-: SJC-13243. Commonwealth v. Jerome Jarrett.
-: Okay, Attorney Visone?
Visone: Yes.
-: Good morning, if it please the court,
Joseph Visone for Mr. Jarrett.
Creighton, in footnote 16, said that
the decision in Creighton was based
not on constitutional principles,
but just the fundamental fairness and justice.
And my position here is that
nothing can be more unfair or unjust
to violate somebody on their probation,
especially if they're doing very well, okay?
And violate it based on
an unreliable first time in-court identification.
You know, a hypothetical would be somebody's convicted
and he's on probation,
a condition of probation is that he complete a drug program
and he's completing it,
and he's doing- -: Counsel, may I ask you-
-: Yes. -: Why wouldn't
because it's post dispositional, right?
The hearing is post dispositional.
Why wouldn't we overlay the same kinds of requirements
that we do for hearsay evidence
when it comes to the identification, instead of...
You know, you're looking at the fundamental fairness of it.
Well, there are plenty of instances where
there would be hearsay evidence
that wouldn't be allowed at trial
that we do allow at revocation hearings
because it has certain indicia of reliability.
Why couldn't we do that with the same thing here,
where there were other factors
that might have informed the, pardon me,
the probation judge's determination of whether
it was fair or not or a good enough identification.
-: Well, as I addressed in my brief, your honor,
I didn't think there was
a substantial indicia of reliability
of the hearsay evidence.
I mean, basically no one ever identified my client
as the person who sold drugs.
-: I'm not saying that,
but there were other factors that went into that, right?
There were other circumstantial...
There was other circumstantial evidence
that you could connect the dots if you're not the advocate.
-: Yeah. I mean, yes.
I mean, I would agree.
It's not the strongest case in the world.
I mean, I'm not gonna sit here and tell you that this is,
you know, a slam dunk, okay?
Very few things are slam dunk these days.
(justices laughing)
But in any event, you know, all you had from Mr. McCarthy,
who was the purchaser,
and the only other factor that the police officer had
is that they knew Mr. Gomes
was a drug user and a drug dealer, okay?
So they, you know, say,
"Well, maybe there's something going on here,"
but as Officer Rivera said,
"I never saw anything exchanged from one person to...
I never saw money being exchanged, handed from, you know,
Mr. McCarthy or his compatriot there
to the tall thin man in a red shirt,"
and so that's all you have.
I mean, the police officer was very candid
during the probation hearing when he says, "I can't,"
or she, "I can't really say that what I observed
was a drug transaction," okay?
If she said the opposite, if she says,
"No, I saw money, saw him countin' it out,
I saw a little packet being given to him,
I recognized the packet, that's the way, you know,
that you package this kind of drug,"
then I wouldn't be here,
but that's not what you have.
I mean, you say a tall, thin African American man
in a red shirt.
Well, what's tall?
For me, everybody's tall.
(Visone laughing)
Okay?
Thin, I don't know, how do you define thin?
What's thin? Okay?
What you may think is thin, your honor,
it might be something very differently
than what Justice Gaziano thinks is thin.
So all you have is tall, thin African American man.
Now, this isn't in the middle of nowhere,
this is downtown Boston.
There's a lot of people
of all different racial characteristics.
Georges: But weren't there other factors
that went into the identification, though?
-: Only physical factors. He never said...
I mean, optimally, they should have taken Mr. McCarthy,
brought him to where they had Mr. Jarrett detained
and said, "Who's this guy? Do you recognize..."
"Oh yeah, this is the guy that sold me the drugs."
Wendlandt: Wouldn't you say
that's unnecessarily suggestive show-up?
-: I'm sorry, judge.
-: Wouldn't you say, then, wouldn't your argument then be,
"Well, that was an unnecessarily suggestive show-up?"
-: Well, it would've been, you know...
Yeah, unnecessarily suggestive, but in a situation here,
you have an in-court identification
that's equally or even more so
because you have a police officer who didn't see anything
that he could, or that she could characterize, excuse me,
as a drug transaction.
All we have is, you know, tall, thin African American man
with a red shirt, or was it a red coat?
You know, like that other case this morning
with the, you know, the parka.
I mean, it could be a lot of people
dressed like that in Boston.
Wendlandt: Wasn't there a man bun?
-: No, I think they said dreads.
I don't...
-: Dreads?
-: Dreads.
