-: SJC-13506, Commonwealth V Nelson Barros.
Edward: Excuse me.
Someone's forgetting a briefcase here.
Attorney: Thanks.
(judge laughs)
Thank you.
-: Okay, Attorney Crane.
-: Good morning. May it please the court.
Edward Crane on behalf of Nelson Barros.
The right to counsel is one
of the most important constitutional rights
in the criminal justice system.
The question asked here is what must the defendant know
in order to waive this right?
Does the defendant need to know simply that the right exists
or must the defendant understand that waiving the right
and representing oneself is a difficult task
that carries significant risk?
Both this court and the appeals court
have repeatedly concluded that,
in order to validly effectuate a waiver of the right,
a judge must advise the defendant
about the seriousness of the charges,
the magnitude of the undertaking,
and the disadvantages of self representation.
The motion judge here
distinguished the defendant's situation
because he subsequently tendered an admission
instead of proceeding to trial.
According to the motion judge,
less is required to effectuate a valid waiver
when the defendant ultimately pleads guilty.
-: Mr. Crane, as far as what happened here,
we see these immigration mistakes being made
by lawyers, right,
on the pleas to deportable offenses under the Padilla cases.
And your client received a CWOF for a fairly egregious act,
did pretty well for himself.
How do you address the prejudice prong?
-: Your Honor, that would've been a good deal for him
if he was a citizen of the United States, but-
-: This seems a lot like the cases we have
under Padilla though, right?
Edward: Certainly, and I think that there's an element
where the analysis is the same.
I think where the prejudice arises is that,
if he had not invalidly waived the right to counsel,
had an attorney, the attorney would've advised him
about the danger of taking a CWOF
and how that, you know, he would be subject to-
-: Explain the value add
because I'm really struggling with the prejudice issue
because if you're saying that the value add
to the attorney would be,
"You really gotta think about this, Mr. Barros,
because if you take the plea on this,
you're more than likely gonna get deported."
That's exactly what the court said to Mr. Barros.
So what would be the value add of the attorney parroting
what the judge said under Rule 12?
What would be the value?
-: Well, I would respectfully disagree that that is the same
as what the court advised him at the plea hearing.
The 29D warning-
-: No, it wasn't the 29D warning that I'm speaking of.
I'm speaking of the Rule 12 warning saying
that you are more than likely going to be deported
if you take this plea.
I forget what the exact words, but you know what they were.
He told him exactly what an attorney would've told him.
"They are gonna come for you,"
and what exactly the court warned before the plea
is exactly what happened to Mr. Barros, right?
-: Correct, but the problem with the Rule 12 warning,
and this court has recognized this issue
in the Petit-Homme case, is that it conditions
all these dire immigration consequences on certain facts
that a defendant can't know without the defendant-
-: Petit-Homme was a 29D case, wasn't a Rule 12 case.
It was a 29D case, so that's what that was.
This is the admonition that the court gave
to Mr. Barros under Rule 12,
and exactly what the court foreshadowed is what happened.
The 29D would relate to what happened
to Mr. Barros on his way back in, right?
He got detained.
But the part about what happened subsequently about that,
"You are more than likely going to be deported,"
that's under Rule 12, and that's exactly what happened,
and what else would a lawyer have said other than that?
-: Well, I guess the issue with Rule 12,
and this is what the court said, I think in Petit-Homme,
is that it conditions that language
about presumptively mandatory removal on
if this is a conviction that presumptively mandates removal
under federal immigration law,
then it's practically inevitable that you'll be deported.
And the issue that the court found with that language
in Petit-Homme is that it conditions it on this,
well, is it a conviction
that presumptively mandates removal?
And that's something a defendant doesn't know.
-: But in this case, he said it is. This is a charge, right?
In this case, the judge says it is.
There's no uncertainty about that.
-: If the judge did use some more different language
from Rule 12, I'm not aware of that.
I thought that he followed the language
that was mandated by Rule 12, but I would reiterate
that the court has held that Rule 12,
that warning is problematic, and it's been done away with.
So that's no longer required,
and I think there is a distinction, too.
