-: SJC 13466 Commonwealth v Armani M. Huacon.
And SJC 1347 in the matter of a juvenile.
-: Okay, Attorney Faulkner, whenever you get settled.
-: May it please the court.
My name is Benjamin Faulkner
and I represent Armani Huacon.
With me is trial counsel, Attorney Andrew Zeiberg.
In this case, this is a reported case
from the juvenile court
regarding whether somebody who has been found not competent
as a result of a non-mental illness, can be forced
to undergo treatment in order to be remediated
or restored to competency.
Although, as pointed out in the amicus brief, "remediated,"
I think is the appropriate term to use here
because he wasn't necessarily ever competent
in the first place.
Now, the statutory scheme
that governs how the courts address competency concerns
was enacted in 1986.
And it was enacted the entire Department of Mental Health
code under the entire Mental Health Code.
And what was then the code entitled
Department of Mental Retardation, which has now been renamed
to the Department of Developmental Disabilities.
Both of those codes were enacted at the same time
together in one act.
And what's significant about those being enacted together
is that all of the competency issues
were lumped into the Department of Mental Health Code
and the Department of Mental Health Code
provided both for how the court determines
whether somebody's competent to stand trial,
but also what happens
after somebody has been found not competent to stand trial.
And in particular here, what the legislature did
was it enacted a series of treatments
that may be provided to somebody who's not competent
by reason of a mental illness.
That person can be committed
either to Bridgewater State Hospital
or to the Department of Mental Health
for a period of six months.
That person can be ordered to undergo involuntary treatment
provided that they meet the criteria for commitment.
But there's no such provisions under the code
that governs the Department of Developmental Disabilities.
There's no ability to involuntary commit somebody
who meets the definitions
under the Department of Developmental Disabilities.
There is no involuntary treatment of any kind
that provided for, for people that fall under the court
of the Department of Developmental
-: Counsel, I don't mean to cut you off,
but this is 1986, right?
And certainly, it's an entirely different world
with our understanding of the interplay
with developmental disabilities in understanding
that it's not a mental health issue.
This just wasn't the world.
So I think what we're talking about here really
is we can agree that it's not in the statute,
but now when we talk about
where we are in the juvenile department
where you have children with developmental disabilities
and now, it's impacting their ability
to assist their counsel
as they go forward with their defense,
why doesn't this make sense
that a juvenile court judge should have
the inherent authority to order what would otherwise
be ordered if we are talking about
a mental health diagnosis?
-: Well, first of all, I would begin
with Commonwealth v Norman, which is that pretrial orders
directed at either a juvenile
or an adult have to be authorized by a statute.
And while Commonwealth versus Norman
goes to bail conditions, here, we have section 58A
that also authorizes conditions of release.
But those conditions of release
are to be ordered with an eye
toward the protection of the community.
What the commonwealth is seeking here
is for the juvenile court judge to be able to order
the juvenile to undergo treatment,
which essentially advances the commonwealth's interest
in prosecution, but is not geared
toward protecting the safety
of the community and is not geared
toward the best interest of the juvenile.
Now, while it may be-
-: But what happens when the juvenile
doesn't receive this treatment?
What's the remedy?
-: When the juvenile does not receive the treatment?
-: So it does not become competent to stand trial.
-: So a juvenile that's not competent to stand trial,
the statutes do address that.
The case is stayed until such time
as somebody is competent to stand trial.
The case cannot proceed.
And under certain circumstances,
which is the companion case,
the juvenile can seek dismissal of the charges
so long as the interest of justice are met
or other conditions are met,
which are being dealt with in that case
-: But you would have a longer road to hoe
because your case is a YO, right?
-: Potentially-
-: 'Cause of parole eligibility
in that section D portion, right?
Dismissal.
-: Right, in terms of dismissal and I think really, the-
-: But either way, you're here
to argue you can't remediate.
And if they're not competent,
then whatever happens happens down the road.
