-: SJC 1, 3, 5, 4, 4.
Commonwealth versus a juvenile.
(papers rustling)
-: Okay. Attorney Schneiderman.
-: Good morning Your Honors
Backwards. (chuckling)
May it please the court, I am Joseph Schneiderman.
I represent the youth with me as Andrew Di Mota,
his trial counsel in the Lawrence District Court.
Your Honor, since common law courts do not punish people
whose conduct stems from mental illness,
the judge's decision here to refuse
to recognize criminal responsibility as a complete defense
to probation violations in the face
of an uncontroverted record,
that the youth was suffering from mental illness
when he had the gun, creates multiple untenable results.
First lack of CR,
or excuse me, lack of criminal responsibility
constitutes a complete defense.
-: Mr. Schneiderman you're a little loud, just.
-: I apologize.
Thank you, Your Honor. (chuckling)
-: How do deal with Eldrid?
-: Your Honor, the record in Eldrid was underdeveloped
as compared to this case.
Here we have a pure documentary paper trail
that the commonwealth, or excuse me,
the probation opted not to controvert.
Eldrid came up on a reported question.
The question of whether or not
addiction was itself a mental illness
that qualified was not as developed here.
This court has recognized
that schizophrenia is a mental illness
that triggers a CR analysis.
And in any event, we have an expert consensus
that my client was suffering from mental illness.
And we have
an expressed conclusion
by Dr. Bemidjian and at record 99 and 100,
that at the time my client could not appreciate
the wrongfulness of carrying the gun.
-: I take your point about the factual differences
in the separate, analogous context,
but I think the question really goes more towards
the legal question and the standard to be applied.
I think the court
in Eldrid reserve the question
whether in some cases with a stronger factual basis,
a person in Ms. Eldrids position could potentially,
or at least the court reserve the possibility
that they could potentially prove
or overcome defeat the element
of willfulness on the basis of similar evidence.
So why, could you address why the court
should not take a similar approach here?
And hold that this all boils down to willfulness.
And depending on the factual record,
the person may or may not,
the commonwealth may or may not show willfulness,
-: Your Honor, I think that's precisely it actually.
That criminal responsibility would go to willfulness here.
And courts that have not recognized the defense
either don't engage in that analysis
or overlook how willfulness is an underpinning
of a lot of the due process.
-: Can I interrupt? Just- Schneiderman: Of course.
-: My question was specifically,
I wasn't entirely clear about the premises,
not to import the affirmative defense
of criminal responsibility,
which is how you're framing your argument,
but rather simply to consider willfulness.
Is there a problem in your view
with simply considering willfulness
as we have long understood it in the probation context,
as opposed to considering the concept
of the criminal responsibility defense
as developed in the context of criminal prosecutions?
-: Forgive me, Your Honor. I'm not sure I follow,
I understand Your Honor
is asking about willfulness and the defense.
-: In some of the cases that are cited in your brief
from other jurisdictions, the courts there have said,
we are not going to import the entire affirmative defense
of criminal responsibility into probation
violation hearings.
We are, however, going to allow courts to consider evidence
regarding mental illness vis-a-vis the element
of willfulness that is a necessary element
for proving a probation violation.
Do you have concerns about the court so holding here?
I'm very interested to hear
if you think that there are aspects
of the affirmative defense of criminal responsibility
as it is understood in the context of criminal prosecutions
that are distinct from
and important to be included in
probation revocation hearings in your view.
Probation violation hearings in your view,
as distinct from just focusing on willfulness.
-: I think actually there are
implications for that, Your Honor.
I thank Your Honor for clarifying.
I think what is key about
the criminal responsibility defense
is it is always recognized that we do not punish.
And there is something fundamentally unfair about punishing
criminal defendants who just have no capacity to realize
or cogitate that their conduct was wrong.
That applies per force I think, Your Honor,
to the context of probation.
Where the purpose of probation is
to get the probationer back on their feet,
and if the probationer has done something
that is not within their control
or that is due to circumstances beyond their control,
then not recognizing the defense becomes highly problematic.
And it would, as Your Honor is suggesting,
if I follow Your Honor's question, transcend woefulness.
