WEBVTT
1
00:00:00.117 --> 00:00:05.117
SJC 13466 Commonwealth v Armani M. Huacon.
2
00:00:05.460 --> 00:00:09.693
And SJC 1347 in the matter of a juvenile.
3
00:00:23.710 --> 00:00:26.373
Okay, Attorney Faulkner, whenever you get settled.
4
00:00:34.740 --> 00:00:36.030
May it please the court.
5
00:00:36.030 --> 00:00:37.200
My name is Benjamin Faulkner
6
00:00:37.200 --> 00:00:39.720
and I represent Armani Huacon.
7
00:00:39.720 --> 00:00:43.893
With me is trial counsel, Attorney Andrew Zeiberg.
8
00:00:45.540 --> 00:00:48.150
In this case, this is a reported case
9
00:00:48.150 --> 00:00:49.740
from the juvenile court
10
00:00:49.740 --> 00:00:54.240
regarding whether somebody who has been found not competent
11
00:00:54.240 --> 00:00:59.240
as a result of a non-mental illness, can be forced
12
00:00:59.310 --> 00:01:03.180
to undergo treatment in order to be remediated
13
00:01:03.180 --> 00:01:05.250
or restored to competency.
14
00:01:05.250 --> 00:01:08.850
Although, as pointed out in the amicus brief, "remediated,"
15
00:01:08.850 --> 00:01:11.850
I think is the appropriate term to use here
16
00:01:11.850 --> 00:01:14.694
because he wasn't necessarily ever competent
17
00:01:14.694 --> 00:01:16.980
in the first place.
18
00:01:16.980 --> 00:01:21.720
Now, the statutory scheme
19
00:01:21.720 --> 00:01:25.050
that governs how the courts address competency concerns
20
00:01:25.050 --> 00:01:28.980
was enacted in 1986.
21
00:01:28.980 --> 00:01:33.240
And it was enacted the entire Department of Mental Health
22
00:01:33.240 --> 00:01:37.470
code under the entire Mental Health Code.
23
00:01:37.470 --> 00:01:42.150
And what was then the code entitled
24
00:01:42.150 --> 00:01:45.930
Department of Mental Retardation, which has now been renamed
25
00:01:45.930 --> 00:01:49.110
to the Department of Developmental Disabilities.
26
00:01:49.110 --> 00:01:52.920
Both of those codes were enacted at the same time
27
00:01:52.920 --> 00:01:56.550
together in one act.
28
00:01:56.550 --> 00:02:00.570
And what's significant about those being enacted together
29
00:02:00.570 --> 00:02:04.320
is that all of the competency issues
30
00:02:04.320 --> 00:02:07.470
were lumped into the Department of Mental Health Code
31
00:02:07.470 --> 00:02:10.110
and the Department of Mental Health Code
32
00:02:10.110 --> 00:02:13.710
provided both for how the court determines
33
00:02:13.710 --> 00:02:16.230
whether somebody's competent to stand trial,
34
00:02:16.230 --> 00:02:17.790
but also what happens
35
00:02:17.790 --> 00:02:21.240
after somebody has been found not competent to stand trial.
36
00:02:21.240 --> 00:02:24.900
And in particular here, what the legislature did
37
00:02:24.900 --> 00:02:28.380
was it enacted a series of treatments
38
00:02:28.380 --> 00:02:31.950
that may be provided to somebody who's not competent
39
00:02:31.950 --> 00:02:34.050
by reason of a mental illness.
40
00:02:34.050 --> 00:02:36.444
That person can be committed
41
00:02:36.444 --> 00:02:39.000
either to Bridgewater State Hospital
42
00:02:39.000 --> 00:02:41.170
or to the Department of Mental Health
43
00:02:41.170 --> 00:02:43.376
for a period of six months.
44
00:02:43.376 --> 00:02:47.670
That person can be ordered to undergo involuntary treatment
45
00:02:47.670 --> 00:02:51.903
provided that they meet the criteria for commitment.
46
00:02:53.100 --> 00:02:57.460
But there's no such provisions under the code
47
00:02:59.021 --> 00:03:02.460
that governs the Department of Developmental Disabilities.
48
00:03:02.460 --> 00:03:06.510
There's no ability to involuntary commit somebody
49
00:03:06.510 --> 00:03:08.010
who meets the definitions
50
00:03:08.010 --> 00:03:11.400
under the Department of Developmental Disabilities.
51
00:03:11.400 --> 00:03:15.690
There is no involuntary treatment of any kind
52
00:03:15.690 --> 00:03:18.840
that provided for, for people that fall under the court
53
00:03:18.840 --> 00:03:19.980
of the Department of Developmental
54
00:03:19.980 --> 00:03:22.530
Counsel, I don't mean to cut you off,
55
00:03:22.530 --> 00:03:26.130
but this is 1986, right?
56
00:03:26.130 --> 00:03:29.250
And certainly, it's an entirely different world
57
00:03:29.250 --> 00:03:32.190
with our understanding of the interplay
58
00:03:32.190 --> 00:03:36.690
with developmental disabilities in understanding
59
00:03:36.690 --> 00:03:39.990
that it's not a mental health issue.
60
00:03:39.990 --> 00:03:42.390
This just wasn't the world.
61
00:03:42.390 --> 00:03:45.496
So I think what we're talking about here really
62
00:03:45.496 --> 00:03:48.000
is we can agree that it's not in the statute,
63
00:03:48.000 --> 00:03:49.320
but now when we talk about
64
00:03:49.320 --> 00:03:52.230
where we are in the juvenile department
65
00:03:52.230 --> 00:03:57.230
where you have children with developmental disabilities
66
00:03:57.330 --> 00:03:59.940
and now, it's impacting their ability
67
00:03:59.940 --> 00:04:01.560
to assist their counsel
68
00:04:01.560 --> 00:04:04.530
as they go forward with their defense,
69
00:04:04.530 --> 00:04:06.510
why doesn't this make sense
70
00:04:06.510 --> 00:04:09.600
that a juvenile court judge should have
71
00:04:09.600 --> 00:04:13.980
the inherent authority to order what would otherwise
72
00:04:13.980 --> 00:04:16.410
be ordered if we are talking about
73
00:04:16.410 --> 00:04:18.540
a mental health diagnosis?
74
00:04:18.540 --> 00:04:21.624
Well, first of all, I would begin
75
00:04:21.624 --> 00:04:25.530
with Commonwealth v Norman, which is that pretrial orders
76
00:04:25.530 --> 00:04:28.260
directed at either a juvenile
77
00:04:28.260 --> 00:04:32.610
or an adult have to be authorized by a statute.
78
00:04:32.610 --> 00:04:34.980
And while Commonwealth versus Norman
79
00:04:34.980 --> 00:04:38.910
goes to bail conditions, here, we have section 58A
80
00:04:38.910 --> 00:04:42.420
that also authorizes conditions of release.
81
00:04:42.420 --> 00:04:44.020
But those conditions of release
82
00:04:45.169 --> 00:04:47.160
are to be ordered with an eye
83
00:04:47.160 --> 00:04:49.440
toward the protection of the community.
