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SJC-13506, Commonwealth V Nelson Barros.
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Excuse me.
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Someone's forgetting a briefcase here.
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Thanks.
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(judge laughs)
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Thank you.
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Okay, Attorney Crane.
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Good morning. May it please the court.
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Edward Crane on behalf of Nelson Barros.
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The right to counsel is one
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of the most important constitutional rights
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in the criminal justice system.
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The question asked here is what must the defendant know
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in order to waive this right?
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Does the defendant need to know simply that the right exists
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or must the defendant understand that waiving the right
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and representing oneself is a difficult task
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that carries significant risk?
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Both this court and the appeals court
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have repeatedly concluded that,
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in order to validly effectuate a waiver of the right,
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a judge must advise the defendant
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about the seriousness of the charges,
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the magnitude of the undertaking,
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and the disadvantages of self representation.
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The motion judge here
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distinguished the defendant's situation
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because he subsequently tendered an admission
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instead of proceeding to trial.
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According to the motion judge,
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less is required to effectuate a valid waiver
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when the defendant ultimately pleads guilty.
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Mr. Crane, as far as what happened here,
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we see these immigration mistakes being made
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by lawyers, right,
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on the pleas to deportable offenses under the Padilla cases.
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And your client received a CWOF for a fairly egregious act,
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did pretty well for himself.
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How do you address the prejudice prong?
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Your Honor, that would've been a good deal for him
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if he was a citizen of the United States, but-
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This seems a lot like the cases we have
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under Padilla though, right?
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Certainly, and I think that there's an element
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where the analysis is the same.
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I think where the prejudice arises is that,
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if he had not invalidly waived the right to counsel,
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had an attorney, the attorney would've advised him
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about the danger of taking a CWOF
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and how that, you know, he would be subject to-
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Explain the value add
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because I'm really struggling with the prejudice issue
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because if you're saying that the value add
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to the attorney would be,
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"You really gotta think about this, Mr. Barros,
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because if you take the plea on this,
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you're more than likely gonna get deported."
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That's exactly what the court said to Mr. Barros.
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So what would be the value add of the attorney parroting
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what the judge said under Rule 12?
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What would be the value?
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Well, I would respectfully disagree that that is the same
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as what the court advised him at the plea hearing.
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The 29D warning-
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No, it wasn't the 29D warning that I'm speaking of.
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I'm speaking of the Rule 12 warning saying
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that you are more than likely going to be deported
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if you take this plea.
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I forget what the exact words, but you know what they were.
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He told him exactly what an attorney would've told him.
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"They are gonna come for you,"
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and what exactly the court warned before the plea
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is exactly what happened to Mr. Barros, right?
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Correct, but the problem with the Rule 12 warning,
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and this court has recognized this issue
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in the Petit-Homme case, is that it conditions
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all these dire immigration consequences on certain facts
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that a defendant can't know without the defendant-
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Petit-Homme was a 29D case, wasn't a Rule 12 case.
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It was a 29D case, so that's what that was.
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This is the admonition that the court gave
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to Mr. Barros under Rule 12,
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and exactly what the court foreshadowed is what happened.
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The 29D would relate to what happened
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to Mr. Barros on his way back in, right?
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He got detained.
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But the part about what happened subsequently about that,
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"You are more than likely going to be deported,"
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that's under Rule 12, and that's exactly what happened,
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and what else would a lawyer have said other than that?
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Well, I guess the issue with Rule 12,
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and this is what the court said, I think in Petit-Homme,
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is that it conditions that language
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about presumptively mandatory removal on
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if this is a conviction that presumptively mandates removal
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under federal immigration law,
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then it's practically inevitable that you'll be deported.
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And the issue that the court found with that language
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in Petit-Homme is that it conditions it on this,
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well, is it a conviction
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that presumptively mandates removal?
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And that's something a defendant doesn't know.
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But in this case, he said it is. This is a charge, right?
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In this case, the judge says it is.
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There's no uncertainty about that.
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If the judge did use some more different language
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from Rule 12, I'm not aware of that.
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I thought that he followed the language
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that was mandated by Rule 12, but I would reiterate
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that the court has held that Rule 12,
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that warning is problematic, and it's been done away with.
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So that's no longer required,
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and I think there is a distinction, too.
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Even if-
You have the Rule 12 warning
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here in the record.
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I haven't read the full record yet.
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Do we know exactly what was said here?
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We do.
Where is it?
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So I can't give you the exact page of the record,
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but I can tell you at the hearing.
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The judge says, "If the offense
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to which the defendant is pleading guilty,
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nole contendere," I'm sorry, pardon me.
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That's the rule itself.
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If you give a minute, Justice Kafker, I'll give it to you.
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Yeah, no, I don't mean to distract.
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Unlike you, I'm not familiar with the terminology.
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Here it is.
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So the judge says to Mr. Barros,
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"If you're not a citizen of the United States,
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you are hereby advised of the acceptance by this court
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of your admission of sufficient facts
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or plea of guilty may have the consequence of deportation
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and exclusion from the admission to United States
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or denial of naturalization pursuant
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to the laws of the United States,"
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and would presumptively mandate removal
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from the United States,
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and federal officials sought your removal.
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It is practically inevitable that this plea
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would result in your deportation,
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exclusion from the admission,
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or denial of naturalization.
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Do you understand that?"
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Okay, he's a Portuguese speaker,
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and this is not the easiest language to follow in the world.
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I mean, it could be clearer, right?
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I take it that's your argument that he's
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Yes.
not a native speaker.
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This formulation to a lawyer may be pretty clear,
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but it may not be clear to him.
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Yes, so I think that even if the judge
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had provided sterling immigration advice,
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it's different getting it from a judge at the plea hearing
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as opposed to receiving that advice from your attorney.
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That's like getting to a question that I had,
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which is does the case law talk at all about the timing?
