WEBVTT

1
00:00:00.027 --> 00:00:05.027
<v ->SJC-13540, Commonwealth versus Carlos M. Rodriguez.</v>

2
00:00:07.740 --> 00:00:09.040
<v ->Okay, Attorney Cheifetz.</v>

3
00:00:19.860 --> 00:00:22.290
<v ->Good morning, your honors, may I please the court.</v>

4
00:00:22.290 --> 00:00:23.350
Abby Shy, that's here

5
00:00:24.307 --> 00:00:26.557
to represent the appellant, Carlos Rodriguez.

6
00:00:28.046 --> 00:00:29.820
So I'll get right to the heart of the problem

7
00:00:29.820 --> 00:00:32.163
with the Superior Court decision in this case.

8
00:00:33.360 --> 00:00:35.760
Looking at the circumstances of Mr. Rodriguez,

9
00:00:35.760 --> 00:00:37.830
he's now 70 years old.

10
00:00:37.830 --> 00:00:39.360
He's confined to a nursing home,

11
00:00:39.360 --> 00:00:41.490
which is a locked facility,

12
00:00:41.490 --> 00:00:43.830
with a shunt draining fluid from his brain.

13
00:00:43.830 --> 00:00:46.950
He has a history of severe balance problems in vertigo,

14
00:00:46.950 --> 00:00:48.360
and there's nothing in the record

15
00:00:48.360 --> 00:00:51.840
which suggests that he has a car or license

16
00:00:51.840 --> 00:00:55.290
or even access to Marlborough and Framingham.

17
00:00:55.290 --> 00:00:56.330
<v Judge>Can I ask you a question?</v>

18
00:00:56.330 --> 00:00:57.383
<v ->Which is 70 miles away.</v>

19
00:00:58.950 --> 00:01:01.860
<v ->As far as the medical testimony goes,</v>

20
00:01:01.860 --> 00:01:04.200
at least for the term of probation,

21
00:01:04.200 --> 00:01:05.940
is the record clear

22
00:01:05.940 --> 00:01:08.550
that he's going to stay and not get better?

23
00:01:08.550 --> 00:01:12.180
I mean, I think he has a dementia or something?

24
00:01:12.180 --> 00:01:14.550
See, he has something seemingly irreversible,

25
00:01:14.550 --> 00:01:17.580
but is the record clear that he's not going to be able

26
00:01:17.580 --> 00:01:21.243
to travel to those two towns during the period of probation?

27
00:01:22.080 --> 00:01:25.110
<v ->Okay, well, the record does establish</v>

28
00:01:25.110 --> 00:01:27.933
the history of medical problems that he has.

29
00:01:29.352 --> 00:01:30.660
And his hydrocephalus,

30
00:01:30.660 --> 00:01:34.500
he does not have any real cognitive issues

31
00:01:34.500 --> 00:01:38.790
except he had a record of potential Parkinson's symptoms.

32
00:01:38.790 --> 00:01:41.440
So it's possible there's some cognitive issues there.

33
00:01:43.556 --> 00:01:44.790
There's nothing in the record about him

34
00:01:44.790 --> 00:01:46.680
having a car or a license,

35
00:01:46.680 --> 00:01:48.000
so that would be outside the record.

36
00:01:48.000 --> 00:01:51.090
And he does reside at MissionCare at Holyoke

37
00:01:51.090 --> 00:01:53.850
based on his status as a Type 2 diabetic.

38
00:01:53.850 --> 00:01:57.210
So he's not allowed to leave of his own accord,

39
00:01:57.210 --> 00:02:00.240
he can't just walk out of the facility and drive somewhere.

40
00:02:00.240 --> 00:02:01.410
And especially in this case-

41
00:02:01.410 --> 00:02:03.413
<v ->Just trying to understand what that means.</v>

42
00:02:05.580 --> 00:02:08.190
Is he in one of these units where it's locked

43
00:02:08.190 --> 00:02:10.440
or does it just mean he can't leave by himself

44
00:02:10.440 --> 00:02:11.580
'cause he's not capable of leaving by himself?

45
00:02:11.580 --> 00:02:13.860
<v ->Right, well, I think it's twofold.</v>

46
00:02:13.860 --> 00:02:18.390
He is not in any kind of penal nursing home,

47
00:02:18.390 --> 00:02:21.360
but because for the safety of the residents,

48
00:02:21.360 --> 00:02:24.303
the floors are locked, they're keypad-coded,

49
00:02:25.802 --> 00:02:26.910
they can't get onto an elevator

50
00:02:26.910 --> 00:02:28.050
or get down to the stairwell

51
00:02:28.050 --> 00:02:29.820
unless they put in a keypad code in,

52
00:02:29.820 --> 00:02:31.950
and they can't walk out the front door

53
00:02:31.950 --> 00:02:34.170
without being buzzed by security.

54
00:02:34.170 --> 00:02:37.260
And that is for the security of all the residents,

55
00:02:37.260 --> 00:02:39.690
and most of the residents aren't not justice-involved.

56
00:02:39.690 --> 00:02:42.570
It's because they suffer from severe cognitive

57
00:02:42.570 --> 00:02:43.800
and medical issues.

58
00:02:43.800 --> 00:02:45.720
<v ->Yeah, that's where I'm confused,</v>

59
00:02:45.720 --> 00:02:49.860
but his diabetes is why he's in there?

60
00:02:49.860 --> 00:02:51.030
<v ->Yeah, that was why,</v>

61
00:02:51.030 --> 00:02:52.620
he has a lot of health issues,

62
00:02:52.620 --> 00:02:54.180
and being a Type 2 diabetic

63
00:02:54.180 --> 00:02:57.570
was how he was accepted to MissionCare.

64
00:02:57.570 --> 00:02:59.553
He also has high blood pressure-

65
00:03:00.540 --> 00:03:02.220
<v ->If he can operate a keypad,</v>

66
00:03:02.220 --> 00:03:04.440
so if he keys himself out, he can leave?

67
00:03:04.440 --> 00:03:07.030
<v ->Potentially, if he were to acquire the code</v>

68
00:03:08.751 --> 00:03:10.560
and somehow get through the front door of security

69
00:03:10.560 --> 00:03:12.510
and get buzzed out, he could potentially-

70
00:03:12.510 --> 00:03:13.530
<v ->Well, I guess the bottom line is,</v>

71
00:03:13.530 --> 00:03:15.580
is he allowed to leave on his own or not?

72
00:03:17.700 --> 00:03:19.260
<v ->I think if he had family member</v>

73
00:03:19.260 --> 00:03:22.560
that wanted to take him out, he'd be allowed to go.

74
00:03:22.560 --> 00:03:25.830
And I know that the nursing home does provide residents

75
00:03:25.830 --> 00:03:29.010
with opportunities to go on field trips.

76
00:03:29.010 --> 00:03:31.860
But all the residents are constantly under supervision.

77
00:03:31.860 --> 00:03:33.630
They just can't go out alone.

78
00:03:33.630 --> 00:03:34.830
They have to be with someone.

79
00:03:34.830 --> 00:03:37.410
<v ->Let me ask you a broader question.</v>

80
00:03:37.410 --> 00:03:39.570
Is there a legitimate government interest

81
00:03:39.570 --> 00:03:43.500
in enforcing the stay-away from a victim of a child rape

82
00:03:43.500 --> 00:03:46.650
who is traumatized from age three to seven?

83
00:03:46.650 --> 00:03:47.490
<v ->So I would say,</v>

84
00:03:47.490 --> 00:03:50.550
there is a legitimate government interest in enforcing,

85
00:03:50.550 --> 00:03:53.550
there's a stay-away from the victim and the victim's family.

86
00:03:53.550 --> 00:03:54.383
<v Judge>Right.</v>

87
00:03:54.383 --> 00:03:58.140
<v ->But that is separate from stay-away from an area,</v>

88
00:03:58.140 --> 00:03:59.910
from a geographic area.

89
00:03:59.910 --> 00:04:03.990
So in this case, there's no legitimate interest

90
00:04:03.990 --> 00:04:05.640
in enforcing a stay-away

91
00:04:05.640 --> 00:04:08.190
from the towns of Framingham and Marlborough.

