WEBVTT
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SJC-13334.
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Attorney Levin, I hate to interrupt you right off the bat,
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but if you are vindicated, your client's vindicated,
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is the result a remand
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or is it that we enter, that it should have entered?
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So the answer to that is slightly different
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as to the two different classes of dispositions,
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but only slightly different
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because my contention is that the proper disposition
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of the case is a reversal
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and a remand with a directive to allow the petition.
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Okay.
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In full.
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And I can address each of those individually
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as to this court's disposition,
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although it's sort of short circuits.
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Yeah, I wouldn't skip the merits.
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(they chuckle)
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So I will come to that
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as to the slightly more complicated part of that answer.
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I will come to that when I speak to the counts
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on which the petitioner was,
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on which the jury hung
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and the the counts were subsequently null prossed.
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That's the slightly more complicated part.
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But I did want to address the counts
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on which he was found not guilty first, if I may.
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No party before the court this morning has argued
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that the first paragraph of chapter 276, section 100C,
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implicates the First Amendment.
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And I think this court's analysis
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in Commonwealth versus Pon makes clear that it doesn't.
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And so given the absence of a controversy
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before the court on that issue, unless there are concerns-
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It's interesting, you know, the court,
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Pons is a deeply considered opinion.
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It wipes out the constitutional part,
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but it then leaves in place (chuckles)
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the ability not to automatically do it.
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So why did we do that?
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Well, I can't, Your Honor,
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I can't speak to what Justice Cordy
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and the court subjectively why they wanted to do that.
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But that the first paragraph
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was not in front of the court in that case.
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And so I think that's probably why
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is that it just wasn't presented there.
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Well, I guess my question is didn't that footnote say
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the same standard should apply
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for paragraph two and paragraph one?
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Well, what the footnote-
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And so that the district court's resolution
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of treating both the same was all right?
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And given that Pon had changed the second,
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you think implicitly it was changing the first?
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Well, so I agree with that
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in the sense that the footnote does make clear
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that the district court and the trial court
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should continue to apply the same standard
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under both paragraphs.
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And you're right,
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because the standard changes under the second paragraph,
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it necessarily also changes the standard
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under the first paragraph.
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But in terms of whether it was correct
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for the trial court to apply
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the same standard under both paragraphs,
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that's the issue that the court did not address in Pon.
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And that's the issue that's before the court this morning.
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And obviously my position is it's not correct
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because the language of the two paragraphs
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is quite different.
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And the language of the first paragraph of the statute
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renders sealing mandatory.
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Just so I understand, Mr. Levin,
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so your point is once we remove
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the constitutional prohibition,
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the statutory mandatory language automatically kicked in,
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even though we didn't say it should in the footnote.
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We invited you to come,
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how many years later and tell us that.
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I mean it's just, it's weird that we didn't do it.
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I don't know.
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I mean, I agree it was certainly, was clear to me
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at the time, in 2014, when I read that decision,
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that the upshot of the decision
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was these not guilty cases
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now need to be automatically sealed.
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Okay.
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And I think the language of the statute
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is very clear as to that.
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The only gesture at an argument
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why the judge in this case might have been correct
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not to seal these not guilty counts
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that the Commonwealth has made here,
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is they suggest that perhaps it would've been proper
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not to seal them because the petitioner was not acquitted
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on every count of this indictment.
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I would submit that you just can't square that
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with the language of the statute
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or the structure of the statutory scheme
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or frankly any other statutes
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that deal with this general topic.
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So you see in the first paragraph of section 100C
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what it says is, "In any criminal case
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wherein the defendant has been found not guilty,
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the commissioner of probation shall seal
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said court appearance and disposition."
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And so that clearly refers back to the court appearances
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and dispositions relating to the not guilty.
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The not guilty is the disposition.
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And then you have the second paragraph,
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"In any criminal case
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wherein a nolle prosequi has been entered,
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or a dismissal has been entered,
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and it appears to the court
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that substantial justice would best be served,
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the court shall direct the clerk to seal the records
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of the proceedings in his files."
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So what you have there is if the Commonwealth is right
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that the first paragraph doesn't apply
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because there are disparate outcomes
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on the different counts of the case.
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Well, in that case then,
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the first and second paragraphs both apply to this case.
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Which also doesn't really make sense.