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And it seems to me that as the very last part
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of the plea colloquy is quite different timing
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than when Mr. Barros initially made the choice
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to forego counsel during the entirety
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of any plea negotiations that would occur.
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Is there case law that directs us
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to take that into consideration?
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No, there's no case law that speaks to the timing,
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but I think that the timing is, I think, a huge part of this
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because it's part of the practical consideration
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of how these waivers of counsel
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are born out in the trial courts.
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When a defendant waives the right to counsel,
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they don't know.
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They often waive the right to counsel,
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and then there are further hearings, and then ultimately,
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the defendant makes the decision
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whether to plead guilty or go to trial.
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So it seems problematic to,
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sort of the invitation to constitutional error
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to say that a judge has to form their colloquy based
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on what the defendant is subsequently gonna do.
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It's something the judge has no idea about,
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and the defendant may have no idea
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what they're going to do at that point.
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So certainly when the waiver of counsel,
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especially at arraignment,
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if the waiver of counsel occurs at that point,
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then the advisement has to be consistent
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with what this court has previously held is required
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because, again,
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it's an open invitation for constitutional error.
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What if the judge gives the advisement that, say,
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the Supreme Court would've said
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that was involved in Tovar or sort of assuming
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that the defendant is gonna plead guilty,
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and then the defendant doesn't plead guilty, goes to trial.
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Then there's a huge problem there.
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Well, wouldn't the judge in that case
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just revisit the issue appropriately
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before the trial starts and revisit with the defendant?
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"Are you sure you really wanna do this?"
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Well, in the district court,
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these cases often go in front of many different judges.
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The judge at the arraignment
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was not the judge who took the plea.
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By the time the case was ready to be resolved,
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the judge probably would have no idea
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as to whether what what the content
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or the substance of the initial waiver was.
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I mean, my-
I thought your client waived
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each time there was an appearance, right at the arraignment,
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and then there was a pretrial hearing,
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and then there was the actually accepting
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of the plea hearing.
Yeah, so-
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And each time, the issue of counsel was revisited.
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Yes, well, it was, I think, revisited twice,
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and the initial arraignment, I would say that's when he,
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the waivers actually, I think the court accepts
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that he has waived the right to counsel and then-
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My record, my notes say it was the three times.
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It was arraignment, pretrial conference,
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and then the next day is the plea deal
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where there was again a third denial of counsel.
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Yeah, so I guess it's sort of splitting hairs,
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but the first, at the arraignment,
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he's advised about the right to counsel,
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and one could call that more of a colloquy.
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The second time at the status hearing,
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I believe he's just asked,
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"Are you still representing yourself?"
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And he says, "Yes."
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So I wouldn't call that really a colloquy at all.
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But then the third time.
And then the third time
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would be at the plea hearing where he is advised
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that he has the right to counsel.
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But if he goes to trial, the judge is gonna revisit
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'cause the judge has to give the colloquy for trial, right?
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That's why you're here obviously is the colloquy for plea,
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but at trial, we mandated a colloquy, correct?
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Well, I'm not sure that that would be required.
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I mean, I've reviewed district court cases
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where a case is about to go to trial,
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the defendant's representing himself,
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and the judge simply asked, "Has he signed the waiver?
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Is the waiver in the file?"
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"Yeah, the waiver's in the file."
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"Okay, so he's waived counsel previously.
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Let's go to trial," and that's-
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And that complies with Coat and Mellen,
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or you're just saying that general practice?
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Well, I think it would depend on the content
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of the colloquy when he actually waived counsel.
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So when he did waive counsel,
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if he was advised about the dangers of self representation,
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then that would be certainly adequate, but if he was not,
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then it wouldn't be adequate.
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I think it's certainly better practice for,
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and I think most trial judges would revisit the issue
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of the waiver when the defendant ultimately really
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was gonna proceed to trial.
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Attorney Crane, 'cause I see your time's running out,
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I really wanna ask you a question
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00:12:57.870 --> 00:12:59.604
that I'd like you to get to
262
00:12:59.604 --> 00:13:02.550
'cause it wasn't really briefed in either side's briefs,
263
00:13:02.550 --> 00:13:07.550
but you keep saying that the admonition to that,
264
00:13:10.498 --> 00:13:12.270
essentially, it would be folly for you to represent yourself
265
00:13:12.270 --> 00:13:14.613
is something that we've previously required,
266
00:13:15.616 --> 00:13:17.370
and I don't know that I necessarily agree with you.
267
00:13:17.370 --> 00:13:18.960
But assume for the sake of argument
268
00:13:18.960 --> 00:13:21.843
that we do agree with you, that it should be something.
269
00:13:22.981 --> 00:13:24.633
Why wouldn't this be a new rule?
270
00:13:25.699 --> 00:13:26.532
And if it's a new rule,
271
00:13:26.532 --> 00:13:31.490
isn't there an issue of retroactivity here in how would,
272
00:13:33.222 --> 00:13:36.030
I'm not trying to catch you without being prepared for it,
273
00:13:36.030 --> 00:13:38.520
and if they need to ask the chief for leave
274
00:13:38.520 --> 00:13:41.433
to do some subsequent briefing, I would like that.
275
00:13:41.433 --> 00:13:42.535
But it would seem to me that this
276
00:13:42.535 --> 00:13:45.780
would be a new constitutionally procedural rule,
277
00:13:45.780 --> 00:13:49.380
and don't we normally apply that prospectively
278
00:13:49.380 --> 00:13:51.093
and not retroactively?
279
00:13:53.605 --> 00:13:55.740
So even if we were to agree with you and we say this,
280
00:13:55.740 --> 00:13:58.290
we got this new rule and people have
281
00:13:58.290 --> 00:14:01.800
to go forward doing this, judges need to do this,
282
00:14:01.800 --> 00:14:04.563
would Mr. Barros still get the benefit of that?
