-: SJC-13455, Commonwealth VAZ.
-: Re-vested.
-: Good morning, honorable justices of this court.
My name is Devora Vestor, and I represent the appellant, AZ,
who's here in court today.
While hundreds of people,
boarded in emergency rooms and stuck in acute care hospitals
are forced to wait for available psychiatric beds,
courts are unnecessarily hospitalizing pretrial defendants
under section 15-B
just to determine competence to stand trial.
In a AZ's case,
the court committed her under 15-B
without a constitutionally legitimate basis,
and no evidence that hospitalization
was the least restrictive means
of achieving this very narrow purpose.
To comply with strict scrutiny,
this court should interpret a necessary hospitalization
in 15-B to mean a likelihood of serious harm
in no less restrictive alternative.
-: Can we divide your argument into two parts?
The first is the statutory argument,
which reads in the likelihood of harm, correct?
And then the second part is the constitutional overlay,
which requires least restrictive means.
Is that accurate?
Devora: It is accurate.
-: Okay.
-: Would your Honor like me to-
-: Yeah, the first part, as far as the, how do you read in
to the word necessary likelihood of harm
when that's not in the statute?
-: Yes, your Honor.
Well, the premise is, first of all,
that necessary implies two constitutional bases,
and the first basis is the purpose of chapter 123,
which protects a person's paradigmatic right
to be free of physical restraint.
-: What I find hard in this case, a lot of things,
but one is the dual and constitutional rights for it.
'Cause one constitutional right that's at play
that's really not addressed is the right of a defendant
not to be tried who's incompetent,
and for the judge to get as much information as possible
to make that critical determination.
Where does that come into play?
-: Well, that's not in dispute, your Honor.
We agree that that is a compelling and legitimate right.
However, that interest is bound by
constitutional considerations,
and the only reasons why we detain a pretrial defendant
is either one, for dangerousness
or two, for non-compliance.
And so, the argument here is,
in chapter 123, we don't confine a person
unless there's a nexus between mental illness and harm.
And Section 15-B indicates
that dangerousness is actually a consideration.
And my primary argument.
-: That's for Bridgewater, correct?
-: Pardon? -: That's for Bridgewater?
-: Correct, the strict security argument is one of them,
because as this court stated
in KJ versus Bridgewater State Hospital,
you can't have a placement finding
unless you have a commitment finding.
So that's one argument.
The other argument is that there is 36-C.
36-C presumes that a person who's been committed under 15-B
is dangerous.
Because after that five-year period,
the prohibition on owning a firearm is over,
a person has to proactively go back to district court
to prove that he or she is no longer
a danger to public safety.
-: Boy, that's a lot of work,
for the statutory construction to do that.
I understand, and I'm interested
in your constitutional argument.
But what's necessary for the statute is that,
and I'm interested in hearing you attack the premise, too.
But the point is,
okay, 15-A didn't really give us our answer.
It's necessary to have inpatient here.
And I'm happy to have you push back on that
when we get to it.
But as far as where Justice Gaziano started,
I'm having a hard time with the statutory argument.
-: Well, let me try to unravel this here.
So, pretrial defendants
have one foot in the mental health door,
and they have another foot in the criminal door.
And what the argument is, is that pretrial defendants
should have the same due process rights
as non-criminal, non-forensic
persons under the mental health statute,
and also the same due process rights as pretrial defendants
who don't have a mental illness.
And in chapter 123, we don't commit a person
unless there's this nexus.
So the presumption is,
is that outpatient evaluation is the default.
-: Isn't due process satisfied by the hearing
and the judge's determination
that I don't have enough information from the 15-A?
I need two things,
a 20 day minimum examination or observation, I'm sorry,
plus another examination by a different provider
so I can get this information
to make this important decision.
Because if you have inpatient,
you don't get the 20-day observation.
I'm sorry, outpatient, I misspoke.
You don't get the 20-day observation,
which is critical to the finding.
-: Well, your Honor, when you get to 15-B.
Well, let's back up.
After the 51-A exam, the clinician's opining
that the person needs a further evaluation.
But liberty needs to be the default,
because that's the premise of chapter 123.
-: Right, and so your argument
is really not so much a statutory one,
but that we need to read 15-B
so as to permit it to be constitutional,
and that your reading into the word necessary
things that would be required to save it
to be constitutional?
