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SJC-13466, Commonwealth v Armani, M. Huacon,
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and SJC-13476 in the matter of a juvenile.
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Attorney Faulkner, whenever you get settled.
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May I please the court?
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My name is Benjamin Faulkner
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and I represent Armani Huacon.
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With me is Trial Counsel Attorney Andrew Ziberg.
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In this case,
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this is a reported case from the juvenile court
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regarding whether somebody who has been found not competent
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as a result of a non-mental illness can be forced
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to undergo treatment
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in order to be remediated or restored to competency,
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although, as pointed out in the amicus brief,
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remediated I think is the appropriate term to use here
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because he wasn't necessarily ever competent
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in the first place.
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Now, the statutory scheme
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that governs how the courts address competency concerns
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was enacted in 1986
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and it was enacted the entire Department
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of Mental Health code under the entire mental health code,
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and what was then the code entitled
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Department of Mental Retardation, which has now been renamed
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to the Department of Developmental Disabilities.
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Both of those codes were enacted at the same time together
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in one act.
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And what's significant about those being enacted together
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is that all of the competency issues
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were lumped into the Department of Mental Health Code
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and the Department of Mental Health Code provided
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both for how the court determines
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whether somebody's competent to stand trial,
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but also what happens
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after somebody has been found not competent to stand trial.
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And in particular here, what the legislature did
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was it enacted a series of treatments
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that may be provided to somebody who's not competent
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by reason of a mental illness.
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That person can be committed
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either to Bridgewater State Hospital
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or to the Department of Mental Health
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for a period of six months.
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That person can be ordered to undergo involuntary treatment
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provided that they meet the criteria for commitment,
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but there's no such provisions under the code
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that governs the Department of Developmental Disabilities.
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There's no ability to involuntary commit somebody
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who meets the definitions
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under the Department of Developmental Disabilities.
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There is no involuntary treatment of any kind
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that's provided for people that fall under
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the court of the Department of Developmental--
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Counsel, I don't mean to cut you off, but this is 1986.
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And it's an entirely different world
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with our understanding of the interplay
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with developmental disabilities in understanding
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that it's not a mental health issue.
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This just wasn't the world.
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So I think what we're talking about here really is
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we can agree that it's not in the statute,
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but now when we talk about where we are
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in the juvenile department where you have
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children with developmental disabilities
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and now it's impacting their ability to assist their counsel
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as they go forward with their defense,
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why doesn't this make sense
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that a juvenile court judge
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should have the inherent authority to order
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what would otherwise be ordered if we are talking about
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a mental health diagnosis?
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Well, first of all, I would begin
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with Commonwealth vs. Norman,
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which is that pretrial orders directed at either a juvenile
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or an adult have to be authorized by a statute.
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And while Commonwealth vs. Norman
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goes to bail conditions,
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here we have section 58A
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that also authorizes conditions of release.
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But those conditions of release are to be ordered
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with an eye toward the protection of the community.
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What the commonwealth is seeking here
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is for the juvenile court judge to be able to order
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the juvenile to undergo treatment,
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which essentially advances the commonwealth's interest
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in prosecution, but is not geared toward protecting
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the safety of the community and is not geared
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toward the best interest of the juvenile.
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Now, while it may be--
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But what happens when the juvenile
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doesn't receive this treatment?
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What's the remedy?
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When the juvenile does not receive the treatment?
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So it does not become competent to stand trial.
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So a juvenile that's not competent to stand trial,
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the the statutes do address that.
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The case is stayed until such time as somebody
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is competent to stand trial.
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The case cannot proceed and under certain circumstances,
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which is the companion case,
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the juvenile can seek dismissal of the charges
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so long as the interest of justice are met
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or other conditions are met,
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which are being dealt with in that case.
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But you would have a longer road to hoe
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because your case is a YO, right?
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Potentially.
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'Cause of parole eligibility
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in that section D portion, dismissal.
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In terms of dismissal and I think really the--
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Either way, you're here to argue you can't remediate
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and if they're not competent,
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then whatever happens happens down the road.
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Right, because the way that this case comes
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before the court, this is not before the court on a motion
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to dismiss as the other case is this is at the stage
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where the Commonwealth is seeking
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to order the juvenile into treatment.
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And I think the important thing here
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is there are many states that have set up programs
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and these programs involve the kind of fact finding
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that legislatures do.
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How do we address these cases
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so that everybody's treated equally.
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So there a whole class of persons,
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we know what to do with them.
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What the Commonwealth wants here
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is this unique ad hoc expert to come in
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just to teach this person
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how to become competent essentially.
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And that's not the kind of process
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that a juvenile court should be doing.
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It shouldn't be designing
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a new competency remediation program
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for each individual that comes along.
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That's the role of the legislature.
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That's the role of the department of--
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But we have inherent powers to run the judicial system.
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This case just sits in limbo and goes nowhere.
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I'm not sure that's good for your client either
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because your client can't prove that he didn't do it
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or that he shouldn't be in this process either.
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A big cloud hangs over his head as well.
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Well, there is a remedy,
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Commonwealth vs. Hatch allows for somebody
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that has been found not competent,
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who's got evidence that they're not guilty
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or not delinquent or not a youthful offender
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can demand a hearing and can require the commonwealth
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to present its evidence.
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So there are other remedies that are out there.
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What about the court's power to get its cases done?
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Well, the court, again, I think I would go back
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to the fact that while the court
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may have certain inherent powers,
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what it doesn't have is inherent powers
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to order defendants to meet certain conditions.
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And again, that goes back to Commonwealth vs. Norman,
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which is a due process.