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And in fact, by the plain text of that statute,
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"In any criminal case
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wherein a nolle prosequi has been entered,
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or a dismissal has been entered by the court."
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If that any case referred only to the entire case,
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then that paragraph would also apply to the entire case
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in a case where only some counts were dismissed
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and the defendant was convicted on some counts.
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Forgive me if this is a silly question,
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but if someone was charged with three crimes,
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they were found guilty of count one,
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not guilty count two, not guilty count three.
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You're not arguing that it gets sealed
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because they were found not guilty of counts.
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No, but I think that the upshot of the argument
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that the Commonwealth has made might suggest that result.
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Because you have a blend in,
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you have not guilties and then mistrials,
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then null prosses.
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Right, and so my contention is it seems clear to me
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that the statute treats each count individually.
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And if you look at section 100A,
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which deals with sealing convictions,
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it's also clear that individual offenses
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are what they're looking at.
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And then also you can look to-
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Because it's count specific.
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Right.
Your analysis.
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And you can look to chapter 94C.
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Sections 34 and 44 of that chapter
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also deal with sealing certain convictions
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or non-convictions respectively
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of simple possession of drugs.
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And it's clear that those are offense specific
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and count specific.
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And that if one complaint comprised multiple counts
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and only one of them qualifies under one of those statutes,
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you seal the one count.
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You don't seal the rest of the complaint.
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Yeah, I mean, you could have a client
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who's found not guilty of rape and guilty of assault
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and you certainly want to get-
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You'd like to seal that not guilty, if you can.
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And I think the statute makes clear that you can.
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At this point, I will move to the dismissed counts,
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if I may.
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What's the standard,
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the standard of review of this is what?
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Abuse of discretion.
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So it's an abuse of discretion.
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And he's referenced the different prongs
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of the analysis, right?
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Well, he's set forth what the factors are
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that this court has laid out in Pon, yes.
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He's correctly set forth the factors.
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You've pointed out that he's got
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some timing issues incorrect.
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He's made several factual errors
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that underlie his analysis
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and I think totally undermine it.
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See, to me, I don't find that that's what's driving.
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The difference between three years and five, to me,
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doesn't seem to be driving his analysis.
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What seems to me to be driving his analysis
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is he's worried that the reason it's null prossed,
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one, it's a very serious crime.
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You know, mass rape, mass armed rape.
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And secondly, the victim can't,
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I'm not quite sure why she can't go forward,
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but she's not going forward,
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either because of drug use or because she's frightened.
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I can't tell.
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No, the representation from the Commonwealth,
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and I didn't actually,
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I think I didn't include it in the record appendix,
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but it's also on the face of the nolle prosequi,
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that the reason is her drug and alcohol issues.
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So given that, and I'm trying to evaluate that
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an abuse of discretion thing.
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I understand your points.
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The judge has made a couple of errors on how long
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but this isn't 30 years versus five years.
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This is three versus five or five versus seven.
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To me, what's driving him is that it's a very serious crime.
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And you may be right, he's not the right person,
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but the victim can't go forward
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and that's why this is null prossed.
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Well, Your Honor, I would contend
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that what you've just described is an abuse of discretion.
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Because it omits every other factor in the case.
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It doesn't. He applies all the other factors.
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He doesn't, Your Honor.
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I mean, he says that he's considered all the other factors,
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but he doesn't discuss them at all.
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He doesn't discuss the severe stigma
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that attaches to these kinds of charges.
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He doesn't discuss the petitioner's age
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and complete lack of any prior criminal history.
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He doesn't, he looks to the-
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I don't disagree with you.
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So now maybe you can answer my question.
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Is this a remand that's saying-
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No, Your Honor, and so, yes.
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"Go through these factors, Judge?"
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I, no, because my contention
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is A,
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he's not making any credibility determinations here,
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or to the extent he is,
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he has credited the affidavit and the petitioner.
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So at that point,
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this court is in just as good a position
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as a single judge of the superior court
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to make a determination.
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But B, on this record,
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I would submit there is no other reasonable outcome
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besides ordering the records of this case to be sealed.
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That any other outcome falls
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outside the range of reasonable alternatives
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and would be an abuse of discretion.
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And so that's why I say that the proper disposition
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is simply for the court to remand
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with a directive that the petition be allowed.
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And I do want to,
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in terms of the timeframes,
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what the judge says is that three years
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since the dismissals of the mistried counts
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is not a sufficient time
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to assess the likelihood of rehabilitation
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and the threat posed by the petitioner.
