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SJC-13437 Conrad Murphy v. Carol A. Mici and others.
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Good morning, Madam Chief Justice
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and members of the court.
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In enacting the medical parole statute,
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the legislature was concerned with providing
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a potential avenue for release
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for prisoners who became debilitatingly ill
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and whose only other recourse
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was an executive clemency process,
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which was highly discretionary,
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and as this court noted in Harmon and in other cases,
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largely unsuccessful, highly unlikely to lead to release.
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And this court, in construing the medical parole statute,
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determined that prisoner,
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as that term is used in the statute in Harmon,
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the court said it applies only to committed offenders
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serving a criminal sentence.
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And that that interpretation does not frustrate
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the legislative intent of the medical parole statute,
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which is to provide an avenue for those prisoners
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who have no other recourse.
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Commissioner Malone, excuse me, Commissioner A. Mici-
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Just one fact point,
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he's already finished his criminal sentence, right?
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He is just being held at Bridgewater as an SDP, right?
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He is civilly committed as a sexually dangerous person.
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Right.
So therefore,
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he's seeking release through the wrong statutory process
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through the wrong decision maker.
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And Commissioner Mici was correct in rejecting
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the medical parole petition,
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because under this court's own determination,
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he is not a prisoner, as that term is used.
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And this court rejected the definition
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of prisoner contained in chapter 125, section 1M,
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which has a broader meaning,
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and in Justice Gaziano's opinion in Harmon said,
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"We reject that.
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"The context otherwise requires."
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And that was for pretrial detainees.
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So assume that's right for for a moment.
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Thank you.
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(everyone laughing)
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It was unanimous.
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It was unanimous.
Yeah, you joined it.
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We brought up detainees and civil
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aren't paroled, assume all that's right,
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is the problem here that when you
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get to the constitutional issue,
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it's not equal protection being argued?
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But substantive due process?
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There was a substantive due process claim,
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as we understood it, raised below,
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but there is no-
Or equal protection.
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At the Superior Court,
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at the hearing at the Superior Court,
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there was a discussion that could be
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tinged as equal protection.
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And the amicus certainly brings up equal protection,
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but there is no equal protection violation.
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SDP, sexually dangerous persons,
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are all held on a finding beyond a reasonable doubt
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that they are likely to re-offend due to a condition,
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a mental abnormality or personality disorder,
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and therefore they are not similarly situated
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to ordinary inmates under sentence,
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for whom there is no such finding.
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So there is no equal protection issue.
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And as for substantive due process,
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SDPs have available to them,
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this particularly menacing subset of sex offenders,
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have available to them a robust process
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that this court has found to comport with due process
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through Section 9.
What's the
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alacrity with which that robust process works
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when the civil detainee is saying,
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"I need my Section 9 hearing.
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"I need my qualified examiner really quickly,
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"because I am medically unable to re-offend."
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And a petition can be filed,
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and it can be filed by the department,
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and it has been filed by the department on occasion.
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A petition can be filed,
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and a trial will be given.
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And in the ordinary course,
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probably about a two-year timeframe.
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However, the SDP has available to him
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the opportunity to move to expedite
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the qualified examiner evaluations.
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The qualified examiners, as this court has said,
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are the independent accountable experts.
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They serve as the gatekeepers to that process.
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And if the qualified examiners opine that the person
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is not sexually dangerous due to age, infirmity,
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or some other combination of factors,
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the SDP is entitled to unqualified release
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from the SDP commitment.
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So if the person is, like Chapman, for instance, right?
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That's yes the case that all-
Yes.
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So if the person is so ill
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that they would get medical parole, were they a prisoner,
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the two QEs, you posit, would say,
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"This person has three months to live," essentially.
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The qualified examiners have access
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to the medical records.
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They have access to all records
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by statute of the person being evaluated,
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and routinely in cases where medical issues are of concern,
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and the court's own record in Chapman shows this,
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consult with the medical providers,
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review the medical records,
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interview medical staff at different times,
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depending on the circumstance,
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and questions they might have,
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and render those opinions.
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And as the record in this case shows,
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although Mr. Murphy did not avail himself of that-
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But it seems like the issue is the time.
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The only difference in the process is the time, right?
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And does that...
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Does that mean you have a right to expedited review?
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And if you don't get expedited review, there's a problem?
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'Cause I get your argument that (coughing)
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this person's no longer a prisoner.
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His criminal sentence is over with,
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he's only being held civilly,
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and now we're dealing with the issue
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that sort of bothered the trial court judge,
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which is there's no way,
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you're not guaranteed that expedited process
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in the SDP context
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that you're guaranteed in the medical parole process.
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Well, there's two differences,
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and I just want to address the first one first,
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which is who is the decision maker?
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So in the medical parole context,
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the discretion is vested in the commissioner.
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In the SDP process,
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which this court has said requires expert opinion,
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it requires expert opinion on the way in
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and it requires expert opinion in the discharge process,
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because the conditions at issue are not conditions
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that are susceptible to lay judgment.
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They require expert opinion.
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So that is one distinction.
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But in terms of the timing,
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and there's no record here with respect to Mr. Murphy,
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'cause he did not avail himself,
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despite a suggestion from the defendants,
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that he had the opportunity to seek
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expedited qualified examiner evaluations.
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And as the record in the defendant's 16L letter shows,
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he was found to remain sexually dangerous
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at the jury trial in July.
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But so back to Justice Lowy's sort of original question,
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though, about substantive due process, or I don't know.
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You also, there's a cruel
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or unusual punishment component to this, too.
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I think an argument.
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So if we have a dying SDP,
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you know, he's got leukemia,
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and he's gonna be dead in four months,
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does he have a right under the Cnstitution
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to an expedited review?
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Because otherwise he's gonna be dead
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before he can be released.
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He has a statutory right to seek to expedite his case,
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and as Justice-
But what happens
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if they don't?
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Do we deal with the issue of...
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'Cause it's all discretionary, right?
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You point to the fact that he could get one.
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Yes.