283
00:14:06.158 --> 00:14:09.596
Well, your Honor, I'm thankful to say
284
00:14:09.596 --> 00:14:10.590
that I've never had to deal with the issue
285
00:14:10.590 --> 00:14:13.288
of retroactivity of a new rule or not,
286
00:14:13.288 --> 00:14:15.438
and I think I consider myself fortunate.
287
00:14:15.438 --> 00:14:16.470
It sounds like I probably will have to
288
00:14:16.470 --> 00:14:18.335
Times up.
address that issue.
289
00:14:18.335 --> 00:14:20.247
(everyone laughs)
290
00:14:20.247 --> 00:14:22.609
And that would really be helpful,
291
00:14:22.609 --> 00:14:26.035
and I would just refine something that our research
292
00:14:26.035 --> 00:14:27.600
has really taken a look at as to whether
293
00:14:27.600 --> 00:14:30.630
or not the procedural posture of the case
294
00:14:30.630 --> 00:14:34.230
is a direct appeal or is it a collateral attack?
295
00:14:34.230 --> 00:14:37.980
And there is some discussion about whether or not,
296
00:14:37.980 --> 00:14:40.367
if it is a collateral attack,
297
00:14:40.367 --> 00:14:42.660
whether it should be applied prospectively
298
00:14:42.660 --> 00:14:46.770
and retroactively in the differentiation
299
00:14:46.770 --> 00:14:49.080
between a direct appeal and collateral attack,
300
00:14:49.080 --> 00:14:52.050
and I think that is an issue that needs to be addressed
301
00:14:52.050 --> 00:14:53.950
that wasn't addressed in the briefing.
302
00:14:54.870 --> 00:14:58.170
I'd be happy to address it in supplemental briefing.
303
00:14:58.170 --> 00:15:02.883
So you can file a 16. That's fine.
304
00:15:03.758 --> 00:15:04.591
Can I just ask?
305
00:15:04.591 --> 00:15:05.424
I think this question was already asked,
306
00:15:05.424 --> 00:15:07.200
but I'm not sure if it was answered.
307
00:15:08.128 --> 00:15:10.500
Say we agree with you, there's error here,
308
00:15:10.500 --> 00:15:12.550
and your client gets the benefit of that.
309
00:15:14.370 --> 00:15:17.673
Where's the substantial risk of a miscarriage of justice?
310
00:15:19.234 --> 00:15:20.067
So the substantial risk of the standard
311
00:15:20.067 --> 00:15:22.350
is whether there would be a serious doubt whether the result
312
00:15:22.350 --> 00:15:23.940
of the proceeding would've been different,
313
00:15:23.940 --> 00:15:26.506
and where I see the result of the proceeding
314
00:15:26.506 --> 00:15:27.339
would've been different would've been he
315
00:15:27.339 --> 00:15:29.227
would've had an attorney,
316
00:15:29.227 --> 00:15:32.422
the attorney would've advised him that there's certainly,
317
00:15:32.422 --> 00:15:34.906
I don't know how you exactly phrase it, but,
318
00:15:34.906 --> 00:15:35.739
"There's a risk that you're gonna be deported
319
00:15:35.739 --> 00:15:37.027
because of this case," and he says,
320
00:15:37.027 --> 00:15:39.480
"Well, I don't wanna take the CWOF right here.
321
00:15:39.480 --> 00:15:41.100
Can we resolve this case in a way
322
00:15:41.100 --> 00:15:43.662
where I don't face this risk?"
323
00:15:43.662 --> 00:15:44.749
And the attorney would say,
324
00:15:44.749 --> 00:15:46.950
"Well, maybe we could plea it down to simple A&B
325
00:15:46.950 --> 00:15:50.014
without the domestic aspect of it."
326
00:15:50.014 --> 00:15:52.170
I think that's a totally reasonable way
327
00:15:52.170 --> 00:15:53.100
to resolve this case.
328
00:15:53.100 --> 00:15:55.230
The domestic aspect of it adds nothing
329
00:15:55.230 --> 00:15:57.360
as in a practical matter for the prosecution.
330
00:15:57.360 --> 00:15:59.340
This is a defendant with no criminal history.
331
00:15:59.340 --> 00:16:01.698
I think the Commonwealth would've been willing
332
00:16:01.698 --> 00:16:03.630
to accept him pleading out to the same exact disposition
333
00:16:03.630 --> 00:16:06.390
but just straight simple A&B, and thus,
334
00:16:06.390 --> 00:16:08.573
the result of the proceeding would've been different.
335
00:16:09.510 --> 00:16:12.300
What's in the record to support that position?
336
00:16:12.300 --> 00:16:13.650
I agree, it sounds reasonable,
337
00:16:13.650 --> 00:16:16.590
but is there anything in the record
338
00:16:16.590 --> 00:16:18.873
that your client has made that supports that?
339
00:16:20.183 --> 00:16:21.016
He's being deported to Portugal,
340
00:16:21.016 --> 00:16:25.000
a country in which he grew up and was employed.
341
00:16:30.325 --> 00:16:33.930
Well, I think the evidence indicating
342
00:16:33.930 --> 00:16:36.210
that immigration was something important to him
343
00:16:36.210 --> 00:16:39.900
was that he had just previously gone
344
00:16:39.900 --> 00:16:41.160
through the whole process
345
00:16:41.160 --> 00:16:44.801
of becoming a legal permanent resident, which is a timely,
346
00:16:44.801 --> 00:16:47.094
I mean, it comprises a lot of time, a lot of money.
347
00:16:47.094 --> 00:16:48.180
You gotta pay an immigration attorney to do that.
348
00:16:48.180 --> 00:16:49.380
The speculative part, though,
349
00:16:49.380 --> 00:16:53.010
is that the DA would've dropped the domestic part
350
00:16:53.010 --> 00:16:53.883
of the case.
