Announcer: SJC-13334.
-: Attorney Levin, I hate to interrupt you right off the bat,
but if you are vindicated, your client's vindicated,
is the result a remand
or is it that we enter, that it should have entered?
-: So the answer to that is slightly different
as to the two different classes of dispositions,
but only slightly different
because my contention is that the proper disposition
of the case is a reversal
and a remand with a directive to allow the petition.
Georges: Okay.
-: In full.
And I can address each of those individually
as to this court's disposition,
although it's sort of short circuits.
Kafker: Yeah, I wouldn't skip the merits.
(they chuckle)
-: So I will come to that
as to the slightly more complicated part of that answer.
I will come to that when I speak to the counts
on which the petitioner was,
on which the jury hung
and the the counts were subsequently null prossed.
That's the slightly more complicated part.
But I did want to address the counts
on which he was found not guilty first, if I may.
No party before the court this morning has argued
that the first paragraph of chapter 276, section 100C,
implicates the First Amendment.
And I think this court's analysis
in Commonwealth versus Pon makes clear that it doesn't.
And so given the absence of a controversy
before the court on that issue, unless there are concerns-
Kafker: It's interesting, you know, the court,
Pons is a deeply considered opinion.
It wipes out the constitutional part,
but it then leaves in place (chuckles)
the ability not to automatically do it.
So why did we do that?
-: Well, I can't, Your Honor,
I can't speak to what Justice Cordy
and the court subjectively why they wanted to do that.
But that the first paragraph
was not in front of the court in that case.
And so I think that's probably why
is that it just wasn't presented there.
-: Well, I guess my question is didn't that footnote say
the same standard should apply
for paragraph two and paragraph one?
-: Well, what the footnote-
-: And so that the district court's resolution
of treating both the same was all right?
And given that Pon had changed the second,
you think implicitly it was changing the first?
-: Well, so I agree with that
in the sense that the footnote does make clear
that the district court and the trial court
should continue to apply the same standard
under both paragraphs.
And you're right,
because the standard changes under the second paragraph,
it necessarily also changes the standard
under the first paragraph.
But in terms of whether it was correct
for the trial court to apply
the same standard under both paragraphs,
that's the issue that the court did not address in Pon.
And that's the issue that's before the court this morning.
And obviously my position is it's not correct
because the language of the two paragraphs
is quite different.
And the language of the first paragraph of the statute
renders sealing mandatory.
-: Just so I understand, Mr. Levin,
so your point is once we remove
the constitutional prohibition,
the statutory mandatory language automatically kicked in,
even though we didn't say it should in the footnote.
We invited you to come,
how many years later and tell us that.
I mean it's just, it's weird that we didn't do it.
I don't know.
-: I mean, I agree it was certainly, was clear to me
at the time, in 2014, when I read that decision,
that the upshot of the decision
was these not guilty cases
now need to be automatically sealed.
Kafker: Okay.
-: And I think the language of the statute
is very clear as to that.
The only gesture at an argument
why the judge in this case might have been correct
not to seal these not guilty counts
that the Commonwealth has made here,
is they suggest that perhaps it would've been proper
not to seal them because the petitioner was not acquitted
on every count of this indictment.
I would submit that you just can't square that
with the language of the statute
or the structure of the statutory scheme
or frankly any other statutes
that deal with this general topic.
So you see in the first paragraph of section 100C
what it says is, "In any criminal case
wherein the defendant has been found not guilty,
the commissioner of probation shall seal
said court appearance and disposition."
And so that clearly refers back to the court appearances
and dispositions relating to the not guilty.
The not guilty is the disposition.
And then you have the second paragraph,
"In any criminal case
wherein a nolle prosequi has been entered,
or a dismissal has been entered,
and it appears to the court
that substantial justice would best be served,
the court shall direct the clerk to seal the records
of the proceedings in his files."
So what you have there is if the Commonwealth is right
that the first paragraph doesn't apply
because there are disparate outcomes
on the different counts of the case.
Well, in that case then,
the first and second paragraphs both apply to this case.
Which also doesn't really make sense.
And in fact, by the plain text of that statute,
"In any criminal case
wherein a nolle prosequi has been entered,
or a dismissal has been entered by the court."
If that any case referred only to the entire case,
then that paragraph would also apply to the entire case
in a case where only some counts were dismissed
and the defendant was convicted on some counts.
-: Forgive me if this is a silly question,
but if someone was charged with three crimes,
they were found guilty of count one,
not guilty count two, not guilty count three.
You're not arguing that it gets sealed
because they were found not guilty of counts.
-: No, but I think that the upshot of the argument
that the Commonwealth has made might suggest that result.
-: Because you have a blend in,
you have not guilties and then mistrials,
then null prosses.