Even if- -: You have the Rule 12 warning
here in the record.
I haven't read the full record yet.
Do we know exactly what was said here?
-: We do. -: Where is it?
-: So I can't give you the exact page of the record,
but I can tell you at the hearing.
The judge says, "If the offense
to which the defendant is pleading guilty,
nole contendere," I'm sorry, pardon me.
That's the rule itself.
If you give a minute, Justice Kafker, I'll give it to you.
-: Yeah, no, I don't mean to distract.
Unlike you, I'm not familiar with the terminology.
-: Here it is.
So the judge says to Mr. Barros,
"If you're not a citizen of the United States,
you are hereby advised of the acceptance by this court
of your admission of sufficient facts
or plea of guilty may have the consequence of deportation
and exclusion from the admission to United States
or denial of naturalization pursuant
to the laws of the United States,"
and would presumptively mandate removal
from the United States,
and federal officials sought your removal.
It is practically inevitable that this plea
would result in your deportation,
exclusion from the admission,
or denial of naturalization.
Do you understand that?"
-: Okay, he's a Portuguese speaker,
and this is not the easiest language to follow in the world.
I mean, it could be clearer, right?
I take it that's your argument that he's
-: Yes. -: not a native speaker.
This formulation to a lawyer may be pretty clear,
but it may not be clear to him.
-: Yes, so I think that even if the judge
had provided sterling immigration advice,
it's different getting it from a judge at the plea hearing
as opposed to receiving that advice from your attorney.
-: That's like getting to a question that I had,
which is does the case law talk at all about the timing?
And it seems to me that as the very last part
of the plea colloquy is quite different timing
than when Mr. Barros initially made the choice
to forego counsel during the entirety
of any plea negotiations that would occur.
Is there case law that directs us
to take that into consideration?
-: No, there's no case law that speaks to the timing,
but I think that the timing is, I think, a huge part of this
because it's part of the practical consideration
of how these waivers of counsel
are born out in the trial courts.
When a defendant waives the right to counsel,
they don't know.
They often waive the right to counsel,
and then there are further hearings, and then ultimately,
the defendant makes the decision
whether to plead guilty or go to trial.
So it seems problematic to,
sort of the invitation to constitutional error
to say that a judge has to form their colloquy based
on what the defendant is subsequently gonna do.
It's something the judge has no idea about,
and the defendant may have no idea
what they're going to do at that point.
So certainly when the waiver of counsel,
especially at arraignment,
if the waiver of counsel occurs at that point,
then the advisement has to be consistent
with what this court has previously held is required
because, again,
it's an open invitation for constitutional error.
What if the judge gives the advisement that, say,
the Supreme Court would've said
that was involved in Tovar or sort of assuming
that the defendant is gonna plead guilty,
and then the defendant doesn't plead guilty, goes to trial.
Then there's a huge problem there.
-: Well, wouldn't the judge in that case
just revisit the issue appropriately
before the trial starts and revisit with the defendant?
"Are you sure you really wanna do this?"
-: Well, in the district court,
these cases often go in front of many different judges.
The judge at the arraignment
was not the judge who took the plea.
By the time the case was ready to be resolved,
the judge probably would have no idea
as to whether what what the content
or the substance of the initial waiver was.
I mean, my- -: I thought your client waived
each time there was an appearance, right at the arraignment,
and then there was a pretrial hearing,
and then there was the actually accepting
of the plea hearing. -: Yeah, so-
-: And each time, the issue of counsel was revisited.
-: Yes, well, it was, I think, revisited twice,
and the initial arraignment, I would say that's when he,
the waivers actually, I think the court accepts
that he has waived the right to counsel and then-
-: My record, my notes say it was the three times.
It was arraignment, pretrial conference,
and then the next day is the plea deal
where there was again a third denial of counsel.
-: Yeah, so I guess it's sort of splitting hairs,
but the first, at the arraignment,
he's advised about the right to counsel,
and one could call that more of a colloquy.
The second time at the status hearing,
I believe he's just asked,
"Are you still representing yourself?"
And he says, "Yes."
So I wouldn't call that really a colloquy at all.
