superior court.
This is something that happens right now.
The defendant's interpretation of this statute,
allowing a superior court judge the discretion
to hold the juvenile on either the murder charge
or the non-murder charge,
really, it maintains the status quo,
as things were prior to the court's decision in Soto.
Prior to Soto, when the statute was enacted,
we didn't have this problem of the two separate paragraphs
coming into conflict, because-
-: I don't, Ms. Celli, respectfully,
I don't understand what you just said.
It's the status quo before the SJC did something in Soto?
-: I'm sorry,
I'm sorry for the confusing language.
The status as it was
at the time that the statute was enacted.
-: But what you're asking, and with all due respect
to what the superior court judge wants to do,
you're asking the court to just ignore the fact
that the person's been charged with murder.
I mean, the statutes involved in DYS
are supposed to protect not only the juvenile,
but all the other people
that are held in the DYS facility, right?
'Cause we don't want people
that are adults charged with murder with kids.
Obviously, right? -: I think that's right.
That's right,
but there are a few moving pieces to that question.
The first is that,
as of,
to read the paragraph,
I believe you're looking at Section 68,
the last paragraph, you would have to read that in isolation
or insert additional language referring to the entire case.
As it stands right now, there are two different paragraphs
that would apply differently and require different outcomes
in that same statute.
So reading the statute as a whole,
it's not that the court is ignoring
that the child is charged with murder,
it's that the court is in the best position to determine
whether this particular child,
given these particular circumstances,
is better served, pretrial, by the way,
before any adjudication of guilt,
before we know whether this child
will ultimately be treated as an adult or as a juvenile,
is in the best position to determine
whether that child should stay in the juvenile court,
excuse me, in the Department of Youth Services,
or to carry on.
And the second-
-: Ms. Reading's interpretation
was an attempt to be faithful
to the the statute that protects the other kids, correct?
-: So, yes, I think that that was her intention.
However, I don't think that that is a fair reading
of the Juvenile Justice and Delinquency Protection Act.
The JJDPA has,
really puts it onto the state court,
the state legislature and court,
to determine who is and who is not an adult inmate
for purposes of that statute.
The question here is, if a judge,
if a superior court judge,
is a court of competent jurisdiction,
which can place a juvenile in DYS detention,
then that juvenile is no longer an adult inmate
under the JJDPA.
-: How do you get beyond the Soto language?
-: Which language specifically are you referring to?
-: That the court shall be treated as
an adult for all purposes, or whatever that language is?
-: So, there are a lot of responses to that.
First, that language came directly
out of the concurrence in Walczak,
the Lenk concurrence in Walczak.
So I think it's instructive to look back
at what was happening at the time
that the language was coined in Walczak.
At the outset, this court's decision in Soto,
a court's decision about a rule of judicial economy,
and by the way, the Concepcion case makes it clear
that the statute being interpreted in Soto,
Section 74, not Section 68, which is at issue here,
Section 74 is solely about judicial economy.
Concepcion made that abundantly clear.
A court's decision about a rule of judicial economy
does not change the underlying fundamental rights
of the juvenile defendant.
And let's look back at what was happening in Walczak
at the time that Justice Lenk penned that phrase.
In the Walczak decision, in the Walczak case,
there was only a murder charge at issue.
We weren't looking at two different charges,
so we were just looking at the murder charge at that time.
And moreover, at the time that Walczak was penned,
it was pre-Diatchenko, just post-Miller, pre-Diatchenko.
So, at that time,
a juvenile who was indicted on a murder charge,
yes, was treated as an adult, for the most part.
The only sliver of additional protection
that the juvenile got was that life sentence
without possibility of parole, at that point,
was already unconstitutional.
But at that time, when we were talking
just about the murder charge, yes, that was true.
But now that we know that that's not true,
and in fact, the Soto decision
makes clear that that is not true,
because if this child goes forward
at the time that we're discussing in the pretrial phase,
the child is really in liminal phase.
We don't know whether he will be an adult
for all purposes or not.
And as the Soto decisions, and by the way,
the statute, 119 72B, makes perfectly clear,
if the child is ultimately acquitted of murder
and convicted only of a non-murder offense
or a lesser included offense,
that child gets all of the protections back at sentencing.
That child is sentenced under 119 58, as a child.
So we know that the child is not, in fact,
treated as an adult in all respects.
And that language, when Justice Lenk penned it,
was, in my reading intended to give a lay
of the statutory land at the time,
not to provide new,
not to pronounce a new rule of law.
It was observing what was happening.
It wasn't intended to take away juvenile's rights.
And I do see that my time is running out here, but,
at the time of that case,
it was, in fact, much more like,
oh, and by the way, also the Walczak decision itself
shows us that juveniles
are not treated like adults in all respects.
They are provided additional protections,
even if we're just talking about the murder charge.
And here, what I want to really bring home
is that the superior court is the one
that's in the best position to determine
whether it thinks that, ultimately,
this child will end up in a DYS facility.
And the last thing that we want
is for a child to go to adult lock up
and then back to DYS, which is a possibility
under any other interpretation.
And I see my time is up.
-: Thank you very much.
Melissa: Thank you, Your Honor.
-: Attorney McLaughlin?
-: Good morning.
