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SJC-13455, Commonwealth VAZ.
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Re-vested.
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Good morning, honorable justices of this court.
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My name is Devora Vestor, and I represent the appellant, AZ,
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who's here in court today.
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While hundreds of people,
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boarded in emergency rooms and stuck in acute care hospitals
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are forced to wait for available psychiatric beds,
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courts are unnecessarily hospitalizing pretrial defendants
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under section 15-B
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just to determine competence to stand trial.
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In a AZ's case,
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the court committed her under 15-B
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without a constitutionally legitimate basis,
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and no evidence that hospitalization
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was the least restrictive means
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of achieving this very narrow purpose.
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To comply with strict scrutiny,
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this court should interpret a necessary hospitalization
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in 15-B to mean a likelihood of serious harm
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in no less restrictive alternative.
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Can we divide your argument into two parts?
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The first is the statutory argument,
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which reads in the likelihood of harm, correct?
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And then the second part is the constitutional overlay,
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which requires least restrictive means.
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Is that accurate?
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It is accurate.
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Okay.
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Would your Honor like me to-
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Yeah, the first part, as far as the, how do you read in
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to the word necessary likelihood of harm
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when that's not in the statute?
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Yes, your Honor.
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Well, the premise is, first of all,
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that necessary implies two constitutional bases,
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and the first basis is the purpose of chapter 123,
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which protects a person's paradigmatic right
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to be free of physical restraint.
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What I find hard in this case, a lot of things,
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but one is the dual and constitutional rights for it.
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'Cause one constitutional right that's at play
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that's really not addressed is the right of a defendant
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not to be tried who's incompetent,
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and for the judge to get as much information as possible
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to make that critical determination.
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Where does that come into play?
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Well, that's not in dispute, your Honor.
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We agree that that is a compelling and legitimate right.
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However, that interest is bound by
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constitutional considerations,
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and the only reasons why we detain a pretrial defendant
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is either one, for dangerousness
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or two, for non-compliance.
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And so, the argument here is,
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in chapter 123, we don't confine a person
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unless there's a nexus between mental illness and harm.
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And Section 15-B indicates
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that dangerousness is actually a consideration.
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And my primary argument.
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That's for Bridgewater, correct?
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Pardon?
That's for Bridgewater?
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Correct, the strict security argument is one of them,
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because as this court stated
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in KJ versus Bridgewater State Hospital,
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you can't have a placement finding
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unless you have a commitment finding.
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So that's one argument.
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The other argument is that there is 36-C.
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36-C presumes that a person who's been committed under 15-B
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is dangerous.
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Because after that five-year period,
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the prohibition on owning a firearm is over,
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a person has to proactively go back to district court
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to prove that he or she is no longer
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a danger to public safety.
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Boy, that's a lot of work,
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for the statutory construction to do that.
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I understand, and I'm interested
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in your constitutional argument.
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But what's necessary for the statute is that,
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and I'm interested in hearing you attack the premise, too.
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But the point is,
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okay, 15-A didn't really give us our answer.
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It's necessary to have inpatient here.
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And I'm happy to have you push back on that
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when we get to it.
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But as far as where Justice Gaziano started,
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I'm having a hard time with the statutory argument.
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Well, let me try to unravel this here.
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So, pretrial defendants
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have one foot in the mental health door,
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and they have another foot in the criminal door.
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And what the argument is, is that pretrial defendants
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should have the same due process rights
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as non-criminal, non-forensic
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persons under the mental health statute,
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and also the same due process rights as pretrial defendants
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who don't have a mental illness.
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And in chapter 123, we don't commit a person
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unless there's this nexus.
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So the presumption is,
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is that outpatient evaluation is the default.
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Isn't due process satisfied by the hearing
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and the judge's determination
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that I don't have enough information from the 15-A?
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I need two things,
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a 20 day minimum examination or observation, I'm sorry,
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plus another examination by a different provider
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so I can get this information
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to make this important decision.
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Because if you have inpatient,
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you don't get the 20-day observation.
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I'm sorry, outpatient, I misspoke.
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You don't get the 20-day observation,
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which is critical to the finding.
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Well, your Honor, when you get to 15-B.
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Well, let's back up.
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After the 51-A exam, the clinician's opining
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that the person needs a further evaluation.
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But liberty needs to be the default,
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because that's the premise of chapter 123.
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Right, and so your argument
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is really not so much a statutory one,
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but that we need to read 15-B
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so as to permit it to be constitutional,
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and that your reading into the word necessary
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things that would be required to save it
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to be constitutional?
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That is correct, your Honor.
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However, from the statutory point of view, again,
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if the floor is not a likelihood of serious harm,
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then we get to the situation AZ was in.
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Well-
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I'm sorry, go ahead, Justice Gaziano.
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I was just gonna suggest
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we move to the constitutional argument,
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because that's really, I think, as Justice Wendlandt says,
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your best argument,
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and I wanna give you enough time to answer that,
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unless Justice Georges had a different question.
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It was one question before on the statutory interpretation
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before you moved to that.
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Because what I have the difficulty with,
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this is still an abusive of discretion
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standard we're dealing with, right?
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At least on the finding of the 150-B.
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And why I mentioned that to you is because
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you say, in this case.
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But this case, if you look at the record,
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the clinician's testimony to the judge was uncontroverted.
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All of the things that you're saying
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were all argument that was made by the defendant's lawyer.
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There wasn't evidence.
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The only evidence that was presented
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was the evidence of the clinician saying
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that the further evaluation was necessary under 15-B,
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and that Solomon Carter was where the defendant ought to go,
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and that was uncontroverted.
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So reading into all of this other stuff
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when there was no evidence of that,
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and when there was already funds that were given
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for your own evaluation,
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there were additional funds before the hearing.
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So I'm struggling to see the statutory argument
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when there wasn't any evidence of any of this
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in front of the judge
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that made the ultimate 15-B determination.
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The statutory argument, your Honor,
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is that there needs to be a presumption that outpatient
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is the default for a further evaluation.
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Because an outpatient eval, there's no
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mystery to any of this.
Okay, but
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I want you to get to Justice Gaziano's point,
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but we're only doing that if we're reading words
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into the statute that ain't there, right?
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Well.
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This implicit standard of a likelihood of serious harm,
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that we've gotta read that into the statutory language
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that isn't there.
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It is correct that those words
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are not in the statute, your Honor.
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But this court has read words into the statute,
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in Nassar for example, imminent likelihood of serious harm.
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The word imminent doesn't appear anywhere in 8A,
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also, less restrictive alternative.
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We all know that even if a judge finds a person
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to be a likelihood of serious harm,
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the analysis doesn't stop there.
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Well, last restrictive alternative is a fundamental right,
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substantive due process standard, correct?
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Correct, as this court had held in minor.
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However, earlier in Nassar,
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that was a statutory interpretation,
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because Nassar said that all who are concerned
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in the administration of the law
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need to find the least oppressive,
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least burdensome controls over the individual
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consistent with the purpose.
Is it fair to say
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if we get to where you wanna be,
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it doesn't matter if we go statutory or constitutionally?
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I don't know that it doesn't matter, but.
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All right, let's pretend it doesn't.
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Okay, next question.
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So fundamental right, that's clear,
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because it's a liberty interest,
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and then we have to look at two things.
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Is it narrowly tailored,
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and then, importantly,
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is it the least restrictive alternative?
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That's what fundamental rights require, correct?
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Correct.
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And is your argument
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that the least restrictive means available
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means that the judge ought to consider
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the outpatient avenue?
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It means that the judge must consider outpatient.
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And the fact that a clinician opines
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that someone needs further evaluation
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doesn't translate to inpatient.