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Again, I'm,
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unlike my colleagues who sat in those sessions
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in Superior Court, my sense is they're quite backed up.
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And do you have a constitutional right
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to expedite that thing when you're being held as an SDP,
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which is a civil commitment
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after you've finished your criminal sentence.
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You have a right to a speedy hearing,
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and that takes into account a variety of factors
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in what is speedy.
What does mean that mean?
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So there's not a set deadline.
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In this court's cases from Trimmer to LeSage,
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have never set a timeframe.
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However, one of the reasons you don't see speedy trial cases
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on these matters very often is because
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of the way that the actual SDP session works.
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And for the benefit of those of you
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who haven't sat in the session, it's a unified session.
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So all Section 9 petitions are concentrated
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in Suffolk Superior Court where they're managed,
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and they're generally assigned a trial date
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as the next petition date,
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in order that the petitions are filed.
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But as the record in this court shows,
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when it is appropriate to file a motion,
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and there have been joint motions to expedite,
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there have been assented to motions to expedite
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qualified examiner reviews,
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then the court largely grants those.
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Yeah, but let me ask Justice Kafker's question
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in a slightly different way.
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What is the best case scenario
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how quickly you can get two qualified examiner reports?
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Typically, and we haven't had some,
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a case where death was imminent,
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so I just wanna be very clear.
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Typically we would,
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we would typically ask and have agreed to 60 days,
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which is shorter than
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the medical parole statute process by six days.
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Typically we would agree to 60 days.
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Sometimes it's a little bit less.
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Depending on a variety of circumstances,
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it could be a little bit longer.
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But we have typically agreed to 60 days.
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And that's what you see in the record
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of the other examples that have happened.
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I'm sorry, what are the circumstances
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under which you agree to the 60 days, typically?
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When the two QEs say something?
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No, the QE evaluations would be triggered
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by this expedited order.
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Typically it would be when the Community Access Board,
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which reviews SDPs annually,
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and if the CAB renders, the Community Access Board,
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CAB for short, renders an opinion
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that the person is not sexually dangerous
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and if the person is-
But that's
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the problem, isn't it?
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I'm not saying it is a legal problem,
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but it's a practical problem.
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So you've got, again, somebody gets
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that terrible diagnosis that they're gonna be dead shortly.
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Really, you've gotta pick the QEs, right?
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Gotta pick the QEs, they gotta analyze them.
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But is there really a realistic 60-day process?
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Or what you're describing is something that happens
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when it's already teed up, meaning...
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Right, I mean, is there...
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Again, I get my diagnosis or whatever,
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you get the diagnosis that you're dying
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or that you're paralyzed
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and you can no longer cause any trouble.
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Can you really do this in 60 days?
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The qualified examiners? Yes.
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And it has been done on multiple occasions.
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I think seven times-
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Multiple occasions from-
In the last year.
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The moment you learn that you're dying
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or that you're physically incapable of
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the predator behavior you demonstrated before.
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So 60 days from the date that
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the court orders that the request is made.
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And typically, I'll give you an example, one of the ones
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that's in the record.
But could you finish
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the answer, please?
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Yeah.
Yeah, thank you.
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60 days from the date
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that the request is made to the court,
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which would typically come from either the Commonwealth
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reaching out to the other side's attorney,
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or the attorney reaching out
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to the Commonwealth and the court.
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But yes, 60 days
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is the timeframe that we have generally requested.
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If there's a reason to suggest 45 days...
270
00:12:01.230 --> 00:12:04.020
But to be clear, you want some reasonable process,
271
00:12:04.020 --> 00:12:06.270
which is why even in the medical parole statute,
272
00:12:06.270 --> 00:12:09.120
it's not here's the petition act on it tomorrow,
273
00:12:09.120 --> 00:12:12.270
because you want to have a reasonable process
274
00:12:12.270 --> 00:12:16.590
so that the risk to the community is looked at
275
00:12:16.590 --> 00:12:19.680
as well as whether the medical condition is debilitating,
276
00:12:19.680 --> 00:12:21.060
whether, for the purposes of
277
00:12:21.060 --> 00:12:22.350
an SDP finding or a medical-
Can I just clarify that?
278
00:12:22.350 --> 00:12:23.550
'Cause that's very helpful.
279
00:12:23.550 --> 00:12:24.383
I just wanna understand.
280
00:12:24.383 --> 00:12:28.410
So if your opposing counsel had sent a letter
281
00:12:28.410 --> 00:12:33.410
to the court saying, "My client's dying,"
282
00:12:34.620 --> 00:12:39.023
then within 60 days you can create a QE review
283
00:12:41.160 --> 00:12:43.380
and tee this up,
284
00:12:43.380 --> 00:12:45.480
so that we don't have the timing problem
285
00:12:45.480 --> 00:12:48.480
that bothered the trial judge in this case.
286
00:12:48.480 --> 00:12:49.410
Yes.
287
00:12:49.410 --> 00:12:53.580
And that's normally what we would agree to when we...
288
00:12:54.720 --> 00:12:57.570
And as you can see from the record,
289
00:12:57.570 --> 00:13:01.260
assented to or joint motions, and generally speaking,
290
00:13:01.260 --> 00:13:03.840
I work or we work with the opposing attorney
291
00:13:03.840 --> 00:13:05.130
to pick a date that's reasonable
292
00:13:05.130 --> 00:13:07.830
based on the medical condition as well as
293
00:13:07.830 --> 00:13:09.690
the need to get the evaluations completed.
294
00:13:09.690 --> 00:13:11.160
Can I ask you,
295
00:13:11.160 --> 00:13:14.760
would you agree that we should clarify the time standard
296
00:13:14.760 --> 00:13:16.870
as to satisfy substantive due process
297
00:13:17.714 --> 00:13:19.620
in these circumstances?
298
00:13:19.620 --> 00:13:21.840
No, because there's not a record before you
299
00:13:21.840 --> 00:13:23.970
that there's any due process problem here.
300
00:13:23.970 --> 00:13:25.500
The petitioner, Mr. Murphy,
301
00:13:25.500 --> 00:13:29.010
never sought to expedite the SDP process.
