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SJC 1, 3, 5, 4, 4.
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Commonwealth versus a juvenile.
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(papers rustling)
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Okay. Attorney Schneiderman.
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Good morning Your Honors
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Backwards. (chuckling)
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May it please the court, I am Joseph Schneiderman.
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I represent the youth with me as Andrew Di Mota,
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his trial counsel in the Lawrence District Court.
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Your Honor, since common law courts do not punish people
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whose conduct stems from mental illness,
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the judge's decision here to refuse
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to recognize criminal responsibility as a complete defense
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to probation violations in the face
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of an uncontroverted record,
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that the youth was suffering from mental illness
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when he had the gun, creates multiple untenable results.
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First lack of CR,
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or excuse me, lack of criminal responsibility
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constitutes a complete defense.
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Mr. Schneiderman you're a little loud, just.
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I apologize.
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Thank you, Your Honor. (chuckling)
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How do deal with Eldrid?
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Your Honor, the record in Eldrid was underdeveloped
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as compared to this case.
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Here we have a pure documentary paper trail
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that the commonwealth, or excuse me,
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the probation opted not to controvert.
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Eldrid came up on a reported question.
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The question of whether or not
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addiction was itself a mental illness
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that qualified was not as developed here.
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This court has recognized
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that schizophrenia is a mental illness
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that triggers a CR analysis.
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And in any event, we have an expert consensus
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that my client was suffering from mental illness.
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And we have
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an expressed conclusion
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by Dr. Bemidjian and at record 99 and 100,
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that at the time my client could not appreciate
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the wrongfulness of carrying the gun.
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I take your point about the factual differences
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in the separate, analogous context,
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but I think the question really goes more towards
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the legal question and the standard to be applied.
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I think the court
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in Eldrid reserve the question
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whether in some cases with a stronger factual basis,
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a person in Ms. Eldrids position could potentially,
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or at least the court reserve the possibility
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that they could potentially prove
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or overcome defeat the element
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of willfulness on the basis of similar evidence.
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So why, could you address why the court
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should not take a similar approach here?
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And hold that this all boils down to willfulness.
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And depending on the factual record,
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the person may or may not,
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the commonwealth may or may not show willfulness,
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Your Honor, I think that's precisely it actually.
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That criminal responsibility would go to willfulness here.
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And courts that have not recognized the defense
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either don't engage in that analysis
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or overlook how willfulness is an underpinning
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of a lot of the due process.
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Can I interrupt? Just-
Of course.
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My question was specifically,
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I wasn't entirely clear about the premises,
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not to import the affirmative defense
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of criminal responsibility,
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which is how you're framing your argument,
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but rather simply to consider willfulness.
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Is there a problem in your view
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with simply considering willfulness
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as we have long understood it in the probation context,
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as opposed to considering the concept
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of the criminal responsibility defense
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as developed in the context of criminal prosecutions?
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Forgive me, Your Honor. I'm not sure I follow,
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I understand Your Honor
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is asking about willfulness and the defense.
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In some of the cases that are cited in your brief
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from other jurisdictions, the courts there have said,
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we are not going to import the entire affirmative defense
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of criminal responsibility into probation
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violation hearings.
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We are, however, going to allow courts to consider evidence
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regarding mental illness vis-a-vis the element
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of willfulness that is a necessary element
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for proving a probation violation.
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Do you have concerns about the court so holding here?
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I'm very interested to hear
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if you think that there are aspects
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of the affirmative defense of criminal responsibility
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as it is understood in the context of criminal prosecutions
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that are distinct from
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and important to be included in
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probation revocation hearings in your view.
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Probation violation hearings in your view,
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as distinct from just focusing on willfulness.
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I think actually there are
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implications for that, Your Honor.
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I thank Your Honor for clarifying.
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I think what is key about
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the criminal responsibility defense
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is it is always recognized that we do not punish.
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And there is something fundamentally unfair about punishing
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criminal defendants who just have no capacity to realize
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or cogitate that their conduct was wrong.
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That applies per force I think, Your Honor,
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to the context of probation.
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Where the purpose of probation is
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to get the probationer back on their feet,
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and if the probationer has done something
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that is not within their control
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or that is due to circumstances beyond their control,
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then not recognizing the defense becomes highly problematic.
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And it would, as Your Honor is suggesting,
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if I follow Your Honor's question, transcend woefulness.
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Justice (unintelligible)
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I think I saw you asking me something.
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(judges chuckling)
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Justice Gaziano, I think you have a question.
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Whoever.
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I'm happy to answer anyone's question.
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Alright. If you could take us one at a time.
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So on that point that you just made,
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we've distinguished in the willfulness about,
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I'm a homeless person, whose unable to charge the GPS
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because they have no outlet, right?
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That's the classic example of willfulness.
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But as you said, someone that's it's outta their control.
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What about the person who's really drunk
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and they wander into an exclusionary zone on a GPS?
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Does that person violate probation?
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Your Honor that would take us,
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if the person there tried to raise criminal responsibility,
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that would take us into the ambit of Dunphy
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saying that voluntary intoxication,
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particularly where someone knows that their intoxication
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would adversely affect them-
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Do you want us to import Dunphy
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and all that complexity into a violation
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of probation proceeding?
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Yes, I do, Your Honor.
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I think that the aspects
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and the layers of CR are very important
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to import into probation violation proceedings.
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What about someone who just has diminished capacity?
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Take the NGI out of it.
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You want us to go down that road as well?
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Your Honor-
And so said basically,
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I'm on probation for drunk driving
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am I too drunk to be on probation?
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Certainly not, Your Honor.
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I don't think someone could be too drunk
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to be on probation.
Okay so,
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I can't stop myself from getting into the car.
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I can't stop myself from going through exclusionary zones.
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I can't stop my compulsion for all sorts of bad behavior.
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That's the road you're taking us down, right?
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Not quite, Your Honor. I think Your Honor's avenue,
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if I'm following Your Honor's road analogy correctly here
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would be the probationer's violation there.
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The question may come up, but the commonwealth
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or probation could rebut it by demonstrating
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that this was a voluntary choice to consume alcohol
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or consume another intoxicate.