Justice (unintelligible)
I think I saw you asking me something.
(judges chuckling)
-: Justice Gaziano, I think you have a question.
-: Whoever.
I'm happy to answer anyone's question.
-: Alright. If you could take us one at a time.
So on that point that you just made,
we've distinguished in the willfulness about,
I'm a homeless person, whose unable to charge the GPS
because they have no outlet, right?
That's the classic example of willfulness.
But as you said, someone that's it's outta their control.
What about the person who's really drunk
and they wander into an exclusionary zone on a GPS?
Does that person violate probation?
-: Your Honor that would take us,
if the person there tried to raise criminal responsibility,
that would take us into the ambit of Dunphy
saying that voluntary intoxication,
particularly where someone knows that their intoxication
would adversely affect them-
-: Do you want us to import Dunphy
and all that complexity into a violation
of probation proceeding?
-: Yes, I do, Your Honor.
I think that the aspects
and the layers of CR are very important
to import into probation violation proceedings.
-: What about someone who just has diminished capacity?
Take the NGI out of it.
You want us to go down that road as well?
-: Your Honor- -: And so said basically,
I'm on probation for drunk driving
am I too drunk to be on probation?
-: Certainly not, Your Honor.
I don't think someone could be too drunk
to be on probation. -: Okay so,
I can't stop myself from getting into the car.
I can't stop myself from going through exclusionary zones.
I can't stop my compulsion for all sorts of bad behavior.
That's the road you're taking us down, right?
-: Not quite, Your Honor. I think Your Honor's avenue,
if I'm following Your Honor's road analogy correctly here
would be the probationer's violation there.
The question may come up, but the commonwealth
or probation could rebut it by demonstrating
that this was a voluntary choice to consume alcohol
or consume another intoxicate.
That sort of nuance should go into it
and would bear very much on willfulness and the procedure.
I think to more to Your Honor's question,
the threshold burden to establish criminal responsibility is
and always has been on the defendant.
The defendant must establish that this is my organic
as this court recognized in Dunphy
my organic problem that makes me unable
to appreciate the implications-
-: It's the government's burden
and normal current responsibility.
You know, aided sometimes with the presumption of sanity,
although we've criticized that.
But once it's raised, it's the government's,
the government's burden to prove sanity, right?
-: That's exactly correct, Your Honor.
-: That would hold true in a violation of appropriation?
-: That's exactly right Your Honor,
this court should absolutely import-
-: Sounds like a trial to me,
not a violation of appropriation proceeding.
-: Your Honor.
VOPs may be, or I'm sorry, let me stop using abbreviations.
-: No, I get, I get what you mean.
-: Probation violation proceedings may be more flexible,
but flexibility cannot and should not import-
-: Most of the time- -: A dilution.
-: Most of the country says NGI is not available on a VOP.
Some states say it is,
and then some say it's a mitigating circumstance.
I think that's just what Doer was indicating as far
as willfulness and or sentencing right.
And and you want us to embrace the minority view?
-: Your Honor, I think that the prevailing view
or the trend has been to recognize this as a defense
and I think to recognize it as a defense would comport
with this court's evolving understanding, not just
to the aims of probation,
but of the reality of mental illness.
So I think even though it's a pro, this is a new view,
prior courts have not considered how the US Supreme Court,
the due process implications in probation
violation proceedings.
So I think this court wouldn't be wandering
into unchartered waters.
-: Why isn't the fact that you consider it in,
in the second stage whether to violate the probation,
whether to put them back isn't that gonna deal
with the due process considerations
and also essentially take care of all of this?
If you're considering it
in how you respond to the violation,
isn't that as a practical matter gonna address this problem?
You know, and it does in this case.
I mean in this case it's harder.
The judge decides still to put him
into the house of correction, but that he didn't have to.
And that may be wrong, that part of it.
But isn't that where this should be fought out?
Not in the, whether he violated probation,
but rather what's the appropriate response given
that he was schizophrenic?
-: Your Honor, it's not enough to consider it
just as a dispositional option.
Gaziano: Why not?