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Well, first, that's the wrong timeframe.
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It's not just wrong as a matter of he got the dates wrong,
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which he did.
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It's also the wrong timeframe to consider.
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The timeframe since the dismissals
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as opposed to the amount of time
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since the petitioner has been out in the community
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not committing any crimes, which is six years.
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It's twice as long.
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And this court, in Pon,
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specifically says at page 317 that,
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"Evidence of rehabilitation
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can begin from the date of the alleged offense,
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00:12:00.090 --> 00:12:03.330
and need not be limited to the date of the disposition,
270
00:12:03.330 --> 00:12:05.130
given the significant passage of time
271
00:12:05.130 --> 00:12:07.170
that can occur between these events."
272
00:12:07.170 --> 00:12:10.860
But secondly, the concept of rehabilitation
273
00:12:10.860 --> 00:12:13.350
does not neatly apply to a case
274
00:12:13.350 --> 00:12:17.040
where the petitioner has never been convicted of any crime.
275
00:12:17.040 --> 00:12:18.900
You can't hold against someone
276
00:12:18.900 --> 00:12:21.540
that they haven't presented evidence of rehabilitation
277
00:12:21.540 --> 00:12:22.800
when they're presumed innocent
278
00:12:22.800 --> 00:12:25.050
and they insist that they never did anything wrong.
279
00:12:25.050 --> 00:12:26.640
There's nothing to rehabilitate.
280
00:12:26.640 --> 00:12:27.870
And there's never been-
281
00:12:27.870 --> 00:12:30.510
Then, don't you mean every case then?
282
00:12:30.510 --> 00:12:32.295
I'm confused by that.
283
00:12:32.295 --> 00:12:34.590
If that's the analysis,
284
00:12:34.590 --> 00:12:38.267
why isn't there mandatory sealing of all the null prosse?
285
00:12:39.207 --> 00:12:41.373
Did I misunderstand your argument there?
286
00:12:42.310 --> 00:12:44.670
I understand he's presumed innocent, but-
287
00:12:47.417 --> 00:12:50.670
So not every case will present in a situation
288
00:12:50.670 --> 00:12:52.770
where the person has no criminal history whatsoever,
289
00:12:52.770 --> 00:12:53.603
first of all.
290
00:12:53.603 --> 00:12:58.580
But secondly, this is a multi-factor analysis
291
00:12:59.850 --> 00:13:03.354
and the judge didn't do a multi-factor analysis.
292
00:13:03.354 --> 00:13:06.960
But, most importantly what I'm saying
293
00:13:06.960 --> 00:13:10.290
is that this court's analysis in Pon
294
00:13:10.290 --> 00:13:11.640
is slightly off kilter here.
295
00:13:11.640 --> 00:13:13.080
Because, in Pon,
296
00:13:13.080 --> 00:13:16.230
that defendant had admitted to sufficient facts
297
00:13:16.230 --> 00:13:19.395
and gotten a CWOF and the case was eventually dismissed.
298
00:13:19.395 --> 00:13:21.600
And had a lengthy criminal history
299
00:13:21.600 --> 00:13:23.250
prior to the charge at issue.
300
00:13:23.250 --> 00:13:25.200
And so that this requirement
301
00:13:25.200 --> 00:13:28.260
of evidence of rehabilitation made sense in that context.
302
00:13:28.260 --> 00:13:30.570
It doesn't make sense to require someone
303
00:13:30.570 --> 00:13:32.010
to show that they're rehabilitated
304
00:13:32.010 --> 00:13:33.390
when there's no reason to think
305
00:13:33.390 --> 00:13:35.210
that they've done anything wrong in the first place.
306
00:13:35.210 --> 00:13:36.510
May I ask you, what's the difference
307
00:13:36.510 --> 00:13:39.390
for this case or in any effect,
308
00:13:39.390 --> 00:13:43.170
is there a difference between a dismissal and a null prosse?
309
00:13:43.170 --> 00:13:44.430
Not in the statute, Your Honor.
310
00:13:44.430 --> 00:13:45.660
No, not in the statute?
311
00:13:45.660 --> 00:13:48.480
In terms of the balancing analysis,
312
00:13:48.480 --> 00:13:50.550
I think the reason for the dismissal
313
00:13:50.550 --> 00:13:53.640
clearly is an appropriate factor for the judge to consider.