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That sort of nuance should go into it
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and would bear very much on willfulness and the procedure.
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I think to more to Your Honor's question,
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the threshold burden to establish criminal responsibility is
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and always has been on the defendant.
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The defendant must establish that this is my organic
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as this court recognized in Dunphy
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my organic problem that makes me unable
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to appreciate the implications-
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It's the government's burden
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and normal current responsibility.
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You know, aided sometimes with the presumption of sanity,
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although we've criticized that.
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But once it's raised, it's the government's,
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the government's burden to prove sanity, right?
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That's exactly correct, Your Honor.
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That would hold true in a violation of appropriation?
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That's exactly right Your Honor,
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this court should absolutely import-
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Sounds like a trial to me,
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not a violation of appropriation proceeding.
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Your Honor.
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VOPs may be, or I'm sorry, let me stop using abbreviations.
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No, I get, I get what you mean.
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Probation violation proceedings may be more flexible,
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but flexibility cannot and should not import-
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Most of the time-
A dilution.
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Most of the country says NGI is not available on a VOP.
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Some states say it is,
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and then some say it's a mitigating circumstance.
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I think that's just what Doer was indicating as far
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as willfulness and or sentencing right.
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And and you want us to embrace the minority view?
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Your Honor, I think that the prevailing view
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or the trend has been to recognize this as a defense
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and I think to recognize it as a defense would comport
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with this court's evolving understanding, not just
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to the aims of probation,
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but of the reality of mental illness.
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So I think even though it's a pro, this is a new view,
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prior courts have not considered how the US Supreme Court,
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the due process implications in probation
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violation proceedings.
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So I think this court wouldn't be wandering
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into unchartered waters.
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Why isn't the fact that you consider it in,
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in the second stage whether to violate the probation,
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whether to put them back isn't that gonna deal
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with the due process considerations
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and also essentially take care of all of this?
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If you're considering it
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in how you respond to the violation,
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isn't that as a practical matter gonna address this problem?
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You know, and it does in this case.
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I mean in this case it's harder.
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The judge decides still to put him
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into the house of correction, but that he didn't have to.
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And that may be wrong, that part of it.
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But isn't that where this should be fought out?
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Not in the, whether he violated probation,
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but rather what's the appropriate response given
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that he was schizophrenic?
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Your Honor, it's not enough to consider it
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just as a dispositional option.
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Why not?
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Because at the question at the first phase
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of a probation violation proceeding
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is a retrospective factual one
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of whether a violation has occurred
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and criminal responsibility is a complete defense if someone
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is not criminally responsible.
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No crime has occurred by extension.
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No violation of probation would've occurred
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to the extent the appeals court suggested
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otherwise in Ogaro
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the appeals court was making a distinction
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without a difference based on dicta.
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But what is the difference to Justice Kafka
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and Justice Dewar's point between what you are arguing,
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which is there is no violation of probation
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versus a consideration in terms
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of what to do given the violation.
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As a practical matter?
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As a practical matter, Your Honor, if there's no,
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if it were proven, there would be no violation of probation.
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If it is a violation though of probation,
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it would trigger a host of consequences
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for a probationer. So.
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But there's a public safety consequence to it.
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I mean this this case, it's, no one was harmed exactly.
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But your analysis would apply
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if he goes out and rapes somebody, right.
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So he's schizophrenic and he goes out and rapes somebody,
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he still shouldn't be violated
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under your view right.
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Because under your view,
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there's no second part of this analysis.
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He didn't violate probation.
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So he should still be out on probation,
270
00:11:55.410 --> 00:11:57.900
Your Honor he should still be out on probation,
271
00:11:57.900 --> 00:12:01.890
but judges are not powerless to do something.
272
00:12:01.890 --> 00:12:03.420
The judge could make a referral
273
00:12:03.420 --> 00:12:07.650
to the court clinic if the probationer is truly a danger,
274
00:12:07.650 --> 00:12:09.930
then the court clinic could opt
275
00:12:09.930 --> 00:12:13.230
to invoke the procedures under chapter 1 23
276
00:12:13.230 --> 00:12:14.610
to seek civil commitment.
277
00:12:14.610 --> 00:12:17.880
So it would not be a get out of jail free card,
278
00:12:17.880 --> 00:12:19.380
for lack of a better word here.
279
00:12:19.380 --> 00:12:23.940
It would be the probationer, if shown to be a danger
280
00:12:23.940 --> 00:12:25.380
because of their mental illness,
281
00:12:25.380 --> 00:12:29.070
has to be taken down a separate road to be dealt with
282
00:12:29.070 --> 00:12:32.160
rather than in the sort of box
283
00:12:32.160 --> 00:12:34.110
of a probation violation proceeding.
284
00:12:34.110 --> 00:12:38.040
Would you remind me whether you're arguing
285
00:12:38.040 --> 00:12:43.040
that the defendant was schizophrenic,
286
00:12:44.610 --> 00:12:47.250
and did not understand the wrongfulness
287
00:12:47.250 --> 00:12:49.560
of carrying a firearm, did he?
288
00:12:49.560 --> 00:12:51.390
Is that the argument?
289
00:12:51.390 --> 00:12:52.980
That's precisely it, Your Honor.
290
00:12:52.980 --> 00:12:55.440
That he was schizophrenic.
291
00:12:55.440 --> 00:12:57.840
His schizophrenia had a sudden onset
292
00:12:57.840 --> 00:13:00.210
and that he did not appreciate the wrongfulness
293
00:13:00.210 --> 00:13:02.040
of carrying the firearm when he did it
294
00:13:02.040 --> 00:13:03.690
because he was operating under a delusion.
295
00:13:03.690 --> 00:13:05.760
I thought it was, I thought he was
296
00:13:05.760 --> 00:13:07.680
carrying a firearm to protect himself
297
00:13:07.680 --> 00:13:09.090
but it wasn't that he didn't know
298
00:13:09.090 --> 00:13:10.890
he wasn't supposed to have one.
299
00:13:10.890 --> 00:13:12.810
Your Honor, he was carrying the firearm
300
00:13:12.810 --> 00:13:14.760
because of his delusion.