351
00:16:54.929 --> 00:16:56.926
I could see if your client said,
352
00:16:56.926 --> 00:17:00.477
"Well, I had a motion to suppress that I could've brought,"
353
00:17:01.650 --> 00:17:03.180
but here, there's no defense
354
00:17:03.180 --> 00:17:05.193
to punching your girlfriend in the face.
355
00:17:07.559 --> 00:17:10.560
It's difficult to provide evidence on that aspect
356
00:17:10.560 --> 00:17:12.150
because I can't get in the head of the DA's Office.
357
00:17:12.150 --> 00:17:15.850
Right, that's the speculative part of the prejudice.
358
00:17:15.850 --> 00:17:18.600
Yeah, but I do think it's it's a reasonable disposition,
359
00:17:18.600 --> 00:17:19.900
especially because, again,
360
00:17:21.270 --> 00:17:23.130
there really is no practical benefit
361
00:17:23.130 --> 00:17:24.660
to the Commonwealth to having that.
362
00:17:24.660 --> 00:17:27.330
Well, they don't wanna be soft on domestic violence.
363
00:17:27.330 --> 00:17:28.163
How about that?
364
00:17:29.201 --> 00:17:31.201
He still gets the same dispositioning,
365
00:17:32.447 --> 00:17:34.920
and I would say argue he'd be willing to have agreed
366
00:17:34.920 --> 00:17:37.080
to a stiffer disposition, you know,
367
00:17:37.080 --> 00:17:41.040
another six months of probation in exchange
368
00:17:41.040 --> 00:17:44.466
for dropping the A&B, I'm sorry,
369
00:17:44.466 --> 00:17:45.713
the domestic aspect of it.
370
00:17:49.111 --> 00:17:50.252
That might not have been the only way,
371
00:17:50.252 --> 00:17:51.750
but I think there's reasonable probability
372
00:17:51.750 --> 00:17:54.783
that he could've negotiated an immigration-safe disposition.
373
00:17:56.506 --> 00:17:58.283
Okay. Thank you.
Thank you, your Honors.
374
00:18:02.313 --> 00:18:03.146
Attorney Sanchez.
375
00:18:07.802 --> 00:18:09.720
Good morning. May it please the court.
376
00:18:09.720 --> 00:18:11.520
Alysia Sanchez for the Commonwealth.
377
00:18:14.583 --> 00:18:16.740
I ask that you affirm the denial of the defendant's motion
378
00:18:16.740 --> 00:18:19.920
to withdraw his admission to sufficient facts
379
00:18:19.920 --> 00:18:23.010
and first like to address his letter updating the court
380
00:18:23.010 --> 00:18:25.660
regarding the termination of his removal proceedings.
381
00:18:26.879 --> 00:18:29.550
It's our position that under any scenario now,
382
00:18:29.550 --> 00:18:31.390
the defendant can't meet his burden
383
00:18:33.690 --> 00:18:35.850
in order to obtain relief.
384
00:18:35.850 --> 00:18:38.580
He can no longer claim prejudice because he's no longer
385
00:18:38.580 --> 00:18:42.049
at risk of being deported as a result of his admission.
386
00:18:42.049 --> 00:18:43.073
It's his sufficient facts.
387
00:18:44.070 --> 00:18:46.770
So it's also our position that it's not necessary
388
00:18:46.770 --> 00:18:50.400
to reach the constitutional issue, but I recognize-
389
00:18:50.400 --> 00:18:53.433
So they're not pursuing deporting him? Is that-
390
00:18:56.740 --> 00:18:59.823
As of October of last year,
391
00:19:00.715 --> 00:19:01.548
an immigration judge determined
392
00:19:01.548 --> 00:19:04.779
that the offense wasn't a deportable offense,
393
00:19:04.779 --> 00:19:07.560
and the proceedings have been terminated.
394
00:19:07.560 --> 00:19:09.750
The time for appeal has passed,
395
00:19:09.750 --> 00:19:11.613
and so it's no longer an open issue.
396
00:19:13.003 --> 00:19:15.977
Okay, but so now if his case may be moot,
397
00:19:15.977 --> 00:19:19.110
but we do have sort of a significant constitutional issue.
398
00:19:19.110 --> 00:19:21.245
Yes, we do.
399
00:19:21.245 --> 00:19:23.250
We recognize that it's within your discretion
400
00:19:23.250 --> 00:19:25.770
to decide the issue, and with that,
401
00:19:25.770 --> 00:19:27.363
I'll turn to the issue now.
402
00:19:29.460 --> 00:19:31.980
The question is whether Article 12
403
00:19:31.980 --> 00:19:36.120
of the Declaration of Rights requires greater protection
404
00:19:36.120 --> 00:19:39.720
than the Sixth Amendment regarding the validity
405
00:19:39.720 --> 00:19:43.500
of a waiver of counsel at a plea hearing.
406
00:19:43.500 --> 00:19:47.550
And we know that the Sixth Amendment
407
00:19:47.550 --> 00:19:50.347
under Iowa versus Tovar requires
408
00:19:50.347 --> 00:19:52.510
that a trial court inform the defendant
409
00:19:53.440 --> 00:19:55.740
that he's aware of the nature of the charges,
410
00:19:55.740 --> 00:20:00.740
the availability of counsel at the plea, and the-
411
00:20:02.255 --> 00:20:04.170
That's just a good rule going forward
412
00:20:04.170 --> 00:20:05.730
because the defendant doesn't know
413
00:20:05.730 --> 00:20:07.413
what the defendant doesn't know.
414
00:20:08.654 --> 00:20:11.163
Why wouldn't we just tell them, you know,
415
00:20:12.630 --> 00:20:15.453
as a matter of our jurisprudence that,
416
00:20:16.646 --> 00:20:18.150
in the event you have a plea,
417
00:20:18.150 --> 00:20:19.930
you should tell the defendant
418
00:20:21.137 --> 00:20:22.920
what this decision really means
419
00:20:22.920 --> 00:20:26.193
so we don't have these issues popping up in the next case?