314
00:13:53.640 --> 00:13:55.500
And what I suggest in my brief
315
00:13:55.500 --> 00:13:57.240
is that you want to place that dismissal
316
00:13:57.240 --> 00:14:00.330
along a spectrum from exoneration,
317
00:14:00.330 --> 00:14:02.430
which should require sealing
318
00:14:02.430 --> 00:14:04.740
through to say a case that's dismissed
319
00:14:04.740 --> 00:14:06.150
because of the allowance.
320
00:14:06.150 --> 00:14:08.647
But when there's a null prosse entered,
321
00:14:09.930 --> 00:14:12.690
the government can bring the case back, can't it?
322
00:14:12.690 --> 00:14:13.740
Yes. Certainly.
323
00:14:13.740 --> 00:14:17.070
The reason for the null prosse under that reason,
324
00:14:17.070 --> 00:14:19.410
it is also significant too, right?
325
00:14:19.410 --> 00:14:20.940
Yes.
326
00:14:20.940 --> 00:14:22.980
Here that cuts against you.
327
00:14:22.980 --> 00:14:25.590
Well, I think in some ways it cuts both ways
328
00:14:25.590 --> 00:14:28.440
because it's a null prosse after the Commonwealth
329
00:14:28.440 --> 00:14:30.990
had a chance to prove the case and failed to do it.
330
00:14:33.217 --> 00:14:34.830
As far as the timing, 'cause of the mistrial?
331
00:14:34.830 --> 00:14:39.000
Right, 'cause he's been tried, he's not convicted.
332
00:14:39.000 --> 00:14:40.350
He's acquitted on some counts.
333
00:14:40.350 --> 00:14:42.960
Clearly the jury did not fully credit
334
00:14:42.960 --> 00:14:45.600
the testimony that was in front of them, it seems.
335
00:14:45.600 --> 00:14:48.270
The judge entered required findings on some counts.
336
00:14:48.270 --> 00:14:49.203
But-
337
00:14:50.190 --> 00:14:54.477
Are the factors, the six factors in Pon mandatory?
338
00:14:55.590 --> 00:14:57.180
I know they're not exhaustive.
339
00:14:57.180 --> 00:15:02.180
But you seem to be taking issue with the motion judge
340
00:15:03.330 --> 00:15:06.360
failure to consider some of these factors,
341
00:15:06.360 --> 00:15:07.770
suggesting that your position
342
00:15:07.770 --> 00:15:10.590
is that these six factors are mandatory.
343
00:15:10.590 --> 00:15:13.170
Even though, as you concede, some of them don't apply.
344
00:15:13.170 --> 00:15:17.340
It is error to omit a factor where it is relevant.
345
00:15:17.340 --> 00:15:19.950
That is an abuse of discretion
346
00:15:19.950 --> 00:15:22.250
to omit a significant factor in your analysis.
347
00:15:22.250 --> 00:15:26.700
The statute is basically whether substantial justice
348
00:15:26.700 --> 00:15:27.870
whether justice would be served,
349
00:15:27.870 --> 00:15:29.671
that's the standard in Pon.
350
00:15:29.671 --> 00:15:32.400
As Justice Wendlandt points out,
351
00:15:32.400 --> 00:15:35.940
Pon gives us factors to consider that aren't exhaustive.
352
00:15:35.940 --> 00:15:37.260
So I mean, I just hear you
353
00:15:37.260 --> 00:15:39.960
and I think of the parole board cases
354
00:15:39.960 --> 00:15:42.420
where there, but they're statutory, there are factors.
355
00:15:42.420 --> 00:15:45.000
And then we've said, "You should go through them all,
356
00:15:45.000 --> 00:15:46.920
even though you list them, it's not good enough."
357
00:15:46.920 --> 00:15:48.630
And that's what you're,
358
00:15:48.630 --> 00:15:50.160
'cause he listed the Pon factors,
359
00:15:50.160 --> 00:15:53.040
but you're saying what he did wasn't sufficient.
360
00:15:53.040 --> 00:15:54.300
And I get if,
361
00:15:54.300 --> 00:15:56.880
Justice Wendlandt's point, to carry it forward,
362
00:15:56.880 --> 00:16:01.260
is if they're not mandatory
363
00:16:01.260 --> 00:16:04.230
and he just focuses on one big one,
364
00:16:04.230 --> 00:16:06.300
does it still an abuse of discretion?