-: That is correct, your Honor.
However, from the statutory point of view, again,
if the floor is not a likelihood of serious harm,
then we get to the situation AZ was in.
-: Well-
-: I'm sorry, go ahead, Justice Gaziano.
-: I was just gonna suggest
we move to the constitutional argument,
because that's really, I think, as Justice Wendlandt says,
your best argument,
and I wanna give you enough time to answer that,
unless Justice Georges had a different question.
-: It was one question before on the statutory interpretation
before you moved to that.
Because what I have the difficulty with,
this is still an abusive of discretion
standard we're dealing with, right?
At least on the finding of the 150-B.
And why I mentioned that to you is because
you say, in this case.
But this case, if you look at the record,
the clinician's testimony to the judge was uncontroverted.
All of the things that you're saying
were all argument that was made by the defendant's lawyer.
There wasn't evidence.
The only evidence that was presented
was the evidence of the clinician saying
that the further evaluation was necessary under 15-B,
and that Solomon Carter was where the defendant ought to go,
and that was uncontroverted.
So reading into all of this other stuff
when there was no evidence of that,
and when there was already funds that were given
for your own evaluation,
there were additional funds before the hearing.
So I'm struggling to see the statutory argument
when there wasn't any evidence of any of this
in front of the judge
that made the ultimate 15-B determination.
-: The statutory argument, your Honor,
is that there needs to be a presumption that outpatient
is the default for a further evaluation.
Because an outpatient eval, there's no
mystery to any of this. -: Okay, but
I want you to get to Justice Gaziano's point,
but we're only doing that if we're reading words
into the statute that ain't there, right?
Devora: Well.
-: This implicit standard of a likelihood of serious harm,
that we've gotta read that into the statutory language
that isn't there.
-: It is correct that those words
are not in the statute, your Honor.
But this court has read words into the statute,
in Nassar for example, imminent likelihood of serious harm.
The word imminent doesn't appear anywhere in 8A,
also, less restrictive alternative.
We all know that even if a judge finds a person
to be a likelihood of serious harm,
the analysis doesn't stop there.
-: Well, last restrictive alternative is a fundamental right,
substantive due process standard, correct?
-: Correct, as this court had held in minor.
However, earlier in Nassar,
that was a statutory interpretation,
because Nassar said that all who are concerned
in the administration of the law
need to find the least oppressive,
least burdensome controls over the individual
consistent with the purpose. -: Is it fair to say
if we get to where you wanna be,
it doesn't matter if we go statutory or constitutionally?
-: I don't know that it doesn't matter, but.
-: All right, let's pretend it doesn't.
Okay, next question.
So fundamental right, that's clear,
because it's a liberty interest,
and then we have to look at two things.
Is it narrowly tailored,
and then, importantly,
is it the least restrictive alternative?
That's what fundamental rights require, correct?
Devora: Correct.
-: And is your argument
that the least restrictive means available
means that the judge ought to consider
the outpatient avenue?
-: It means that the judge must consider outpatient.
And the fact that a clinician opines
that someone needs further evaluation
doesn't translate to inpatient.
-: No, no, that's where I'm getting at.
So it's the same question that I have.
Under the constitutional framework
of least restrictive alternative,
that doesn't happen in the ether.
That has to be on the basis of evidence.
What evidence was there that this could be done outpatient,
other than just attorney argument?
What evidence was before the judge?
-: Your Honor, I don't believe there needs to be evidence
that it can be done outpatient, I believe-
-: Well, I say that in the context
of there's affirmative evidence from the clinician
that inpatient is the most appropriate place.
So wouldn't that be the floor?
Wouldn't the evidence in front of the judge be,
well, that's the least restrictive
because that's the only evidence that I have?
-: Your Honor, if I may.
The clinician didn't testify
that hospitalization was the least restrictive means.
What she testified to was that if AZ wasn't hospitalized,
then she might deteriorate,
and therefore she needed treatment.
AZ was hospitalized for treatment,
and treatment is not constitutionally cognizable under 15-B.
-: I would push back on you on that.
The clinician was testifying in the context of competency,
that in order for her to meet
the legal definition of competency,
she needed to get treatment to get to that point.
It wasn't treatment removed from the central issue
of whether or not she was competent
for purposes of the prosecution.
It wasn't removed from that.