-: But then the third time. -: And then the third time
would be at the plea hearing where he is advised
that he has the right to counsel.
-: But if he goes to trial, the judge is gonna revisit
'cause the judge has to give the colloquy for trial, right?
That's why you're here obviously is the colloquy for plea,
but at trial, we mandated a colloquy, correct?
-: Well, I'm not sure that that would be required.
I mean, I've reviewed district court cases
where a case is about to go to trial,
the defendant's representing himself,
and the judge simply asked, "Has he signed the waiver?
Is the waiver in the file?"
"Yeah, the waiver's in the file."
"Okay, so he's waived counsel previously.
Let's go to trial," and that's-
-: And that complies with Coat and Mellen,
or you're just saying that general practice?
-: Well, I think it would depend on the content
of the colloquy when he actually waived counsel.
So when he did waive counsel,
if he was advised about the dangers of self representation,
then that would be certainly adequate, but if he was not,
then it wouldn't be adequate.
I think it's certainly better practice for,
and I think most trial judges would revisit the issue
of the waiver when the defendant ultimately really
was gonna proceed to trial.
-: Attorney Crane, 'cause I see your time's running out,
I really wanna ask you a question
that I'd like you to get to
'cause it wasn't really briefed in either side's briefs,
but you keep saying that the admonition to that,
essentially, it would be folly for you to represent yourself
is something that we've previously required,
and I don't know that I necessarily agree with you.
But assume for the sake of argument
that we do agree with you, that it should be something.
Why wouldn't this be a new rule?
And if it's a new rule,
isn't there an issue of retroactivity here in how would,
I'm not trying to catch you without being prepared for it,
and if they need to ask the chief for leave
to do some subsequent briefing, I would like that.
But it would seem to me that this
would be a new constitutionally procedural rule,
and don't we normally apply that prospectively
and not retroactively?
So even if we were to agree with you and we say this,
we got this new rule and people have
to go forward doing this, judges need to do this,
would Mr. Barros still get the benefit of that?
-: Well, your Honor, I'm thankful to say
that I've never had to deal with the issue
of retroactivity of a new rule or not,
and I think I consider myself fortunate.
It sounds like I probably will have to
-: Times up. -: address that issue.
(everyone laughs)
-: And that would really be helpful,
and I would just refine something that our research
has really taken a look at as to whether
or not the procedural posture of the case
is a direct appeal or is it a collateral attack?
And there is some discussion about whether or not,
if it is a collateral attack,
whether it should be applied prospectively
and retroactively in the differentiation
between a direct appeal and collateral attack,
and I think that is an issue that needs to be addressed
that wasn't addressed in the briefing.
-: I'd be happy to address it in supplemental briefing.
-: So you can file a 16. That's fine.
Can I just ask?
I think this question was already asked,
but I'm not sure if it was answered.
Say we agree with you, there's error here,
and your client gets the benefit of that.
Where's the substantial risk of a miscarriage of justice?
-: So the substantial risk of the standard
is whether there would be a serious doubt whether the result
of the proceeding would've been different,
and where I see the result of the proceeding
would've been different would've been he
would've had an attorney,
the attorney would've advised him that there's certainly,
I don't know how you exactly phrase it, but,
"There's a risk that you're gonna be deported
because of this case," and he says,
"Well, I don't wanna take the CWOF right here.
Can we resolve this case in a way
where I don't face this risk?"
And the attorney would say,
"Well, maybe we could plea it down to simple A&B
without the domestic aspect of it."
I think that's a totally reasonable way
to resolve this case.
The domestic aspect of it adds nothing
as in a practical matter for the prosecution.
This is a defendant with no criminal history.
I think the Commonwealth would've been willing
to accept him pleading out to the same exact disposition
but just straight simple A&B, and thus,
the result of the proceeding would've been different.
-: What's in the record to support that position?
I agree, it sounds reasonable,
but is there anything in the record
that your client has made that supports that?
He's being deported to Portugal,
a country in which he grew up and was employed.