-: Because at the question at the first phase
of a probation violation proceeding
is a retrospective factual one
of whether a violation has occurred
and criminal responsibility is a complete defense if someone
is not criminally responsible.
No crime has occurred by extension.
No violation of probation would've occurred
to the extent the appeals court suggested
otherwise in Ogaro
the appeals court was making a distinction
without a difference based on dicta.
-: But what is the difference to Justice Kafka
and Justice Dewar's point between what you are arguing,
which is there is no violation of probation
versus a consideration in terms
of what to do given the violation.
As a practical matter?
-: As a practical matter, Your Honor, if there's no,
if it were proven, there would be no violation of probation.
If it is a violation though of probation,
it would trigger a host of consequences
for a probationer. So.
-: But there's a public safety consequence to it.
I mean this this case, it's, no one was harmed exactly.
But your analysis would apply
if he goes out and rapes somebody, right.
So he's schizophrenic and he goes out and rapes somebody,
he still shouldn't be violated
under your view right.
Because under your view,
there's no second part of this analysis.
He didn't violate probation.
So he should still be out on probation,
-: Your Honor he should still be out on probation,
but judges are not powerless to do something.
The judge could make a referral
to the court clinic if the probationer is truly a danger,
then the court clinic could opt
to invoke the procedures under chapter 1 23
to seek civil commitment.
So it would not be a get out of jail free card,
for lack of a better word here.
It would be the probationer, if shown to be a danger
because of their mental illness,
has to be taken down a separate road to be dealt with
rather than in the sort of box
of a probation violation proceeding.
-: Would you remind me whether you're arguing
that the defendant was schizophrenic,
and did not understand the wrongfulness
of carrying a firearm, did he?
Is that the argument?
-: That's precisely it, Your Honor.
That he was schizophrenic.
His schizophrenia had a sudden onset
and that he did not appreciate the wrongfulness
of carrying the firearm when he did it
because he was operating under a delusion.
-: I thought it was, I thought he was
carrying a firearm to protect himself
but it wasn't that he didn't know
he wasn't supposed to have one.
-: Your Honor, he was carrying the firearm
because of his delusion.
Dr. Bemidjian's report at record 93
to 100 details what he was enduring at the time.
He believed that there were people out to get him
and to harm his daughter, and he obtained the firearm.
In retrospect, he realized he could not possess the firearm
but at the time,
and that's Dr. Bemidjian's conclusion
at record 99 to 100
that he could not appreciate wrongfully carrying it
because he was operating under a delusion.
-: Just to be sure we're clear on this,
I understand your answer to mean that you're,
if the criminal responsibility defense did exist,
you'd be proceeding solely under the inability
to appreciate wrongfulness of conduct.
And you are conceding that on the record
and with the evaluations that we have in this record,
you are not proceeding under the inability
to conform to the law.
-: That's correct, Your Honor. Yes.
-: But isn't that the willfulness prong?
-: Yes, it is Your Honor. The inability to appreciate to-
(speaking over each other indistinctly)
-: Another construct that Justice Duha
pointed out the first time.
Unless you have the second prong of the test,
it's going to be willful. It's intentional.
-: That's correct Your Honor.
-: That's why you don't want it, 'cause you'll lose?
-: I beg your pardon.
-: That's, that's bad for you, right?
Because you want to go into,
you want to go into either prong
as opposed to the latter prong right.
Of the McCool test.
-: On this record, Your Honor, it's the first prong
because
Dr Bemidjian's conclusion is that it fit the first prong.
In future cases it may very well go to both.
I think though as Your Honor and I-
-: Both in this is only really the second prong.
-: I'm not sure I follow that Your Honor.
-: It's the volitional part of it.
-: Your Honor, to suggest that it's just goes
to volition though, would be to eradicate
any sort of consideration though
of the circumstances and the probationers.
-: No, I can't charge my GPS
'cause I don't have an outlet.
Right, that's willfulness.
It's the intentionality of the violation.
-: That's correct Your Honor but,
it still would not account for,
if I follow Your Honor's question,
it would not account for-
-: No, I guess what I'm just trying to say
is that if we break it down
and just focus on the willfulness part,
it really bifurcates the NGI
or the criminal responsibility test.