84
00:04:49.440 --> 00:04:51.390
What the commonwealth is seeking here
85
00:04:51.390 --> 00:04:54.540
is for the juvenile court judge to be able to order
86
00:04:54.540 --> 00:04:56.490
the juvenile to undergo treatment,
87
00:04:56.490 --> 00:04:59.490
which essentially advances the commonwealth's interest
88
00:04:59.490 --> 00:05:01.980
in prosecution, but is not geared
89
00:05:01.980 --> 00:05:03.390
toward protecting the safety
90
00:05:03.390 --> 00:05:05.460
of the community and is not geared
91
00:05:05.460 --> 00:05:07.860
toward the best interest of the juvenile.
92
00:05:07.860 --> 00:05:09.540
Now, while it may be-
93
00:05:09.540 --> 00:05:11.592
But what happens when the juvenile
94
00:05:11.592 --> 00:05:13.320
doesn't receive this treatment?
95
00:05:13.320 --> 00:05:15.660
What's the remedy?
96
00:05:15.660 --> 00:05:17.790
When the juvenile does not receive the treatment?
97
00:05:17.790 --> 00:05:20.370
So it does not become competent to stand trial.
98
00:05:20.370 --> 00:05:22.950
So a juvenile that's not competent to stand trial,
99
00:05:22.950 --> 00:05:25.290
the statutes do address that.
100
00:05:25.290 --> 00:05:28.440
The case is stayed until such time
101
00:05:28.440 --> 00:05:31.140
as somebody is competent to stand trial.
102
00:05:31.140 --> 00:05:33.864
The case cannot proceed.
103
00:05:33.864 --> 00:05:35.910
And under certain circumstances,
104
00:05:35.910 --> 00:05:38.760
which is the companion case,
105
00:05:38.760 --> 00:05:42.220
the juvenile can seek dismissal of the charges
106
00:05:43.230 --> 00:05:47.880
so long as the interest of justice are met
107
00:05:47.880 --> 00:05:49.290
or other conditions are met,
108
00:05:49.290 --> 00:05:51.097
which are being dealt with in that case
109
00:05:51.097 --> 00:05:52.920
But you would have a longer road to hoe
110
00:05:52.920 --> 00:05:56.730
because your case is a YO, right?
111
00:05:56.730 --> 00:05:57.563
Potentially-
112
00:05:57.563 --> 00:05:58.470
'Cause of parole eligibility
113
00:05:58.470 --> 00:06:00.780
in that section D portion, right?
114
00:06:00.780 --> 00:06:02.070
Dismissal.
115
00:06:02.070 --> 00:06:05.270
Right, in terms of dismissal and I think really, the-
116
00:06:05.270 --> 00:06:07.440
But either way, you're here
117
00:06:07.440 --> 00:06:09.063
to argue you can't remediate.
118
00:06:10.560 --> 00:06:12.150
And if they're not competent,
119
00:06:12.150 --> 00:06:14.359
then whatever happens happens down the road.
120
00:06:14.359 --> 00:06:15.480
Right, right.
121
00:06:15.480 --> 00:06:18.870
Because the way that this case comes before the court,
122
00:06:18.870 --> 00:06:21.120
before the court on a motion to dismiss
123
00:06:21.120 --> 00:06:23.490
as the other case is, this is at the stage
124
00:06:23.490 --> 00:06:26.280
where the Commonwealth is seeking
125
00:06:26.280 --> 00:06:29.460
to order the juvenile into treatment.
126
00:06:29.460 --> 00:06:32.640
And I think the important thing here
127
00:06:32.640 --> 00:06:36.120
is there are many states that have set up programs
128
00:06:36.120 --> 00:06:41.120
and these programs involve the kind of fact finding
129
00:06:42.840 --> 00:06:45.150
that legislatures do.
130
00:06:45.150 --> 00:06:46.950
How do we address these cases
131
00:06:46.950 --> 00:06:49.440
so that everybody's treated equally?
132
00:06:49.440 --> 00:06:51.660
So that a whole class of persons,
133
00:06:51.660 --> 00:06:53.580
we know what to do with them.
134
00:06:53.580 --> 00:06:55.590
What the Commonwealth wants here
135
00:06:55.590 --> 00:07:00.590
is this unique ad hoc expert to come in
136
00:07:01.980 --> 00:07:04.290
just to teach this person
137
00:07:04.290 --> 00:07:06.660
how to become competent essentially.
138
00:07:06.660 --> 00:07:09.870
And that's not the kind of process
139
00:07:09.870 --> 00:07:11.280
that a juvenile court should be doing.
140
00:07:11.280 --> 00:07:12.330
It shouldn't be designing
141
00:07:12.330 --> 00:07:14.610
a new competency remediation program
142
00:07:14.610 --> 00:07:17.640
for each individual that comes along.
143
00:07:17.640 --> 00:07:19.470
That's the role of the legislature.
144
00:07:19.470 --> 00:07:21.990
That's the role of the department of-
145
00:07:21.990 --> 00:07:23.970
But a court, we have inherent powers
146
00:07:23.970 --> 00:07:26.040
to run the judicial system.
147
00:07:26.040 --> 00:07:31.020
If we can't, this case just sits in limbo and goes nowhere.
148
00:07:31.020 --> 00:07:32.940
I'm not sure that's good for your client either
149
00:07:32.940 --> 00:07:36.690
because your client can't prove that he didn't do it
150
00:07:36.690 --> 00:07:39.720
or that he shouldn't be in this process either.
151
00:07:39.720 --> 00:07:41.910
You know, he's just, a big cloud hangs
152
00:07:41.910 --> 00:07:44.070
over his head as well, right?
153
00:07:44.070 --> 00:07:45.390
Well, there is a remedy.
154
00:07:45.390 --> 00:07:46.920
Commonwealth versus Hatch
155
00:07:46.920 --> 00:07:51.330
allows for somebody that has been found not competent,
156
00:07:51.330 --> 00:07:54.990
who's got evidence that they're not guilty
157
00:07:54.990 --> 00:07:57.660
or not delinquent or not a youthful offender,
158
00:07:57.660 --> 00:08:00.420
can demand a hearing and can require the Commonwealth
159
00:08:00.420 --> 00:08:02.460
to present its evidence.
160
00:08:02.460 --> 00:08:04.920
So there are other remedies that are out there.
161
00:08:04.920 --> 00:08:07.320
What about the court's power
162
00:08:07.320 --> 00:08:10.443
to, you know, get its cases done?
163
00:08:11.910 --> 00:08:15.390
Well, the court, again, I think I would go back
164
00:08:15.390 --> 00:08:16.560
to the fact that while the court
165
00:08:16.560 --> 00:08:18.030
may have certain inherent powers,
166
00:08:18.030 --> 00:08:23.030
what it doesn't have is in inherent powers to order
167
00:08:23.730 --> 00:08:26.100
defendants to meet certain conditions.
168
00:08:26.100 --> 00:08:29.610
And again, that goes back to Commonwealth versus Norman,
169
00:08:29.610 --> 00:08:31.890
which is a due process, right?
170
00:08:31.890 --> 00:08:36.890
But more importantly, when we look at, I think it's-
171
00:08:38.860 --> 00:08:41.490
The court has certain powers to, you know,
172
00:08:41.490 --> 00:08:45.960
determine whether a defendant or a juvenile is competent.
173
00:08:45.960 --> 00:08:49.320
The question is does it have this additional power
174
00:08:49.320 --> 00:08:52.690
to provide services that will help facilitate
175
00:08:53.760 --> 00:08:56.400
rendering the juvenile competent, right?