-: Well, I think the evidence indicating
that immigration was something important to him
was that he had just previously gone
through the whole process
of becoming a legal permanent resident, which is a timely,
I mean, it comprises a lot of time, a lot of money.
You gotta pay an immigration attorney to do that.
-: The speculative part, though,
is that the DA would've dropped the domestic part
of the case.
I could see if your client said,
"Well, I had a motion to suppress that I could've brought,"
but here, there's no defense
to punching your girlfriend in the face.
-: It's difficult to provide evidence on that aspect
because I can't get in the head of the DA's Office.
-: Right, that's the speculative part of the prejudice.
-: Yeah, but I do think it's it's a reasonable disposition,
especially because, again,
there really is no practical benefit
to the Commonwealth to having that.
-: Well, they don't wanna be soft on domestic violence.
How about that?
-: He still gets the same dispositioning,
and I would say argue he'd be willing to have agreed
to a stiffer disposition, you know,
another six months of probation in exchange
for dropping the A&B, I'm sorry,
the domestic aspect of it.
That might not have been the only way,
but I think there's reasonable probability
that he could've negotiated an immigration-safe disposition.
Okay. Thank you. -: Thank you, your Honors.
-: Attorney Sanchez.
-: Good morning. May it please the court.
Alysia Sanchez for the Commonwealth.
I ask that you affirm the denial of the defendant's motion
to withdraw his admission to sufficient facts
and first like to address his letter updating the court
regarding the termination of his removal proceedings.
It's our position that under any scenario now,
the defendant can't meet his burden
in order to obtain relief.
He can no longer claim prejudice because he's no longer
at risk of being deported as a result of his admission.
It's his sufficient facts.
So it's also our position that it's not necessary
to reach the constitutional issue, but I recognize-
-: So they're not pursuing deporting him? Is that-
-: As of October of last year,
an immigration judge determined
that the offense wasn't a deportable offense,
and the proceedings have been terminated.
The time for appeal has passed,
and so it's no longer an open issue.
-: Okay, but so now if his case may be moot,
but we do have sort of a significant constitutional issue.
-: Yes, we do.
We recognize that it's within your discretion
to decide the issue, and with that,
I'll turn to the issue now.
The question is whether Article 12
of the Declaration of Rights requires greater protection
than the Sixth Amendment regarding the validity
of a waiver of counsel at a plea hearing.
And we know that the Sixth Amendment
under Iowa versus Tovar requires
that a trial court inform the defendant
that he's aware of the nature of the charges,
the availability of counsel at the plea, and the-
-: That's just a good rule going forward
because the defendant doesn't know
what the defendant doesn't know.
Why wouldn't we just tell them, you know,
as a matter of our jurisprudence that,
in the event you have a plea,
you should tell the defendant
what this decision really means
so we don't have these issues popping up in the next case?
-: So the issue with, if it's constitutionally required,
then at every hearing, no matter what the cost
that the district court say, that's what is required.
But if it's not constitutionally required,
then it would take valuable resources away and-
-: Give me the valuable resources.
Alysia: I'm sorry?
-: What are the valuable resources?
-: Just the time in telling somebody-
-: Another sentence or two?
-: If it's another sentence or two, I think the question is,
there's no doubt that that wouldn't require much time,
but I think if it's another sentence or two,
I think it should be a meaningful sentence or two,
and there's a question of whether telling somebody that A,
for example, you might get a better deal
or this person might be more aware of immigration,
might be able to advise you of immigration law.
-: We don't have to necessarily get into the weeds
of all that, but the judge can just say more generally,
and we've got plenty of examples of other jurisdiction,
even in our jurisdiction, I forget the case in early 70s,
but talk about that you'd be basically a fool for doing this
because you're gonna be held to the standard
of a practicing attorney.
You're not gonna know the procedural stuff.
You're not gonna know the substantive law.
You don't have to get into the kind of granular detail
of what you might or might not be able to do
vis-a-vis representing yourself or getting a lawyer.
-: I think that is most valuable at the trial stage,
our case law has said, and we follow, I-
-: You have someone, again,
they don't know what they don't know.
So they don't know if they have defenses,
and then they look at the number of cases
that get resolved by plea versus the number of cases
that get resolved by trial.