A tall, thin African American man with dreads and a either,
well, one person said shirt,
I believe the other person said coat.
Coat, shirt, it's pretty much
six of one, half a dozen of the other.
-: Can I ask you about the constitutional protections
in the violation of probation?
-: I'm sorry, I can't- -: The constitutional
protections in the violation of probation
because, obviously, these things happen quickly
and they're done before the litigation,
the full litigation, of the case
that puts them before the court, correct?
-: Right, right, right.
-: So there are situations where, say someone is arrested,
new offense on a drug case, search warrant,
they're violated on a probation,
then they litigate the new offense and they may win, right?
But they're still violated.
-: Yeah, but in the meantime, the guy goes back to jail
and loses his freedom, and his probation, which is...
See my point, your honor- -: But I guess the issue is,
if we're gonna extend Creighton to violations of probation,
why wouldn't we say,
"You can't have a violation of probation
'til you've finished the motion to suppress?"
-: That might not be a bad idea.
(judge laughing)
Quite frankly, but this is not the way it worked out,
and so, you know, in my hypothetical,
someone's doing very well.
He's gainfully employed, he has, you know,
doin' all the programs that he's supposed to do,
and then he gets violated, goes back to jail,
can't finish his program, soon as he gets out,
he goes back to drugs, maybe he overdoses,
takes too much fentanyl, and then that's it.
He's dead. How is that justice?
It's not.
I think all the decisions that the courts have made
in terms of, you know,
you get the full panoply of constitutional rights
in a criminal trial, you know,
we give you some constitutional rights in probation,
but we don't give you what you get over there, okay?
It seems that that the whole rationale is,
"Well, you've already been convicted, you're guilty,
and, you know, we're not gonna give you
all these constitutional rights because you're guilty."
Well, what's more important: putting somebody back into jail
who may, you know, be there because of an unreliable,
you know, in-court identification,
or is probation equally as important
because probation is designed to rehabilitate
so the person doesn't go out again and doesn't reoffend?
I mean, it seems to me the two are equally important.
-: So are you asking us to revisit Durling?
-: No, I'm just saying that the whole rubric behind...
You know, you got all of your constitutional rights
over here because it's a criminal trial
and it's a determination of guilt or innocence.
I get that, but you know, probation
and, you know, cutting down on recidivism is,
in my view, equally as important,
and therefore you should get,
if not more constitutional rights,
at least fundamental fairness dictates that you have,
you know, you short circuit, if you will,
the probation rehabilitation aspect,
and that gets short circuited.
-: I think your answer to Justice Wendlandt is yes.
-: I'm sorry.
-: I think your answer to Justice Wendlandt is yes.
-: So let's assume we're not gonna revisit that
and that we're gonna go with the system
that we currently have,
where you have lesser constitutional rights
because, you know, the keys to the kingdom
are in the defendant's pocket, right?
He's out through the mercy of the state
in allowing probation for all good reasons,
and so we're not gonna revisit Durling
or the Supreme Court's decisions in Morrissey v. Brewer
or Gagnon and...
Assuming that to decide
why would we extend Creighton to this proceeding that,
due process already has been minimized,
you know, sufficient, but less than a trial?
Because it seems to me the concept behind Creighton
in rejecting the federal rule that reliability is tested
under the totality of the circumstances,
we rejected that rule in Creighton because we wanted,
at trial, to have a more robust identification proceeding.
Why wouldn't we just, you know, for purposes of probation,
where there's a lesser due process interest at issue,
go back to the federal rule, where reliability,
which is the keystone of due process in probation
is good enough and we're gonna assess reliability
as the federal courts do
under the totality of the circumstances test.
-: Well, again,
I think it's because I don't think any of the courts,
you know, whether it's subjectively or objective,
subjectively realize that probation,
at least in my view, is just as every bit as important.
-: But that's why I started my question with,
"Assume for me, please, that we're not gonna revisit that,"
and that we're not gonna go with your personal view,
but we're gonna go with the jurisprudence
as it currently exists, and as it currently exists,
due process in connection with probation revocation
requires less rigor than it does at trial.
Why would we add this layer that Creighton added
for purposes of trial to identification,
to the federal rule, which is just,
"Is it reliable under the totality of the circumstances?"
-: Well, again, I think, you know, again,
Creighton was decided on fundamental fairness,
so just taking that phrase, fundamental fairness,
it's, to me, is extremely unfair
to take away somebody's liberty based on an arguably,
you know, unreliable in-court identification
for the first time.
