-: SJC-13277, Commonwealth First, Roberto Rosa et al.
-: Thank you.
Attorney Jordan.
-: Good morning Chief Justice; Associate Justice.
Darcy Jordan on behalf of the Commonwealth.
The Commonwealth is asking that the court set aside the
judge's motion to vacate.
I mean, in essence, this motion to vacate
was an unlawful restriction on the Commonwealth's
power to prosecute.
-: How?
-: How? (chuckles) Sure.
Because it basically put the Commonwealth
in the same position
had the judge dismissed the case with prejudice.
Because when a case is dismissed with prejudice,
the Commonwealth's only remedy for going forward on that
case would be to either appeal or to ask the
judge to reconsider its decision.
And here, those are the only two remedies for
the Commonwealth in order to prosecute the case
as it's entitled to do.
-: What... The judge never says it's
with prejudice or without prejudice.
The judge just says it's dismissed.
I know the docket says it's without prejudice. Correct?
-: Yes. And I think-
-: Judge doesn't say that.
So then the defense argues that judge basically made
a conditional or was going...
was contemplating whether it's gonna be with prejudice or
without prejudice.
How do you address the fact that she never says with
prejudice or without prejudice at the time?
-: I think the cases from this court, historically,
it can be read in to infer that unless it's expressly
with prejudice, the inference is without prejudice.
And I think part of the Commonwealth argument here is that
this record is very short. It's three pages long.
So part of our argument is
that there was really no findings of facts
that would support a with prejudice
finding of the dismissal.
So I know we're looking at a...
the Commonwealth is not saying that the dismissal of the
charge without prejudice was... that was a lawful order.
We're saying that the motion to vacate as the only
option for the Commonwealth to proceed with this case,
that was the abuse.
-: So counsel, what would've happened had you proceeded
to bring a new complaint or indictment after there was...
or a complaint rather, after there was a dismissal and then
an order that you file a motion to vacate?
What position would you be in?
-: I... just so I understand.
So basically we just follow through with this order
and kept going-
-: Put the ordinary courses...
what we all believe about prejudice-
-: Sure. -: ... and not prejudice and-
-: Absolutely.
Well, I think... who...
I don't know for certain what the judges would have done
when faced with a motion to vacate by the Commonwealth.
And this is why I think the-
-: Right. But had you ignored that motion
and just said, "Look, this is without prejudice,
we can do whatever we want.
We don't need permission from the trial court."
What would've happened to you as the prosecutor?
-: We would be in this position that we're in right now.
-: Wouldn't you be in a little more of a position-
-: You chose to take a 2113 -: Right.
-: ...rather be held in contempt?
-: Right, thank you.
-: Yes! So- (laughing)
I'm sorry. You know what?
I feel like I didn't understand
because I feel that's inherent.
Either... as an appellate prosecutor,
I know we either follow the order-
-: Right.
-: ... or you appeal. So...
-: Well, there's still a hybrid point though,
which is the part that I'm a little bit confused by.
Let's just say...
because I don't know what the exact docket number is,
but let's just say it was docket 1000.
The judge's order as I read the hearing transcript is,
if you wanna bring back docket 1000,
you've gotta file a motion to vacate this dismissal.
But that doesn't seem to infer that you couldn't file an
entirely new docket and leave 100 in the wind,
and it didn't seem to suggest that.
-: I... I respectfully disagree because-
-: Where did it say that in judge Grant's... in the...
I'm reading the decision.
It said, if you wanna bring back this case; this case.
Again, docket 1000, you have to file a motion.
-: Right. And I think the...
the Commonwealth thinks that the problem.
And if you will, the separation of powers issue
in contravenience to Article 30,
is that by doing that the judge proscribes the only way
for which the Commonwealth can go forward
and prosecute the case.
Because, as we just discussed,
if we didn't follow that order by doing what she proscribed,
it's to the exclusion of the Commonwealth's
other ways of prosecuting case.
So if a case is dismissed with prejudice,
the Commonwealth can go forward.
Either... it can appeal that decision of dismissal,
it can either file a new complaint,
it can indict- -: Mm-hmm.
-: ... or file a motionary reconsider.
-: But it wasn't dismissed with prejudice.
-: I'm sorry?
-: It wasn't dismissed with prejudice.
-: I think... the Commonwealth understands from the record
that it was dismissed without prejudice, yes.
But I think the Commonwealth sees the problem being
that the judge in this order to vacate,
restricts its powers and its abilities to prosecute
as it sees fit, as prescribed by Article 30.