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But more importantly, when we look at, I think it's--
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The court has certain powers to
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determine whether a defendant or a juvenile is competent.
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The question is does it have this additional power
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to provide services that will help facilitate
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rendering the juvenile competent.
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Right, but this court has already found
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that somebody cannot be,
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somebody who suffers from an intellectual disability,
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cannot be committed involuntarily.
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That those statutory provisions only apply
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to somebody who is mentally ill.
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And again, this is an area
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where the legislature has legislated--
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But this isn't necessarily what we're saying
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because the order could be outpatient.
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It's not saying we have to civilly commit the child,
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but that the child would, and there was some,
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I believe it was the guardian ad litem in certain things
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that could be pursued.
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Right, so the guardian ad litem did produce a report
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which suggested that if certain actions were taken,
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that the juvenile in this case may attain competency.
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The juvenile court didn't accept those findings necessarily.
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It simply restated that those things may assist him.
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But that's different by a preponderance of evidence
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that they would, first of all.
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No, I was raising that with respect to your point
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that we would be committing the juvenile.
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I'm only making the point
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that it could be in the community outpatient.
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Oh, understood, and I guess my only response to that is
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that commitment is the only process
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by which the legislature has provided
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that somebody can be treated.
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And when the legislature
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does legislate in a particular area here treatment,
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it would be inappropriate to use the court's inherent powers
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to do something that the legislature didn't provide for
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when the legislature did in fact enact
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a comprehensive scheme,
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which by the way has been repeatedly amended since 1986.
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So even though the original acts are old,
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the legislature has continued to address this.
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And I would just, if there are no further questions,
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I would just suggest that this really is a problem
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that is best to be solved by the legislature.
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Okay, thank you very much.
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Alright, Attorney Freitas.
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Good morning, may it please the court,
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Debbie Freitas on behalf of the youth appellant.
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With me is Christina Freitas, appellate co-counsel.
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The juvenile court cannot order competency remediation
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because its role
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is to shield cognitively limited incompetent youth
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from being tried in absentia.
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And as Attorney Faulkner argued,
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it's not within the court's inherent authority to order it,
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rather to the extent that there is a gap here,
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it is for the legislature to fill.
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Further, the Commonwealth failed to meet any burden of proof
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regarding the youth's ability to attain competency
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after he was again found incompetent.
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And the juvenile court urged
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in not holding the commonwealth to any burden
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and by not dismissing the case,
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given that the youth is unlikely
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to attain competency in the foreseeable future.
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The commonwealth must carry the burden of proof
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regarding a youth's ability to attain competency.
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And as the docket sheets reflect in this youth's case,
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the court is already called upon to make two findings
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at every competency hearing.
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The first is whether the youth is competent,
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and the second is if the youth is not competent,
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whether the youth will become competent
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in the foreseeable future.
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Due process and fairness require the commonwealth
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to carry the burden for both of those.
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As to the first inquiry
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that happens at a competency hearing--
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Where's the source of the second one,
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the second requirement you come up with
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that they have to do that at that time
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'cause it's a little hard when they can't decide
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whether he or she is competent at that time
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and you're saying they can't do anything about it as well.
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So you're adding a third component out of where?
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So I'll point the court to the docket sheets
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that already provide for those two findings.
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I believe in the record appendix,
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volume one pages 20 and 35, have those findings made.
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For example, the court makes them multiple times because--
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No, no, but where's the legal authority?
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You're saying there's a second component
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that the commonwealth has to prove
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after each incompetency proceeding
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that the juvenile could become competent.
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You're kind of...
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I don't know what the basis for that is.
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And because your first argument says they can't do anything
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about helping make the child competent,
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it seems a bit unfair to impose the second requirement too.
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Yes, Your Honor, so I believe the language
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that would be important to the court
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is found in Calvert is repeated in sheriffs.
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And that's for dismissal.
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Yes, it is for dismissal.
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I think to clarify, that's for dismissal
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on the 16F, right?
270
00:14:11.820 --> 00:14:15.750
Yes, that is the language used for a dismissal,
271
00:14:15.750 --> 00:14:18.717
which I think is relevant because if the court--
272
00:14:18.717 --> 00:14:20.214
And there's a time component to it
273
00:14:20.214 --> 00:14:21.480
and a due process component to dismissal.
274
00:14:21.480 --> 00:14:25.350
Yes, for incompetent adults, there are two methods
275
00:14:25.350 --> 00:14:27.480
by which to attain dismissal under 16F.
276
00:14:27.480 --> 00:14:29.400
The first one is mandated.
277
00:14:29.400 --> 00:14:33.720
It is a time certain independent of any other factors
278
00:14:33.720 --> 00:14:36.330
such as current safety to the community
279
00:14:36.330 --> 00:14:39.150
and the second is more of a due process,
280
00:14:39.150 --> 00:14:40.830
interest of justice.
281
00:14:40.830 --> 00:14:43.440
I think it's important because for a youth
282
00:14:43.440 --> 00:14:44.700
that's found incompetent
283
00:14:44.700 --> 00:14:47.400
and not able to attain competency
284
00:14:47.400 --> 00:14:51.480
into the foreseeable future, there is no trial in sight
285
00:14:51.480 --> 00:14:52.920
for that youth.
286
00:14:52.920 --> 00:14:54.990
And so the commonwealth's compelling interest
287
00:14:54.990 --> 00:14:57.870
to prosecute is not so compelling in that circumstance
288
00:14:57.870 --> 00:15:01.488
that it trumps a youth's interest in liberty.