That's pretty much it.
I mean, yeah, I understand
you don't get as many constitutional rights in a VOP
as you do at trial, you know,
not asking anyone to, you know, reconsider Durling,
but just in terms of just fundamental fairness
and how important it is to rehabilitate somebody, okay?
And once you violate them and put them back in jail,
that rehabilitative aspect of probation is gone
and it doesn't come back,
and the next time, when this guy, you know,
wraps up his sentence and gets outta jail,
for example, the hypothetical I posed to the court,
he's gonna go out and he's gonna do drugs again,
and God forbid, somebody gives him a hot dose
and that's it, okay?
And that all arguably, I mean,
there's no guarantees in life,
but arguably, if he had not been violated, the judge says,
"You know, I don't find that your in-court identification
is accurate enough for me, so I'm not gonna violate him,"
so they reprobate him and he goes back
and he finishes all of his drug rehab programs
and he's gainfully employed,
he does everything he's supposed to,
maybe he won't, you know, maybe he won't do drugs anymore
after his probation is over, and maybe he won't end up dead.
So that's where I'm coming from.
-: Counsel, what was the triggering charge here?
-: Sexual-
-: The triggering charge for the violation.
-: He was selling drugs to McCarthy and Gomes.
Gomes was a known drug dealer, excuse me,
and the police officers didn't know McCarthy.
They knew Gomes and they didn't know-
-: Right.
What was the underlying case
for which he was convicted and put on probation?
-: That was sex trafficking, I believe.
-: Okay.
So I guess I'm a little bit concerned.
Where is the concern about that he's gonna go out
and use drugs?
Is he alleged to be a drug seller?
-: No, I guess the reason we're here today,
correct me if I'm wrong, is,
are we gonna now extend Creighton, not just to Mr. Jarrett,
but for everybody else
that comes down the pipe. -: Sure,
but I guess the parade of horribles you're presenting to us
is that if we...
That he may come out and do drugs and die,
but let's get aside from that for a second.
Again, if you look to the totality of these circumstances,
and one thing you haven't yet talked about is
the quantum of proof, right?
I mean, are you asking us to revisit the quantum of proof
at a violation hearing?
-: No, no, no, no. -: So if it's more likely
than not, why isn't this enough?
Why is it unfair, fundamentally unfair,
when we have a more likely than not quantum of proof
to this proceeding for what happened here
to say that it's fundamentally unfair.
-: It's fundamentally unfair because I think, again,
probation is a very important thing.
-: It's not a a right, though, it's a privilege
because he could be doing a sentence.
-: Right, but again, as a society, what's more important:
having him do a sentence or having him not, you know,
go out again and commit a crime or kill himself?
What's more important?
Rehabilitation, that's not as important as, as punishment?
I think it's equally, if not more so
because you know, you can't unring the bell.
Once, you know, he's committed a crime that's it, right?
We wanna get him into a position
where he doesn't commit crimes in the future, okay?
'Cause the next time, it could be much, much worse.
Budd: Has he answered your question?
-: I think so, Chief. Thank you.
-: Thank you very much.
-: Thank you, Chief. Thank you.
-: Attorney Delattor.
-: Good morning, your honors.
May it please, the court Monica Delattor
on behalf of the Commonwealth.
Commonwealth is respectfully requesting this court
to affirm the revocation of the probationer's probation
and the commitment of the probationer.
I think, to start, is to say that, quite simply,
the ruling Creighton does not apply
to the facts of this case
as there was no in-court identification of the probationer
by an eyewitness of the crime that was committed here,
and quite plainly, in Creighton,
on the pages 241 to 242 of that opinion,
that rule only applies to in-court identifications
of a defendant by eyewitnesses
who are present during the commission of the crime.
Here, we have Officer Rivera as the witness who testified
at the probation revocation hearing,
she identifies the probationer,
provides the description that she had at that time
as being the person who she saw
entering into the corner mall,
which is where this incident occurred,
and then she identifies him
as the person that she arrested
at the end of this incident.
-: Well, I think the first part's important
because, usually, my understanding of Creighton is
it's not a problem if the police say, "Yeah,
this is the person we arrested in the armed robbery," right?
They're a non-identifying witness,
but if the police witness some offense conduct,
then Creighton kicks in,
so the entering into the corner mall part
would be part of the offense conduct, correct?