301
00:13:14.760 --> 00:13:18.360
Dr. Bemidjian's report at record 93
302
00:13:18.360 --> 00:13:22.050
to 100 details what he was enduring at the time.
303
00:13:22.050 --> 00:13:25.080
He believed that there were people out to get him
304
00:13:25.080 --> 00:13:28.230
and to harm his daughter, and he obtained the firearm.
305
00:13:28.230 --> 00:13:32.340
In retrospect, he realized he could not possess the firearm
306
00:13:32.340 --> 00:13:33.750
but at the time,
307
00:13:33.750 --> 00:13:35.550
and that's Dr. Bemidjian's conclusion
308
00:13:35.550 --> 00:13:38.190
at record 99 to 100
309
00:13:38.190 --> 00:13:40.740
that he could not appreciate wrongfully carrying it
310
00:13:40.740 --> 00:13:43.500
because he was operating under a delusion.
311
00:13:43.500 --> 00:13:46.200
Just to be sure we're clear on this,
312
00:13:46.200 --> 00:13:48.270
I understand your answer to mean that you're,
313
00:13:48.270 --> 00:13:50.700
if the criminal responsibility defense did exist,
314
00:13:50.700 --> 00:13:53.490
you'd be proceeding solely under the inability
315
00:13:53.490 --> 00:13:54.840
to appreciate wrongfulness of conduct.
316
00:13:54.840 --> 00:13:56.940
And you are conceding that on the record
317
00:13:56.940 --> 00:13:59.730
and with the evaluations that we have in this record,
318
00:13:59.730 --> 00:14:02.250
you are not proceeding under the inability
319
00:14:02.250 --> 00:14:04.830
to conform to the law.
320
00:14:04.830 --> 00:14:05.880
That's correct, Your Honor. Yes.
321
00:14:05.880 --> 00:14:08.160
But isn't that the willfulness prong?
322
00:14:08.160 --> 00:14:11.051
Yes, it is Your Honor. The inability to appreciate to-
323
00:14:11.051 --> 00:14:12.540
(speaking over each other indistinctly)
324
00:14:12.540 --> 00:14:14.460
Another construct that Justice Duha
325
00:14:14.460 --> 00:14:16.950
pointed out the first time.
326
00:14:16.950 --> 00:14:19.713
Unless you have the second prong of the test,
327
00:14:20.550 --> 00:14:22.890
it's going to be willful. It's intentional.
328
00:14:22.890 --> 00:14:24.090
That's correct Your Honor.
329
00:14:24.090 --> 00:14:26.070
That's why you don't want it, 'cause you'll lose?
330
00:14:26.070 --> 00:14:27.240
I beg your pardon.
331
00:14:27.240 --> 00:14:28.740
That's, that's bad for you, right?
332
00:14:28.740 --> 00:14:30.990
Because you want to go into,
333
00:14:30.990 --> 00:14:32.400
you want to go into either prong
334
00:14:32.400 --> 00:14:34.590
as opposed to the latter prong right.
335
00:14:34.590 --> 00:14:35.823
Of the McCool test.
336
00:14:37.080 --> 00:14:39.150
On this record, Your Honor, it's the first prong
337
00:14:39.150 --> 00:14:40.650
because
338
00:14:40.650 --> 00:14:44.100
Dr Bemidjian's conclusion is that it fit the first prong.
339
00:14:44.100 --> 00:14:48.510
In future cases it may very well go to both.
340
00:14:48.510 --> 00:14:50.640
I think though as Your Honor and I-
341
00:14:50.640 --> 00:14:53.013
Both in this is only really the second prong.
342
00:14:54.000 --> 00:14:55.350
I'm not sure I follow that Your Honor.
343
00:14:55.350 --> 00:14:57.000
It's the volitional part of it.
344
00:15:00.510 --> 00:15:03.540
Your Honor, to suggest that it's just goes
345
00:15:03.540 --> 00:15:06.660
to volition though, would be to eradicate
346
00:15:06.660 --> 00:15:08.490
any sort of consideration though
347
00:15:08.490 --> 00:15:12.270
of the circumstances and the probationers.
348
00:15:12.270 --> 00:15:13.247
No, I can't charge my GPS
349
00:15:13.247 --> 00:15:15.450
'cause I don't have an outlet.
350
00:15:15.450 --> 00:15:16.860
Right, that's willfulness.
351
00:15:16.860 --> 00:15:19.593
It's the intentionality of the violation.
352
00:15:24.720 --> 00:15:26.880
That's correct Your Honor but,
353
00:15:26.880 --> 00:15:30.030
it still would not account for,
354
00:15:30.030 --> 00:15:31.740
if I follow Your Honor's question,
355
00:15:31.740 --> 00:15:33.240
it would not account for-
356
00:15:33.240 --> 00:15:34.800
No, I guess what I'm just trying to say
357
00:15:34.800 --> 00:15:37.750
is that if we break it down
358
00:15:38.997 --> 00:15:41.640
and just focus on the willfulness part,
359
00:15:41.640 --> 00:15:44.640
it really bifurcates the NGI
360
00:15:44.640 --> 00:15:46.950
or the criminal responsibility test.
361
00:15:46.950 --> 00:15:48.510
And your position is
362
00:15:48.510 --> 00:15:50.790
we should look at criminal responsibility
363
00:15:50.790 --> 00:15:53.520
and say there's no crime at all. Correct?
364
00:15:53.520 --> 00:15:54.900
Yes. That is Your Honor.
365
00:15:54.900 --> 00:15:57.180
I'm sorry, I did not mean to get into a dispute with you.
366
00:15:57.180 --> 00:15:58.013
No, no.
367
00:15:59.108 --> 00:16:00.570
And then that's the same thing
368
00:16:00.570 --> 00:16:02.760
as saying there's self-defense, so there's no crime.
369
00:16:02.760 --> 00:16:03.810
Exactly, Your Honor.
370
00:16:03.810 --> 00:16:05.142
Alright, I understand.
371
00:16:05.142 --> 00:16:05.975
Attorney Schneiderman,
372
00:16:05.975 --> 00:16:07.560
I did have one final question.