289
00:15:01.488 --> 00:15:03.017
Counsel, can I just ask you,
290
00:15:03.017 --> 00:15:05.400
even though I know we're talking about the juvenile court,
291
00:15:05.400 --> 00:15:09.120
does the commonwealth have that burden in adult cases?
292
00:15:09.120 --> 00:15:12.720
I believe the commonwealth has that burden in all cases.
293
00:15:12.720 --> 00:15:13.950
Are you aware of any case
294
00:15:13.950 --> 00:15:17.007
where if the defendant were found to be incompetent
295
00:15:17.007 --> 00:15:19.050
and the time just continues to tick
296
00:15:19.050 --> 00:15:21.720
for either halftime or 16 half purposes,
297
00:15:21.720 --> 00:15:23.430
that every time the commonwealth,
298
00:15:23.430 --> 00:15:26.400
we come back and there's an order of incompetency,
299
00:15:26.400 --> 00:15:29.670
that the commonwealth then has a burden to demonstrate
300
00:15:29.670 --> 00:15:32.730
that the defendant could be returned to competency?
301
00:15:32.730 --> 00:15:34.620
Well, in order to...
302
00:15:34.620 --> 00:15:37.710
If we were to move forward from a first competency hearing
303
00:15:37.710 --> 00:15:39.783
where the youth is found not competent,
304
00:15:40.620 --> 00:15:42.570
in order to have a second competency hearing,
305
00:15:42.570 --> 00:15:45.136
the commonwealth would have to show the youth
306
00:15:45.136 --> 00:15:46.470
would be competent at that hearing to proceed to trial.
307
00:15:46.470 --> 00:15:47.700
And that's beyond a reasonable doubt,
308
00:15:47.700 --> 00:15:49.110
the commonwealth's burden.
309
00:15:49.110 --> 00:15:51.120
At the trial, yes.
310
00:15:51.120 --> 00:15:53.550
But even at a second competency hearing,
311
00:15:53.550 --> 00:15:55.230
it would be on the commonwealth to show
312
00:15:55.230 --> 00:15:57.270
that that youth is competent by a preponderance
313
00:15:57.270 --> 00:15:58.233
of the evidence.
314
00:15:59.223 --> 00:16:01.470
In order to have that second competency hearing,
315
00:16:01.470 --> 00:16:03.870
shouldn't the commonwealth have to show
316
00:16:03.870 --> 00:16:06.870
that we should even have a second competency hearing?
317
00:16:06.870 --> 00:16:10.680
If the youth has a slim chance of being remediated
318
00:16:10.680 --> 00:16:15.680
or restored to attain competency in the foreseeable future,
319
00:16:16.650 --> 00:16:19.743
there is no trial in sight.
320
00:16:20.820 --> 00:16:22.830
The purpose for a continuation
321
00:16:22.830 --> 00:16:26.310
is to see if the youth will be remediated.
322
00:16:26.310 --> 00:16:28.525
And so in this case, we'll deal--
323
00:16:28.525 --> 00:16:31.650
Well maybe that pushes towards the opposite answer
324
00:16:31.650 --> 00:16:32.640
on your first question,
325
00:16:32.640 --> 00:16:34.530
that maybe the commonwealth
326
00:16:34.530 --> 00:16:39.490
and the courts do have the capacity to order services
327
00:16:41.790 --> 00:16:43.770
to help make the juvenile competent
328
00:16:43.770 --> 00:16:47.280
'cause then we could answer both questions.
329
00:16:47.280 --> 00:16:48.600
So, Your Honor, respectfully,
330
00:16:48.600 --> 00:16:51.630
I think this court has already taken up that issue
331
00:16:51.630 --> 00:16:53.610
in Commonwealth v. Kendrew.
332
00:16:53.610 --> 00:16:57.810
So in that case, a criminal defendant
333
00:16:57.810 --> 00:16:59.850
comes into the district court
334
00:16:59.850 --> 00:17:02.370
and is ordered to be observed
335
00:17:02.370 --> 00:17:05.010
and examined at a secure facility.
336
00:17:05.010 --> 00:17:08.310
And the forensic provider at that secure facility comes back
337
00:17:08.310 --> 00:17:13.145
and reports to the court that due to mild,
338
00:17:13.145 --> 00:17:15.330
what they said at the time,
339
00:17:15.330 --> 00:17:19.320
mental retardation and other disorders,
340
00:17:19.320 --> 00:17:21.540
this person does not suffer from a mental illness
341
00:17:21.540 --> 00:17:25.170
but may be harm to themselves or others.
342
00:17:25.170 --> 00:17:27.450
But because the mental illness component is missing,
343
00:17:27.450 --> 00:17:30.480
they cannot be housed in the secure facility.
344
00:17:30.480 --> 00:17:34.350
And as a result, the district court judge thereafter
345
00:17:34.350 --> 00:17:37.740
provides custody of Ms. Kendrew
346
00:17:37.740 --> 00:17:40.320
to the Department of Mental Retardation
347
00:17:40.320 --> 00:17:41.670
for the purposes of placement.
348
00:17:41.670 --> 00:17:43.710
Placement is a service,
349
00:17:43.710 --> 00:17:47.040
and the Department of Mental Retardation appeals.
350
00:17:47.040 --> 00:17:52.040
And this court finds that, in fact,
351
00:17:53.460 --> 00:17:55.263
Ms. Kendrew's incompetence,
352
00:17:56.130 --> 00:17:58.200
due to her cognitive limitations,
353
00:17:58.200 --> 00:18:00.990
does not result in this court
354
00:18:00.990 --> 00:18:03.900
or any court requiring inherent authority
355
00:18:03.900 --> 00:18:06.870
because her inability to be tried
356
00:18:06.870 --> 00:18:09.720
because of incompetence does not impede
357
00:18:09.720 --> 00:18:11.220
the court's essential functions.