176
00:08:56.400 --> 00:08:59.187
Right, but this court has already found
177
00:08:59.187 --> 00:09:03.690
somebody who suffers from an intellectual disability,
178
00:09:03.690 --> 00:09:07.620
cannot be committed involuntarily.
179
00:09:07.620 --> 00:09:10.770
That those statutory provisions only apply
180
00:09:10.770 --> 00:09:13.380
to somebody who is mentally ill.
181
00:09:13.380 --> 00:09:15.570
And again, this is an area
182
00:09:15.570 --> 00:09:18.210
where the legislature has legislated-
183
00:09:18.210 --> 00:09:20.820
But this isn't necessarily what we're saying
184
00:09:20.820 --> 00:09:25.140
because the order could be outpatient.
185
00:09:25.140 --> 00:09:27.480
It's not saying we have to civilly commit
186
00:09:27.480 --> 00:09:30.420
the child, but that the child,
187
00:09:30.420 --> 00:09:34.650
and there was some, I believe it was the guardian ad litems
188
00:09:34.650 --> 00:09:39.650
in certain things that could be pursued.
189
00:09:40.620 --> 00:09:43.500
Right, so the guardian ad litem did produce a report
190
00:09:43.500 --> 00:09:46.837
which suggested that if certain actions were taken,
191
00:09:46.837 --> 00:09:50.370
that the juvenile in this case may attain competency.
192
00:09:50.370 --> 00:09:53.520
The juvenile court didn't accept those findings necessarily.
193
00:09:53.520 --> 00:09:57.480
It simply restated that those things may assist him.
194
00:09:57.480 --> 00:10:00.480
But that's different by a preponderance of evidence
195
00:10:00.480 --> 00:10:02.220
that they would, first of all.
196
00:10:02.220 --> 00:10:05.098
No, no, I was raising that with respect to your point
197
00:10:05.098 --> 00:10:09.030
that we would be committing the juvenile.
198
00:10:09.030 --> 00:10:10.470
I'm only making the point
199
00:10:10.470 --> 00:10:12.727
that it could be in the community outpatient.
200
00:10:12.727 --> 00:10:13.650
Oh, understood.
201
00:10:13.650 --> 00:10:15.330
And I guess my only response to that
202
00:10:15.330 --> 00:10:18.600
is that commitment is the only process
203
00:10:18.600 --> 00:10:20.820
by which the legislature has provided
204
00:10:20.820 --> 00:10:23.400
that somebody can be treated.
205
00:10:23.400 --> 00:10:25.830
And when the legislature
206
00:10:25.830 --> 00:10:29.193
does legislate in a particular area, here a treatment,
207
00:10:30.210 --> 00:10:34.050
it would be inappropriate to use the court's inherent powers
208
00:10:34.050 --> 00:10:37.620
to do something that the legislature didn't provide for
209
00:10:37.620 --> 00:10:39.900
when the legislature did in fact enact
210
00:10:39.900 --> 00:10:42.240
a comprehensive scheme, which by the way,
211
00:10:42.240 --> 00:10:47.240
has been repeatedly amended since 1986.
212
00:10:48.840 --> 00:10:51.360
So even though the original acts are old,
213
00:10:51.360 --> 00:10:53.520
the legislature has continued to address this.
214
00:10:53.520 --> 00:10:56.190
And if there are no further questions,
215
00:10:56.190 --> 00:10:59.850
I would just suggest that this really is a problem
216
00:10:59.850 --> 00:11:04.350
that is best to be solved by the legislature.
217
00:11:04.350 --> 00:11:06.777
Okay, thank you very much.
Thank you.
218
00:11:06.777 --> 00:11:08.613
All right, Attorney Freitas.
219
00:11:23.771 --> 00:11:24.810
Good morning.
220
00:11:24.810 --> 00:11:26.010
May it please the court.
221
00:11:26.010 --> 00:11:28.530
Debbie Freitas on behalf of the youth appellant.
222
00:11:28.530 --> 00:11:31.503
With me is Cristina Freitas, appellate co-counsel.
223
00:11:32.640 --> 00:11:35.790
The juvenile court cannot order competency remediation
224
00:11:35.790 --> 00:11:38.100
because its role is to shield
225
00:11:38.100 --> 00:11:40.860
cognitively limited incompetent youth
226
00:11:40.860 --> 00:11:43.170
from being tried in absentia.
227
00:11:43.170 --> 00:11:45.030
And as Attorney Faulkner argued,
228
00:11:45.030 --> 00:11:48.990
it's not within the court's inherent authority to order it,
229
00:11:48.990 --> 00:11:53.010
rather, to the extent that there is a gap here,
230
00:11:53.010 --> 00:11:56.100
it is for the legislature to fill.
231
00:11:56.100 --> 00:12:00.060
Further, the Commonwealth failed to meet any burden of proof
232
00:12:00.060 --> 00:12:03.030
regarding the youth's ability to attain competency
233
00:12:03.030 --> 00:12:05.430
after he was again found incompetent.
234
00:12:05.430 --> 00:12:08.340
And the juvenile court urged in not holding
235
00:12:08.340 --> 00:12:10.440
the Commonwealth to any burden.
236
00:12:10.440 --> 00:12:12.510
And by not dismissing the case,
237
00:12:12.510 --> 00:12:14.040
given that the youth is unlikely
238
00:12:14.040 --> 00:12:16.390
to attain competency in the foreseeable future.
239
00:12:17.280 --> 00:12:20.040
The Commonwealth must carry the burden of proof
240
00:12:20.040 --> 00:12:23.250
regarding a youth's ability to attain competency.
241
00:12:23.250 --> 00:12:26.421
And as the docket sheets reflect in this youth's case,
242
00:12:26.421 --> 00:12:29.040
the court is already called upon
243
00:12:29.040 --> 00:12:32.460
to make two findings at every competency hearing.
244
00:12:32.460 --> 00:12:35.610
The first is whether the youth is competent,
245
00:12:35.610 --> 00:12:38.670
and the second is if the youth is not competent,
246
00:12:38.670 --> 00:12:40.620
whether the youth will become competent
247
00:12:40.620 --> 00:12:42.600
in the foreseeable future.
248
00:12:42.600 --> 00:12:45.900
Due process and fairness require the commonwealth
249
00:12:45.900 --> 00:12:48.750
to carry the burden for both of those.
250
00:12:48.750 --> 00:12:50.040
As to the first inquiry
251
00:12:50.040 --> 00:12:51.570
that happens at a competency hearing-
252
00:12:51.570 --> 00:12:53.520
Where's the source of the second one?
253
00:12:54.480 --> 00:12:56.160
The second requirement you come up with
254
00:12:56.160 --> 00:12:58.110
that they have to do that at that time?
255
00:12:58.110 --> 00:13:02.190
'Cause it's a little hard when they can't decide
256
00:13:02.190 --> 00:13:05.250
whether he or she is competent at that time.
257
00:13:05.250 --> 00:13:08.670
And you're saying they can't do anything about it as well.
258
00:13:08.670 --> 00:13:13.110
So you're adding a third component out of where?
259
00:13:13.110 --> 00:13:15.930
So I'll point the court to the docket sheets
260
00:13:15.930 --> 00:13:18.270
that already provide for those two findings.
261
00:13:18.270 --> 00:13:22.563
I believe in the record appendix, volume five,
262
00:13:23.910 --> 00:13:27.720
volume one pages 20 and 35, have those findings made.