420
00:20:27.263 --> 00:20:32.010
So the issue with, if it's constitutionally required,
421
00:20:32.010 --> 00:20:36.750
then at every hearing, no matter what the cost
422
00:20:36.750 --> 00:20:40.650
that the district court say, that's what is required.
423
00:20:40.650 --> 00:20:42.330
But if it's not constitutionally required,
424
00:20:42.330 --> 00:20:45.060
then it would take valuable resources away and-
425
00:20:45.060 --> 00:20:46.500
Give me the valuable resources.
426
00:20:46.500 --> 00:20:48.042
I'm sorry?
427
00:20:48.042 --> 00:20:49.100
What are the valuable resources?
428
00:20:49.100 --> 00:20:52.463
Just the time in telling somebody-
429
00:20:52.463 --> 00:20:54.000
Another sentence or two?
430
00:20:54.000 --> 00:20:57.311
If it's another sentence or two, I think the question is,
431
00:20:57.311 --> 00:20:59.940
there's no doubt that that wouldn't require much time,
432
00:20:59.940 --> 00:21:02.656
but I think if it's another sentence or two,
433
00:21:02.656 --> 00:21:04.710
I think it should be a meaningful sentence or two,
434
00:21:04.710 --> 00:21:09.469
and there's a question of whether telling somebody that A,
435
00:21:09.469 --> 00:21:11.490
for example, you might get a better deal
436
00:21:11.490 --> 00:21:16.490
or this person might be more aware of immigration,
437
00:21:16.830 --> 00:21:19.477
might be able to advise you of immigration law.
438
00:21:19.477 --> 00:21:20.910
We don't have to necessarily get into the weeds
439
00:21:20.910 --> 00:21:24.530
of all that, but the judge can just say more generally,
440
00:21:24.530 --> 00:21:28.380
and we've got plenty of examples of other jurisdiction,
441
00:21:28.380 --> 00:21:31.290
even in our jurisdiction, I forget the case in early 70s,
442
00:21:31.290 --> 00:21:36.240
but talk about that you'd be basically a fool for doing this
443
00:21:36.240 --> 00:21:38.730
because you're gonna be held to the standard
444
00:21:38.730 --> 00:21:40.785
of a practicing attorney.
445
00:21:40.785 --> 00:21:42.030
You're not gonna know the procedural stuff.
446
00:21:42.030 --> 00:21:44.268
You're not gonna know the substantive law.
447
00:21:44.268 --> 00:21:46.740
You don't have to get into the kind of granular detail
448
00:21:46.740 --> 00:21:49.290
of what you might or might not be able to do
449
00:21:49.290 --> 00:21:52.653
vis-a-vis representing yourself or getting a lawyer.
450
00:21:54.240 --> 00:21:58.470
I think that is most valuable at the trial stage,
451
00:21:58.470 --> 00:22:01.800
our case law has said, and we follow, I-
452
00:22:01.800 --> 00:22:02.880
You have someone, again,
453
00:22:02.880 --> 00:22:03.750
they don't know what they don't know.
454
00:22:03.750 --> 00:22:06.993
So they don't know if they have defenses,
455
00:22:08.426 --> 00:22:09.690
and then they look at the number of cases
456
00:22:09.690 --> 00:22:13.110
that get resolved by plea versus the number of cases
457
00:22:13.110 --> 00:22:14.250
that get resolved by trial.
458
00:22:14.250 --> 00:22:16.023
There's a huge discrepancy in this.
459
00:22:17.073 --> 00:22:21.393
So it's our position that,
460
00:22:23.281 --> 00:22:26.160
at a plea hearing with the same reasoning
461
00:22:26.160 --> 00:22:27.840
as in Iowa versus Tovar,
462
00:22:27.840 --> 00:22:29.910
it was a unanimous decision written by Justice Ginsburg
463
00:22:29.910 --> 00:22:34.910
where she determined that, at a plea hearing,
464
00:22:36.441 --> 00:22:40.470
it is not any less important than at a trial,
465
00:22:40.470 --> 00:22:45.470
but at a plea hearing, the dangers of self representation
466
00:22:45.630 --> 00:22:50.630
are more apparent and more obvious to the accused, so-
467
00:22:52.140 --> 00:22:54.480
But isn't that exactly the opposite, honestly?
468
00:22:54.480 --> 00:22:58.388
Because if a person is gonna be going to trial, right?
469
00:22:58.388 --> 00:22:59.760
They know they're gonna have to examine witnesses
470
00:22:59.760 --> 00:23:01.733
and stand up there,
471
00:23:01.733 --> 00:23:03.630
and it's kind of self evidently daunting
472
00:23:03.630 --> 00:23:06.690
whereas a plea seems easy and straightforward.
473
00:23:06.690 --> 00:23:08.348
But, you know,
474
00:23:08.348 --> 00:23:10.196
a defendant may not know that, in Massachusetts,
475
00:23:10.196 --> 00:23:12.246
we have defendant cap pleas, for example.
476
00:23:16.980 --> 00:23:19.314
Just using this example,
477
00:23:19.314 --> 00:23:24.119
the defendant decided to exercise his correlative right
478
00:23:24.119 --> 00:23:26.010
to self representation within the Article 12,
479
00:23:26.010 --> 00:23:30.010
and he decided to proceed knowing
480
00:23:31.590 --> 00:23:35.381
that he was aware of the nature of the charge.
481
00:23:35.381 --> 00:23:36.990
He was aware of the possible punishment
482
00:23:36.990 --> 00:23:40.350
of 2.5 years if he violated probation,
483
00:23:40.350 --> 00:23:43.260
and he was aware that he had the right to an attorney.
484
00:23:43.260 --> 00:23:45.240
So he made-
Did he know of the defenses,
485
00:23:45.240 --> 00:23:46.980
the possible defenses?