92
00:04:08.190 --> 00:04:09.023
<v ->Let's break that down.</v>

93
00:04:09.023 --> 00:04:10.860
<v Attorney>Okay, sure.</v>
<v ->All right.</v>

94
00:04:10.860 --> 00:04:12.540
If we look at Feliz and Roderick,

95
00:04:12.540 --> 00:04:14.730
can we talk about governmental interests

96
00:04:14.730 --> 00:04:18.210
that have to be in play

97
00:04:18.210 --> 00:04:20.250
in order for there to be a reasonable search, right?

98
00:04:20.250 --> 00:04:21.083
<v Attorney>Right.</v>

99
00:04:22.650 --> 00:04:27.570
<v ->Do you concede that a victim's state of mind</v>

100
00:04:27.570 --> 00:04:29.010
or protecting a victim

101
00:04:29.010 --> 00:04:33.180
from having to relive this horror as she testified to,

102
00:04:33.180 --> 00:04:35.250
or spoke to at sentencing

103
00:04:35.250 --> 00:04:38.070
clearly affected the motion judge here?

104
00:04:38.070 --> 00:04:40.440
Is that a legitimate government interest?

105
00:04:40.440 --> 00:04:41.273
<v ->I would say</v>

106
00:04:41.273 --> 00:04:44.340
that these were legitimate factors at sentencing,

107
00:04:44.340 --> 00:04:47.580
but not a legitimate factor at the actual motion hearing,

108
00:04:47.580 --> 00:04:50.400
because it was incumbent upon the Commonwealth

109
00:04:50.400 --> 00:04:52.410
to actually present evidence.

110
00:04:52.410 --> 00:04:53.310
<v Judge>Why not?</v>

111
00:04:54.990 --> 00:04:55.823
<v ->Why would-</v>

112
00:04:55.823 --> 00:05:00.510
<v ->So we have someone who's raped by her grandfather</v>

113
00:05:00.510 --> 00:05:02.490
from age three to seven,

114
00:05:02.490 --> 00:05:04.237
who says, "I can't bear to stand

115
00:05:04.237 --> 00:05:06.507
"to see the guy at sentencing."

116
00:05:07.440 --> 00:05:11.051
Is there a good legitimate government interest in the state

117
00:05:11.051 --> 00:05:15.390
keeping that offender away from that victim?

118
00:05:15.390 --> 00:05:18.060
<v ->I would say, well, there is a legitimate interest</v>

119
00:05:18.060 --> 00:05:20.160
in that there is a valid stay-away.

120
00:05:20.160 --> 00:05:24.060
So that would keep the defendant away from the victim.

121
00:05:24.060 --> 00:05:25.950
If he were to encounter her,

122
00:05:25.950 --> 00:05:28.403
he would have to cross the street, but in terms-

123
00:05:28.403 --> 00:05:30.270
<v ->How else do you force to stay-away</v>

124
00:05:30.270 --> 00:05:32.040
other than the GPS?

125
00:05:32.040 --> 00:05:36.330
<v ->Okay, so the GPS in this case, as it is,</v>

126
00:05:36.330 --> 00:05:38.730
because there are no legitimate exclusion zones

127
00:05:38.730 --> 00:05:40.500
that were ordered at sentencing,

128
00:05:40.500 --> 00:05:42.810
the only way this GPS will function,

129
00:05:42.810 --> 00:05:44.880
and in Massachusetts, it's an alert-based system.

130
00:05:44.880 --> 00:05:48.750
So if he were to say, violate the no contact order

131
00:05:48.750 --> 00:05:50.340
and get too close to the victim,

132
00:05:50.340 --> 00:05:52.830
someone would have to report it to the authorities,

133
00:05:52.830 --> 00:05:55.500
and then the authorities would come looking for him,

134
00:05:55.500 --> 00:05:57.630
and then they could go back and look at his GPS

135
00:05:57.630 --> 00:05:59.257
and say, "Oh, were you in front of this store

136
00:05:59.257 --> 00:06:01.290
"where the victim was?"

137
00:06:01.290 --> 00:06:02.190
So in this case,

138
00:06:02.190 --> 00:06:07.190
a GPS will only serve potential post hoc investigative use

139
00:06:07.920 --> 00:06:08.820
by the authorities-

140
00:06:08.820 --> 00:06:10.380
<v Judge>What about deterrence?</v>

141
00:06:10.380 --> 00:06:15.120
<v ->It will serve a certain deterrent effect-</v>

142
00:06:15.120 --> 00:06:16.680
<v ->If he can't go to Framingham</v>

143
00:06:16.680 --> 00:06:17.910
or what was the other town, I'm sorry?

144
00:06:17.910 --> 00:06:18.743
<v ->In Marlborough.</v>

145
00:06:18.743 --> 00:06:19.576
<v ->In Marlborough.</v>
<v ->Yes.</v>

146
00:06:19.576 --> 00:06:22.110
<v ->Doesn't that deter him from going to the places</v>

147
00:06:22.110 --> 00:06:23.883
where she can be found?

148
00:06:25.440 --> 00:06:28.560
<v ->Well, certainly, the way the exclusion zone is now,</v>

149
00:06:28.560 --> 00:06:30.300
he's not allowed to go there,

150
00:06:30.300 --> 00:06:34.410
and the device will alert because it's been configured.

151
00:06:34.410 --> 00:06:37.530
But the issue of exclusion zones,

152
00:06:37.530 --> 00:06:38.520
it's a separate issue

153
00:06:38.520 --> 00:06:41.130
because there was no legitimate authority for the judge

154
00:06:41.130 --> 00:06:44.490
to have even established these exclusion zones

155
00:06:44.490 --> 00:06:45.960
after sentencing.

156
00:06:45.960 --> 00:06:47.700
Because in order to do that under Goodwin,

157
00:06:47.700 --> 00:06:52.110
there needs to be some kind of a material change

158
00:06:52.110 --> 00:06:53.460
in the defendant's circumstances,

159
00:06:53.460 --> 00:06:54.960
meaning a violation of probation-

160
00:06:54.960 --> 00:06:58.290
<v ->In Goodwin, at sentencing,</v>

161
00:06:58.290 --> 00:07:00.333
was there a stay-away or no contact?

162
00:07:02.370 --> 00:07:04.843
<v ->I don't specifically recall, but I would think-</v>

163
00:07:04.843 --> 00:07:06.760
<v ->I think the answer is no.</v>
<v ->There would be.</v>

164
00:07:06.760 --> 00:07:09.480
<v ->I think the answer is no in Goodwin, right?</v>

165
00:07:09.480 --> 00:07:10.890
<v ->I honestly, I don't remember</v>

166
00:07:10.890 --> 00:07:13.120
if there was a stay-away in Goodwin.

167
00:07:13.120 --> 00:07:14.670
<v ->Well, in Goodwin at sentencing,</v>

168
00:07:14.670 --> 00:07:16.200
there was no stay-away,

169
00:07:16.200 --> 00:07:21.200
but then conditions included a stay-away after sentencing.

170
00:07:24.029 --> 00:07:25.380
<v Judge>Post-sentencing, yeah.</v>

171
00:07:25.380 --> 00:07:28.470
<v ->Right, and then putting on a GPS and exclusion zone-</v>

172
00:07:28.470 --> 00:07:31.080
<v ->So then there was a third modification.</v>

173
00:07:31.080 --> 00:07:31.913
<v Attorney>Okay.</v>

174
00:07:31.913 --> 00:07:34.860
<v ->To supplement the stay away with an exclusion order.</v>

175
00:07:34.860 --> 00:07:37.410
<v Judge>Which implicates double jeopardy.</v>

176
00:07:37.410 --> 00:07:40.500
<v ->Yes, and it definitely implicates it here because-</v>

177
00:07:40.500 --> 00:07:42.507
<v ->Well, here though, at sentencing,</v>

178
00:07:42.507 --> 00:07:44.460
the judge said there's a stay-away,

179
00:07:44.460 --> 00:07:47.250
no contact from the victim.

180
00:07:47.250 --> 00:07:49.290
And then post sentencing,

181
00:07:49.290 --> 00:07:54.153
the judge set the terms of that stay-away, no contact.

182
00:07:56.190 --> 00:08:00.360
<v ->Well, at sentencing, there was a stay-away from the victim</v>

183
00:08:00.360 --> 00:08:01.193
and the victim's family.