365
00:16:06.300 --> 00:16:08.130
Well, yes and so it's one thing
366
00:16:08.130 --> 00:16:09.900
to correctly state a legal standard
367
00:16:09.900 --> 00:16:10.860
and it's a separate thing
368
00:16:10.860 --> 00:16:12.960
to correctly apply the legal standard.
369
00:16:12.960 --> 00:16:16.050
And the judge has done one but not the other here.
370
00:16:16.050 --> 00:16:20.250
And if you look through the LL case which restated
371
00:16:20.250 --> 00:16:23.250
this Commonwealth's abuse of discretion standard of review,
372
00:16:23.250 --> 00:16:25.290
cites to Picciotto
373
00:16:25.290 --> 00:16:26.610
which is a first circuit case,
374
00:16:26.610 --> 00:16:29.040
which fleshes it out a little more.
375
00:16:29.040 --> 00:16:30.150
And what they say
376
00:16:30.150 --> 00:16:35.150
is a failure to consider a significant factor
377
00:16:35.340 --> 00:16:38.550
or the erroneous consideration of a forbidden factor
378
00:16:38.550 --> 00:16:40.980
both constitute an abuse of discretion.
379
00:16:40.980 --> 00:16:43.500
And I think we have both of those here
380
00:16:43.500 --> 00:16:45.750
in the sense that he failed to consider
381
00:16:45.750 --> 00:16:47.790
these significant factors that I've mentioned
382
00:16:47.790 --> 00:16:50.040
and also erroneously considered
383
00:16:50.040 --> 00:16:52.590
this factor of rehabilitation
384
00:16:52.590 --> 00:16:55.350
when that's not a meaningful term for someone
385
00:16:55.350 --> 00:16:57.250
who's never been convicted of a crime.
386
00:16:59.070 --> 00:17:00.508
Thank you, Your Honors.
387
00:17:00.508 --> 00:17:02.008
Okay, thank you.
388
00:17:03.690 --> 00:17:04.563
Attorney Hansen.
389
00:17:06.420 --> 00:17:07.253
Good morning, Your Honors.
390
00:17:07.253 --> 00:17:08.086
If it pleases the court,
391
00:17:08.086 --> 00:17:09.840
R.N. Hansen for the Commonwealth.
392
00:17:09.840 --> 00:17:12.030
I'd like to address the six Pon factors
393
00:17:12.030 --> 00:17:15.270
because I believe that the petitioner's petition
394
00:17:15.270 --> 00:17:16.743
fails on the merits.
395
00:17:17.730 --> 00:17:20.640
The impetus for this petition appears to have been
396
00:17:20.640 --> 00:17:23.493
the petitioner's desire to get a more higher paying job.
397
00:17:24.900 --> 00:17:28.770
And the first factor laid out in Pon is the disadvantages.
398
00:17:28.770 --> 00:17:30.420
And it goes through several potential ones,
399
00:17:30.420 --> 00:17:33.570
unemployment, underemployment, community involvement.
400
00:17:33.570 --> 00:17:36.600
In this case, this petitioner seeks
401
00:17:36.600 --> 00:17:39.932
to address the underemployment issue.
402
00:17:39.932 --> 00:17:41.700
Prior to his arrest,
403
00:17:41.700 --> 00:17:46.700
he was a warehouse worker at the Christmas Tree Shop.
404
00:17:46.920 --> 00:17:48.420
In his affidavit and at the hearing,
405
00:17:48.420 --> 00:17:50.340
they failed to stipulate or failed to mention
406
00:17:50.340 --> 00:17:52.263
how much money he made in that role.
407
00:17:53.160 --> 00:17:55.260
After he was released and at the hearing,
408
00:17:55.260 --> 00:17:57.210
he was a truck driver.
409
00:17:57.210 --> 00:17:58.440
He failed to present any evidence
410
00:17:58.440 --> 00:18:01.320
as to how much money he made in that role.
411
00:18:01.320 --> 00:18:03.120
Judge Davis, who presided over the hearing,
412
00:18:03.120 --> 00:18:04.962
stated that it seems to have been an improvement
413
00:18:04.962 --> 00:18:08.460
over the job that he had prior to his arrest.