The ability to prosecute-
-: Article 30 violation is the impediment or conditional part
of you bringing a new complaint.
-: That's right.
And it's unfettered by either... by judicial approval
or appeal. So-
-: Do you agree, she could have said,
"All right, I wanna put this on for a...
a hearing as to whether this should be dismissed with
or without prejudice.
I'd like to plea a police officer to troop her summons in."
She could have done that.
-: Absolutely. And I think that's part of the Commonwealth...
I think Chief justice's question.
But why is this like prejudice?
Because by skipping that point, by skipping the hearing,
is this a speedy trial violation?
Let's put it on, let's look at the docket.
Is this an egregious prosecutorial misconduct?
All of which are proper checks, if you will,
in the balance of power.
-: (indistinct) put it on them because the defend...
a police brief is about...
well, it should be.
Rule 36... they've got a little bit of a flavor
of a constitutional speedy trial in their brief.
Could have been put on for any of that.
The judge just can't dismiss it and have the
Commonwealth have to come back with a motion to vacate.
-: Exactly. And I think the Commonwealth takes
the perspective that the judge and making (indistinct)
short circuiting...
I'll get there (chuckles). Short circuiting,
if you will, the separation of powers.
And it seems like her intention was to revive the same
complaint, but by doing it in the way she did it,
it really infringed upon the Commonwealth's right to-
-: And you would say that, basically,
you could read it as Justice George may have read it,
but you could also read it another way.
And it's that reading of another way that puts you at risk
as an attorney?
-: That's correct. And I think by not following through...
either we had to follow through the order
or seek appellate review. And because it was...
the case was dismissed and that's why we sought a 2113
in the administration of justice.
Because this does have other further consequences,
not in just this case.
So in essence, what the judge really did
was make herself the gatekeeper
to the Commonwealth's ability to prosecute.
And I think this stance is like
when the judge doesn't accept a nolle pros.
We understand that there is some kind of checks and balances
in the courts and we understand that.
And this judge was frustrated, which is all acknowledged.
And it's also... all these ideas
and counterbalances are explored.
And the case already-
-: This is the opposite of not accepting a nolle pros.
-: This is the opposite... right.
This is the opposite.
So...
the Commonwealth just thinks that there is other options and
other ways to maybe come to the same conclusion and result
that the judge just did not take.
-: And had one of those other ways been taken,
such as having a hearing on why there was such delay,
than the... whether it was a constitutional speedy trial
or a rule 36 speedy trial; we would've had the calculations,
We would've had the argument and you could've...
we could make that assessment.
But we can't do that right now.
-: Correct. I think on the... the record's so barren
that none of those things can be inferred,
although I do think it can be inferred
that it was dismissed without prejudice.
-: And she is every right to deal with the
case flow management in the session
and deal with the amount of times
that the case wasn't ready for trial.
And maybe even... although ground for (indistinct)
consider whether it should be dismissed with prejudice.
It's just that she's case full managing in a way that
Article 30 doesn't allow.
-: Absolutely. All those
were in her purview and in her discretion.
The Commonwealth does not refute that this dismissal
was a lawful order.
If I could just point to my...
I know my sister in her brief talks about the inherent
powers of the judicial administration.
And I think the powers that we're talking about here
are the express powers of the judiciary
compared to the executive branch.
And my sister talks about the powers, if you will,
to administer a court logistically
or even pretrial motions of discovery.
And I just wanna be clear that the Commonwealth thinks this
is an... these powers in and this case-
-: Those inherent powers are sometimes cabinned
by Article 30, right?
-: Absolutely.
But my point is that this is, these are...
this is very clearly an abutting of the two powers,
our powerful branches here in this case.
I see no other questions,
Commonwealth threats on its brief. Thank you.
-: (coughs) Thank you.
-: Attorney Horwich.
-: Good morning your Honor, Mr. Clerk.
-: May it please the court,
Esther Horwich representing Roberto Rosa,
faced with the fourth time the Commonwealth has requested a
continuance. The judge crafted-
-: Is this a dismissal without prejudice or with prejudice?
-: Without prejudice.
-: Okay.
-: That's what it appears on the record. The judge-
-: And how can a judge can make something conditional
when the Commonwealth has a constitutional right
to bring charges?
-: Because this is the net effect.
What would the difference be if the judge says,
"Okay, we're gonna continue it for next week
for a full hearing."
-: We have a hearing.
-: Yeah, but in this case, the judge did not indicate
that she was denying it.
She said, "we are going to have a hearing at the
Commonwealth scheduling and all parties can be heard."
which is quite different than denying a case and having
a prosecutor come up and say, "Judge, please reconsider."