486
00:23:46.980 --> 00:23:48.810
He did not know the possible defenses.
487
00:23:48.810 --> 00:23:51.263
No intelligence, so he didn't know.
488
00:23:52.374 --> 00:23:53.207
Did anyone-
So you have
489
00:23:53.207 --> 00:23:55.630
to get the police reports and then figure out,
490
00:23:55.630 --> 00:23:56.867
"Do I have an out or not?"
491
00:23:59.640 --> 00:24:00.510
He knew he had the right
492
00:24:00.510 --> 00:24:03.540
to have an attorney advise him on defenses,
493
00:24:03.540 --> 00:24:08.400
but instead, he decided to take this one-year CWOF.
494
00:24:11.410 --> 00:24:13.825
It sounds great but particularly
495
00:24:13.825 --> 00:24:16.607
if you don't understand the immigration consequences.
496
00:24:16.607 --> 00:24:18.090
Yeah, and-
You don't know-
497
00:24:18.090 --> 00:24:19.830
Evidence about-
It's a big deal.
498
00:24:19.830 --> 00:24:21.490
Testimony.
Definitely.
499
00:24:21.490 --> 00:24:22.710
And I wanna add one more thing
500
00:24:22.710 --> 00:24:24.700
Sure.
that we can't ignore
501
00:24:26.155 --> 00:24:29.673
the reality that people just wanna go.
502
00:24:30.669 --> 00:24:35.332
They wanna leave, and if it's a decision between,
503
00:24:35.332 --> 00:24:36.480
"Let's plea or go to jail,"
504
00:24:36.480 --> 00:24:38.190
they just wanna plea and get it over with,
505
00:24:38.190 --> 00:24:41.250
and they don't really understand the full consequence
506
00:24:41.250 --> 00:24:42.300
of what might happen,
507
00:24:42.300 --> 00:24:45.200
and that's what goes on every day in our community courts.
508
00:24:46.260 --> 00:24:49.260
I'm struggling to see why the Commonwealth is fighting this.
509
00:24:50.489 --> 00:24:51.639
Well-
I really am.
510
00:24:53.322 --> 00:24:54.293
What are we fighting?
511
00:24:57.641 --> 00:25:01.470
If this court decides that there's wording
512
00:25:01.470 --> 00:25:03.030
that might help a defendant
513
00:25:03.030 --> 00:25:04.890
and that's constitutionally required,
514
00:25:04.890 --> 00:25:07.710
it's our position that that is definitely
515
00:25:07.710 --> 00:25:09.333
within your discretion to do so.
516
00:25:10.560 --> 00:25:13.900
It's our position just that under the federal law
517
00:25:17.374 --> 00:25:18.207
that the Sixth Amendment and Article 12
518
00:25:18.207 --> 00:25:22.140
are co-extensive here for certain reasons being the way
519
00:25:22.140 --> 00:25:27.140
that we've interpreted the waiver of counsel at trial.
520
00:25:30.294 --> 00:25:32.280
We've taken the pragmatic approach the same
521
00:25:36.125 --> 00:25:38.122
at the federal level that's taken.
522
00:25:38.122 --> 00:25:39.390
We could also say like we did in the violation
523
00:25:39.390 --> 00:25:42.990
of probation colloquies that it's better practice
524
00:25:42.990 --> 00:25:44.760
to do this, correct?
525
00:25:44.760 --> 00:25:46.620
Going forward.
Say that one more time.
526
00:25:46.620 --> 00:25:48.760
I'm sorry.
We could also say,
527
00:25:48.760 --> 00:25:51.848
if it's not a Sixth Amendment right, which it probably is,
528
00:25:51.848 --> 00:25:53.850
but assuming that it isn't,
529
00:25:53.850 --> 00:25:56.340
we could say it's better practice going forward
530
00:25:56.340 --> 00:25:58.280
to give this colloquy,
531
00:25:58.280 --> 00:26:01.418
which is what we did in the violation of probation cases.
532
00:26:01.418 --> 00:26:02.668
Definitely, definitely.
533
00:26:04.516 --> 00:26:08.175
Counsel, you started your argument by saying that,
534
00:26:08.175 --> 00:26:13.175
if the test for voluntary knowing an intelligent waiver
535
00:26:15.280 --> 00:26:20.280
of counsel at the plea hearing stage is upped by this case,
536
00:26:22.260 --> 00:26:24.360
that there would be some sort of parade
537
00:26:24.360 --> 00:26:26.850
of resource deprivation.
538
00:26:26.850 --> 00:26:30.720
Can you explain to me what you meant by that?
539
00:26:30.720 --> 00:26:35.433
If a judge at every time at the district court,
540
00:26:38.250 --> 00:26:42.840
if a defendant is trying to plead
541
00:26:42.840 --> 00:26:44.700
or make an admission for sufficient facts
542
00:26:44.700 --> 00:26:49.700
and he wants to proceed and he wants
543
00:26:49.950 --> 00:26:52.200
to exercise his right to self representation,
544
00:26:52.200 --> 00:26:54.693
his constitutional right for self representation,
545
00:26:55.661 --> 00:26:58.470
and the judge needs to follow, ask him several questions
546
00:26:58.470 --> 00:27:00.060
to make sure, "Do you understand the perils
547
00:27:00.060 --> 00:27:02.220
of self representation at this plea hearing?
548
00:27:02.220 --> 00:27:04.590
Do you understand that you might get a better deal?
549
00:27:04.590 --> 00:27:06.351
Do you understand that you
550
00:27:06.351 --> 00:27:09.300
might not be getting the most favorable outcome?"
551
00:27:09.300 --> 00:27:13.359
That amount of time may take away valuable resources.
552
00:27:13.359 --> 00:27:16.620
So it's the time that you're concerned about.