-: Right, right.
Because the way that this case comes before the court,
before the court on a motion to dismiss
as the other case is, this is at the stage
where the Commonwealth is seeking
to order the juvenile into treatment.
And I think the important thing here
is there are many states that have set up programs
and these programs involve the kind of fact finding
that legislatures do.
How do we address these cases
so that everybody's treated equally?
So that a whole class of persons,
we know what to do with them.
What the Commonwealth wants here
is this unique ad hoc expert to come in
just to teach this person
how to become competent essentially.
And that's not the kind of process
that a juvenile court should be doing.
It shouldn't be designing
a new competency remediation program
for each individual that comes along.
That's the role of the legislature.
That's the role of the department of-
-: But a court, we have inherent powers
to run the judicial system.
If we can't, this case just sits in limbo and goes nowhere.
I'm not sure that's good for your client either
because your client can't prove that he didn't do it
or that he shouldn't be in this process either.
You know, he's just, a big cloud hangs
over his head as well, right?
-: Well, there is a remedy.
Commonwealth versus Hatch
allows for somebody that has been found not competent,
who's got evidence that they're not guilty
or not delinquent or not a youthful offender,
can demand a hearing and can require the Commonwealth
to present its evidence.
So there are other remedies that are out there.
-: What about the court's power
to, you know, get its cases done?
-: Well, the court, again, I think I would go back
to the fact that while the court
may have certain inherent powers,
what it doesn't have is in inherent powers to order
defendants to meet certain conditions.
And again, that goes back to Commonwealth versus Norman,
which is a due process, right?
But more importantly, when we look at, I think it's-
-: The court has certain powers to, you know,
determine whether a defendant or a juvenile is competent.
The question is does it have this additional power
to provide services that will help facilitate
rendering the juvenile competent, right?
-: Right, but this court has already found
somebody who suffers from an intellectual disability,
cannot be committed involuntarily.
That those statutory provisions only apply
to somebody who is mentally ill.
And again, this is an area
where the legislature has legislated-
-: But this isn't necessarily what we're saying
because the order could be outpatient.
It's not saying we have to civilly commit
the child, but that the child,
and there was some, I believe it was the guardian ad litems
in certain things that could be pursued.
-: Right, so the guardian ad litem did produce a report
which suggested that if certain actions were taken,
that the juvenile in this case may attain competency.
The juvenile court didn't accept those findings necessarily.
It simply restated that those things may assist him.
But that's different by a preponderance of evidence
that they would, first of all.
-: No, no, I was raising that with respect to your point
that we would be committing the juvenile.
I'm only making the point
that it could be in the community outpatient.
-: Oh, understood.
And I guess my only response to that
is that commitment is the only process
by which the legislature has provided
that somebody can be treated.
And when the legislature
does legislate in a particular area, here a treatment,
it would be inappropriate to use the court's inherent powers
to do something that the legislature didn't provide for
when the legislature did in fact enact
a comprehensive scheme, which by the way,
has been repeatedly amended since 1986.
So even though the original acts are old,
the legislature has continued to address this.
And if there are no further questions,
I would just suggest that this really is a problem
that is best to be solved by the legislature.
-: Okay, thank you very much. -: Thank you.
-: All right, Attorney Freitas.
-: Good morning.
May it please the court.
Debbie Freitas on behalf of the youth appellant.
With me is Cristina Freitas, appellate co-counsel.
The juvenile court cannot order competency remediation
because its role is to shield
cognitively limited incompetent youth
from being tried in absentia.
And as Attorney Faulkner argued,
it's not within the court's inherent authority to order it,
rather, to the extent that there is a gap here,
it is for the legislature to fill.
Further, the Commonwealth failed to meet any burden of proof
regarding the youth's ability to attain competency
after he was again found incompetent.
And the juvenile court urged in not holding
the Commonwealth to any burden.