-: But when you have a Article 14 issue,
do you come to the court and say,
"It was just a little bit of a constitutional violation"?
-: (laughs) No Judge.
But in this case, we have two constitutional...
the judge has a right to control her docket.
This is not like most of the cases involving-
-: Within bounds of Article 30, right?
-: Exactly, but... within-
-: (indistinct) a lot of different options
to control or docket.
I understand her frustration, I... palpable, I really do.
And I can understand your client's frustration.
And then the trooper, this time,
he's got an emergency. The last time, the last...
I get it. But it's either a dismissal without prejudice...
Bring it again, dismissal with prejudice
and then litigate it. But there's no hybrid.
-: Well, there in this case, Judge,
the prosecutor was not prepared to have a hearing
on why her witness wasn't there.
All the prosecutor knew was that the witness claimed
that today there was a family emergency.
-: Yeah, but... so she could dismiss it.
-: Which she (indistinct). -: Right.
-: She could dismiss it- -: She did.
-: Well, without prejudice. But
this judge is... I mean,
she's flooded with cases that are not ready.
And what she's doing-
-: Can I follow up with that one point?
-: Yeah.
-: Because you were kind enough to put in the record appendix
all of the cases that were on for trial that day.
And so aside from this case,
there were a bunch of cases that were (indistinct).
So is it your contention that in order for the
Commonwealth to revive any of those (indistinct) cases
that were all dismissed because they weren't ready,
that every case had to be brought back before the judge
for a hearing?
-: No, not at all. This case was-
-: What's the difference between this case?
-: This case, the Commonwealth had three bites of the apple
previously. And this case was tying up the court's docket.
And the judge wanted to have some control over her docket,
which she has the right to do.
-: But that's why we have rule 36
and that's why we have constitutional speedy trial. Correct?
-: Well, that protects the defendant too.
-: Yeah, right. -: It does but-
-: That's the point.
-: Exactly. But here we have the administration...
this is the administration of justice for
not just this defendant-
-: But if you look at those cases that you gave us
in the record appendix, a number of those cases
were on multiple times for trial as well.
-: Indeed. But-
-: And they were continued.
-: That may not have been-
-: So why is this case different?
-: Well, that may not have been brought
to the court's attention.
This attorney gave the dates, the prior dates, the reasons,
the fact that it was the same witness three times and it was
a police officer.
So police officer's should know the importance-
-: Is that healthy administration of justice
when the judge makes an order that's illegal
and causes the Commonwealth to seek a 2113,
then it goes up to the SJC?
-: I would suggest that the order is not illegal, Judge,
because it wasn't a dismissal with prejudice,
which a judge is not allowed to do without a hearing.
-: Think that the prosecutor could have
brought a new complaint and had no problems?
-: I think the prosecutor could have requested a hearing,
in which case, the case would be determined
whether it would be-
-: But that bumps us right into the Article 30 issue.
So if the prosecutor can't go forward
and bring a second complaint on this
and it's been dismissed without prejudice,
why is this requirement that they come back
not an impingement on that right?
-: I must respectfully disagree.
The case was not dismissed with prejudice-
-: Without prejudice.
-: Yes, without prejudice.
The prosecutor... if the judge had said...
the net effect would've been the same had the judge said,
"Well, we're gonna reschedule it for hearing."
All the judge did was give the prosecutor the option
to pick the day of the hearing.
The judge indicated she fully expected to hold a hearing
on this matter.
The judge indicated that the defendant
needed to stay in touch with the attorney.
-: But Counsel, if she wanted to hold a hearing,
couldn't she just have ordered that the case be continued
for a hearing on whether it should be dismissed
on speedy trial or rule 36 grounds?
Why is this the mechanism that gets you there?
-: Well, because it sends a more serious message
to the prosecution.
It clears off her docket in case the pros... you know,
you pick a date right now, is the officer available?
You don't know. This way the prosecutor-
-: No, you're picking a date, not for trial.
You're picking a date
for the rule 36 argument at first, right?
-: Exactly.
But the prosecutor may want to bring in the witness
who is the cause of the delay- -: Right,
and if the witness doesn't show then for a rule 36 hearing,
that's very much a problem for the prosecution.
-: But this is far more courteous to the prosecutor.
-: I- -: ... because it gives them.
-: It's just not semantic.
So she had every right to control the docket.
She has every right to be frustrated
and she has every right to consider whether
maybe it should be dismissed with prejudice.
I think it's here or close,
but she has every right to have a hearing on that.