263
00:13:27.720 --> 00:13:29.783
For example, the court makes them multiple times because-
264
00:13:29.783 --> 00:13:32.280
No, no, but where's the legal authority?
265
00:13:32.280 --> 00:13:35.340
You're saying there's a second component
266
00:13:35.340 --> 00:13:37.230
that the Commonwealth has to prove
267
00:13:37.230 --> 00:13:39.360
after each incompetency proceeding
268
00:13:39.360 --> 00:13:41.823
that the juvenile could become competent.
269
00:13:43.110 --> 00:13:47.340
You're kind of, I don't know what the basis for that is.
270
00:13:47.340 --> 00:13:51.090
And because your first argument says they can't do anything
271
00:13:51.090 --> 00:13:54.120
about helping make the child competent,
272
00:13:54.120 --> 00:13:58.080
it seems a bit unfair to impose the second requirement too.
273
00:13:58.080 --> 00:13:58.913
Yes, your Honor.
274
00:13:58.913 --> 00:13:59.940
So I believe the language
275
00:13:59.940 --> 00:14:03.240
that would be important to the court is found in Calver
276
00:14:03.240 --> 00:14:05.340
and repeated in sheriffs.
277
00:14:05.340 --> 00:14:07.050
That's for dismissal.
278
00:14:07.050 --> 00:14:08.897
Yes, it is for dismissal.
279
00:14:08.897 --> 00:14:09.930
I think to clarify, that's for dismissal
280
00:14:09.930 --> 00:14:11.820
on the 16F, right?
281
00:14:11.820 --> 00:14:15.750
Yes, that is the language used for a dismissal,
282
00:14:15.750 --> 00:14:18.000
which I think is relevant because if the court-
283
00:14:18.000 --> 00:14:19.167
And there's a time component to it
284
00:14:19.167 --> 00:14:21.480
and a due process component to dismissal.
285
00:14:21.480 --> 00:14:25.350
Yes, for incompetent adults, there are two methods
286
00:14:25.350 --> 00:14:27.480
by which to attain dismissal under 16F.
287
00:14:27.480 --> 00:14:29.400
The first one is mandated.
288
00:14:29.400 --> 00:14:32.070
It is a time certain.
289
00:14:32.070 --> 00:14:33.720
Independent of any other factors
290
00:14:33.720 --> 00:14:36.330
such as current safety to the community.
291
00:14:36.330 --> 00:14:39.150
And the second is more of a due process,
292
00:14:39.150 --> 00:14:40.830
interest of justice.
293
00:14:40.830 --> 00:14:43.440
I think it's important because for a youth
294
00:14:43.440 --> 00:14:44.700
that's found incompetent,
295
00:14:44.700 --> 00:14:47.400
and not able to attain competency
296
00:14:47.400 --> 00:14:49.200
into the foreseeable future,
297
00:14:49.200 --> 00:14:52.920
there is no trial in for that youth.
298
00:14:52.920 --> 00:14:54.990
And so the commonwealth's compelling interest
299
00:14:54.990 --> 00:14:57.870
to prosecute is not so compelling in that circumstance
300
00:14:57.870 --> 00:15:00.660
that it trumps a youth's interest in liberty.
301
00:15:00.660 --> 00:15:01.830
Counsel, can I just ask you,
302
00:15:01.830 --> 00:15:05.400
even though I know we're talking about the juvenile court,
303
00:15:05.400 --> 00:15:09.120
does the Commonwealth have that burden in adult cases?
304
00:15:09.120 --> 00:15:12.720
I believe the Commonwealth has that burden in all cases.
305
00:15:12.720 --> 00:15:13.950
Are you aware of any case
306
00:15:13.950 --> 00:15:17.007
where if the defendant were found to be incompetent
307
00:15:17.007 --> 00:15:20.340
and the time just continues to tick for either halftime
308
00:15:20.340 --> 00:15:23.430
or 16F purposes, that every time the Commonwealth,
309
00:15:23.430 --> 00:15:26.400
we come back and there's an order of incompetency,
310
00:15:26.400 --> 00:15:29.670
that the Commonwealth then has a burden to demonstrate
311
00:15:29.670 --> 00:15:32.730
that the defendant could be returned to competency?
312
00:15:32.730 --> 00:15:34.620
Well, in order to...
313
00:15:34.620 --> 00:15:37.710
If we were to move forward from a first competency hearing
314
00:15:37.710 --> 00:15:39.783
where the youth is found not competent,
315
00:15:40.620 --> 00:15:42.570
in order to have a second competency hearing,
316
00:15:42.570 --> 00:15:44.280
the Commonwealth would have to show the youth
317
00:15:44.280 --> 00:15:46.470
would be competent at that hearing to proceed to trial.
318
00:15:46.470 --> 00:15:47.700
And that's beyond a reasonable doubt,
319
00:15:47.700 --> 00:15:49.110
the Commonwealth's burden.
320
00:15:49.110 --> 00:15:51.120
At the trial, yes.
321
00:15:51.120 --> 00:15:53.550
But even at a second competency hearing,
322
00:15:53.550 --> 00:15:55.230
it would be on the Commonwealth to show
323
00:15:55.230 --> 00:15:57.270
that that youth is competent by a preponderance
324
00:15:57.270 --> 00:15:58.410
of the evidence.
325
00:15:58.410 --> 00:16:01.470
In order to have that second competency hearing,
326
00:16:01.470 --> 00:16:03.870
shouldn't the commonwealth have to show
327
00:16:03.870 --> 00:16:06.870
that we should even have a second competency hearing?
328
00:16:06.870 --> 00:16:10.680
If the youth has a slim chance of being remediated
329
00:16:10.680 --> 00:16:15.680
or restored to attain competency in the foreseeable future,
330
00:16:16.650 --> 00:16:19.743
There is no trial in sight.
331
00:16:20.820 --> 00:16:22.526
The purpose for a continuation
332
00:16:22.526 --> 00:16:26.310
is to see if the youth will be remediated.
333
00:16:26.310 --> 00:16:27.793
And so in this case, we'll deal with someone who-
334
00:16:27.793 --> 00:16:31.650
Well maybe that pushes towards the opposite answer
335
00:16:31.650 --> 00:16:32.640
on your first question.
336
00:16:32.640 --> 00:16:34.530
That maybe the Commonwealth
337
00:16:34.530 --> 00:16:38.823
and the courts do have the capacity to order,
338
00:16:40.710 --> 00:16:43.770
you know, services to help make the juvenile competent.
339
00:16:43.770 --> 00:16:47.280
'Cause then we could answer both questions.
340
00:16:47.280 --> 00:16:48.600
So, Your Honor, respectfully,
341
00:16:48.600 --> 00:16:51.630
I think this court has already taken up that issue
342
00:16:51.630 --> 00:16:53.610
in Commonwealth v Kendrew.
343
00:16:53.610 --> 00:16:57.810
So in that case, a criminal defendant
344
00:16:57.810 --> 00:16:59.850
comes into the district court
345
00:16:59.850 --> 00:17:02.370
and is ordered to be observed
346
00:17:02.370 --> 00:17:05.010
and examined at a secure facility.