And your position is
we should look at criminal responsibility
and say there's no crime at all. Correct?
-: Yes. That is Your Honor.
I'm sorry, I did not mean to get into a dispute with you.
-: No, no.
And then that's the same thing
as saying there's self-defense, so there's no crime.
-: Exactly, Your Honor.
Gaziano: Alright, I understand.
-: Attorney Schneiderman,
I did have one final question.
Thank you, chief, for the indulgence.
This entire process that you are describing,
we've said over and over that it's post dispositional.
You don't get all the same constitutional protections
as you would predispositional.
But how does this fit in the,
in the Commonwealth's overall concerned with the,
the efficient resolution of probation?
I'm obviously, I'm from the, the community courts
and I'm very protective of the fact that the vast majority
of people that come through those doors
are going to get some measure of probation
and the resolution of their cases.
We all know the realities that people have undiagnosed or,
some underlying mental health conditions.
How are we going to actually efficiently
and effectively resolve probation violation matters
if we go down the path that you're talking about?
And I mean, as a practical matter.
-: Your Honor as a practical matter,
this assessment I think would fit the standards
of good cause, which is in the district court probation
violation rules the juvenile court probation
violation rules.
And it couldn't be something that was sort
of left hanging in the ether.
Defense counsel should be diligent, particularly
where defense counsel bears the initial burden.
So to the extent that there is a concern about timing,
actually this goes to what I was trying to answer before,
which is flexibility does not connote dilution here.
Flexibility if the issue is appropriately raised,
then it would be something
that would justify additional timing
and it should not function as a dilution,
particularly where the alternative is untenable,
which is potential punishment for status.
Unless Your Honors have further questions,
I thank you for your time.
-: Okay. Thank you very much.
Okay, Attorney Coney Jang.
-: May it please the court,
Kristin Jang for the Commonwealth.
Based on this courts precedent
the reason decisions of other jurisdictions,
a probationer may not assert
a criminal responsibility defense
to a violation of probation.
Rather evidence of the probationer's mental state
when they committed the violation
is relevant to the disposition of the case.
-: Well, I'm going to start with what I left off with.
Because you say that,
but there are these downstream really, really important
and negative implications to probationers.
So let me start with the first domino.
So whenever you're in a violation session,
the court has to make a determination
that there was a willful violation of an order of probation.
A condition of probation.
So why wouldn't it make more sense for this
to be the determination
during the adjudicatory phase versus the sentencing phase?
And I say that not as a matter of concept
because you know what the commonwealth does when they go,
when folks come back with requests for bail, they point
to all the violations of the probation.
They point to the fact that people didn't come back
for things as reasons for why they were asking
for higher monetary bail.
So it's not just something conceptual about doing it
during the dispositional phase versus doing it from the
adjudicatory phase, because
that's captured in the carry when the VOP hits.
-: And the commonwealth concedes that.
These do have very real implications.
But at the same time in these situations,
it's a real red flag to the court
that probation is not working anymore.
If there was an affirmative violation,
there was an act, an affirmative act taken
as a violation of probation.
That is a huge flag to the court
that maybe this is-
-: An affirmative willful act.
Jang: Yes. -: Right.
But if it bears on the issue of willfulness,
why shouldn't it be considered
as part of the adjudicatory phase?
-: Well, I can address that head on.
So I would say under Henry
and Canadian, if I'm pronouncing that correctly.
Yes this court has held
that there must be a willful violation.
However, both of those situations
involved a administrative technical violation.
And in both of those cases,
the probationer did not do something,
was unable to fulfill their conditions of probations
by failure to do something.
Failure to pay a fee that they couldn't afford to pay.
Failure to care or have this GPS machine charged
because they didn't have a reliable outlet.
In this case, we're dealing with probationers
who took an affirmative act.
-: But when we look at the self-defense cases, right?
So, well, it's not a crime
'cause you have the right to defend yourself.
That person has committed no crime.
Last time, I remember when we instruct the jury
on an NGI case we say someone
who is not criminally responsible has committed no crime.