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No, no, that's where I'm getting at.
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So it's the same question that I have.
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Under the constitutional framework
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of least restrictive alternative,
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that doesn't happen in the ether.
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That has to be on the basis of evidence.
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What evidence was there that this could be done outpatient,
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other than just attorney argument?
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What evidence was before the judge?
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Your Honor, I don't believe there needs to be evidence
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that it can be done outpatient, I believe-
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Well, I say that in the context
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of there's affirmative evidence from the clinician
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that inpatient is the most appropriate place.
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So wouldn't that be the floor?
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Wouldn't the evidence in front of the judge be,
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well, that's the least restrictive
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because that's the only evidence that I have?
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Your Honor, if I may.
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The clinician didn't testify
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that hospitalization was the least restrictive means.
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What she testified to was that if AZ wasn't hospitalized,
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then she might deteriorate,
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and therefore she needed treatment.
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AZ was hospitalized for treatment,
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and treatment is not constitutionally cognizable under 15-B.
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I would push back on you on that.
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The clinician was testifying in the context of competency,
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that in order for her to meet
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the legal definition of competency,
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she needed to get treatment to get to that point.
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It wasn't treatment removed from the central issue
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of whether or not she was competent
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for purposes of the prosecution.
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It wasn't removed from that.
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Your Honor, the judge in this case found
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there were two reasons for hospitalizing AZ.
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The first one was mental illness
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and the second one was treatment,
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and neither of those reasons
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pertain to the very narrow purpose of 15-B.
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It's a mere competence evaluation.
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But can I ask, to follow up on Justice Gaziano's
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question from earlier, which you didn't really answer,
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can you do this type of competency hearing outpatient?
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I mean, you've got enough concerns about competency.
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You're gonna do this through someone showing up
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for a couple of hours, a couple of times a week.
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Don't you need that period
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where someone is constantly under observation
271
00:12:57.300 --> 00:12:58.920
to make that kind of call?
272
00:12:58.920 --> 00:12:59.753
No, your Honor.
273
00:12:59.753 --> 00:13:02.160
I believe the Amicus brief speaks to that,
274
00:13:02.160 --> 00:13:05.730
that competence evaluations are very straightforward
275
00:13:05.730 --> 00:13:09.150
and just as rigorous as inpatient evaluations,
276
00:13:09.150 --> 00:13:10.680
and probably more effective.
277
00:13:10.680 --> 00:13:12.960
The clinicians are just as qualified
278
00:13:12.960 --> 00:13:14.550
to make this determination.
279
00:13:14.550 --> 00:13:16.855
It's not rocket science, it can't be done
280
00:13:16.855 --> 00:13:17.688
in the community.
But can I ask
281
00:13:17.688 --> 00:13:19.530
and follow up on Justice Georges' question?
282
00:13:19.530 --> 00:13:22.200
Do we have that in the record,
283
00:13:22.200 --> 00:13:24.150
as opposed to the briefing?
284
00:13:24.150 --> 00:13:26.130
And who has the burden of proof on that?
285
00:13:26.130 --> 00:13:29.946
Is that the Commonwealth or the def, or you?
286
00:13:29.946 --> 00:13:33.720
Well, in this particular case,
287
00:13:33.720 --> 00:13:36.660
since the Commonwealth was the moving party
288
00:13:36.660 --> 00:13:40.200
and insisted on a competence evaluation,
289
00:13:40.200 --> 00:13:42.420
I believe the burden was on the Commonwealth
290
00:13:42.420 --> 00:13:45.253
in this particular case, and again-
291
00:13:45.253 --> 00:13:48.360
In in fundamental rights, jurisprudence,
292
00:13:48.360 --> 00:13:51.990
who has the obligation to prove the least restrictive
293
00:13:51.990 --> 00:13:54.840
when you're doing this least restrictive alternative?
294
00:13:54.840 --> 00:13:57.333
In the context of an existing statute?
295
00:13:58.290 --> 00:14:00.960
Well, I think that's unclear, because the-
296
00:14:00.960 --> 00:14:02.430
It must be the Commonwealth.
297
00:14:02.430 --> 00:14:04.376
I mean, it must be the government
298
00:14:04.376 --> 00:14:07.140
who has this overwhelming interest
299
00:14:07.140 --> 00:14:10.650
that must also show that it's the least restrictive way
300
00:14:10.650 --> 00:14:12.900
of accomplishing that interest.
301
00:14:12.900 --> 00:14:14.220
How could it be otherwise,
302
00:14:14.220 --> 00:14:16.920
that you would have a defendant
303
00:14:16.920 --> 00:14:19.920
or just a garden-variety civilian
304
00:14:19.920 --> 00:14:21.750
who'd have the burden of showing
305
00:14:21.750 --> 00:14:24.990
that there were other alternative ways?
306
00:14:24.990 --> 00:14:27.480
If I'm understanding your Honor correctly,
307
00:14:27.480 --> 00:14:29.130
you're saying that if the Commonwealth
308
00:14:29.130 --> 00:14:31.740
is asking for the evaluation,
309
00:14:31.740 --> 00:14:33.990
then the Commonwealth has the burden?
310
00:14:33.990 --> 00:14:35.880
Just as a matter of constitutional law,
311
00:14:35.880 --> 00:14:38.550
I've never heard of a strict scrutiny application
312
00:14:38.550 --> 00:14:42.130
where it's the person suggesting
313
00:14:43.050 --> 00:14:46.140
whose liberty interest is at stake
314
00:14:46.140 --> 00:14:49.980
who would be required to make the showing.
315
00:14:49.980 --> 00:14:51.300
I agree with that, your Honor.
316
00:14:51.300 --> 00:14:53.973
But also, the court can sua sponte.
317
00:14:54.834 --> 00:14:57.570
But that's still the government, isn't it?
318
00:14:57.570 --> 00:14:58.830
I guess it's still the government.
319
00:14:58.830 --> 00:15:03.270
I think, in any event, the defendant
320
00:15:03.270 --> 00:15:05.310
shouldn't have to prove anything
321
00:15:05.310 --> 00:15:09.124
to get her outpatient evaluation, and that's my point.
322
00:15:09.124 --> 00:15:10.890
That should be the premise,
323
00:15:10.890 --> 00:15:12.990
and that's what we're asking this court,
324
00:15:12.990 --> 00:15:17.490
to read into the statute to uphold a person's right
325
00:15:17.490 --> 00:15:19.230
to be free from physical restraint,
326
00:15:19.230 --> 00:15:21.690
and if there's evidence otherwise,
327
00:15:21.690 --> 00:15:23.280
then that evidence can come forward.
328
00:15:23.280 --> 00:15:26.400
Can I ask you how this would work in practical terms?
329
00:15:26.400 --> 00:15:28.530
So you're here for your 15-A
330
00:15:28.530 --> 00:15:31.740
and they bring out the court clinician.
331
00:15:31.740 --> 00:15:34.890
Would it be incumbent upon the defense attorney to say,
332
00:15:34.890 --> 00:15:37.590
I have an outpatient alternative
333
00:15:37.590 --> 00:15:38.970
that I'd like to propose to the judge
334
00:15:38.970 --> 00:15:40.380
so you can get the information
335
00:15:40.380 --> 00:15:44.130
before you commit the person for 15-B?
336
00:15:44.130 --> 00:15:46.020
Is that how it works?
337
00:15:46.020 --> 00:15:48.660
Well, I don't think that there should be a burden
338
00:15:48.660 --> 00:15:50.070
on the, again-
339
00:15:50.070 --> 00:15:52.290
How's the judge gonna know about an outpatient alternative
340
00:15:52.290 --> 00:15:53.610
unless he's given that information?