-: Your Honor, the judge in this case found
there were two reasons for hospitalizing AZ.
The first one was mental illness
and the second one was treatment,
and neither of those reasons
pertain to the very narrow purpose of 15-B.
It's a mere competence evaluation.
-: But can I ask, to follow up on Justice Gaziano's
question from earlier, which you didn't really answer,
can you do this type of competency hearing outpatient?
I mean, you've got enough concerns about competency.
You're gonna do this through someone showing up
for a couple of hours, a couple of times a week.
Don't you need that period
where someone is constantly under observation
to make that kind of call?
-: No, your Honor.
I believe the Amicus brief speaks to that,
that competence evaluations are very straightforward
and just as rigorous as inpatient evaluations,
and probably more effective.
The clinicians are just as qualified
to make this determination.
It's not rocket science, it can't be done
in the community. -: But can I ask
and follow up on Justice Georges' question?
Do we have that in the record,
as opposed to the briefing?
And who has the burden of proof on that?
Is that the Commonwealth or the def, or you?
-: Well, in this particular case,
since the Commonwealth was the moving party
and insisted on a competence evaluation,
I believe the burden was on the Commonwealth
in this particular case, and again-
-: In in fundamental rights, jurisprudence,
who has the obligation to prove the least restrictive
when you're doing this least restrictive alternative?
-: In the context of an existing statute?
-: Well, I think that's unclear, because the-
-: It must be the Commonwealth.
I mean, it must be the government
who has this overwhelming interest
that must also show that it's the least restrictive way
of accomplishing that interest.
How could it be otherwise,
that you would have a defendant
or just a garden-variety civilian
who'd have the burden of showing
that there were other alternative ways?
-: If I'm understanding your Honor correctly,
you're saying that if the Commonwealth
is asking for the evaluation,
then the Commonwealth has the burden?
-: Just as a matter of constitutional law,
I've never heard of a strict scrutiny application
where it's the person suggesting
whose liberty interest is at stake
who would be required to make the showing.
-: I agree with that, your Honor.
But also, the court can sua sponte.
-: But that's still the government, isn't it?
-: I guess it's still the government.
I think, in any event, the defendant
shouldn't have to prove anything
to get her outpatient evaluation, and that's my point.
That should be the premise,
and that's what we're asking this court,
to read into the statute to uphold a person's right
to be free from physical restraint,
and if there's evidence otherwise,
then that evidence can come forward.
-: Can I ask you how this would work in practical terms?
So you're here for your 15-A
and they bring out the court clinician.
Would it be incumbent upon the defense attorney to say,
I have an outpatient alternative
that I'd like to propose to the judge
so you can get the information
before you commit the person for 15-B?
Is that how it works?
-: Well, I don't think that there should be a burden
on the, again-
-: How's the judge gonna know about an outpatient alternative
unless he's given that information?
-: Well, the attorney
clearly can propose an alternative, and should,
but what I'm saying is I don't think that the defendant
should have to prove that.
I think that should be the presumption, the default.
-: Okay, so the judge says, I should, under the case law
and under the substantive due process,
I have to consider the least restrictive alternative.
The judge has to think about whether or not
an outpatient evaluation would be appropriate to make,
would have the same decision making that goes forward.
How is a judge gonna know what to do?
I'm just trying to think this through,
if we rule in your favor,
how this happens in the BMC and the district courts.
-: Unless the person is voluntarily going into a hospital
to have this very simple, straightforward examination done,
the presumption is it's outpatient.
The judge orders an outpatient evaluation.
-: And this only applies, by the way,
to people who are not incarcerated,
-: Correct, correct.
'Cause we're talking about people
who are living in the community who have lives,
who have jobs, who have housing,
and who stand to lose all of this.
You can lose all of this within 20 days, not to mention 40,
because the statute permits up to 40 days.
But if the judge orders outpatient
and gives the person the opportunity to succeed or fail,
then if the person fails because the person doesn't show up,
there's non-compliance, everyone comes back to court
and the judge has tools in her toolbox
to decide how to handle this
because she needs the information.
We don't have to go immediately to A 15-B.
The judge can-
-: That's the next question I had.
Can I then ask you, as far as the Amicus brief goes,
it suggests that outpatient isn't really a 15-B examination,
it's a continuation of a 15-A?