There's a huge discrepancy in this.
-: So it's our position that,
at a plea hearing with the same reasoning
as in Iowa versus Tovar,
it was a unanimous decision written by Justice Ginsburg
where she determined that, at a plea hearing,
it is not any less important than at a trial,
but at a plea hearing, the dangers of self representation
are more apparent and more obvious to the accused, so-
-: But isn't that exactly the opposite, honestly?
Because if a person is gonna be going to trial, right?
They know they're gonna have to examine witnesses
and stand up there,
and it's kind of self evidently daunting
whereas a plea seems easy and straightforward.
But, you know,
a defendant may not know that, in Massachusetts,
we have defendant cap pleas, for example.
-: Just using this example,
the defendant decided to exercise his correlative right
to self representation within the Article 12,
and he decided to proceed knowing
that he was aware of the nature of the charge.
He was aware of the possible punishment
of 2.5 years if he violated probation,
and he was aware that he had the right to an attorney.
So he made- -: Did he know of the defenses,
the possible defenses?
-: He did not know the possible defenses.
-: No intelligence, so he didn't know.
-: Did anyone- -: So you have
to get the police reports and then figure out,
"Do I have an out or not?"
-: He knew he had the right
to have an attorney advise him on defenses,
but instead, he decided to take this one-year CWOF.
-: It sounds great but particularly
if you don't understand the immigration consequences.
-: Yeah, and- -: You don't know-
-: Evidence about- -: It's a big deal.
-: Testimony. -: Definitely.
-: And I wanna add one more thing
-: Sure. -: that we can't ignore
the reality that people just wanna go.
They wanna leave, and if it's a decision between,
"Let's plea or go to jail,"
they just wanna plea and get it over with,
and they don't really understand the full consequence
of what might happen,
and that's what goes on every day in our community courts.
I'm struggling to see why the Commonwealth is fighting this.
-: Well- -: I really am.
What are we fighting?
-: If this court decides that there's wording
that might help a defendant
and that's constitutionally required,
it's our position that that is definitely
within your discretion to do so.
It's our position just that under the federal law
that the Sixth Amendment and Article 12
are co-extensive here for certain reasons being the way
that we've interpreted the waiver of counsel at trial.
We've taken the pragmatic approach the same
at the federal level that's taken.
-: We could also say like we did in the violation
of probation colloquies that it's better practice
to do this, correct?
Going forward. -: Say that one more time.
I'm sorry. -: We could also say,
if it's not a Sixth Amendment right, which it probably is,
but assuming that it isn't,
we could say it's better practice going forward
to give this colloquy,
which is what we did in the violation of probation cases.
-: Definitely, definitely.
-: Counsel, you started your argument by saying that,
if the test for voluntary knowing an intelligent waiver
of counsel at the plea hearing stage is upped by this case,
that there would be some sort of parade
of resource deprivation.
Can you explain to me what you meant by that?
-: If a judge at every time at the district court,
if a defendant is trying to plead
or make an admission for sufficient facts
and he wants to proceed and he wants
to exercise his right to self representation,
his constitutional right for self representation,
and the judge needs to follow, ask him several questions
to make sure, "Do you understand the perils
of self representation at this plea hearing?
Do you understand that you might get a better deal?
Do you understand that you
might not be getting the most favorable outcome?"
That amount of time may take away valuable resources.
So it's the time that you're concerned about.
-: That's just one point. -: Well, what else is there?
-: What else is there is there's the confusion,
as noted in Iowa versus Tovar, the possible confusion
of somebody who doesn't have a viable defense
and somebody who- -: So they would be confused
by the fact that the attorney could help them?
Alysia: Yes, and so that would result in-
-: I'm sorry, can you put a finer point on that?
-: Sure. -: What is the confusion
by telling somebody that an attorney might help you?
-: So there's the confusion of, like in this case,
this person, I'm sorry, in this case,
there was likely no chance that there
is gonna be any lesser charge from the Commonwealth,
that they would agree on that.
-: But why is that? -: Yeah, why is that?