414
00:18:08.460 --> 00:18:09.360
He doesn't reference that
415
00:18:09.360 --> 00:18:10.860
in his decision though, right?
416
00:18:10.860 --> 00:18:11.693
Correct.
417
00:18:11.693 --> 00:18:13.770
But it was discussed at the hearing and that-
418
00:18:13.770 --> 00:18:16.380
Yeah, but we have to rely on what he writes, right?
419
00:18:16.380 --> 00:18:18.393
Rather than what's discussed.
420
00:18:19.800 --> 00:18:21.240
I appreciate that.
421
00:18:21.240 --> 00:18:24.120
But some of his reasoning is also displayed
422
00:18:24.120 --> 00:18:27.180
in his conversation with Attorney Tavares.
423
00:18:27.180 --> 00:18:28.980
They had a back and forth throughout the hearing
424
00:18:28.980 --> 00:18:31.650
and it depicts that the judge did consider these factors,
425
00:18:31.650 --> 00:18:32.850
at least at the hearing.
426
00:18:35.070 --> 00:18:35.903
Attorney Tavares,
427
00:18:35.903 --> 00:18:37.320
who represented the petitioner at the hearing,
428
00:18:37.320 --> 00:18:39.690
also stated that the petitioner
429
00:18:39.690 --> 00:18:41.460
had applied for four separate jobs
430
00:18:41.460 --> 00:18:44.070
and had been declined in those positions.
431
00:18:44.070 --> 00:18:47.220
Those were a factory worker in Avon,
432
00:18:47.220 --> 00:18:49.380
a maintenance worker at Logan Airport,
433
00:18:49.380 --> 00:18:52.380
and then a driver for both Uber and Lyft.
434
00:18:52.380 --> 00:18:54.780
Again, the petitioner failed to identify
435
00:18:54.780 --> 00:18:56.490
how much money he would've potentially made
436
00:18:56.490 --> 00:18:59.373
and contrasted that with how much money he made currently
437
00:18:59.373 --> 00:19:01.770
as part of his petition.
438
00:19:01.770 --> 00:19:03.300
So that leaves the court in a position
439
00:19:03.300 --> 00:19:06.240
of is there really underemployment
440
00:19:06.240 --> 00:19:07.620
because we have no financials
441
00:19:07.620 --> 00:19:09.840
to actually base that decision on.
442
00:19:09.840 --> 00:19:10.830
Can we really do that
443
00:19:10.830 --> 00:19:12.933
based on what the judge wrote, though?
444
00:19:13.860 --> 00:19:17.700
I mean, the judge doesn't, I mean, I get it.
445
00:19:17.700 --> 00:19:20.100
If you've got a rape, you know,
446
00:19:20.100 --> 00:19:25.100
armed rape prosecution out there and on your record,
447
00:19:25.652 --> 00:19:27.420
you can reasonably infer
448
00:19:27.420 --> 00:19:30.000
that's gonna cut you outta some employment, right?
449
00:19:30.000 --> 00:19:31.740
I mean the judge doesn't say that,
450
00:19:31.740 --> 00:19:34.710
but can't we just, we can assume that
451
00:19:34.710 --> 00:19:37.018
as easily as what you're doing,
452
00:19:37.018 --> 00:19:39.253
which is he hasn't applied for very much.
453
00:19:39.253 --> 00:19:40.590
I don't know.
454
00:19:40.590 --> 00:19:42.590
Don't we have to make the judge do that?
455
00:19:43.867 --> 00:19:44.700
Yes.
456
00:19:44.700 --> 00:19:46.800
He didn't explicitly mention it in the decision
457
00:19:46.800 --> 00:19:49.530
and as I stated, it was explored on the record
458
00:19:49.530 --> 00:19:51.840
and in the transcript during the hearing,
459
00:19:51.840 --> 00:19:53.343
which I believe should be part
460
00:19:53.343 --> 00:19:56.010
or could be part of the reasoning in this case.
461
00:19:56.010 --> 00:19:58.140
This seems like what's driving this,
462
00:19:58.140 --> 00:20:00.420
I mean, again, maybe I'm over-reading this,
463
00:20:00.420 --> 00:20:02.910
is this is a very serious crime.
464
00:20:02.910 --> 00:20:06.300
And the victim can't testify the second time.
465
00:20:06.300 --> 00:20:10.233
And the judge is nervous about wiping out that.