341
00:15:53.610 --> 00:15:56.910
Well, the attorney
342
00:15:56.910 --> 00:16:01.290
clearly can propose an alternative, and should,
343
00:16:01.290 --> 00:16:03.720
but what I'm saying is I don't think that the defendant
344
00:16:03.720 --> 00:16:05.970
should have to prove that.
345
00:16:05.970 --> 00:16:08.790
I think that should be the presumption, the default.
346
00:16:08.790 --> 00:16:12.570
Okay, so the judge says, I should, under the case law
347
00:16:12.570 --> 00:16:15.000
and under the substantive due process,
348
00:16:15.000 --> 00:16:17.730
I have to consider the least restrictive alternative.
349
00:16:17.730 --> 00:16:19.590
The judge has to think about whether or not
350
00:16:19.590 --> 00:16:22.270
an outpatient evaluation would be appropriate to make,
351
00:16:22.270 --> 00:16:25.740
would have the same decision making that goes forward.
352
00:16:25.740 --> 00:16:28.920
How is a judge gonna know what to do?
353
00:16:28.920 --> 00:16:31.590
I'm just trying to think this through,
354
00:16:31.590 --> 00:16:32.670
if we rule in your favor,
355
00:16:32.670 --> 00:16:35.310
how this happens in the BMC and the district courts.
356
00:16:35.310 --> 00:16:39.990
Unless the person is voluntarily going into a hospital
357
00:16:39.990 --> 00:16:43.620
to have this very simple, straightforward examination done,
358
00:16:43.620 --> 00:16:45.690
the presumption is it's outpatient.
359
00:16:45.690 --> 00:16:48.570
The judge orders an outpatient evaluation.
360
00:16:48.570 --> 00:16:50.670
And this only applies, by the way,
361
00:16:50.670 --> 00:16:53.040
to people who are not incarcerated,
362
00:16:53.040 --> 00:16:53.970
Correct, correct.
363
00:16:53.970 --> 00:16:55.140
'Cause we're talking about people
364
00:16:55.140 --> 00:16:57.390
who are living in the community who have lives,
365
00:16:57.390 --> 00:17:00.030
who have jobs, who have housing,
366
00:17:00.030 --> 00:17:03.060
and who stand to lose all of this.
367
00:17:03.060 --> 00:17:06.330
You can lose all of this within 20 days, not to mention 40,
368
00:17:06.330 --> 00:17:11.010
because the statute permits up to 40 days.
369
00:17:11.010 --> 00:17:14.310
But if the judge orders outpatient
370
00:17:14.310 --> 00:17:18.480
and gives the person the opportunity to succeed or fail,
371
00:17:18.480 --> 00:17:21.630
then if the person fails because the person doesn't show up,
372
00:17:21.630 --> 00:17:23.940
there's non-compliance, everyone comes back to court
373
00:17:23.940 --> 00:17:27.570
and the judge has tools in her toolbox
374
00:17:27.570 --> 00:17:29.100
to decide how to handle this
375
00:17:29.100 --> 00:17:30.990
because she needs the information.
376
00:17:30.990 --> 00:17:33.570
We don't have to go immediately to A 15-B.
377
00:17:33.570 --> 00:17:34.650
The judge can-
378
00:17:34.650 --> 00:17:36.450
That's the next question I had.
379
00:17:36.450 --> 00:17:40.770
Can I then ask you, as far as the Amicus brief goes,
380
00:17:40.770 --> 00:17:45.770
it suggests that outpatient isn't really a 15-B examination,
381
00:17:45.960 --> 00:17:49.687
it's a continuation of a 15-A?
382
00:17:49.687 --> 00:17:52.800
Yes, it is akin, I guess, to an extended 15.
383
00:17:52.800 --> 00:17:54.690
So what's your position on that?
384
00:17:54.690 --> 00:17:58.350
Does it matter if it's if it's the next step on a 15-B,
385
00:17:58.350 --> 00:18:01.110
or if it's a continuation of the 15-A?
386
00:18:01.110 --> 00:18:06.000
Well, the language of 15-B, as we know, is discretionary.
387
00:18:06.000 --> 00:18:09.900
So the judge can order hospitalization,
388
00:18:09.900 --> 00:18:12.930
or the judge can order outpatient.
389
00:18:12.930 --> 00:18:14.910
So I don't necessarily think
390
00:18:14.910 --> 00:18:18.570
it's an extended eval under 15-A.
391
00:18:18.570 --> 00:18:22.923
So we preserve the 15-A clinician evaluation,
392
00:18:22.923 --> 00:18:26.940
then the judge, under your scheme, says, what should I do,
393
00:18:26.940 --> 00:18:30.720
is it necessary with the least restrictive alternative
394
00:18:30.720 --> 00:18:32.370
to have a 15-B hospitalization,
395
00:18:32.370 --> 00:18:35.283
or can I do a 15-B outpatient?
396
00:18:37.170 --> 00:18:40.380
I think that the 15-A is only there
397
00:18:40.380 --> 00:18:42.918
to separate two groups of people, right?
398
00:18:42.918 --> 00:18:45.724
Right, the go, no go.
One group,
399
00:18:45.724 --> 00:18:46.590
they're going to trial,
400
00:18:46.590 --> 00:18:50.280
and the other group, their competence is questionable.
401
00:18:50.280 --> 00:18:52.650
And so, if liberty is the default,
402
00:18:52.650 --> 00:18:57.650
and we see it just like in 58-A where pretrial release
403
00:19:00.120 --> 00:19:02.040
on personal recognizance is the default,
404
00:19:02.040 --> 00:19:03.300
and then we start chipping away at it
405
00:19:03.300 --> 00:19:05.190
in a least restrictive alternative analysis
406
00:19:05.190 --> 00:19:08.880
until we get to a place where there are no conditions left
407
00:19:08.880 --> 00:19:10.830
that will satisfy the narrow purpose.
408
00:19:10.830 --> 00:19:13.740
But isn't there an additional complication,
409
00:19:13.740 --> 00:19:16.590
back to Justice Gaziano's dueling constitutional rights?
410
00:19:16.590 --> 00:19:21.540
'Cause this isn't just a mental health hospitalization.
411
00:19:21.540 --> 00:19:23.970
You're protecting the defendant's rights
412
00:19:23.970 --> 00:19:26.190
not to be tried as incompetent.
413
00:19:26.190 --> 00:19:28.350
I'm just worried that you're asking
414
00:19:28.350 --> 00:19:31.230
for an abbreviated process.
415
00:19:31.230 --> 00:19:33.240
It may be the least restrictive
416
00:19:33.240 --> 00:19:35.970
in terms of the patient's liberty,
417
00:19:35.970 --> 00:19:38.850
but it may be more problematic
418
00:19:38.850 --> 00:19:43.850
in terms of determining the patient's competency without.
419
00:19:44.280 --> 00:19:48.090
'Cause a 20-day evaluation's different
420
00:19:48.090 --> 00:19:51.633
than showing up for an in an outpatient.
421
00:19:53.520 --> 00:19:55.740
You may be one of those people
422
00:19:55.740 --> 00:19:58.110
who goes in and out of mental health
423
00:19:58.110 --> 00:20:00.210
and they're gonna see that within 20 days,
424
00:20:00.210 --> 00:20:04.500
but they may miss it if they're doing an outpatient.
425
00:20:04.500 --> 00:20:05.520
Well, again, your Honor,
426
00:20:05.520 --> 00:20:08.520
I would refer you to the Amicus brief,
427
00:20:08.520 --> 00:20:13.407
which clearly outlines the ease with which
428
00:20:16.470 --> 00:20:19.320
an outpatient evaluation can be conducted in the community.