358
00:18:11.220 --> 00:18:13.170
And in that case, the court even notes
359
00:18:13.170 --> 00:18:17.520
that there may very well be a gap, a legislative gap
360
00:18:17.520 --> 00:18:21.510
in what we do with cognitively limited defendants,
361
00:18:21.510 --> 00:18:24.060
but that gap is for the legislature to fill,
362
00:18:24.060 --> 00:18:25.650
not for the court.
363
00:18:25.650 --> 00:18:29.100
And 29 years later, the legislature has not acted.
364
00:18:29.100 --> 00:18:32.250
And in fact, we are in the same statutory scheme essentially
365
00:18:32.250 --> 00:18:34.170
that we were when Kendrew was decided.
366
00:18:34.170 --> 00:18:38.130
And so really there's no more interest in finding
367
00:18:38.130 --> 00:18:41.433
or concocting inherent authority here than there was there.
368
00:18:42.480 --> 00:18:44.880
And so where the youth is the one
369
00:18:44.880 --> 00:18:45.960
who has a liberty interest,
370
00:18:45.960 --> 00:18:48.000
it's important that the government be the one
371
00:18:48.000 --> 00:18:51.300
to carry the burden on any issues related to competency.
372
00:18:51.300 --> 00:18:53.400
And I'm not sure there's any context
373
00:18:53.400 --> 00:18:54.960
in which someone with the liberty interest
374
00:18:54.960 --> 00:18:56.640
would carry a burden.
375
00:18:56.640 --> 00:18:58.530
More importantly, it's the government's interest
376
00:18:58.530 --> 00:18:59.880
to continue the prosecution
377
00:18:59.880 --> 00:19:01.830
and shouldn't it be on the government then
378
00:19:01.830 --> 00:19:04.179
to have to prove that a prosecution--
379
00:19:04.179 --> 00:19:06.450
There's an existent cognitive limitation,
380
00:19:06.450 --> 00:19:09.363
albeit an adult or a juvenile.
381
00:19:10.230 --> 00:19:11.760
The government is really under the gun
382
00:19:11.760 --> 00:19:15.090
because there's no way to prove they're gonna be remediated,
383
00:19:15.090 --> 00:19:17.390
a potential to be restore a competency, right?
384
00:19:18.570 --> 00:19:19.830
Respectfully, I disagree.
385
00:19:19.830 --> 00:19:23.190
I think every competency hearing does have experts
386
00:19:23.190 --> 00:19:26.640
who do provide information on whether a youth
387
00:19:26.640 --> 00:19:30.090
could attain competency in the foreseeable future
388
00:19:30.090 --> 00:19:31.893
as to cognitively limited.
389
00:19:32.940 --> 00:19:33.960
So the record here--
390
00:19:33.960 --> 00:19:35.589
That's the harder part, right?
391
00:19:35.589 --> 00:19:38.250
So the record here, the experts did provide testimony
392
00:19:38.250 --> 00:19:42.060
that the type of deficits that you suffered from
393
00:19:42.060 --> 00:19:45.240
are not amendable to change.
394
00:19:45.240 --> 00:19:48.432
However, there are many other contexts in the juvenile court
395
00:19:48.432 --> 00:19:49.290
and also in the adult court.
396
00:19:49.290 --> 00:19:51.120
But what you're saying is it has to be amendable
397
00:19:51.120 --> 00:19:53.238
to change organically.
398
00:19:53.238 --> 00:19:54.137
It can't be through--
399
00:19:55.230 --> 00:19:57.300
It shouldn't be through.
400
00:19:57.300 --> 00:19:59.760
Through any type of remediation or teaching.
401
00:19:59.760 --> 00:20:02.073
At least not ones provided by the court.
402
00:20:03.354 --> 00:20:07.680
If the legislature stepped up as other states have,
403
00:20:07.680 --> 00:20:10.890
then that obviously those would be available.
404
00:20:10.890 --> 00:20:11.820
Yes, Your Honor precisely.
405
00:20:11.820 --> 00:20:15.210
Did you cite Kendrew, that case in your brief?
406
00:20:15.210 --> 00:20:16.760
Yes, it's in the reply brief.
407
00:20:19.170 --> 00:20:20.690
Thank you very much.
408
00:20:20.690 --> 00:20:21.683
I will rest on my brief.
409
00:20:26.400 --> 00:20:29.970
Attorney Wiconey-Djing.
410
00:20:29.970 --> 00:20:31.500
Good morning, may it please the court,
411
00:20:31.500 --> 00:20:34.170
Kristen Djing for the commonwealth.
412
00:20:34.170 --> 00:20:37.530
In the absence of a formal competency remediation program
413
00:20:37.530 --> 00:20:41.640
in the commonwealth, the court has the inherent authority
414
00:20:41.640 --> 00:20:44.640
to appoint a remediation counselor or educator
415
00:20:44.640 --> 00:20:47.070
and to compel the juvenile to participate.
416
00:20:47.070 --> 00:20:49.290
How is this any different from adults
417
00:20:49.290 --> 00:20:52.470
'cause I've seen it in superior court in adults
418
00:20:52.470 --> 00:20:55.440
who have cognitive limitations, organic brain disorders,
419
00:20:55.440 --> 00:20:58.530
et cetera, and it's a gap
420
00:20:58.530 --> 00:21:01.290
when they don't have a defined mental illness.