302
00:13:29.010 --> 00:13:30.870
And Judge Ham in the Superior Court
303
00:13:30.870 --> 00:13:33.120
alluded to one of the reasons why not,
304
00:13:33.120 --> 00:13:35.820
because an SDP might not want a QE saying
305
00:13:35.820 --> 00:13:37.890
that he remains sexually dangerous,
306
00:13:37.890 --> 00:13:39.630
which would ultimately not very much
307
00:13:39.630 --> 00:13:42.916
help medical parole even if he were
308
00:13:42.916 --> 00:13:44.610
relevant for it.
So we need wait for
309
00:13:44.610 --> 00:13:46.407
a case where this issue is raised.
310
00:13:46.407 --> 00:13:48.060
Yes.
311
00:13:48.060 --> 00:13:50.670
And one of the reasons you don't see cases
312
00:13:50.670 --> 00:13:51.840
with this issue raised
313
00:13:51.840 --> 00:13:54.993
is because the process works so well in the Superior Court.
314
00:13:57.148 --> 00:14:00.810
And anybody can bring a motion to advance their petition,
315
00:14:00.810 --> 00:14:03.510
as Justice Cowin said, sitting as the single justice
316
00:14:03.510 --> 00:14:05.550
in pet large in this court
317
00:14:05.550 --> 00:14:08.190
before you can advance it ahead of anybody else,
318
00:14:08.190 --> 00:14:12.270
then you need to show a likelihood of success.
319
00:14:12.270 --> 00:14:14.700
With a medical issue like that, as the record shows,
320
00:14:14.700 --> 00:14:18.330
they're assented to and joint motions on occasion.
321
00:14:18.330 --> 00:14:20.280
But that issue is not right
322
00:14:20.280 --> 00:14:21.934
because it's not before the court.
323
00:14:21.934 --> 00:14:24.233
I understand that point,
324
00:14:25.168 --> 00:14:29.531
and just would be a lot more comfortable
325
00:14:29.531 --> 00:14:33.030
to have a record that says
326
00:14:33.030 --> 00:14:37.890
an expedited QE report is going to get to
327
00:14:37.890 --> 00:14:42.180
basically the same place as a medical parole evaluation
328
00:14:42.180 --> 00:14:45.480
in approximately the same amount of time.
329
00:14:45.480 --> 00:14:48.840
Right, and that's what the record shows in other cases
330
00:14:48.840 --> 00:14:51.480
where such a remedy was requested,
331
00:14:51.480 --> 00:14:54.570
but even if the court were inclined-
332
00:14:54.570 --> 00:14:57.900
Are there any published decisions related to that?
333
00:14:57.900 --> 00:15:00.809
Do we have any guidance out there where that happened?
334
00:15:00.809 --> 00:15:05.809
Even Superior Court decisions that we can turn to on that?
335
00:15:05.850 --> 00:15:08.426
Superior Court decisions where the order was-
336
00:15:08.426 --> 00:15:10.620
Just what you said happened?
337
00:15:10.620 --> 00:15:13.470
Sure, in the record itself,
338
00:15:13.470 --> 00:15:15.160
we have included in the record
339
00:15:16.590 --> 00:15:20.580
instances where expedited requests were made,
340
00:15:20.580 --> 00:15:24.420
they were either joint motions or assented to motions,
341
00:15:24.420 --> 00:15:27.120
and they were granted, and by my count,
342
00:15:27.120 --> 00:15:30.210
according to the court records that we have,
343
00:15:30.210 --> 00:15:31.740
there were seven such instances
344
00:15:31.740 --> 00:15:33.873
where motions were made last year.
345
00:15:35.040 --> 00:15:36.330
Not all of which may be in the record,
346
00:15:36.330 --> 00:15:37.470
but certainly the court could take
347
00:15:37.470 --> 00:15:39.540
judicial notice of the dockets,
348
00:15:39.540 --> 00:15:44.540
and they were all granted and the cases then proceeded.
349
00:15:44.880 --> 00:15:48.209
Because once you have a qualified examiner opinion,
350
00:15:48.209 --> 00:15:50.520
then the Commonwealth can proceed to trial,
351
00:15:50.520 --> 00:15:53.040
which would tend to suggest that the condition
352
00:15:53.040 --> 00:15:54.720
does not warrant release,
353
00:15:54.720 --> 00:15:57.717
or at least a fact finder or the jury should decide that.
354
00:15:57.717 --> 00:16:00.282
But if a person clearly has six months to live
355
00:16:00.282 --> 00:16:02.197
and the two QEs come back and say,
356
00:16:02.197 --> 00:16:03.577
"They're no longer sexually dangerous
357
00:16:03.577 --> 00:16:06.330
"because they're so infirm," the person's released.
358
00:16:06.330 --> 00:16:08.400
The person is unqualifiedly released
359
00:16:08.400 --> 00:16:13.400
from the initial for, excuse me, from the SDP commitment,
360
00:16:13.500 --> 00:16:15.900
and unless they're held on some other custody
361
00:16:15.900 --> 00:16:17.370
awaiting trial for something,
362
00:16:17.370 --> 00:16:19.920
they would be unqualifiedly released to the community.
363
00:16:19.920 --> 00:16:21.960
But even if the court were to be concerned about that,
364
00:16:21.960 --> 00:16:25.470
the remedy for a problem in the SDP process
365
00:16:25.470 --> 00:16:28.110
is not to expand the medical parole statute
366
00:16:28.110 --> 00:16:31.890
beyond what this court has already said it applies to.
367
00:16:31.890 --> 00:16:33.900
That would be the province of the legislature,
368
00:16:33.900 --> 00:16:35.400
and in the nearly two and a half years
369
00:16:35.400 --> 00:16:37.020
since Harmon was issued,
370
00:16:37.020 --> 00:16:39.660
the legislature has not amended the statute.