184
00:08:01.193 --> 00:08:03.300
So that's a stay away from a person who is mobile,

185
00:08:03.300 --> 00:08:04.350
and that's different

186
00:08:04.350 --> 00:08:06.060
than a stay-away from a geographic area.

187
00:08:06.060 --> 00:08:09.900
So what happened at the hearing, after the hearing even,

188
00:08:09.900 --> 00:08:12.600
when the judge established the exclusion zones,

189
00:08:12.600 --> 00:08:14.150
the geographic exclusion zones,

190
00:08:15.447 --> 00:08:17.580
that was a modification of the sentence

191
00:08:17.580 --> 00:08:19.260
that he was not authorized to do

192
00:08:19.260 --> 00:08:21.480
because there was no violation of probation,

193
00:08:21.480 --> 00:08:24.180
and that was the double jeopardy violation.

194
00:08:24.180 --> 00:08:25.013
They were unlawful.

195
00:08:25.013 --> 00:08:27.690
<v ->How do we know if something's a,</v>

196
00:08:27.690 --> 00:08:31.980
what's the legal test of something that violates Goodwin

197
00:08:31.980 --> 00:08:34.650
and is a modification without a violation

198
00:08:34.650 --> 00:08:37.350
as opposed to something that's a clarification

199
00:08:37.350 --> 00:08:39.513
of the scope of the stay-away order?

200
00:08:40.472 --> 00:08:41.850
<v Attorney>Right.</v>
<v ->Right, we now know</v>

201
00:08:41.850 --> 00:08:46.503
the victim tends to be in Marlborough and Framingham.

202
00:08:47.790 --> 00:08:50.790
And so to affect the stay-away order,

203
00:08:50.790 --> 00:08:53.583
which is already part of the sentence,

204
00:08:56.509 --> 00:08:58.709
why would that be problematic under Goodwin?

205
00:08:59.940 --> 00:09:03.153
<v ->Under Goodwin, it's problematic because a judge doesn't,</v>

206
00:09:04.320 --> 00:09:05.610
I would argue in this case,

207
00:09:05.610 --> 00:09:07.500
putting in these exclusion zones,

208
00:09:07.500 --> 00:09:12.500
which are so punitive and really a severe increase

209
00:09:13.590 --> 00:09:16.020
in the change of the original conditions,

210
00:09:16.020 --> 00:09:19.230
that it's not a clarification, it's not a modification.

211
00:09:19.230 --> 00:09:22.450
It's not telling, you know, that the judge-

212
00:09:22.450 --> 00:09:24.897
<v ->Is it because it's punitive, is that what is it,</v>

213
00:09:24.897 --> 00:09:26.610
I'm trying to figure out the legal test-

214
00:09:26.610 --> 00:09:27.443
<v Attorney>Yeah, I think it's twofold-</v>

215
00:09:27.443 --> 00:09:30.000
<v ->As opposed to just in this particular case.</v>

216
00:09:30.000 --> 00:09:31.110
<v ->So I think it's twofold,</v>

217
00:09:31.110 --> 00:09:35.250
I think that there can't be any kind of a modification

218
00:09:35.250 --> 00:09:38.250
that would increase the scope of the original terms

219
00:09:38.250 --> 00:09:41.745
unless there has been a violation of probation.

220
00:09:41.745 --> 00:09:43.620
<v ->Wait, let me ask you, if the judge in this case,</v>

221
00:09:43.620 --> 00:09:45.780
there's a stay-away, no contact from the victim,

222
00:09:45.780 --> 00:09:48.596
we know that, it's an original sentence,

223
00:09:48.596 --> 00:09:49.860
and the person does this sentence,

224
00:09:49.860 --> 00:09:52.740
they come back under the Feliz motion.

225
00:09:52.740 --> 00:09:57.607
And suppose the judge asked the Commonwealth,

226
00:09:57.607 --> 00:10:00.000
"Well, where does the victim live?"

227
00:10:00.000 --> 00:10:03.780
And the Commonwealth said they live at 33 Main Street

228
00:10:03.780 --> 00:10:05.220
in Framingham.

229
00:10:05.220 --> 00:10:06.053
And the judge said,

230
00:10:06.053 --> 00:10:08.707
"Okay, pursuant to my stay-away, no contact,

231
00:10:08.707 --> 00:10:12.300
"you were excluded from 33 Main Street."

232
00:10:12.300 --> 00:10:14.703
Would that be a double jeopardy violation?

233
00:10:15.600 --> 00:10:19.440
<v ->Yeah, I would say, it would be a double jeopardy violation</v>

234
00:10:19.440 --> 00:10:21.480
because it is a material change

235
00:10:21.480 --> 00:10:23.190
from the original conditions.

236
00:10:23.190 --> 00:10:25.740
And it's adding to the sentence

237
00:10:25.740 --> 00:10:29.220
that something that was not there originally.

238
00:10:29.220 --> 00:10:33.570
In this case, it's easier because including two huge towns.

239
00:10:33.570 --> 00:10:35.310
And these aren't even towns where the victim lives,

240
00:10:35.310 --> 00:10:37.620
it's where she visits her family.

241
00:10:37.620 --> 00:10:40.140
Those are extremely punitive

242
00:10:40.140 --> 00:10:41.910
that the scope is so huge.

243
00:10:41.910 --> 00:10:43.950
It doesn't make sense and it doesn't comport

244
00:10:43.950 --> 00:10:45.930
with the precedent in Goodwin.

245
00:10:45.930 --> 00:10:49.590
<v ->Excuse me, can you please tell us what's in the record</v>

246
00:10:49.590 --> 00:10:52.320
regarding the burden on the defendant here

247
00:10:52.320 --> 00:10:54.480
of the exclusion from those towns?

248
00:10:54.480 --> 00:10:57.600
Your briefs asserts that it's the only place he's ever lived

249
00:10:57.600 --> 00:11:02.010
and I think that he has trouble

250
00:11:02.010 --> 00:11:03.480
accessing a bank account book?

251
00:11:03.480 --> 00:11:04.313
Could you tell us

252
00:11:04.313 --> 00:11:06.040
what exactly is in the record about that?

253
00:11:09.171 --> 00:11:10.200
<v ->There was no evidence in the record</v>

254
00:11:10.200 --> 00:11:12.930
about details about the bank account.

255
00:11:12.930 --> 00:11:16.020
This is just because I know Mr. Rodriguez,

256
00:11:16.020 --> 00:11:18.270
and that this is the only town he's lived in,

257
00:11:19.379 --> 00:11:23.283
and he spent his life in Massachusetts in that community.

258
00:11:24.569 --> 00:11:28.320
But you know what is in the record is that the victim,

259
00:11:28.320 --> 00:11:30.450
and I think going even back to the trial records,

260
00:11:30.450 --> 00:11:32.580
the victim was from Framingham,

261
00:11:32.580 --> 00:11:35.280
and her grandfather lived there and took care of her.

262
00:11:35.280 --> 00:11:38.280
And that was the community he resided in.

263
00:11:38.280 --> 00:11:40.830
So that would probably be the only thing in the record

264
00:11:40.830 --> 00:11:43.470
regarding those factors, thank you.

265
00:11:43.470 --> 00:11:46.983
<v ->Do you wanna address the sort of more general problems?</v>

266
00:11:47.850 --> 00:11:49.233
From what I gather,

267
00:11:50.340 --> 00:11:54.543
probation is keeping these on without a hearing,

268
00:11:57.434 --> 00:11:59.130
and it was put on your client without a hearing

269
00:11:59.130 --> 00:12:00.420
and remained on your client

270
00:12:00.420 --> 00:12:03.420
for a certain number of months without a hearing.

271
00:12:03.420 --> 00:12:07.800
Do you wanna address those and whether that's permissible

272
00:12:07.800 --> 00:12:11.250
and what the appropriate remedies are in that context?

273
00:12:11.250 --> 00:12:12.360
<v ->Sure.</v>

274
00:12:12.360 --> 00:12:14.940
And these were issues that were addressed

275
00:12:14.940 --> 00:12:17.716
in the Amicus Briefs.
<v Judge>Right.</v>

276
00:12:17.716 --> 00:12:20.370
<v ->And I'm definitely supportive of what was put forward.</v>

277
00:12:20.370 --> 00:12:22.252
But as it stands right now, it is-

278
00:12:22.252 --> 00:12:24.180
<v ->And not only you're impacted by it, right?</v>

279
00:12:24.180 --> 00:12:26.490
Your client, it remained on him

280
00:12:26.490 --> 00:12:29.163
without a hearing for how long?