-: Yes, it is akin, I guess, to an extended 15.
-: So what's your position on that?
Does it matter if it's if it's the next step on a 15-B,
or if it's a continuation of the 15-A?
-: Well, the language of 15-B, as we know, is discretionary.
So the judge can order hospitalization,
or the judge can order outpatient.
So I don't necessarily think
it's an extended eval under 15-A.
-: So we preserve the 15-A clinician evaluation,
then the judge, under your scheme, says, what should I do,
is it necessary with the least restrictive alternative
to have a 15-B hospitalization,
or can I do a 15-B outpatient?
-: I think that the 15-A is only there
to separate two groups of people, right?
-: Right, the go, no go. -: One group,
they're going to trial,
and the other group, their competence is questionable.
And so, if liberty is the default,
and we see it just like in 58-A where pretrial release
on personal recognizance is the default,
and then we start chipping away at it
in a least restrictive alternative analysis
until we get to a place where there are no conditions left
that will satisfy the narrow purpose.
-: But isn't there an additional complication,
back to Justice Gaziano's dueling constitutional rights?
'Cause this isn't just a mental health hospitalization.
You're protecting the defendant's rights
not to be tried as incompetent.
I'm just worried that you're asking
for an abbreviated process.
It may be the least restrictive
in terms of the patient's liberty,
but it may be more problematic
in terms of determining the patient's competency without.
'Cause a 20-day evaluation's different
than showing up for an in an outpatient.
You may be one of those people
who goes in and out of mental health
and they're gonna see that within 20 days,
but they may miss it if they're doing an outpatient.
-: Well, again, your Honor,
I would refer you to the Amicus brief,
which clearly outlines the ease with which
an outpatient evaluation can be conducted in the community.
I think these are all assumptions
not based on evidence that.
-: But then do we need to remand this
to develop that record in a better way?
-: In this particular case, or?
-: Well, this particular case is complicated.
'Cause at one point she's found dangerous,
at one point she's not.
At one point she's found competent, at one point she's not.
I mean, it's, it's a tricky case.
-: And then ultimately,
the case for all of the procedural wranglings
resolves on the pretrial probation
where there's no allocution whatsoever.
-: Yes, and I'm- -: It's a complicated case.
-: I would like to say it's not as complicated
as your honors believe.
Because AZ, even though she was found dangerous,
she was in the community.
Because the judge found that there were conditions
that would satisfy any safety concerns the court had,
and she didn't violate her conditions.
And no matter how many times the Commonwealth
tried to revoke her bail, it didn't succeed.
She stayed in the community, she had her life.
And the evidence before the court was twofold,
that one, she appeared to not be able
to communicate effectively with her counsel
because of her presentation,
which included symptoms of mental illness,
and on the other hand, the clinician was worried
that if her condition went untreated,
she would continue to deteriorate.
But that has nothing to do with 15-B.
Unfortunately, that 15-B is very, very narrow.
-: That's a byproduct of the 15-B process, is the treatment.
But I take your point, that that's not the purpose,
or the constitutional purpose of a 15-B.
-: I don't even know that it's a byproduct, your Honor, I-
-: Of course it's a byproduct.
Because if someone is committed
and then they're on the right medication,
they get stabilized, et cetera, you've seen that,
that people get better sometimes during these evaluations.
-: Well, and people could also get better
in the community, your Honor.
And she was in regular therapy,
per her conditions of release.
She was taking her medications.
-: And I'm not saying that that's a way to resolve this case.
I'm just saying that's a reality.
-: Right, but again.
-: And you're asking for a broader rule, right?
You want us to create a presumption
in favor of outpatient evaluations,
it sounds like to me, right?
And that's a big step
that we don't necessarily have the record for.
-: I'm asking this court to interpret 15-B
as presuming outpatient
because of the fundamental right that a person has.
-: I get the legal stuff.
But do we have the factual record, and evidentiary record
to make that call that outpatient is just as good
or the same as?
I mean, I just don't...
I've read the decision,
I've read the back and forth in court,
but I'm just, I don't know, do we have enough?
-: Yes, I believe this court has enough on the record.
Because again, the only two reasons
for her commitment were mental illness and treatment,
which are outside the scope of 15-B, and that's it.
There is nothing in the record.