347
00:17:05.010 --> 00:17:08.310
And the forensic provider at that secure facility comes back
348
00:17:08.310 --> 00:17:13.310
and reports to the court that due to mild,
349
00:17:13.530 --> 00:17:16.800
what they said at the time, mental retardation,
350
00:17:16.800 --> 00:17:19.320
and other disorders,
351
00:17:19.320 --> 00:17:21.540
this person does not suffer from a mental illness
352
00:17:21.540 --> 00:17:25.170
but may be harm to themselves or others.
353
00:17:25.170 --> 00:17:27.450
But because the mental illness component is missing,
354
00:17:27.450 --> 00:17:30.480
they cannot be housed in the secure facility.
355
00:17:30.480 --> 00:17:34.350
And as a result, the district court judge thereafter
356
00:17:34.350 --> 00:17:37.740
provides custody of Ms. Kendrew
357
00:17:37.740 --> 00:17:40.320
to the Department of Mental Retardation
358
00:17:40.320 --> 00:17:41.670
for the purposes of placement.
359
00:17:41.670 --> 00:17:43.710
Placement is a service.
360
00:17:43.710 --> 00:17:47.040
And the Department of Mental Retardation appeals.
361
00:17:47.040 --> 00:17:51.970
And this court fines that in fact,
362
00:17:53.460 --> 00:17:55.263
Ms. Kendrew's incompetence,
363
00:17:56.130 --> 00:17:58.200
due to her cognitive limitations,
364
00:17:58.200 --> 00:18:00.990
does not result in this court,
365
00:18:00.990 --> 00:18:03.562
or any court, requiring inherent authority
366
00:18:03.562 --> 00:18:06.870
because her inability to be tried
367
00:18:06.870 --> 00:18:09.720
because of incompetence does not impede
368
00:18:09.720 --> 00:18:11.220
the court's essential functions.
369
00:18:11.220 --> 00:18:13.170
And in that case, the court even notes
370
00:18:13.170 --> 00:18:17.520
that there may very well be a gap, a legislative gap
371
00:18:17.520 --> 00:18:21.510
in what we do with cognitively limited defendants.
372
00:18:21.510 --> 00:18:24.060
But that gap is for the legislature to fill,
373
00:18:24.060 --> 00:18:25.650
not for the court.
374
00:18:25.650 --> 00:18:29.100
And 29 years later, the legislature has not acted.
375
00:18:29.100 --> 00:18:32.250
And in fact, we are in the same statutory scheme essentially
376
00:18:32.250 --> 00:18:34.170
that we were when Kendrew was decided.
377
00:18:34.170 --> 00:18:38.130
And so really, there's no more interest in finding
378
00:18:38.130 --> 00:18:41.433
or concocting inherent authority here than there was there.
379
00:18:42.480 --> 00:18:44.880
And so where the youth is the one
380
00:18:44.880 --> 00:18:46.680
who has a liberty interest, it's important
381
00:18:46.680 --> 00:18:48.000
that the government be the one
382
00:18:48.000 --> 00:18:51.300
to carry the burden on any issues related to competency.
383
00:18:51.300 --> 00:18:53.970
And I'm not sure there's any context in which someone
384
00:18:53.970 --> 00:18:56.640
with the liberty interest would carry a burden.
385
00:18:56.640 --> 00:18:58.530
More importantly, it's the government's interest
386
00:18:58.530 --> 00:18:59.531
to continue the prosecution.
387
00:18:59.531 --> 00:19:01.830
And shouldn't it be on the government then
388
00:19:01.830 --> 00:19:04.471
to have to prove that a prosecution is possible?
389
00:19:04.471 --> 00:19:06.450
There's an existent cognitive limitation,
390
00:19:06.450 --> 00:19:09.363
albeit an adult or a juvenile.
391
00:19:10.230 --> 00:19:11.760
The government is really under the gun
392
00:19:11.760 --> 00:19:14.601
because there's no way to prove they're gonna be remediated.
393
00:19:14.601 --> 00:19:17.163
A potential to be restore a competency, right?
394
00:19:18.570 --> 00:19:19.830
Respectfully, I disagree.
395
00:19:19.830 --> 00:19:23.190
I think every competency hearing does have experts
396
00:19:23.190 --> 00:19:26.640
who do provide information on whether a youth
397
00:19:26.640 --> 00:19:30.090
could attain competency in the foreseeable future.
398
00:19:30.090 --> 00:19:32.227
As to cognitively limited-
399
00:19:32.227 --> 00:19:33.428
Yeah, so the record here-
400
00:19:33.428 --> 00:19:34.440
That's the harder part, right?
401
00:19:34.440 --> 00:19:35.610
Yeah, so the record here,
402
00:19:35.610 --> 00:19:38.250
the experts did provide testimony
403
00:19:38.250 --> 00:19:42.060
that the type of deficits that you suffered from
404
00:19:42.060 --> 00:19:45.240
are not amendable to change.
405
00:19:45.240 --> 00:19:47.670
However, there are many other contexts in the juvenile court
406
00:19:47.670 --> 00:19:49.290
and also in the adult court.
407
00:19:49.290 --> 00:19:51.120
But what you're saying is it has to be amendable
408
00:19:51.120 --> 00:19:52.350
to change organically.
409
00:19:52.350 --> 00:19:53.720
It can't be through...
410
00:19:55.230 --> 00:19:56.640
It shouldn't be through-
411
00:19:56.640 --> 00:19:59.760
Through any type of remediation or teaching.
412
00:19:59.760 --> 00:20:02.040
At least not once provided by the court.
413
00:20:02.040 --> 00:20:02.873
Yes.
414
00:20:02.873 --> 00:20:07.680
If the legislature stepped up as other states have,
415
00:20:07.680 --> 00:20:10.110
then that obviously those would be available.
416
00:20:10.110 --> 00:20:10.943
Yes, Your Honor.
417
00:20:10.943 --> 00:20:11.820
Precisely
418
00:20:11.820 --> 00:20:15.210
Do you cite the Kendrew, that case in your brief?
419
00:20:15.210 --> 00:20:17.490
Yes, it's in the reply brief.
420
00:20:17.490 --> 00:20:19.830
Okay, thank you.
Thank you very much.
421
00:20:19.830 --> 00:20:21.183
I will rest on my brief.
422
00:20:25.663 --> 00:20:29.970
Okay, Attorney (indistinct) Jang.
423
00:20:29.970 --> 00:20:30.803
Good morning.
424
00:20:30.803 --> 00:20:31.636
May it please the court,
425
00:20:31.636 --> 00:20:34.170
Kristen Jang for the Commonwealth.
426
00:20:34.170 --> 00:20:37.530
In the absence of a formal competency remediation program
427
00:20:37.530 --> 00:20:41.640
in the Commonwealth, the court has the inherent authority
428
00:20:41.640 --> 00:20:44.640
to appoint a remediation counselor or educator
429
00:20:44.640 --> 00:20:47.070
and to compel the juvenile to participate.
430
00:20:47.070 --> 00:20:49.290
How is this any different from adults?
431
00:20:49.290 --> 00:20:52.470
Because I've seen it in superior court in adults
432
00:20:52.470 --> 00:20:54.060
who have cognitive limitations,
433
00:20:54.060 --> 00:20:58.530
organic brain disorders, etc. and it's a gap
434
00:20:58.530 --> 00:21:01.290
when they don't have a defined mental illness.
435
00:21:01.290 --> 00:21:06.060
But in those situations, you take the defendant
436
00:21:06.060 --> 00:21:08.940
as you see it, and it's to the detriment sometimes
437
00:21:08.940 --> 00:21:11.250
in violent cases to the commonwealth.