281
00:12:30.720 --> 00:12:33.240
<v ->It was approximately 33 days</v>

282
00:12:33.240 --> 00:12:36.030
from the time he got released November 18th, 2022

283
00:12:36.030 --> 00:12:37.170
to the time of the hearing,

284
00:12:37.170 --> 00:12:40.470
which was December 21st of 2022.

285
00:12:40.470 --> 00:12:44.580
So he went about five weeks

286
00:12:44.580 --> 00:12:46.480
before the hearing could be scheduled.

287
00:12:49.829 --> 00:12:50.662
And at the hearing,

288
00:12:50.662 --> 00:12:52.620
the judge did indicate it would be a quick decision,

289
00:12:52.620 --> 00:12:54.810
but it actually, I think, was an additional five weeks.

290
00:12:54.810 --> 00:12:57.330
So we had about 72 days where he had

291
00:12:57.330 --> 00:12:59.940
this presumptively illegal unconstitutional device,

292
00:12:59.940 --> 00:13:02.190
which is searching him on

293
00:13:02.190 --> 00:13:05.550
until there was a final judicial decision

294
00:13:05.550 --> 00:13:07.170
at the end of January.

295
00:13:07.170 --> 00:13:09.990
<v ->Did we address this problem in either Feliz</v>

296
00:13:09.990 --> 00:13:14.520
or the other case about sort of the time lag problem?

297
00:13:14.520 --> 00:13:17.520
<v ->No, actually that's what wasn't addressed,</v>

298
00:13:17.520 --> 00:13:19.860
and that's why courts don't have the guidance

299
00:13:19.860 --> 00:13:20.880
that they require,

300
00:13:20.880 --> 00:13:22.740
things are happening in differently

301
00:13:22.740 --> 00:13:24.240
in different courts right now.

302
00:13:25.826 --> 00:13:27.780
And our argument is that this burden

303
00:13:27.780 --> 00:13:29.550
should not be on a defendant.

304
00:13:29.550 --> 00:13:31.650
Mr. Rodriguez is really lucky

305
00:13:31.650 --> 00:13:34.140
because I happened to represent him in his direct appeal

306
00:13:34.140 --> 00:13:35.700
and his medical parole petition

307
00:13:35.700 --> 00:13:37.230
and his parole hearings.

308
00:13:37.230 --> 00:13:39.390
And I knew, years in advance,

309
00:13:39.390 --> 00:13:41.190
that when the time came for release,

310
00:13:41.190 --> 00:13:43.200
we would have to deal with his GPS,

311
00:13:43.200 --> 00:13:46.440
but most of the defendants that CPCS is concerned with,

312
00:13:46.440 --> 00:13:47.790
and the reality is that these are people

313
00:13:47.790 --> 00:13:49.380
who are unrepresented.

314
00:13:49.380 --> 00:13:50.640
They don't understand Feliz,

315
00:13:50.640 --> 00:13:52.327
they don't know about Feliz,

316
00:13:52.327 --> 00:13:53.880
they would have to go out

317
00:13:53.880 --> 00:13:57.060
and establish their indigency in court,

318
00:13:57.060 --> 00:13:58.500
get a signed counsel,

319
00:13:58.500 --> 00:14:01.290
and then have counsel file a motion to vacate.

320
00:14:01.290 --> 00:14:05.760
So I would say that Mr. Rodriguez is the exception,

321
00:14:05.760 --> 00:14:08.250
the defendants who know that they need to go out right now

322
00:14:08.250 --> 00:14:10.440
and shoulder this burden are the exception.

323
00:14:10.440 --> 00:14:14.040
But the vast majority of defendants don't know that,

324
00:14:14.040 --> 00:14:16.650
and it would be much easier and more just

325
00:14:16.650 --> 00:14:20.220
to just have the Commonwealth bring these people into court-

326
00:14:20.220 --> 00:14:22.080
<v ->Because it's probation?</v>

327
00:14:22.080 --> 00:14:24.060
<v ->So it depends on if they're still incarcerated,</v>

328
00:14:24.060 --> 00:14:26.940
it's easy for the Commonwealth to just schedule a hearing,

329
00:14:26.940 --> 00:14:30.720
and that's where the CPCS and the Commonwealth agree.

330
00:14:30.720 --> 00:14:32.673
But once the probationer is out there,

331
00:14:33.510 --> 00:14:35.660
it should be the burden of the Commonwealth

332
00:14:36.589 --> 00:14:38.703
to move to impose GPS,

333
00:14:40.174 --> 00:14:41.550
and then to bring the person into court,

334
00:14:41.550 --> 00:14:42.960
they get a signed counsel,

335
00:14:42.960 --> 00:14:45.540
and the judge conducts the balancing of interest-

336
00:14:45.540 --> 00:14:48.150
<v ->Because we assume this is hopefully a finite problem</v>

337
00:14:48.150 --> 00:14:51.393
because it really deals with the population of people.

338
00:14:51.393 --> 00:14:52.800
<v Attorney>That is.</v>
<v ->Right?</v>

339
00:14:52.800 --> 00:14:55.230
Because anybody who's incarcerated

340
00:14:55.230 --> 00:14:59.280
before they're hooked up by probation,

341
00:14:59.280 --> 00:15:01.740
they should have notice and a right to be heard.

342
00:15:01.740 --> 00:15:04.500
And of course, going forward after Feliz,

343
00:15:04.500 --> 00:15:05.823
it's a sentencing issue.

344
00:15:06.990 --> 00:15:08.010
<v ->That's correct.</v>

345
00:15:08.010 --> 00:15:10.800
And I think there are about 600 inmates right now

346
00:15:10.800 --> 00:15:13.170
that were sentenced before Feliz,

347
00:15:13.170 --> 00:15:16.530
and there are under 350 probationers

348
00:15:16.530 --> 00:15:18.240
that were sentenced before Feliz

349
00:15:18.240 --> 00:15:20.040
that would require that hearing.

350
00:15:20.040 --> 00:15:22.530
So it is finite, and definitely the Commonwealth

351
00:15:22.530 --> 00:15:27.120
has the resources and information to be able to do this,

352
00:15:27.120 --> 00:15:29.760
versus these defendants who just don't know,

353
00:15:29.760 --> 00:15:31.140
and it's really quite unfair

354
00:15:31.140 --> 00:15:32.730
that they would have to shoulder the burden

355
00:15:32.730 --> 00:15:35.043
of a presumptively unconstitutional search.

356
00:15:37.690 --> 00:15:40.260
If there are no more questions, I would rest on my brief.

357
00:15:40.260 --> 00:15:42.263
<v ->Okay, thank you very much.</v>
<v ->Thank you.</v>

358
00:15:44.520 --> 00:15:46.380
<v ->Okay, Attorney Langham.</v>

359
00:15:46.380 --> 00:15:48.300
<v ->Good morning, Madam Chief Justice.</v>

360
00:15:48.300 --> 00:15:49.590
Good morning, may it please the court.

361
00:15:49.590 --> 00:15:51.900
Jessica Langham, assistant District attorney for Middlesex

362
00:15:51.900 --> 00:15:54.510
appearing on behalf of the Commonwealth.

363
00:15:54.510 --> 00:15:56.340
Justice Pierce correctly ruled

364
00:15:56.340 --> 00:15:57.660
that the Commonwealth's interest

365
00:15:57.660 --> 00:16:00.840
in imposing GPS monitoring on this particular defendant

366
00:16:00.840 --> 00:16:03.240
outweighed the intrusion on the defendant's privacy

367
00:16:03.240 --> 00:16:04.410
for three reasons.

368
00:16:04.410 --> 00:16:06.270
First, the Commonwealth has an interest

369
00:16:06.270 --> 00:16:09.300
in protecting this victim and in protecting the public

370
00:16:09.300 --> 00:16:10.590
by strengthening enforcement

371
00:16:10.590 --> 00:16:12.390
of the stay-away no contact order,

372
00:16:12.390 --> 00:16:16.110
which Justice Pierce had ordered its sentencing in 2018.