421
00:21:01.290 --> 00:21:06.060
But in those situations, you take the defendant
422
00:21:06.060 --> 00:21:08.940
as you see it, and it's to the detriment sometimes
423
00:21:08.940 --> 00:21:11.250
in violent cases to the commonwealth.
424
00:21:11.250 --> 00:21:13.500
But as I've seen those cases play out,
425
00:21:13.500 --> 00:21:15.450
there's nothing really the court can do.
426
00:21:15.450 --> 00:21:17.160
Why is this different?
427
00:21:17.160 --> 00:21:19.290
The juvenile context is different
428
00:21:19.290 --> 00:21:22.560
because I cited some of the research in my brief,
429
00:21:22.560 --> 00:21:23.670
explaining the difference
430
00:21:23.670 --> 00:21:25.650
in the juvenile context, because a lot of times,
431
00:21:25.650 --> 00:21:30.650
these juveniles have a complex web of issues,
432
00:21:30.750 --> 00:21:32.670
some of which may be remediative,
433
00:21:32.670 --> 00:21:34.110
some of which maybe not--
434
00:21:34.110 --> 00:21:35.944
That goes to treatment,
435
00:21:35.944 --> 00:21:37.740
but this has to do with the court's authority
436
00:21:39.060 --> 00:21:41.460
where we don't have that authority,
437
00:21:41.460 --> 00:21:44.130
as I saw it, in adult cases.
438
00:21:44.130 --> 00:21:45.170
That just has to do
439
00:21:46.176 --> 00:21:47.130
with whether it's capable of remediation
440
00:21:47.130 --> 00:21:48.657
versus the court's authority
441
00:21:48.657 --> 00:21:51.426
and as Justice Wendlandt pointed out,
442
00:21:51.426 --> 00:21:53.460
as opposed to a legislative program.
443
00:21:53.460 --> 00:21:56.340
Sure, and I suppose in the right case,
444
00:21:56.340 --> 00:21:58.170
if this court finds
445
00:21:58.170 --> 00:22:01.684
that the juvenile court has the inherent authority,
446
00:22:01.684 --> 00:22:03.990
I don't see why in the correct case in the adult context,
447
00:22:03.990 --> 00:22:06.090
they wouldn't have that authority as well.
448
00:22:06.090 --> 00:22:07.680
It's just in the juvenile context,
449
00:22:07.680 --> 00:22:09.990
these issues come up so much more often.
450
00:22:09.990 --> 00:22:12.360
That's why it's heightened in this context.
451
00:22:12.360 --> 00:22:14.230
But then how do we
452
00:22:17.100 --> 00:22:18.720
operate in this ad hoc fashion
453
00:22:18.720 --> 00:22:20.820
that we're gonna appoint experts,
454
00:22:20.820 --> 00:22:22.620
we're gonna come up with curriculum,
455
00:22:23.700 --> 00:22:27.520
we're gonna hire special education teachers to do this
456
00:22:28.830 --> 00:22:30.480
like a legislative function.
457
00:22:30.480 --> 00:22:33.930
If the legislature were to pass a statute similar
458
00:22:33.930 --> 00:22:38.160
to these other states, and I believe the unique has cited
459
00:22:38.160 --> 00:22:39.870
a bill that's pending before the legislature.
460
00:22:39.870 --> 00:22:41.310
Right now, I took a look at it
461
00:22:41.310 --> 00:22:43.980
and it wouldn't be a whole lot different
462
00:22:43.980 --> 00:22:46.320
to be quite honest than giving--
463
00:22:46.320 --> 00:22:48.600
I think Justice Gaziano's point
464
00:22:48.600 --> 00:22:53.600
is that we as an institution are good at trying cases.
465
00:22:55.549 --> 00:22:58.020
We're not good at setting up programs
466
00:22:58.020 --> 00:22:59.910
to remediate youth.
467
00:22:59.910 --> 00:23:01.200
Agreed, but also the--
468
00:23:01.200 --> 00:23:03.060
So doesn't that suggest
469
00:23:03.060 --> 00:23:07.410
an institutional limitation on our power
470
00:23:07.410 --> 00:23:09.900
to craft such programs?
471
00:23:09.900 --> 00:23:11.571
I don't think--
472
00:23:11.571 --> 00:23:12.660
Wouldn't there be a due process problem
473
00:23:12.660 --> 00:23:15.150
maybe if we did and it didn't work out
474
00:23:15.150 --> 00:23:17.730
and there were some harm to the child.
475
00:23:17.730 --> 00:23:20.580
Well, I'm having trouble picturing
476
00:23:20.580 --> 00:23:22.530
what the possible harm could be to the child,
477
00:23:22.530 --> 00:23:24.684
because at the end of the day,
478
00:23:24.684 --> 00:23:26.700
we still would have to have a competency evaluation, again,
479
00:23:26.700 --> 00:23:29.122
to decide whether or not they're competent.
480
00:23:29.122 --> 00:23:30.060
So the worst that could happen
481
00:23:30.060 --> 00:23:32.190
is that they still are not competent.
482
00:23:32.190 --> 00:23:33.870
Well, there's a little bit more than that
483
00:23:33.870 --> 00:23:38.870
because listening to Attorney Faulkner
484
00:23:38.940 --> 00:23:43.140
and Attorney Freitas, the other harm is
485
00:23:43.140 --> 00:23:46.230
they are restored to competency
486
00:23:46.230 --> 00:23:48.990
and then the proceedings proceed
487
00:23:48.990 --> 00:23:51.090
and they're either found delinquent
488
00:23:51.090 --> 00:23:53.940
or they're found as youthful offenders,
489
00:23:53.940 --> 00:23:56.700
and they're doing that by the conduit of
490
00:23:56.700 --> 00:24:01.700
the court ordering them to these remediation services.