And by not dismissing the case,
given that the youth is unlikely
to attain competency in the foreseeable future.
The Commonwealth must carry the burden of proof
regarding a youth's ability to attain competency.
And as the docket sheets reflect in this youth's case,
the court is already called upon
to make two findings at every competency hearing.
The first is whether the youth is competent,
and the second is if the youth is not competent,
whether the youth will become competent
in the foreseeable future.
Due process and fairness require the commonwealth
to carry the burden for both of those.
As to the first inquiry
that happens at a competency hearing-
-: Where's the source of the second one?
The second requirement you come up with
that they have to do that at that time?
'Cause it's a little hard when they can't decide
whether he or she is competent at that time.
And you're saying they can't do anything about it as well.
So you're adding a third component out of where?
-: So I'll point the court to the docket sheets
that already provide for those two findings.
I believe in the record appendix, volume five,
volume one pages 20 and 35, have those findings made.
For example, the court makes them multiple times because-
-: No, no, but where's the legal authority?
You're saying there's a second component
that the Commonwealth has to prove
after each incompetency proceeding
that the juvenile could become competent.
You're kind of, I don't know what the basis for that is.
And because your first argument says they can't do anything
about helping make the child competent,
it seems a bit unfair to impose the second requirement too.
-: Yes, your Honor.
So I believe the language
that would be important to the court is found in Calver
and repeated in sheriffs.
-: That's for dismissal.
-: Yes, it is for dismissal.
-: I think to clarify, that's for dismissal
on the 16F, right?
-: Yes, that is the language used for a dismissal,
which I think is relevant because if the court-
-: And there's a time component to it
and a due process component to dismissal.
-: Yes, for incompetent adults, there are two methods
by which to attain dismissal under 16F.
The first one is mandated.
It is a time certain.
Independent of any other factors
such as current safety to the community.
And the second is more of a due process,
interest of justice.
I think it's important because for a youth
that's found incompetent,
and not able to attain competency
into the foreseeable future,
there is no trial in for that youth.
And so the commonwealth's compelling interest
to prosecute is not so compelling in that circumstance
that it trumps a youth's interest in liberty.
-: Counsel, can I just ask you,
even though I know we're talking about the juvenile court,
does the Commonwealth have that burden in adult cases?
-: I believe the Commonwealth has that burden in all cases.
-: Are you aware of any case
where if the defendant were found to be incompetent
and the time just continues to tick for either halftime
or 16F purposes, that every time the Commonwealth,
we come back and there's an order of incompetency,
that the Commonwealth then has a burden to demonstrate
that the defendant could be returned to competency?
-: Well, in order to...
If we were to move forward from a first competency hearing
where the youth is found not competent,
in order to have a second competency hearing,
the Commonwealth would have to show the youth
would be competent at that hearing to proceed to trial.
-: And that's beyond a reasonable doubt,
the Commonwealth's burden.
-: At the trial, yes.
But even at a second competency hearing,
it would be on the Commonwealth to show
that that youth is competent by a preponderance
of the evidence.
In order to have that second competency hearing,
shouldn't the commonwealth have to show
that we should even have a second competency hearing?
If the youth has a slim chance of being remediated
or restored to attain competency in the foreseeable future,
There is no trial in sight.
The purpose for a continuation
is to see if the youth will be remediated.
And so in this case, we'll deal with someone who-
-: Well maybe that pushes towards the opposite answer
on your first question.
That maybe the Commonwealth
and the courts do have the capacity to order,
you know, services to help make the juvenile competent.
'Cause then we could answer both questions.
-: So, Your Honor, respectfully,
I think this court has already taken up that issue
in Commonwealth v Kendrew.
So in that case, a criminal defendant
comes into the district court
and is ordered to be observed
and examined at a secure facility.
And the forensic provider at that secure facility comes back
and reports to the court that due to mild,
what they said at the time, mental retardation,
and other disorders,
this person does not suffer from a mental illness
but may be harm to themselves or others.