Yeah, can you explain? -: Because there
was the evidence of the police observations,
and there was medical records about the injuries.
-: Yeah, but you're also not addressing the issue
that it's one less element
that the Commonwealth has to prove at trial.
So there is some benefit to the Commonwealth reducing it
to simple A&B.
-: I'm sorry, I feel like I'm not answering your question,
but I will return to it.
Here, in the end,
we wanted to pursue an A&B on a family member.
The defendant was required to partake
in the Batterers Program, which is a good thing.
-: Which he still could under the A&B,
still be a condition of probation.
-: If I could go back to-
-: It's still Justice Wendlandt's question
because you're saying we wouldn't do that,
and I'm just saying why wouldn't you do that
when there's the issue
of all the same probationary conditions
could be implemented and you'd have one less element
that you'd have to prove at trial?
-: Yeah.
It's my understanding that a lesser charge
would not have been
-: Forthcoming. Okay. -: forthcoming, yes.
-: Can I ask one other?
Could you address the Amicus CPCS,
not only that you instruct
on sort of the difficulties of self representation
but have a particular instruction colloquy
on immigration consequences.
You wanna address that?
'Cause they're asking for something more
than Mr. Crane is asking for.
-: So they're asking that the judge state outright the-
-: That you need counsel for,
you better talk to an immigration lawyer
'cause this stuff is really hard.
-: Yeah, yeah.
First, I'd just like to point out that wasn't briefed but-
-: Briefed by the amicus. -: Amicus, yes,
and by the amicus, but I think they're asking for something
that would require the judge
to kind of take an advocacy role where a defendant
is kind of put in a position where he's being nudged
between two constitutional rights,
one to self representation and the other to counsel.
And here, they're in a position where they choose
to exercise the right to self representation
and are ultimately informed by the judge
of this risk of deportation,
so I don't think it's necessary.
-: Can I ask one other question?
And unlike Justice Georges who sat
in one of these district courts.
I mean, you're talking about the burden,
but what percentage?
Do we have any sense of the percentage
of unrepresented people doing pleas?
Do we have any feel for that number?
-: I don't know the percentage,
but I know, from what I've been told,
(laughs) it's a significant number.
But I would just also like to briefly point out
regarding the questions
on whether he was a native speaker or not.
The judge ensured that he, he asked him at arraignment,
"Do you understand English?"
And he said, "Yes, I have no problem understanding English."
-: I'll be honest.
I read what Justice Georges' read.
It's not the easiest thing to follow,
and I'm a native speaker, you know?
If it is a second language,
that's gonna be somewhat difficult to absorb, isn't it?
Especially you're in court. You're under pressure.
It's not the easiest thing to follow.
-: I understand it might not be difficult,
but it might be difficult to understand
with English being your second language, but here,
the judge, what was before him was somebody
who was saying he completely understood,
and he seemed to have no problem going through the colloquy.
All of his answers were unequivocally, "Yes,"
and the warning was also provided on the tender.
-: Yeah, yeah.
Attorney Sanchez, I would ask the same question,
even in light of what you advised us
about the fact that perhaps Mr. Barros
is no longer facing the issue of deportation.
Is there still the issue here about whether or not,
if we do anything,
whether there's any retroactive or prospective issue?
Is there still that issue here for Mr. Barros?
-: For Mr. Barros, if-
-: Again, I'm gonna say the same thing I said to Mr. Crane,
that leave to the chief to think about this,
and followup would be helpful if you think that it is,
but it looked like there was.
-: So if this court were to decide to make a new rule,
there may be a chance for this to apply to Mr. Barros.
I know under Sylvain 1,
it was determined that whether something's a new rule
or not is dictated by precedent,
and there's two exceptions to that,
and one exception is whether a new rule
should be applied retroactively
if it requires the observance of those procedures
that are implicit in the concept
of ordered liberty under Teague.
So there is a possibility that it would be retroactive,
and it would result in a number of petitions or,
you know, similar motions. -: Okay. Thank you.
-: Okay, so if you want to respond,
assuming Attorney Crane does submit something
on retroactivity, you please do respond.
Yes, I will. -: Okay.