So she could just put it on for...
whatever, a week for a hearing on whether it should be...
wait a minute, whether it should be dismissed
for whatever grounds; constitutional, rule 36.
You ... if you dismiss the case then the
you can't have a conditional dismissal under Article 30.
-: Well, I don't know of any case that comes right out
and says that, Judge. In fact-
-: Are there cases that say that Commonwealth has a
Article 30 right unfettered to bring charges?
-: Those cases all involve issues where the common...
where the cases were dismissed in the interest of justice.
And that's a wonderful concept,
but it may not hold the same-
-: But that's not necessarily true.
I can't remember the name of the case,
but there was a case, not that long ago... two, three years
ago, about the judge that dismissed the count for
use without authority.
I think it came to our court.
We said, "No, you can't do that."
This is the Commonwealth's choice as with the separation of
powers Article 30 issue.
So we've said this repeatedly, that this is their
prerogative, the decision to make.
I just have one question that I asked Attorney Jordan,
I'd like your take on it.
Do you take Judge Grant's order when this case was dismissed
as precluding the Commonwealth from filing new charges under
a different docket number?
-: I do.
-: You do?
-: I do.
-: And isn't that a problem?
-: No, I don't think it is because
the Commonwealth is not precluded from prosecuting.
The issue is not what the docket number is.
The issue is, does the common... is the Commonwealth
precluded from prosecuting the case?
And the Commonwealth, at this stage,
is not precluded from prosecuting the case.
That would only occur after another hearing
if the judge found egregious conduct.
But the prosecutor can certainly prosecute the case and the
issue of what the docket number is, is totally irrelevant.
-: Well-
-: It's an impediment to prosecution right.
-: That's the point.
-: It's not an impediment if the prosecution
is not being egregious,
it is a continuance if the prosecution... at most.
The prosecution is not prohibited
from pursuing the prosecution.
-: But if you go back a couple of dominoes
and you say that hearing happens,
and let's just say that whatever quantum of proof it is,
it doesn't convince Judge Grant or maybe it convinced
another judge. Don't you see that that's the problem?
Because then that makes it,
whoever happens to be hearing this particular case and
their view of what the Commonwealth's continuances and
explanations were beforehand.
It doesn't reserve the right that they have under their...
under Article 30 separation of powers.
-: Well, the case is going to be heard by Judge Grant.
She reserved it to her herself.
So because Judge Grant is hearing the case-
-: She reserved the docket number to herself.
-: Exactly.
Because the judge is hearing the case,
the judge is making the determination.
Is this an egregious conduct, is the defendant prejudice?
And if the answer is no and the case
is dismissed without prejudice
or the judge does not allow the motion to vacate;
at that point, the Commonwealth
has a great issue for appeal.
But if the judge finds there is egregious conduct,
if the judge finds that the defendant was prejudice,
then the judge can dismiss the case with prejudice.
-: Are there any cases out there where
this kind of impediment (coughs) was imposed
that we've said was okay?
-: I haven't found any cases that said okay or not okay.
-: Mm. -: So I don't think-
I think this the first time-
-: Are there any cases that say
the Commonwealth's ability to seek charges is conditional?
-: It says that the Commonwealth has a right
to pursue prosecution of charges.
You cannot prohibit the Commonwealth
from seeking the prosecution of charges.
-: Right. And that makes perfect sense.
Rule 30.
But the judge was not trying to prevent the Commonwealth
from prosecuting.
The court was trying to prevent the prosecution from coming
another time and not being ready.
This gave the prosecution the option of picking the date,
of having its witnesses all lined up and going forward.
-: Counsel, what's in it for your client for us to say
what the judge did was okay?
-: Well, there's a significant amount of prejudice
every time a case is brought back for a defendant.
Because what happens is you get another charge
and it looks like a new charge. And, in this case,
it would be two years after the old charge.
-: I understand why your client was prejudiced
and not keep having to continue to keep coming in
and not having his case, not having you stay in court.
But just in terms of what this judge specifically did,
how she did it,
what's in it for you or your client for us to say,
"Well, that was okay"?
I mean, there were other ways to do it. So why-
-: Well, if the judge dismisses it, it prejudice...
If the judge gives an out and out dismissal and the
prosecutor brings it again, it harms the defendant.
First of all, in an appointed case, he'd get a new attorney.
The attorney would not know the history of the case.
The courts would have to redo the new complaint.
-: But everybody agrees that it was dismissal
without prejudice, right?
-: Right.
But the way the system works is,
whoever's duty the day the case is brought, gets the case.