-: Right, and so my contention is it seems clear to me
that the statute treats each count individually.
And if you look at section 100A,
which deals with sealing convictions,
it's also clear that individual offenses
are what they're looking at.
And then also you can look to-
-: Because it's count specific.
Levin: Right. -: Your analysis.
-: And you can look to chapter 94C.
Sections 34 and 44 of that chapter
also deal with sealing certain convictions
or non-convictions respectively
of simple possession of drugs.
And it's clear that those are offense specific
and count specific.
And that if one complaint comprised multiple counts
and only one of them qualifies under one of those statutes,
you seal the one count.
You don't seal the rest of the complaint.
-: Yeah, I mean, you could have a client
who's found not guilty of rape and guilty of assault
and you certainly want to get-
-: You'd like to seal that not guilty, if you can.
And I think the statute makes clear that you can.
At this point, I will move to the dismissed counts,
if I may.
-: What's the standard,
the standard of review of this is what?
Levin: Abuse of discretion.
-: So it's an abuse of discretion.
And he's referenced the different prongs
of the analysis, right?
-: Well, he's set forth what the factors are
that this court has laid out in Pon, yes.
-: He's correctly set forth the factors.
You've pointed out that he's got
some timing issues incorrect.
Levin: He's made several factual errors
that underlie his analysis
and I think totally undermine it.
-: See, to me, I don't find that that's what's driving.
The difference between three years and five, to me,
doesn't seem to be driving his analysis.
What seems to me to be driving his analysis
is he's worried that the reason it's null prossed,
one, it's a very serious crime.
You know, mass rape, mass armed rape.
And secondly, the victim can't,
I'm not quite sure why she can't go forward,
but she's not going forward,
either because of drug use or because she's frightened.
I can't tell.
-: No, the representation from the Commonwealth,
and I didn't actually,
I think I didn't include it in the record appendix,
but it's also on the face of the nolle prosequi,
that the reason is her drug and alcohol issues.
-: So given that, and I'm trying to evaluate that
an abuse of discretion thing.
I understand your points.
The judge has made a couple of errors on how long
but this isn't 30 years versus five years.
This is three versus five or five versus seven.
To me, what's driving him is that it's a very serious crime.
And you may be right, he's not the right person,
but the victim can't go forward
and that's why this is null prossed.
-: Well, Your Honor, I would contend
that what you've just described is an abuse of discretion.
Because it omits every other factor in the case.
-: It doesn't. He applies all the other factors.
-: He doesn't, Your Honor.
I mean, he says that he's considered all the other factors,
but he doesn't discuss them at all.
He doesn't discuss the severe stigma
that attaches to these kinds of charges.
He doesn't discuss the petitioner's age
and complete lack of any prior criminal history.
He doesn't, he looks to the-
-: I don't disagree with you.
So now maybe you can answer my question.
Is this a remand that's saying-
Levin: No, Your Honor, and so, yes.
-: "Go through these factors, Judge?"
-: I, no, because my contention
is A,
he's not making any credibility determinations here,
or to the extent he is,
he has credited the affidavit and the petitioner.
So at that point,
this court is in just as good a position
as a single judge of the superior court
to make a determination.
But B, on this record,
I would submit there is no other reasonable outcome
besides ordering the records of this case to be sealed.
That any other outcome falls
outside the range of reasonable alternatives
and would be an abuse of discretion.
And so that's why I say that the proper disposition
is simply for the court to remand
with a directive that the petition be allowed.
And I do want to,
in terms of the timeframes,
what the judge says is that three years
since the dismissals of the mistried counts
is not a sufficient time
to assess the likelihood of rehabilitation
and the threat posed by the petitioner.
Well, first, that's the wrong timeframe.
It's not just wrong as a matter of he got the dates wrong,
which he did.
It's also the wrong timeframe to consider.
The timeframe since the dismissals
as opposed to the amount of time
since the petitioner has been out in the community
not committing any crimes, which is six years.
It's twice as long.
And this court, in Pon,
specifically says at page 317 that,
"Evidence of rehabilitation
can begin from the date of the alleged offense,
and need not be limited to the date of the disposition,
given the significant passage of time
that can occur between these events."
But secondly, the concept of rehabilitation
does not neatly apply to a case
where the petitioner has never been convicted of any crime.
You can't hold against someone
that they haven't presented evidence of rehabilitation
when they're presumed innocent
and they insist that they never did anything wrong.
There's nothing to rehabilitate.
And there's never been-
-: Then, don't you mean every case then?
I'm confused by that.
If that's the analysis,
why isn't there mandatory sealing of all the null prosse?
Did I misunderstand your argument there?