371
00:16:39.660 --> 00:16:42.990
And because the SDPs have a robust process to seek release,
372
00:16:42.990 --> 00:16:45.220
including to expedite it, and I would invite
373
00:16:46.475 --> 00:16:50.910
the attention to Justice Cowin's opinion in pent large,
374
00:16:50.910 --> 00:16:53.040
included in the record,
375
00:16:53.040 --> 00:16:54.600
because they have a robust process
376
00:16:54.600 --> 00:16:57.333
there's no constitutional violation here.
377
00:16:58.560 --> 00:17:00.160
Okay, thank you.
Thank you.
378
00:17:01.140 --> 00:17:02.163
Attorney Koes.
379
00:17:10.530 --> 00:17:11.550
Good morning, Your Honors.
380
00:17:11.550 --> 00:17:12.570
May it please the court,
381
00:17:12.570 --> 00:17:16.620
Matthew Koes here on behalf of the appellee, Conrad Murphy.
382
00:17:16.620 --> 00:17:18.360
We are asking this court to uphold
383
00:17:18.360 --> 00:17:20.760
the Superior Court's decision,
384
00:17:20.760 --> 00:17:25.200
which merely gave Mr. Murphy the opportunity
385
00:17:25.200 --> 00:17:27.690
to be released on supervised release
386
00:17:27.690 --> 00:17:29.790
and that his medical parole petition
387
00:17:29.790 --> 00:17:32.580
be reviewed and considered on the merits.
388
00:17:32.580 --> 00:17:34.473
Well, given the holding in Harmon,
389
00:17:35.730 --> 00:17:38.673
I don't understand that position under the statute.
390
00:17:39.720 --> 00:17:43.200
Well, I'm glad you asked that question, Justice Wendlandt,
391
00:17:43.200 --> 00:17:44.643
because I think that,
392
00:17:46.950 --> 00:17:49.533
I read Harmon to be a little bit different.
393
00:17:50.580 --> 00:17:52.620
I see the analysis under Harmon
394
00:17:52.620 --> 00:17:55.353
as being kind of a two-step analysis.
395
00:17:56.880 --> 00:18:01.500
We first look at the question of whether or not
396
00:18:01.500 --> 00:18:04.773
the individual qualifies as a prisoner,
397
00:18:05.730 --> 00:18:07.777
and that definition is,
398
00:18:07.777 --> 00:18:10.447
"A committed offender and such other person
399
00:18:10.447 --> 00:18:15.367
"as is placed in custody in a correctional facility
400
00:18:15.367 --> 00:18:19.350
"in accordance with the law."
Unless context requires.
401
00:18:19.350 --> 00:18:23.190
Exactly, Your Honor, unless context requires.
402
00:18:23.190 --> 00:18:26.550
So I think context does matter in this case.
403
00:18:26.550 --> 00:18:29.670
I think you have to look at the nature of individuals
404
00:18:29.670 --> 00:18:32.910
who've been civilly committed under Chapter 123a,
405
00:18:32.910 --> 00:18:34.380
and I think you also have to look at
406
00:18:34.380 --> 00:18:38.590
the nature of the sexually dangerous proceedings
407
00:18:39.540 --> 00:18:42.573
and the medical parole statute itself.
408
00:18:43.620 --> 00:18:44.760
So-
We've said
409
00:18:44.760 --> 00:18:47.823
time and time again that they are civil commitments.
410
00:18:49.950 --> 00:18:50.940
That's correct.
411
00:18:50.940 --> 00:18:55.383
But I would suggest in the context of medical parole,
412
00:18:59.610 --> 00:19:01.920
that they should qualify as prisoners
413
00:19:01.920 --> 00:19:05.490
under the more broader statutory definition
414
00:19:05.490 --> 00:19:07.800
under 125 Section 1,
415
00:19:07.800 --> 00:19:12.787
as opposed to what is required under 123a to get the-
416
00:19:13.686 --> 00:19:18.686
Didn't we already reject doing that in Harmon?
417
00:19:18.720 --> 00:19:19.553
In Harmon?
418
00:19:19.553 --> 00:19:20.430
I disagree, Your Honor.
419
00:19:20.430 --> 00:19:25.430
I think that Harmon was specific to pretrial detainees.
420
00:19:26.400 --> 00:19:28.890
I know that was what the subject of Harmon was.
421
00:19:28.890 --> 00:19:33.890
But if Justice Gaziano discussed on behalf of the court,
422
00:19:34.620 --> 00:19:39.620
very much so, that the nexus between that term and parole,
423
00:19:41.190 --> 00:19:46.190
and that parole was the chief driver here.
424
00:19:46.440 --> 00:19:51.440
And clearly when you're talking about someone
425
00:19:51.540 --> 00:19:54.240
who's already committed a sentence or done a sentence,
426
00:19:54.240 --> 00:19:55.680
finished the custodial sentence,
427
00:19:55.680 --> 00:19:58.920
and now they're being held civilly, they're not on parole.
428
00:19:58.920 --> 00:20:02.227
So how could you work backwards and shoehorn SDPs
429
00:20:04.200 --> 00:20:08.370
into the definition we laid out in Harmon for prisoner?
430
00:20:08.370 --> 00:20:11.430
Well, again, I think that they do meet
431
00:20:11.430 --> 00:20:16.290
the broader definition under 125 Section 1M,
432
00:20:16.290 --> 00:20:21.290
but again, as the statute itself says, context matters.
433
00:20:21.510 --> 00:20:24.240
So sexually dangerous persons
434
00:20:24.240 --> 00:20:27.000
are essentially serving an extension
435
00:20:27.000 --> 00:20:28.740
of their original criminal sentence.
436
00:20:28.740 --> 00:20:31.230
But that'd be a due process...
437
00:20:31.230 --> 00:20:33.240
That's a double jeopardy violation, come on.
438
00:20:33.240 --> 00:20:34.457
Yeah, not doing that.
439
00:20:34.457 --> 00:20:36.060
Matter of fact-
That would
440
00:20:36.060 --> 00:20:37.353
be unconstitutional.
441
00:20:38.790 --> 00:20:40.110
I mean maybe you had a better argument
442
00:20:40.110 --> 00:20:43.740
when DOC was running the treatment center, I don't know.