466
00:20:11.280 --> 00:20:12.780
That's, I mean, these other factors
467
00:20:12.780 --> 00:20:15.453
are kind of not really what this is.
468
00:20:16.830 --> 00:20:19.230
I mean, if I'm a judge, that's what I'm worried about.
469
00:20:19.230 --> 00:20:22.380
Is this guy not being re-prosecuted
470
00:20:22.380 --> 00:20:25.383
'cause we don't have a victim here.
471
00:20:26.280 --> 00:20:31.280
The jury hung and that's a worrisome thing for a judge
472
00:20:33.600 --> 00:20:34.983
to seal that record.
473
00:20:36.090 --> 00:20:37.980
I completely agree with Your Honor.
474
00:20:37.980 --> 00:20:41.670
That would be factors three and six
475
00:20:41.670 --> 00:20:43.290
in the Pon decision,
476
00:20:43.290 --> 00:20:44.280
with the nature of the crime.
477
00:20:44.280 --> 00:20:47.130
Obviously, this is horrific crime.
478
00:20:47.130 --> 00:20:49.380
And certainly there's a risk to the community
479
00:20:49.380 --> 00:20:51.240
and the community has a right to know.
480
00:20:51.240 --> 00:20:53.760
But Mr. Levin makes the countervailing point,
481
00:20:53.760 --> 00:20:55.710
which the judge also doesn't discuss,
482
00:20:55.710 --> 00:20:59.460
which is, hey, rape, having that rape out there
483
00:20:59.460 --> 00:21:02.010
when he's never done anything ever in his life
484
00:21:02.010 --> 00:21:04.560
and they didn't convict him of it.
485
00:21:04.560 --> 00:21:09.303
That's a sword of Damocles over his head.
486
00:21:10.830 --> 00:21:11.670
That is correct.
487
00:21:11.670 --> 00:21:14.910
And that is a counterbalancing argument
488
00:21:14.910 --> 00:21:16.800
within the nature of the crime portion
489
00:21:16.800 --> 00:21:18.063
of the Pon analysis.
490
00:21:18.900 --> 00:21:20.610
But again, the underlying issue
491
00:21:20.610 --> 00:21:22.440
is that he's saying because of this
492
00:21:22.440 --> 00:21:24.450
he's unable to find gainful employment
493
00:21:24.450 --> 00:21:26.460
or employment that's gonna pay him more money.
494
00:21:26.460 --> 00:21:29.490
But he's provided no evidence to that.
495
00:21:29.490 --> 00:21:30.540
All that he's pointed out
496
00:21:30.540 --> 00:21:32.790
is that he's applied for jobs that are similar.
497
00:21:32.790 --> 00:21:34.110
But shouldn't, I mean,
498
00:21:34.110 --> 00:21:35.868
isn't Justice Georges right?
499
00:21:35.868 --> 00:21:38.250
This is difficult.
500
00:21:38.250 --> 00:21:39.420
Don't we want the judge
501
00:21:39.420 --> 00:21:42.300
to go through all of this carefully
502
00:21:42.300 --> 00:21:44.313
and explain his reasoning to us?
503
00:21:45.660 --> 00:21:47.400
And isn't that the safest course
504
00:21:47.400 --> 00:21:51.243
on paragraph two for us?
505
00:21:52.410 --> 00:21:54.540
That is certainly fair analysis, Your Honor.
506
00:21:54.540 --> 00:21:56.670
I do believe that the argument
507
00:21:56.670 --> 00:21:58.773
does fail on the merits in the end.
508
00:22:00.420 --> 00:22:02.400
But shouldn't we see it
509
00:22:02.400 --> 00:22:04.353
and have it all fleshed out for us?
510
00:22:05.340 --> 00:22:07.733
I mean, I understand why I wouldn't want to do it.
511
00:22:08.820 --> 00:22:12.714
And also he's had a hearing, but again,
512
00:22:12.714 --> 00:22:15.750
can I shift you to paragraph one for a second?
513
00:22:15.750 --> 00:22:16.583
Yes.
514
00:22:16.583 --> 00:22:20.243
So, you know, isn't Mr. Levin right?
515
00:22:20.243 --> 00:22:25.243
Once we remove the constitutional overlay,
516
00:22:25.800 --> 00:22:29.040
aren't we left with this mandatory language on acquittals,
517
00:22:29.040 --> 00:22:32.853
that at least the acquittals should be sealed?