429
00:20:19.320 --> 00:20:21.540
I think these are all assumptions
430
00:20:21.540 --> 00:20:23.310
not based on evidence that.
431
00:20:23.310 --> 00:20:25.350
But then do we need to remand this
432
00:20:25.350 --> 00:20:29.610
to develop that record in a better way?
433
00:20:29.610 --> 00:20:32.040
In this particular case, or?
434
00:20:32.040 --> 00:20:33.990
Well, this particular case is complicated.
435
00:20:33.990 --> 00:20:37.830
'Cause at one point she's found dangerous,
436
00:20:37.830 --> 00:20:39.200
at one point she's not.
437
00:20:39.200 --> 00:20:41.820
At one point she's found competent, at one point she's not.
438
00:20:41.820 --> 00:20:43.167
I mean, it's, it's a tricky case.
439
00:20:43.167 --> 00:20:44.280
And then ultimately,
440
00:20:44.280 --> 00:20:47.760
the case for all of the procedural wranglings
441
00:20:47.760 --> 00:20:50.940
resolves on the pretrial probation
442
00:20:50.940 --> 00:20:53.670
where there's no allocution whatsoever.
443
00:20:53.670 --> 00:20:55.820
Yes, and I'm-
It's a complicated case.
444
00:20:57.270 --> 00:20:59.220
I would like to say it's not as complicated
445
00:20:59.220 --> 00:21:02.190
as your honors believe.
446
00:21:02.190 --> 00:21:06.360
Because AZ, even though she was found dangerous,
447
00:21:06.360 --> 00:21:07.410
she was in the community.
448
00:21:07.410 --> 00:21:10.110
Because the judge found that there were conditions
449
00:21:10.110 --> 00:21:14.490
that would satisfy any safety concerns the court had,
450
00:21:14.490 --> 00:21:16.680
and she didn't violate her conditions.
451
00:21:16.680 --> 00:21:18.690
And no matter how many times the Commonwealth
452
00:21:18.690 --> 00:21:22.020
tried to revoke her bail, it didn't succeed.
453
00:21:22.020 --> 00:21:24.780
She stayed in the community, she had her life.
454
00:21:24.780 --> 00:21:28.350
And the evidence before the court was twofold,
455
00:21:28.350 --> 00:21:31.440
that one, she appeared to not be able
456
00:21:31.440 --> 00:21:33.930
to communicate effectively with her counsel
457
00:21:33.930 --> 00:21:35.700
because of her presentation,
458
00:21:35.700 --> 00:21:39.120
which included symptoms of mental illness,
459
00:21:39.120 --> 00:21:42.090
and on the other hand, the clinician was worried
460
00:21:42.090 --> 00:21:45.180
that if her condition went untreated,
461
00:21:45.180 --> 00:21:47.400
she would continue to deteriorate.
462
00:21:47.400 --> 00:21:50.040
But that has nothing to do with 15-B.
463
00:21:50.040 --> 00:21:52.959
Unfortunately, that 15-B is very, very narrow.
464
00:21:52.959 --> 00:21:57.959
That's a byproduct of the 15-B process, is the treatment.
465
00:21:58.860 --> 00:22:01.680
But I take your point, that that's not the purpose,
466
00:22:01.680 --> 00:22:04.143
or the constitutional purpose of a 15-B.
467
00:22:04.980 --> 00:22:07.800
I don't even know that it's a byproduct, your Honor, I-
468
00:22:07.800 --> 00:22:08.850
Of course it's a byproduct.
469
00:22:08.850 --> 00:22:10.680
Because if someone is committed
470
00:22:10.680 --> 00:22:12.990
and then they're on the right medication,
471
00:22:12.990 --> 00:22:14.763
they get stabilized, et cetera, you've seen that,
472
00:22:14.763 --> 00:22:18.660
that people get better sometimes during these evaluations.
473
00:22:18.660 --> 00:22:20.370
Well, and people could also get better
474
00:22:20.370 --> 00:22:21.480
in the community, your Honor.
475
00:22:21.480 --> 00:22:23.580
And she was in regular therapy,
476
00:22:23.580 --> 00:22:25.020
per her conditions of release.
477
00:22:25.020 --> 00:22:26.910
She was taking her medications.
478
00:22:26.910 --> 00:22:30.180
And I'm not saying that that's a way to resolve this case.
479
00:22:30.180 --> 00:22:32.460
I'm just saying that's a reality.
480
00:22:32.460 --> 00:22:33.840
Right, but again.
481
00:22:33.840 --> 00:22:35.790
And you're asking for a broader rule, right?
482
00:22:35.790 --> 00:22:38.010
You want us to create a presumption
483
00:22:38.010 --> 00:22:40.923
in favor of outpatient evaluations,
484
00:22:42.300 --> 00:22:43.863
it sounds like to me, right?
485
00:22:45.344 --> 00:22:46.660
And that's a big step
486
00:22:48.120 --> 00:22:51.243
that we don't necessarily have the record for.
487
00:22:52.530 --> 00:22:55.950
I'm asking this court to interpret 15-B
488
00:22:55.950 --> 00:22:58.140
as presuming outpatient
489
00:22:58.140 --> 00:23:02.370
because of the fundamental right that a person has.
490
00:23:02.370 --> 00:23:03.810
I get the legal stuff.
491
00:23:03.810 --> 00:23:08.810
But do we have the factual record, and evidentiary record
492
00:23:10.710 --> 00:23:15.710
to make that call that outpatient is just as good
493
00:23:16.710 --> 00:23:19.680
or the same as?
494
00:23:19.680 --> 00:23:21.050
I mean, I just don't...
495
00:23:22.266 --> 00:23:23.820
I've read the decision,
496
00:23:23.820 --> 00:23:26.040
I've read the back and forth in court,
497
00:23:26.040 --> 00:23:29.130
but I'm just, I don't know, do we have enough?
498
00:23:29.130 --> 00:23:32.340
Yes, I believe this court has enough on the record.
499
00:23:32.340 --> 00:23:34.710
Because again, the only two reasons
500
00:23:34.710 --> 00:23:39.540
for her commitment were mental illness and treatment,
501
00:23:39.540 --> 00:23:43.290
which are outside the scope of 15-B, and that's it.
502
00:23:43.290 --> 00:23:45.360
There is nothing in the record.
503
00:23:45.360 --> 00:23:47.910
The Commonwealth was silent the whole time,
504
00:23:47.910 --> 00:23:50.490
except for saying to the court
505
00:23:50.490 --> 00:23:53.070
that it was not opposing the 15-A or 15-B,
506
00:23:53.070 --> 00:23:57.600
because we're not here before your Honor on a 16-B.
507
00:23:57.600 --> 00:23:59.130
It wasn't in opposition.
508
00:23:59.130 --> 00:24:01.650
And so, since the Commonwealth in this case
509
00:24:01.650 --> 00:24:02.670
perhaps had the burden
510
00:24:02.670 --> 00:24:06.090
because it wanted the competency evaluation to be done,
511
00:24:06.090 --> 00:24:07.710
and it brought no evidence,
512
00:24:07.710 --> 00:24:10.320
I believe this court can make that ruling.
513
00:24:10.320 --> 00:24:12.300
There was no evidence that an outpatient
514
00:24:12.300 --> 00:24:16.830
would be less satisfactory than an inpatient evaluation.
515
00:24:16.830 --> 00:24:21.090
And we have to defer to the right to have liberty
516
00:24:21.090 --> 00:24:22.320
and be in the community,
517
00:24:22.320 --> 00:24:24.000
and have it have the evaluation,
518
00:24:24.000 --> 00:24:27.780
which is very straightforward, done in the community.