373
00:16:07.560 --> 00:16:09.410
Thank you, chief, for the indulgence.
374
00:16:10.440 --> 00:16:14.523
This entire process that you are describing,
375
00:16:15.570 --> 00:16:18.510
we've said over and over that it's post dispositional.
376
00:16:18.510 --> 00:16:21.270
You don't get all the same constitutional protections
377
00:16:21.270 --> 00:16:23.340
as you would predispositional.
378
00:16:23.340 --> 00:16:25.758
But how does this fit in the,
379
00:16:25.758 --> 00:16:30.180
in the Commonwealth's overall concerned with the,
380
00:16:30.180 --> 00:16:33.060
the efficient resolution of probation?
381
00:16:33.060 --> 00:16:36.090
I'm obviously, I'm from the, the community courts
382
00:16:36.090 --> 00:16:39.390
and I'm very protective of the fact that the vast majority
383
00:16:39.390 --> 00:16:41.340
of people that come through those doors
384
00:16:41.340 --> 00:16:43.257
are going to get some measure of probation
385
00:16:43.257 --> 00:16:45.600
and the resolution of their cases.
386
00:16:45.600 --> 00:16:50.130
We all know the realities that people have undiagnosed or,
387
00:16:50.130 --> 00:16:53.700
some underlying mental health conditions.
388
00:16:53.700 --> 00:16:57.270
How are we going to actually efficiently
389
00:16:57.270 --> 00:17:01.560
and effectively resolve probation violation matters
390
00:17:01.560 --> 00:17:04.950
if we go down the path that you're talking about?
391
00:17:04.950 --> 00:17:07.830
And I mean, as a practical matter.
392
00:17:07.830 --> 00:17:09.420
Your Honor as a practical matter,
393
00:17:09.420 --> 00:17:12.690
this assessment I think would fit the standards
394
00:17:12.690 --> 00:17:15.870
of good cause, which is in the district court probation
395
00:17:15.870 --> 00:17:18.180
violation rules the juvenile court probation
396
00:17:18.180 --> 00:17:19.620
violation rules.
397
00:17:19.620 --> 00:17:21.450
And it couldn't be something that was sort
398
00:17:21.450 --> 00:17:23.520
of left hanging in the ether.
399
00:17:23.520 --> 00:17:25.890
Defense counsel should be diligent, particularly
400
00:17:25.890 --> 00:17:29.160
where defense counsel bears the initial burden.
401
00:17:29.160 --> 00:17:31.530
So to the extent that there is a concern about timing,
402
00:17:31.530 --> 00:17:34.650
actually this goes to what I was trying to answer before,
403
00:17:34.650 --> 00:17:37.830
which is flexibility does not connote dilution here.
404
00:17:37.830 --> 00:17:42.210
Flexibility if the issue is appropriately raised,
405
00:17:42.210 --> 00:17:43.380
then it would be something
406
00:17:43.380 --> 00:17:46.230
that would justify additional timing
407
00:17:46.230 --> 00:17:48.000
and it should not function as a dilution,
408
00:17:48.000 --> 00:17:51.450
particularly where the alternative is untenable,
409
00:17:51.450 --> 00:17:54.123
which is potential punishment for status.
410
00:17:55.140 --> 00:17:56.310
Unless Your Honors have further questions,
411
00:17:56.310 --> 00:17:57.330
I thank you for your time.
412
00:17:57.330 --> 00:17:58.983
Okay. Thank you very much.
413
00:18:02.640 --> 00:18:05.523
Okay, Attorney Coney Jang.
414
00:18:06.780 --> 00:18:08.280
May it please the court,
415
00:18:08.280 --> 00:18:10.620
Kristin Jang for the Commonwealth.
416
00:18:10.620 --> 00:18:12.660
Based on this courts precedent
417
00:18:12.660 --> 00:18:16.020
the reason decisions of other jurisdictions,
418
00:18:16.020 --> 00:18:17.760
a probationer may not assert
419
00:18:17.760 --> 00:18:19.950
a criminal responsibility defense
420
00:18:19.950 --> 00:18:22.290
to a violation of probation.
421
00:18:22.290 --> 00:18:25.560
Rather evidence of the probationer's mental state
422
00:18:25.560 --> 00:18:27.090
when they committed the violation
423
00:18:27.090 --> 00:18:29.760
is relevant to the disposition of the case.
424
00:18:29.760 --> 00:18:33.750
Well, I'm going to start with what I left off with.
425
00:18:33.750 --> 00:18:35.730
Because you say that,
426
00:18:35.730 --> 00:18:39.720
but there are these downstream really, really important
427
00:18:39.720 --> 00:18:42.600
and negative implications to probationers.
428
00:18:42.600 --> 00:18:45.630
So let me start with the first domino.
429
00:18:45.630 --> 00:18:48.960
So whenever you're in a violation session,
430
00:18:48.960 --> 00:18:51.060
the court has to make a determination
431
00:18:51.060 --> 00:18:54.960
that there was a willful violation of an order of probation.
432
00:18:54.960 --> 00:18:56.550
A condition of probation.
433
00:18:56.550 --> 00:18:59.520
So why wouldn't it make more sense for this
434
00:18:59.520 --> 00:19:00.960
to be the determination
435
00:19:00.960 --> 00:19:04.530
during the adjudicatory phase versus the sentencing phase?
436
00:19:04.530 --> 00:19:07.350
And I say that not as a matter of concept
437
00:19:07.350 --> 00:19:10.001
because you know what the commonwealth does when they go,
438
00:19:10.001 --> 00:19:14.070
when folks come back with requests for bail, they point
439
00:19:14.070 --> 00:19:16.290
to all the violations of the probation.
440
00:19:16.290 --> 00:19:18.700
They point to the fact that people didn't come back
441
00:19:18.700 --> 00:19:22.050
for things as reasons for why they were asking
442
00:19:22.050 --> 00:19:23.850
for higher monetary bail.
443
00:19:23.850 --> 00:19:27.332
So it's not just something conceptual about doing it
444
00:19:27.332 --> 00:19:30.520
during the dispositional phase versus doing it from the
445
00:19:30.520 --> 00:19:32.160
adjudicatory phase, because
446
00:19:32.160 --> 00:19:36.540
that's captured in the carry when the VOP hits.