553
00:27:16.620 --> 00:27:19.443
That's just one point.
Well, what else is there?
554
00:27:21.310 --> 00:27:24.509
What else is there is there's the confusion,
555
00:27:24.509 --> 00:27:26.580
as noted in Iowa versus Tovar, the possible confusion
556
00:27:26.580 --> 00:27:30.730
of somebody who doesn't have a viable defense
557
00:27:31.708 --> 00:27:34.380
and somebody who-
So they would be confused
558
00:27:34.380 --> 00:27:37.489
by the fact that the attorney could help them?
559
00:27:37.489 --> 00:27:40.140
Yes, and so that would result in-
560
00:27:40.140 --> 00:27:43.621
I'm sorry, can you put a finer point on that?
561
00:27:43.621 --> 00:27:45.183
Sure.
What is the confusion
562
00:27:45.183 --> 00:27:47.400
by telling somebody that an attorney might help you?
563
00:27:47.400 --> 00:27:51.723
So there's the confusion of, like in this case,
564
00:27:53.026 --> 00:27:55.770
this person, I'm sorry, in this case,
565
00:27:55.770 --> 00:27:59.250
there was likely no chance that there
566
00:27:59.250 --> 00:28:04.140
is gonna be any lesser charge from the Commonwealth,
567
00:28:04.140 --> 00:28:05.838
that they would agree on that.
568
00:28:05.838 --> 00:28:07.590
But why is that?
Yeah, why is that?
569
00:28:07.590 --> 00:28:08.423
Yeah, can you explain?
Because there
570
00:28:08.423 --> 00:28:11.863
was the evidence of the police observations,
571
00:28:11.863 --> 00:28:13.410
and there was medical records about the injuries.
572
00:28:13.410 --> 00:28:17.550
Yeah, but you're also not addressing the issue
573
00:28:17.550 --> 00:28:18.750
that it's one less element
574
00:28:18.750 --> 00:28:21.690
that the Commonwealth has to prove at trial.
575
00:28:21.690 --> 00:28:25.710
So there is some benefit to the Commonwealth reducing it
576
00:28:25.710 --> 00:28:26.973
to simple A&B.
577
00:28:31.502 --> 00:28:34.033
I'm sorry, I feel like I'm not answering your question,
578
00:28:34.033 --> 00:28:34.913
but I will return to it.
579
00:28:35.850 --> 00:28:39.030
Here, in the end,
580
00:28:39.030 --> 00:28:41.880
we wanted to pursue an A&B on a family member.
581
00:28:41.880 --> 00:28:44.580
The defendant was required to partake
582
00:28:44.580 --> 00:28:48.450
in the Batterers Program, which is a good thing.
583
00:28:48.450 --> 00:28:50.523
Which he still could under the A&B,
584
00:28:52.122 --> 00:28:53.573
still be a condition of probation.
585
00:28:56.331 --> 00:28:58.530
If I could go back to-
586
00:28:58.530 --> 00:29:00.240
It's still Justice Wendlandt's question
587
00:29:00.240 --> 00:29:04.057
because you're saying we wouldn't do that,
588
00:29:04.057 --> 00:29:05.460
and I'm just saying why wouldn't you do that
589
00:29:05.460 --> 00:29:06.330
when there's the issue
590
00:29:06.330 --> 00:29:08.490
of all the same probationary conditions
591
00:29:08.490 --> 00:29:11.340
could be implemented and you'd have one less element
592
00:29:11.340 --> 00:29:13.313
that you'd have to prove at trial?
593
00:29:13.313 --> 00:29:14.853
Yeah.
594
00:29:16.368 --> 00:29:18.480
It's my understanding that a lesser charge
595
00:29:18.480 --> 00:29:19.570
would not have been
596
00:29:22.322 --> 00:29:24.473
Forthcoming. Okay.
forthcoming, yes.
597
00:29:24.473 --> 00:29:25.306
Can I ask one other?
598
00:29:25.306 --> 00:29:28.443
Could you address the Amicus CPCS,
599
00:29:29.524 --> 00:29:30.780
not only that you instruct
600
00:29:31.651 --> 00:29:35.820
on sort of the difficulties of self representation
601
00:29:35.820 --> 00:29:40.335
but have a particular instruction colloquy
602
00:29:40.335 --> 00:29:41.735
on immigration consequences.
603
00:29:42.701 --> 00:29:43.534
You wanna address that?
604
00:29:43.534 --> 00:29:45.330
'Cause they're asking for something more
605
00:29:45.330 --> 00:29:47.100
than Mr. Crane is asking for.
606
00:29:47.100 --> 00:29:52.100
So they're asking that the judge state outright the-
607
00:29:54.824 --> 00:29:55.740
That you need counsel for,
608
00:29:55.740 --> 00:29:57.690
you better talk to an immigration lawyer
609
00:29:57.690 --> 00:29:59.912
'cause this stuff is really hard.
610
00:29:59.912 --> 00:30:00.745
Yeah, yeah.
611
00:30:02.501 --> 00:30:05.463
First, I'd just like to point out that wasn't briefed but-
612
00:30:06.915 --> 00:30:08.959
Briefed by the amicus.
Amicus, yes,
613
00:30:08.959 --> 00:30:13.959
and by the amicus, but I think they're asking for something
614
00:30:15.480 --> 00:30:17.400
that would require the judge
615
00:30:17.400 --> 00:30:21.663
to kind of take an advocacy role where a defendant
616
00:30:23.457 --> 00:30:25.080
is kind of put in a position where he's being nudged
617
00:30:25.080 --> 00:30:27.090
between two constitutional rights,
618
00:30:27.090 --> 00:30:31.233
one to self representation and the other to counsel.