443
00:20:43.740 --> 00:20:47.160
But it's not an extension of a criminal sentence.
444
00:20:47.160 --> 00:20:48.540
It can't be.
445
00:20:48.540 --> 00:20:51.630
I'm arguing from an objective standpoint.
446
00:20:51.630 --> 00:20:52.463
We have-
Well,
447
00:20:52.463 --> 00:20:54.090
try a legal standpoint.
(person laughing)
448
00:20:54.090 --> 00:20:55.800
It isn't.
449
00:20:55.800 --> 00:20:57.060
So assuming that argument
450
00:20:57.060 --> 00:20:59.013
isn't gonna hold water with this court,
451
00:21:00.180 --> 00:21:02.550
can you explain to me why...
452
00:21:02.550 --> 00:21:03.690
I don't really understand
453
00:21:03.690 --> 00:21:05.790
your substantive due process argument.
454
00:21:05.790 --> 00:21:07.290
Can you explain that?
455
00:21:07.290 --> 00:21:10.260
Well, I think the substantive due process argument
456
00:21:10.260 --> 00:21:15.105
is essentially born out of the concept of equal protection.
457
00:21:15.105 --> 00:21:17.010
(laughing) Well, those are two different concepts.
458
00:21:17.010 --> 00:21:18.120
So can you stick to one?
459
00:21:18.120 --> 00:21:18.953
which one is it,
460
00:21:18.953 --> 00:21:20.609
equal protection or substantive due process?
461
00:21:20.609 --> 00:21:22.230
Well, I think the substantive due process
462
00:21:22.230 --> 00:21:27.120
gets to the context of the medical parole proceedings,
463
00:21:27.120 --> 00:21:30.750
as judge-
Your opposing counsel
464
00:21:30.750 --> 00:21:32.640
did point out, I thought, quite well,
465
00:21:32.640 --> 00:21:35.250
that they are differently situated.
466
00:21:35.250 --> 00:21:37.350
SDPs are differently situated
467
00:21:37.350 --> 00:21:39.810
than your garden variety inmate.
468
00:21:39.810 --> 00:21:41.610
Do you agree with that?
469
00:21:41.610 --> 00:21:43.560
Correct.
Okay, so given that,
470
00:21:43.560 --> 00:21:46.020
how could it be a substantive due process problem
471
00:21:46.020 --> 00:21:47.583
to treat them differently?
472
00:21:48.420 --> 00:21:51.540
How does it shock the conscience to treat an SDP,
473
00:21:51.540 --> 00:21:55.560
who has a whole series of other procedural protections,
474
00:21:55.560 --> 00:21:58.440
beyond a reasonable doubt, annual reviews,
475
00:21:58.440 --> 00:22:01.110
different than the regular inmate?
476
00:22:01.110 --> 00:22:06.110
So there's no process under the SDP statute
477
00:22:06.870 --> 00:22:11.870
which allows the civilly committed individuals
478
00:22:12.300 --> 00:22:15.060
to be reviewed or evaluated
479
00:22:15.060 --> 00:22:17.160
solely upon their medical condition.
480
00:22:17.160 --> 00:22:19.200
No, but doesn't it tie to the fact
481
00:22:19.200 --> 00:22:21.810
to whether or not they continued to be an SDP,
482
00:22:21.810 --> 00:22:24.180
whether the public continues to be at risk
483
00:22:24.180 --> 00:22:25.620
because of this person?
484
00:22:25.620 --> 00:22:27.480
If they're so incapacitated
485
00:22:27.480 --> 00:22:29.100
by their medical disability
486
00:22:29.100 --> 00:22:30.990
that they can no longer function,
487
00:22:30.990 --> 00:22:32.130
doesn't that have an effect
488
00:22:32.130 --> 00:22:35.070
on whether the QE is gonna be able to say
489
00:22:35.070 --> 00:22:36.840
that they are still an SDP?
490
00:22:36.840 --> 00:22:38.550
Correct, Your Honor.
491
00:22:38.550 --> 00:22:42.030
It is part of that process
492
00:22:42.030 --> 00:22:44.400
that's been laid out by the legislature.
493
00:22:44.400 --> 00:22:46.530
It is part of the, the analysis,
494
00:22:46.530 --> 00:22:48.870
but it is not the entire analysis.
495
00:22:48.870 --> 00:22:51.930
The entire analysis under chapter 123a
496
00:22:51.930 --> 00:22:53.943
is mental abnormality.
497
00:22:55.833 --> 00:22:59.400
So anybody with a mental abnormality is an SDP?
498
00:22:59.400 --> 00:23:01.510
A mental abnormality that
499
00:23:02.580 --> 00:23:05.310
kind of propels them or compels them
500
00:23:05.310 --> 00:23:08.490
to commit some sort of repetitive sexual-
501
00:23:08.490 --> 00:23:09.540
What about Chapman?
502
00:23:10.710 --> 00:23:12.360
Pardon?
What about Chapman?
503
00:23:12.360 --> 00:23:16.830
Well, I think Chapman is a good explanation in,
504
00:23:16.830 --> 00:23:20.860
or example of why an individual who is
505
00:23:22.830 --> 00:23:26.010
physically incapacitated or terminally ill
506
00:23:26.010 --> 00:23:29.250
may not render themselves sexually dangerous.
507
00:23:29.250 --> 00:23:33.030
But I think it's the process here that is different.
508
00:23:33.030 --> 00:23:38.030
Ultimately in the chapter 123a process,
509
00:23:40.710 --> 00:23:44.160
these individuals are looking for absolute freedom.
510
00:23:44.160 --> 00:23:46.800
Where under the medical parole process,
511
00:23:46.800 --> 00:23:49.263
they're looking for supervised release.
512
00:23:50.940 --> 00:23:53.910
It's a much speedier process,
513
00:23:53.910 --> 00:23:57.660
it focuses more on the medical condition,
514
00:23:57.660 --> 00:23:59.187
and it provides individuals with-
515
00:23:59.187 --> 00:24:02.460
But if these people are differently situated,
516
00:24:02.460 --> 00:24:03.903
as you just agreed,
517
00:24:05.280 --> 00:24:07.680
why are they entitled under the Constitution,
518
00:24:07.680 --> 00:24:10.473
U.S. or otherwise, to the same process?