But because the mental illness component is missing,
they cannot be housed in the secure facility.
And as a result, the district court judge thereafter
provides custody of Ms. Kendrew
to the Department of Mental Retardation
for the purposes of placement.
Placement is a service.
And the Department of Mental Retardation appeals.
And this court fines that in fact,
Ms. Kendrew's incompetence,
due to her cognitive limitations,
does not result in this court,
or any court, requiring inherent authority
because her inability to be tried
because of incompetence does not impede
the court's essential functions.
And in that case, the court even notes
that there may very well be a gap, a legislative gap
in what we do with cognitively limited defendants.
But that gap is for the legislature to fill,
not for the court.
And 29 years later, the legislature has not acted.
And in fact, we are in the same statutory scheme essentially
that we were when Kendrew was decided.
And so really, there's no more interest in finding
or concocting inherent authority here than there was there.
And so where the youth is the one
who has a liberty interest, it's important
that the government be the one
to carry the burden on any issues related to competency.
And I'm not sure there's any context in which someone
with the liberty interest would carry a burden.
More importantly, it's the government's interest
to continue the prosecution.
And shouldn't it be on the government then
to have to prove that a prosecution is possible?
-: There's an existent cognitive limitation,
albeit an adult or a juvenile.
The government is really under the gun
because there's no way to prove they're gonna be remediated.
A potential to be restore a competency, right?
-: Respectfully, I disagree.
I think every competency hearing does have experts
who do provide information on whether a youth
could attain competency in the foreseeable future.
As to cognitively limited-
Yeah, so the record here-
-: That's the harder part, right?
-: Yeah, so the record here,
the experts did provide testimony
that the type of deficits that you suffered from
are not amendable to change.
However, there are many other contexts in the juvenile court
and also in the adult court.
-: But what you're saying is it has to be amendable
to change organically.
It can't be through...
-: It shouldn't be through-
-: Through any type of remediation or teaching.
-: At least not once provided by the court.
-: Yes.
-: If the legislature stepped up as other states have,
then that obviously those would be available.
-: Yes, Your Honor.
Precisely
-: Do you cite the Kendrew, that case in your brief?
-: Yes, it's in the reply brief.
-: Okay, thank you. -: Thank you very much.
I will rest on my brief.
-: Okay, Attorney (indistinct) Jang.
-: Good morning.
May it please the court,
Kristen Jang for the Commonwealth.
In the absence of a formal competency remediation program
in the Commonwealth, the court has the inherent authority
to appoint a remediation counselor or educator
and to compel the juvenile to participate.
-: How is this any different from adults?
Because I've seen it in superior court in adults
who have cognitive limitations,
organic brain disorders, etc. and it's a gap
when they don't have a defined mental illness.
But in those situations, you take the defendant
as you see it, and it's to the detriment sometimes
in violent cases to the commonwealth.
But as I've seen those cases play out,
there's nothing really the court can do.
Why is this different?
-: The juvenile context is different
because I cited some of the research in my brief
explaining the difference in the juvenile context,
because a lot of times, these juveniles have a complex
web of issues, some of which may be remediative,
some of which maybe not-
-: That goes to treatment. -: Yes.
-: But this has to do with the court's authority
where we don't have that authority,
as I saw it, in adult cases.
That just has to do with whether it's capable of remediation
versus the court's authority
and as Justice Wendlandt pointed out, as opposed
to a legislative program.
-: Sure.
And I suppose in the right case, if this court finds
that the juvenile court has the inherent authority,
I don't see why in the correct case in the adult context,
they wouldn't have that authority as well.
It's just in the juvenile context,
these issues come up so much more often.
That's why it's heightened in this context.
-: But then, how do we operate in this ad hoc fashion?
That we're gonna appoint experts, we're gonna come up
with curriculum, we're gonna hire special education teachers
to do this?