447
00:19:36.540 --> 00:19:38.130
And the commonwealth concedes that.
448
00:19:38.130 --> 00:19:40.470
These do have very real implications.
449
00:19:40.470 --> 00:19:44.010
But at the same time in these situations,
450
00:19:44.010 --> 00:19:46.230
it's a real red flag to the court
451
00:19:46.230 --> 00:19:48.480
that probation is not working anymore.
452
00:19:48.480 --> 00:19:51.518
If there was an affirmative violation,
453
00:19:51.518 --> 00:19:55.590
there was an act, an affirmative act taken
454
00:19:55.590 --> 00:19:57.330
as a violation of probation.
455
00:19:57.330 --> 00:19:59.820
That is a huge flag to the court
456
00:19:59.820 --> 00:20:00.653
that maybe this is-
457
00:20:00.653 --> 00:20:02.190
An affirmative willful act.
458
00:20:02.190 --> 00:20:03.240
Yes.
Right.
459
00:20:03.240 --> 00:20:08.040
But if it bears on the issue of willfulness,
460
00:20:08.040 --> 00:20:10.530
why shouldn't it be considered
461
00:20:10.530 --> 00:20:14.760
as part of the adjudicatory phase?
462
00:20:14.760 --> 00:20:18.150
Well, I can address that head on.
463
00:20:18.150 --> 00:20:20.550
So I would say under Henry
464
00:20:20.550 --> 00:20:22.950
and Canadian, if I'm pronouncing that correctly.
465
00:20:24.450 --> 00:20:25.980
Yes this court has held
466
00:20:25.980 --> 00:20:28.260
that there must be a willful violation.
467
00:20:28.260 --> 00:20:30.810
However, both of those situations
468
00:20:30.810 --> 00:20:34.980
involved a administrative technical violation.
469
00:20:34.980 --> 00:20:37.230
And in both of those cases,
470
00:20:37.230 --> 00:20:39.450
the probationer did not do something,
471
00:20:39.450 --> 00:20:42.360
was unable to fulfill their conditions of probations
472
00:20:42.360 --> 00:20:44.730
by failure to do something.
473
00:20:44.730 --> 00:20:47.820
Failure to pay a fee that they couldn't afford to pay.
474
00:20:47.820 --> 00:20:51.390
Failure to care or have this GPS machine charged
475
00:20:51.390 --> 00:20:53.490
because they didn't have a reliable outlet.
476
00:20:53.490 --> 00:20:56.280
In this case, we're dealing with probationers
477
00:20:56.280 --> 00:20:59.040
who took an affirmative act.
478
00:20:59.040 --> 00:21:02.523
But when we look at the self-defense cases, right?
479
00:21:04.020 --> 00:21:05.490
So, well, it's not a crime
480
00:21:05.490 --> 00:21:07.590
'cause you have the right to defend yourself.
481
00:21:07.590 --> 00:21:09.960
That person has committed no crime.
482
00:21:09.960 --> 00:21:12.870
Last time, I remember when we instruct the jury
483
00:21:12.870 --> 00:21:15.660
on an NGI case we say someone
484
00:21:15.660 --> 00:21:19.110
who is not criminally responsible has committed no crime.
485
00:21:19.110 --> 00:21:20.790
That's the jury instruction.
486
00:21:20.790 --> 00:21:24.840
So why don't we treat this similarly where the probationer,
487
00:21:24.840 --> 00:21:27.550
although they did do an act, and just like
488
00:21:28.565 --> 00:21:30.420
if someone tried to stab me and I shot them,
489
00:21:30.420 --> 00:21:34.470
I did an act, I've committed no crime.
490
00:21:34.470 --> 00:21:36.450
When I act in perfect self-defense,
491
00:21:36.450 --> 00:21:39.273
I commit no crime where I to be NGI.
492
00:21:40.260 --> 00:21:42.900
Well, I would say especially in the probation context,
493
00:21:42.900 --> 00:21:46.350
we're looking at what conduct is acceptable for a probation
494
00:21:46.350 --> 00:21:48.720
or someone who doesn't have all the liberty interest
495
00:21:48.720 --> 00:21:51.870
as any other person walking around.
496
00:21:51.870 --> 00:21:55.110
So, sorry, I lost my train of thought.
497
00:21:55.110 --> 00:21:57.663
So I did cite some cases that-
498
00:21:58.876 --> 00:22:00.116
No, I read the A LR.
499
00:22:00.116 --> 00:22:02.616
Basically it, it sets out the three options we have.
500
00:22:02.616 --> 00:22:03.600
Sure.
501
00:22:03.600 --> 00:22:04.800
It talks about the different,
502
00:22:04.800 --> 00:22:07.020
well, the Illinois case in particular
503
00:22:07.020 --> 00:22:07.890
that I cite in my brief
504
00:22:07.890 --> 00:22:10.560
talks about the difference between self-defense
505
00:22:10.560 --> 00:22:12.660
and a criminal responsibility defense.
506
00:22:12.660 --> 00:22:16.170
This is not behavior that as a society we accept.
507
00:22:16.170 --> 00:22:17.700
Self-defense is behavior
508
00:22:17.700 --> 00:22:19.800
that we as a society have accepted
509
00:22:19.800 --> 00:22:21.433
you have not done anything wrong.
510
00:22:21.433 --> 00:22:23.564
But then, but why do we have an NGI defense
511
00:22:23.564 --> 00:22:25.230
if that's not something that society accepts?
512
00:22:25.230 --> 00:22:26.400
Well, if you look at
513
00:22:26.400 --> 00:22:29.250
all the case law talks about fairness to the person.
514
00:22:29.250 --> 00:22:32.520
We don't wanna subject this person to criminal sanctions
515
00:22:32.520 --> 00:22:33.720
because of this behavior,
516
00:22:33.720 --> 00:22:35.580
because they're under the effects
517
00:22:35.580 --> 00:22:37.290
of a mental disease or defect.