491
00:24:01.740 --> 00:24:04.620
I mean, isn't that a problem?
492
00:24:04.620 --> 00:24:06.450
The problem is right now they're being harmed
493
00:24:06.450 --> 00:24:09.652
by these cases just sitting there languishing and if--
494
00:24:09.652 --> 00:24:11.580
I think they're more than happy to have them languish
495
00:24:11.580 --> 00:24:14.640
as opposed to being tried for armed robbery,
496
00:24:14.640 --> 00:24:15.840
at least in the first case.
497
00:24:15.840 --> 00:24:18.540
Well, at the same time, the juvenile court is designed
498
00:24:18.540 --> 00:24:20.744
with a rehabilitative purpose
499
00:24:20.744 --> 00:24:23.730
and they can't access any of those benefits
500
00:24:23.730 --> 00:24:25.808
with the case just sitting there,
501
00:24:25.808 --> 00:24:26.760
the court can't do anything at this point.
502
00:24:26.760 --> 00:24:28.680
The benefit is that at the end of the day,
503
00:24:28.680 --> 00:24:30.480
the case gets dismissed.
504
00:24:30.480 --> 00:24:32.809
Well, but at the same time, the court has--
505
00:24:32.809 --> 00:24:35.220
I understand there's a substantial harm
506
00:24:35.220 --> 00:24:38.370
to the commonwealth in that you have victims,
507
00:24:38.370 --> 00:24:41.400
you have people who may have been violently attacked
508
00:24:41.400 --> 00:24:43.710
by a juvenile who has the situation.
509
00:24:43.710 --> 00:24:46.613
I get why you're pressing this,
510
00:24:46.613 --> 00:24:48.120
and I understand there's a significant,
511
00:24:48.120 --> 00:24:52.017
potentially significant harm to the commonwealth,
512
00:24:52.017 --> 00:24:54.030
but this kind of exists in a gray area
513
00:24:54.030 --> 00:24:56.580
at this legislative point in time.
514
00:24:56.580 --> 00:25:00.210
Understood, understood, but assuming that the legislature
515
00:25:00.210 --> 00:25:01.740
does pass some sort of statute
516
00:25:01.740 --> 00:25:03.480
similar to what's been proposed,
517
00:25:03.480 --> 00:25:05.040
it just says the court has the authority
518
00:25:05.040 --> 00:25:07.260
to appoint a similar specialist.
519
00:25:07.260 --> 00:25:08.490
It gives some timeframes,
520
00:25:08.490 --> 00:25:11.100
but I'm not sure that
521
00:25:11.100 --> 00:25:13.105
it would be much different than now--
522
00:25:13.105 --> 00:25:14.629
Well, the difference
523
00:25:14.629 --> 00:25:16.701
is that the legislature does it, not us.
524
00:25:16.701 --> 00:25:17.940
Well, the legislature just says the court
525
00:25:17.940 --> 00:25:21.060
has the authority to put some timeframes in, but--
526
00:25:21.060 --> 00:25:25.140
I mean, the legislature can pass the statute
527
00:25:25.140 --> 00:25:30.140
and put in whatever they deem necessary and proper.
528
00:25:30.900 --> 00:25:34.440
Correct, but if you take a look at the proposal currently,
529
00:25:34.440 --> 00:25:37.320
it would simply give the court the explicit authority--
530
00:25:37.320 --> 00:25:39.263
Which allows us to do what you're asking us to do.
531
00:25:40.380 --> 00:25:43.830
Correct, correct, puts in some timeframes,
532
00:25:43.830 --> 00:25:48.090
but it doesn't necessarily set up the infrastructure
533
00:25:48.090 --> 00:25:50.520
that I think is what my brother
534
00:25:50.520 --> 00:25:52.855
and sister are calling for.
535
00:25:52.855 --> 00:25:55.770
The point of the pending provision is perhaps that
536
00:25:55.770 --> 00:25:59.310
in the absence of such a passage
537
00:25:59.310 --> 00:26:02.400
of a proposed statute, we don't have the authority
538
00:26:02.400 --> 00:26:05.460
to craft on our own a program.
539
00:26:05.460 --> 00:26:06.293
But at the same time,
540
00:26:06.293 --> 00:26:08.220
we have a lot of testimony here on the record
541
00:26:08.220 --> 00:26:11.869
about these particular deficits in these two cases
542
00:26:11.869 --> 00:26:14.190
and we even had a GAL appointed
543
00:26:14.190 --> 00:26:16.350
that did a little bit of research and investigation
544
00:26:16.350 --> 00:26:19.500
into what maybe would help one of the particular juveniles.
545
00:26:19.500 --> 00:26:21.240
So I think we have a lot of information about
546
00:26:21.240 --> 00:26:23.906
what if would help in these particular cases--
547
00:26:23.906 --> 00:26:24.739
May help, right?
548
00:26:24.739 --> 00:26:26.820
It may, and then that's in every single case, we don't--
549
00:26:26.820 --> 00:26:29.550
The efficacy of the efforts as opposed
550
00:26:29.550 --> 00:26:30.510
to the authorization--
551
00:26:30.510 --> 00:26:32.340
Correct, that's exactly right.