373
00:16:16.110 --> 00:16:19.950
Second, GPS monitoring supports the Commonwealth's interest

374
00:16:19.950 --> 00:16:21.780
in enforcing the exclusion zone,

375
00:16:21.780 --> 00:16:23.940
which Justice Pierce added in his order

376
00:16:23.940 --> 00:16:26.070
denying the defendant's release motion.

377
00:16:26.070 --> 00:16:27.030
And third,

378
00:16:27.030 --> 00:16:30.000
GPS monitoring supports the Commonwealth's interest

379
00:16:30.000 --> 00:16:32.850
in deterring and investigating future sex offenses,

380
00:16:32.850 --> 00:16:35.400
where this defendant has been classified

381
00:16:35.400 --> 00:16:37.470
as a Level 2 sex offender by SORB,

382
00:16:37.470 --> 00:16:40.680
which means that he poses some degree

383
00:16:40.680 --> 00:16:42.180
or some risk of re-offending

384
00:16:42.180 --> 00:16:44.880
and a moderate degree of danger to the public.

385
00:16:44.880 --> 00:16:48.150
<v ->Feliz calls for the individualized assessment, correct?</v>

386
00:16:48.150 --> 00:16:49.200
<v Langham>Yes, your Honor.</v>

387
00:16:49.200 --> 00:16:52.593
<v ->And I get your arguments about the governmental interest,</v>

388
00:16:53.730 --> 00:16:57.690
especially with respect to the victim's peace of mind.

389
00:16:57.690 --> 00:16:58.920
<v Langham>Yes, your Honor.</v>

390
00:16:58.920 --> 00:17:03.360
<v ->But what I don't get is, as we individualize this,</v>

391
00:17:03.360 --> 00:17:06.000
how this makes sense

392
00:17:06.000 --> 00:17:10.833
for someone who is essentially bound to a medical facility-

393
00:17:11.730 --> 00:17:13.620
<v ->How having a GPS-</v>

394
00:17:13.620 --> 00:17:15.180
<v ->Because of the person's medical condition</v>

395
00:17:15.180 --> 00:17:19.380
and how basically we're going to be putting a GPS monitor

396
00:17:19.380 --> 00:17:22.830
on someone who's confined to a medical facility

397
00:17:22.830 --> 00:17:24.720
because of his health issues.

398
00:17:24.720 --> 00:17:25.740
<v ->Yes, your Honor, and I think-</v>

399
00:17:25.740 --> 00:17:27.090
<v ->How does that make any sense?</v>

400
00:17:27.090 --> 00:17:31.080
<v ->Well, as the bench has just elicited,</v>

401
00:17:31.080 --> 00:17:34.740
I mean, health is a fluctuating factor.

402
00:17:34.740 --> 00:17:37.290
It's not a static factor, it's a dynamic factor.

403
00:17:37.290 --> 00:17:39.000
And while this individual is there,

404
00:17:39.000 --> 00:17:42.630
has substantial medical needs,

405
00:17:42.630 --> 00:17:45.300
was originally placed there because of his diabetes,

406
00:17:45.300 --> 00:17:46.290
that could change.

407
00:17:46.290 --> 00:17:49.140
And as counsel just represented to the court,

408
00:17:49.140 --> 00:17:51.090
he's not prohibited from leaving there,

409
00:17:51.090 --> 00:17:54.720
even if it might be challenging for him to leave by himself.

410
00:17:54.720 --> 00:17:55.800
<v ->What is your understanding</v>

411
00:17:55.800 --> 00:17:57.510
of the restrictions in place for him?

412
00:17:57.510 --> 00:17:59.610
'Cause I can't, 'cause you know,

413
00:17:59.610 --> 00:18:01.590
he's not in one of these memory units

414
00:18:01.590 --> 00:18:03.750
where you're not allowed out,

415
00:18:03.750 --> 00:18:07.260
but he's, I don't understand exactly,

416
00:18:07.260 --> 00:18:11.073
what's the record show about his ability to leave.

417
00:18:12.092 --> 00:18:16.560
If he calls up a buddy to ask him out, he can leave,

418
00:18:16.560 --> 00:18:17.430
is that right?

419
00:18:17.430 --> 00:18:18.730
<v ->Yes, he can, your Honor.</v>

420
00:18:20.007 --> 00:18:21.540
The evidence, and just to point out,

421
00:18:21.540 --> 00:18:22.950
there was no testimonial evidence.

422
00:18:22.950 --> 00:18:25.440
This Justice Pierce held a non evidentiary hearing

423
00:18:25.440 --> 00:18:28.920
at which the court considered documentations and affidavit

424
00:18:28.920 --> 00:18:30.210
submitted by defense counsel

425
00:18:30.210 --> 00:18:32.400
and the representations of the Commonwealth

426
00:18:32.400 --> 00:18:35.490
with respect to the SORB classification.

427
00:18:35.490 --> 00:18:36.323
So there's,

428
00:18:36.323 --> 00:18:38.190
and what Justice Pierce clarified is exactly a question,

429
00:18:38.190 --> 00:18:40.230
your honor, Justice Kafker just asked, which is,

430
00:18:40.230 --> 00:18:42.570
is there any legal prohibition on him leaving?

431
00:18:42.570 --> 00:18:44.070
No, there's not.

432
00:18:44.070 --> 00:18:45.900
So he could leave,

433
00:18:45.900 --> 00:18:48.750
there is an affidavit from an individual at MissionCare

434
00:18:48.750 --> 00:18:49.740
that was part of, I believe,

435
00:18:49.740 --> 00:18:52.050
defense counsel's supplemental affidavit,

436
00:18:52.050 --> 00:18:53.430
that's in Appendix 2,

437
00:18:53.430 --> 00:18:55.470
indicating as she just represented,

438
00:18:55.470 --> 00:18:57.630
as my sister represented to you,

439
00:18:57.630 --> 00:19:01.710
that he on a floor that requires a keypad

440
00:19:01.710 --> 00:19:03.180
to get into the elevator.

441
00:19:03.180 --> 00:19:04.417
And when Justice Pierce asked,

442
00:19:04.417 --> 00:19:06.217
"Well, if he got the keypad code number

443
00:19:06.217 --> 00:19:07.690
"and potentially got out

444
00:19:09.165 --> 00:19:10.710
"and he could make it past the front desk,"

445
00:19:10.710 --> 00:19:13.020
and then my sister represented

446
00:19:13.020 --> 00:19:16.110
that presumably someone in the institution

447
00:19:16.110 --> 00:19:17.100
might call the police,

448
00:19:17.100 --> 00:19:19.650
but there's no legal requirement keeping him there.

449
00:19:21.100 --> 00:19:22.800
<v ->He can have a visitor come</v>

450
00:19:22.800 --> 00:19:25.230
who doesn't understand any of this

451
00:19:25.230 --> 00:19:28.383
and take him out driving, right?

452
00:19:29.460 --> 00:19:30.960
That's not prohibited.

453
00:19:30.960 --> 00:19:32.310
I mean, obviously the visitor

454
00:19:32.310 --> 00:19:34.590
has to check into this facility and everything else,

455
00:19:34.590 --> 00:19:36.780
but somebody can come visit him

456
00:19:36.780 --> 00:19:38.490
and take him for a drive, right?

457
00:19:38.490 --> 00:19:39.955
<v Langham>Yes, your Honor.</v>

458
00:19:39.955 --> 00:19:43.443
<v ->How can he be arrested if he's not detained?</v>

459
00:19:44.280 --> 00:19:45.113
<v ->I beg your pardon, your Honor.</v>

460
00:19:45.113 --> 00:19:46.350
<v ->You said that the,</v>

461
00:19:46.350 --> 00:19:48.540
someone at the front desk would call the police,

462
00:19:48.540 --> 00:19:50.220
<v ->Someone at the front desk could call the police.</v>

463
00:19:50.220 --> 00:19:51.053
<v ->For what?</v>

464
00:19:52.140 --> 00:19:53.910
<v ->This is what, when Justice Pierce</v>

465
00:19:53.910 --> 00:19:57.880
was asking my sister at the Feliz hearing

466
00:19:59.667 --> 00:20:01.080
whether or not there was any legal prohibition

467
00:20:01.080 --> 00:20:05.340
on him leaving to alert probation if he's leaving.

468
00:20:05.340 --> 00:20:08.220
So he's not required under the terms of his probation

469
00:20:08.220 --> 00:20:09.960
to stay at this facility.