519
00:24:27.780 --> 00:24:28.613
You're well over your time.
520
00:24:28.613 --> 00:24:29.880
Thank you, Attorney Vestor.
521
00:24:30.930 --> 00:24:32.368
We'll hear from Attorney McGee.
522
00:24:32.368 --> 00:24:33.368
Thank you.
523
00:24:44.610 --> 00:24:47.700
Good morning, Justices of the Supreme Judicial Court.
524
00:24:47.700 --> 00:24:48.570
My name is Michael McGee.
525
00:24:48.570 --> 00:24:49.403
I'm here on behalf
526
00:24:49.403 --> 00:24:51.540
of the Norfolk District Attorney's Office.
527
00:24:51.540 --> 00:24:54.810
As this court stated in Commonwealth versus Garcia,
528
00:24:54.810 --> 00:24:58.950
General Laws Chapter 123, Section 15 is narrowly tailored.
529
00:24:58.950 --> 00:25:01.575
Well, it's always the footnotes that get us.
530
00:25:01.575 --> 00:25:04.200
(all laughing)
531
00:25:04.200 --> 00:25:05.640
I dunno, who wrote Garcia?
532
00:25:05.640 --> 00:25:06.862
(all laughing)
533
00:25:06.862 --> 00:25:10.050
So, I went back to the briefs to figure out,
534
00:25:10.050 --> 00:25:12.210
and first of all, the first half of the footnotes
535
00:25:12.210 --> 00:25:14.823
suggests that it's an open question.
536
00:25:15.750 --> 00:25:20.750
But the whole argument of the Commonwealth was about 15-B.
537
00:25:21.480 --> 00:25:25.530
And so, as I was thinking about it over the weekend,
538
00:25:25.530 --> 00:25:27.240
I guess that's why the footnotes in there,
539
00:25:27.240 --> 00:25:29.970
but it's just a footnote.
540
00:25:29.970 --> 00:25:33.750
It doesn't dictate our determination here.
541
00:25:33.750 --> 00:25:36.223
I wouldn't build your whole argument
542
00:25:36.223 --> 00:25:39.990
around a footnote in Garcia.
543
00:25:39.990 --> 00:25:42.540
Well, some footnotes are better than others.
544
00:25:42.540 --> 00:25:47.130
And I would say just in this case, this is not mere dicta,
545
00:25:47.130 --> 00:25:48.540
that the court went out of its way
546
00:25:48.540 --> 00:25:49.650
to distinguish it from 16-A.
547
00:25:49.650 --> 00:25:51.480
Well, it is dicta,
548
00:25:51.480 --> 00:25:54.390
but it's in there because the whole argument was about 15-B
549
00:25:54.390 --> 00:25:57.030
and that the world was gonna collapse
550
00:25:57.030 --> 00:26:02.030
if we require this substantive due process analysis
551
00:26:03.900 --> 00:26:06.421
under 16, and that's gonna get infused in the 15,
552
00:26:06.421 --> 00:26:09.690
and then there's gonna be a big problem.
553
00:26:09.690 --> 00:26:11.670
You should know that Justice Lowy's
554
00:26:11.670 --> 00:26:14.520
Carolyn footnote product is one of his big things,
555
00:26:14.520 --> 00:26:16.440
so he likes footnotes.
556
00:26:16.440 --> 00:26:17.910
Don't let him tell you otherwise.
557
00:26:17.910 --> 00:26:18.750
Okay.
558
00:26:18.750 --> 00:26:19.583
(judges laughing)
559
00:26:19.583 --> 00:26:21.840
Let me ask you, on the substantive due process, right.
560
00:26:21.840 --> 00:26:25.803
Let's skip to, I think, what is the main argument.
561
00:26:26.730 --> 00:26:27.570
You agree, of course,
562
00:26:27.570 --> 00:26:29.940
that a fundamental liberty interest is involved?
563
00:26:29.940 --> 00:26:30.773
Absolutely.
564
00:26:30.773 --> 00:26:32.370
And then the standard then becomes
565
00:26:32.370 --> 00:26:34.350
whether 15-B is narrowly tailored
566
00:26:34.350 --> 00:26:36.210
to achieve a compelling goal,
567
00:26:36.210 --> 00:26:39.120
and also has to be the least restrictive
568
00:26:39.120 --> 00:26:41.040
means available of achieving that goal.
569
00:26:41.040 --> 00:26:41.970
That's the standard.
570
00:26:41.970 --> 00:26:44.070
That's the standard, yes.
571
00:26:44.070 --> 00:26:46.830
Why isn't outpatient the least restrictive means
572
00:26:46.830 --> 00:26:48.360
of achieving that goal?
573
00:26:48.360 --> 00:26:50.260
What I would suggest is the statute.
574
00:26:52.050 --> 00:26:55.200
There's a constitutional overlay to the statute, right?
575
00:26:55.200 --> 00:26:56.790
So it's not the statutory language.
576
00:26:56.790 --> 00:26:59.460
Assuming you win on that one, I'm more worried about,
577
00:26:59.460 --> 00:27:02.220
or not worried, I'm more focused on
578
00:27:02.220 --> 00:27:03.720
the constitutional overlay.
579
00:27:03.720 --> 00:27:06.810
I think what's really important to understand here
580
00:27:06.810 --> 00:27:11.280
is that there is a neutral and very compelling interest
581
00:27:11.280 --> 00:27:14.340
in having a defendant that is competent to stand trial,
582
00:27:14.340 --> 00:27:16.200
to be convicted, and to be sentenced.
583
00:27:16.200 --> 00:27:17.850
Right, so you have a compelling state interest.
584
00:27:17.850 --> 00:27:21.300
Why is this the least restrictive alternative?
585
00:27:21.300 --> 00:27:25.480
Because the liberty interest at stake here
586
00:27:26.460 --> 00:27:29.793
is narrowly tailored to that interest.
587
00:27:30.690 --> 00:27:31.530
We've got that though.
588
00:27:31.530 --> 00:27:32.897
We checked that box.
Absolutely.
589
00:27:32.897 --> 00:27:34.980
So you have a compelling state interest
590
00:27:34.980 --> 00:27:37.410
to only try competent people.
591
00:27:37.410 --> 00:27:39.120
Absolutely, I get it.
592
00:27:39.120 --> 00:27:42.000
Why is this 20-day inpatient
593
00:27:42.000 --> 00:27:44.343
the least restrictive way of doing that?
594
00:27:46.391 --> 00:27:50.207
That also goes to procedural due process and these words.
595
00:27:51.570 --> 00:27:55.563
Yeah, but we have right procedural due process.
596
00:27:57.270 --> 00:27:59.730
You got the hearing, you had a right to be herd,
597
00:27:59.730 --> 00:28:03.270
you had a lawyer, now we gotta get the least restrictive.
598
00:28:03.270 --> 00:28:04.290
We still gotta get you down
599
00:28:04.290 --> 00:28:06.540
to that least restrictive alternative
600
00:28:06.540 --> 00:28:09.600
on Justice Wendlandt's question and my initial question.
601
00:28:09.600 --> 00:28:14.600
Well, you have to take into consideration
602
00:28:14.910 --> 00:28:18.570
all of section 15 and what happens before that
603
00:28:18.570 --> 00:28:20.430
and what the legislature intended,
604
00:28:20.430 --> 00:28:23.220
and this language in here is conclusive
605
00:28:23.220 --> 00:28:25.170
as to that legislative intent
606
00:28:25.170 --> 00:28:27.510
in that what happens before here
607
00:28:27.510 --> 00:28:30.540
is that you have a qualified clinician or two
608
00:28:30.540 --> 00:28:35.193
opining, reporting to a judge what exactly hap-
609
00:28:36.660 --> 00:28:37.493
You're good.