518
00:22:37.290 --> 00:22:39.750
So it's really the fairness to the person
519
00:22:39.750 --> 00:22:41.700
of subjecting them to criminal sanctions.
520
00:22:41.700 --> 00:22:43.170
And that's not what we're talking about here.
521
00:22:43.170 --> 00:22:45.540
This person has already been convicted of a crime.
522
00:22:45.540 --> 00:22:48.897
If I had someone on probation for armed robbery.
523
00:22:48.897 --> 00:22:51.300
And they violate probation with a new robbery
524
00:22:51.300 --> 00:22:53.820
or carrying a firearm and they might have
525
00:22:53.820 --> 00:22:58.503
schizophrenia or be truly NGI.
526
00:22:59.430 --> 00:23:01.470
I can sentence that person under your scheme
527
00:23:01.470 --> 00:23:02.883
to 20 years in prison.
528
00:23:02.883 --> 00:23:04.515
You can but we give the judge-
529
00:23:04.515 --> 00:23:07.260
Isn't that kind of a punishment for a crime, right?
530
00:23:07.260 --> 00:23:08.400
That that's the difference between
531
00:23:08.400 --> 00:23:09.870
the first and the second phase I would say.
532
00:23:09.870 --> 00:23:11.220
The first phase is focused on
533
00:23:11.220 --> 00:23:12.750
was there a violation here?
534
00:23:12.750 --> 00:23:15.030
It's a signal to the court if there was a violation
535
00:23:15.030 --> 00:23:16.980
that maybe this is not the correct disposition.
536
00:23:16.980 --> 00:23:18.480
That's why we give the judges
537
00:23:18.480 --> 00:23:21.240
so much discretion in the second stage of the proceedings.
538
00:23:21.240 --> 00:23:24.390
Because I can conceive of a scenario
539
00:23:24.390 --> 00:23:26.160
where there was a violation,
540
00:23:26.160 --> 00:23:28.830
maybe the person is being treated, you know,
541
00:23:28.830 --> 00:23:30.600
there was a violation, but maybe there's a mental-
542
00:23:30.600 --> 00:23:32.910
So what do you tell the trial judges?
543
00:23:32.910 --> 00:23:35.430
We say this is dispositional.
544
00:23:35.430 --> 00:23:37.140
Yes.
You have to,
545
00:23:37.140 --> 00:23:40.110
well if you find that they committed the crime,
546
00:23:40.110 --> 00:23:41.660
physically committed the crime,
547
00:23:42.990 --> 00:23:45.060
you can find 'em in violation of probation.
548
00:23:45.060 --> 00:23:46.563
And then on disposition,
549
00:23:47.520 --> 00:23:48.353
do what?
550
00:23:49.290 --> 00:23:51.480
They have to consider evidence of mental state
551
00:23:51.480 --> 00:23:53.460
that's brought by the probationer.
552
00:23:53.460 --> 00:23:55.110
It has to be part of their consideration along
553
00:23:55.110 --> 00:23:57.630
with everything else that they consider during this stage.
554
00:23:57.630 --> 00:24:00.437
Counsel, could you just remind me
555
00:24:00.437 --> 00:24:02.610
in the record appendix
556
00:24:02.610 --> 00:24:05.670
is the judicial order of probation in there?
557
00:24:05.670 --> 00:24:06.980
I believe it is.
558
00:24:06.980 --> 00:24:10.740
Do you know, as part of the original order of probation,
559
00:24:10.740 --> 00:24:14.230
whether this probationer was required
560
00:24:15.146 --> 00:24:19.470
to seek or maintain mental health treatment?
561
00:24:19.470 --> 00:24:20.817
I don't believe it was.
562
00:24:20.817 --> 00:24:22.230
And that's why this case is actually
563
00:24:22.230 --> 00:24:23.910
really perfectly teed up for this court
564
00:24:23.910 --> 00:24:26.400
because he wasn't facing any of these mental health issues
565
00:24:26.400 --> 00:24:27.233
when he was sentenced.
566
00:24:27.233 --> 00:24:28.650
Well it brings that,
567
00:24:28.650 --> 00:24:30.720
that dovetails to my point.
568
00:24:30.720 --> 00:24:33.780
So to the extent that we're talking about
569
00:24:33.780 --> 00:24:38.035
during the adjudicatory phase, that the probation,
570
00:24:38.035 --> 00:24:42.030
the judge presiding over the VOP session
571
00:24:42.030 --> 00:24:44.397
looks at the judicial order of probation
572
00:24:44.397 --> 00:24:46.590
and that at the time of the sentencing
573
00:24:46.590 --> 00:24:48.570
of the index criminal case
574
00:24:48.570 --> 00:24:51.120
no one knew that the probationer was suffering
575
00:24:51.120 --> 00:24:53.700
from any underlying mental health conditions.
576
00:24:53.700 --> 00:24:55.320
But now you have this.
577
00:24:55.320 --> 00:24:57.630
So why does it make sense to say,
578
00:24:57.630 --> 00:25:00.420
I'm going to issue a violation of probation
579
00:25:00.420 --> 00:25:01.890
based on an underlying condition
580
00:25:01.890 --> 00:25:04.950
that no one knew about or thought about
581
00:25:04.950 --> 00:25:07.050
at the time we put you on probation.
582
00:25:07.050 --> 00:25:10.920
Now we know, so I'm going to input the VOP,
583
00:25:10.920 --> 00:25:12.000
but then on sentencing,
584
00:25:12.000 --> 00:25:14.550
I'm going to take account that you're now suffering.
585
00:25:14.550 --> 00:25:17.160
How does that make sense? It's backwards, right?
586
00:25:17.160 --> 00:25:20.250
Because if there's a therapeutic response
587
00:25:20.250 --> 00:25:22.740
that's necessary, wouldn't that be,
588
00:25:22.740 --> 00:25:25.290
let's amend the conditions of probation.
589
00:25:25.290 --> 00:25:27.240
But are you saying that we can't do that
590
00:25:27.240 --> 00:25:29.040
without the finding of VOP?
591
00:25:29.040 --> 00:25:32.070
No, absolutely not. There is case law saying if there is a
592
00:25:32.070 --> 00:25:34.830
material change of circumstances, you absolutely can.