438
00:21:11.250 --> 00:21:13.500
But as I've seen those cases play out,
439
00:21:13.500 --> 00:21:15.450
there's nothing really the court can do.
440
00:21:15.450 --> 00:21:17.160
Why is this different?
441
00:21:17.160 --> 00:21:19.290
The juvenile context is different
442
00:21:19.290 --> 00:21:22.560
because I cited some of the research in my brief
443
00:21:22.560 --> 00:21:24.690
explaining the difference in the juvenile context,
444
00:21:24.690 --> 00:21:28.360
because a lot of times, these juveniles have a complex
445
00:21:29.220 --> 00:21:32.670
web of issues, some of which may be remediative,
446
00:21:32.670 --> 00:21:34.110
some of which maybe not-
447
00:21:34.110 --> 00:21:35.432
That goes to treatment.
Yes.
448
00:21:35.432 --> 00:21:37.740
But this has to do with the court's authority
449
00:21:39.060 --> 00:21:41.460
where we don't have that authority,
450
00:21:41.460 --> 00:21:44.130
as I saw it, in adult cases.
451
00:21:44.130 --> 00:21:47.130
That just has to do with whether it's capable of remediation
452
00:21:47.130 --> 00:21:48.657
versus the court's authority
453
00:21:48.657 --> 00:21:50.940
and as Justice Wendlandt pointed out, as opposed
454
00:21:50.940 --> 00:21:53.460
to a legislative program.
455
00:21:53.460 --> 00:21:54.293
Sure.
456
00:21:54.293 --> 00:21:58.170
And I suppose in the right case, if this court finds
457
00:21:58.170 --> 00:22:00.930
that the juvenile court has the inherent authority,
458
00:22:00.930 --> 00:22:03.990
I don't see why in the correct case in the adult context,
459
00:22:03.990 --> 00:22:06.090
they wouldn't have that authority as well.
460
00:22:06.090 --> 00:22:07.680
It's just in the juvenile context,
461
00:22:07.680 --> 00:22:09.990
these issues come up so much more often.
462
00:22:09.990 --> 00:22:12.390
That's why it's heightened in this context.
463
00:22:12.390 --> 00:22:16.897
But then, how do we operate in this ad hoc fashion?
464
00:22:18.720 --> 00:22:21.480
That we're gonna appoint experts, we're gonna come up
465
00:22:21.480 --> 00:22:25.994
with curriculum, we're gonna hire special education teachers
466
00:22:25.994 --> 00:22:28.110
to do this?
467
00:22:28.110 --> 00:22:28.943
Yes, but-
468
00:22:28.943 --> 00:22:30.480
Like a legislative function today.
469
00:22:30.480 --> 00:22:33.930
If the legislature were to pass a statute similar
470
00:22:33.930 --> 00:22:37.659
to these other states, and I believe the unique has cited
471
00:22:37.659 --> 00:22:40.230
a bill that's pending before the legislature right now.
472
00:22:40.230 --> 00:22:43.980
I took a look at it and it wouldn't be a whole lot different
473
00:22:43.980 --> 00:22:45.840
to be quite honest than giving-
474
00:22:45.840 --> 00:22:50.490
But I think Justice Gaziano's point is that we,
475
00:22:50.490 --> 00:22:54.780
as an institution, are good at trying cases.
476
00:22:54.780 --> 00:22:58.020
We're not good at setting up programs
477
00:22:58.020 --> 00:22:59.910
to remediate youth.
478
00:22:59.910 --> 00:23:01.200
Agreed, but also the-
479
00:23:01.200 --> 00:23:06.180
So doesn't that suggest an in institutional limitation
480
00:23:06.180 --> 00:23:09.900
on our power to craft such programs?
481
00:23:09.900 --> 00:23:11.273
I don't think it has-
482
00:23:11.273 --> 00:23:12.660
That wouldn't there be a due process problem
483
00:23:12.660 --> 00:23:15.150
maybe if we did and it didn't work out
484
00:23:15.150 --> 00:23:17.730
and there were some harm to the child?
485
00:23:17.730 --> 00:23:20.580
Well, I'm having trouble picturing
486
00:23:20.580 --> 00:23:22.530
what the possible harm could be to the child,
487
00:23:22.530 --> 00:23:24.630
because at the end of the day, we still would have
488
00:23:24.630 --> 00:23:26.700
to have a competency evaluation, again,
489
00:23:26.700 --> 00:23:28.320
to decide whether or not they're competent.
490
00:23:28.320 --> 00:23:30.060
So the worst that could happen
491
00:23:30.060 --> 00:23:32.190
is that they still are not competent.
492
00:23:32.190 --> 00:23:33.870
Well there's a little bit more than that
493
00:23:33.870 --> 00:23:38.870
because listening to Attorney Faulkner
494
00:23:38.940 --> 00:23:43.940
and Attorney Freitas, the other harm is they are restored
495
00:23:44.850 --> 00:23:48.990
to competency and then the proceedings proceed
496
00:23:48.990 --> 00:23:51.090
and they're either found delinquent
497
00:23:51.090 --> 00:23:53.940
or they're found as youthful offenders,
498
00:23:53.940 --> 00:23:56.809
and they're doing that by the conduit of the court
499
00:23:56.809 --> 00:24:01.809
ordering them to these remediation services.
500
00:24:01.920 --> 00:24:03.280
But the problem-
501
00:24:03.280 --> 00:24:04.620
I mean, isn't that a problem?
502
00:24:04.620 --> 00:24:06.450
The problem is right now, they're being harmed
503
00:24:06.450 --> 00:24:09.016
by these cases just sitting there languishing.
504
00:24:09.016 --> 00:24:09.849
And if-
505
00:24:09.849 --> 00:24:11.580
I Think they're more than happy to have them languish
506
00:24:11.580 --> 00:24:13.710
as opposed to being charged for being tried
507
00:24:13.710 --> 00:24:15.840
for armed robbery, at least in the first case.
508
00:24:15.840 --> 00:24:18.540
Well, at the same time, the juvenile court is designed
509
00:24:18.540 --> 00:24:19.526
with a rehabilitative purpose
510
00:24:19.526 --> 00:24:23.730
and they can't access any of those benefits
511
00:24:23.730 --> 00:24:24.930
with the case just sitting there.
512
00:24:24.930 --> 00:24:26.859
The court can't do anything at this point.
513
00:24:26.859 --> 00:24:28.680
The benefit is that at the end of the day,
514
00:24:28.680 --> 00:24:30.480
the case gets dismissed.
515
00:24:30.480 --> 00:24:32.040
Well, but at the same time, the court has-
516
00:24:32.040 --> 00:24:35.220
I understand there's a substantial harm
517
00:24:35.220 --> 00:24:38.023
to the Commonwealth in that you have victims,
518
00:24:38.023 --> 00:24:41.400
you have people who may have been violently attacked
519
00:24:41.400 --> 00:24:43.710
by a juvenile who has the situation.
520
00:24:43.710 --> 00:24:45.810
I get why you're pressing this,
521
00:24:45.810 --> 00:24:48.120
and I understand there's a significant,
522
00:24:48.120 --> 00:24:51.210
potentially significant harm to the Commonwealth,
523
00:24:51.210 --> 00:24:54.030
but this kind of exists in a gray area
524
00:24:54.030 --> 00:24:56.277
at this legislative point in time.