-: Yes, but-
Justice Gaziano: Like a legislative function today.
-: If the legislature were to pass a statute similar
to these other states, and I believe the unique has cited
a bill that's pending before the legislature right now.
I took a look at it and it wouldn't be a whole lot different
to be quite honest than giving-
-: But I think Justice Gaziano's point is that we,
as an institution, are good at trying cases.
We're not good at setting up programs
to remediate youth.
-: Agreed, but also the-
-: So doesn't that suggest an in institutional limitation
on our power to craft such programs?
-: I don't think it has-
-: That wouldn't there be a due process problem
maybe if we did and it didn't work out
and there were some harm to the child?
-: Well, I'm having trouble picturing
what the possible harm could be to the child,
because at the end of the day, we still would have
to have a competency evaluation, again,
to decide whether or not they're competent.
So the worst that could happen
is that they still are not competent.
-: Well there's a little bit more than that
because listening to Attorney Faulkner
and Attorney Freitas, the other harm is they are restored
to competency and then the proceedings proceed
and they're either found delinquent
or they're found as youthful offenders,
and they're doing that by the conduit of the court
ordering them to these remediation services.
Kristen: But the problem-
-: I mean, isn't that a problem?
-: The problem is right now, they're being harmed
by these cases just sitting there languishing.
And if-
-: I Think they're more than happy to have them languish
as opposed to being charged for being tried
for armed robbery, at least in the first case.
-: Well, at the same time, the juvenile court is designed
with a rehabilitative purpose
and they can't access any of those benefits
with the case just sitting there.
The court can't do anything at this point.
-: The benefit is that at the end of the day,
the case gets dismissed.
-: Well, but at the same time, the court has-
-: I understand there's a substantial harm
to the Commonwealth in that you have victims,
you have people who may have been violently attacked
by a juvenile who has the situation.
I get why you're pressing this,
and I understand there's a significant,
potentially significant harm to the Commonwealth,
but this kind of exists in a gray area
at this legislative point in time.
-: Understood. Understood.
But assuming that the legislature does pass
some sort of statute similar to what's been proposed,
it just says the court has the authority
to appoint a similar specialist.
It gives some timeframes, but I'm not sure
that it would be much different than now, you know-
-: Well, the difference
is that the legislature does it, not us.
-: Well, the legislature just says the court
has the authority, put some timeframes in, but-
-: I mean, the legislature can say, we can pass the statute
and put in whatever they deem necessary and proper.
-: Correct.
But if you take a look at the proposal currently,
it would simply give the court the explicit authority-
-: Which allows us to do what you're asking us to do.
-: Correct. Correct.
Puts him some timeframes,
but it doesn't necessarily set up the infrastructure
that I think is what my brother and sister are calling for.
-: I think the point of the pending provision is perhaps
that in the absence of such a passage
of a proposed statute, we don't have the authority
to craft on our own, a program.
-: But at the same time, we have a lot
of testimony here on the record
about these particular deficits in these two cases.
And we even had a GAL appointed that did a little bit
of research and investigation into what maybe would help
one of the particular juveniles.
So I think we have a lot of information
about what would help in these particular cases.
-: What may help, right?
-: It may.
And then that's in every single case, we don't know-
-: Affects the efficacy of the efforts as opposed
to the authorization for efforts.
-: Correct. That's exactly right.
And then, you know,
after a certain period of time and the court can-
-: So given that the statute
is really sort of a comprehensive statute
that leaves this gap open,
and given that there is a pending legislation
to fill the gap, what's your best argument
that we currently have the authority
to put these programs forward?
-: My best argument is that this goes
to the essential functioning of the court.
These cases cannot proceed
unless we're given the opportunity
to potentially remediate these juveniles.
-: Well, okay.
Assume the premise that we can't do this.
I'm really interested in what do we do in this world,
because as Justice Gaziano mentioned,
this happens in the adult docket all the time.