470
00:20:09.960 --> 00:20:13.020
But if he's moving that,

471
00:20:13.020 --> 00:20:15.240
I think that that would set off an alert.

472
00:20:15.240 --> 00:20:17.760
And so probation would be informed,

473
00:20:17.760 --> 00:20:19.740
so that that probation would be informed, that's what,

474
00:20:19.740 --> 00:20:22.490
not that he would be arrested for leaving the facility.

475
00:20:24.330 --> 00:20:26.373
<v ->Are there exclusion zones too broad?</v>

476
00:20:27.300 --> 00:20:28.500
<v ->Thank you, your Honor.</v>

477
00:20:30.990 --> 00:20:35.040
At the time that Justice Pierce entered this order,

478
00:20:35.040 --> 00:20:37.020
certainly section 47 was the law,

479
00:20:37.020 --> 00:20:38.760
excuse me, sentenced the defendant section,

480
00:20:38.760 --> 00:20:39.780
it was section 47.

481
00:20:39.780 --> 00:20:41.580
And Justice Pierce could be confident

482
00:20:41.580 --> 00:20:44.070
that this defendant would be on GPS monitoring,

483
00:20:44.070 --> 00:20:46.410
and as the court's familiar with the serious crime

484
00:20:46.410 --> 00:20:49.713
that this defendant against a child.

485
00:20:51.333 --> 00:20:56.160
And that was part of sentence that the judge crafted,

486
00:20:56.160 --> 00:20:58.020
not including the exclusion zones.

487
00:20:58.020 --> 00:20:59.880
And so then when the law changes,

488
00:20:59.880 --> 00:21:02.280
and then the defendant is a SORB Level 2,

489
00:21:02.280 --> 00:21:04.290
Justice Pierce added the exclusion zones

490
00:21:04.290 --> 00:21:07.410
to give effect to what his intent was at the time

491
00:21:07.410 --> 00:21:09.300
that he crafted this sentence.

492
00:21:09.300 --> 00:21:11.700
<v ->Can you respond to the contention in the reply brief</v>

493
00:21:11.700 --> 00:21:14.220
that Justice Pierce essentially treated this

494
00:21:14.220 --> 00:21:17.700
as a re-sentencing hearing following Feliz?

495
00:21:17.700 --> 00:21:18.533
<v ->Yes, your Honor,</v>

496
00:21:18.533 --> 00:21:20.760
and I would argue that it's not a re-sentencing,

497
00:21:20.760 --> 00:21:22.650
there was no violation of probation,

498
00:21:22.650 --> 00:21:24.810
but there was a material change in circumstances,

499
00:21:24.810 --> 00:21:27.630
and that's the defendant's designation by SORB,

500
00:21:27.630 --> 00:21:30.870
who had preliminarily designated him as a Level 3 offender,

501
00:21:30.870 --> 00:21:34.020
and then after a hearing in September of 2022,

502
00:21:34.020 --> 00:21:35.790
showed that he was a Level 2 offender.

503
00:21:35.790 --> 00:21:38.760
So Level 2 means that as the court is aware,

504
00:21:38.760 --> 00:21:41.400
information about the defendant, his crimes,

505
00:21:41.400 --> 00:21:44.070
his photograph, in fact, two photographs of him,

506
00:21:44.070 --> 00:21:46.080
and his address are available to the public,

507
00:21:46.080 --> 00:21:47.970
because that's the level of danger that he possesses.

508
00:21:47.970 --> 00:21:52.560
<v ->So if you didn't have the SORB Level 2,</v>

509
00:21:52.560 --> 00:21:53.850
if this is a quite different case

510
00:21:53.850 --> 00:21:56.460
and you didn't have the SORB Level 2 classification,

511
00:21:56.460 --> 00:21:58.080
would you agree it was improper

512
00:21:58.080 --> 00:22:00.600
because there was no material change in circumstances

513
00:22:00.600 --> 00:22:02.160
to impose an exclusion zone

514
00:22:02.160 --> 00:22:04.290
where previously there was no exclusion zone?

515
00:22:04.290 --> 00:22:06.840
<v ->Well, your Honor, the SORB Level 2 wasn't the only,</v>

516
00:22:06.840 --> 00:22:08.190
it was the only change,

517
00:22:08.190 --> 00:22:12.180
and it was the issuance of Feliz is also a change.

518
00:22:12.180 --> 00:22:15.100
So the law has changed, and Justice Pierce-

519
00:22:15.100 --> 00:22:18.720
<v ->Well, that decision was more protective of defendants</v>

520
00:22:18.720 --> 00:22:20.400
and said that defendants

521
00:22:20.400 --> 00:22:23.130
couldn't just be willy-nilly given GPS (chuckling)

522
00:22:23.130 --> 00:22:25.020
and needed to have an individualized,

523
00:22:25.020 --> 00:22:26.250
an individualized assessment, right?

524
00:22:26.250 --> 00:22:28.230
So it's a little strange to say that that decision

525
00:22:28.230 --> 00:22:29.940
is a change in circumstances

526
00:22:29.940 --> 00:22:32.040
that warrants imposing not only GPS

527
00:22:32.040 --> 00:22:34.620
but also exclusion zones on top of GPS.

528
00:22:34.620 --> 00:22:36.150
<v ->Well, right, your Honor.</v>

529
00:22:36.150 --> 00:22:41.150
But material change in circumstances is the defendant's,

530
00:22:42.223 --> 00:22:45.810
so taking out the SORB portion, and I would point to,

531
00:22:45.810 --> 00:22:48.180
and your honor, Chief Justice,

532
00:22:48.180 --> 00:22:49.680
I wanna get back to your question,

533
00:22:49.680 --> 00:22:51.270
but just the case of Morales,

534
00:22:51.270 --> 00:22:52.830
which is cited in the Commonwealth Brief,

535
00:22:52.830 --> 00:22:54.720
and that's a case that sort of a addresses

536
00:22:54.720 --> 00:22:56.550
what your question was, your Honor,

537
00:22:56.550 --> 00:22:57.930
is that in that case,

538
00:22:57.930 --> 00:23:00.630
and that was Justice Katzman wrote that opinion

539
00:23:00.630 --> 00:23:02.550
where the defendant was SDP,

540
00:23:02.550 --> 00:23:05.970
and that was held to be a material change in circumstances.

541
00:23:05.970 --> 00:23:07.920
And when the original sentencing judge

542
00:23:07.920 --> 00:23:10.470
had imposed the sentence, obviously that was unknown.

543
00:23:10.470 --> 00:23:12.663
So that was held to be a proper,

544
00:23:14.280 --> 00:23:16.230
a new condition was imposed

545
00:23:16.230 --> 00:23:18.300
that this individual not reside where there were minors,

546
00:23:18.300 --> 00:23:20.460
and that was held to be proper in light of this material.

547
00:23:20.460 --> 00:23:22.080
<v ->So is your position that there,</v>

548
00:23:22.080 --> 00:23:24.600
for all of these Feliz defendants,

549
00:23:24.600 --> 00:23:25.830
we'll call them the Feliz defendants,

550
00:23:25.830 --> 00:23:27.390
the people affected by Feliz,

551
00:23:27.390 --> 00:23:28.410
for all of those defendants,

552
00:23:28.410 --> 00:23:29.790
there is a material change in circumstances.

553
00:23:29.790 --> 00:23:31.920
So judges, when they're re resentencing these defendants

554
00:23:31.920 --> 00:23:34.380
can give new explosion zones to all of them.

555
00:23:34.380 --> 00:23:36.660
If the judge thinks that, you know,

556
00:23:36.660 --> 00:23:38.760
to vindicate certain commonwealth interests

557
00:23:38.760 --> 00:23:41.160
that are legitimate, that an exclusion zone would be good.

558
00:23:41.160 --> 00:23:42.837
<v ->Well, your Honor, it cannot be,</v>

559
00:23:42.837 --> 00:23:44.460
and this is what I tried to put out in the brief.