525
00:24:56.277 --> 00:24:58.410
Understood. Understood.
526
00:24:58.410 --> 00:25:00.502
But assuming that the legislature does pass
527
00:25:00.502 --> 00:25:03.480
some sort of statute similar to what's been proposed,
528
00:25:03.480 --> 00:25:05.040
it just says the court has the authority
529
00:25:05.040 --> 00:25:07.260
to appoint a similar specialist.
530
00:25:07.260 --> 00:25:10.090
It gives some timeframes, but I'm not sure
531
00:25:11.114 --> 00:25:13.062
that it would be much different than now, you know-
532
00:25:13.062 --> 00:25:13.895
Well, the difference
533
00:25:13.895 --> 00:25:15.940
is that the legislature does it, not us.
534
00:25:15.940 --> 00:25:17.940
Well, the legislature just says the court
535
00:25:17.940 --> 00:25:21.060
has the authority, put some timeframes in, but-
536
00:25:21.060 --> 00:25:25.140
I mean, the legislature can say, we can pass the statute
537
00:25:25.140 --> 00:25:30.140
and put in whatever they deem necessary and proper.
538
00:25:30.900 --> 00:25:31.733
Correct.
539
00:25:31.733 --> 00:25:34.440
But if you take a look at the proposal currently,
540
00:25:34.440 --> 00:25:37.320
it would simply give the court the explicit authority-
541
00:25:37.320 --> 00:25:39.263
Which allows us to do what you're asking us to do.
542
00:25:40.380 --> 00:25:42.240
Correct. Correct.
543
00:25:42.240 --> 00:25:43.830
Puts him some timeframes,
544
00:25:43.830 --> 00:25:48.090
but it doesn't necessarily set up the infrastructure
545
00:25:48.090 --> 00:25:52.475
that I think is what my brother and sister are calling for.
546
00:25:52.475 --> 00:25:55.230
I think the point of the pending provision is perhaps
547
00:25:55.230 --> 00:25:59.310
that in the absence of such a passage
548
00:25:59.310 --> 00:26:02.400
of a proposed statute, we don't have the authority
549
00:26:02.400 --> 00:26:05.460
to craft on our own, a program.
550
00:26:05.460 --> 00:26:06.630
But at the same time, we have a lot
551
00:26:06.630 --> 00:26:08.220
of testimony here on the record
552
00:26:08.220 --> 00:26:12.180
about these particular deficits in these two cases.
553
00:26:12.180 --> 00:26:14.880
And we even had a GAL appointed that did a little bit
554
00:26:14.880 --> 00:26:17.790
of research and investigation into what maybe would help
555
00:26:17.790 --> 00:26:19.500
one of the particular juveniles.
556
00:26:19.500 --> 00:26:21.030
So I think we have a lot of information
557
00:26:21.030 --> 00:26:22.980
about what would help in these particular cases.
558
00:26:22.980 --> 00:26:24.270
What may help, right?
559
00:26:24.270 --> 00:26:25.103
It may.
560
00:26:25.103 --> 00:26:27.413
And then that's in every single case, we don't know-
561
00:26:27.413 --> 00:26:29.245
Affects the efficacy of the efforts as opposed
562
00:26:29.245 --> 00:26:31.427
to the authorization for efforts.
563
00:26:31.427 --> 00:26:33.110
Correct. That's exactly right.
564
00:26:33.110 --> 00:26:33.943
And then, you know,
565
00:26:33.943 --> 00:26:35.820
after a certain period of time and the court can-
566
00:26:35.820 --> 00:26:37.440
So given that the statute
567
00:26:37.440 --> 00:26:39.720
is really sort of a comprehensive statute
568
00:26:39.720 --> 00:26:42.240
that leaves this gap open,
569
00:26:42.240 --> 00:26:44.580
and given that there is a pending legislation
570
00:26:44.580 --> 00:26:46.770
to fill the gap, what's your best argument
571
00:26:46.770 --> 00:26:48.300
that we currently have the authority
572
00:26:48.300 --> 00:26:49.803
to put these programs forward?
573
00:26:51.240 --> 00:26:52.800
My best argument is that this goes
574
00:26:52.800 --> 00:26:55.141
to the essential functioning of the court.
575
00:26:55.141 --> 00:26:59.790
These cases cannot proceed
576
00:26:59.790 --> 00:27:01.320
unless we're given the opportunity
577
00:27:01.320 --> 00:27:03.783
to potentially remediate these juveniles.
578
00:27:04.980 --> 00:27:06.430
Well, okay.
579
00:27:06.430 --> 00:27:10.080
Assume the premise that we can't do this.
580
00:27:10.080 --> 00:27:15.080
I'm really interested in what do we do in this world,
581
00:27:15.339 --> 00:27:18.180
because as Justice Gaziano mentioned,
582
00:27:18.180 --> 00:27:20.722
this happens in the adult docket all the time.
583
00:27:20.722 --> 00:27:22.890
But in the adult dockets, we have 16F
584
00:27:22.890 --> 00:27:25.890
and we have other mechanisms to deal with it
585
00:27:25.890 --> 00:27:27.360
when it starts to languish.
586
00:27:27.360 --> 00:27:28.620
But if you could first,
587
00:27:28.620 --> 00:27:32.517
when when the incompetency reports come back,
588
00:27:32.517 --> 00:27:36.720
can you talk about whether or not the Commonwealth
589
00:27:36.720 --> 00:27:40.680
should have a burden on the return
590
00:27:40.680 --> 00:27:45.330
of a juvenile who's been deemed incompetent
591
00:27:45.330 --> 00:27:47.640
and now they're off.
592
00:27:47.640 --> 00:27:51.600
And now we go back and set another date to return
593
00:27:51.600 --> 00:27:53.412
to see whether or not things have changed.
594
00:27:53.412 --> 00:27:56.970
Should the Commonwealth have a burden of demonstrating
595
00:27:56.970 --> 00:27:59.310
that there's some reasonable expectation
596
00:27:59.310 --> 00:28:01.653
of being returned to competency?
597
00:28:02.850 --> 00:28:06.050
Under due process, I don't believe that just the pendency
598
00:28:06.050 --> 00:28:08.360
of the charges alone would require the Commonwealth
599
00:28:08.360 --> 00:28:09.778
to have to show that.
600
00:28:09.778 --> 00:28:10.611
If-
601
00:28:10.611 --> 00:28:11.880
Well didn't the Supreme Court
602
00:28:11.880 --> 00:28:12.713
already tell us that they do?
603
00:28:12.713 --> 00:28:14.280
I mean, isn't that what Jackson case says?
604
00:28:14.280 --> 00:28:16.530
And we repeated it in Abbott A.,
605
00:28:16.530 --> 00:28:18.813
there has to be under due process,
606
00:28:20.250 --> 00:28:23.940
an expectation that sometime in the foreseeable future,
607
00:28:23.940 --> 00:28:26.280
a return to competency will happen.
608
00:28:26.280 --> 00:28:29.730
There has to be showing by the commonwealth
609
00:28:29.730 --> 00:28:32.520
of progress towards that goal.
610
00:28:32.520 --> 00:28:34.710
I mean, those are constitutional requirements.
611
00:28:34.710 --> 00:28:36.750
Correct, and I completely agree with that, Your Honor.