But in the adult dockets, we have 16F
and we have other mechanisms to deal with it
when it starts to languish.
But if you could first,
when when the incompetency reports come back,
can you talk about whether or not the Commonwealth
should have a burden on the return
of a juvenile who's been deemed incompetent
and now they're off.
And now we go back and set another date to return
to see whether or not things have changed.
Should the Commonwealth have a burden of demonstrating
that there's some reasonable expectation
of being returned to competency?
-: Under due process, I don't believe that just the pendency
of the charges alone would require the Commonwealth
to have to show that.
If-
-: Well didn't the Supreme Court
already tell us that they do?
I mean, isn't that what Jackson case says?
And we repeated it in Abbott A.,
there has to be under due process,
an expectation that sometime in the foreseeable future,
a return to competency will happen.
There has to be showing by the commonwealth
of progress towards that goal.
I mean, those are constitutional requirements.
-: Correct, and I completely agree with that, Your Honor.
But I would distinguish those two cases
in that the deprivation of liberty
was much stronger in those cases.
In Jackson, the defendant was held under a civil commitment,
just for purposes of the criminal case,
not because his health and safety was at risk.
He didn't fall under the mental health statute.
And then under Abbott A, that was dealing with a situation
where the juvenile was being held for dangerousness.
-: And I'm sorry, what is the facts of these two cases?
-: These two cases?
One of them,
the first case the juvenile was held for dangerousness,
but was released after an Abbott A. type of hearing.
He's now been re-held again
just because he violated conditions.
-: So the first juvenile is being held,
what's the second one?
-: The other one, he is out on conditions.
-: [Justice Wendlandt] Okay, thank you.
-: So I would submit that the case law does not support,
just based on the pendency of criminal charges,
that due process requires the Commonwealth
to show reliability at every single competency hearing.
And I would submit that in the juvenile context,
these cases can be very complicated
because a lot of these juveniles have a number of issues,
whether it be a combination of cognitive disabilities,
mental health issues, family stability.
So it might take a while
to even determine whether it's possible
to remediate these juveniles.
So I think I would caution the court against imposing
time limitations that are too short that would require,
even at the competency stage,
determining whether a juvenile's competent
to make predictions too soon in the process.
And I do wanna discuss the case DMH v Kendrew,
which my sister cited.
I do wanna distinguish that case
because in that case, the court found
that the court lacked the inherent authority to order DDS
to provide services to the defendant in that case.
So that case had more to do with the court
basically telling an an executive agency what to do.
That's not what I'm proposing in this case.
I'm not saying that the court has the inherent authority
to force DMH or DDS to really do anything.
And in that case, it seemed to me
that the criminal case was pretty much wrapped up
at the point where that order was made.
In these cases, the criminal case cannot proceed
unless and until something happens with this case.
-: How would this case be different?
Because a lot of the times, you have the same issues
that you have on the adult dockets
where a lot of these juveniles
don't have any money and they're indigent.
And so to the extent that the court would order services,
they would likely be DPH services
and you would have an Article 30 issue.
Where would the court order the services
to be given to the juvenile but for state agencies?
-: It would have to be perhaps even a private individual
that would come in and do this, you know,
charged by the hour, something like that.
This would have to be a pretty specialized person.
As you can kinda see in other states
what sort of backgrounds
are required of people that do this.
It would have to be a pretty specialized person.
But the GAL, at least in the first case,
provided some resources where we can look
to try to find these people.
You know, I know this is not part of the record,
but I spoke to some experts in this area
and one of them told me
that the ideal person in her mind
would be a retired special ed teacher
that just has the time and the patience
and the background to perform this type of work.
So I believe these people could be found
and I don't believe we need to kind of reach out to DMH
and force them to do something
that's not within their mandate.
-: [Justice Wendlandt] Okay.
-: If there are no further questions,
I'm happy to rest on my brief.