593
00:25:34.830 --> 00:25:38.820
But I think going forward under the framework
594
00:25:38.820 --> 00:25:40.620
that my brother suggests,
595
00:25:40.620 --> 00:25:42.840
it would take away the judge's ability
596
00:25:42.840 --> 00:25:45.900
to revoke probation in the cases where that's,
597
00:25:45.900 --> 00:25:48.540
that's maybe the appropriate disposition,
598
00:25:48.540 --> 00:25:50.640
which I would argue was in this case.
599
00:25:50.640 --> 00:25:53.700
This probationer you posed a very serious
600
00:25:53.700 --> 00:25:56.280
public safety risk to the community.
601
00:25:56.280 --> 00:25:57.663
But I'm sorry.
602
00:25:58.530 --> 00:26:01.590
So I'm confused though about the result here.
603
00:26:01.590 --> 00:26:06.360
So if he really was not guilty
604
00:26:06.360 --> 00:26:10.500
by reason, you know, whatever the standard is
605
00:26:10.500 --> 00:26:12.870
putting him in prison seems odd.
606
00:26:12.870 --> 00:26:16.860
I just feel like the judge may have done the first part
607
00:26:16.860 --> 00:26:19.920
of this analysis in revoking,
608
00:26:19.920 --> 00:26:24.870
meaning he just didn't buy it and then he puts him in jail.
609
00:26:24.870 --> 00:26:26.580
Is that a problem?
610
00:26:26.580 --> 00:26:30.750
Because then you can't really confront
611
00:26:30.750 --> 00:26:34.263
the issue properly.
612
00:26:35.190 --> 00:26:36.210
Was that clear?
613
00:26:36.210 --> 00:26:39.210
I'm worried that it made no sense
614
00:26:39.210 --> 00:26:42.000
to put the person in the house of corrections
615
00:26:42.000 --> 00:26:43.830
if he really was schizophrenic
616
00:26:43.830 --> 00:26:47.280
and it was an act that he couldn't control.
617
00:26:47.280 --> 00:26:49.410
Sure. And if this was his first violation
618
00:26:49.410 --> 00:26:51.600
and maybe the act that we're talking about here
619
00:26:51.600 --> 00:26:54.450
was not bringing a loaded firearm into a hospital,
620
00:26:54.450 --> 00:26:56.100
maybe that would be true.
621
00:26:56.100 --> 00:26:59.850
But under the facts here, given also his record,
622
00:26:59.850 --> 00:27:02.100
given also his prior violations of probation
623
00:27:02.100 --> 00:27:04.890
before he had any sort of mental health issues,
624
00:27:04.890 --> 00:27:06.270
the judge said over and over again
625
00:27:06.270 --> 00:27:08.880
that this particular person was well known to the court.
626
00:27:08.880 --> 00:27:10.830
She knew the family, she knew the situation.
627
00:27:10.830 --> 00:27:13.860
So it wasn't just the violation of probation
628
00:27:13.860 --> 00:27:15.540
that the judge was looking at here.
629
00:27:15.540 --> 00:27:18.270
So maybe if that was the only fact on the record that
630
00:27:18.270 --> 00:27:20.790
this kid really, you know,
631
00:27:20.790 --> 00:27:22.740
this was the first time the onset of these symptoms.
632
00:27:22.740 --> 00:27:25.770
And what does the judge do about the mental health issue?
633
00:27:25.770 --> 00:27:28.288
Does the judge judge do anything but violate?
634
00:27:28.288 --> 00:27:32.430
Is he sent for analysis?
635
00:27:32.430 --> 00:27:34.680
I mean, is there anything happens
636
00:27:34.680 --> 00:27:39.150
related to the schizophrenia and the mental health issue?
637
00:27:39.150 --> 00:27:40.520
Again, it's so case by case
638
00:27:40.520 --> 00:27:42.247
in this particular case because
639
00:27:42.247 --> 00:27:43.560
In this case.
640
00:27:43.560 --> 00:27:46.650
So in this case, there was also a parallel criminal action
641
00:27:46.650 --> 00:27:49.710
happening and he was actually committed under that action
642
00:27:49.710 --> 00:27:51.300
and got treatment that way.
643
00:27:51.300 --> 00:27:52.740
So by the time he was presenting
644
00:27:52.740 --> 00:27:54.065
in front of the court,
645
00:27:54.065 --> 00:27:56.556
he was actually treated with medication.
646
00:27:56.556 --> 00:27:59.610
So he was committed onto section 1 23.
647
00:27:59.610 --> 00:28:01.157
Parallel with this, right?
648
00:28:01.157 --> 00:28:03.052
Right, exactly. Yes.
649
00:28:03.052 --> 00:28:05.190
Okay. So he's okay, that's, that handles that issue.
650
00:28:05.190 --> 00:28:08.361
Yes. Yeah. That's why it's so case by case.
651
00:28:08.361 --> 00:28:09.930
'cause it's just depending on how the probationer is-
652
00:28:09.930 --> 00:28:12.030
How does that implicate the public safety
653
00:28:12.030 --> 00:28:13.770
issue you were talking about?
654
00:28:13.770 --> 00:28:17.520
So just the fact, the nature of the violation here.
655
00:28:17.520 --> 00:28:18.353
Him going out
656
00:28:18.353 --> 00:28:19.881
and arming himself and there was evidence.
657
00:28:19.881 --> 00:28:21.300
Oh, but now he's committed, right?
658
00:28:21.300 --> 00:28:22.530
Was that before?
659
00:28:22.530 --> 00:28:23.880
What's that? I'm sorry.
660
00:28:23.880 --> 00:28:25.170
I thought you said he was committed
661
00:28:25.170 --> 00:28:26.700
in the separate proceeding.
662
00:28:26.700 --> 00:28:28.211
He was committed after.
663
00:28:28.211 --> 00:28:29.280
But then you're saying
664
00:28:29.280 --> 00:28:30.930
that there's a public safety issue
665
00:28:30.930 --> 00:28:33.810
that allows the judge to reimpose a sentence.