-: I think I agree with you. I think even though...
I think that would still fall into
the good reason of Creighton here,
where we have the situation
where we have an arresting officer, again,
who hasn't seen the commission of the crime
in the sense that she did not see the drug transaction
between the probationer-
-: But she sees the start of the drug transaction.
Delattor: Excuse me, your honor,
I didn't quite hear- -: She sees the start
of the drug transaction.
-: She sees an interaction that occurs in front of the mall,
and I just wanna be-
-: I just don't think that's a winner for you, to be blunt,
that Creighton, and the cases that follow, Collins,
all say that, "Yeah, we're not gonna make
an identification proceeding
when it's the police officer saying,
"Yeah, this is the guy we grabbed,"
and everybody knows that,
but if there's offense conduct involved,
that police officer becomes a witness.
-: Yes, I think I was-
Gaziano: An identifying witness.
-: Yes, but here, to be clear, she did not identify him
as the one who had given drugs to McCarthy.
That evidence came in through the discussion with McCarthy
and the reliable statements of McCarthy,
which were corroborated by the fact that
she had seen the defendant and McCarthy and and Gomes
exiting the mall in two different groups,
she did see a hand-to-hand transaction
from Gomes to McCarthy.
-: You might wanna move...
I'm just not inclined to narrow Creighton
in the way you ask.
-: I understand, though, I think,
even if we were to assume that she is
an eyewitness to this crime,
we would still be under the good reason of Creighton
where the identification is not just
based on the eyewitness seeing the crime itself solely,
but it's also based on the fact that
the identification confirms that
the probationer or the defendant who is present
is the one who's charged with the crime.
-: So, Counsel, can I ask you to step away a little bit
from the facts of this particular case
and answer me the question
whether the Commonwealth's position
is that Creighton should extend to probation revocation?
-: Certainly, and I understand,
our position is that this case does not apply,
but for your hypothetical, the Commonwealth's position is
that it should not be extended to
probation revocation hearings.
These are really two fundamentally different proceedings,
two different standards of review,
which has already been noted, where we know that
the full panoply of constitutional protections
at a criminal trial are not applicable
to probation revocation hearings,
but I think, primarily, the issue with Creighton
and the crux of Creighton is that
the jury might give more weight
to that in-court identification than it may deserve,
and that concern is not present during
a probation revocation hearing
because that's in front of a judge
and the judge is purely the fact finder
in a probation revocation hearing
and judges are less likely to be swayed
by potentially inflammatory evidence.
Certainly, they have experience
with giving instructions to jurors
about the factors in eyewitness identification
in terms of their findings of fact.
A judge at a probation revocation hearing
can also ask more questions
during a probation revocation hearing
in terms of an identification.
I think another reason for Creighton to not be extended
to probation revocation hearings
is the practical considerations,
which are delineated in Durling, Kelsey, Holmgren,
a number of those cases, in that
we do not want probation revocation hearings
to turn into a miniature trial
because the probation revocation is not a sentencing
or a punishment for the new violation,
it's essentially sentencing anew
on the underlying conviction and having a requirement
of having out-of-court identifications
in order to bring an in-court identification
would essentially create this into being a miniature trial,
and again, the Commonwealth's interest,
with the goal of probation being rehabilitation,
the Commonwealth has a great interest in,
if there's evidence of a probationer
not being rehabilitated, that they have a great interest
in having that person going back into,
oh, so sorry, going into incarceration,
and that's delineated as well, I believe, Durling, Kelsey,
and all of those cases as described.
I think there's also-
Justice: Excuse me, the CPCS Amicus brief
makes the point that,
had there been a show of identification here,
then it would've been fine for the police officer
to testify to that, correct?
-: I apologize.
-: Reliable hearsay is admissible,
so had there been a show-up with McCarthy,
there wouldn't be a problem here, right?
-: If there had been a show-up proceeding with...
Well, just to clarify,
there wouldn't be able to be a show-up proceeding
with the officer involved
because the officer wouldn't be able to say-
-: No, no, I'm not saying that.
-: I apologize.
-: I think CPCS's argument is that,
"Okay, there would've been a show-up
had McCarthy identified the defendant,
then the police officer's probation revocation proceeding
could have testified to this reliable hearsay.
-: I think I would agree that, if there was a show-up
that had occurred with McCarthy
that could have come in under the officer,
I just don't think that would've-
-: That's sort of occurred in this case
'cause we're relying on, sort of, the matching.