560
00:23:44.460 --> 00:23:46.830
In reading Goodwin in light of Feliz and Roderick,

561
00:23:46.830 --> 00:23:49.140
it cannot be that a superior court judge

562
00:23:49.140 --> 00:23:51.600
who presided over the trial imposed a sentence,

563
00:23:51.600 --> 00:23:53.520
heard the victim impact sentences,

564
00:23:53.520 --> 00:23:55.650
the person who's most familiar with this case

565
00:23:55.650 --> 00:23:57.240
crafted a sentence,

566
00:23:57.240 --> 00:24:01.020
and then is trying to retain the integrity of the sentence

567
00:24:01.020 --> 00:24:02.640
that that judge imposed at the time

568
00:24:02.640 --> 00:24:05.340
that the judge can't make appropriate adjustments

569
00:24:05.340 --> 00:24:07.167
in order to effectuate that sentence.

570
00:24:07.167 --> 00:24:08.880
<v ->But there's a 60-day limit.</v>

571
00:24:08.880 --> 00:24:11.280
<v ->Well, that's, your Honor, with respect to a Rule 29.</v>

572
00:24:11.280 --> 00:24:12.810
And that's, we're not talking,

573
00:24:12.810 --> 00:24:14.670
and that's not a rule.

574
00:24:14.670 --> 00:24:16.740
<v ->What basis for your principle</v>

575
00:24:16.740 --> 00:24:18.930
that a judge who, a while ago,

576
00:24:18.930 --> 00:24:21.180
heard the trial and did the sentencing,

577
00:24:21.180 --> 00:24:22.320
when he's having a hearing

578
00:24:22.320 --> 00:24:23.850
to do an individualized assessment

579
00:24:23.850 --> 00:24:26.880
about whether GPS was even appropriate for this guy

580
00:24:26.880 --> 00:24:29.070
can impose additional conditions?

581
00:24:29.070 --> 00:24:31.380
<v ->Well, to the extent the court concludes</v>

582
00:24:31.380 --> 00:24:32.910
that there's no material change,

583
00:24:32.910 --> 00:24:35.663
I would look to the inherent power of the Superior Court.

584
00:24:36.540 --> 00:24:38.280
This is a different circumstance.

585
00:24:38.280 --> 00:24:41.490
So we're imposing GPS on an individual,

586
00:24:41.490 --> 00:24:43.560
even if there were no exclusion zones,

587
00:24:43.560 --> 00:24:45.210
here, this is a defendant

588
00:24:45.210 --> 00:24:47.320
who is in a different position

589
00:24:48.211 --> 00:24:49.740
that the defendant's in Feliz and Roderick.

590
00:24:49.740 --> 00:24:54.740
And in Feliz you had no geographic victim.

591
00:24:54.930 --> 00:24:56.130
You had an individual

592
00:24:56.130 --> 00:24:57.960
who possessed and distributed child pornography,

593
00:24:57.960 --> 00:24:59.730
and he was a Level 1 sex offender.

594
00:24:59.730 --> 00:25:02.490
And Roderick, you have an individual who raped someone,

595
00:25:02.490 --> 00:25:04.620
the victim had been living in a tent in Connecticut,

596
00:25:04.620 --> 00:25:06.300
or no one was quite sure where she was.

597
00:25:06.300 --> 00:25:07.830
He was a Level 2 sex offender.

598
00:25:07.830 --> 00:25:09.390
But the Commonwealth couldn't show

599
00:25:09.390 --> 00:25:11.280
at the time of the Feliz hearing

600
00:25:11.280 --> 00:25:12.420
where this individual was.

601
00:25:12.420 --> 00:25:16.200
Here, we have an individual who's a Level 2 sex offender,

602
00:25:16.200 --> 00:25:19.350
who is the probation officer,

603
00:25:19.350 --> 00:25:21.480
and as Justice Pierce found at the hearing,

604
00:25:21.480 --> 00:25:24.270
is it often in Framingham and Marlboro.

605
00:25:24.270 --> 00:25:26.670
And so in order to effectuate that,

606
00:25:26.670 --> 00:25:29.790
that's why Justice Pierce added the exclusionary zones,

607
00:25:29.790 --> 00:25:33.033
which to your point, your Honor, are broad.

608
00:25:33.870 --> 00:25:36.300
But I would submit to the court for the other reasons

609
00:25:36.300 --> 00:25:39.840
that even if somehow the addition of the exclusion zones

610
00:25:39.840 --> 00:25:43.920
was too broad, and though under Goodwin,

611
00:25:43.920 --> 00:25:47.190
the modifications and in contrast to what my sister said,

612
00:25:47.190 --> 00:25:49.380
the court can make modifications

613
00:25:49.380 --> 00:25:51.690
so long as they are not quote so punitive

614
00:25:51.690 --> 00:25:54.090
as to significantly increase the severity

615
00:25:54.090 --> 00:25:55.790
of the original probationary term.

616
00:25:56.640 --> 00:25:59.070
Where the defendant was already ordered to stay away

617
00:25:59.070 --> 00:26:02.670
and have no contact with the victim or her family.

618
00:26:02.670 --> 00:26:04.410
And that's where the family lives.

619
00:26:04.410 --> 00:26:05.430
And the defendant knows that

620
00:26:05.430 --> 00:26:07.860
because he's part of the family,

621
00:26:07.860 --> 00:26:11.340
it really cannot be said that these two towns,

622
00:26:11.340 --> 00:26:16.340
though it is a broad geographic area, was not so punitive

623
00:26:16.560 --> 00:26:18.270
as to significantly increase the severity

624
00:26:18.270 --> 00:26:19.620
of the original conditions.

625
00:26:19.620 --> 00:26:22.260
But even without, but just to jump around a little,

626
00:26:22.260 --> 00:26:24.960
even without the exclusionary zones,

627
00:26:24.960 --> 00:26:26.370
I would submit that in contrast

628
00:26:26.370 --> 00:26:28.680
to the cases of Feliz and Roderick,

629
00:26:28.680 --> 00:26:32.130
that it might have been that Justice Pierce believed

630
00:26:32.130 --> 00:26:33.510
that in light of Roderick,

631
00:26:33.510 --> 00:26:35.100
that exclusionary zone was needed

632
00:26:35.100 --> 00:26:37.140
in order to justify the GPS.

633
00:26:37.140 --> 00:26:39.810
But I would submit that it wasn't here.

634
00:26:39.810 --> 00:26:42.480
<v ->Well, if the exclusionary zone is needed</v>

635
00:26:42.480 --> 00:26:45.480
to justify the GPS under Feliz,

636
00:26:45.480 --> 00:26:47.670
doesn't that suggest that the exclusionary zone

637
00:26:47.670 --> 00:26:49.500
has significant meaning?

638
00:26:49.500 --> 00:26:50.610
<v ->It does, your Honor,</v>

639
00:26:50.610 --> 00:26:53.040
but looking at this in the totality of the circumstances,

640
00:26:53.040 --> 00:26:57.330
so that's just with respect to the Commonwealth's interest

641
00:26:57.330 --> 00:26:59.940
in strengthening enforcement of the stay-away, no contact,

642
00:26:59.940 --> 00:27:02.010
the exclusion zone just that one piece.

643
00:27:02.010 --> 00:27:04.560
And then as the court is recognized in Roderick

644
00:27:04.560 --> 00:27:06.750
with respect to deterrence in the investigation,

645
00:27:06.750 --> 00:27:09.960
SORB Level 2, where this is an individual

646
00:27:09.960 --> 00:27:12.600
who the defendant presented a lot of information

647
00:27:12.600 --> 00:27:13.433
at the hearing,

648
00:27:13.433 --> 00:27:14.790
and Justice Pierce included it all

649
00:27:14.790 --> 00:27:16.890
in the order denying the Feliz motion

650
00:27:16.890 --> 00:27:19.680
of this low risk of recidivism.

651
00:27:19.680 --> 00:27:21.180
But that's not what SORB said.

652
00:27:21.180 --> 00:27:22.350
And SORB held a hearing

653
00:27:22.350 --> 00:27:23.700
and there was clear and convincing evidence

654
00:27:23.700 --> 00:27:24.870
that he's a Level 2.

655
00:27:24.870 --> 00:27:26.460
So that fills in that piece.

656
00:27:26.460 --> 00:27:28.410
So, but it's only with respect to the one piece

657
00:27:28.410 --> 00:27:31.470
when this court is considering all of the different factors

658
00:27:31.470 --> 00:27:33.060
under the totality test.