That's the jury instruction.
So why don't we treat this similarly where the probationer,
although they did do an act, and just like
if someone tried to stab me and I shot them,
I did an act, I've committed no crime.
When I act in perfect self-defense,
I commit no crime where I to be NGI.
-: Well, I would say especially in the probation context,
we're looking at what conduct is acceptable for a probation
or someone who doesn't have all the liberty interest
as any other person walking around.
So, sorry, I lost my train of thought.
So I did cite some cases that-
-: No, I read the A LR.
Basically it, it sets out the three options we have.
-: Sure.
It talks about the different,
well, the Illinois case in particular
that I cite in my brief
talks about the difference between self-defense
and a criminal responsibility defense.
This is not behavior that as a society we accept.
Self-defense is behavior
that we as a society have accepted
you have not done anything wrong.
-: But then, but why do we have an NGI defense
if that's not something that society accepts?
-: Well, if you look at
all the case law talks about fairness to the person.
We don't wanna subject this person to criminal sanctions
because of this behavior,
because they're under the effects
of a mental disease or defect.
So it's really the fairness to the person
of subjecting them to criminal sanctions.
And that's not what we're talking about here.
This person has already been convicted of a crime.
-: If I had someone on probation for armed robbery.
And they violate probation with a new robbery
or carrying a firearm and they might have
schizophrenia or be truly NGI.
I can sentence that person under your scheme
to 20 years in prison.
Jang: You can but we give the judge-
-: Isn't that kind of a punishment for a crime, right?
-: That that's the difference between
the first and the second phase I would say.
The first phase is focused on
was there a violation here?
It's a signal to the court if there was a violation
that maybe this is not the correct disposition.
That's why we give the judges
so much discretion in the second stage of the proceedings.
Because I can conceive of a scenario
where there was a violation,
maybe the person is being treated, you know,
there was a violation, but maybe there's a mental-
-: So what do you tell the trial judges?
We say this is dispositional.
Jang: Yes. -: You have to,
well if you find that they committed the crime,
physically committed the crime,
you can find 'em in violation of probation.
And then on disposition,
do what?
-: They have to consider evidence of mental state
that's brought by the probationer.
It has to be part of their consideration along
with everything else that they consider during this stage.
-: Counsel, could you just remind me
in the record appendix
is the judicial order of probation in there?
-: I believe it is.
-: Do you know, as part of the original order of probation,
whether this probationer was required
to seek or maintain mental health treatment?
-: I don't believe it was.
And that's why this case is actually
really perfectly teed up for this court
because he wasn't facing any of these mental health issues
when he was sentenced.
-: Well it brings that,
that dovetails to my point.
So to the extent that we're talking about
during the adjudicatory phase, that the probation,
the judge presiding over the VOP session
looks at the judicial order of probation
and that at the time of the sentencing
of the index criminal case
no one knew that the probationer was suffering
from any underlying mental health conditions.
But now you have this.
So why does it make sense to say,
I'm going to issue a violation of probation
based on an underlying condition
that no one knew about or thought about
at the time we put you on probation.
Now we know, so I'm going to input the VOP,
but then on sentencing,
I'm going to take account that you're now suffering.
How does that make sense? It's backwards, right?
Because if there's a therapeutic response
that's necessary, wouldn't that be,
let's amend the conditions of probation.
But are you saying that we can't do that
without the finding of VOP?
-: No, absolutely not. There is case law saying if there is a
material change of circumstances, you absolutely can.
But I think going forward under the framework
that my brother suggests,
it would take away the judge's ability
to revoke probation in the cases where that's,
that's maybe the appropriate disposition,
which I would argue was in this case.
This probationer you posed a very serious
public safety risk to the community.
-: But I'm sorry.
So I'm confused though about the result here.
So if he really was not guilty
by reason, you know, whatever the standard is
putting him in prison seems odd.
I just feel like the judge may have done the first part
of this analysis in revoking,
meaning he just didn't buy it and then he puts him in jail.
Is that a problem?
Because then you can't really confront
the issue properly.
Was that clear?