The police officers are watching something,
then they arrest them, but there's a missing piece here,
so it's not like the sky's gonna fall
if we apply Creighton here, right?
-: Well, no, I think to your point,
here, that wasn't necessary in terms of having
a show of identification with McCarthy
because of the reliable statements
and the corroborating evidence.
-: But in good police work,
they would've, it would've matched...
They would've shown the defendant to McCarthy, right?
-: I apologize, I couldn't quite hear the question.
-: Sorry, I apologize, but good police work
would've had a show-up here with McCarthy, right?
-: I'm not sure I would call it good police work.
It certainly would be a stronger case in the sense that,
if we had a show-up with McCarthy, the officer notes that
that sometimes isn't really done in these situations,
I certainly would note that it would be a stronger case,
but I think, when we're thinking about
the global considerations of Creighton
being applied to probation revocation hearings,
that it could cause quite a few practical considerations,
and I think it would also require a little bit of
combination of the work between the Commonwealth and,
excuse me, the DA's office, and then the probation,
particularly in a situation
where there isn't charged criminal conduct.
We would then be requiring probation officers
to be asking for out-of-court identifications
where they're basing probation revocation hearings
on conduct that ends up not being charged
and not proceeding to trial by the Commonwealth
asking, perhaps, investigators, detectives
to do that as well or vice versa,
so I do think that this could lead to that type of situation
where there's a little bit of potential issue
in terms of separation of powers,
in terms of different branches
having to do particular procedures, excuse me, Justice.
-: How so?
I mean, the Commonwealth isn't the moving party.
Probation's the moving party,
so what's wrong with probation having to do their job?
I mean, I know you guys assist, but you don't have to,
there's no rule that you say you do.
It's probation is the moving party,
so what is the problem with that?
-: Certainly, I understand.
I just think with, and this is also considered in Creighton,
where there's a recognition that, perhaps,
there wasn't an out-of-court identification
leading up to trial, that, perhaps,
a prosecutor could have that done.
I think when we're starting to have that applied
to probation revocation hearings,
we would then having to have probation
ask the Commonwealth or investigators to do that,
even though this may be a situation where
this is not a situation where the Commonwealth
is going forward on trial,
it could be uncharged criminal conduct as well.
-: Well, I guess that sweeps in
the two sides of the same coin of your opposing counsel
and Justice Gaziano's point.
So here we have a probation violation hearing
in superior court, where, ostensibly,
whatever the convicted conduct is is gonna be quite serious,
so we do have situations where
the triggering probation violation
ends up in a not guilty or a nolle prosequi
or some other thing that is resolved
prior to a full adjudication,
but yet, we've already now had a probation violation hearing
with the lower standard of proof where now
the defendant or the probationer is now subject
to a custodial sentence that could be quite long.
Going back to the basic crux of the fundamental fairness,
why wouldn't it be fair to overlay
that requirement for the identification?
-: Well, I think it's the consideration that,
though this is a liberty interest,
the defendant is on conditional liberty
based on the fact that they have signed a probation contract
that states that they are not going to be violating state-
-: It's not a contract.
It's a judicial order of probation.
-: I apologize, colloquially...
I apologize for that, though do call it a contract
because the reason that the standard
is a preponderance of the evidence is based on contract law.
That's discussed in Holmgren, and that that's the reason why
the standard is preponderance of the evidence,
is that that's the standard
for a breach of contract situation,
but we have a situation where
it's the lower standard of review,
it's in the lower standard, the goal being rehabilitation,
the recognition by this court that
the Commonwealth needs to have
this proceeding occur expeditiously
as well as the understanding that they need to be flexible
and we don't need to require officers
going to different counties
or victims coming to the situations as well,
but with the understanding that
this is still a liberty interest,
we have the constitutional protections
that are already in place with Durling,
and so there doesn't need to be further...
And I would suggest, also, we recognize that,
this court has recognized that, in other situations,
like 58A proceedings with dangerousness or bail revocation,
where there is a deprivation of liberty,
but there is a lower standard
and understanding that it's flexible,
so the Commonwealth's position is that
it doesn't need to be Creighton
to apply to probation revocation hearings
because the common law principles of fairness
are already in place.
I'm happy to answer further questions.
-: Is everybody all set?
-: The Commonwealth's brief-