552
00:26:32.340 --> 00:26:34.950
And then after a certain period of time
553
00:26:34.950 --> 00:26:36.704
and the court can--
554
00:26:36.704 --> 00:26:39.229
Given that the statute is really sort of
555
00:26:39.229 --> 00:26:42.240
a comprehensive statute that leaves this gap open,
556
00:26:42.240 --> 00:26:44.580
and given that there is a pending legislation
557
00:26:44.580 --> 00:26:46.770
to fill the gap, what's your best argument
558
00:26:46.770 --> 00:26:48.300
that we currently have the authority
559
00:26:48.300 --> 00:26:50.370
to put these programs forward?
560
00:26:50.370 --> 00:26:52.800
Because my best argument is that this goes
561
00:26:52.800 --> 00:26:54.900
to the essential functioning of the court.
562
00:26:54.900 --> 00:26:58.620
These cases cannot proceed unless...
563
00:26:58.620 --> 00:26:59.790
These cases cannot proceed
564
00:26:59.790 --> 00:27:01.320
unless we're given the opportunity
565
00:27:01.320 --> 00:27:03.783
to potentially remediate these juveniles.
566
00:27:04.980 --> 00:27:09.980
Well, okay, assume the premise that we can't do this.
567
00:27:10.080 --> 00:27:15.080
I'm really interested in what do we do in this world,
568
00:27:15.660 --> 00:27:18.180
because as Justice Gaziano mentioned,
569
00:27:18.180 --> 00:27:21.090
this happens in the adult docket all the time.
570
00:27:21.090 --> 00:27:22.960
But in the adult dockets, we have 16F
571
00:27:23.985 --> 00:27:25.860
and we have other mechanisms to deal with
572
00:27:25.860 --> 00:27:27.360
when it starts to languish.
573
00:27:27.360 --> 00:27:29.506
But if you could first,
574
00:27:29.506 --> 00:27:32.517
when the incompetency reports come back,
575
00:27:32.517 --> 00:27:35.760
can you talk about whether or not
576
00:27:35.760 --> 00:27:40.680
the commonwealth should have a burden on the return
577
00:27:40.680 --> 00:27:45.330
of a juvenile who's been deemed incompetent
578
00:27:45.330 --> 00:27:48.780
and now they're off and now we go back
579
00:27:48.780 --> 00:27:51.600
and set another date to return
580
00:27:51.600 --> 00:27:53.760
to see whether or not things have changed.
581
00:27:53.760 --> 00:27:56.970
Should the commonwealth have a burden of demonstrating
582
00:27:56.970 --> 00:27:59.310
that there's some reasonable expectation
583
00:27:59.310 --> 00:28:01.653
of being returned to competency?
584
00:28:02.850 --> 00:28:06.841
Under due process, I don't believe that just the pendency
585
00:28:06.841 --> 00:28:09.118
of the charges alone would require the commonwealth
586
00:28:09.118 --> 00:28:10.020
to have to show that.
587
00:28:10.020 --> 00:28:13.076
Didn't the Supreme Court already tell us that they do.
588
00:28:13.076 --> 00:28:14.280
I mean, isn't that what Jackson case says
589
00:28:14.280 --> 00:28:16.530
and we repeated it in Abbott A.
590
00:28:16.530 --> 00:28:18.813
There has to be, under due process,
591
00:28:20.250 --> 00:28:23.940
an expectation that sometime in the foreseeable future,
592
00:28:23.940 --> 00:28:26.280
a return to competency will happen.
593
00:28:26.280 --> 00:28:29.730
There has to be showing by the commonwealth
594
00:28:29.730 --> 00:28:32.520
of progress towards that goal.
595
00:28:32.520 --> 00:28:34.710
I mean, those are constitutional requirements.
596
00:28:34.710 --> 00:28:36.750
Correct, and I completely agree with that, Your Honor,
597
00:28:36.750 --> 00:28:39.206
but I would distinguish those two cases
598
00:28:39.206 --> 00:28:41.252
in that the deprivation of liberty
599
00:28:41.252 --> 00:28:42.846
was much stronger in those cases.
600
00:28:42.846 --> 00:28:46.620
In Jackson, the defendant was held under a civil commitment,
601
00:28:46.620 --> 00:28:48.360
just for purposes of the criminal case,
602
00:28:48.360 --> 00:28:50.310
not because his health and safety was at risk.
603
00:28:50.310 --> 00:28:53.220
He didn't fall under the mental health statute.
604
00:28:53.220 --> 00:28:56.520
And then under Abbott A, that was dealing with a situation
605
00:28:56.520 --> 00:28:59.430
where the juvenile was being held for dangerousness.
606
00:28:59.430 --> 00:29:02.400
And I'm sorry, what is the facts of these two cases?
607
00:29:02.400 --> 00:29:03.513
These two cases?
608
00:29:04.410 --> 00:29:05.553
One of them,
609
00:29:06.630 --> 00:29:10.350
the first case, the juvenile was held for dangerousness,
610
00:29:10.350 --> 00:29:13.560
but was released after an Abbott A type of hearing,
611
00:29:13.560 --> 00:29:15.840
he's now been re-held again
612
00:29:15.840 --> 00:29:17.340
just because he violated conditions.
613
00:29:17.340 --> 00:29:18.570
So the first juvenile is being held,
614
00:29:18.570 --> 00:29:19.820
what's the second one?
615
00:29:19.820 --> 00:29:22.653
The other one, he is out on conditions.
616
00:29:22.653 --> 00:29:24.000
[Justice Wendlandt] Okay, thank you.