I'm worried that it made no sense
to put the person in the house of corrections
if he really was schizophrenic
and it was an act that he couldn't control.
-: Sure. And if this was his first violation
and maybe the act that we're talking about here
was not bringing a loaded firearm into a hospital,
maybe that would be true.
But under the facts here, given also his record,
given also his prior violations of probation
before he had any sort of mental health issues,
the judge said over and over again
that this particular person was well known to the court.
She knew the family, she knew the situation.
So it wasn't just the violation of probation
that the judge was looking at here.
So maybe if that was the only fact on the record that
this kid really, you know,
this was the first time the onset of these symptoms.
-: And what does the judge do about the mental health issue?
Does the judge judge do anything but violate?
Is he sent for analysis?
I mean, is there anything happens
related to the schizophrenia and the mental health issue?
-: Again, it's so case by case
in this particular case because
In this case.
So in this case, there was also a parallel criminal action
happening and he was actually committed under that action
and got treatment that way.
So by the time he was presenting
in front of the court,
he was actually treated with medication.
-: So he was committed onto section 1 23.
Parallel with this, right?
-: Right, exactly. Yes.
-: Okay. So he's okay, that's, that handles that issue.
-: Yes. Yeah. That's why it's so case by case.
'cause it's just depending on how the probationer is-
-: How does that implicate the public safety
issue you were talking about?
-: So just the fact, the nature of the violation here.
Him going out
and arming himself and there was evidence.
-: Oh, but now he's committed, right?
Was that before?
-: What's that? I'm sorry.
-: I thought you said he was committed
in the separate proceeding.
-: He was committed after.
-: But then you're saying
that there's a public safety issue
that allows the judge to reimpose a sentence.
-: Right. Because what came out afterwards
and some of these medical records was how easily
he was able to arm himself the fact that he was,
had this gun in his home
with the family there and they didn't know about it.
-: But he's committed, right? Oh, he's been released.
-: I'm sorry, I misunderstood the question.
He has since been released.
-: Okay. That that was my concern.
-: Can I ask you a question?
Sorry, this is a technical question,
but I didn't understand your briefs
to making an argument, and I wanna make sure you're not
making an argument that,
that the defendant here
waived the argument on willfulness.
We've been discussing
what the judge did below vis-a-vis the adjudicatory phase.
And as I read the hearing, the transcripts of the hearing,
it appears that the adjudicatory phase was somewhat skipped
with respect to these issues.
That it was essentially argued with respect
to these issues were argued with respect to the
to the dispositional stage.
Do you think that that's a fair
characterization of the record?
I didn't understand you, you've addressed,
appropriately addressed all of the issues,
which I appreciate.
But do you think that, I mean,
going to my colleague's question
about what the judge did here.
Do you think there was or was not a finding with respect
to the adjudicatory phase on willfulness
regarding this person's mental illness?
-: There was nothing on the record
specific to willfulness.
In some of those earlier transcripts
this issue was raised whether this defense
can be brought up and that that was sort of taken care of
where she wouldn't even consider any of this evidence
during that first adjudicatory phase.
So in a sense it was sort of covered under that.
I sort of took the judge's actions
to be doing both at the same time, to be honest.
-: So in other words, you read the record
as sort of essentially the judge made clear to the defendant
that the judge was not gonna consider this evidence
at the judicatory phase and therefore
it was not considered at that phase.
And only as a disposition. Thank you.
-: Could you, Justice Gaziano question.
Mr. Schneiderman, can you address Eldrid?
Just how do we interpret Eldrid in this context?
-: Sure. It's difficult.
It's a difficult, so that's another case where
there was an affirmative act, right?
Just like this one. There was,
the probationer took an affirmative act.
And that that was the only other case I could find
where this court kind of
was faced with these circumstances.
And that's why it is so difficult.
And I would say that this court in Henry
and Canadian did not anticipate the willful requirement
to apply to such an important condition of probation,
which is to comply with the laws of the Commonwealth.
-: But Eldrid didn't settle this
one way or the other?
-: No, it did not. It did not.
If there are no further questions,
I'm happy to rest on my brief.