519
00:24:11.880 --> 00:24:13.500
Perhaps I misspoke when I said
520
00:24:13.500 --> 00:24:15.600
that they were differently situated.
521
00:24:15.600 --> 00:24:18.270
I think when you look at individuals
522
00:24:18.270 --> 00:24:21.270
who are civilly committed, they're in a building,
523
00:24:21.270 --> 00:24:24.243
which is secured by the Department of Correction.
524
00:24:25.230 --> 00:24:27.450
A lot of times, such as in Mr. Murphy's case,
525
00:24:27.450 --> 00:24:32.190
he's in a building or a unit that also houses
526
00:24:32.190 --> 00:24:35.280
other prisoners who are serving their sentences.
527
00:24:35.280 --> 00:24:38.790
They're subject to many of the same rules and regulations
528
00:24:38.790 --> 00:24:41.580
that individuals who are serving sentences.
529
00:24:41.580 --> 00:24:44.040
And they also had get once annually
530
00:24:44.040 --> 00:24:45.900
a possibility of getting out.
531
00:24:45.900 --> 00:24:48.690
Do the inmates have that?
Inmates do not,
532
00:24:48.690 --> 00:24:49.710
but I think that-
So they're
533
00:24:49.710 --> 00:24:50.910
differently situated.
534
00:24:50.910 --> 00:24:52.620
They're there under different rules.
535
00:24:52.620 --> 00:24:54.360
Like I said, I still don't understand the Constitution-
536
00:24:54.360 --> 00:24:56.013
And they get a better deal.
537
00:24:57.000 --> 00:24:58.560
If they get released,
538
00:24:58.560 --> 00:25:01.230
they're not subject to the parole process.
539
00:25:01.230 --> 00:25:05.790
So, again, back to your substantive due process
540
00:25:05.790 --> 00:25:09.633
or cruel or unusual punishment or equal protection argument,
541
00:25:10.830 --> 00:25:14.880
the only issue that bothered the trial judge,
542
00:25:14.880 --> 00:25:17.610
and seems to be an issue, was the timing.
543
00:25:17.610 --> 00:25:20.220
But your sister's just got up and said
544
00:25:20.220 --> 00:25:22.890
you can get this done in an expedited way.
545
00:25:22.890 --> 00:25:26.010
So there can't be really a constitutional problem
546
00:25:26.010 --> 00:25:27.930
based on timing here.
547
00:25:27.930 --> 00:25:31.380
So is this like a solution in search of a problem?
548
00:25:31.380 --> 00:25:34.680
Or I don't know, or a problem in search of a solution.
549
00:25:34.680 --> 00:25:37.200
It just doesn't seem to make any sense that we're not,
550
00:25:37.200 --> 00:25:39.690
that we're gonna warp one statute
551
00:25:39.690 --> 00:25:42.900
when we have a statute that works perfectly fine
552
00:25:42.900 --> 00:25:45.270
that's directed at the problem.
553
00:25:45.270 --> 00:25:47.770
Well, I disagree with that, Your Honor, because,
554
00:25:49.680 --> 00:25:54.680
the timing that my sister elucidates on sounds attractive,
555
00:25:57.390 --> 00:26:00.300
but I don't think in reality it can always be the case.
556
00:26:00.300 --> 00:26:01.440
But do we have a record for that
557
00:26:01.440 --> 00:26:02.850
to decide that issue?
558
00:26:02.850 --> 00:26:06.150
Well, I would point to the record that-
559
00:26:06.150 --> 00:26:07.170
'Cause you didn't raise that
560
00:26:07.170 --> 00:26:08.610
below, right?
561
00:26:08.610 --> 00:26:10.080
Did not raise that below, Your-
562
00:26:10.080 --> 00:26:11.700
My concern, I think you might be,
563
00:26:11.700 --> 00:26:14.550
and I think Judge Ham focused on that,
564
00:26:14.550 --> 00:26:18.420
and it's worth talking about and may be meritorious,
565
00:26:18.420 --> 00:26:20.730
but in order for us to do so,
566
00:26:20.730 --> 00:26:24.010
we need to know is this solution
567
00:26:26.040 --> 00:26:30.750
that Ms. Murray tells us is the constitutional answer,
568
00:26:30.750 --> 00:26:35.220
is it illusory in that expedited doesn't mean expedited?
569
00:26:35.220 --> 00:26:36.180
You jump the line,
570
00:26:36.180 --> 00:26:39.330
which I think is a line for what you said in your brief,
571
00:26:39.330 --> 00:26:41.820
so that we really can't hang our hat on that,
572
00:26:41.820 --> 00:26:43.620
but we just don't know.
573
00:26:43.620 --> 00:26:46.440
'Cause you didn't raise it and there's no evidence below
574
00:26:46.440 --> 00:26:48.483
as to what went on, correct?
575
00:26:49.800 --> 00:26:50.880
I think that's fair.
576
00:26:50.880 --> 00:26:53.400
But I would point to the statute itself.
577
00:26:53.400 --> 00:26:55.020
I think we can look to the statute
578
00:26:55.020 --> 00:27:00.020
and look and see if there's anything within the statute 123a
579
00:27:00.259 --> 00:27:02.580
allows for-
Expedited is in
580
00:27:02.580 --> 00:27:04.620
the statute, correct?
581
00:27:04.620 --> 00:27:07.020
Well, I believe it says speedy hearing,
582
00:27:07.020 --> 00:27:09.000
but I think we have to kinda look at
583
00:27:09.000 --> 00:27:11.310
what the statutory language is
584
00:27:11.310 --> 00:27:13.650
and then also look at reality.
585
00:27:13.650 --> 00:27:15.960
I'd hate to make a constitutional rule in the dark
586
00:27:15.960 --> 00:27:17.487
where we don't know if...