May it please the court,
Assistant District Attorney Laura McLaughlin.
Where the legislature explicitly and clearly intended
for juveniles charged with murder to be treated as adults
for the totality of their criminal conduct,
the 18-year-old defendant must remain
in the custody of the sheriff and be detained
pending trial in a house of correction.
Mr. Nicholas-Taylor is not a child.
He is an 18-, almost 19-year-old criminal defendant
who has been charged with murder.
The offenses have been properly joined.
It's notable that the defendant
has not challenged joinder as improper,
and it should be particularly noted
that the armed assault with the intent to rob
occurred within seconds prior to the murder.
The offenses are very closely related,
and pursuant to Soto, were properly joined,
and both offenses are proceeding in Norfolk Superior Court.
Looking at Chapter 119, Section 68,
the legislature specifically divested DYS of authority
over defendants charged with murder,
stating that they shall be committed by the superior court
to the custody of the sheriff.
At all times, this defendant has been held
in the custody of the Norfolk Sheriff.
The defendant was only placed in DYS initially
prior to turning 18
as a courtesy to the sheriff's department,
because there is no house of corrections
in Massachusetts equipped with maintaining
separate sight and sound separation of juveniles
from adult inmates, as required by federal statutes.
Upon turning 18, the defendant was to be transferred
to the house of corrections
as separate site and sound separation-
-: Attorney McLaughlin,
why wouldn't the superior court judge have the discretion
to set bail on the juvenile matter
and have the person be held in pretrial,
in DYS custody pretrial?
Isn't that an option?
-: No, because the charged murder offense
commits him to the custody of the sheriff.
-: But the judge could not set bail on murder.
The judge could not set bail on a murder for an adult.
-: Absolutely, Your Honor,
and I would note that the bail judge
knew the facts and circumstance of the case,
knew the potential penalties the defendant does face,
and it was in her judicial discretion
to hold the defendant without bail.
She could have imposed a cash bail.
She did not impose a cash bail.
Further, bail is typically set on the criminal case,
not on separate indictments,
so there's one criminal docket in Norfolk Superior Court.
The defendant was directly indicted on both offenses.
There was never any transfer proceedings
or any juvenile complaints that were initialed,
that were commenced in the juvenile court.
The Commonwealth-
-: But you see what I'm saying about?
Pretend this was,
this person's 35 years old, okay?
And they come in charged with murder,
and under Vasquez, the judge could say, you know,
I know, usually, people charged with murder
are held without bail, but I'm not going to do that.
I'm gonna set $10,000 bail or whatever.
The judge could do that, right?
Laura: Yes.
-: Okay, so then why can't the judge, in this instance,
say I'm not gonna set bail on the murder case.
I'm gonna put everything on the non-murder charge,
so they get to DYS pretrial detention?
Why isn't it within the judge's discretion to do that?
-: Well, I would say the distinction is
that there's only one criminal docket.
It's not-
-: Well, I mean, I might disagree with you.
I think it might be different practices
in different counties, but, you know,
people set bail on counts on indictments.
And usually, you set bail on the highest charge
and the other ones just kind of follow along,
but there's nothing to preclude a judge
from setting bail on one count and not on others.
-: Well, I would say that
that would skirt the legislature's intent
to treat these individuals as adults
for the totality of all of their conduct,
and further would run afoul to the bail statute
in concerns for public safety,
because, in those situations, you would be committing
or housing someone charged with murder
with other juvenile offenders,
and I'd call Your Honor's attention to the Amicus letter
submitted by DYS that explains that,
upon turning 18, the defendant is not an adult,
that upon turning 18, the defendant is an adult inmate,
and continuing to house him in DYS
would run afoul to the federal mandates
that require sight and sound separation,
because now you have an adult inmate
with juvenile offenders.
And he did commit a very serious offense and is,
excuse me,
was charged with a very serious offense of murder,
that the legislature has explicitly intended that,
when a juvenile commits murder,
that they are to be treated as an adult,
the totality of those conducts
and all criminal offenses that have been properly joined.
-: Attorney McLaughlin, what would happen if, instead of
putting the defendant in the DYS,
they gave him or her pretrial probation
and other conditions with the bail?
Would that be okay?
-: That would be at the discretion of the bail judge.
If the bail judge determined that,
based on the facts and circumstances and potential penalties
and all factors that a bail judge
pursued to the bail statute. -: Understood.
-: That would be appropriate,
and within their judicial discretion,
with the commonwealth to that, likely,
but that would be within their discretion.
-: So you're saying,
you're saying that you just can't,
the judge does not have the discretion
to deliver to the custody of DYS
a 18-year-old who's charged with murder.
-: Yes, under Section 68,
the statute does not grant the judge
any authority or discretion.
It explicitly says if a juvenile is charged with murder,
they shall, they must be committed to the custody
of the sheriff if they are unable to post bail.
So this judge decided to hold the defendant without bail.
If she wanted to impose a cash bail,
that would've been within her discretion,
but where the defendant is unable to post that bail,
he's committed to the custody of the sheriff
and shall remain in the custody of the sheriff
pending trial.
And if there are no further questions,
I would rest on my brief,
as well as the Amicus letter
submitted by DYS in this matter.