518
00:22:33.723 --> 00:22:34.556
Or why not?
519
00:22:35.850 --> 00:22:37.530
This case is a little bit messy
520
00:22:37.530 --> 00:22:39.753
in the sense that you have six charges.
521
00:22:40.830 --> 00:22:43.770
And some of them he was found not guilty.
522
00:22:43.770 --> 00:22:45.660
So on one rape charge, he was found not guilty.
523
00:22:45.660 --> 00:22:49.050
On the other rape charge, it was a hung jury
524
00:22:49.050 --> 00:22:50.880
and the case ended up being null prossed.
525
00:22:50.880 --> 00:22:53.280
With respect to the reason why it was null prossed,
526
00:22:53.280 --> 00:22:56.190
the victim had a relapse
527
00:22:56.190 --> 00:22:58.920
as a result of testifying at trial.
528
00:22:58.920 --> 00:23:01.260
They tried to rehabilitate her numerous times,
529
00:23:01.260 --> 00:23:03.180
get her treatment.
530
00:23:03.180 --> 00:23:04.620
That didn't work.
531
00:23:04.620 --> 00:23:06.628
It took several years before the Commonwealth-
532
00:23:06.628 --> 00:23:10.593
Is there are a messy exception to the sealing under 100C?
533
00:23:11.490 --> 00:23:13.110
It seems to be that's what you're arguing,
534
00:23:13.110 --> 00:23:17.310
that it's messy and therefore you don't get paragraph one
535
00:23:17.310 --> 00:23:19.080
on your not guilties.
536
00:23:19.080 --> 00:23:20.610
The argument I would make there
537
00:23:20.610 --> 00:23:23.790
is the plain text of the statute, Your Honor.
538
00:23:23.790 --> 00:23:25.680
The plain text is not for you, is it?
539
00:23:25.680 --> 00:23:27.847
I mean, the plain text says, "Mandatory."
540
00:23:27.847 --> 00:23:28.860
"Ye shall."
541
00:23:28.860 --> 00:23:29.970
Correct.
Okay.
542
00:23:29.970 --> 00:23:31.567
But it says cases.
543
00:23:31.567 --> 00:23:34.375
"In cases where they were found not guilty
544
00:23:34.375 --> 00:23:38.020
or there was no bill or no probable cause,
545
00:23:38.020 --> 00:23:40.710
then it shall be sealed."
546
00:23:40.710 --> 00:23:43.110
This was not a case where, as a whole,
547
00:23:43.110 --> 00:23:45.000
he was found not guilty.
548
00:23:45.000 --> 00:23:47.880
And that's why I use the colloquial term messy
549
00:23:47.880 --> 00:23:50.340
to represent this case 'cause it's not a case where-
550
00:23:50.340 --> 00:23:54.450
Why wouldn't it just be Attorney Levin's formulation then?
551
00:23:54.450 --> 00:23:57.870
Then it's charge specific, count specific.
552
00:23:57.870 --> 00:24:00.000
Because if you really read it as strictly
553
00:24:00.000 --> 00:24:01.170
as you're saying we ought to,
554
00:24:01.170 --> 00:24:04.440
I think his argument has a lot of force then.
555
00:24:04.440 --> 00:24:06.000
If you get one not guilty,
556
00:24:06.000 --> 00:24:08.310
and you've got six other charges you're found guilty,
557
00:24:08.310 --> 00:24:11.160
then you're eligible to have that entire case sealed.
558
00:24:11.160 --> 00:24:12.900
That wouldn't make any sense.
559
00:24:12.900 --> 00:24:16.179
How is this any less or more messy
560
00:24:16.179 --> 00:24:19.710
than the ones you were found not guilty on,
561
00:24:19.710 --> 00:24:23.070
you can get sealed and the others were still in play?
562
00:24:23.070 --> 00:24:25.413
Why isn't that just the right formulation?
563
00:24:26.760 --> 00:24:28.500
I think that's a very fair point, Your Honor.
564
00:24:28.500 --> 00:24:31.250
And maybe this is something that this case can address.
565
00:24:36.780 --> 00:24:38.460
Anything else?
566
00:24:38.460 --> 00:24:39.293
No, thank you.
567
00:24:39.293 --> 00:24:40.683
I rest on my brief. Thank you.