587
00:27:17.487 --> 00:27:19.500
And you may be right.
588
00:27:19.500 --> 00:27:22.920
Maybe expedited means 120 days,
589
00:27:22.920 --> 00:27:26.520
and we have people who are infirm who should be released
590
00:27:26.520 --> 00:27:28.020
who aren't being released,
591
00:27:28.020 --> 00:27:30.630
and then we'd have constitutional issues
592
00:27:30.630 --> 00:27:32.820
of substantive due process and/or equal protection.
593
00:27:32.820 --> 00:27:34.770
But we just don't know,
594
00:27:34.770 --> 00:27:36.270
given the posture of this case.
595
00:27:36.270 --> 00:27:38.160
That's what troubles me.
596
00:27:38.160 --> 00:27:40.140
Well, I would say that the examples
597
00:27:40.140 --> 00:27:42.760
that the defendants have given in this case
598
00:27:43.680 --> 00:27:46.787
don't necessarily show all of the possibilities.
599
00:27:46.787 --> 00:27:51.120
They're talking about joint motions or assented to motions
600
00:27:51.120 --> 00:27:53.220
that may have been filed.
601
00:27:53.220 --> 00:27:56.400
There could certainly be circumstances where
602
00:27:56.400 --> 00:27:58.710
civilly committed individual would have
603
00:27:58.710 --> 00:28:01.350
severe medical issues,
604
00:28:01.350 --> 00:28:06.090
and the Department of Correction might choose to oppose it.
605
00:28:06.090 --> 00:28:11.090
And a judge sitting in that session might want to-
606
00:28:12.600 --> 00:28:15.810
Well, it could have one QE says yes and one QE says no.
607
00:28:15.810 --> 00:28:17.880
Right, that could be a-
That's correct, Your Honor.
608
00:28:17.880 --> 00:28:19.087
Or a judge might say,
609
00:28:19.087 --> 00:28:21.097
"Well, I don't know if I want to expedite
610
00:28:21.097 --> 00:28:25.147
"this particular Section 9 case and jump the line
611
00:28:25.147 --> 00:28:28.507
"unless we have concrete medical diagnosis
612
00:28:28.507 --> 00:28:30.537
"and a concrete medical opinion."
613
00:28:31.463 --> 00:28:33.180
The other one's saying that
614
00:28:33.180 --> 00:28:36.840
if your statutory argument doesn't work on prisoner
615
00:28:36.840 --> 00:28:39.090
and it's a pretty steep hill,
616
00:28:39.090 --> 00:28:40.680
you're the one saying that there's
617
00:28:40.680 --> 00:28:42.780
a substantive due process problem.
618
00:28:42.780 --> 00:28:47.780
So, I think the record has to come from you that there is,
619
00:28:48.720 --> 00:28:53.280
that this expedited QEs aren't going to
620
00:28:53.280 --> 00:28:55.140
ultimately get to the same issue
621
00:28:55.140 --> 00:28:57.783
as to whether this person is so,
622
00:28:59.400 --> 00:29:00.960
in such a state medically
623
00:29:00.960 --> 00:29:03.840
that they're not going to re-offend,
624
00:29:03.840 --> 00:29:07.200
and it gets you to the same place as medical parole.
625
00:29:07.200 --> 00:29:10.710
And by the way, that's an easier standard
626
00:29:10.710 --> 00:29:11.640
than medical parole,
627
00:29:11.640 --> 00:29:13.020
because in medical parole,
628
00:29:13.020 --> 00:29:15.840
even if you satisfy the medical issue,
629
00:29:15.840 --> 00:29:17.880
the Commissioner of the Department of Corrections
630
00:29:17.880 --> 00:29:22.110
still has to analyze the welfare of society of the release.
631
00:29:22.110 --> 00:29:27.110
So the Section 9 route actually might be easier
632
00:29:28.320 --> 00:29:30.900
to satisfy than the medical parole route.
633
00:29:30.900 --> 00:29:33.810
It doesn't have that welfare of society overhang on it.
634
00:29:33.810 --> 00:29:37.470
Well, I would argue against that in two ways.
635
00:29:37.470 --> 00:29:40.770
I think one is the timing issue.
636
00:29:40.770 --> 00:29:44.640
Again, we have kind of the best circumstances
637
00:29:44.640 --> 00:29:47.070
that have been laid out by the defendants in this case,
638
00:29:47.070 --> 00:29:50.733
but there could be situations where it gets drawn out.
639
00:29:51.660 --> 00:29:54.150
And also an individual who's been civilly committed
640
00:29:54.150 --> 00:29:57.873
doesn't have the opportunity to seek reconsideration.
641
00:29:58.830 --> 00:30:01.130
Can I ask you just a quick question on this?
642
00:30:03.150 --> 00:30:07.800
In what part of substantive due process jurisprudence,
643
00:30:07.800 --> 00:30:10.533
is there anything about the time?
644
00:30:12.900 --> 00:30:14.010
Well, I think-
That requires
645
00:30:14.010 --> 00:30:18.690
the government to act within a particular
646
00:30:18.690 --> 00:30:21.390
60-day window, 120-day window.
647
00:30:21.390 --> 00:30:24.060
I don't understand the nexus between
648
00:30:24.060 --> 00:30:26.250
the time that you're arguing for
649
00:30:26.250 --> 00:30:28.830
and substantive due process
650
00:30:28.830 --> 00:30:31.170
or any of the law in that regard.
651
00:30:31.170 --> 00:30:35.190
Right, so the Superior Court's concern
652
00:30:35.190 --> 00:30:37.800
in this particular case was twofold.
653
00:30:37.800 --> 00:30:42.800
It was the length of time and the opportunity.
654
00:30:44.160 --> 00:30:46.050
And so in the statute
655
00:30:46.050 --> 00:30:49.260
it sets forth an opportunity for individuals
656
00:30:49.260 --> 00:30:52.500
who are also in custody,
657
00:30:52.500 --> 00:30:56.280
and they get this opportunity to go before the Commissioner
658
00:30:56.280 --> 00:31:01.200
and present their petition and have it judged on the merits.