-: Right. But it goes back to my earlier point.
You gave us all of the other cases that were (indistinct)
that day. If they brought back each and every one of those,
every one of those cases is in the exact same position
that your client is in.
-: Well. Some of the cases were (indistinct) because
the witnesses had fifth... decided to take
Fifth Amendment rights.
They didn't look like they were likely to come back.
-: Okay. But-
-: And that makes a lot of difference.
-: Sure. But the (indistinct) for,
and this one... I think you already know,
I have inside baseball on this one.
So I know that that that the frustration was real.
And I can understand where you're coming from,
but I'm just trying to figure out,
why is this case any different
than all of the other cases that you gave us that day...
that were (indistinct);
that the Commonwealth could bring back
and it would be restarting all over again,
and all of the pray to horribles that you just mentioned.
Why would this case be any different to the Chief's point?
What's in it for your client?
-: Well, it's not so much what's in it for my...
they're two different questions.
If you wanna know why the case was not...
why some of the cases were not brought back.
I mean, you'd have to look...
I did look into why some of them were...
I listened to the whole several hours of that morning.
But there are reasons why a case may be (indistinct)
and without any anticipation of harm to the defendant.
Some of those could be, for example,
the parties don't wanna proceed
and the the DA doesn't wanna force him.
And so in that case,
it keeps the case open in case something should change,
but it's not likely to go forward.
It's not likely that the DA is gonna bring it back.
-: Isn't the issue plainly whether or not
this is an Article 30 violation, period?
-: And I suggest that it is not because-
-: Well, isn't that the issue before us,
not whether or not...
there was harm to anybody?
-: I'm just- -: It's simply whether or not
there was a separation of powers violation.
-: Yeah, it is.
And I'm not... I just wanted to... I didn't wanna be...
I wanna respond to the judge's question since
that's where I was coming from.
But with regard to the Article 30; you've got Article 30,
abutting with Article 11, Article 29.
The judge has those powers.
And sometimes, they need to be exercised to keep
the flow of the cases.
And if the judge has that tool available
for situations in which the conduct may be different.
I mean, we may not have a situation where a witness is
immunized and the case may never come back.
We may not have a case where the parties
have moved out of state.
We may have cases that
look like they're not gonna go forward.
And a dismissal... no one objects to a straight dismissal.
But here defense counsel said,
"Look, I've been ready for trial four times
and nothing's happened."
And there are costs, there are cost to the judiciary,
there are cost to the defendant.
-: Haven't you seen cases where defense attorneys
have had that exact same scenario and they say,
"No, I want my dismissal with prejudice."
-: Sure. And they can't...
they aren't entitled to it
unless they show egregious conduct or-
-: Right. And so let's argue with that.
-: That's... okay. That's fine, Judge.
The dismissal wasn't with prejudice because the judge
let the district attorney pick a date for a hearing
to hear all parties, as the judge said.
-: But you agree
the prosecution could not start a new complaint?
-: Right.
But they could continue prosecuting this old complaint.
And the judge gave that option.
And that's what makes this case different from the others,
is because the judge did not dismiss it with prejudice,
did not make the district attorney file a motion to
reconsider. But said, "Look,
I'll hold a hearing whenever it works for you."
And that's the difference.
That's why it doesn't run a file of Article 30.
-: (indistinct) not.
-: That was one option available to her,
but had she done that, it again sits on the docket.
She's no more secure....
it's another clutter of the docket.
She's no more secure that this witness is gonna show up.
I mean, we've got at least three reasons...
"I'm in South Boston, I'm on vacation..."
And these reasons are given the day of trial.
They're not given before then. So-
-: Well, she could have said,
"Okay, I'm continuing this
and I'm gonna dismiss it with prejudice
if you don't show up the next time." Right?
-: Right.
And the Commonwealth could have, at that point,
followed a nolle pros and completely defeated
the judge's attempt to control her docket.
-: Can a nolle pros enter after dismissal?
-: I don't think it can. I think the case is dismissed.
It has to be brought back. So what-
-: There's been affirmative use of a nolle pros
which wouldn't be allowed.
-: Right. So if she gave the case...
if she continued the case, it could have been done.
It could have thwarted the court's attempt
to control her docket.
-: Right. Which we say, you can't do it a nolle pros.
-: Right.
So in summary (snickers),
I think that this was a very reasoned and balanced
approach to controlling the docket.
It was a very limited sanction
and it allowed the prosecutor to continue
the prosecution of the case.
It was not a dismissal with prejudice.
-: Okay.
-: Thank you. -: Thank you very much.