The Commonwealth was silent the whole time,
except for saying to the court
that it was not opposing the 15-A or 15-B,
because we're not here before your Honor on a 16-B.
It wasn't in opposition.
And so, since the Commonwealth in this case
perhaps had the burden
because it wanted the competency evaluation to be done,
and it brought no evidence,
I believe this court can make that ruling.
There was no evidence that an outpatient
would be less satisfactory than an inpatient evaluation.
And we have to defer to the right to have liberty
and be in the community,
and have it have the evaluation,
which is very straightforward, done in the community.
-: You're well over your time.
Thank you, Attorney Vestor.
We'll hear from Attorney McGee.
-: Thank you.
-: Good morning, Justices of the Supreme Judicial Court.
My name is Michael McGee.
I'm here on behalf
of the Norfolk District Attorney's Office.
As this court stated in Commonwealth versus Garcia,
General Laws Chapter 123, Section 15 is narrowly tailored.
-: Well, it's always the footnotes that get us.
(all laughing)
-: I dunno, who wrote Garcia?
(all laughing)
-: So, I went back to the briefs to figure out,
and first of all, the first half of the footnotes
suggests that it's an open question.
But the whole argument of the Commonwealth was about 15-B.
And so, as I was thinking about it over the weekend,
I guess that's why the footnotes in there,
but it's just a footnote.
It doesn't dictate our determination here.
I wouldn't build your whole argument
around a footnote in Garcia.
-: Well, some footnotes are better than others.
And I would say just in this case, this is not mere dicta,
that the court went out of its way
to distinguish it from 16-A.
-: Well, it is dicta,
but it's in there because the whole argument was about 15-B
and that the world was gonna collapse
if we require this substantive due process analysis
under 16, and that's gonna get infused in the 15,
and then there's gonna be a big problem.
-: You should know that Justice Lowy's
Carolyn footnote product is one of his big things,
so he likes footnotes.
Don't let him tell you otherwise.
-: Okay.
(judges laughing)
-: Let me ask you, on the substantive due process, right.
Let's skip to, I think, what is the main argument.
You agree, of course,
that a fundamental liberty interest is involved?
Michael: Absolutely.
-: And then the standard then becomes
whether 15-B is narrowly tailored
to achieve a compelling goal,
and also has to be the least restrictive
means available of achieving that goal.
That's the standard.
-: That's the standard, yes.
-: Why isn't outpatient the least restrictive means
of achieving that goal?
-: What I would suggest is the statute.
-: There's a constitutional overlay to the statute, right?
So it's not the statutory language.
Assuming you win on that one, I'm more worried about,
or not worried, I'm more focused on
the constitutional overlay.
-: I think what's really important to understand here
is that there is a neutral and very compelling interest
in having a defendant that is competent to stand trial,
to be convicted, and to be sentenced.
-: Right, so you have a compelling state interest.
Why is this the least restrictive alternative?
-: Because the liberty interest at stake here
is narrowly tailored to that interest.
-: We've got that though.
We checked that box. -: Absolutely.
-: So you have a compelling state interest
to only try competent people.
Absolutely, I get it.
Why is this 20-day inpatient
the least restrictive way of doing that?
-: That also goes to procedural due process and these words.
-: Yeah, but we have right procedural due process.
You got the hearing, you had a right to be herd,
you had a lawyer, now we gotta get the least restrictive.
We still gotta get you down
to that least restrictive alternative
on Justice Wendlandt's question and my initial question.
-: Well, you have to take into consideration
all of section 15 and what happens before that
and what the legislature intended,
and this language in here is conclusive
as to that legislative intent
in that what happens before here
is that you have a qualified clinician or two
opining, reporting to a judge what exactly hap-
-: You're good.
You're gonna win that argument and you get 15-D,
you're good.
When we're trying to figure out whether or not
you actually need inpatient
to be able to get the right decision on competency,
what's our record
if this is the least restrictive alternative?
We've been talking about
those are legislative facts when you're connecting
whether or not the least restrictive alternatives.
So, on this record, we've got Amicus briefs
that are raising the issue constitutionally.
You gotta deal with the constitutional issue.
How do we know?
This is the question that I think
Justice Kafker was getting at, and I'm having trouble with.
How do we know that outpatient's just as good?
Because if outpatient's just as good,
then you just don't need to send the person
for 20 or 40 days and have them lose their job,
and have beds being taken up
while people are boarding in emergency rooms
trying to get section 12 commitments.