I understand he's presumed innocent, but-
-: So not every case will present in a situation
where the person has no criminal history whatsoever,
first of all.
But secondly, this is a multi-factor analysis
and the judge didn't do a multi-factor analysis.
But, most importantly what I'm saying
is that this court's analysis in Pon
is slightly off kilter here.
Because, in Pon,
that defendant had admitted to sufficient facts
and gotten a CWOF and the case was eventually dismissed.
And had a lengthy criminal history
prior to the charge at issue.
And so that this requirement
of evidence of rehabilitation made sense in that context.
It doesn't make sense to require someone
to show that they're rehabilitated
when there's no reason to think
that they've done anything wrong in the first place.
-: May I ask you, what's the difference
for this case or in any effect,
is there a difference between a dismissal and a null prosse?
Levin: Not in the statute, Your Honor.
-: No, not in the statute?
-: In terms of the balancing analysis,
I think the reason for the dismissal
clearly is an appropriate factor for the judge to consider.
And what I suggest in my brief
is that you want to place that dismissal
along a spectrum from exoneration,
which should require sealing
through to say a case that's dismissed
because of the allowance.
-: But when there's a null prosse entered,
the government can bring the case back, can't it?
-: Yes. Certainly.
-: The reason for the null prosse under that reason,
it is also significant too, right?
Levin: Yes.
-: Here that cuts against you.
-: Well, I think in some ways it cuts both ways
because it's a null prosse after the Commonwealth
had a chance to prove the case and failed to do it.
Gaziano: As far as the timing, 'cause of the mistrial?
-: Right, 'cause he's been tried, he's not convicted.
He's acquitted on some counts.
Clearly the jury did not fully credit
the testimony that was in front of them, it seems.
The judge entered required findings on some counts.
But-
-: Are the factors, the six factors in Pon mandatory?
I know they're not exhaustive.
But you seem to be taking issue with the motion judge
failure to consider some of these factors,
suggesting that your position
is that these six factors are mandatory.
Even though, as you concede, some of them don't apply.
-: It is error to omit a factor where it is relevant.
That is an abuse of discretion
to omit a significant factor in your analysis.
-: The statute is basically whether substantial justice
whether justice would be served,
that's the standard in Pon.
As Justice Wendlandt points out,
Pon gives us factors to consider that aren't exhaustive.
So I mean, I just hear you
and I think of the parole board cases
where there, but they're statutory, there are factors.
And then we've said, "You should go through them all,
even though you list them, it's not good enough."
And that's what you're,
'cause he listed the Pon factors,
but you're saying what he did wasn't sufficient.
And I get if,
Justice Wendlandt's point, to carry it forward,
is if they're not mandatory
and he just focuses on one big one,
does it still an abuse of discretion?
-: Well, yes and so it's one thing
to correctly state a legal standard
and it's a separate thing
to correctly apply the legal standard.
And the judge has done one but not the other here.
And if you look through the LL case which restated
this Commonwealth's abuse of discretion standard of review,
cites to Picciotto
which is a first circuit case,
which fleshes it out a little more.
And what they say
is a failure to consider a significant factor
or the erroneous consideration of a forbidden factor
both constitute an abuse of discretion.
And I think we have both of those here
in the sense that he failed to consider
these significant factors that I've mentioned
and also erroneously considered
this factor of rehabilitation
when that's not a meaningful term for someone
who's never been convicted of a crime.
Thank you, Your Honors.
-: Okay, thank you.
Attorney Hansen.
-: Good morning, Your Honors.
If it pleases the court,
R.N. Hansen for the Commonwealth.
I'd like to address the six Pon factors
because I believe that the petitioner's petition
fails on the merits.
The impetus for this petition appears to have been
the petitioner's desire to get a more higher paying job.
And the first factor laid out in Pon is the disadvantages.
And it goes through several potential ones,
unemployment, underemployment, community involvement.
In this case, this petitioner seeks
to address the underemployment issue.
Prior to his arrest,
he was a warehouse worker at the Christmas Tree Shop.
In his affidavit and at the hearing,
they failed to stipulate or failed to mention
how much money he made in that role.
After he was released and at the hearing,
he was a truck driver.
He failed to present any evidence
as to how much money he made in that role.
Judge Davis, who presided over the hearing,
stated that it seems to have been an improvement
over the job that he had prior to his arrest.
Kafker: He doesn't reference that
in his decision though, right?
-: Correct.
But it was discussed at the hearing and that-
-: Yeah, but we have to rely on what he writes, right?
Rather than what's discussed.
-: I appreciate that.
But some of his reasoning is also displayed
in his conversation with Attorney Tavares.
They had a back and forth throughout the hearing
and it depicts that the judge did consider these factors,
at least at the hearing.