610
00:28:37.493 --> 00:28:39.840
You're gonna win that argument and you get 15-D,
611
00:28:39.840 --> 00:28:41.550
you're good.
612
00:28:41.550 --> 00:28:44.370
When we're trying to figure out whether or not
613
00:28:44.370 --> 00:28:47.430
you actually need inpatient
614
00:28:47.430 --> 00:28:51.890
to be able to get the right decision on competency,
615
00:28:54.000 --> 00:28:55.318
what's our record
616
00:28:55.318 --> 00:28:58.233
if this is the least restrictive alternative?
617
00:28:59.670 --> 00:29:01.560
We've been talking about
618
00:29:01.560 --> 00:29:03.990
those are legislative facts when you're connecting
619
00:29:03.990 --> 00:29:07.770
whether or not the least restrictive alternatives.
620
00:29:07.770 --> 00:29:12.460
So, on this record, we've got Amicus briefs
621
00:29:13.500 --> 00:29:15.660
that are raising the issue constitutionally.
622
00:29:15.660 --> 00:29:18.543
You gotta deal with the constitutional issue.
623
00:29:19.530 --> 00:29:20.730
How do we know?
624
00:29:20.730 --> 00:29:22.530
This is the question that I think
625
00:29:22.530 --> 00:29:25.380
Justice Kafker was getting at, and I'm having trouble with.
626
00:29:25.380 --> 00:29:29.820
How do we know that outpatient's just as good?
627
00:29:29.820 --> 00:29:32.850
Because if outpatient's just as good,
628
00:29:32.850 --> 00:29:34.620
then you just don't need to send the person
629
00:29:34.620 --> 00:29:37.110
for 20 or 40 days and have them lose their job,
630
00:29:37.110 --> 00:29:39.720
and have beds being taken up
631
00:29:39.720 --> 00:29:42.660
while people are boarding in emergency rooms
632
00:29:42.660 --> 00:29:44.913
trying to get section 12 commitments.
633
00:29:46.770 --> 00:29:48.241
I would suggest that that issue.
634
00:29:48.241 --> 00:29:49.920
Can I piggyback on this so you can get that
635
00:29:49.920 --> 00:29:51.660
right after Justice Lowy's point?
636
00:29:51.660 --> 00:29:53.700
Because I really wanna go back to
637
00:29:53.700 --> 00:29:56.760
how as a practical matter this works.
638
00:29:56.760 --> 00:29:59.430
Because if we're looking at this hearing,
639
00:29:59.430 --> 00:30:01.770
there's testimony from this clinician
640
00:30:01.770 --> 00:30:04.590
that Solomon Carter is where.
641
00:30:04.590 --> 00:30:07.980
So whose job is this?
642
00:30:07.980 --> 00:30:10.530
After you answer Justice Lowy, could you answer that?
643
00:30:10.530 --> 00:30:12.300
How is this supposed to work?
644
00:30:12.300 --> 00:30:15.240
Is the DA supposed to go out and research
645
00:30:15.240 --> 00:30:17.940
community facilities for this,
646
00:30:17.940 --> 00:30:20.280
is the defense lawyer, is the judge?
647
00:30:20.280 --> 00:30:23.100
Who's supposed to do this at the time of the hearing?
648
00:30:23.100 --> 00:30:25.650
If you could get that after Justice Lowy question,
649
00:30:25.650 --> 00:30:28.410
I would really love to know how this is gonna work.
650
00:30:28.410 --> 00:30:29.460
Just starting with
651
00:30:29.460 --> 00:30:31.140
whether this is properly before the court
652
00:30:31.140 --> 00:30:32.640
and you have enough information,
653
00:30:32.640 --> 00:30:34.050
I would suggest that you do not.
654
00:30:34.050 --> 00:30:37.260
Because the evidence before the court was argument.
655
00:30:37.260 --> 00:30:40.620
You had one qualified clinician presenting a case
656
00:30:40.620 --> 00:30:43.320
after having met with this defendant twice.
657
00:30:43.320 --> 00:30:45.510
Don't you lose?
On insufficient information,
658
00:30:45.510 --> 00:30:48.450
You deprived somebody of their due process?
659
00:30:48.450 --> 00:30:49.283
Absolutely not.
660
00:30:49.283 --> 00:30:52.680
This person had a hearing, had an opportunity to be heard.
661
00:30:52.680 --> 00:30:54.660
Well, their liberty interest, I should say.
662
00:30:54.660 --> 00:30:56.970
Yes.
On insufficient information,
663
00:30:56.970 --> 00:30:59.790
you deprive somebody of their liberty interest
664
00:30:59.790 --> 00:31:01.080
for up to 20 days?
665
00:31:01.080 --> 00:31:05.580
This particular defendant had exactly what that statute.
666
00:31:05.580 --> 00:31:07.740
I'm not quibbling with you on the statute.
667
00:31:07.740 --> 00:31:10.350
And it seems like, and maybe this is purposeful,
668
00:31:10.350 --> 00:31:12.291
but I'll give you one last chance.
669
00:31:12.291 --> 00:31:16.170
It seems like you're avoiding the constitutional issue,
670
00:31:16.170 --> 00:31:19.050
which is, what in the record tells me
671
00:31:19.050 --> 00:31:23.220
that 20 days inpatient is the least restrictive alternative
672
00:31:23.220 --> 00:31:26.673
to deprive this defendant of her liberty interest?
673
00:31:28.110 --> 00:31:31.260
Because the overriding interest is that neutral interest
674
00:31:31.260 --> 00:31:32.870
in being found-
675
00:31:32.870 --> 00:31:34.922
If you have a compelling state interest,
676
00:31:34.922 --> 00:31:37.170
and so, because you have a compelling state interest,
677
00:31:37.170 --> 00:31:39.900
therefore I can put somebody away for 20 days?
678
00:31:39.900 --> 00:31:43.060
When a judge has reason to believe that it is necessary
679
00:31:45.232 --> 00:31:47.632
to either hospitalize someone at a DMH facility,
680
00:31:49.800 --> 00:31:51.330
or at Bridgewater State Hospital
681
00:31:51.330 --> 00:31:53.740
if they're male and require strict security
682
00:31:54.810 --> 00:31:58.050
to determine whether their mental illness.
683
00:31:58.050 --> 00:31:59.100
That's the statute, right?
Yes.
684
00:31:59.100 --> 00:32:03.120
So you're saying that the statute gives me the fact
685
00:32:03.120 --> 00:32:05.280
that this is the least restrictive alternative?
686
00:32:05.280 --> 00:32:06.180
Correct.
Okay.
687
00:32:06.180 --> 00:32:08.820
And there's nothing other than the statute,
688
00:32:08.820 --> 00:32:10.530
which is what we're trying to question,
689
00:32:10.530 --> 00:32:14.070
is unconstitutional or not, in this record,
690
00:32:14.070 --> 00:32:16.440
that shows that that was actually
691
00:32:16.440 --> 00:32:18.320
the least restrictive alternative?
692
00:32:18.320 --> 00:32:21.090
It is conclusive to the legislative intent to have
693
00:32:21.090 --> 00:32:22.080
a competent defendant.
Absolutely.
694
00:32:22.080 --> 00:32:23.760
Yeah, but that's not helpful.
695
00:32:23.760 --> 00:32:25.250
Yes.
696
00:32:25.250 --> 00:32:26.220
I don't mean to cut you off.
697
00:32:26.220 --> 00:32:27.420
Yeah, I don't think it is helpful.