612
00:28:36.750 --> 00:28:38.423
But I would distinguish those two cases
613
00:28:38.423 --> 00:28:40.410
in that the deprivation of liberty
614
00:28:40.410 --> 00:28:41.910
was much stronger in those cases.
615
00:28:41.910 --> 00:28:46.620
In Jackson, the defendant was held under a civil commitment,
616
00:28:46.620 --> 00:28:48.360
just for purposes of the criminal case,
617
00:28:48.360 --> 00:28:49.899
not because his health and safety was at risk.
618
00:28:49.899 --> 00:28:53.220
He didn't fall under the mental health statute.
619
00:28:53.220 --> 00:28:56.520
And then under Abbott A, that was dealing with a situation
620
00:28:56.520 --> 00:28:59.400
where the juvenile was being held for dangerousness.
621
00:28:59.400 --> 00:29:02.400
And I'm sorry, what is the facts of these two cases?
622
00:29:02.400 --> 00:29:03.513
These two cases?
623
00:29:04.410 --> 00:29:06.240
One of them,
624
00:29:06.240 --> 00:29:10.350
the first case the juvenile was held for dangerousness,
625
00:29:10.350 --> 00:29:13.590
but was released after an Abbott A. type of hearing.
626
00:29:13.590 --> 00:29:15.840
He's now been re-held again
627
00:29:15.840 --> 00:29:17.563
just because he violated conditions.
628
00:29:17.563 --> 00:29:18.570
So the first juvenile is being held,
629
00:29:18.570 --> 00:29:19.977
what's the second one?
630
00:29:19.977 --> 00:29:22.387
The other one, he is out on conditions.
631
00:29:22.387 --> 00:29:24.000
[Justice Wendlandt] Okay, thank you.
632
00:29:24.000 --> 00:29:27.524
So I would submit that the case law does not support,
633
00:29:27.524 --> 00:29:31.233
just based on the pendency of criminal charges,
634
00:29:32.377 --> 00:29:35.100
that due process requires the Commonwealth
635
00:29:35.100 --> 00:29:37.950
to show reliability at every single competency hearing.
636
00:29:37.950 --> 00:29:40.680
And I would submit that in the juvenile context,
637
00:29:40.680 --> 00:29:42.780
these cases can be very complicated
638
00:29:42.780 --> 00:29:45.008
because a lot of these juveniles have a number of issues,
639
00:29:45.008 --> 00:29:48.090
whether it be a combination of cognitive disabilities,
640
00:29:48.090 --> 00:29:50.670
mental health issues, family stability.
641
00:29:50.670 --> 00:29:52.480
So it might take a while
642
00:29:54.119 --> 00:29:56.100
to even determine whether it's possible
643
00:29:56.100 --> 00:29:57.300
to remediate these juveniles.
644
00:29:57.300 --> 00:30:01.570
So I think I would caution the court against imposing
645
00:30:02.580 --> 00:30:06.000
time limitations that are too short that would require,
646
00:30:06.000 --> 00:30:07.350
even at the competency stage,
647
00:30:07.350 --> 00:30:09.060
determining whether a juvenile's competent
648
00:30:09.060 --> 00:30:12.573
to make predictions too soon in the process.
649
00:30:14.250 --> 00:30:19.250
And I do wanna discuss the case DMH v Kendrew,
650
00:30:19.800 --> 00:30:21.813
which my sister cited.
651
00:30:22.860 --> 00:30:24.990
I do wanna distinguish that case
652
00:30:24.990 --> 00:30:27.750
because in that case, the court found
653
00:30:27.750 --> 00:30:32.750
that the court lacked the inherent authority to order DDS
654
00:30:32.850 --> 00:30:35.032
to provide services to the defendant in that case.
655
00:30:35.032 --> 00:30:40.020
So that case had more to do with the court
656
00:30:40.020 --> 00:30:43.740
basically telling an an executive agency what to do.
657
00:30:43.740 --> 00:30:45.540
That's not what I'm proposing in this case.
658
00:30:45.540 --> 00:30:48.090
I'm not saying that the court has the inherent authority
659
00:30:48.090 --> 00:30:51.813
to force DMH or DDS to really do anything.
660
00:30:53.250 --> 00:30:55.800
And in that case, it seemed to me
661
00:30:55.800 --> 00:30:57.770
that the criminal case was pretty much wrapped up
662
00:30:57.770 --> 00:30:59.760
at the point where that order was made.
663
00:30:59.760 --> 00:31:02.670
In these cases, the criminal case cannot proceed
664
00:31:02.670 --> 00:31:06.690
unless and until something happens with this case.
665
00:31:06.690 --> 00:31:09.090
How would this case be different?
666
00:31:09.090 --> 00:31:12.030
Because a lot of the times, you have the same issues
667
00:31:12.030 --> 00:31:14.340
that you have on the adult dockets
668
00:31:14.340 --> 00:31:18.150
where a lot of these juveniles
669
00:31:18.150 --> 00:31:20.430
don't have any money and they're indigent.
670
00:31:20.430 --> 00:31:24.180
And so to the extent that the court would order services,
671
00:31:24.180 --> 00:31:27.660
they would likely be DPH services
672
00:31:27.660 --> 00:31:30.633
and you would have an Article 30 issue.
673
00:31:30.633 --> 00:31:34.290
Where would the court order the services
674
00:31:34.290 --> 00:31:38.643
to be given to the juvenile but for state agencies?
675
00:31:40.260 --> 00:31:43.367
It would have to be perhaps even a private individual
676
00:31:43.367 --> 00:31:45.900
that would come in and do this, you know,
677
00:31:45.900 --> 00:31:47.610
charged by the hour, something like that.
678
00:31:47.610 --> 00:31:49.590
This would have to be a pretty specialized person.
679
00:31:49.590 --> 00:31:51.330
As you can kinda see in other states
680
00:31:51.330 --> 00:31:53.160
what sort of backgrounds
681
00:31:53.160 --> 00:31:56.040
are required of people that do this.
682
00:31:56.040 --> 00:31:58.140
It would have to be a pretty specialized person.
683
00:31:58.140 --> 00:32:01.050
But the GAL, at least in the first case,
684
00:32:01.050 --> 00:32:03.240
provided some resources where we can look
685
00:32:03.240 --> 00:32:04.683
to try to find these people.
686
00:32:05.700 --> 00:32:07.110
You know, I know this is not part of the record,
687
00:32:07.110 --> 00:32:08.820
but I spoke to some experts in this area
688
00:32:08.820 --> 00:32:10.524
and one of them told me
689
00:32:10.524 --> 00:32:12.270
that the ideal person in her mind
690
00:32:12.270 --> 00:32:14.040
would be a retired special ed teacher
691
00:32:14.040 --> 00:32:15.960
that just has the time and the patience
692
00:32:15.960 --> 00:32:18.840
and the background to perform this type of work.
693
00:32:18.840 --> 00:32:22.080
So I believe these people could be found
694
00:32:22.080 --> 00:32:26.820
and I don't believe we need to kind of reach out to DMH
695
00:32:26.820 --> 00:32:29.310
and force them to do something
696
00:32:29.310 --> 00:32:30.910
that's not within their mandate.
697
00:32:33.767 --> 00:32:35.074
[Justice Wendlandt] Okay.
698
00:32:35.074 --> 00:32:35.907
If there are no further questions,
699
00:32:35.907 --> 00:32:37.200
I'm happy to rest on my brief.