Attorney Tavares,
who represented the petitioner at the hearing,
also stated that the petitioner
had applied for four separate jobs
and had been declined in those positions.
Those were a factory worker in Avon,
a maintenance worker at Logan Airport,
and then a driver for both Uber and Lyft.
Again, the petitioner failed to identify
how much money he would've potentially made
and contrasted that with how much money he made currently
as part of his petition.
So that leaves the court in a position
of is there really underemployment
because we have no financials
to actually base that decision on.
-: Can we really do that
based on what the judge wrote, though?
I mean, the judge doesn't, I mean, I get it.
If you've got a rape, you know,
armed rape prosecution out there and on your record,
you can reasonably infer
that's gonna cut you outta some employment, right?
I mean the judge doesn't say that,
but can't we just, we can assume that
as easily as what you're doing,
which is he hasn't applied for very much.
I don't know.
Don't we have to make the judge do that?
-: Yes.
He didn't explicitly mention it in the decision
and as I stated, it was explored on the record
and in the transcript during the hearing,
which I believe should be part
or could be part of the reasoning in this case.
-: This seems like what's driving this,
I mean, again, maybe I'm over-reading this,
is this is a very serious crime.
And the victim can't testify the second time.
And the judge is nervous about wiping out that.
That's, I mean, these other factors
are kind of not really what this is.
I mean, if I'm a judge, that's what I'm worried about.
Is this guy not being re-prosecuted
'cause we don't have a victim here.
The jury hung and that's a worrisome thing for a judge
to seal that record.
-: I completely agree with Your Honor.
That would be factors three and six
in the Pon decision,
with the nature of the crime.
Obviously, this is horrific crime.
And certainly there's a risk to the community
and the community has a right to know.
-: But Mr. Levin makes the countervailing point,
which the judge also doesn't discuss,
which is, hey, rape, having that rape out there
when he's never done anything ever in his life
and they didn't convict him of it.
That's a sword of Damocles over his head.
-: That is correct.
And that is a counterbalancing argument
within the nature of the crime portion
of the Pon analysis.
But again, the underlying issue
is that he's saying because of this
he's unable to find gainful employment
or employment that's gonna pay him more money.
But he's provided no evidence to that.
All that he's pointed out
is that he's applied for jobs that are similar.
-: But shouldn't, I mean,
isn't Justice Georges right?
This is difficult.
Don't we want the judge
to go through all of this carefully
and explain his reasoning to us?
And isn't that the safest course
on paragraph two for us?
-: That is certainly fair analysis, Your Honor.
I do believe that the argument
does fail on the merits in the end.
-: But shouldn't we see it
and have it all fleshed out for us?
I mean, I understand why I wouldn't want to do it.
And also he's had a hearing, but again,
can I shift you to paragraph one for a second?
Hansen: Yes.
-: So, you know, isn't Mr. Levin right?
Once we remove the constitutional overlay,
aren't we left with this mandatory language on acquittals,
that at least the acquittals should be sealed?
Or why not?
-: This case is a little bit messy
in the sense that you have six charges.
And some of them he was found not guilty.
So on one rape charge, he was found not guilty.
On the other rape charge, it was a hung jury
and the case ended up being null prossed.
With respect to the reason why it was null prossed,
the victim had a relapse
as a result of testifying at trial.
They tried to rehabilitate her numerous times,
get her treatment.
That didn't work.
It took several years before the Commonwealth-
-: Is there are a messy exception to the sealing under 100C?
It seems to be that's what you're arguing,
that it's messy and therefore you don't get paragraph one
on your not guilties.
-: The argument I would make there
is the plain text of the statute, Your Honor.
-: The plain text is not for you, is it?
I mean, the plain text says, "Mandatory."
"Ye shall."
Hansen: Correct. -: Okay.
-: But it says cases.
"In cases where they were found not guilty
or there was no bill or no probable cause,
then it shall be sealed."
This was not a case where, as a whole,
he was found not guilty.
And that's why I use the colloquial term messy
to represent this case 'cause it's not a case where-
-: Why wouldn't it just be Attorney Levin's formulation then?
Then it's charge specific, count specific.
Because if you really read it as strictly
as you're saying we ought to,
I think his argument has a lot of force then.
If you get one not guilty,
and you've got six other charges you're found guilty,
then you're eligible to have that entire case sealed.
That wouldn't make any sense.
How is this any less or more messy
than the ones you were found not guilty on,
you can get sealed and the others were still in play?
Why isn't that just the right formulation?
-: I think that's a very fair point, Your Honor.
And maybe this is something that this case can address.
Budd: Anything else?
-: No, thank you.
I rest on my brief. Thank you.