666
00:28:33.810 --> 00:28:36.060
Right. Because what came out afterwards
667
00:28:36.060 --> 00:28:38.520
and some of these medical records was how easily
668
00:28:38.520 --> 00:28:41.070
he was able to arm himself the fact that he was,
669
00:28:41.070 --> 00:28:43.230
had this gun in his home
670
00:28:43.230 --> 00:28:44.955
with the family there and they didn't know about it.
671
00:28:44.955 --> 00:28:48.120
But he's committed, right? Oh, he's been released.
672
00:28:48.120 --> 00:28:49.440
I'm sorry, I misunderstood the question.
673
00:28:49.440 --> 00:28:50.400
He has since been released.
674
00:28:50.400 --> 00:28:52.800
Okay. That that was my concern.
675
00:28:52.800 --> 00:28:54.240
Can I ask you a question?
676
00:28:54.240 --> 00:28:56.280
Sorry, this is a technical question,
677
00:28:56.280 --> 00:28:58.290
but I didn't understand your briefs
678
00:28:58.290 --> 00:29:00.060
to making an argument, and I wanna make sure you're not
679
00:29:00.060 --> 00:29:01.683
making an argument that,
680
00:29:02.970 --> 00:29:05.070
that the defendant here
681
00:29:05.070 --> 00:29:08.280
waived the argument on willfulness.
682
00:29:08.280 --> 00:29:09.210
We've been discussing
683
00:29:09.210 --> 00:29:13.410
what the judge did below vis-a-vis the adjudicatory phase.
684
00:29:13.410 --> 00:29:17.130
And as I read the hearing, the transcripts of the hearing,
685
00:29:17.130 --> 00:29:20.850
it appears that the adjudicatory phase was somewhat skipped
686
00:29:20.850 --> 00:29:22.413
with respect to these issues.
687
00:29:23.250 --> 00:29:26.340
That it was essentially argued with respect
688
00:29:26.340 --> 00:29:28.500
to these issues were argued with respect to the
689
00:29:28.500 --> 00:29:31.950
to the dispositional stage.
690
00:29:31.950 --> 00:29:32.910
Do you think that that's a fair
691
00:29:32.910 --> 00:29:34.350
characterization of the record?
692
00:29:34.350 --> 00:29:37.020
I didn't understand you, you've addressed,
693
00:29:37.020 --> 00:29:38.400
appropriately addressed all of the issues,
694
00:29:38.400 --> 00:29:39.510
which I appreciate.
695
00:29:39.510 --> 00:29:41.790
But do you think that, I mean,
696
00:29:41.790 --> 00:29:42.930
going to my colleague's question
697
00:29:42.930 --> 00:29:44.700
about what the judge did here.
698
00:29:44.700 --> 00:29:47.640
Do you think there was or was not a finding with respect
699
00:29:47.640 --> 00:29:51.284
to the adjudicatory phase on willfulness
700
00:29:51.284 --> 00:29:55.410
regarding this person's mental illness?
701
00:29:55.410 --> 00:29:57.060
There was nothing on the record
702
00:29:57.060 --> 00:29:58.530
specific to willfulness.
703
00:29:58.530 --> 00:30:00.630
In some of those earlier transcripts
704
00:30:00.630 --> 00:30:04.620
this issue was raised whether this defense
705
00:30:04.620 --> 00:30:07.470
can be brought up and that that was sort of taken care of
706
00:30:07.470 --> 00:30:10.890
where she wouldn't even consider any of this evidence
707
00:30:10.890 --> 00:30:12.750
during that first adjudicatory phase.
708
00:30:12.750 --> 00:30:15.030
So in a sense it was sort of covered under that.
709
00:30:15.030 --> 00:30:17.190
I sort of took the judge's actions
710
00:30:17.190 --> 00:30:19.410
to be doing both at the same time, to be honest.
711
00:30:19.410 --> 00:30:21.420
So in other words, you read the record
712
00:30:21.420 --> 00:30:25.110
as sort of essentially the judge made clear to the defendant
713
00:30:25.110 --> 00:30:27.300
that the judge was not gonna consider this evidence
714
00:30:27.300 --> 00:30:28.770
at the judicatory phase and therefore
715
00:30:28.770 --> 00:30:30.510
it was not considered at that phase.
716
00:30:30.510 --> 00:30:32.773
And only as a disposition. Thank you.
717
00:30:32.773 --> 00:30:34.920
Could you, Justice Gaziano question.
718
00:30:34.920 --> 00:30:37.200
Mr. Schneiderman, can you address Eldrid?
719
00:30:37.200 --> 00:30:40.620
Just how do we interpret Eldrid in this context?
720
00:30:40.620 --> 00:30:42.390
Sure. It's difficult.
721
00:30:42.390 --> 00:30:45.780
It's a difficult, so that's another case where
722
00:30:45.780 --> 00:30:48.090
there was an affirmative act, right?
723
00:30:48.090 --> 00:30:49.170
Just like this one. There was,
724
00:30:49.170 --> 00:30:51.270
the probationer took an affirmative act.
725
00:30:51.270 --> 00:30:53.520
And that that was the only other case I could find
726
00:30:53.520 --> 00:30:54.353
where this court kind of
727
00:30:54.353 --> 00:30:55.890
was faced with these circumstances.
728
00:30:55.890 --> 00:30:57.690
And that's why it is so difficult.
729
00:30:57.690 --> 00:31:00.330
And I would say that this court in Henry
730
00:31:00.330 --> 00:31:04.320
and Canadian did not anticipate the willful requirement
731
00:31:04.320 --> 00:31:08.340
to apply to such an important condition of probation,
732
00:31:08.340 --> 00:31:10.470
which is to comply with the laws of the Commonwealth.
733
00:31:10.470 --> 00:31:11.650
But Eldrid didn't settle this
734
00:31:11.650 --> 00:31:13.170
one way or the other?
735
00:31:13.170 --> 00:31:15.093
No, it did not. It did not.
736
00:31:20.652 --> 00:31:21.570
If there are no further questions,
737
00:31:21.570 --> 00:31:23.070
I'm happy to rest on my brief.