619
00:30:32.790 --> 00:30:35.820
And here, they're in a position where they choose
620
00:30:35.820 --> 00:30:38.950
to exercise the right to self representation
621
00:30:40.004 --> 00:30:42.130
and are ultimately informed by the judge
622
00:30:43.437 --> 00:30:45.603
of this risk of deportation,
623
00:30:46.458 --> 00:30:48.452
so I don't think it's necessary.
624
00:30:48.452 --> 00:30:49.543
Can I ask one other question?
625
00:30:49.543 --> 00:30:51.562
And unlike Justice Georges who sat
626
00:30:51.562 --> 00:30:53.670
in one of these district courts.
627
00:30:53.670 --> 00:30:56.290
I mean, you're talking about the burden,
628
00:30:56.290 --> 00:30:57.396
but what percentage?
629
00:30:57.396 --> 00:30:58.229
Do we have any sense of the percentage
630
00:30:58.229 --> 00:31:01.773
of unrepresented people doing pleas?
631
00:31:03.433 --> 00:31:05.095
Do we have any feel for that number?
632
00:31:05.095 --> 00:31:05.928
I don't know the percentage,
633
00:31:05.928 --> 00:31:10.823
but I know, from what I've been told,
634
00:31:10.823 --> 00:31:12.573
(laughs) it's a significant number.
635
00:31:13.975 --> 00:31:18.240
But I would just also like to briefly point out
636
00:31:18.240 --> 00:31:19.920
regarding the questions
637
00:31:19.920 --> 00:31:22.708
on whether he was a native speaker or not.
638
00:31:22.708 --> 00:31:25.477
The judge ensured that he, he asked him at arraignment,
639
00:31:25.477 --> 00:31:27.301
"Do you understand English?"
640
00:31:27.301 --> 00:31:29.040
And he said, "Yes, I have no problem understanding English."
641
00:31:29.040 --> 00:31:30.508
I'll be honest.
642
00:31:30.508 --> 00:31:32.586
I read what Justice Georges' read.
643
00:31:32.586 --> 00:31:33.480
It's not the easiest thing to follow,
644
00:31:33.480 --> 00:31:35.433
and I'm a native speaker, you know?
645
00:31:38.335 --> 00:31:39.631
If it is a second language,
646
00:31:39.631 --> 00:31:44.631
that's gonna be somewhat difficult to absorb, isn't it?
647
00:31:44.813 --> 00:31:47.463
Especially you're in court. You're under pressure.
648
00:31:48.960 --> 00:31:50.810
It's not the easiest thing to follow.
649
00:31:52.320 --> 00:31:55.202
I understand it might not be difficult,
650
00:31:55.202 --> 00:31:57.152
but it might be difficult to understand
651
00:31:59.092 --> 00:32:01.290
with English being your second language, but here,
652
00:32:01.290 --> 00:32:04.230
the judge, what was before him was somebody
653
00:32:04.230 --> 00:32:06.480
who was saying he completely understood,
654
00:32:06.480 --> 00:32:10.350
and he seemed to have no problem going through the colloquy.
655
00:32:10.350 --> 00:32:13.257
All of his answers were unequivocally, "Yes,"
656
00:32:14.580 --> 00:32:19.323
and the warning was also provided on the tender.
657
00:32:20.294 --> 00:32:21.377
Yeah, yeah.
658
00:32:22.838 --> 00:32:23.940
Attorney Sanchez, I would ask the same question,
659
00:32:23.940 --> 00:32:25.980
even in light of what you advised us
660
00:32:25.980 --> 00:32:28.890
about the fact that perhaps Mr. Barros
661
00:32:28.890 --> 00:32:31.710
is no longer facing the issue of deportation.
662
00:32:31.710 --> 00:32:35.103
Is there still the issue here about whether or not,
663
00:32:37.317 --> 00:32:38.640
if we do anything,
664
00:32:38.640 --> 00:32:42.843
whether there's any retroactive or prospective issue?
665
00:32:43.735 --> 00:32:46.773
Is there still that issue here for Mr. Barros?
666
00:32:47.910 --> 00:32:50.970
For Mr. Barros, if-
667
00:32:50.970 --> 00:32:53.100
Again, I'm gonna say the same thing I said to Mr. Crane,
668
00:32:53.100 --> 00:32:56.970
that leave to the chief to think about this,
669
00:32:56.970 --> 00:33:00.027
and followup would be helpful if you think that it is,
670
00:33:00.027 --> 00:33:01.713
but it looked like there was.
671
00:33:03.363 --> 00:33:07.173
So if this court were to decide to make a new rule,
672
00:33:09.884 --> 00:33:13.233
there may be a chance for this to apply to Mr. Barros.
673
00:33:14.592 --> 00:33:16.180
I know under Sylvain 1,
674
00:33:16.180 --> 00:33:18.900
it was determined that whether something's a new rule
675
00:33:18.900 --> 00:33:21.390
or not is dictated by precedent,
676
00:33:21.390 --> 00:33:23.795
and there's two exceptions to that,
677
00:33:23.795 --> 00:33:27.924
and one exception is whether a new rule
678
00:33:27.924 --> 00:33:28.770
should be applied retroactively
679
00:33:28.770 --> 00:33:31.380
if it requires the observance of those procedures
680
00:33:31.380 --> 00:33:33.090
that are implicit in the concept
681
00:33:33.090 --> 00:33:34.803
of ordered liberty under Teague.
682
00:33:35.763 --> 00:33:38.363
So there is a possibility that it would be retroactive,
683
00:33:39.520 --> 00:33:42.843
and it would result in a number of petitions or,
684
00:33:43.810 --> 00:33:47.267
you know, similar motions.
Okay. Thank you.
685
00:33:47.267 --> 00:33:49.950
Okay, so if you want to respond,
686
00:33:49.950 --> 00:33:53.250
assuming Attorney Crane does submit something
687
00:33:53.250 --> 00:33:56.670
on retroactivity, you please do respond.
688
00:33:56.670 --> 00:33:58.043
Yes, I will.
Okay.