617
00:29:24.000 --> 00:29:27.870
So I would submit that the case law does not support,
618
00:29:27.870 --> 00:29:31.380
just based on the pendency of criminal charges,
619
00:29:31.380 --> 00:29:35.100
that due process requires the commonwealth
620
00:29:35.100 --> 00:29:37.950
to show reliability at every single competency hearing
621
00:29:37.950 --> 00:29:40.680
and I would submit that in the juvenile context,
622
00:29:40.680 --> 00:29:42.780
these cases can be very complicated
623
00:29:42.780 --> 00:29:45.330
because a lot of these juveniles have a number of issues,
624
00:29:45.330 --> 00:29:48.090
whether it be a combination of cognitive disabilities,
625
00:29:48.090 --> 00:29:50.670
mental health issues, family stability.
626
00:29:50.670 --> 00:29:54.240
So it might take a while to
627
00:29:54.240 --> 00:29:56.100
even determine whether it's possible
628
00:29:56.100 --> 00:29:57.300
to remediate these juveniles.
629
00:29:57.300 --> 00:30:01.570
So I would caution the court against imposing
630
00:30:02.580 --> 00:30:06.000
time limitations that are too short that would require,
631
00:30:06.000 --> 00:30:07.350
even at the competency stage,
632
00:30:07.350 --> 00:30:09.060
determining whether a juvenile's competent
633
00:30:09.060 --> 00:30:12.573
to make predictions too soon in the process.
634
00:30:14.250 --> 00:30:18.690
And I do wanna discuss the case
635
00:30:18.690 --> 00:30:21.813
DMH v. Kendrew, which my sister cited.
636
00:30:22.860 --> 00:30:24.990
I do wanna distinguish that case
637
00:30:24.990 --> 00:30:28.350
because in that case, the court found that
638
00:30:28.350 --> 00:30:32.850
the court lacked the inherent authority to order DDS
639
00:30:32.850 --> 00:30:35.340
to provide services to the defendant in that case.
640
00:30:35.340 --> 00:30:40.020
So that case had more to do with the court
641
00:30:40.020 --> 00:30:43.740
basically telling an an executive agency what to do.
642
00:30:43.740 --> 00:30:46.387
That's not what I'm proposing in this case.
643
00:30:46.387 --> 00:30:48.090
I'm not saying that the court has the inherent authority
644
00:30:48.090 --> 00:30:51.813
to force DMH or DDS to really do anything.
645
00:30:53.250 --> 00:30:56.557
And in that case, the criminal, it seemed to me
646
00:30:56.557 --> 00:30:57.770
that the criminal case was pretty much wrapped up
647
00:30:57.770 --> 00:30:59.760
at the point where that order was made.
648
00:30:59.760 --> 00:31:02.670
In these cases, the criminal case cannot proceed
649
00:31:02.670 --> 00:31:06.690
unless and until something happens with this case.
650
00:31:06.690 --> 00:31:09.090
How would this case be different?
651
00:31:09.090 --> 00:31:12.030
Because a lot of the times, you have the same issues
652
00:31:12.030 --> 00:31:14.340
that you have on the adult dockets
653
00:31:14.340 --> 00:31:18.150
where a lot of these juveniles
654
00:31:18.150 --> 00:31:20.430
don't have any money and they're indigent.
655
00:31:20.430 --> 00:31:24.180
And so to the extent that the court would order services,
656
00:31:24.180 --> 00:31:27.660
they would likely be DPH services
657
00:31:27.660 --> 00:31:31.590
and you would have an Article 30 issue.
658
00:31:31.590 --> 00:31:34.290
Where would the court order the services
659
00:31:34.290 --> 00:31:36.750
to be given to the juvenile,
660
00:31:36.750 --> 00:31:39.093
but for state agencies?
661
00:31:39.093 --> 00:31:41.610
It would have to be perhaps
662
00:31:41.610 --> 00:31:45.093
even a private individual that would come in
663
00:31:45.093 --> 00:31:46.950
and do this charged by the hour,
664
00:31:46.950 --> 00:31:47.950
something like that.
665
00:31:48.933 --> 00:31:50.465
This would have to be a pretty specialized person
666
00:31:50.465 --> 00:31:51.330
as you can kind of see in other states
667
00:31:51.330 --> 00:31:54.600
what sort of backgrounds are required of people
668
00:31:54.600 --> 00:31:56.040
that do this.
669
00:31:56.040 --> 00:31:58.894
It would have to be a pretty specialized person.
670
00:31:58.894 --> 00:32:01.050
But the GAL, at least in the first case,
671
00:32:01.050 --> 00:32:02.430
provided some resources
672
00:32:02.430 --> 00:32:04.730
where we can look to try to find these people.
673
00:32:05.910 --> 00:32:07.110
I know this is not part of the record,
674
00:32:07.110 --> 00:32:08.820
but I spoke to some experts in this area
675
00:32:08.820 --> 00:32:11.027
and one of them told me that
676
00:32:11.027 --> 00:32:12.600
the ideal person in her mind would be
677
00:32:12.600 --> 00:32:15.030
a retired special ed teacher that just has the time
678
00:32:15.030 --> 00:32:16.851
and the patience
679
00:32:16.851 --> 00:32:18.840
and the background to perform this type of work.
680
00:32:18.840 --> 00:32:22.080
So I believe these people could be found
681
00:32:22.080 --> 00:32:26.820
and I don't believe we need to kind of reach out to DMH
682
00:32:26.820 --> 00:32:29.310
and force them to do something
683
00:32:29.310 --> 00:32:30.910
that's not within their mandate.
684
00:32:34.770 --> 00:32:35.700
If there are no further questions,
685
00:32:35.700 --> 00:32:37.200
I'm happy to rest on my brief.