698
00:32:27.420 --> 00:32:30.960
Because the question is, we don't have,
699
00:32:30.960 --> 00:32:32.880
what you're saying is there's nothing in the record
700
00:32:32.880 --> 00:32:37.830
to say that this was not the least restrictive alternative.
701
00:32:37.830 --> 00:32:41.130
But when the government is depriving somebody
702
00:32:41.130 --> 00:32:43.110
of their liberty interest,
703
00:32:43.110 --> 00:32:48.110
that failure generally does not do well for the government
704
00:32:48.120 --> 00:32:50.820
in terms of the constitutionality of a statute.
705
00:32:50.820 --> 00:32:51.690
Two things, your Honor,
706
00:32:51.690 --> 00:32:55.380
and this maybe answers another question earlier,
707
00:32:55.380 --> 00:32:57.360
is that the record actually was clear as to whether
708
00:32:57.360 --> 00:32:59.250
this was the least restrictive alternative.
709
00:32:59.250 --> 00:33:02.670
The qualified clinician here spoke about
710
00:33:02.670 --> 00:33:04.890
why this particular defendant
711
00:33:04.890 --> 00:33:07.230
was not appropriate for outpatient.
712
00:33:07.230 --> 00:33:12.230
This defendant stated specifically to the clinician
713
00:33:12.450 --> 00:33:14.340
that she didn't have a mental illness.
714
00:33:14.340 --> 00:33:16.830
However, she had a history of being bipolar.
715
00:33:16.830 --> 00:33:19.710
She was having difficulty with a companion
716
00:33:19.710 --> 00:33:21.000
that was coming to court with her,
717
00:33:21.000 --> 00:33:22.710
she was violating conditions of release.
718
00:33:22.710 --> 00:33:24.210
You probably know the record better than I do,
719
00:33:24.210 --> 00:33:28.350
but my memory of the transcript, I read the hearing,
720
00:33:28.350 --> 00:33:30.722
was the clinician gave these facts,
721
00:33:30.722 --> 00:33:35.310
but she gave them as a narrative that wasn't asked as far as
722
00:33:35.310 --> 00:33:38.220
is she an appropriate candidate for outpatient
723
00:33:38.220 --> 00:33:39.180
because of those factors?
724
00:33:39.180 --> 00:33:41.160
So you're taking the facts, which I don't,
725
00:33:41.160 --> 00:33:44.320
and you're saying the judge could have found,
726
00:33:44.320 --> 00:33:47.553
because of the denial that right,
727
00:33:48.810 --> 00:33:50.190
the denial of mental illness,
728
00:33:50.190 --> 00:33:52.020
that she wasn't appropriate for outpatient.
729
00:33:52.020 --> 00:33:54.360
But the clinician never was asked,
730
00:33:54.360 --> 00:33:58.263
is this a a good outpatient candidate, correct?
731
00:33:59.250 --> 00:34:01.410
She made that recommendation
732
00:34:01.410 --> 00:34:04.580
based upon her training, experience, and her.
733
00:34:04.580 --> 00:34:06.720
So she says, here are the facts,
734
00:34:06.720 --> 00:34:09.300
they include a denial of mental illness.
735
00:34:09.300 --> 00:34:11.730
Based upon all these facts, in my experience,
736
00:34:11.730 --> 00:34:13.890
the person needs to be inpatient.
737
00:34:13.890 --> 00:34:15.630
But there was no question posed
738
00:34:15.630 --> 00:34:17.790
about outpatient to the clinician.
739
00:34:17.790 --> 00:34:21.540
I can tell you that a very zealous defense attorney
740
00:34:21.540 --> 00:34:23.498
advocated strenuously,
741
00:34:23.498 --> 00:34:26.910
saying all of the things the counsel has said today
742
00:34:26.910 --> 00:34:27.750
to that court.
743
00:34:27.750 --> 00:34:29.880
Her car's in the parking lot.
744
00:34:29.880 --> 00:34:33.150
She's going from the street to Solomon Carter Fuller.
745
00:34:33.150 --> 00:34:34.590
This is completely unnecessary.
746
00:34:34.590 --> 00:34:36.120
I've sought funds from.
747
00:34:36.120 --> 00:34:39.480
All of those arguments were made to the court that day.
748
00:34:39.480 --> 00:34:43.800
But the problem is, the judge cut when she does that.
749
00:34:43.800 --> 00:34:45.720
So this is well argued.
750
00:34:45.720 --> 00:34:49.170
So she says, you can do this outpatient.
751
00:34:49.170 --> 00:34:54.170
The judge doesn't redirect to that point, does he or she?
752
00:34:57.627 --> 00:35:01.680
The judge doesn't address the issue or allow the expert
753
00:35:01.680 --> 00:35:03.750
to respond to that.
754
00:35:03.750 --> 00:35:06.543
That's what worries me a little bit, that we don't.
755
00:35:09.600 --> 00:35:12.390
Although they proposed the outpatient alternative,
756
00:35:12.390 --> 00:35:16.500
no one explains why an outpatient.
757
00:35:16.500 --> 00:35:21.030
It may be implicit, you say, but no one explains why.
758
00:35:21.030 --> 00:35:24.840
And now this case is here being argued
759
00:35:24.840 --> 00:35:26.760
that you should use outpatient
760
00:35:26.760 --> 00:35:30.120
rather than inpatient for these 15-Bs.
761
00:35:30.120 --> 00:35:33.180
I think this analysis discounts the important resource
762
00:35:33.180 --> 00:35:36.060
that a designated forensic psychologist
763
00:35:36.060 --> 00:35:37.800
or psychiatrist is to the court,
764
00:35:37.800 --> 00:35:40.260
and all of the requirements and qualifications
765
00:35:40.260 --> 00:35:43.380
that is necessary for them to be testifying in court,
766
00:35:43.380 --> 00:35:45.270
their knowledge of the competency
767
00:35:45.270 --> 00:35:46.590
and criminal responsibility standards.
768
00:35:46.590 --> 00:35:49.080
They're knowledgeable and I know they're the right person,
769
00:35:49.080 --> 00:35:51.660
but they're not asked the question,
770
00:35:51.660 --> 00:35:54.510
could you do this outpatient, right?
771
00:35:54.510 --> 00:35:59.460
Don't we need to know the answer from the expert on that?
772
00:35:59.460 --> 00:36:04.460
I mean, again, it may be implicit, but the judge kind of...
773
00:36:04.924 --> 00:36:07.803
She says, go do this 20 days.
774
00:36:08.640 --> 00:36:12.120
Nobody responds to the lawyer, do they?
775
00:36:12.120 --> 00:36:16.170
Well, the judge, on page 19 says,
776
00:36:16.170 --> 00:36:18.360
talks about the presentation by Dr. Robinson,
777
00:36:18.360 --> 00:36:20.407
and then the judge says,
778
00:36:20.407 --> 00:36:21.930
"Dr. Robinson was concerned
779
00:36:21.930 --> 00:36:24.600
she may not be a good candidate for voluntary treatment."
780
00:36:24.600 --> 00:36:25.433
Correct.
781
00:36:25.433 --> 00:36:26.970
So he gets all the information,
782
00:36:26.970 --> 00:36:30.450
considers whether or not she's appropriate for outpatient,
783
00:36:30.450 --> 00:36:31.710
and concludes otherwise.
784
00:36:31.710 --> 00:36:33.953
It was well within his discretion to do so.
785
00:36:35.023 --> 00:36:36.600
And that may be exactly right,
786
00:36:36.600 --> 00:36:39.183
but when they reference voluntary treatment,
787
00:36:40.517 --> 00:36:43.303
is that code for an outpatient evaluation?
788
00:36:43.303 --> 00:36:46.216
Yes, it is exactly that.