659
00:27:33.060 --> 00:27:35.520
<v ->Can you turn to the question about what should happen</v>

660
00:27:35.520 --> 00:27:37.710
for all the Feliz defendants,

661
00:27:37.710 --> 00:27:40.110
and could you particularly address the question,

662
00:27:40.950 --> 00:27:45.180
I read Feliz as saying the government cannot affix a GPS

663
00:27:45.180 --> 00:27:47.190
without doing an individualized determination

664
00:27:47.190 --> 00:27:48.826
with respect to that defendant.

665
00:27:48.826 --> 00:27:49.659
<v Langham>Yes, sure.</v>

666
00:27:49.659 --> 00:27:50.492
<v ->So why doesn't that just set the rule?</v>

667
00:27:50.492 --> 00:27:52.260
It we don't need some fancy sort of set

668
00:27:52.260 --> 00:27:53.790
of like who files a motion?

669
00:27:53.790 --> 00:27:55.507
You know, the parties are fighting over like,

670
00:27:55.507 --> 00:27:56.407
"We should have to file a motion,

671
00:27:56.407 --> 00:27:57.390
"we should have to file motion."

672
00:27:57.390 --> 00:27:58.413
Isn't it just clear from Feliz,

673
00:27:58.413 --> 00:28:01.590
like you have to have a hearing before you can add the GPS?

674
00:28:01.590 --> 00:28:02.423
<v ->Yes, your Honor.</v>

675
00:28:02.423 --> 00:28:05.370
And so it's presumptively unconstitutional.

676
00:28:05.370 --> 00:28:09.997
However, for those less than, I think, as Amicus said,

677
00:28:09.997 --> 00:28:12.877
"There were 356 individuals

678
00:28:12.877 --> 00:28:16.687
"who are currently on a section 47 GPS,

679
00:28:16.687 --> 00:28:18.007
"and they don't know how many of them

680
00:28:18.007 --> 00:28:19.320
"have already had the Feliz hearing."

681
00:28:19.320 --> 00:28:22.200
I spoke with legal counsel for the probation service,

682
00:28:22.200 --> 00:28:23.790
they couldn't come up with that number.

683
00:28:23.790 --> 00:28:25.440
But removal of the GPS

684
00:28:25.440 --> 00:28:27.960
without having this individualized determination

685
00:28:27.960 --> 00:28:29.970
would create a public safety issue.

686
00:28:29.970 --> 00:28:32.910
And these to respectfully remind the court,

687
00:28:32.910 --> 00:28:34.080
these are not individual,

688
00:28:34.080 --> 00:28:36.780
these are individuals who have been convicted of a crime.

689
00:28:36.780 --> 00:28:37.613
And so-

690
00:28:37.613 --> 00:28:40.110
<v ->But isn't that problem the Commonwealth's,</v>

691
00:28:40.110 --> 00:28:42.390
I get it, it is a public safety problem,

692
00:28:42.390 --> 00:28:44.220
but doesn't that mean you have to go out

693
00:28:44.220 --> 00:28:46.410
and do these hearings immediately?

694
00:28:46.410 --> 00:28:47.940
<v ->Well, and yes, your Honor.</v>

695
00:28:47.940 --> 00:28:52.140
<v ->And the probation can't just sort of let this go on</v>

696
00:28:52.140 --> 00:28:53.580
without those hearings, right?

697
00:28:53.580 --> 00:28:57.240
I mean, I get it's a practical problem and a real one.

698
00:28:57.240 --> 00:29:00.450
But isn't, your solution and your brief

699
00:29:00.450 --> 00:29:02.700
is they get to it when they get to it,

700
00:29:02.700 --> 00:29:04.740
but isn't that inconsistent

701
00:29:04.740 --> 00:29:07.650
with their constitutional rights? (chuckling)

702
00:29:07.650 --> 00:29:10.440
<v ->Well, your Honor, it would seem that for these,</v>

703
00:29:10.440 --> 00:29:11.880
this discreet number of individuals,

704
00:29:11.880 --> 00:29:16.320
perhaps probation could come up

705
00:29:16.320 --> 00:29:18.523
with a list of all of these individuals we're currently on-

706
00:29:18.523 --> 00:29:20.490
<v ->I mean, do we have to order</v>

707
00:29:20.490 --> 00:29:23.373
emergency hearings on these things or,

708
00:29:24.660 --> 00:29:28.863
I just dunno how it's consistent with what we said.

709
00:29:30.000 --> 00:29:31.923
I mean, Feliz is issued when?

710
00:29:33.093 --> 00:29:34.260
<v ->In 2019, your Honor.</v>

711
00:29:34.260 --> 00:29:38.370
<v ->And we're in 2024.</v>
<v Langham>Yes.</v>

712
00:29:38.370 --> 00:29:43.055
<v ->And there's still people without these hearings.</v>

713
00:29:43.055 --> 00:29:44.520
<v ->There are unknown number of people who were-</v>

714
00:29:44.520 --> 00:29:46.500
<v ->That's not good, right?</v>

715
00:29:46.500 --> 00:29:49.740
<v ->Agreed, and so for those defendants</v>

716
00:29:49.740 --> 00:29:51.510
who are still incarcerated,

717
00:29:51.510 --> 00:29:53.940
I mean, it's the defendant who knows his date,

718
00:29:53.940 --> 00:29:55.860
certainly they should have a hearing before.

719
00:29:55.860 --> 00:29:57.060
<v ->As we said in Roderick,</v>

720
00:29:57.060 --> 00:30:02.060
really the analog here is a search warrant, right?

721
00:30:02.156 --> 00:30:04.020
'Cause it's a Feliz hearing is really a search warrant.

722
00:30:04.020 --> 00:30:05.206
<v Langham>Yes, your Honor.</v>

723
00:30:05.206 --> 00:30:06.180
<v ->And you don't get to search the house</v>

724
00:30:06.180 --> 00:30:07.590
and then get a warrant afterwards.

725
00:30:07.590 --> 00:30:09.660
<v ->That's right, so it's justifying the warrantless search.</v>

726
00:30:09.660 --> 00:30:10.493
<v Judge>Right.</v>

727
00:30:11.520 --> 00:30:13.050
<v ->So certainly,</v>

728
00:30:13.050 --> 00:30:15.690
the hearings need to take place as quickly as possible.

729
00:30:15.690 --> 00:30:18.240
Which of the broader commonwealth,

730
00:30:18.240 --> 00:30:22.140
which entity is in the best position to do that,

731
00:30:22.140 --> 00:30:25.620
the probation service knows which individuals

732
00:30:25.620 --> 00:30:28.353
are operating under a GPS under section 47.

733
00:30:29.676 --> 00:30:32.310
<v ->So again, what does the last two paragraphs</v>

734
00:30:32.310 --> 00:30:34.293
of our decision say about this?

735
00:30:36.840 --> 00:30:41.130
Given we have a constitutional violation, in some cases,

736
00:30:41.130 --> 00:30:43.653
that's four years old or five years old.

737
00:30:46.350 --> 00:30:48.210
<v ->And that's correct, your Honor, I don't know.</v>

738
00:30:48.210 --> 00:30:50.880
So not only do we not know the number of people

739
00:30:50.880 --> 00:30:54.000
who have a section 47 GPS post Feliz,

740
00:30:54.000 --> 00:30:56.820
we also don't know how long they've had it.

741
00:30:56.820 --> 00:31:00.090
But this information can be ascertained,

742
00:31:00.090 --> 00:31:02.400
can be determined by the probation department.

743
00:31:02.400 --> 00:31:04.830
And once the information is determined,

744
00:31:04.830 --> 00:31:08.370
the Commonwealth certainly wants to have these hearings.

745
00:31:08.370 --> 00:31:10.770
In fact, it might be that the Commonwealth

746
00:31:10.770 --> 00:31:13.590
does not have an interest in retaining the GPS

747
00:31:13.590 --> 00:31:14.423
with respect to everyone.

748
00:31:14.423 --> 00:31:16.770
But for those individuals that the Commonwealth does,

749
00:31:16.770 --> 00:31:19.050
certainly a hearing needs to be scheduled expeditiously.

750
00:31:19.050 --> 00:31:20.970
And it could be, as it was in this case,

751
00:31:20.970 --> 00:31:22.473
a non-evidentiary hearing.

752
00:31:24.810 --> 00:31:26.310
And if there are no further questions,

753
00:31:26.310 --> 00:31:27.560
I would rest on my brief.