-: I would suggest that that issue.
-: Can I piggyback on this so you can get that
right after Justice Lowy's point?
Because I really wanna go back to
how as a practical matter this works.
Because if we're looking at this hearing,
there's testimony from this clinician
that Solomon Carter is where.
So whose job is this?
After you answer Justice Lowy, could you answer that?
How is this supposed to work?
Is the DA supposed to go out and research
community facilities for this,
is the defense lawyer, is the judge?
Who's supposed to do this at the time of the hearing?
If you could get that after Justice Lowy question,
I would really love to know how this is gonna work.
-: Just starting with
whether this is properly before the court
and you have enough information,
I would suggest that you do not.
Because the evidence before the court was argument.
You had one qualified clinician presenting a case
after having met with this defendant twice.
-: Don't you lose? -: On insufficient information,
You deprived somebody of their due process?
-: Absolutely not.
This person had a hearing, had an opportunity to be heard.
-: Well, their liberty interest, I should say.
-: Yes. -: On insufficient information,
you deprive somebody of their liberty interest
for up to 20 days?
-: This particular defendant had exactly what that statute.
-: I'm not quibbling with you on the statute.
And it seems like, and maybe this is purposeful,
but I'll give you one last chance.
It seems like you're avoiding the constitutional issue,
which is, what in the record tells me
that 20 days inpatient is the least restrictive alternative
to deprive this defendant of her liberty interest?
-: Because the overriding interest is that neutral interest
in being found-
-: If you have a compelling state interest,
and so, because you have a compelling state interest,
therefore I can put somebody away for 20 days?
-: When a judge has reason to believe that it is necessary
to either hospitalize someone at a DMH facility,
or at Bridgewater State Hospital
if they're male and require strict security
to determine whether their mental illness.
-: That's the statute, right? -: Yes.
So you're saying that the statute gives me the fact
that this is the least restrictive alternative?
-: Correct. -: Okay.
And there's nothing other than the statute,
which is what we're trying to question,
is unconstitutional or not, in this record,
that shows that that was actually
the least restrictive alternative?
-: It is conclusive to the legislative intent to have
a competent defendant. -: Absolutely.
-: Yeah, but that's not helpful.
-: Yes.
-: I don't mean to cut you off.
-: Yeah, I don't think it is helpful.
Because the question is, we don't have,
what you're saying is there's nothing in the record
to say that this was not the least restrictive alternative.
But when the government is depriving somebody
of their liberty interest,
that failure generally does not do well for the government
in terms of the constitutionality of a statute.
-: Two things, your Honor,
and this maybe answers another question earlier,
is that the record actually was clear as to whether
this was the least restrictive alternative.
The qualified clinician here spoke about
why this particular defendant
was not appropriate for outpatient.
This defendant stated specifically to the clinician
that she didn't have a mental illness.
However, she had a history of being bipolar.
She was having difficulty with a companion
that was coming to court with her,
she was violating conditions of release.
-: You probably know the record better than I do,
but my memory of the transcript, I read the hearing,
was the clinician gave these facts,
but she gave them as a narrative that wasn't asked as far as
is she an appropriate candidate for outpatient
because of those factors?
So you're taking the facts, which I don't,
and you're saying the judge could have found,
because of the denial that right,
the denial of mental illness,
that she wasn't appropriate for outpatient.
But the clinician never was asked,
is this a a good outpatient candidate, correct?
-: She made that recommendation
based upon her training, experience, and her.
-: So she says, here are the facts,
they include a denial of mental illness.
Based upon all these facts, in my experience,
the person needs to be inpatient.
But there was no question posed
about outpatient to the clinician.
-: I can tell you that a very zealous defense attorney
advocated strenuously,
saying all of the things the counsel has said today
to that court.
Her car's in the parking lot.
She's going from the street to Solomon Carter Fuller.
This is completely unnecessary.
I've sought funds from.
All of those arguments were made to the court that day.
-: But the problem is, the judge cut when she does that.
So this is well argued.
So she says, you can do this outpatient.
The judge doesn't redirect to that point, does he or she?
The judge doesn't address the issue or allow the expert
to respond to that.
That's what worries me a little bit, that we don't.
Although they proposed the outpatient alternative,
no one explains why an outpatient.