789
00:36:46.216 --> 00:36:48.840
And going back to this point about,
790
00:36:48.840 --> 00:36:50.490
and what's Justice Georges asked,
791
00:36:50.490 --> 00:36:53.010
is who is the best person to make these decisions?
792
00:36:53.010 --> 00:36:55.770
It's obviously, it's the judge that's in the courtroom there
793
00:36:55.770 --> 00:36:57.620
and there's plenty of case law about,
794
00:36:58.770 --> 00:37:01.890
pointing to Scianti that's cited in my brief,
795
00:37:01.890 --> 00:37:03.000
about seeing the courtroom,
796
00:37:03.000 --> 00:37:05.460
seeing what's going on there, seeing the parties,
797
00:37:05.460 --> 00:37:07.770
talking to court officers, taking information.
798
00:37:07.770 --> 00:37:09.930
But the expert, that person,
799
00:37:09.930 --> 00:37:11.910
that designated forensic psychologist
800
00:37:11.910 --> 00:37:14.100
that's working with the Department of Mental Health,
801
00:37:14.100 --> 00:37:17.820
understanding whether the facilities are at census,
802
00:37:17.820 --> 00:37:20.880
whether that person, there's a bed for them,
803
00:37:20.880 --> 00:37:23.580
all of those things are well within the realm
804
00:37:23.580 --> 00:37:26.310
of a designated core clinic.
805
00:37:26.310 --> 00:37:28.830
It's really important resource to a judge
806
00:37:28.830 --> 00:37:32.910
that has a whole host of issues in front of them,
807
00:37:32.910 --> 00:37:35.400
and they're relying on a qualified clinician
808
00:37:35.400 --> 00:37:37.200
that understands this and understands
809
00:37:37.200 --> 00:37:39.930
all of the macro issues that are going on
810
00:37:39.930 --> 00:37:42.420
that the defense justifiably has concerns with.
811
00:37:42.420 --> 00:37:43.320
Can I?
Did you, I'm sorry.
812
00:37:43.320 --> 00:37:44.276
No, no, go ahead.
813
00:37:44.276 --> 00:37:48.079
Do do you believe the judge, to make it constitutional,
814
00:37:48.079 --> 00:37:49.230
the judge needs to consider
815
00:37:49.230 --> 00:37:50.980
that least restrictive alternative?
816
00:37:52.770 --> 00:37:57.120
I believe that whenever there's a deprivation of liberty,
817
00:37:57.120 --> 00:37:59.670
that that analysis should be considered.
818
00:37:59.670 --> 00:38:01.530
Okay, and then in this case, you're arguing,
819
00:38:01.530 --> 00:38:03.864
the judge did consider and reject that alternative?
820
00:38:03.864 --> 00:38:08.864
And oftentimes it's, and most of the time
821
00:38:09.540 --> 00:38:13.380
it's something that's offered by that DFP.
822
00:38:13.380 --> 00:38:15.000
They are standing there in front of the judge
823
00:38:15.000 --> 00:38:17.640
and they're saying, this can be done outpatient.
824
00:38:17.640 --> 00:38:19.630
This juvenile, this person that's
825
00:38:21.900 --> 00:38:25.860
got a support system in place doesn't require that,
826
00:38:25.860 --> 00:38:28.680
or I want them to meet with me on a regular basis
827
00:38:28.680 --> 00:38:31.380
and I'll write a report to the court in two weeks.
828
00:38:31.380 --> 00:38:33.450
That happens all the time.
829
00:38:33.450 --> 00:38:35.280
In this particular case,
830
00:38:35.280 --> 00:38:38.220
there was a myriad of issues going on with this defendant
831
00:38:38.220 --> 00:38:40.530
that didn't exist at the beginning of the case,
832
00:38:40.530 --> 00:38:42.333
including all of these violations,
833
00:38:43.380 --> 00:38:46.560
or alleged violations of conditions of release,
834
00:38:46.560 --> 00:38:50.040
and she didn't recognize their mental illness
835
00:38:50.040 --> 00:38:51.772
and it was well within the judge's discretion
836
00:38:51.772 --> 00:38:52.605
to credit that.
So was there anything wrong
837
00:38:52.605 --> 00:38:55.050
with us holding this is required?
838
00:38:55.050 --> 00:38:58.650
That because of the constitutional overlay of this statute,
839
00:38:58.650 --> 00:39:01.870
we need to have a finding that an outpatient
840
00:39:03.720 --> 00:39:06.210
evaluation for competency
841
00:39:06.210 --> 00:39:09.300
is not appropriate in these circumstances?
842
00:39:09.300 --> 00:39:11.600
It sounds like you're saying you win the case.
843
00:39:12.810 --> 00:39:15.630
Again, we deal with rules, not just cases here.
844
00:39:15.630 --> 00:39:19.530
So is, isn't that required, and is there anything?
845
00:39:19.530 --> 00:39:21.810
What would be wrong, from your perspective,
846
00:39:21.810 --> 00:39:25.620
with us requiring an express finding
847
00:39:25.620 --> 00:39:30.370
that an outpatient competency evaluation is not appropriate
848
00:39:31.260 --> 00:39:33.630
before putting someone in for 20 days?
849
00:39:33.630 --> 00:39:36.450
I would suggest that the court need not insert
850
00:39:36.450 --> 00:39:40.320
any additional standards or requirements upon the court.
851
00:39:40.320 --> 00:39:42.989
Here, if there was no need for an outpatient,
852
00:39:42.989 --> 00:39:43.822
there would be.
We saw that
853
00:39:43.822 --> 00:39:45.960
in section 35 though, right?
854
00:39:45.960 --> 00:39:47.340
I forget the name, I think it's EC.
855
00:39:47.340 --> 00:39:48.810
We did that in section 35.
856
00:39:48.810 --> 00:39:51.720
We do that all the time to make these statutes,
857
00:39:51.720 --> 00:39:56.130
and 123 conformed to the substantive due process, right?
858
00:39:56.130 --> 00:40:00.867
For civil commitments, and they're certainly different.
859
00:40:00.867 --> 00:40:05.014
I guess your argument would be that here,
860
00:40:05.014 --> 00:40:09.990
the record reflects that there was a legitimate reason
861
00:40:09.990 --> 00:40:14.990
to have an inpatient under 15-B to get the evaluation,
862
00:40:15.150 --> 00:40:18.970
and that when we have a record
863
00:40:20.640 --> 00:40:23.490
that's vibrant and that we can dig into,
864
00:40:23.490 --> 00:40:26.850
and the issue is right before us and we have to reach it,
865
00:40:26.850 --> 00:40:29.760
then we should reach the constitutional issue.
866
00:40:29.760 --> 00:40:31.620
What I would suggest is that competency comes up
867
00:40:31.620 --> 00:40:34.320
all the time and in many different phases of a case,
868
00:40:34.320 --> 00:40:36.990
and it is so important that a judge is required
869
00:40:36.990 --> 00:40:39.510
to address it sua sponte.
870
00:40:39.510 --> 00:40:43.740
There are many cases where it simply does not go past a 15-A
871
00:40:43.740 --> 00:40:46.484
or even require a 15-A.
We're not worried about that
872
00:40:46.484 --> 00:40:47.490
It's relatively narrow though,
873
00:40:47.490 --> 00:40:51.720
because this entails someone who's not presently confined
874
00:40:51.720 --> 00:40:53.940
who already has a liberty interest that's deprived.
875
00:40:53.940 --> 00:40:57.240
'Cause pretrial detention also doesn't include
876
00:40:57.240 --> 00:40:59.490
the dangerous people who are sent to Bridgewater.
877
00:40:59.490 --> 00:41:00.490
Correct.