659
00:31:01.200 --> 00:31:03.150
That same particular opportunity
660
00:31:03.150 --> 00:31:06.123
is not available to somebody who's civilly committed.
661
00:31:07.080 --> 00:31:11.437
And also the process that's in place through 123a
662
00:31:13.170 --> 00:31:14.670
does not-
No, now where
663
00:31:14.670 --> 00:31:16.740
in substantive due process jurisprudence
664
00:31:16.740 --> 00:31:20.760
I might find it has to be done on 60-day window
665
00:31:20.760 --> 00:31:22.170
or 120-day window?
666
00:31:22.170 --> 00:31:25.860
And it has to be done by this particular decision maker,
667
00:31:25.860 --> 00:31:27.960
the Commissioner, as opposed to
668
00:31:27.960 --> 00:31:31.923
beyond a reasonable doubt at trial.
669
00:31:33.090 --> 00:31:35.070
Not in the medical parole context.
670
00:31:35.070 --> 00:31:36.570
I think this is a unique case,
671
00:31:36.570 --> 00:31:38.370
and we're asking that it be-
672
00:31:38.370 --> 00:31:39.353
For the first time, yeah.
Decided on-
673
00:31:39.353 --> 00:31:40.920
Because the time standards
674
00:31:40.920 --> 00:31:45.303
all revolve in Buckman around the statute, correct?
675
00:31:46.770 --> 00:31:48.600
I'm sorry, Your Honor, could you say that one more time?
676
00:31:48.600 --> 00:31:50.640
Buckman, the medical parole statute,
677
00:31:50.640 --> 00:31:53.760
when we talk about the the time standards,
678
00:31:53.760 --> 00:31:56.970
it's meant to meet the legislative mandate
679
00:31:56.970 --> 00:31:58.860
of giving meaningful medical parole
680
00:31:58.860 --> 00:32:00.930
before people die, essentially.
681
00:32:00.930 --> 00:32:03.060
Exactly, Your Honor, and I think,
682
00:32:03.060 --> 00:32:04.650
just to conclude-
But doesn't that
683
00:32:04.650 --> 00:32:07.560
also shift you to the SDP statute,
684
00:32:07.560 --> 00:32:08.790
because there you have a better
685
00:32:08.790 --> 00:32:11.040
substantive due process argument.
686
00:32:11.040 --> 00:32:16.040
This person shouldn't be in the treatment center
687
00:32:17.490 --> 00:32:18.467
unless they're dangerous,
688
00:32:18.467 --> 00:32:21.480
'cause they fulfilled their criminal sentence.
689
00:32:21.480 --> 00:32:23.700
That would be the substantive due process thing.
690
00:32:23.700 --> 00:32:26.700
The person's dying and is no longer dangerous
691
00:32:26.700 --> 00:32:27.930
and shouldn't be in jail.
692
00:32:27.930 --> 00:32:29.490
That's your best argument.
693
00:32:29.490 --> 00:32:32.440
But that shifts you over to the SDP statute
694
00:32:33.318 --> 00:32:37.500
as the appropriate place to deal with this, doesn't it?
695
00:32:37.500 --> 00:32:38.790
I disagree, Your Honor,
696
00:32:38.790 --> 00:32:41.880
because I think that the SDP doesn't,
697
00:32:41.880 --> 00:32:46.080
the SDP statute doesn't adequately address
698
00:32:46.080 --> 00:32:48.030
both the resources that are available
699
00:32:48.030 --> 00:32:51.416
under medical parole and the timing issues
700
00:32:51.416 --> 00:32:52.980
that are in there.
But that gets back to
701
00:32:52.980 --> 00:32:56.250
Justice Gaziano's and Justice Lowy's point about
702
00:32:56.250 --> 00:32:59.850
the absence of proof and how that plays out.
703
00:32:59.850 --> 00:33:03.180
'Cause you haven't shown
704
00:33:03.180 --> 00:33:06.630
that the other process doesn't work.
705
00:33:06.630 --> 00:33:08.760
I don't know which way that cuts.
706
00:33:08.760 --> 00:33:10.170
But you haven't raised the issue
707
00:33:10.170 --> 00:33:12.970
that they can't do it in an expedited way over there
708
00:33:14.190 --> 00:33:15.453
in the SDP,
709
00:33:16.440 --> 00:33:18.300
and therefore, you want us to find
710
00:33:18.300 --> 00:33:20.640
that we have to treat these SDPs
711
00:33:20.640 --> 00:33:22.770
under the medical parole statute.
712
00:33:22.770 --> 00:33:24.090
I just don't know if that works
713
00:33:24.090 --> 00:33:27.540
when you haven't proven that the SDP thing
714
00:33:27.540 --> 00:33:29.283
doesn't work on its own.
715
00:33:30.450 --> 00:33:33.580
Well, judge, I recognize that
716
00:33:35.190 --> 00:33:36.660
we're stuck with the record that we have
717
00:33:36.660 --> 00:33:38.910
on this particular case,
718
00:33:38.910 --> 00:33:42.359
but I would again point to the SDP statute
719
00:33:42.359 --> 00:33:45.240
that says speedy hearing.
720
00:33:45.240 --> 00:33:49.530
But what we know through LeSage and the other cases is that,
721
00:33:49.530 --> 00:33:51.930
and Mr. Murphy's case itself,
722
00:33:51.930 --> 00:33:54.393
we're looking at about two to three years,
723
00:33:55.500 --> 00:33:58.800
and we never know what might be right around the bend.
724
00:33:58.800 --> 00:34:00.840
You know, Mr. Murphy could suffer a stroke
725
00:34:00.840 --> 00:34:05.840
shortly after his SDP trial or after the QE evaluations,
726
00:34:10.170 --> 00:34:13.170
and he would have no recourse to
727
00:34:13.170 --> 00:34:15.060
have a second look at it,
728
00:34:15.060 --> 00:34:16.290
where he would have
729
00:34:16.290 --> 00:34:19.143
if the medical parole statute were in play.