It may be implicit, you say, but no one explains why.
And now this case is here being argued
that you should use outpatient
rather than inpatient for these 15-Bs.
-: I think this analysis discounts the important resource
that a designated forensic psychologist
or psychiatrist is to the court,
and all of the requirements and qualifications
that is necessary for them to be testifying in court,
their knowledge of the competency
and criminal responsibility standards.
-: They're knowledgeable and I know they're the right person,
but they're not asked the question,
could you do this outpatient, right?
Don't we need to know the answer from the expert on that?
I mean, again, it may be implicit, but the judge kind of...
She says, go do this 20 days.
Nobody responds to the lawyer, do they?
-: Well, the judge, on page 19 says,
talks about the presentation by Dr. Robinson,
and then the judge says,
"Dr. Robinson was concerned
she may not be a good candidate for voluntary treatment."
Michael: Correct.
-: So he gets all the information,
considers whether or not she's appropriate for outpatient,
and concludes otherwise.
Michael: It was well within his discretion to do so.
-: And that may be exactly right,
but when they reference voluntary treatment,
is that code for an outpatient evaluation?
-: Yes, it is exactly that.
And going back to this point about,
and what's Justice Georges asked,
is who is the best person to make these decisions?
It's obviously, it's the judge that's in the courtroom there
and there's plenty of case law about,
pointing to Scianti that's cited in my brief,
about seeing the courtroom,
seeing what's going on there, seeing the parties,
talking to court officers, taking information.
But the expert, that person,
that designated forensic psychologist
that's working with the Department of Mental Health,
understanding whether the facilities are at census,
whether that person, there's a bed for them,
all of those things are well within the realm
of a designated core clinic.
It's really important resource to a judge
that has a whole host of issues in front of them,
and they're relying on a qualified clinician
that understands this and understands
all of the macro issues that are going on
that the defense justifiably has concerns with.
-: Can I? -: Did you, I'm sorry.
-: No, no, go ahead.
-: Do do you believe the judge, to make it constitutional,
the judge needs to consider
that least restrictive alternative?
-: I believe that whenever there's a deprivation of liberty,
that that analysis should be considered.
-: Okay, and then in this case, you're arguing,
the judge did consider and reject that alternative?
-: And oftentimes it's, and most of the time
it's something that's offered by that DFP.
They are standing there in front of the judge
and they're saying, this can be done outpatient.
This juvenile, this person that's
got a support system in place doesn't require that,
or I want them to meet with me on a regular basis
and I'll write a report to the court in two weeks.
That happens all the time.
In this particular case,
there was a myriad of issues going on with this defendant
that didn't exist at the beginning of the case,
including all of these violations,
or alleged violations of conditions of release,
and she didn't recognize their mental illness
and it was well within the judge's discretion
to credit that. -: So was there anything wrong
with us holding this is required?
That because of the constitutional overlay of this statute,
we need to have a finding that an outpatient
evaluation for competency
is not appropriate in these circumstances?
It sounds like you're saying you win the case.
Again, we deal with rules, not just cases here.
So is, isn't that required, and is there anything?
What would be wrong, from your perspective,
with us requiring an express finding
that an outpatient competency evaluation is not appropriate
before putting someone in for 20 days?
-: I would suggest that the court need not insert
any additional standards or requirements upon the court.
Here, if there was no need for an outpatient,
there would be. -: We saw that
in section 35 though, right?
I forget the name, I think it's EC.
We did that in section 35.
We do that all the time to make these statutes,
and 123 conformed to the substantive due process, right?
-: For civil commitments, and they're certainly different.
-: I guess your argument would be that here,
the record reflects that there was a legitimate reason
to have an inpatient under 15-B to get the evaluation,
and that when we have a record
that's vibrant and that we can dig into,
and the issue is right before us and we have to reach it,
then we should reach the constitutional issue.
-: What I would suggest is that competency comes up
all the time and in many different phases of a case,
and it is so important that a judge is required
to address it sua sponte.
There are many cases where it simply does not go past a 15-A
or even require a 15-A. -: We're not worried about that
-: It's relatively narrow though,
because this entails someone who's not presently confined
who already has a liberty interest that's deprived.
'Cause pretrial detention also doesn't include
the dangerous people who are sent to Bridgewater.
Michael: Correct.